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Negotiated Democracy, Mediated Elections and Political Legitimacy

15 min read.

What has taken place in northern Kenya during the last two general elections is not democracy but merely an electoral process that can be best described as “mediated elections”.

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Negotiated Democracy, Mediated Elections and Political Legitimacy

The speed with which negotiated democracy has spread in Northern Kenya since 2013 has seen others calling for it to be embraced at the national level as an antidote to the fractious and fraught national politics. Its opponents call the formula a disguised form of dictatorship. However, two events two months apart, the coronation of Abdul Haji in Garissa, and the impeachment of Wajir Governor Mohamed Abdi, reveal both the promise and the peril of uncritically embracing negotiated democracy. Eight years since its adoption, has negotiated democracy delivered goods in northern Kenya?

The coronation

In March 2021, Abdul Haji was (s)elected “unopposed” as the Garissa County Senator, by communal consensus. The seat, which fell vacant following the death of veteran politician Yusuf Haji, attracted 16 candidates in the by-election.

In an ethnically diverse county with competing clan interests and political balancing at play, pulling off such a consensus required solid back-room negotiations. At the party level, the Sultans (clan leaders) and the council of elders prevailed, ending with a single unopposed candidate.

In one fell swoop, campaign finance was made redundant. Polarising debates were done away with; in this time of the coronavirus pandemic, large gatherings became unnecessary. The drama of national party politics was effectively brought to an end.

But even with the above benefits, consensus voting took away the necessary public scrutiny of the candidate—a central consideration in electoral democracies. So, Abdul Haji was sworn in as the Garissa Senator without giving the public a chance to scrutinise his policies, personality, ideologies, and experience.

Pulling off such a feat is an arduous task that harkens back to the old KANU days. At the height of KANU’s power, party mandarins got 14 candidates to stand unopposed in 1988 and 8 in the 1997 elections.

Abdul Haji was (s)elected unopposed, not because there were no other contestants—there were 16 others interested in the same seat—but because of the intervention of the council of elders.

The two major points that are taken into consideration in settling on a candidate in negotiated democracy are their experience and their public standing, a euphemism for whether enough people know them. Abdul Hajj ticked both boxes; he comes from an influential and moneyed family.

An impeachment

Two months later, news of the successful impeachment of Wajir Governor Mohamed Abdi on grounds of “gross misconduct” dominated the political landscape in the north. Mohamed Abdi was a career civil servant. He went from being a teacher, to an education officer, a member of parliament, an assistant minister, a cabinet minister, and an ambassador, before finally becoming governor.

Before his impeachment, Mohamed Abdi had narrowly survived an attempt to nullify his election through a court case on the grounds that he lacked the requisite academic qualifications, and accusations of gross misconduct and poor service delivery. Abdi convinced the court of appeal that not having academic papers did not impede his service delivery, but he was unable to save himself from an ignominious end.

The impeachment ended the messy political life of Mohammed Abdi and revealed disgraceful details—his wife was allegedly the one running the county government and he was just the puppet of her whims.

If they were to be judged by similar rigorous standards, most northern Kenya governors would be impeached. However, most of them are protected by negotiated democracy. Mohamed Abdi’s election followed the negotiated democracy model and was thus part of a complex ethnopolitical calculation.

Abdi’s impeachment was followed by utter silence except from his lawyers and a few sub-clan elders. His censure and the silence that followed vindicates those who complain that negotiated democracy sacrifices merit and conflates power with good leadership.

Negotiated democracy

Consensus voting has been effectively used in the teachers’ union elections in Marsabit County. An alliance of teachers from the Rendille, Gabra and Burji communities (REGABU) have effectively rotated the teacher’s union leadership among themselves since 1998. During the union’s elections held on 17 February 2016, no ballot was cast for the more than 10 positions. It was a curious sight; one teacher proposed, another seconded and a third confirmed. There was no opposition at all.

The same REGABU model was used in the 2013 general elections and proved effective. Ambassador Ukur Yatani, the then Marsabit Governor and current Finance Cabinet Secretary stood before the REGABU teachers and proclaimed that he was the primary beneficiary of the REGABU alliance.

His censure and the silence that followed vindicates those who complain that negotiated democracy sacrifices merit and conflates power with good leadership.

Yatani extolled the virtues of the alliance, terming it the best model of a modern democracy with an unwritten constitution that has stood the test of time. He described the coalition as “an incubator of democracy” and “a laboratory of African democracy”.

Its adoption in the political arena was received with uncritical admiration since it came at a time of democratic reversals globally; negotiated democracy sounded like the antidote. The concept was novel to many; media personalities even asked if it could be applied in other counties or even at the national level.

Ukur’s assessment of REGABU as a laboratory or an incubator was apt. It was experimental at the electoral politics level. The 20-year consistency and effectiveness in Marsabit’s Kenya National Union of Teachers (KNUT) elections could not be reproduced with the same efficiency in the more aggressive electoral politics, especially considering the power and resources that came with those positions. Haji’s unopposed (s)election was thus a rare, near-perfect actualisation of the intention of negotiated democracy.

But lurking behind this was a transactional dynamic tended by elite capture and sanitised by the council of elders. Abdul Haji’s unopposed selection was not an anomaly but an accepted and central condition of this elite capture.

Negotiated democracy has prevailed in the last two general elections in northern Kenya. Its proponents and supporters regard it as a pragmatic association of local interests. At the same time, its strongest critics argue that negotiated democracy is a sanitised system of impunity, with no foundational democratic ethos or ideological framework. 

Negotiated democracy is similar in design to popular democracy or the one-party democracy that characterised the quasi-authoritarian military and one-party regimes of the 70s and 80s.

To call what is happening “democracy” is to elevate it to a higher plane of transactions, to cloak it in an acceptable robe. A better term for what is happening would be “mediated elections”; the elites mediate, and the elders are just a prop in the mediation. There is no term for an electoral process that commingles selection and elections; the elders select, and the masses elect the candidate.

The arguments of those who support negotiated democracy 

There is no doubt about the effective contribution of negotiated democracy in reducing the high stakes that make the contest for parliamentary seats a zero-sum game. Everyone goes home with something, but merit and individual agency are sacrificed.

Speaking about Ali Roba’s defiance of the Garri council of elders Billow Kerrow said,

“He also knows that they plucked him out of nowhere in 2013 and gave him that opportunity against some very serious candidates who had experience, who had a name in the society. . . In fact, one of them could not take it, and he ran against him, and he lost.”

The genesis of negotiated democracy in Mandera harkens back to 2010 where a community charter was drawn to put a stop to the divisions among Garri’s 20 clans so as not to lose electoral posts to other communities.

Since then, negotiated democracy, like a genie out of the bottle, is sweeping across the north.

As one of the most prominent supporters of negotiated democracy, Billow Kerrow mentions how it did away with campaign expenditure, giving the example of a constituency in Mandera where two “families” spent over KSh200 million in electoral campaigns. He also argues that negotiated democracy limits frictions and tensions between and within the clans. That it ensures everyone is brought on board and thus encourages harmony, cohesion, and unity.

Its strongest critics argue that negotiated democracy is a sanitised system of impunity, with no foundational democratic ethos or ideological framework.

It has been said that negotiated democracy makes it easier for communities to engage with political parties. “In 2013, Jubilee negotiated with the council of elders directly as a bloc.  It’s easier for the party, and it’s easier for the clan since their power of negotiation is stronger than when an individual goes to a party.”

Some have also argued that negotiated democracy is important if considered alongside communities’ brief lifetime under a self-governing state.  According to Ahmed Ibrahim Abass, Ijara MP, “Our democracy is not mature enough for one to be elected based on policies and ideologies.” This point is echoed by Wajir South MP Dr Omar Mahmud, “You are expecting me to stand up when I am baby, I need to crawl first. [Since] 53 years of Kenya’s independence is just about a year ago for us, allow the people to reach a level [where they can choose wisely].”

Negotiated democracy assumes that each clan will give their best after reviewing the lists of names submitted to them. Despite the length of negotiations, this is a naïve and wishful assumption.

The critics of negotiated democracy

Perhaps the strongest critic of negotiated democracy is Dr Salah Abdi Sheikh, who says that the model does not allow people to express themselves as individuals but only as a group, and that it has created a situation where there is intimidation of entire groups, including women, who are put in a box and forced to take a predetermined position.

For Salah Abdi Sheikh this is not democracy but clan consensus. “Kenya is a constitutional democracy yet northern Kenya is pretending to be a failed state, pretending that the Independent Electoral and Boundaries Commission (IEBC) does not exist or that there are no political parties”. Abdi Sheikh says that negotiated democracy is the worst form of dictatorship that has created automatons out of voters who go to the voting booth without thinking about the ability of the person they are going to vote for.

Women and youth, who make up 75 per cent of the population, are left out by a system of patronage where a few people with money and coming from big clans impose their interests on the community. This “disenfranchises everybody else; the youth, the minorities and the women.”

Negotiated democracy, it has been observed, does not bring about the expected harmony. This is a crucial point to note as in Marsabit alone, and despite its version of negotiated democracy, almost 250 people have died following clan conflicts over the past five years.

No doubt negotiated democracy can be a stabilising factor when it is tweaked and institutionalised. But as it is, cohesion and harmony, its central raison d’être, were just good intentions. Still, the real intention lurking in the background is the quick, cheap, and easy entry of moneyed interests into political office by removing competition from elections and making the returns on political investment a sure bet.

The pastoralist region

By increasing the currency of subnational politics, especially in northern Kenya, which was only nominally under the central government’s control, devolution has fundamentally altered how politics is conducted. The level of participation in the electoral process in northern Kenya shows a heightened civic interest in Kenya’s politics, a move away from the political disillusionment and apathy that characterised the pre-devolution days.

“Kenya is a constitutional democracy yet northern Kenya is pretending to be a failed state.”

Apart from breaking the region’s old political autonomy imposed by distance from the centre and national policy that marginalized the region, a major political reorganization is happening.

At the Pastoralist Leadership Summit held in Garissa in 2018, the enormity of the political change in post-devolution northern Kenya was on full display. The Frontier Counties Development Council had “15 Governors, 84 MPs, 21 Senators, 15 Deputy Governors, 15 County Assembly Speakers, 500 MCAs” at the summit. Apart from raising the political stakes, these numbers have significant material consequences.

Love or despair?

Those who stepped aside, like Senator Billow Kerrow, claimed that negotiated democracy “enhances that internal equity within our community, which has encouraged the unity of the community, and it is through this unity that we were able to move from one parliamentary seat in 2017 to 8 parliamentary seats in 2013.”

This was an important point to note. Since negotiated democracy only made elections a mere formality, votes could be transferred to constituencies like Mandera North that did not have majority Garre clan votes. Through this transfer of votes, more and more parliamentary seats were captured. By transferring votes from other regions, Garre could keep Degodia in check. Do minorities have any place in this expansionist clan vision? The question has been deliberately left unanswered.

