On September 23, the United Nations’ Food Systems Summit (UN FSS)  convened in New York to map out the policy agenda on food and agriculture for decades to come. The Summit set to unveil so-called “game-changing” solutions to supposedly “transform” global food systems towards the goals of eradicating hunger, reducing poverty, and facing the climate crisis.

The irony is that those involved in the Summit were the same transnational corporations (TNCs) and financial institutions whose neoliberal framework and profiteering have pushed us deep into the food, biodiversity and climate crises that we experience today.

This is made apparent by the UN’s strategic partnership with the billionaire’s club World Economic Forum (WEF) and the appointment Agnes Kalibata, head of Bill Gates-funded Alliance for a Green Revolution in Africa and member of WEF’s Global Agenda Council, as the Special Envoy to the UN FSS. Even the Food and Agriculture Organization (FAO), which is mandated to promote sustainable food and agriculture policies, has formalized a partnership with CropLife International, the global trade association representing the world’s largest pesticide companies. Numerous corporate-funded lobbies are entrenched into the Summit’s Action Tracks (such as the Gates Foundation’s Global Alliance for Improved Nutrition) and are expected to push for market-based, tech-driven, and private sector-led “solutions.”

The choice to do the process in a ‘multi-stakeholder approach’ points to the true nature of the Summit. Multi-stakeholderism not only includes big companies, but puts them at the helm of decision-making and drowns out the voices of the few handpicked NGOs that participate. Even representation in the so-called “Independent Dialogues” is overwhelmingly tilted in favor of big business, with almost a third of participants either from corporations or international financial institutions.

Meanwhile, the problems faced and the solutions put forth by small peasants, the majority of the world’s food producers, are ignored. The UN FSS talks about “transformation” without acknowledging how neoliberal global food systems have failed the poor, hungry, and marginalized rural peoples of the Global South—those who put food on our tables but themselves have little or nothing to eat.

Around a billion people go to sleep hungry every night despite peasants producing enough food to feed 1.5 times our global population. This is not a simple anomaly, but a result of decades of imperialist exploitation and oppression.

World Bank-led land market reforms have concentrated ownership and control of agricultural lands at the hands of domestic elites and large multinational corporations. It is estimated that 1% of farms operate at least 70% of the global farmlands. These funnel food into corporatized global supply chains built atop neocolonial trade rules enshrined in the World Trade Organization and mega trade deals. What trade liberalization means for agrarian countries in the Global South is the destruction of domestic food self-sufficiency (read: farmers unable to sell their own produce because of the influx of imported food). It means the continued rise of export-oriented production that ejects communities from their own lands and razes what’s left of our forests.

Only four corporations from the US, China, and EU own and control more than half of the global seed, fertilizer, and agrochemical markets. Since the Green Revolution, policies imposed on and by governments have made our farmers dependent on hazardous pesticides and genetically modified seeds promoted by these companies, while forcing traditional seeds and biodiverse, sustainable farming to disappear. The FSS lends the credentials of the UN to these corporations who have a long history of deceit and malfeasance. They are able to rebrand them as “saviors” and “champions” of global food systems, with even pesticide companies such as BASF and Sumitomo calling themselves as “Food System Heroes.”

Corporate control over food systems is so thorough that even the seas are overfished and exploited almost exclusively by wealthy nation-states, which control 97% of operations both in the high seas and global exclusive economic zones. Meanwhile, the global oligopoly in grain and crop trade controls food supplies.

It is clear that the current neoliberal food systems perpetuate and exacerbate global hunger, the yawning chasm of inequality within and among nations, and the climate crisis we face today. It has even caused global food prices to jump by 39% in a single year amid a raging pandemic. It means that at the time when they need it the most, more people cannot afford nutritious food!

Global land grabs also continue to surge, and peasant killings and conflict-driven famines continue to rise. Farmers feed the world—but as they struggle to collectively defend their rights to lands and natural resources, as they struggle to survive, they are hunted down by corporations and state authorities. In truth, they don’t need to be recognized as “Food Systems Heroes” in the same platform as their oppressors are also recognized. What they need from global governance is not such insulting lip service but a clear break from long-discredited frameworks, policies and solutions.

