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Black Tax and African Labour in Global Capitalism

10 min read.

Nick Bernards argues that placing African labour in capitalism requires that we think seriously and in historical perspective about the politics of irregular forms of work. In his contribution to ROAPE’s debate on capitalism in Africa, Bernards points out that the kinds of work performed by African workers have often been key reference points in global debates about governing irregular forms of work.



Black Tax and African Labour in Global Capitalism

The exploitation of ‘free’ wage labour – in Marx’s double sense of those workers ‘free’ to sell their labour to whom they choose and ‘free’ of any other means of reproducing themselves – is a core characteristic of capitalist relations of production. On more than a few readings, it is the defining trait of capitalism. Wage labourers in this narrow sense have almost always made up a small fraction of the workforce across sub-Saharan Africa. In one estimate from the late 1920s, the proportion of African populations employed in wage labour ranged from 0.4 percent in Nigeria to 8.2 percent in the South African Transkei. The most recent figures from the International Labour Organization (ILO) have 85.8 percent of African workers in ‘informal’ forms of work.

So, comparing African political economies to abstract models of capitalism assuming ever-widening proletarianization would seem unlikely to tell us much. In different ways, Kate Meagher, Stefan Ouma, Horman Chitonge, and Elisio Macamo have (rightly) pointed this out on this debate series on Yet, as Pnina Werbner shows in an excellent recent piece in ROAPE, studies of African working classes in particular have a long history of falling into precisely this trap – studying African labour primarily by comparing it to the ‘normal’ trajectories of proletarian labour in Europe.

On the other hand, it would be hard to dispute that the history of African development has long been profoundly shaped by its place in a world economy that is undeniably capitalist. Indeed, the development of the contemporary capitalist world economy fundamentally depended on the mobilization of African labour through the slave trade and the colonial plunder of African resources. Equally, the present context is marked by, among other things, large-scale land grabbing, extractivist development models, increasingly volatile prices for agricultural commodities, and the vicissitudes of private foreign debt. It would be difficult, in short, to understand contemporary patterns of African political economy without reference to their location in capitalist circuits of accumulation. There’s a danger, then, that in jettisoning ‘capitalism’ altogether from our studies of African political economies we risk missing important dynamics. Yet, as Jörg Wiegratz – the editor of this series – illustrates in a recent post in this series, current debates in African studies have often fallen into this trap as well.

It would be hard to dispute that the history of African development has long been profoundly shaped by its place in a world economy that is undeniably capitalist.

So, we’re left with a paradox: African political economies, and especially their myriad labour regimes, don’t look much like conventional understandings of ‘capitalism’, but capitalism as a system of accumulation couldn’t exist in its current form without Africans and their (often non-proletarian) labour. Moreover, we can’t make much sense of the history and development of African political economies without some reference to capitalism as a system of accumulation on a global scale. I want to suggest in this post that the way forward here is, rather than asking what ‘capitalism’ tells us about Africa, we should be asking: ‘what does African labour tell us about capitalism?’

Placing African labour in capitalism

One promising direction here comes from critical political economists who have, in various ways, sought to place informal and unfree work in sub-Saharan Africa in the circuits of global capital. Marxian writers on unfree labour have pointed to the crucial role played by unfree forms of exploitation in facilitating contemporary global patterns of accumulation, including in Africa. ‘Informal’ work too, as Kate Meagher reminds us in her contribution to this debate series, is still often linked into global production networks through a variety of precarious forms of exploitation. For instance, seasonal agricultural workers play a vital role in producing cash crops for export; and labour brokers employing workers on hyper-casualized, temporary contracts are rife in the construction industry in many urban centres across the region.

Such interventions are vital, in no small part because these perspectives have enabled important critiques of the policy frameworks rolled out by the International Labour Organization (ILO), World Bank, and others around irregular forms – in which African labour has often played a central role. These frameworks have tended to treat informal economies, forced labour, and other forms of non-standard work as the products of the exclusion of certain workers from the normal workings of global capitalism. In 2002, for instance, in an ILO report on Decent Work and the Informal Sector, the relationship between informal work and ‘globalization’, is described as follows: ‘Where the informal sector is linked to globalization, it is often because a developing country has been excluded from integration into the global economy.’ The ILO increasingly suggests that these ‘exclusions’ from the global economy are compounded by ineffective regulation.

The main alternative to the ILO’s perspective in discussions of informal labour is the brand of institutional economics widely adopted by the World Bank. Here ‘informality’ becomes a form of poor people’s empowerment in the face of overregulation by the state, a reflection of entrepreneurial instincts to be encouraged by developing appropriate institutions. Policy initiatives to promote micro-enterprise development, access to credit, skills, and property rights follow logically from this way of thinking about the ‘informal.’ Here again, informality is understood in terms of exclusion from the normal operation of market forces.

African political economies, and especially their myriad labour regimes, don’t look much like conventional understandings of ‘capitalism’, but capitalism as a system of accumulation couldn’t exist in its current form without Africans and their (often non-proletarian) labour

In either case, policies designed without regard for the ways in which ‘informal’ work is embedded in wider capitalist economies are unlikely to be effective – at best they can offer half solutions that treat the symptoms rather than the causes of dispossession. Yet, there is still an important corollary that has often gone under explored. In practice, the lines between, say, ‘formal’ and ‘informal’ labour relations are indeed fluid and irregular forms of work are indeed integral to capitalist accumulation. But, as I argue in my recent book, The Global Governance of Precaritythe drawing of those boundaries themselves, and the implicit relegation of ‘informal’ or violent modes of exploitation to aberrant spaces outside the ‘normal’ workings of capitalism, are not just conceptual questions of concern to scholars of (African) political economy. They are fundamentally political ones, they are the artefacts of specific, historical, patterns of struggle and practices of governance. African labour, notably, has historically long been at the centre of debates around these questions on a global scale.

Placing African labour in capitalism, then, requires that we think seriously and in historical perspective about the politics of irregular forms of work. The kinds of work performed by African workers have often been key reference points in global debates about governing irregular forms of work. The ILO’s first convention on forced labour from 1930, for instance, was debated and negotiated through the 1920s in the context of growing concerns about colonial labour practices in Africa. But, as I show further in the remainder of this piece, such frameworks have always been contested, and often shaped in powerful ways by the unfolding and contingent relationships between the state and various segments of working classes.