“Many of those not selected by the elders – including five incumbent MPs – duly stood down to allow other clan-mates to replace them, rather than risking splitting the clan vote and allowing the “other side in.”

In 2016, the Garre council of elders shocked all political incumbents by asking them not to seek re-election in the 2017 general elections. With this declaration the council of elders had punched way above their station. It immediately sparked controversy. Another set of elders emerged and dismissed the council of elders. Most of the incumbents ganged up against the council of elders save politicians like Senator Billow Kerrow, who stepped down.

These events made the 2017 general election in Mandera an interesting inflection point for negotiated democracy since it put on trial the two core principles at the heart of negotiated democracy, which are a pledge to abide by the council of elders’ decision and penalties for defying it.

When the council of elders asked all the thirty-plus office bearers in Mandera not to seek re-election. The elders’ intention was to reduce electoral offices to one-term affairs so as to reduce the waiting time for all the clans to occupy the office. But those in office thought otherwise, Ali Roba said.

“The elders have no say now that we as the leaders of Mandera are together.” He went on to demonstrate the elders’ reduced role by winning the 2017 Mandera gubernatorial seat. Others also went all the way to the ballot box in defiance of the elders, with some losing and others successful.

Reduced cultural and political esteem

Like other councils of elders elsewhere across northern Kenya, the Garre council of elders had come down in esteem. The levels of corruption witnessed across the region in the first five years of devolution had tainted them.

It would seem that the legitimacy of the councils of elders and the initial euphoria of the early days has been almost worn out.

The council of elders drew much of their authority from the political class through elaborate tactics; clan elders were summoned to the governors’ residences and given allowances even as certain caveats were whispered in their ears. Some rebranded as contractors who, instead of safeguarding their traditional systems, followed self-seeking ends. With the billions of new county money, nothing is sacred; everything can be and is roped into the transactional dynamics of local politics.

The new political class resurrected age-old customs and edited their operational DNA by bending the traditional processes to the whims of their political objectives.

The council of elders resorted to overbearing means like uttering traditional curses or citing Quranic verses like Al Fatiha to quell the dissatisfaction of those who were forced to withdraw their candidacies. Others even ex-communicated their subjects in a bid to maintain a semblance of control.

In Marsabit, the Burji elders excommunicated at least 100 people saying they had not voted for a candidate of the elders’ choice in 2013, causing severe fissures in Burji unity. Democratic independence in voting was presented as competition against communal interests. Internally factions emerged, externally lines hardened.

Service delivery

Considerations about which clan gets elected are cascaded into considerations about the appointment of County Executive Committee members, Chief Officers and even directors within the departments. It takes very long to sack or replace an incompetent CEC, CO or Director because of a reluctance to ruffle the feathers and interests of clan X or Y. When the clans have no qualified person for the position the post remains vacant, as is the case with the Marsabit Public Service Board Secretary who has been in an acting capacity for almost three years. It took several years to appoint CECs and COs in the Isiolo County Government.

Coupled with this, negotiated democracy merges all the different office bearers into one team held together by their inter-linked, clan-based elections or appointments. The line between county executive and county assembly is indecipherable. The scrutiny needed from the county assembly is no longer possible; Members of Parliament, Senators and Women representatives are all in the same team. They rose to power together and it seems they are committed to going down together. This is partly why the council of elders in Mandera wanted to send home before the 2017 election all those they had selected as nominees and later elected to power in 2013; their failure was collective. In Wajir, the Members of Parliament, Members of the County Assembly, the Senator, the Speaker of the County Assembly and even the Deputy Governor withdrew their support for the Governor only five months to the last general elections, citing service delivery. This last-ditch effort was a political move.

The new political class resurrected age-old customs and edited their operational DNA by bending the traditional processes to the whims of their political objectives.

In most northern Kenya counties that have embraced negotiated democracy, opposition politics is practically non-existent, especially where ethnic alliances failed to secure seats; they disintegrated faster than they were constituted. In Marsabit for example, the REGABU alliance was a formidable political force that could easily counter the excesses of the political class, and whose 20-year dominance over the politics of the teacher’s union could provide a counterbalance to the excesses of the Marsabit Governor. But after failing to secure a second term in office, the REGABU alliance disintegrated leaving a political vacuum in its wake. Groups which come together to achieve common goals easily become disenfranchised when their goals are not reached.

In Mandera, immediately after the council of elders lost to Ali Roba, the opposition disbanded and vanished into thin air, giving the governor free reign in how he conducts his politics.

The past eight years have revealed that the negotiated democracy model is deeply and inherently flawed. Opposition politics that provide the controls needed to curtail the wanton corruption and sleaze in public service seem to have vanished. (See here the EACC statistics for corruption levels in the north.)

Yet, the role played by elders in upholding poor service delivery has not been questioned. The traditional council of elders did not understand the inner workings of the county, and hence their post-election role has been reduced to one of spectators who are used to prop up the legitimacy of the governor. If they put the politicians in office by endorsing them, it was only logical that they also played some scrutinizing role, but this has not been undertaken effectively.

In most northern Kenya counties, which have embraced negotiated democracy, opposition politics is practically non-existent.

In the Borana traditional system, two institutions are involved in the Gada separation of powers; one is a ritual office and the other a political one. “The ritual is led by men who have authority to bless (Ebba). They are distinguished from political leaders who have the power to decide (Mura), to punish, or to curse (Abarsa).” 

In his book Oromo Democracy: An Indigenous African Political System, Asmarom Legesse says the Oromo constitution has “fundamental ideas that are not fully developed in Western democratic traditions. They include the period of testing of elected leaders, the methods of distributing power across generations, the alliance of alternate groups, the method of staggering succession that reduces the convergence of destabilising events, and the conversion of hierarchies into balanced oppositions.”

Yet the traditional institution of the Aba Gada seems to have bestowed powers and traditional legitimacy on a politician operating in a political system that does not have any of these controls. The elders have been left without the civic responsibility of keeping the politician in check by demanding transparency and accountability while the endorsement of the Gada has imbued the leader with a traditional and mystical legitimacy.

The impeachment of the Wajir governor was thus an essential political development in northern Kenya.

The perceived reduction of ethnic contest and conflict as a benefit resulting from negotiated democracy seems to override, in some places, the danger of its inefficiency in transparent service delivery.

In Wajir, the arrangement has been so effective that the impeachment of a Degodia governor and his replacement with his deputy, an Ogaden, took place with the full support of all others, including the Degodia. This shows that if well executed and practiced, negotiated democracy can also work. Incompetent leaders can be removed from the ethnic equations with little consequence.

But in Marsabit this level of confidence has not been achieved, as the negotiated democracy pendulum seems to swing between a Gabra-led REGABU alliance and a Borana-led alliance.

The role of women 

Negotiated democracy’s most significant flaw has so far been its architects’ deliberate efforts to leave women out of the decision-making process. In Mandera, women have a committee whose role has so far been to rally support for the council of elders’ decisions even though these decisions cut them out and receive minimal input from the women.

No woman has been elected as governor in northern Kenya. The absence of women is a big flaw that weakens the structural legitimacy of negotiated democracy.

Women’s role in the north has been boldly experimental and progressive. In Wajir for example, women’s groups in the 1990s initiated a major peace process that ended major clan conflicts and brought lasting peace. Professionals, elders, and the local administration later supported the efforts of Wajir Women for Peace until, in the end, the Wajir Peace Group was formed, and their efforts culminated in the Al Fatah Declaration. Many women have been instrumental in fighting for peace and other important societal issues in the north.

In Marsabit, the ideologues and organisers of the four major cultural festivals are women’s groups. Merry-go-rounds, table banking, and other financial access schemes have become essential in giving women a more important economic role in their households. Their organisational abilities are transforming entire neighbourhoods, yet negotiated democracy, the biggest political reorganisation scheme since the onset of devolution, seems to wilfully ignore this formidable demographic.

An outlier 

Ali Roba won the election despite his defiance of the council of elders, but Ali Roba’s defiance created a vast rift in Mandera. As the council of elders desperately tried to unseat the “unfit” Ali Roba, his opponent seemed to emphasise the elders’ blessings as his sole campaign agenda. The council of elders eventually closed ranks and shook hands with Ali Roba.

But there was something more insidious at play, the aligning of the council of elders—with their old and accepted traditional ethos—to the cutthroat machinations of electoral politics means that their own legitimacy has been eroded in significant ways.

Negotiated democracy’s most significant flaw has so far been its architects’ deliberate efforts to leave the women of the north out of the decision-making process.

In northern Kenya, the traditional centres of power and decision-making that thrived in the absence of state power are undergoing a contemporary revival. They occupy a central position as players and brokers in the new local realities. Through these political trade-offs between politicians and elders we see the wholesome delivery of traditional systems to a dirty political altar.

With devolution, the more resourced governors, who now reside at the local level and not in Nairobi, are altering intractably the existing local political culture. They praised and elevated the traditional systems and portrayed themselves as woke cultural agents, then manipulated the elders and exposed them to ridicule.

The governors manipulated the outcome of their deliberations by handpicking elders and thus subverted the democratic ethos that guaranteed the survival of the culture.

A new social class

The new political offices have increased the number of political players and political contestation leading to hardened lines between clans. The Rendille community who are divided into two broad moieties-belel (West and East), only had one member of parliament. Now under devolution they have a senator under the negotiated alliance. The MP comes from the western bloc and the senator from the eastern bloc. Each pulled their bloc—Belel, the two moieties—in opposing directions. Where there were partnerships now political divisions simmer. For example, in 2019 the Herr generational transition ceremony was not held centrally, as is normally the case, because of these new political power changes.

In northern Kenya, the traditional centres of power and decision-making that thrived in the absence of state power are undergoing a contemporary revival.

Devolution has also made positions in the elders’ institutions lucrative in other ways. A senior county official and former community elder from Moyale stood up to share his frustrations with community elders at an event in Marsabit saying, “in the years before devolution, to be an elder was not viewed as a good thing. It was hard even to get village elders and community elders. Now though, everyone wants to be a community elder. We have two or more people fighting for elders’ positions.”

To be an elder is to be in a position where one can issue a political endorsement. To be a member of a council of elders is to be in the place where one can be accorded quasi-monarchical prerogatives and status by the electorate and the elected. The council of elders now comprises retired civil servants, robbing the actual traditional elders of their legitimacy.

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The author is a writer based in Marsabit, Kenya.

Long Reads

Towards Democratization in Somalia – More Than Meets the Eye

Although Somalia continues to experience many challenges, its rebuilding progress is undeniable. But this remarkable track record has been somewhat put to the test this electoral season.