That is why the Global People’s Summit on Just, Equitable, Healthy and Sustainable Food Systems is being co-organized this September by people’s movements and CSOs as a counter-summit to the UN FSS. Various activities, dialogues and workshops have been held since early this year. Through the People’s Summit, we hope to develop further and broaden our demands to include an extensive range of rights-holders and peoples, especially from the Global South. A People’s Action Plan to realize Just, Equitable, Healthy, and Sustainable Food Systems will be the major outcome of the People’s Summit.

The People’s Summit believes that farmers, not corporations, will genuinely transform global food systems. This transformation can only be held up through four major inter-connected pillars. First, peasants must have the right to land and resources. Second, there must be community-led agroecology or sustainability in food production, distribution, and consumption. Third, people’s food sovereignty—or the power of people and communities to assert and realize the right to food and produce food—must be at the core of food and agriculture policies. Only then can people realize their right to adequate, safe, nutritious, and culturally-appropriate food, or what we aspire for as “food for all.”

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This article was first published by Progressive international.

We stand in solidarity with the people of Sudan and we demand more resolute action from the African Union (AU), the Intergovernmental Authority on Development (IGAD) and the United Nations (UN)

We, the undersigned organizations and individuals, are deeply concerned about, and strongly condemn, the military coup in Sudan and the subsequent purported suspension of several provisions of the Constitutional Declaration; dissolution of the Sovereign Council, the Cabinet and of the Transitional Government of Sudan. We further condemn the arrest and detention of the Prime Minister, Abdalla Hamdok, his wife, five ministers and other government officials and leaders as well as civil society actors. These actions violatethe AU Shared Values and specific provisions of the African Charter on Democracy, Elections and Governance regarding unconstitutional changes of government. We note that the military takeover has negative consequences for Sudan’s transition into a democracy, a journey that had a major turning point in 2019 when civilians got rid of dictator Omar Hassan Al-Bashir through a peoples’ revolution.

We also note with concern the switching off of the Internet and other communications channels, which has made it difficult for the Sudanese people to receive and send information within and outside of Sudan. We are also greatly troubled by the closure of the Sudanese airspace and land borders, and suspension of all flights. This has meant that no one can travel into or out of Sudan. These limitations on the rights and freedoms of the Sudanese people as well as other nationalities present in Sudan is in stark violation of both the Sudanese Constitution as well as African and International Human rights norms.

We are aware that many Sudanese, committed to democratic ideals that they relentlessly fought for, have taken to the streets to peacefully protest the military takeover. We are, however, alarmed by reports appearing in a section of the media of the killings, torture and injuries of some of the protesting civilians by sections of the military.

As African citizens and institutions from across the continent and its diaspora, we demand that:

1. General Abdel Fattah Abdelrahman al-Burhan and the parts of the military leadership under his control immediately and unconditionally release Prime Minister Hamdok, his wife, the ministers, other government officials and members of civil society;
2. This impugned military leadership transfers the leadership of Sudan back to the transitional government to operate as per the terms of the Political Agreement and the Constitutional Declaration of 17 July 2019 and 4 August 2019 respectively, and further that the entire provisions of Constitutional Declaration be respected and implemented;
3. Patriotic soldiers, battalions and garrisons desist from participating in or supporting the illegal martial government in any way, and certainly refrain from interfering with or harming peaceful protestors.
4. We call for the protection of civilians and the upholding of their right to protest and further call on the security forces to act with restraint in managing the public order situation in the Sudan. Specifically, we call on security forces to desist from use of force on civilians, as this is contrary to international law and also the various legal instruments created by the African Union;
5. We demand that this military leadership also lifts the restrictions on Internet access and use to enable people to communicate freely and access information;
6. We further demand that this military leadership also immediately opens up the airspace to enable travel into and out of the country without restrictions.

We note that the unconstitutional change of government that was perpetrated in Sudan has had a long build up, whose signs include the failed coup of 21 September 2021. The position of the African Union on Unconstitutional Change of Government is very clear, and requires an uncompromising rejection of such unconstitutional changes, the immediate suspension of the Member State in question, and immediate engagements, based firmly on AU law to reinstate democratic and legitimate government. We note with concern that, in the face of clear danger, the AU has dithered to implement this hard letter of the law on a few occasions in the last few years, a fact that might have encouraged the current situation in Sudan. While we are grateful that both the AU and IGAD provided initial public statements on the situation in Sudan, their statements were not strong enough. We also acknowledge that the Peace and Security Council of the African Union (AU-PSC) held a Session on Sudan and has suspended its Government in line with the applicable AU law. This is a positive first step. We reiterate that speaking clearly and strongly against the unconstitutional change of government is the only way in which large-scale violence and related human suffering can be averted.