The origins of ‘informality’

The concept of ‘informal’ work, to cite a particularly important example, was popularized in no small part by a major ILO mission to Kenya under the auspices of the World Employment Programme (WEP). This WEP mission to Kenya in 1972, relied quite centrally and explicitly on the assumption that the ‘formal’ and ‘informal’ were discrete spheres, the latter defined by its exclusion from the world economy. Hence, the core of the strategy laid out in the ILO report: ‘Our strategy of a redistribution from growth aims at establishing links that are at present absent between the formal and informal sectors.’

It’s worth pointing out that, while the concept of ‘informality’ was new in the 1970s, it clearly echoed colonial dichotomies between ‘modern’ (implicitly urban, capitalist, and Europeanized) and ‘traditional’ (rural, tribal, African) sectors of the economy. The fact that Africans were increasingly moving from supposedly ‘non-capitalist’ spaces in the countryside into ‘capitalist’ ones in the city was the source of much consternation for colonial officials and ILO staffers in the decade after WWII. ‘Development’ and economic growth were increasingly identified with the movement of people from (non-capitalist) ‘traditional’ activities in the countryside into (capitalist) ‘modern’ employment in urban spaces, and the concomitant increase in labour productivity– as in, for instance, W. Arthur Lewis’ seminal work. But colonial policy-makers increasingly fretted about how to manage these transitions, and how to govern those ‘classes of wage-earners who… could no longer rely on the solidarity engendered by the family or tribal community… and were consequently vulnerable to the ordinary risks of life and to the fluctuations of employment’, and about ‘the danger of permitting towns to expand beyond a certain limit; then they became unwieldy to administer and control.’

The preparatory work for the ILO mission to Kenya very clearly echoed similar concerns: ‘Perhaps more important than all the rest, there seems to exist, in Kenya, a very notorious dualism between the prosperous basis of certain aspects of the economic picture, highly productive farm units, relatively good infrastructure, sophisticated financial services, high-quality education, by European standards, in some schools, and the majority of the population.’ The concept of the ‘informal’ economy perhaps broke down the strict rural-urban dualism often implicit in these older statements – pointing, in effect, to ‘non-capitalist’ forms of work in urban spaces. However, it still very much framed the reduction of urban poverty in terms of finding ways of progressively incorporating African workers into global capitalism.

These perspectives were problematic. As a host of critics at the time – including figures like Colin Leys and Richard Sandbrook – pointed out, ‘informal’ economies often subsidized social reproduction in the context of low wages in the ‘formal’ sector. Among other things: street vendors provided cheap food and clothing, informal domestic labour directly enabled the reproduction of wage work, and ‘informal’ employment often supplemented the incomes for ‘formal’ workers and their households in the context of declining real wages. And in the region more broadly, dichotomies between ‘formal’ and ‘informal’, or ‘rural’ and ‘urban’ economies, or ‘modern’ and ‘traditional’ sectors, tended to occlude the ways in which individual workers and households often relied on livelihood strategies that cut across these areas of activity. In short, the concept of the ‘informal’ neatly excluded the ways in which irregular forms of work in Kenya were already linked with properly ‘capitalist’ accumulation in Kenya, particularly in subsidizing the very low wages paid by multinational firms operating in Kenya.

The preparatory work for the ILO mission to Kenya very clearly echoed similar concerns: ‘Perhaps more important than all the rest, there seems to exist, in Kenya, a very notorious dualism between the prosperous basis of certain aspects of the economic picture, highly productive farm units, relatively good infrastructure, sophisticated financial services, high-quality education, by European standards, in some schools, and the majority of the population

But, contemporary critics, like present-day political economists, too often stopped the argument there. The very things that made governing the ‘informal’ an inadequate means of addressing poverty also made it an effective political tool – it blocked any serious consideration of the structural roots of poverty, focusing instead on a relatively narrow set of technical responses aimed at fostering ‘links’ between formal and informal activity. Framing urban poverty in terms of ‘informality’ dovetailed with and helped reinforce a structure of state authority that sought to restrict any independent voice for labour in shaping development strategy. The WEP mission, it is worth noting, followed a period of consolidation and depoliticization of the labour movement. Kenya’s Central Organization of Trade Unions (COTU) had been formed in 1965 when the government dissolved the Kenya Federation of Labour (KFL) and the rival Kenyan African Workers’ Congress. The KFL had split over interlinked personal disagreements among the leadership, questions of international affiliation, and the ‘political’ independence of trade unions. The new COTU was led by the factions aligned to the government, and it was prevented from pursuing ‘political’ action. The government also identified unions the primary cause of unemployment in the 1970 report of the Parliamentary Select Committee on Unemployment in 1970 – high levels of wage disparity between urban and rural areas, partly ‘as a result of the trade union activities’ were blamed for excessive rural-urban migration and the resort of capital to labour-saving technologies. The diagnosis of urban poverty as the result of the (non-capitalist) informal character of the forms of work performed by most Kenyans dovetailed well with this set of political dynamics.

Irregular work in neoliberal Africa

Irregular forms of labour have increased in numbers and political salience across much of sub-Saharan Africa in the neoliberal era. Structural adjustment brutally undercut working class livelihoods across the region, often prompting widespread protests and undercutting the legitimacy of many single-party governments. At the same time, the means through which postcolonial states had often disciplined strategically important segments of working classes – close links between trade unions and ruling parties in particular – were often severely damaged by structural adjustment. This pattern of failure, backlash, and state restructuring is crucial to understanding the re-articulation of policies towards ‘informal’ economies and ‘forced labour’ from the 1990s onwards. On one hand, neoliberal strategies of governance often shifted towards more localized, community-level interventions dealing with health, education, microfinance as mechanisms for poverty reduction in the aftermath of the failures of structural adjustment. On the other, the growth of irregular work and dismantling of postcolonial institutions often raised the strategic importance of finding new means of governing informal economies for African states. These dynamics have often dovetailed in the ILO’s work.