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Elections in Somalia have yet again been delayed, barely a month after the country agreed on a timetable for the much-anticipated polls and months after the end of the current president’s mandate and the expiry of the parliament’s term. At the close of their summit at the end of June, the National Consultative Council, made up of Somalia’s Prime Minister and the presidents of the Federal States, had announced an ambitious electoral schedule. The entire electoral process was to take place over 100 days.

However, going by Somali standards, keeping to this timeline was always highly improbable and country stumbled at the first hurdle—the election of the Upper House—following the failure by most federal regions to submit candidates’ lists to form local committees to cast the ballots in time. As of the first week of August, only two, Jubbaland and the South West State, had conducted the elections, which were meant to start on 25 July and be completed within four days. Yet to start are elections in the federal member states of Puntland, Galmudug and Hirshabelle, as well as the selection of special delegates to vote for Somaliland members of the Senate and the Lower House.

But as most political stakeholders would say, at least the process has finally begun. This was not the outlook just three short months ago. In fact, on 25 April, Somalia’s entire state-building project appeared to be unravelling after President Mohamed Abdullahi Mohamed “Farmaajo” unilaterally extended both his term and that of the Lower House of Parliament. Running battles between Somali security forces had erupted in the capital, with fissures evident within the Somali security forces, with some opposing the term extensions and others supporting the government.

This was the culmination of a yearlong conflict that was initially triggered by the government’s apparent inability to conduct the much-awaited one-person one-vote elections. This conflict led to the removal of the former prime minister for his divergent views in July 2020. Eventually, the president conceded and all parties agreed to sign yet another agreement on indirect elections—where appointed delegates, not the general public, do the voting—on 17 September 2020. But for months following the 17 September agreement, the process remained at a standstill as the implementation modalities were disputed. The president’s mandate expired on 8 February without a conclusive agreement on an electoral process or plan having been reached, several attempts at resuscitating talks between the president and some federal member states having flopped.

The three main sticking points were the composition of the electoral teams that included civil servants and members of the security services; the management of the electoral process in Gedo, one of the two electoral locations in the Federal Member State of Jubbaland, a state that is in conflict with the central administration; and the appointment of the electoral team for Somaliland seats, the breakaway state in the north (northern MPs protested the undue influence of President Farmaajo in their selection).

Additionally, security arrangements for the elections became a significant factor after a night attack on a hotel where two former presidents were staying and the use of lethal force against protesters, including a former prime minister, on 19 February. More than a month later, the electoral process tumbled further into crisis when the Lower House of Parliament introduced and approved the “The Special Electoral Law for Federal Election” bill to extend the mandate of the governing institutions, including that of the president, by two years. The president hastily signed the bill into law less than 48 hours later despite global condemnation and local upheaval. More critically, the move was the first real test of the cohesiveness of the Somali security forces. Forces, mainly from the Somali National Army, left the frontlines and took critical positions in the capital to protest the illegal extension, while the Farmaajo administration called on the allied units to confront the rival forces.

The ensuing clashes of the armed forces in the capital brought ten months of political uncertainty and upheaval to a climax as pro-opposition forces pushed forward and surrounded Villa Somalia demanding a change of course. With the country on the verge of a return to major violence, Somalia’s prime minister and the Federal Member State presidents loyal to the president rejected the illegal term extension and on the 1st of May,  the president and parliament jointly rescinded the resolution to extend the mandate of the governing institutions. The president finally handed the responsibility for electoral negotiations between the federal government and the federal member states to the prime minister. After a brief cooling-off period, the harmonized electoral agreement merging the 17 September agreement with the 16 February implementation recommendations by a technical committee was finally signed and agreed by the National Consultative Forum on 27 May. The electoral stalemate that had begun in June 2020 ended precisely a year after it began.

Somalia’s electoral calendar

  • Election of the Upper House – 25 July
  • Selection and preparation of electoral delegates – 15 July – 10 August
  • Election of members of Parliament – 10 August – 10 September
  • Swearing-in of the members of parliament and election of the speakers of both Houses of the Somali Parliament – 20 September
  • Presidential election – 10 October

Direct vs indirect elections

Although Somalia continues to experience many challenges, including al-Shabaab terrorism, and natural and man-made disasters, its rebuilding progress is modest and undeniable. The country has, despite many odds, managed to conduct elections and organise the peaceful handover of power regularly. This remarkable track record has been somewhat put to the test this electoral season, but the nation has since corrected course. It has been eight years since the end of the Somali transitional governments and the election of an internationally recognized government. In that time, subsequent Somali governments have conducted two indirect electoral processes that have facilitated greater participation and advanced progress towards “one person one vote”. In 2012, to usher in Somalia’s first internationally recognized administration since 1991, 135 traditional elders elected members of parliament, who in turn elected their speakers and the federal president. This process was conducted only in Mogadishu. The 275 seats were distributed according to the 4.5 clan-based power-sharing formula.

The electoral stalemate that had begun in June 2020 ended precisely a year after it began.

In 2016, further incremental progress was made with 14,025 Somalis involved in the selection of members of parliament and the formation of Somalia’s Upper House. Elections were also conducted in one location in each Federal Member State as the Federal Map was by then complete. The 135 traditional elders were still involved as they selected the members of 275 electoral colleges made up of 51 delegates per seat, constituting the total electoral college of 14,050. On the other hand, the Upper House,  made up of 54 representatives, represented the existing and emerging federal member states. The state presidents nominated the proposed senate contenders, while the state assemblies elected the final members of the Upper House. Each house elected its Speaker and Deputy/ies, while a joint sitting of both houses elected the President of the Federal Republic of Somalia.

The main task of this administration was therefore to build upon this progress and deliver one-person-one-vote elections. But despite high expectations, the current administration failed to deliver Somalia’s first direct election since 1969. The consensus model agreed upon is also indirect and very similar to that of the last electoral process. The main difference between this model and the 2016 indirect election is an increase in electoral delegates per parliamentary seat from 51 to 101, and the increase of electoral locations per Federal Member State from one location per FMS to two.

2016 Electoral Process - Presentation @Doorashada 2021

2016 Electoral Process – Presentation @Doorashada 2021

Slow but significant progress

While Somalia’s electoral processes appear complex and stagnant on the surface, the political scene has continued to change and to reform. Those impatient to see change forget that Somalia underwent total state collapse in 1991. The country experienced nearly ten years of complete anarchy without an internationally recognized central government, which would end with the establishment of the Transitional National Government in 2000. Immediately after Barre’s exit, Somaliland seceded and declared independence in May 1991 and the semi-autonomous administration of Puntland was formed in 1998. In the rest of the country, and particularly in the capital, warlords and clans dominated the political scene, with minimum state infrastructure development for more than a decade. As anarchy reigned, with widespread looting of state and private resources, and heinous crimes committed against the population, authority was initially passed to local clan elders who attempted unsuccessfully to curb the violence. Appeals by Islamists to rally around an Islamic identity began to take hold when the efforts to curb the violence failed, and several reconciliation conferences organized by Somalia’s neighbours failed to yield results. This led to the emergence of the Islamic Courts Union in 2006 that would later morph into the Al-Shabaab insurgency following the intervention of Ethiopia with support from the US.

Simultaneously, external mediation efforts continued with the election of the Transitional National Government led by President Abdiqasim Salad Hassan in Arta, Djibouti, in 2000, the first internationally recognized central administration. In 2004, the IGAD-led reconciliation conference in Nairobi culminated in the formation of the Transitional Federal Government and the election of President Abdullahi Yusuf Ahmed. It was in 2000 at the Arta conference in Djibouti that the infamous 4.5 power sharing mechanism was introduced, while in 2004, federalism, as the agreed system of governance, was introduced to address participatory governance and halt the political fragmentation as demonstrated by the era of warlords and the formation of semi-autonomous territories. However, to date, the emergent federal states are largely drawn along clan lines.

President Abdiqasim was initially welcomed back into Mogadishu; he reinstated the government in the capital, settling into Villa Baidoa. President Abdullahi Yusuf faced stiffer opposition and initially settled in the city of Baidoa before entering the capital in 2007, supported by Ethiopian forces. He was able to retake the seat of government in Villa Somalia but resigned two years later, paving the way for the accommodation of the moderate group of Islamist rebels led by Sharif Sheikh Ahmed. Sheikh Ahmed would later be elected president of the Transitional Federal Government in Djibouti, succeeding Abdullahi Yusuf. This would be the last Somali electoral process held outside Somalia.

Strengthening state security

The African Union Mission in Somalia (AMISOM) peacekeeping force was deployed in South-Central Somalia in early 2007 to help stabilize the country and provide support to the internationally recognized Transitional Federal Government (TFG). AMISOM’s deployment was instrumental in the withdrawal of the unpopular invading Ethiopian forces whose historical enmity with Somalia and the atrocities it committed against the Somali population provided rich fodder for Al-Shabaab’s recruitment efforts. But even as AMISOM helped the TFG and, later the FGS, to uproot AS from large swathes of Somalia, rekindling latent possibilities for a second liberation, the mission has not been without fault. While the mission is credited with helping create a conducive environment to further the political processes, it has also been equally culpable of hindering Somalia’s political progress by including in the mission Somalia’s arch-enemies, its problematic neighbours.

Ethiopia rehatted its troops in Somalia in 2014, following Kenya’s lead. Kenya had made the unilateral decision to invade Somalia in October 2011, in Operation Linda Nchi, Operation Protect the Nation, and subsequently rehatted into AMISOM in November 2011. Djibouti, Somalia’s northern neighbour, had warm relations with Somalia and is the only neighbour whose inclusion in AMISOM in December 2011 did not follow a previous unilateral invasion and was welcomed by the federal government. At face value, the interventions were seemingly motivated by national security interests. In particular, Ethiopia and Kenya share a long porous border with Somalia, and the spillover of the active al-Shabaab insurgency was considered a national security risk. But both Ethiopia and Kenya have dabbled in Somalia’s political affairs, routinely recruiting, training, and backing Somali militia groups whose leaders are thereafter propelled to political leadership positions. Somalia’s neighbours have been guilty of providing an arena for proxy battles and throwing Somalia’s nascent federalism structures into disarray.

AMISOM is also credited with enabling greater international community presence in Somalia and the improvement of social and humanitarian efforts. The international presence has also facilitated the completion of the federal map, with the formation of Jubbaland, South-West, Galmudug, and Hirshabelle member states. Somaliland and Puntland have strengthened their institutions and political processes. The most recent Somaliland parliamentary elections pointed to a maturing administration. Opposition parties secured a majority and formed a coalition in preparation for next year’s presidential elections.

To date, the emergent federal states are largely drawn along clan lines.