As African citizens and institutions from across the continent and its diaspora, we therefore demand that AU and IGAD:

1. Follow up on their initial Statements with more robust Statements that demonstrate the actions they have taken in the first 48 hours after the coup and that clearly lay out the obtaining law and the processes that they propose to take in the next few days;
2. Confirm unequivocally to the people of Africa and the international community that Sudan currently stands suspended from the AU, pending these processes;
3. Urgently convene the AU Peace and Security Council (AU-PSC) and take the necessary follow-up measures.

We note that the Horn of Africa is already very volatile and that should Sudan be allowed to succumb to military-instigated conflict against a resistant citzenry, not only will there be unnecessary bloodshed and human suffering, but this would also have profound regional peace and security repercussions, affecting neighbours like the Central African Republic (CAR), Chad, Eritrea, Ethiopia, and the rest of the East African region. We note the strong Statements already issued by the United Nations Secretary General and several members of the international community. We also acknowledge that the United Nations Security Council (UNSC) has convened a Session on Sudan. We call upon the United Nations (UN) to: –

1. Prioritise discussion and action on Sudan, respecting the aspirations and demands of the Sudanese people, and bearing in mind the potential ramification for the Horn and East Africa region.

As African citizens and institutions from across the continent and its diaspora, we will continue to be actively seized of this matter and will be making additional interventions and actions in the coming days. More importantly, we call upon all people around the world to unite and stand together with the brave Sudanese people to save and preserve their democratic transition and protect their human and peoples’ rights. We urge for peaceful demonstrations and protests outside Sudanese Embassies across the continent and worldwide.

Signatories

A – Institutions 

1. Advocacy Network for Africa, Washington DC, USA
2. AfricanDefenders (Pan African Human Rights Defenders Network)
3. African Union Watch, Banjul, The Gambia
4. African Women and Youth Initiative
5. African Women’s Development and Communication Network (FEMNET)/ Réseau de Développement et de Communication des Femmes Africaines
6. African Women Leaders Forum (AWLF), Zimbabwe
7. Atrocities Watch Africa (AWA), Kampala, Uganda
8. Chapter One Foundation, Lusaka, Zambia
9. Coalition for an effective African Court on Human and Peoples’ Rights (ACC), Arusha, Tanzania
10. Coalition Togolaise des Défenseurs des Droits Humains (CTDDH), Lomé, Togo
11. DefendDefenders (East and Horn of Africa Human Rights Defenders Project)
12. Disability Amalgamation Community Trust (DACT), Zimbabwe
13. DITSHWANELO – The Botswana Centre for Human Rights, Gaborone, Botswana
14. Eastern Africa Youth Empowerment on Peace and Security
15. Echoes of Women in Africa Initiatives, Nigeria
16. HUDO Centre, Kampala, Uganda
17. Human Rights Institute of South Africa (HURISA)
18. Institut des Médias pour la Démocratie et les Droits de l’Homme (IM2DH), Lomé, Togo
19. Institute for Young Women Development (IYWD), Zimbabwe
20. International Refugee Rights Initiative (IRRI), Kampala, Uganda
21. Inuka Kenya Ni Sisi!, Nairobi, Kenya
22. Kamma Organization for Development Initiatives (KODI), Sudan
23. Kenya Human Rights Commission (KHRC), Nairobi, Kenya
24. Nawi – Afrifem Macroeconomics Collective, Nairobi, Kenya
25. Network of Independent Commissions for Human Rights in North Africa
26. Nubsud Human Rights Monitors Organization (NHRMO), Sudan
27. OnetoAll Foundation, Meru, Kenya
28. Open Society Initiative for Southern Africa (OSISA), Johannesburg, South Africa
29. Oromo Legacy Leadership and Advocacy Association
30. Oromo Professionals Group (OPG), Washington DC
31. Rape Hurts Foundation, Uganda
32. Pan African Citizens Network (PACIN)
33. Pan African Lawyers Union (PALU), Arusha, Tanzania
34. Pan African Law and Justice Initiative, Kenya
35. Panos Institute Southern Africa
36. Plateforme de la Diaspora Tchadienne en Amerique
37. Southern Defenders (Southern African Human Rights Defenders Network)
38. Wakiso District Human Rights Committee , Uganda
39. Yearning Voices Foundation (YVF)
40. Zimbabwe Lawyers for Human Rights, Harare, Zimbabwe