A useful example here comes via the ILO’s increasing promotion of ‘microinsurance’ policies as a means of providing social protection to ‘informal’ workers. Microinsurance refers to a range of simplified insurance products with very low premiums, targeted primarily at ‘informal’ workers lacking conventional social security. Officials in the Social Protection Department of the ILO initially used the concept of ‘microinsurance’ in the late 1990s to refer to means of providing alternative modes of social protection to informal workers left out of both state provision and market-based schemes, through ‘community-based’ forms of social protection. Since the early 2000s, microinsurance is increasingly promoted by a broader complex of organizations, including financial regulators, and framed in terms of ‘financial inclusion’, a shift that has been accompanied by a growing emphasis on promoting the development of commercial markets.

On a basic level, microinsurance boils down to an alternative, privatized means of providing social protection and healthcare, to informal workers not covered by conventional contributory social security. Making a market for small-scale, simplified insurance products, then, is a way of bringing excluded workers into the ‘normal’ workings of the state and market. It serves to deepen the commodification of labour insofar as it requires workers to find means of paying premiums on an ongoing basis even for the management of the vulnerabilities implicit in deregulated labour markets themselves.

As a means of reducing poverty and managing insecurity for ‘informal’ workers, microinsurance thus leaves a good deal to be desired. It is a quintessentially neoliberal solution which downloads responsibility for the provision of social protection onto poor individuals and communities, and again relies on an understanding of ‘informal’ workers as being excluded from the ‘normal’ workings of proletarian labour relations. It thus shares many of the same shortcomings as the related promotion of microcredit (expertly dismantled in Milford Bateman’s recent contribution to this debate). At best, this kind of scheme risks reinforcing a decidedly two-tiered system of social protection, with shrinking state pensions supporting a shrinking core of salaried workers and the remainder of the population covered by a privatized system partially underwritten by state subsidies.

Microinsurance makes sense as a political intervention in a context in which a growing proportion of the working population is involved in irregular forms of work.  The rigid political distinction between formal and informal work implicit in the model of ‘responsible participation’ is no longer viable in the context of deindustrialization, privatization, and the casualization of work in a number of key industries. As with the Kenyan mission, the promotion of microinsurance diagnoses ‘informality’ as a result of exclusion from the normal workings of global capitalism and seeks to reduce poverty by forging new kinds of links. In obscuring the ways in which urban informality remains bound up with wider patterns of neoliberalization and capitalist restructuring, it similarly lends itself to depoliticized solutions.

I have two big points to underline here. First, debates about African labour and its links to global capitalism are never simply abstract or conceptual debates of purely academic interest. A big task for critical political economy needs to be confronting the ways in which the links between the irregular forms of work that are predominant in Africa (and increasingly elsewhere) and the global circuits of capital accumulation are governed and understood. These are crucial sites of political contestation and are closely entangled with broader patterns of political authority and state restructuring.

Second, and more broadly, if our frameworks for understanding ‘capitalism’ don’t allow us to make sense of African political economies, we should be reflecting on how African experiences push us to rethink those frameworks, rather than necessarily debating the value of ‘capitalism’ as a concept. One initial way of doing this, I think, is to suggest that the history of irregular work in Africa highlights the deeply political nature of our understandings of capitalism, and the contested understandings of the placement of irregular forms of labour performed by African workers in relation to global circuits of accumulation.

This article was published in the Review of African political Economy (ROAPE).

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Nick Bernards teaches at the University of Warwick in Global Sustainable Development. His new book The Global Governance of Precarity looks at the widespread and pressing practical debates on precarious labour in the world economy.


Decolonising Accidental Kenya or How to Transition to a GameB Society

Decolonisation will involve adopting a forward-looking orientation transcending the accidental circumstances of our individual and collective upbringing.



Decolonising Accidental Kenya or How to Transition to a Game B Society

The Berlin Conference of 1886 set the forces responsible for creating the map of modern Africa in motion. This demarcation of the continent by colonial interests resulting in the consolidation of spaces on a map into countries was for the most part an arbitrary exercise. It resulted in the formation of a wide-ranging set of artificial nation states. Kenya and most other African nations are, by this definition, historical accidents.

The colonial cookie cutter changed everything, rerouting resources and labour into new avenues with new beneficiaries, rewiring the system of production and exchange in fundamental ways. All of this had massive consequences for populations falling within their borders, and beyond. Ironically, imposing a Eurocentric version of the central state turned out to be even more disruptive for what were arguably the Greater Horn of Africa’s more organically constituted units like Somalia, the intra-lacustrine region, and the former Kingdoms in Rwanda and Burundi.

Africa’s colonial reorganisation, by the standards of historical conquest and exploitation, was short-lived. In some pockets, it acted as an accelerator where its benefits have outlived its negative impacts, for the most part. In others, the disruption and confusion engendered still appear to be a permanent condition. In all cases, colonialism provided the context for the problems that came afterwards, diverting blame for the continent’s issues to external forces and actors when convenient.

This is one way of looking at Africa’s state at this point in time. But what if we look closer, and dig deeper? We are now in the territory of complex systems science, which has demonstrated the influence of initial conditions on any given system’s pathway over time. Colonialism articulated within other parameters such as the natural contours of geography, spatial factors, demographic conditions, and other variables that account for the region’s long-term historical trajectories.

Maybe the accident is not so accidental. A certain regression back to the African mean has been observable over the past several decades, giving rise to the counter-factual hypothesis that a different historical trajectory sans colonial intervention would have likely produced a similar configuration of political units, marked by the same initial conditions in the form of demographic, environmental, and technological parameters.

The localised nature of political organisation and the isolation of many areas of the continent would still have ended up acting as an entry point for outside interference and domination by invaders speaking different languages and representing other civilisations. Computer simulations modelled on the same system parameters would no doubt inscribe developmental pathways not so different from the one now prevailing. The end result would still be the rise of an economic and political elite, albeit perhaps not the product of formal education based on the Western mindset, because the emergence of state organisation is in any case an eventuality that has been occurring in Africa according to its own historical patterning since pharaonic times.

This is one point. The other is that countries sharing a given region or sector tend to converge once during periods of transition. The influence of initial conditions becomes more pronounced during these episodes, which by definition appear chaotic because they involve the break-up and reconfiguration of the system’s units and linkages. This has been occurring in clear sight during the current shift from an agrarian to a diversified, multi-sectoral economy in Kenya.

The process of change is accelerating apace at this juncture, telescoping internal changes that occurred over several centuries in other parts of the world and within several generations in Africa. The significance of Kenya’s transition transcends its borders because, due to whatever accidents of the past hundred years, its transformation will influence developments elevating the synergies of the larger region.