Meanwhile, the Puntland Federal Member State has also embarked on an ambitious programme of biometric registration of its electorate to deliver the region’s first direct elections since its formation. But on the flip side, the international partners, who mainly re-engaged in Somalia after the 9/11 terrorist attacks in the US, are guilty of engaging with the country solely through the security perspective. The partners also often dictate solutions borrowed from their experiences elsewhere that do not necessarily serve in Somalia’s context. The insistence on electoral processes, specifically at the national level, that disregard bottom-up representation and genuine reconciliation, is a case in point; any Somali administration joins a predetermined loop of activities set out by partners with little room for innovation or change.

Key among these critical tasks is the completion of the provisional constitution, which would cement the federal system of government. For the federal government, the provisional nature of the constitution has hamstrung the completion of the federal governance system and framework. Both Somalia’s National Security Architecture and the Transition Plan have faced implementation hurdles due to the differences between the federal government and the federal member states. This has fundamentally hampered the tangible rebuilding of Somali security forces and synergizing operations for liberation and stabilization between the centre and the periphery.

Yet all the state-building steps taken by Somalia, wrought with political upheaval and brinkmanship at the time, still presented progress as Somalis moved away from anarchy towards some semblance of governance. There is no doubt that the application of the new federal dispensation has also witnessed several false starts as the initial transitional governments and federal governments have been beset by the dual challenge of state-building while battling the al-Shabaab insurgency. But however imperfect, Somalia’s electoral processes have managed to keep the peace between most of Somalia’s warring political elite.

Somalia’s political class 

Somalia’s protracted conflict has revolved primarily around clan competition over access to power and resources both at community and at state level. Historically, the competition for scarce resources, exacerbated periodically by climatic disasters, has been the perpetual driver of conflict, with hostilities often resulting in the use of force. Additionally, due to the nature of nomadic life, characterized by seasonal migration over large stretches of land, inter-clan conflict was and remains commonplace. This decentralized clan system and the nature of Somalis can also explain the difficulty that Somalis face in uniting under one leader and indeed around a single national identity. This is in contrast with the high hopes that Somalia’s post-independence state-building would be smoother than for its heterogenous neighbours. In fact, Somalia has illustrated that there is sub-set of heterogeneity within its homogenous society.

Thus, state-building in Somalia has had to contend with the fact that Somalia was never a single autonomous political unit, but rather a conglomeration of clan families centred around kinship and a loosely binding social contract. Although the Somali way of life might have been partially disrupted by the colonial construct that is now Somalia, clan remains a primary system of governance for Somalis, especially throughout the 30 years that followed state collapse. Parallels between the Somali nation prior to colonization and present-day Somalia reveal an inclination towards anarchy and disdain for centralized authority.

Independence in 1960 did little to change the socio-economic situation of the mostly nomadic population. Deep cleavages between the rural and urban communities became evident as the new political elite, rather than effecting economic and social change for their people, engaged in widespread corruption, nepotism, and injustices. Despite the best intentions and efforts of some of the nation’s liberation leaders, the late sixties witnessed the beginning of social stratification based on education and clan. Western observers at the time hailed the democratic leanings of the post-colonial civilian regime for Africa’s first peaceful handover of power after the defeat of the president in a democratic election. However, many Somalis saw corruption, tribalism, indecision and stagnation, particularly after liberation leaders left power. As such, the military coup orchestrated by the Supreme Revolutionary Council (SRC) led by General Mohamed Siad Barre was seen as an honest alternative.

Both Ethiopia and Kenya have dabbled in Somalia’s political affairs, routinely recruiting, training, and backing Somali militia groups

This initial positive reception to military rule was quickly repudiated as the council could not deliver on its pledges, and in addition to corruption and nepotism, violent repression prevailed. The oppressive military dictatorship followed and reigned for the next two decades. During his 22-year rule, Barre succeeded in alienating the majority of the population through his arbitrary implementation of Scientific Socialism. He introduced policies that outlawed clan and tribal identities while simultaneously cracking down on religious scholars. Armed opposition and a popular uprising ended the repressive rule but led the way to a complete collapse of the Somali state as different factions fought for control. The blatant nepotism of the military regime and the subsequent bloody era of the warlords re-tribalized the society. Somalis turned to religion as the common unifying identity as evident in the gradual increase of new Islamist organizations and increased religious observance.

With over 70 per cent of the population under the age of 35, the average Somali has known no other form of governance, having lived under either military rule or anarchy. The cumulative 30 years after state collapse and the previous 21 years of military rule have not really given Somalia the chance to entrench systems and institutions that would aid the democratization of the state. As such, the progress made thus far is admirable.

Possibilities for success – Somalia’s democratization process

Somalia’s numerous challenges notwithstanding, there has always existed some semblance of a democratic process. Every president has been elected through an agreed process, as imperfect as that may be. And the peaceful transfer of power has become an expectation.  That is why it was quite notable that when there was a threat of subversion of the democratic process in April this year, the military that had historically been used as a tool to cling on to power, in this instance revolted to return the country to the democratic path. It is clear that the still-nascent fragile institutions of the past 12 years require protection. So far, Somalia’s democratization process has been a process towards building trust. Civilian rule was replaced with an autocratic military regime that was subsequently replaced by lawlessness and the tyranny of warlords.

However imperfect, Somalia’s electoral processes have managed to keep the peace between most of Somalia’s warring political elite.

Since 2000, Somalia has steadily been making its way out of the conflict. But rebuilding trust and confidence in the governing authorities has been an uphill battle. The checks and balances that are built into the implementation of federalism will serve to further this journey. The next two Somali administrations will need to implement full political reforms if this path is to lead to a positive destination. These political reforms will encompass the implementation of the political Parties Act that would do away with the despised 4.5 clan-based construct, improve political participation and representation, and bring about inclusive and representative government.

Even then, there are crucial outstanding tasks, key among which is the completion of the Provisional Constitution. The contentious issues such as allocation of powers, natural resource sharing between the centre and the periphery, separation of powers and the status of the capital remain unsolved and threaten the trust-building process that Somalia has embarked on. The missing ingredient is political settlements, settlements between Somalia’s elite. The next four years will be therefore be key for Somalia to maintain and possibly accelerate its steady progress towards full democratization.

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Long Reads

Museveni’s Paradox, Class Dynamics and the Rise of Hustler Politics in Uganda

In this long-read, Liam Taylor explores the politics and class dynamics of Kampala, Uganda. Taylor unpicks the enigma of Yoweri Museveni’s background – a former student militant who was taught by Walter Rodney, and argued for the necessity of revolutionary violence, socialism and radical transformations. Yet he soon became the apostle of neoliberal change, always promising that real change was forthcoming.

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Museveni’s Paradox, Class Dynamics and the Rise of Hustler Politics in Uganda

During thunderstorms in Kampala the rainwater comes rushing down the hillsides in torrents, through clogged drainage ditches and silty channels, inundating the valleys with sudden floods. The rich make their homes on the hilltops, where the rain runs off their paved compounds. The poor crowd into the wetlands, in one-roomed mizigo rentals sometimes built with small brick walls around the doorway, to hold back the impending tide. In Luganda, an ordinary person is omuntu wa wansi, literally, a “person from down”. It is a metaphor that maps onto the very contours of the city.

The ruptures in Ugandan politics can be seen in the contrast between those valleys and hilltops. January’s tumultuous election was a generational contest and a struggle against dictatorial power.  But it was also an eruption of class politics, embodied by the rise of Robert Kyagulanyi, a popstar-turned-politician best known as Bobi Wine. “If parliament will not come to the ghetto,” he said when elected MP in 2017, “then the ghetto will come to parliament.”

For Yoweri Museveni, now in his 36th year of rule, this upsurge is baffling. His self-proclaimed mission is to haul Uganda out of the sectarian logic of peasant society into the industrial age. In that brave new world, class would replace religion and ethnicity as the axis along which politics was organised. But the distortions of his rule have instead perpetuated old logics and blocked economic transformation, creating alternative forms of urban class politics that he can neither understand nor control. This long-read explores the politics and class dynamics of Museveni’s rule.

The next section explores Museveni’s sociological understanding of politics. Subsequent sections examine how its premises are undermined by the economic realities of neoliberalism and the rise of the “hustling class”. The conclusion considers how Museveni maintains his power in the Uganda he has created.

It’s not like in genesis chapter one

In the 1960s the western region of Nkore was going through a social upheaval. The spread of Christianity and colonial education had reconfigured relations between the high-status, cattle-keeping Bahima and the lowlier Bairu cultivators. Cash-cropping and enclosures were fuelling land conflicts. Politics had fractured along religious and ethnic lines.

The young Museveni was a schoolboy in Nkore at the time. He wrote later of his “revulsion at the sectarian politics in Ankole [which] was a microcosm of the sad story of political sectarianism in the whole of Uganda”. In 1967, when he enrolled at the University of Dar es Salaam, he found the intellectual tools to make sense of his experiences. Campus life was a cauldron of socialist and pan-African politics. Museveni attended a study group taught by Walter Rodney, and argued for the necessity of revolutionary violence in his dissertation on Frantz Fanon.

Museveni’s formative years in Nkore and Dar have shaped his politics ever since. They instilled in him the teleological notion that society progresses in stages from “backwardness” to “modernity”.  As a young man in Nkore he had trekked between kraals, encouraging nomadic cattle-keepers to “modernise” and  settle down. In Dar he learned a certain version of Marx’s historical materialism, with its dialectic unfolding from feudalism to capitalism to the coming era of communism. But he saw that if history had a direction, it could also be thrown off course. He thought that the petty local divisions in Nkore and the great divisions in African society had opened the door to imperialists and left the peasants poor.

In his speeches, Museveni still reiterates these themes of modernisation and unity. And yet they ring hollow. The long war he waged against the Lord’s Resistance Army has left a legacy of trauma and dispossession in the Acholi region of the north. In the Rwenzori mountains families mourn more than 150 people who were massacred by the army in 2016. There is resentment almost everywhere against the westerners, especially Bahima, who dominate the security apparatus. Division endures.

How can we reconcile Museveni’s political thought with his political practice?  The temptation is to reach for psychology: to insist either that he was a imposter from the start, or a young idealist corrupted by the spoils of office. But a better solution to the Museveni enigma lies in political economy. One way to read Uganda’s predicament is as a dialogue between Museveni’s ideas, refracted through militarism, and the international economic order which confronted him.

Museveni was never a liberal. Political competition is dangerous, in his view, because opportunists will sow division for personal gain. After fighting his way to power in 1986, he established a system of “no-party democracy”, in which candidates stood for office without party affiliation. His own National Resistance Movement (NRM) was to be the all-encompassing arena of politics, containing the fractures which had once torn the country apart. Calls for multiparty democracy were missing the point, he told other African leaders in 1990. Democracy was like water, which can exist as liquid, vapour or ice: “Yes, I need water, but let me determine the form which I want to use.”