B – Individuals 

1. Abel K. Walendom, Co-Facilitator, Plateforme de la Diaspora Tchadienne en Amerique
2. Abdalla Komi Kodi, Executive Director, Kamma Organization for Development Initiatives (KODI), Sudan
3. Achieng’ Akena, PanAfricanist, Uganda
4. Adaobi Egboka, Human Rights Lawyer, Nigeria
5. Arnold Tsunga, Human Rights Lawyer, Zimbabwe
6. Brian Tamuka Kagoro, Uhai Africa Ltd, Harare, Zimbabwe
7. Bridget Musungu, Panafrican, Nairobi Kenya
8. Bushra Gamar Hussein, Executive Director, HUDO Centre, Kampala, Uganda
9. Bonaventure N’Coué MAWUVI, Journaliste et Défenseurs des Droits Humains, Lomé,Togo
10. Chidi Anselm Odinkalu
11. Chris Kwaja
12. Danford M. Chirwa, Dean, UCT Law
13. Donald Deya, Pan Africanist, Nairobi, Kenya
14. Dzimbabwe Chimbga, Human Rights Lawyer, Zimbabwe
15. Edigah Kavuravu, Human Rights Lawyer, Kenya
16. Femi Falana SAN, Human Rights Lawyer, Nigeria
17. Feyi Ogunade, Human Rights Lawyer
18. George Kegoro, Lawyer, Nairobi, Kenya
19. Gitahi Githuku, Human Rights Defender, Nairobi, Kenya
20. Golda Keng, Advocacy and Campaigns Consultant, Yaoundé, Cameroon
21. Hakima Haithar, International Development Consultant, Johannesburg, South Africa
22. Ibrahima Kane: Ibrahima Kane, lawyer Senegal
23. Irene Mwendwa, Lawyer, Pollicy Uganda
24. Jok Madut Jok, Professor of Anthropology, Syracuse University and Director of The Sudd Institute
25. Khabele Matlosa
26. Martin Masiga, Africa Judges and Jurists Forum (AJJF)
27. Martin Mavenjina, Constitutional and Human Rights Lawyer, Nairobi, Kenya
28. Musa Mwenye, SC, Former Attorney General of the Republic of Zambia
29. Nikiwe Kaunda, Mzuzu, Malawi
30. Otto Saki, Zimbabwe
31. Roland Ebole, Human Rights Lawyer, Nairobi, Kenya
32. Roselyn Hanzi, Human Rights Lawyer, Zimbabwe Lawyers for Human Rights
33. Sarah Mukasa
34. Sharon Nakandha, Lawyer, Uganda
35. Siphosami Malunga, Executive Director, Open Society Initiative for Southern Africa
36. Tiseke Kasambala, Chief of Party, Freedom House, Johannesburg, South Africa
37. Vusumuzi Sifile, Lusaka, Zambia
38. Washington Katema

Previously, I have discussed the concept of constitutional statutes. Recall that a constitutional statute is a law that is “enacted in pursuance of the State’s positive obligation to fulfil a constitutional right.” While certain constitutional rights are self-enforcing (such as, for example, the right to free speech ipso facto prohibits the State from engaging in arbitrary censorship), others – by their very nature – require a statutory framework to be made effective. For example, the right to vote cannot be made effective without an infrastructure in place to conduct free and fair elections, including the existence of an independent, non-partisan Election Commission. Insofar as such a legislative framework is not in existence, the state is arguably in breach of its positive obligations to fulfil the right in question. Thus, to refine the definition further, a constitutional statute is a statute that “provides a statutory framework towards implementing a fundamental right, thereby fulfilling the state’s positive obligation to do so.”