According to this thought experiment, the conventional analyses and the assumptions they are based on are no longer as compelling as they were during the heyday of radical political economy praxis. Despite the revival of the colonialism argument by millennial commentators who are trying to make sense of the economic cul-de-sac they find themselves in, the decolonisation narrative is not an issue for most of the region’s economically active population.

Decolonisation and reorganisation

We can nevertheless carry Franz Fanon’s diagnosis forward with a view towards anticipating the emergence of a new Africa more aligned with the region’s initial conditions, and hosting a distinctively African capitalism. We are actually witnessing these processes occur before our eyes. The turbulence erupting across the Horn will hopefully prove to be a necessary part of the larger transformational dynamic at work.

The process is sufficiently advanced to make some of us believe that countries like Kenya and others on the global periphery are positioned to make a vital contribution to the planet’s salvation. But sorting out the nation’s internal order is a prerequisite for achieving this station, and progress towards this point is in danger of stalling.

During the past two decades, Accidental Kenya has entered the territory of the release phase, as detailed in analyses about the Moi transition and the reorganisation taking form in its wake. The analyses were based on a developmental cycle comprising four phases: exploitation, consolidation, release, and reorganisation leading to a new cycle. There is no guarantee societies undergoing such phase transitions will complete the process. They can retreat to the previous state and stagnate, break-up, or even collapse—as was the fate of previous African civilisations.

After decades of hard-fought effort to decentralise decision-making and redistribute institutional governance, the executive branches of government in this part of the world are doing everything they can to reconcentrate decision-making power in the centre. Rwanda has already become an exemplar of the elite-controlled surveillance state.

The benefits of political decolonisation are typically usurped by other actors, and its role replaced by new forces. The decision to build a railway to the source of the Nile to protect the shipping route to India set in motion a chain of reactions that continues up to the present. A deeper form of decolonisation than self-rule will be needed to initiate a new cycle.

The big fix deception

“If it’s broken, just get under the hood and fix it.” So went the rallying cry for billionaire Ross Perot’s 1992 presidential candidacy (“hood” refers to the bonnet of an automobile). It helped make his on-and-off campaign the most successful third party run in the United States since 1912. More significantly, the notion of “just fixing” the “broken” political system became a meme that has resonated ever since, providing a gaping entry point for the politics of restoration championed by the likes of Jair Bolsonaro, Narendra Modi, and Donald Trump.

Systems of governance can be repaired, but can politicians fix them? It seems the more we depend upon them, the bigger the problem. In Kenya, for example, a submission to the recent court of appeal deliberations on the latest scheme to fix Accidental Kenya described our politicians as “job seekers who stand for nothing”. The description, strictly speaking, is not accurate: those often capricious Kenyan “job seekers” actually represent the entrenched tradition of pursuing personal accumulation by any means available.

Rwanda has already become an exemplar of the elite-controlled surveillance state.

This goes to the beating heart of Kenya’s colonial legacy, which endorsed the exploitation of Accidental Kenya by a numerically small elite committed to the creation of a capitalist political order. Small cliques of individuals have been in the business of applying fixes ever since the country’s creation. During the formative period, the administration established this by passing a comprehensive set of statutes limiting preferential access to land and markets for agricultural production.

After independence, Jomo Kenyatta endorsed the primacy of opportunistic accumulation when he castigated former Mau Mau fighter Bildad Kaggia for not grabbing the fruits of political independence like Paul Ngei and many of his other colleagues in the fight for independence. The unbalanced relationship between accumulation and the public good has persisted because the great majority of Kenyans endorsed the unbounded quest for private wealth in both principle and practice.

Independence in 1963 allowed Kenyans to participate in the economy established by colonial exploitation, the accumulation and resulting growth resulting in the consolidation of its accidental formation.  The release phase highlighted the breakdown of the colonial-designed, state-centric economic order, and was accompanied by an unprecedented feeding frenzy triggered by World Bank and IMF-mandated privatisation of public land and other resources.

The trauma eventually led to the comprehensive reforms demanded by a mobilised and increasingly militant cross-section of the nation’s citizens. This opened the way for the long and tortuous process of public participation and political deal-making culminating in the 2010 Constitution. Anointed with the blood of citizens, the new charter signalled the onset of a fundamental reorganisation of Kenyan society and an economy attuned to the challenges facing future generations. It opened the door for the nation to seek its real post-colonial destiny.

A bridge too far

Kenyan political power relations being what they are, it only took one electoral cycle for the job seekers to decide they needed to “get under the hood and fix it” once again.  Renewal got sidetracked into the Building Bridges Initiative, launched with the full resources of the government behind it. BBI in turn gave rise to the noise unleashed by the Uthamaki-Hustler narrative, which obscured the fact that the fix was actually a top-heavy Chinese political model clothed in the language of magical developmental thinking.

The circus accompanying these developments attempted to conjure up the illusion that BBI and its quasi-legitimisation by county legislatures were post-reform steps forward needed to resolve, once and for all, the nation’s most fundamental divisions that fall beyond the scope of the new Constitution.

The gambit to fix what is regarded as one of the most well-thought-out constitutions of the contemporary era became the source of one of those dangerous month-of-August Kenyan moments. Once again, a few gallant individuals came to the rescue. The judgements delivered by Kenya’s High Court and Court of Appeal, and Judge Kiage’s critique of executive bad faith rescued another generation from being trapped inside Accidental Kenya.

Small cliques of individuals have been in the business of applying fixes ever since the country’s creation.

Judge Kiage’s deconstruction of the BBI juggernaut bundled together the wisdom of Western jurisprudence with key historical interpretations of society and governance. His robust application of these sources to expose the bad faith characterising Kenya’s top-down fixology was perhaps the most powerful defence of democracy the world has witnessed since the rise of Trumpism.

The Court of Appeal secured the integrity of the 2010 Constitution for the time being, but there is no reason to expect the leadership at the top here and in neighbouring countries to change course in regard to their usual transactional goals and their quest to remain in power.

The nation-state in its current form has proven poorly adapted to the distinctive features of sub-Sahara Africa, and the political class will continue to enjoy the relative autonomy conferred by the state due to its position in the international system of nation states, its relationship to the Western military intelligence networks, and the temporary largesse of Xi Jinping’s Chinese chequebook—for the time being.