Museveni, with his Marxist training, believed that political institutions were hostage to the material circumstances of their time. “A society like ours here is still preindustrial,” he said at Makerere University in 1991, “which means that it is still primarily a tribal society, and that its stratification is, therefore, vertical. In an industrialised society, on the other hand, you have horizontal linkages and, therefore, horizontal stratification.” For example, British workers had united around their common class interests, rather than their English, Scottish or Welsh identities. “An industrialised society is really a class society,” Museveni continued. “A multiparty system in an industrialised society is likely to be national, while the propensity of a similar arrangement in a preindustrial society is likely to be sectarian.”

That rather self-serving logic underpinned Museveni’s view that the wrong sort of democracy, too soon, threatens cohesion and thus hinders modernisation.  Even after a multiparty system was restored in 2005 – partly as a quid pro quo for the lifting of presidential term limits – the NRM remained the substrate of local politics. The leading opposition force, the Forum for Democratic Change, had itself splintered off from the ruling party. Politicians such as Kizza Besigye, the FDC’s tireless leader, were hounded by the police. They were treated less as rivals than as enemies of the state.

How do Museveni’s disciples think today? Last August, I spoke with David Mafabi, a presidential advisor and NRM ideologue. In 2017 he had convened a meeting to plot the removal of an age limit from the constitution – the last legal obstacle to Museveni ruling for life.

“We are a nation in the process of becoming, an unstable multinational entity,” Mafabi told me, in the same restaurant where that notorious meeting was held. “Democracy, constitutionalism, are not acts of creation. It’s not like in Genesis chapter one: let there be prosperity, stability and everything. No, it cannot be like that.”

NRM activists buzzed around us in canary-yellow shirts. “With the advent of industrialisation, the advent of capitalism, you’ve had individuals who have acted as midwives so to speak of new societies,” Mafabi continued. “And sub-Saharan African countries are generally overall at that point… Leadership in such societies gravitates around the charismatic, visionary leaders, who in themselves express the objective needs of societies at those critical times.” He listed examples. Cromwell. Washington. Napoleon.

A technocrat’s dream

In 1984 the British journalist William Pike went to meet Museveni in the bush. He found a self-confident guerrilla in faded fatigues with a “faraway look in his eyes… the look of a dreamer, a revolutionary”. But Museveni was also the kind of man who would spend an evening debating exchange rate policy. Minutiae obsessed him.

What kind of economic policy could Ugandans expect when, eighteen months later, a victorious Museveni was sworn in as president? Nobody really knew. Many NRM leaders assumed that their Marxist commander would not allow them to own land or businesses, writes Matthew Rukikaire, who had chaired the movement’s external committee during the war. It was only when Museveni himself started buying up cattle ranches that his comrades “breathed a sigh of relief and followed suit”.

Like many post-colonial intellectuals, Museveni had always been a nationalist first, and a Marxist second. “Socialism is not the main issue for Africa,” he told Pike in the bush, “the crucial issue is disengagement from strangulation by foreign interests.” Perceptive rivals poured scorn on Museveni’s radical credentials. As early as 1980, the socialist thinker Dani Wadada Nabudere dismissed Museveni and his comrades as “petty bourgeois anti-Marxist reactionaries”.

In power, Museveni initially resisted IMF-inspired structural adjustment, and even bartered with Cuba. But with inflation running at 191%, and foreign aid funding half of government expenditure, he soon changed course. “In his search for the new Jerusalem, President Museveni went to the precipice, peered over the edge and did not like what he saw,” writes Emmanuel Tumusiime-Mutebile, a liberal economist and the most influential technocrat of the Museveni era. “It was scary. That is why he will never go back.”

How do Museveni’s disciples think today? Last August, I spoke with David Mafabi, a presidential advisor and NRM ideologue. In 2017 he had convened a meeting to plot the removal of an age limit from the constitution – the last legal obstacle to Museveni ruling for life.

The Cold War was over. Free market ideology was at its zenith, pushed aggressively by the West. A new constitution and elections were still several years away. “Uganda was effectively a ‘benign dictatorship’,” write two foreign economists who worked as advisors to the Ugandan government in the 1990s. “The next few years were a technocrat’s dream.”

The government cut spending, crushed inflation and halved the number of public servants in just four years. The shilling was allowed to float freely. Foreign investors were welcomed with generous tax breaks. Between 1992 and 2007 the state sold its stake in 90 public enterprises, in sectors such as telecoms, banking, hotels, power, agro-industry and railways. Museveni still quoted “our friend Mao Tse-Tung” at startled World Bank officials, but his policies had made him a poster child for the Washington Consensus. When debt relief was granted to the Global South in the 1990s, Uganda was the first country to benefit.

And some things did get better. The proportion of Uganda’s population living below the World Bank’s extreme poverty line fell from 58% in 1989 to 36% in 2012. Over the same period, GDP growth averaged 6.9% a year, faster than in Singapore. Museveni lapped up praise – and money – from the Western governments that bankrolled him. The Washington Post columnist Sebastian Mallaby described Tumusiime-Mutebile, the top civil servant in a new economic super-ministry and later central bank governor, as “the greatest contributor to Africa’s struggle against poverty in his generation”.

But reforms premised on the power of the market were simultaneously blind to its failures. The withdrawal of the state from coffee marketing gave farmers a greater share of the export price, but meant they got little support to improve quality or withstand disease. Reduced tariffs on garments led to a flood of cheap imports, swamping domestic industry. The sale of parastatals was opaque and allegedly corrupt. Museveni’s brother Salim Saleh was tangled up in several notorious deals, from the sell-off of a state bank to the privatisation of cargo handling at Entebbe airport (the latter with Sam Kutesa, the president’s in-law, who was investment minister at the time).

There was a deeper problem too. Arthur Lewis, the St Lucian economist, famously observed that poor countries become rich ones through a process of structural transformation, as workers move from subsistence activities into more productive sectors. In east Asia, this kind of industrial revolution was steered by an activist state. But Museveni’s Uganda instead became a test case for neoliberal reform in Africa, with all of its achievements and failures: low inflation, industrial torpor, precarious employment, and the expansion of the informal services sector. There was some initial export diversification and manufacturing growth, especially in areas such as food processing, but by the mid-2000s progress had stalled (some recent experiments with industrial parks notwithstanding). As a share of employment, industry has shrunk. Poverty is rising again.

“The historical mission of the NRM,” Museveni said last year, “is to make the Ugandan jump on the historical bus of machine power and gunpowder power… and, as a consequence, cause the metamorphosis of our society into a middle class, skilled working [class] society and away from the society of peasants, low skill artisans and a miniscule and powerless feudal class.” By that standard, although he did not say it, his government has failed. The people hustle, as best they can: flogging second-hand clothes, baking bricks, hawking herbal supplements, burning charcoal, cultivating wetlands, or toiling in Arab countries as maids and guards. If Ugandans have jumped on any machine in the Museveni era it is the boda-boda, the motorbike taxi, spluttering over hills and round potholes, choking out fumes and frustration.  Museveni had once argued that economic transformation would create European-style class politics, which would make true multipartyism possible. But an industrial revolution has not come to pass. And so, by Museveni’s logic, democracy must wait.

The rich eat chicken but it is tasteless

But society is not static. Urban growth, a youth bulge and the informalisation of labour are producing new economic relations and identities. And perhaps the most important of these is the hustler, scraping by in the interstices of the city. In elite eyes, the hustler is an irritant and a threat. Intellectuals sneer about the “lumpen proletariat”. In Luganda, the lingua franca of the Bantu south, the hustler is often caricatured as a muyaaye (plural: bayaaye, adjective: -yaaye): a marijuana-smoker, a trickster, a thug.

Hustles, in many guises, have been around since the era of magendo, the black-market that flourished under Idi Amin. In those days Museveni was in Tanzania, trying to recruit Ugandan exiles into his guerrilla army. “These boys,” he wrote of one batch of idle recruits, “had mostly been working in towns like Nairobi and had a kiyaaye (lumpen proletariat) culture… They would start drinking and moving out of the camps.” He concluded that true peasants, uncorrupted by city life, were a more pliable material to work with.

But under Museveni’s rule the hustling class grew like never before. It was the hustlers – and not an industrial proletariat – that became the lifeblood of urban culture. By the late 1990s, when cheap recording equipment became available in makeshift studios, they were ready to take over the music scene, displacing the rustic kadongo kamu troubadours and imported Congolese soukous. “Eh, I remember in ’96 they called us bayaaye from Kamwokya,” sang one dreadlocked bad boy, mixing English, Luganda and street slang. “They said we stayed in the ghetto, in ramshackle houses, that we are failures / They say me come from a poor family / They don’t know ghetto life is the best.”

That singer was Bobi Wine, the man who now poses the greatest threat to Museveni’s regime. His People Power movement has been characterised, with varying degrees of accuracy, as a youth rebellion, a freedom struggle, or a rejection of Bahima dominance. But it is also, significantly, a class revolt. Bobi Wine – whose family had fallen into the ghetto, and who has long since clambered out – is the great rhapsodist of ghetto life, of its indignities, its promise. “Born hustling,” as he himself has said.

But under Museveni’s rule the hustling class grew like never before. It was the hustlers – and not an industrial proletariat – that became the lifeblood of urban culture.

The message is in the music. In “Ghetto”, released before a summit of Commonwealth leaders in Kampala: “Now see in Katwe that on the day the Queen comes, the poor man is cleared away.” In “Kikomando”, named after a cheap snack of beans and chapatti: “Sometimes you sleep hungry, sometimes you eat kikomando / and you think that God forgot about you / the rich are many and drive cars / they eat chicken but it is tasteless.” In “Situka”, the 2016 overture to his political career: “When leaders become misleaders and mentors become tormentors / when freedom of expression becomes a target of suppression / opposition becomes our position.”

These songs were an affirmation of all those who had been kicked down, boxed in, shut out. Young men like Rajabu Bukenya, from the flood-prone ghetto of Bwaise, in northern Kampala. Slight and neatly-bearded, he introduced himself to me by his street name: “Rasta Man e Bwaise Mulya Kimu” (Rasta Man in Bwaise who eats once a day). He dropped out in the third grade of secondary school, unable to afford the fees, and found work as a porter, lugging sand and bricks. These days he runs a small laundry business, and spends his spare time calling radio stations with the ten phones that he carries in his pocket.

“Bobi Wine also came from the ghetto – that’s why the people in the ghetto love him so much,” said Bukenya. “The pain they have, even Bobi Wine passed through that pain… Eating once a day, eating kikomando: in Uganda people don’t have money for food, they just eat chapatti and beans… We have nowhere to go. We have no money to buy land, to build a house. And the land we had in the village? The government took our land in the village.”