What follows from the finding that a particular law is a constitutional statute? On this blog, we have discussed constitutional statutes in the context of amendments to the Right to Information Act, which have sought to undermine the independence of the Information Commissioners. We have argued that, insofar as constitutional statutes stand between the individual and the State, mediating the effective enforcement of rights, legislative amendments that prevent them from fulfilling this function, are thereby unconstitutional. Furthermore, once a constitutional statute has been enacted, the principle of non-retrogression applies – that is, the legislature cannot simply repeal the law and go back to a position where the right in question was unprotected. Another example discussed on this blog is the recent judgment of the Kenyan Court of Appeal in David Ndii, where it was held that the implementation of the Popular Initiative to amend the Kenyan Constitution required a legislative scheme, as also its discussion of the previous judgment in Katiba Institute, where an attempt to reduce the quorum for resolutions of the Independent Electoral and Boundaries Commission was held to be unconstitutional.

The judgment of the High Court of Kenya of 14 October 2021 – also titled Katiba Institute – provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute. Katiba Institute arose out of the efforts of the Government of Kenya to implement a national biometric identification system called NIIMS, and the judgment of the High Court with respect to a challenge to the constitutionality of NIIMS (Nubian Rights Forum), which we discussed on this blog back in 2019. Recall that in Nubian Rights Forum, after a detailed analysis, the High Court struck down a part of NIIMS, and allowed the government to go ahead with the rest of the programme subject to the implementation of an effective data protection law. Therefore, as I had noted in that post:

The High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.

Notably, Kenya had enacted a data protection law in between the hearings and the judgment, but the High Court – in its verdict – was insistent that until the point of effective implementation, the continued rollout of NIIMS could not go on. And this was at the heart of the challenge in Katiba Institute: the applicant argued that NIIMS had been rolled out, in particular, without complying with Section 31 of the Kenyan Data Protection Act, which required a Data Impact Assessment as a pre-requisite to any data collection enterprise. In response, the state argued that the data collection in question had already been completed before the passage of the Data Protection Act, and that therefore – in accordance with the general principle that statutes are not meant to apply retrospectively – Section 31 was inapplicable to this case.

Engaging in impeccable constitutional statute analysis, Justice Jairus Ngaah noted that the Data Protection Act was “enacted against the backdrop of Article 31 of the Constitution.” Article 31 of the Constitution of Kenya 2010 guarantees the right to privacy. As the learned Justice noted, in its very preamble, the DPA stated that its purpose was to “give effect to Articles 31(c) and (d) of the Constitution.” Justice Ngaah then rightly observed, “The need to protect the constitutional right to privacy did not arise with the enactment of the Data Protection Act; the right accrued from the moment the Constitution was promulgated.”

The judgment of the High Court of Kenya provides an additional, fascinating implication that flows from the finding that a law is a constitutional statute.

It therefore followed that, on the balance, an interpretation that gave the DPA retrospective effect was to be preferred over one that did not. A contrary interpretation would mean that the state was entitled to collect data and infringe the right to privacy even in the absence of a legislative scheme. Or, in other words, having failed to implement its positive obligation to enact a constitutional statute to give effect to the right to privacy, the state could then take advantage of its own failure by nonetheless engaging in data collection enterprises anyway. This, naturally, could not be countenanced. And in any event, given that Article 31 had always existed, it followed that:

. . . there was always the duty on the part of the State to ensure that the Bill of Rights . . . is respected and protected. Section 31 of the Act does not impose any more obligation or duty on the state than that which the state, or the respondents . . . have hitherto had to bear.

On this basis, Justice Ngaah therefore held that NIIMS had been rolled out in breach of Section 31, and therefore, first, quashed the rollout itself, and secondly, issued a mandamus restraining the State from rolling it out again without first complying with Section 31.*

The judgment in Katiba Institute does not, of course, answer the number of questions that still remained to be resolved after the Nubian Rights Forum judgment, including some problematic aspects of the DPA itself. Those questions were not, however, before the court in this instance; on the other hand, the court’s finding that constitutional statutes apply retrospectively – and the reasons for that finding – make it a landmark judgment. Katiba Institute adds to the growing comparative discussion around constitutional statutes, Fourth Branch bodies, and “Guarantor Institutions”, and therefore ought to be keenly studied by students of comparative constitutional law.

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* One cannot, of course, help comparing this with the judgment of the Indian Supreme Court in the Aadhaar case, where despite the fact that Aadhaar data was collected for more than five years without any law whatsoever, it was retrospectively validated by the Supreme Court.