The quest for autonomy

The international order based on nation-states is not going away, even though its civilisational operating system has clearly reached its limits with respect to ensuring the planet’s survival over the longue durée. The majority of people on Planet Earth will nevertheless continue to follow their social media, the news fed to them by the usual suspects, and their appetites for material consumption while the signs and omens of the changing climate and its ramifications manifest around them.

The African state may look the same at the top, but it is part of a larger, complex system that has been evolving in the presence of systemic stressors. The sequence of developments over the post-independence period that appears indicative of dysfunction and incapacity and incoherence from without camouflages massive shifts occurring within.

This is the backdrop to Judge Kiage’s reminder that a constitution is “not a mechanical statute but the mirror of a nation’s soul.”

Kenya has progressed through a series of calamities including economic shocks, an attempted military coup, droughts and famines, unprecedented population growth, the politics of secession, ethnic insurgencies, terrorist attacks, grand corruption, devastating El Nino rains, desert locust invasions, privatisation from above and other inappropriate policies, and the HIV and coronavirus pandemics.

The gambit to fix what is regarded as one of the most well-thought-out constitutions of the contemporary era became the source of one of those dangerous month-of-August Kenyan moments.

We all come of age doped up on something. Then we pick up all kinds of baggage as we move on. Decolonisation in this context, involves adopting a forward-looking orientation transcending the accidental circumstances of our individual and collective upbringing.

This form of decolonisation synchs with the growing movement across the world striving to combine our scientific, technological, anthropological, ecological and other knowledge traditions with our direct experience of the sacred in order to transcend the accidents that create a new civilisational operating system. The advocates of this movement in my homeland refer to it as GameB. The content of GameB deserves its own discussion, but for the time being we can note that Kenyan society is already a player in this movement.

The Muslim poet and mystic Rumi said, “In the beginning I wanted to change the world, but then I realised the only thing I can do is change is myself.”

This is where we are right now. Nation-building in Kenya begins with creating a community of diverse communities. Wandia Njoya set the ball rolling in her insightful essay on Kenya’s twisted educational system by telling us we can start “by learning to love our children.”

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The Limits of Modern Human Rights Crusades

There is a need ‘to address the challenges people actually face, looking beyond narrow political rights to address the deeper causes of economic and social exclusion.’ This will be the key factor that will determine whether the faith of people in human rights will deepen or suffer further erosion in the years to come.



The Limits of Modern Human Rights Crusades

In a recent opinion editorial published on Project Syndicate, the President of the Open Societies Foundation, Mark Malloch-Brown highlighted two of the major flaws in human rights that need to be addressed urgently. First, he pointed out that ‘[w]hereas strong states were the sole or leading human-rights violators during the Cold War, today’s world is one of multidimensional human-rights menaces.’

Explaining this point further, he notes that, ‘[i]nequalities, exacerbated by unregulated transnational financial and corporate power, together with dramatic shifts in individual states’ fortunes, are creating an ever more challenging landscape. The world is becoming more unequal – and angrier.’

Second, ‘many view the renewed attention to deep-seated institutional racism in the United States and around the world – and the recognition that marginalization based on race, gender, religion, and class is often mutually reinforcing – as exposing the limits of a human rights agenda. Human rights remedies, victims argue, have scratched the surface, not reached the roots.’

COVID19’s quartet of major human rights issues in Africa 

The experience on our continent in the context of the COVID19 lend more than enough support to these observations highlighting the flaws of the mainstream approach to human rights. For us on the continent enduring the trinity of burdens even during the Cold War, as I pointed out in a previous essay, the state has not been the only source of threat to human rights.

In terms of the picture that emerges in Africa in the context of the COVID19 pandemic, our analysis in the African human rights system, as gathered from the monitoring work of the African Commission on Human and Peoples’ Rights and the various reports our Commission received, shows that COVID-19 relates to four broad issues of human rights.

First, COVID-19 is of and on itself a human rights issue. The morbidity and mortality that pandemic precipitates pose the most serious threat to fundamental human rights, most notably the right to health, the right to personal safety and the right to life. It is a human rights necessity that States in pursuit of discharging their human rights obligations under Article 1 of the African Charter on Human and Peoples’ Rights, the founding treaty of the African human rights system, take appropriate measures for safeguarding the public from the threat that this pandemic poses to health, safety and life.

Our Commission issued the first statement highlighting these points on 28 February 2020 at a time when only a handful of cases in a couple of countries were reported and before COVID19 was declared a pandemic by the World Health Organization. Considering the weak state of the health systems of many States Parties to the African Charter, we put particular emphasis on prevention measures, including with emphasis on the right to access to information on the pandemic.

Second, the vulnerabilities, structural deficiencies and inequalities that COVID-19 brought to the fore are also products of governance and policy failures in implementing human rights commitments. In particularly, they highlight the neglect by the social and economic policies of our societies as well as by the human rights system of the centrality of socio-economic rights and the resultant gap between the promise of these rights and the lived realities of the masses of the people on our continent. This is reflected in the lack of due regard to human development in the GDP growth driven economic policies of countries on the continent. Even at a time when high levels of economic growth are reported resulting in the ‘Africa rising’ narrative, this has never been accompanied by significant improvement in the standard of living of the vast majority of people in our societies. Indeed, as the GDP based economic development paradigm facilitates splendid levels of accumulation of power by global private actors and their local associates, majority of people continue to languish in poverty with no access to water, sanitation, health care, housing, sustainable livelihood and income and food.

This state of affair, facilitated by the weaknesses of the structure of the economies of many countries on the continent and the commodification of access to socio-economic rights due to the dominant neo-liberal economic policy prescriptions, has left those without access to these basic necessities to be without even the most basic means of protection to the threats of COVID-19. For all these categories of people hand washing, sanitizing, social distancing and self-isolation became luxury beyond their reach. Under these conditions, even those who thought of themselves as being capable of fending for themselves by buying from the market have found themselves unprotected from COVID-19. After all, the market lacks both the incentive and structure for availing protection from pandemics like COVID-19.

For us in the African human rights system, this has highlighted two concerns. The first is the existence of a gaping hole in the socio-economic systems and the governance of the States Parties to the African Charter. The second is the pervasiveness and gravity of the deprivation of rights, which are central to not only the wellbeing of human beings but also our societies.