Another example: dawn, December last year, in Bobi Wine’s expansive garden, and a cluster of young women who had come to campaign with him. “I’m among those who are the oppressed Ugandans,” said Gloria Mugerwa, draped in a red gown. “The poor can’t access the medical facilities, the poor cannot access the education facilities.” She and her friends had worked as maids in Arab countries where, said Mugerwa, “you are treated as a slave”. In Bobi Wine she saw hope. “He has been through it, and he can help us through this.”

There can be a millenarian tinge to this sentiment: a naïve sense that if only Museveni were gone then Ugandans would “walk with swag”, as the People Power movement’s unofficial anthem goes. Despite his mural of Thomas Sankara and fondness for pan-African iconography, Bobi Wine and his closest associates do not seem especially curious about the dynamics of global capitalism. Yet the radical potential of the movement lies less in the singer himself than in the forces he represents.

Class dynamics have long rumbled beneath opposition politics, from the career of Nasser Sebaggala, a populist mayor of Kampala between 2006 and 2011, to the crowds that thronged behind Besigye. But it has burst to the surface in Bobi Wine’s party, the National Unity Platform, which is an uneasy alliance of young intellectuals, opposition stalwarts, the petit bourgeoisie and the hustling class. In the constituency of Kawempe North the party selected as its candidate Muhammad Ssegirinya, a former restaurant cleaner known as “Mr Updates” for his voluble social media presence. He beat off more established rivals for the party ticket, including a former deputy mayor, who has since accused Ssegirinya of forging his exam certificates – a telling line of attack. Bobi Wine, whose own academic credentials have also been questioned, once told me that Ssegirinya’s selection was evidence of “a system that drops the powerful and elevates the unknown”.

Even the NRM elite can feel the ground shifting beneath their feet. A year ago, I met Mike Mukula, a former health minister who fell from grace after he was accused of stealing money intended for medicines. These days he flies helicopters, drives fast cars and serves as one of Museveni’s vice-chairmen in the NRM.

Mukula laid out the classic Musevenist argument. “You know the British have a class setting, the haves and the have-nots – this is what was lacking in the African continent,” he explained in his Kampala villa, as servants laid out lunch. But something was changing. “Now there is this cluster of a new group, which was not there. I call them the urban lumpen proletariat. If you see most of those people who are on drugs, who are musicians, and so on and so forth – that group… Now they see the Museveni group like us having these houses, the vehicles, being in power for some time.” He sank back in his white leather armchair. These rabble-rousers were a “formation in its infancy”, he sniffed, without structure, organisation or ideology.

And that would also seem to be the view of Museveni himself, who has admonished Bobi Wine for focusing too much on the “lumpen proletariat” and “the bayaaye in Kampala”. Perhaps, in his mind’s eye, the old general thinks back to that cohort of recruits on a Tanzanian training ground. When he looks at Bobi Wine he sees a distracted cadet, with no place in his never-ending revolution.

More dangerous than AIDS and Ebola combined

Museveni should re-read Fanon, who wrote of the “lumpen proletariat” with a mixture of horror and awe. In The Wretched of the Earth, the Martinican intellectual argued that the anti-colonial struggle will find a foothold in cities among those who have “not yet succeeded in finding a bone to gnaw in the colonial system… It is within this mass of humanity, this people of the shanty towns, at the core of the lumpen proletariat, that the rebellion will find its urban spearhead. For the lumpen proletariat, that horde of starving men, uprooted from their tribe and their clan, constitutes one of the most spontaneous and the most radically revolutionary forces of a colonised people.”

If this was true of the late colonial metropolis, is it not more so of the twenty-first century city, sculpted by corruption, militarism and neoliberalism? On 18 and 19th November last year, after Bobi Wine was arrested on the campaign trail, Kampala exploded in uproar. Young men lit fires, threw rocks, shook down motorists: this was, in the words of veteran journalist Charles Onyango-Obbo, “an anger bubbling among the ‘lowerdeck’ people, against the ‘upperdeck’ folks in general”. Security forces shot people dead as they protested, sought shelter, sold food, went shopping, walked home. Stray bullets said the police. Collective punishment, more like.

The ghetto had always been caricatured as a place of tough-guy masculinity, from the cartoon violence of the low-budget “Wakaliwood” flicks to Bobi Wine’s self-depiction as a mubanda (gangster), “more dangerous than AIDS and Ebola combined”. But here were men in t-shirts with automatic rifles, playing out the Rambo fantasy for real. The state had become more “ghetto” than the ghetto of the darkest imagination. “When you want to catch a thief, sometimes you behave like a thief,” said Elly Tumwine, the security minister, defending the use of plainclothes gunmen to shoot unarmed civilians last year.

And then the state started stealing people. Hundreds of opposition activists were bundled into unmarked vans, then disappeared. Many of them later showed up in military detention. One man told me that soldiers had electrocuted the soles of his feet and interrogated him about his links to Bobi Wine. “You, the bayaaye, cannot lead this country,” his torturer said to him. When Museveni spoke about the abductions, he said that the army were detaining “terrorists” and “lawbreakers” who were plotting that gravest of crimes – to “scare away investments”.

The blurring of law enforcement and criminality is not new. Under General Kale Kayihura, police chief from 2005 to 2018, stick-wielding thugs would routinely bludgeon protesters while uniformed officers looked on. One of the most notorious outfits was Boda-Boda 2010, a motorbike taxi gang, which terrorised drivers, attacked registration officials, and once set upon a group of schoolchildren who were wearing red, a colour associated with political opposition. In 2019 the association’s leader, said to be close to Kayihura, was sentenced to ten years in jail for illegal possession of firearms (he has since been freed).

But society is not static. Urban growth, a youth bulge and the informalisation of labour are producing new economic relations and identities. And perhaps the most important of these is the hustler, scraping by in the interstices of the city. In elite eyes, the hustler is an irritant and a threat

But Museveni’s dance with the ghetto is about more than just violence. A few weeks before the November protests I met Andrew Mwenda, an astute and controversial journalist with powerful connections: his older brother, a major general, is in charge of joint security operations in Kampala, and the president’s son describes him as a close friend.

“Museveni has the largest patronage machine of any government I know in Africa,” Mwenda told me. “When there is an uprising here, or demonstrations, the deployment of the police and army is a short-term tactical measure to secure stability, but the medium- to long-term strategy is always to penetrate the groups that are protesting politically and begin demobilising them using bribery. Co-optation. You should see how the system here works! In a very short time, within a month, they will give [their ringleaders] money, put them in party structures. They will find communities where the hotspots are, form co-operatives, put money on the account. They will get hair salon owners, bus drivers, taxi touts, vendors and hawkers, and begin organising them and counter-mobilising politically.”

Perhaps the most striking example of this process is Museveni’s recruitment of musicians. Ragga Dee, a washed-up singer, was the NRM’s candidate for Lord Mayor of Kampala. Buchaman, former “vice-president” of Wine’s Firebase Crew, is now Museveni’s unofficial adviser on “ghetto affairs”. So too is Full Figure, a dancehall star, who once backed Bobi Wine but is now so enamoured with the president that she has named her new-born son after him. Last year I met her in her office, overlooking the welders and mechanics of Katwe. Twice a week, she said, she would visit State House or meet Saleh, the president’s brother. It was the job of musicians to bridge the gap between the government and the ghetto.

That transactional logic is evident even in its repudiation. Before elections, the NRM-state began recruiting boxers in Kampala. Most of them were naturally sympathetic to Wine, an amateur boxer himself, who had his own networks in the sweat-soaked gyms. “We met a certain general during these NRM things,” one boxer told me. “He told us: ‘Bobi Wine is going to make you killed [sic] and he’s not going to support your family and he’s not giving you money. Why don’t you come work for us, and we give you money?’”

The pay on offer was not enough to make the boxers do the NRM’s dirty work. They refused. One former national champion, Isaac “Zebra” Ssenyange, had been mobilising for the party but then fell out with his patrons. Security forces shot him dead in the street.

This is the ultimate rejection of Museveni: to spurn his money. On election day, as Bobi Wine arrived at his polling station to vote, his supporters burst into their favourite chant, which likens the president to “Bosco”, a bumbling character from a mobile phone advert.

Eh Mama! Twagala Bobi si ssente

Eh Mama! Twagala Bobi si Bosiko.

(Eh Mama! We want Bobi not money

Eh Mama! We want Bobi not Bosco.)

Even Museveni is a muyaaye

In 1852 a tousle-haired German journalist called Karl Marx sat down to analyse the politics of contemporary France. Napoleon III, elected president after the uprising of 1848, had recently assumed dictatorial authority. Revolution was sliding towards despotism, just as it had half a century earlier, when Napoleon III’s more famous uncle – the Napoleon everyone knows – had seized power in a coup. The new dictator, scheming and vaguely comical, was a caricature of the old one. History was repeating itself, wrote Marx: “the first time as tragedy, the second time as farce”.

Marx called his essay The Eighteenth Brumaire of Louis Bonaparte, after the date in the French revolutionary calendar when the first Napoleon had staged his coup. It is an intricate study of class antagonisms in a society in flux. And reading it in Kampala, it feels strangely recognisable, despite the gulf that separates modern Uganda from nineteenth-century France. Consider Marx’s discussion of how money greases the wheels of dictatorship:

Money as a gift and money as a loan, it was with prospects such as these that [Napoleon III] hoped to lure the masses. Donations and loans — the financial science of the lumpen proletariat, whether of high degree or low, is restricted to this. Such were the only springs Bonaparte knew how to set in action.

Or read Marx’s description of urban politics, and think of Museveni’s street enforcers like Boda Boda 2010 and its fallen patron, General Kayihura:

On the pretext of founding a benevolent society, the lumpen proletariat of Paris had been organized into secret sections, each section led by Bonapartist agents, with a Bonapartist general at the head of the whole. Alongside decayed roués with dubious means of subsistence and of dubious origin, alongside ruined and adventurous offshoots of the bourgeoisie, were vagabonds, discharged soldiers, discharged jailbirds, escaped galley slaves, swindlers, mountebanks, lazzaroni, pickpockets, tricksters [the list goes on] — in short, the whole indefinite, disintegrated mass, thrown hither and thither, which the French call la bohème.

David Mafabi, Museveni’s adviser, had told me that the president could play the role of Napoleon. The Napoleon he had in mind was the famous one: the military genius, the moderniser, silencing his enemies with a whiff of grapeshot. It is a (historically inaccurate) vision of the great man bestriding history, wrestling with immense forces, even his violence justified by some larger purpose. This is Museveni the ssabalwanyi, the greatest of fighters.

But strip away these delusions and the Museveni project becomes nothing but an endless game of tactical manoeuvre, whispered deals, grubby handshakes. At times, when he is posing with Buchaman or attempting ghetto slang, there is even dark comedy about it. In this regard, Museveni most resembles that other, lesser, Napoleon, the one that Marx christened “the chief of the lumpen proletariat”. Museveni created the ghetto: now he must cajole, co-opt and crush it. “Even Museveni is a muyaaye,” I was once told by a small-time singer in a cramped recording studio in Kampala. “He’s ruling us in a muyaaye style, like fooling us.”

Museveni dreamt of ushering Uganda through the doorways of history, but his politics was premised on an economic transformation which never came. The blame lay partly in his own policies and partly in the international economic order which moulded them. He continues in power through inertia and intrigue, still chasing a vanished future. In his self-righteous violence and petty machinations, he evokes both Napoleons at once: the blood-soaked general and the wily schemer. This time as tragedy. This time as farce.

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Reflections on the Kenyan Court of Appeal Proceedings in the BBI Case

By all accounts, this is amongst the most – if not the most – important constitutional case under Kenya’s new Constitution, and the High Court’s judgment was a massive setback for both President Uhuru Kenyatta, and the Hon. Raila Odinga.

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Reflections on the Kenyan Court of Appeal Proceedings in the BBI Case

On 13 May 2021, the High Court of Kenya handed down a landmark judgment striking down the “Building Bridges Initiative”, a set of proposed amendments to the Kenyan Constitution, on grounds – inter alia – of violating the Constitution’s basic structure [“the BBI Judgment”]. At the time, I had analysed the judgment in this blog post. The High Court’s judgment was appealed to the Court of Appeal, and argued before a seven-judge bench, over four days, between June 29 and July 2. Judgment has been scheduled for August 20.

The Kenyan constitutional courts are unique in that oral arguments are live-streamed, broadcast live by major television networks, and available on YouTube (with an open comments section!). I was thus able to watch the arguments, which raised a range of fascinating issues, from the distinction between direct and indirect democracy (drawn from the Kenyan Constitution’s very particular amendment provisions), the identity of “the People”, the distinction between top-down and bottom-up constitutionalism, the meaning and purpose of public participation, and so on. Perhaps what made the arguments even more interesting was that, having been enacted in 2010, the Kenyan Constitution is a relatively young document, and not yet bowed down by layers of encrusted precedential sediment. For this reason, counsel on both sides were able to make arguments on first principle, presenting the overlaps between concrete constitutional practice and the philosophy of democratic constitutionalism, in a distilled form that we don’t often get to see.

Here, I will examine some of the major arguments made over the course of the four-day appeal hearing. The first two days of the hearing were occupied by the appellants who were challenging the High Court’s decisions. These included the Attorney-General’s Office, the BBI Secretariat, the Independent Electoral and Boundaries Commission (whose powers – and their alteration – were central to the High Court’s judgment), the Hon. Raila Odinga (the opposition leader), and HE Uhuru Kenyatta, President of Kenya. I will not here examine all the arguments raised; that would be an impossible task, apart from the fact that some of the issues are beyond the scope of a comparativist’s ability to engage with. I will, however, discuss three issues that, in my view, are at the heart of the appeal.

Perhaps what made the arguments even more interesting was that, having been enacted in 2010, the Kenyan Constitution is a relatively young document, and not yet bowed down by layers of encrusted precedential sediment.

My usual caveat: I am an outsider, and I approach this post with an awareness of my limited knowledge. While I will write as honestly as I can, there is undoubtedly much context that I do not know, and much that I may get wrong; for those trespasses, an apology, in advance.

Who Are The People?

First, Appellants challenged the High Court’s finding that the Kenyan Constitution had a basic structure, which could only be amended through the exercise of a primary Constituent power that – in effect – lay outside the Constitution. Recall that in its judgment, the High Court had not held that the Kenyan Constitution’s basic structure was beyond the power of amendment altogether (thus making the Kenyan basic structure doctrine entirely different from its Indian variant, and indeed, unique in the annals of comparative constitutionalism). Rather – on an analysis of Kenyan constitutional history – the High Court held that in order to amend the basic structure, the conditions around the founding of the 2010 Constitution had to be recreated (primary constituent power). This meant, in concrete terms, a four-step procedure involving civic education, public participation, the convening of a Constituent Assembly, and a referendum.

It was therefore a little surprising to note the amount of time that Appellants spent distinguishing Kesavananda Bharati v State of Kerala, or arguing for its inapplicability to Kenya. As I have mentioned above, the basic structure doctrine of Kesavananda, and the basic structure doctrine of the BBI judgment, are chalk and cheese. In particular, Appellants spent considerable time arguing that Kesavananda was a response to Parliamentary abuse of amending power, while the Kenyan Constitution explicitly envisages a role for the people (via the Popular Initiative method under Article 257) in the amending process. This is correct. But it is also, with respect, irrelevant. The distinction would have made sense if the Kenyan High Court had placed the basic structure out of bounds altogether; however, as we have seen, it did not – arguing only for deeper public participation than is provided in the Kenyan Constitution via the popular initiative method. That argument, however, needs to be tackled on its own terms, and not with reference to Kesavananda and parliamentary supremacy.

That brings us to how Appellants did attempt to tackle it on its own terms. Now here is where things get interesting. Let us go back for a moment to the amendment provisions in Kenya’s Constitution (Articles 255 – 257). Recall that Article 256 prescribes the familiar parliamentary route for certain constitutional amendments. Article 257, however, provides an alternative route known as the “popular initiative”, which requires (a) signatures of one million registered voters to initiate; (b) approval by a majority of county assemblies; (c) passage by simple majority in both Houses of Parliament, and (d) if pertaining to one of ten critical categories spelt out in Article 255, a referendum. Interestingly, therefore, the method under Article 257 is a combination of direct and representative democracy: it has elements of direct democracy in its initiation and completion (in cases of a referendum), and also elements of representative democracy through the process (ratification by county assemblies and Parliament).

It was therefore a little surprising to note the amount of time that Appellants spent distinguishing Kesavananda Bharati v State of Kerala, or arguing for its inapplicability to Kenya

In this context, Appellants argued that the participation of the people is already provided for under the Constitution, when it comes to the question of amendments. Consequently, there was no need for a separate basic structure doctrine that was itself based on public participation, as that issue had already been resolved within the Constitution. To supplement this argument, counsel referred to Article 1(1) of the Kenyan Constitution, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Stressing upon the phrase “this Constitution”, Appellants argued, therefore, that popular sovereignty did not – and could not – exist outside the Constitution. It was the Constitution that – through Article 257 – facilitated the exercise of popular sovereignty through the popular initiative amendment process.

But underlying this textual point is a deeper normative claim, which goes to the heart of constitutionalism: who are the People? Effectively, Appellants argued that “the People” had no existence – or identity – outside of the Constitution; quite literally, the People are “constituted” by the Constitution. Consequently, in holding that the basic structure could only be amended by an – effectively – extra-Constitutional process initiated – and led – by the People, the High Court had misconstrued not only the text of the Constitution, but the basic premises of constitutionalism itself.

At first blush, the argument sounds powerful. I believe, however, that in the final analysis, it fails to persuade. I would submit, with respect, that in focusing on Article 1(1), Appellants inadvertently hoisted themselves on their own petards. This is because the phrase “this Constitution” begs the anterior question, which is at the heart of the basic structure doctrine: at what point does “this Constitution” cease to be “this Constitution”, and becomes something else? It is here that Kesavananda Bharati actually becomes relevant – because what many people (especially in its home country) tend to forget is that before it was anything else, Kesavananda Bharati was a textual judgment. The majority judges took great pains to parse the meaning of the word “amend”, and took equal pains to explain how it differed from “repeal” or “abrogate” or “destroy”. To put the point at its simplest: this Constitution – whose entire structure is based on the principle of (say) representative democracy, is no longer this Constitution if all those provisions are replaced with a clause turning the State into a monarchy. Indeed, the bench repeatedly put these hypotheticals to the Appellants’ counsel – without (in my view) a satisfactory answer.

Indeed, Respondents’ counsel made this point on multiple occasions. The clearest exposition of it is to be found from around 55 minutes to 1 hour during the first session of Day 3: counsel distinguished between the concepts of “amendment” and “repeal”, and then further distinguished between two kinds of repeal: express repeal (such as when Kenya’s Independence Constitution was “retired”, in advance of the 2010 Constitution coming into force); but also, repeal by irreconcilable differences, where although a Constitution is not formally repealed, it is nonetheless repealed in effect, by introducing into it principles or provisions that are fundamentally irreconcilable with its core identity.

To this, I would add two brief points. The first is that taking the argument to its logical conclusion, Article 1(1) of the Kenyan Constitution, far from supporting Appellants’ case, is fatal to it. Because if it is true that (a) Article 1(1) only authorises the exercise of popular sovereignty within this Constitution, and (b) that this Constitution is no longer this Constitution if its basic structure is altered, it must necessarily follow that (c) if the People wish to alter the basic structure, they must act outside the Constitution. Indeed, it cannot be otherwise. And if this is conceded, then the High Court’s judgment is not only arguably but correct, but indeed, the only correct outcome. Because not only did the High Court correctly rule that alteration of the basic structure must take place outside of the Constitution, it also set out the logical corollary: that the manner of doing so must resemble, as closely as possible, the manner of the writing of the Constitution. This is so because an alteration of the basic structure amounts, in effect, to re-writing the founding document, and for that, such an activity needs to be conducted within the procedural confines of the manner in which its writing took place.

Counsel on both sides were able to make arguments on first principle, presenting the overlaps between concrete constitutional practice and the philosophy of democratic constitutionalism, in a distilled form that we don’t often get to see.

The second point is that on multiple occasions, Appellants’ counsel expressly conceded that the Constitution does have basic structure. Counsel attempted to make light of the point by arguing that every form of government – including theocracies and one-party totalitarian States – have basic structures. Counsel then argued that the existence of basic structure doesn’t necessarily imply the existence of the basic structure doctrine. However, it is in precisely that disjunction where the problem lies: if you accept that the Constitution has basic structure – i.e., a core set of principles that constitute its identity – then the burden falls upon you to show how an alteration of the basic structure, and thus an alteration of constitutional identity nevertheless implies that “this Constitution” at the beginning of the process is still “this Constitution” at the end of it. I believe that this was a burden Appellants did not discharge.