Third, despite the necessity for adopting measures for addressing the pandemic, which by their nature may necessitate restriction of rights, COVID-19 response measures have also given rise to a wide range of human rights problems. As states adopt various measures including lockdowns, curfews, suspension of various activities, border closures, by declaring a state of emergency or state of disaster, the conditions for flouting a wide range of rights also mushroomed. First, some of the measures adopted by their very nature happen to be not in line with established human rights principles, including most notably that of proportionality and legality. Second, heavy securitization of the approach for enforcing COVID-19 regulations and the disruption that the regulations caused to access to basic necessities, particularly for the most vulnerable among us, have led to major increase in violations and in people being deprived of their rights.

In this context we have witnessed, among others, excessive use of force by security forces have led to arbitrary deprivation of lives, liberty and personal security and inhuman and degrading treatment, in some cases conditions amounting to torture. These violations and deprivations mostly affecting the poor and most vulnerable among us also highlighted the discriminatory consequences of the security heavy approach to the enforcement of COVID19 measures.

Some of the COVID19 response measures such as, the abuses and violations by members of state security agents, the multidimensional issues facing women and girls, the massive digital surveillance, the emergency power of the executive branch of government and the corruption in the use of public resources assigned for fighting the pandemic, if not contained and remedied, can lead to the emergence of serious human rights crises.

It was in appreciation and anticipation of these plethora of human rights issues (arising from COVID-19 regulations and their enforcement) that the African Commission issued a comprehensive statement on human rights based effective response to COVID19 in Africa on 24 March 2020. The statement, which is divided into 12 operative sections, outlines the human rights principles and standards that States Parties to the African Charter and other applicable treaties such as the Protocol on the Rights of Women in Africa are expected to follow in designing and implementing their COVID-19 response regulations.

The African Commission through its country rapporteurs and special mechanism holders have continued to monitor and respond to the various country specific and thematic human rights issues that continue to unfold in the context of COVID19. Accordingly, various statements and urgent letters of appeal have been issued and national consultations held. The Commission also convened its 66th Ordinary Session with particular focus on human and peoples’ rights in the context of COVID19, which presented a unique opportunity for receiving updates through public statements from States, national human rights institutions and civil society organizations. All of these underscored that the most vulnerable among us, notably women and girls, minorities, persons with disabilities and the poor bear the brunt of the pandemic and its grave consequences.

Forth, it has become clear that the unprecedented nature of the impact of COVID-19 not only on health but also other areas of life means that this pandemic is not a temporary event that will easily pass in a short time. Most notably, the socio-economic and humanitarian fall out of COVID-19 is widespread and severe. For us, the African Commission, perhaps this is one of the most serious and more enduring challenges that can have catastrophic human rights consequences as tens of millions are pushed to extreme poverty and many others face hunger and starvation.

It was in recognition of this that myself and the UN High Commissioner for Human Rights issued a joint statement on 20 May 2020 expressing major concern about the situation and calling for global solidarity by way of affording countries on the continent the fiscal space, through among others debt restructuring or relief measures, in order to enable the countries take appropriate fiscal and economic relief measures to mitigate the worst socio-economic impacts of the pandemic.

The hard lesson for human rights 

There are a number of observations that emerge from COVDI19’s quartet of major human rights issues for the human rights system in general.

Certainly, COVID19 – in the way it both laid bare the fallacies and falsehoods, to borrow from Secretary-General Antonio Guterres’s 18 July 2020 Nelson Mandela Lecture, in the narrative of progress and development and brought to the fore the vulnerabilities and inequalities that pervade our societies and the deficiencies of our systems of governance and economic development paradigm – has also presented a serious challenge to the international and regional system of human rights.

It can be said that COVID-19 has presented the foremost challenge to and revealed the shortfalls of the entire human rights movement. Indeed, the pandemic has become an indictment of our human rights work. As the boss of the Open Societies Foundation rightly pointed out, ‘the traditional models of advancing democratic values and institutions (human rights) are struggling.’ The human rights movement has generally focused on making its trademark feature of loud reaction to events rather than on proactive action for addressing the structural issues that make those events possible. The seriousness of the limits of this has now become evident for all to recognize, a silver lining from the pandemic.

Viewed through the prism of so called three generations of rights, COVID19 has demonstrated the continuing marginalization and neglect of socio-economic rights. Despite the normative position of the interdependence and indivisibility of rights, in practice civil and political rights continue to dominate much of the practice and discourse of human rights. With COVID19, it has become clear that water, sanitation, health care, housing and education are fundamental rights to which everyone should have access not only because these rights are pre-requisite to live a life of dignity as human being but also because access to these rights by all is a condition for the safety and health of all.

This moment presents us with an invitation to rethink both the approach of the human rights movement and its priority issues of concern. There is a need to expand the approach to human rights work beyond court litigation and reactive expression of outrage. Equally important is prioritizing the focus on the promotion and fulfillment of socio-economic rights.

Will the human rights movement recognize the limitations and weaknesses that this pandemic has highlighted? Will it recognize that what COVID-19 represents is a qualitatively unprecedented challenge, which is in part are attributable to the human rights issues long neglected? Will the opportunity it affords the human rights system for changing course be seized?

The choice in front of the human rights system is stark – continue in a business-as-usual fashion and face irrelevance in the effort to overcome the structural conditions of oppression affecting the vast majority of people in the world? Or reprioritize its focus, its approach and sense of urgency to deal with the human rights issues which have, in the context of COVID19, become the defining human rights issues of our time: massive poverty, widening inequality, gender oppression, racism, the democratic governance crisis and the climate emergency.

I wholeheartedly agree with Malloch-Brown that there is a need ‘to address the challenges people actually face, looking beyond narrow political rights to address the deeper causes of economic and social exclusion.’ This will be the key factor that will determine whether the faith of people in human rights will deepen or suffer further erosion in the years to come.

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BBI Is Dead! Whither the Kenyan State?

A way of rebuilding the basis of the nation must be found because only then can the formation of loyalty and service to each other that is necessary to the existence of a functioning state take place, argues Antoinette Kankindi.



BBI Is Dead! Whither the Kenyan State?