The Njoya Debate

I would suggest that the above argument is also relevant to answering a question that was hotly debated on both sides of the bar during the hearings: that is, the interpretation of the Kenyan High Court’s 2004 judgment in Njoya v Attorney-General. In Njoya – which involved a challenge to the then-ongoing constitutional review process – the High Court had accepted Kesavananda Bharati, and held that under the (now-retired) Constitution, the Kenyan Parliament had no power to abrogate or repeal the Constitution. Now naturally, the Respondents strongly argued that Njoya went in their favour. However, Appellants argued equally strongly that read closely, Njoya actually supported their case. The reason for this was that in Njoya, Ringera J categorically stated that (a) Parliament had no power to abrogate the Constitution, (b) that this power belonged to the People of Kenya, acting in their sovereign capacity, and (c) that the People of Kenya were entitled to a referendum on any new Constitution (paragraphs 32 & 33, Njoya). Now if you look at Articles 255 read with 257, an amendment by popular initiative – that seeks to alter one of the ten categories set out in Article 255 (such as the territory of Kenya or the functions of Parliament) must be put to a referendum. Appellants therefore argued that the dictum of Njoya had already been incorporated into the 2010 Constitution. Indeed, the bench’s question to Mr. Nelson Havi, Respondents’ lead counsel, at around 48 mins of the first session of Day 3, went to the heart to the issue: did not the 2010 Constitution enact the very requirements outlined in Njoya?

I believe that the answer is in Njoya itself, and it is the same answer as that set out above. In paragraph 29, Ringera J wrote that popular sovereignty is “the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution” – although, of course, it could be juridically recognised by it. These lines, I submit, answer the bench’s question about the referendum provisions under Article 257: regardless of what Article 257 says about a referendum, ex hypothesi, the power to create a Constitution cannot lie within it. Now when you combine this with Njoya’s holding in paragraph 61 accepting the correctness of Kesavananda and holding that “amendment” does not mean “abrogation” or “repeal”, you reach the inescapable conclusion that a Constitution’s amendment provisions – whether or not they contemplate referenda – do not extend to the repeal of this or the creation of a new Constitution, something that can only be done through an external exercise of popular sovereignty. And that was what the High Court recognised.

The Discontents of the Presidential System

The second major issue was with respect to the identity of the initiator of the BBI Amendment(s). Articles 257(3) and (4) of the Kenyan Constitution contemplate the existence of the “promoters” of an amendment by popular initiative. Formally, the promoters of the BBI Amendment(s) were two parliamentarians named Dennis Waveru and Junet Mahomed. However, it was strongly urged before – and accepted by – the High Court that the actual moving force behind the Amendment(s) was the President of Kenya, Uhuru Kenyatta. The factual dispute continued before the Court of Appeal, and I do not intent to address it here.

However, it was also argued by Appellants that even if it was the President who was behind the BBI Amendment(s), there was nothing wrong with it; in other words, just like any other registered voter, high State officials could also initiate amendments by popular initiative. In particular, Appellants argued that (a) there was no express bar under Article 257 that forbade the President from engaging in amendment(s) by popular initiative; (b) that explicitly, the President continued to retain political rights under the Constitution even on formal investiture, including, for example, the right to vote; (c) that as a matter of fact, even if the President had been acting in this case, he had been acting in his private capacity; and (d) that the entire purpose of Article 257 was to prevent legislative bottlenecks in a Presidential system. It was meant to deal with a situation where the political party with a majority in Parliament was opposed to the elected President’s agenda, and was stymying him. In such a situation of gridlock, Article 257 gave the President an avenue to to bypass Parliament and go directly to the People.

In this context, Appellants argued that the participation of the people is already provided for under the Constitution, when it comes to the question of amendments. Consequently, there was no need for a separate basic structure doctrine that was itself based on public participation, as that issue had already been resolved within the Constitution.

At its deepest level, then, the argument was one about constitutional design. Appellants argued that the Kenyan Constitution did two things: it opted for the Presidential system, with its known problem of veto points and bottlenecks – and then also solved that problem through Article 257, by essentially saying “President + People > Parliament“.

Now there are a few points here. The first is that – as the bench acutely pointed out – Article 255(3)(b) of the Constitution states that the amendment procedure under Article 257 is by “the people and Parliament”. It therefore follows that the Constitution itself draws a distinction between “the People”, and constitutional bodies (such as the Parliament), even though – of course – those constitutional bodies are helmed by members of “the People”. It follows ipso facto, therefore, that much like “the people” and “Parliament” are distinct entities for the purposes of a constitutional amendment, “the people” and “the Presidency” must likewise be so.

Is this dispositive? No. However, what it does show is that textually, Articles 255 – 257 sustain the High Court’s interpretation. Whether it is the correct interpretation – given that the text is ambiguous – is of course a normative question, internal to the Kenyan Constitution. And it is here that the principles of representative and direct democracy come into tension with each other. As I have pointed out above, Article 256 provides the familiar amendment path via representative organs (Parliament), while 257 consciously combines elements of representative and direct democracy, and – specifically – envisages direct democracy at both the beginning and the end of the process.

I would submit, with respect, that this carefully balanced scheme of Article 257 would be nullified were representative organs allowed to initiate the process. Such an interpretation of Article 257 would undermine the fact the bottom-up character of direct democracy that the provision seeks to preserve. During the opening session of Day 3, at around 1 hour 6 minutes, Respondents’ counsel put the point perfectly when they argued that by definition, when the people delegate authority (as in representative democracy), the delegate no longer counts as part of ‘the people’ for the purposes of the exercise of popular sovereignty (as in direct democracy, envisioned by Article 257).

The bench then asked – correctly – whether it would not be possible for the President to “wear two hats” – i.e., remain the President, while initiating a popular initiative process as a private citizen. The answer – which was provided a little later in the day – was that ‘yes, she can, but she needs to formally give up the trappings of office while doing so.’ This, to me, makes eminent sense: the entire point of Article 257 – and the carefully wrought distinction between direct and representative democracy – would be defeated if the President could say “I am President, but I ask for your signature on this popular initiative as a private citizen.” With respect, that distinction could be sustained only by denying reality.

As I have mentioned above, Appellants repeatedly argued that there was no express bar on the President’s powers under Article 257. That is true; but again, going back to Kesavananda – and much more recently, to the UK Supreme Court’s prorogation judgment in Miller v The Primer Minister, limitations upon powers exercised by constitutional authorities are not only express, but – in many cases – implied. In Miller, it was held that when you have two constitutional principles, the exercise of power under one is (impliedly) limited at the point at which the said exercise would frustrate or impede the operation of the other. That is exactly what is happening here: the President’s powers under the Constitution are limited by the operation of other constitutional principles; in the case of Article 257, that principle is the balance between direct and representative democracy in the popular initiative process.

The Nature of Referenda

The third issue also concerned the interpretation of Article 257. The BBI Amendment(s) had been pushed as a package deal, containing as many as seventy-four proposed amendments to the Kenyan Constitution. The High Court had nixed this in no uncertain terms, holding that in an amendment by way of popular initiative, every amendment had to be presented distinctly, and put through the process required by Article 257, separately. Appellants’ response to this holding was primarily textual, noting that Article 257 used the word “amendment”, and not “amendments.” Thus, an “amendment” could take the form of a proposed bill – that amended multiple provisions of the Constitution – but for the purposes of Article 257, the was to be treated as an amendment, in the singular.

Now it should be clear that once again, the text does not determine the issue. It could easily well be argued – and indeed, was argued – that the very use of the singular “amendment” actually means that you can only present one amendment at a time via the popular initiative. For interpretive support, Respondents’ counsel also pointed to Kenya’s Elections Act, Section 51(2) of which provides that “where there is more than one referendum question, persons intending to campaign for or against each referendum question shall, on application to the Commission, form one national referendum committee each and one committee each in every constituency for each referendum question.

At first blush, the argument sounds powerful. I believe, however, that in the final analysis, it fails to persuade. I would submit, with respect, that in focusing on Article 1(1), Appellants inadvertently hoisted themselves on their own petards. This is because the phrase “this Constitution” begs the anterior question, which is at the heart of the basic structure doctrine: at what point does “this Constitution” cease to be “this Constitution”, and becomes something else

Textual ambiguity, once again, brings us into the domain of the normative – and the normative issue here goes once again to the purpose of referenda, and the provision of direct democracy in a Constitution. The core argument against referenda – as we well know – is that they boil down extremely complex and nuanced questions into a simple yes/no binary. In effect, therefore, they distort the expression of public opinion by simplifying an issue to a point where a yes/no vote doesn’t accurately reflect the range of views that people hold. Now, I would submit, with respect, that given that referenda already have this problem with respect to being accurate vessels for the expression of direct democracy, a package deal referendum exacerbates that precise problem even more (the reasons are easy to see). It therefore follows that if the Court is faced with two equally legitimate textual interpretations of the same provision, one of which advances the cause of direct democracy, and the other potentially impedes it, given that the purpose of the section is to facilitate direct democracy, it should choose the former interpretation. In this case, that would be to uphold the High Court’s ruling that a popular initiative can only be for one amendment at a time.

The above analysis has only scratched the surface of the immensely complex and nuanced arguments that I heard. Some of the fascinating arguments I have not dealt with here include, for example, the question of which side bears the burden in a dispute over whether the popular initiative involved adequate public participation or not (I would suggest that if public participation is a fundamental premise of the Kenyan Constitution, the presumption must be that official acts do not acquire a constitutional seal of approval until it is affirmatively demonstrated that public participation has taken place; think of it as a precondition); the role of constituencies in distributing resources, power, and political patronage, and why, therefore, boundary alteration affects the basic structure; whether the popular initiative starts from the moment signatures are collected, or does the public participation requirement kick in before; and so on. Ultimately, what I found most striking is that for a lot of these questions, the Constitution does not provide a textual answer. For a lot of these questions, both sides presented an interpretation that, textually, was plausible; ultimately, therefore, this ruling will turn upon what principles the Court identifies as underlying these provisions, and which interpretation it believes better furthers those principles.

A few parting remarks on the oral arguments themselves. I loved watching them: there was wit, humour, seriousness, and a whole range of styles of advocacy, with consistently high quality throughout. The timekeeping was impressively strict: a big timer showed counsel their countdown, the bench cut them short when their time was up, and barring a few occasions where I thought that counsel genuinely needed more time to develop their argument, I felt that the quality of advocacy was raised by the fact that counsel had to put their point across in limited time. The questions from the bench were sharp, focused, and at times, almost frightening in how accurately they identified weak spots in the argument. And then, away from all this, I was struck by the freedom with which people were commenting and arguing with each other in the YouTube comments section, and openly poking fun at the lawyers, the President, and even the court. As far as I could tell, none of this had any perceivable impact on “justice”. Perhaps judges in other jurisdictions may take a leaf out of this YouTube book, and treat irreverence and critique with a smile.

Finally, as an outsider, I was struck by the civility with which the arguments were conducted. By all accounts, this is amongst the most – if not the most – important constitutional case under Kenya’s new Constitution, and the High Court’s judgment was a massive setback for both President Uhuru Kenyatta, and the Hon. Raila Odinga. However – barring a few good-natured jabs back and forth, I did not see personal invective. Imagine watching the State’s lawyers argue over two days, and not once insinuate that the other side is a hotbed of anti-nationals, publicity-seekers, “lobbyists”, and a threat to sovereignty and national security?

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