Rethinking the country as a nation is legitimate for Kenya and Africa. Many recognize the colonial history of African states established upon a divisive agenda with the aim of dismantling traditional polities, controlling and manipulating people and exploiting resources. The inability of an educated class to offer a viable idea of a “nation” uniting citizens in a common project remains a mystery. In Kenya, even the highly publicised Building Bridges Initiative (BBI) has not achieved much. Doubts linger as to whether constitutions adopted in Africa have improved peoples’ lives or whether they are just instruments for taking complete control of power.

Critics of the nation-state find fault with it from two main perspectives. Some consider the Nation-State a dangerous concept because it creates room for nationalism. Others are proponents of very powerful globalising forces very keen to disband the whole idea and reality of national sovereignty. Interestingly, both positions conveniently ignore an important factor for there to be a polity: the common good of the people. The question of which philosophical direction to take is the basis of rethinking the country as a nation. What is it for and what are the foundations that have been lacking? It is a question of the state as a polity and its purpose, which must touch its foundations.

The nation-state and its purpose

The nation-state has been the most enduring polity given its ability to maintain an order allowing people to coexist as diverse communities. It has created a way of balancing liberty and the public good so that individual members can live together with dignity. It could achieve that balance using the rule of law, which guaranties the exercise of freedom and the pursuit of wellbeing for all. The function of the state is to govern, exercising power for the protection of rights and the guarantee of the wellbeing of the citizens. That is what the rule of law is for. Joseph Ratzinger says that it is not the mission of the state to create paradise within its borders. Its mission is to make sure that citizens do that for themselves within its legal framework.

That is why government should always be limited. Government is solely the fiduciary of an order that allows the citizens to achieve their living as individuals and communities. When fulfilling such a function, government is legitimate and should be obeyed by all citizens, in accordance with the law. Complying with the law is expected of the government itself and of the citizens. It does not curtail the freedom of either. It is the condition for the proper exercise of liberty. A polity, as Aristotle stated, is a body of citizens, who are important because there is no nation without people and there is no democracy without “demos” or people, the first basis of a nation.

Four pillars must be considered in rethinking Kenya, or any other African country, as a nation: people, trust, citizenship and territory. In a time of pervasive neo-liberal trends, it is common to think that the basis of a stable polity is economic growth because it enhances sustainability. This is not strictly true since the most fundamental basis is the people. However, one might ask, who are the people and what unites them as “a people” in a state? Concerned about the nation-state being threatened by global corporations and global policy-making Institutions, Roger Scruton contended that any workable democracy necessitates a community to which the people recognize that they belong and to which they owe an unmistakable loyalty that transcends their diversity. No state, no government can be possible where its people do not recognize their shared or common “belonging”, with the rights and duties that come with that. Scruton expresses this first basis thus:

Government requires a “we,” a pre-political loyalty that causes neighbors who voted in opposing ways to treat each other as fellow citizens, for whom the government is not “mine” or “yours” but “ours,” whether or not we approve of it. This first person plural varies in strength, from fierce attachment in wartime to casual acceptance on a Monday morning at work, but at some level, it must be assumed if we are to adopt a shared rule of law.

Such people live by an awareness of bonds of mutual duties marked by reciprocity in times of adversity, need or crucial political processes, whether their side wins or not.

Such bonds point indicate the second basis of a nation, which is harder to achieve, or even understand today: trust, understood as belief in each other. It is not possible to rethink the country as a nation without reckoning with the question of social trust, “cementing” the people’s belonging together. Scruton thinks that yes, a country’s stability is enhanced by economic development,

but it depends far more upon this sense that we belong together and that we will stand by each other in the real emergencies. In short, it depends on a legacy of social trust. Trust of this kind depends on a common territory, resolution in the face of external threat and institutions that foster collective decisions in response to the problems of the day.

Where there is social trust and shared belonging, the third basis of a nation is possible: the relationship referred to commonly as citizenship. It exists between the state and the citizen when both parties hold each other accountable for their respective contribution to building the polity. It is more than a formal and abstract relationship since it entails a compounded set of rights and duties, to be upheld by each side, in virtue of the rule of law. This means that they are both subjects of the law holding both equally accountable for their obligations. Scruton explains that, even if the state is in charge of enforcing the law, it is expected to enforce it “equally against itself and against the citizen”, as the case may require.

People are actual citizens in a state that is bound by the law to fulfil its duties towards the citizens and they, in turn, acknowledge the state’s right to enforce the law as far as their freedoms end.  Consequently, where the state is not accountable to the citizens, citizenship as a relationship is broken, since the state acts as a despot considering citizens as mere subjects. Even if in such a state there is law, it cannot be said to be ruled by law because the government considers itself to be above the law.

Understanding the concept of citizenship as a relationship where the citizen and the state are accountable to each other demonstrates a stark difference between being a citizen and being a subject. For Scruton, citizens are freer than subjects are, not because there is more that they can get away with, but because their freedoms are defined and upheld by the law. He further considers that people, who are subjects, normally want to become citizens as only citizens can be sovereign to the point of securing their own lifestyle, and the security of their family and property against any threat within the state. From a conceptual point of view, this fact explains immigration in search of countries in which citizenship entails such benefits.

The fourth basis of a Nation is the territory. People who form a polity live in a specific place, share history, institutions, norms and customs within specific boundaries. They participate in an equal commitment to all that they share: the land, the institutions and laws, which also means the political processes used to govern their polity. “Vital to the sense of nationhood is the idea of common territory, in which we are all settled, and to which we are all entitled as our home”. A sovereign nation refers to a people of citizens formed by a social trust, with a common history, within a territory, governed by shared laws.

Citizens are freer than subjects are, not because there is more that they can get away with, but because their freedoms are defined and upheld by the law.

Kenya, and any other African country, could claim to be a nation, if only as a country it had something to show for the trust, the citizenship described earlier and true rule of law. There are obstacles to such a claim.

Obstacles to the reality of a nation

In Cry, the Beloved Country, while discussing the dramatic changes in South Africa as a country, one of the characters says:

The tragedy is not that things are broken. The tragedy is that they are not mended again. The white man has broken the tribe. And that it is my belief (…) that it cannot be mended again. But the house that is broken, and the man that falls apart when the house is broken, these are tragic things. That is why the children break the law. (…) It suited the white man to break the tribe. But it has not suited him to build something in the place of what is broken.

Breaking the tribe, by colonial policy, came with the breaking of every basis of a nation: the people, the social trust, the citizenship and the territory. Today some speak of a new colonialism. Without denying it, there is a need to assess matters differently from two fronts: the neo-liberal urban elites and the global networks. There are inner divisions purported and sustained by local elites on the one hand; and on the other, the control exerted by global policies from foreign markets and global institutions. They all undermine the possibility of rebuilding what was destroyed: a shared identity, the creation of a true citizenship, and the possibility of nationhood.

The problem of urban elites

In the words of Scruton again,

Urban elites build trust through career moves, joint projects and cooperation across borders. Like the aristocrats of old, they often form networks without reference to national boundaries. They do not, on the whole, depend upon a particular place, a particular faith or a particular routine for their sense of membership, and in the immediate circumstances of modern life, they can adapt to globalization without too much difficulty. They will identify with transnational networks since they see those things as assets, which amplify their power.

In Kenya, the elites can hardly identify with the ordinary citizen upon whom they depend for their amenities, for the votes they crave. Unfortunately, the communities, which cannot identify with urban elites, still rely on them because they run government and enact policies. But there is a yawning gulf between the two sides since there is no shared identity between them. Like many other African countries, Kenya is a country of two worlds. Such a gulf demonstrates the impossibility of accountability of the elites towards the citizens. Citizens are totally powerless despite some constitutional provisions and other statutes formulating mechanisms of accountability.

Even where constitutions that are deemed progressive have been adopted, their implementation is still at the mercy of the same elites. The gulf also confirms that there is no proper citizenship understood as a relation of accountability between the leaders and the governed. There cannot be patriotism where citizenship is weak or inexistent.

In a world marked by pervasive neo-liberal policies, the implications of this gulf are huge, since the same elites in government decide market policies too. They are keen to create prosperity, but it is a prosperity that invariably forsakes the majority because of its unfair competition. Competition is good. However when it happens with competitors who can never win, it is unjust. This logic of unfair markets appears also in political processes: who wins in politics? Only those who have control over the reins of power, which turns processes such as elections futile exercises in role-play. The citizens’ vote ends up never contributing to the improvement of their lives. Such processes create power that is accountable only to itself; not to the people, but to the interests that control it, including global networks.

The problem of global networks

The concept of global networks includes global and regional institutions, and multinational corporations. It is common to hear arguments in support of things like global government, or global order. However, no such networks exist without a series of conditions made possible only by the nation-state systems. Robert Rowthorn argues that,

organisations such as the United Nations, the European Union, the World Trade Organisation or multinational corporations are no alternatives to the Nation-State (…). The very existence of such entities pre-supposes a network of strong nation states to underpin them (…). If nation states are seriously undermined, the result will not be global harmony, as liberal utopians believe, but global anarchy

Problems appear when global networks control governments and systems run by the elites discussed earlier. Policies arising from such combination do not bridge the rift between the elites and the people. The result is a greater rift, greater disenfranchisement, and greater alienation of the people. The greater the control by global players, the lesser the accountability, no matter how loudly they claim to promote good governance, rule of law, or free market. There is an accomplice-type of relationship between the elites and the leadership of global networks that exists to the detriment of the people, to the point that the elites can even violate global policies and get away with it.

A case in point would be the claim of universal rights from global institutions. Recent history shows violations by governing elites because the institutions promoting the policies are far removed from the people in need of their defence. The same goes for international courts, which raises the question of which justice is rendered and for whom.

The basis for rethinking nation-building or what legitimate authority is, is the same as the principles of cohesion derived from the nature of a polity: people, citizenship and natural and historical boundaries as bonds of a shared destiny. People are communities formed by families living on a given territory and sharing in a system of values, built on trust that is necessary for the survival of a polity. Social trust does not mean that the people agree on everything. It means that they agree on the fundamentals of a social order that works for their common interest. The idea of a social contract resonates with people because it assumes such trust.

There cannot be patriotism where citizenship is weak or inexistent.

However, today’s social contracts are devoid of trust, they are lacking in Scruton’s “we” and tend to revolve around an “I”, whether it is an individual, an elite family or private interests. That is why they fail. A polity formed without trust and loyalty is already fractured. This is the case of political parties, for example. They don’t change anything because, as institutions, they tend to drive division instead of unity. Anyang Nyong’o acknowledged that after so many years of experimenting with multi-party politics, it is time to rethink the direction because “people are fighting to live better and in peace, to see their lives go forward and to guarantee the future of their children”. Parties could become meaningless in terms of building the necessary unity for legitimacy because they have proved to be incapable of impartial government for the common good of the people. Instead, they tend to engender some pathological nationalism, indifferent to the plight of the common citizen.

A polity formed without trust and loyalty is already fractured.

There is a general reluctance to appreciate that rethinking the nation is a moral issue and a moral responsibility. Yet political philosophy is a moral science. The basis of rethinking the nation discussed is of a moral nature: people, trust, citizenship and loyalty to the land where the people belong. They have been broken by colonial policies and our elites’ policies. They must be mended.  Cry, the Beloved Country brings this moral dimension in sharp focus, expressed as if it was written today:

It was permissible to allow the destruction of a tribal system that impeded the growth of the country. It was permissible to believe that its destruction was inevitable. But it is not permissible to watch its destruction, and to replace it by nothing, or by so little that whole people deteriorate, physically and morally

Paton concedes that though the tribal system was not perfect, it was a moral system nonetheless. He states that if the people have become criminal and depressed in the various ways, it is not because it is their nature to be so.  It is because the basis of their social order has been destroyed. He emphatically appeals to the “inescapable duty”, to set up another system of order.

Nyong’o, Scruton and Paton coincide in indicating that a way of rebuilding the basis of the nation must be found because only then can the formation of loyalty and service to each other, neighbours and strangers alike, that is necessary to the existence of a functioning state take place. Today’s youth are willing to die for a company that can pay them a salary but not for their country. Proof of broken social trust broken by inadequate political experiments. National loyalty, from both leaders and citizens, is a condition for constitutional and democratic government. Building it requires a strong resistance to global players and local elites, who are so heavily invested in expropriating not only the resources but also the sovereignty of the people, overtaking the sovereignty of the nation-states politically and market-wise. Only the people can resist against such formidable powers.

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