Somalia faces yet another severe drought that is threatening the country with famine if immediate action is not taken. The Gu and Dayr rainy seasons have been short, significantly reducing crop production and devastating livestock. Flash floods and locust infestations have contributed to crop destruction nationwide. Somalia’s Food Security and Nutrition Analysis Unit (FSNAU) has reported that seven million people are suffering from food insecurity with another 2.9 million in food crisis. UN agencies estimate the US$1.2 billion is needed to support the affected communities.

For the past three decades, haunting images of malnourished children and women have hit the airwaves to tug at the heartstrings of taxpayers in donor countries in an effort to increase giving. This is the sad reality; an emergency is declared, followed by a call for billions of dollars in fundraising.

Somalia is not alone in enduring this inhumane and degrading approach to supporting fragile low-income countries. Across the continent, images of starving African children have given birth to a global aid industry that is immoral and unjust. In these unprecedented times, as a global pandemic rages, with severe ramifications for economies throughout the world, many Africans have been awakened by the global outcry for justice and equity led by the Black Lives Matter movement. It has become a moral, political, and economic imperative to examine the impact of humanitarian interventions in the Global South that are often rooted in neo-colonialism and imperial dominance. This article focuses on the protracted humanitarian crisis in Somalia as a case study of failed government leadership and an aid system that has forgotten its mission.

Decades of climate crises and no relief in sight

The humanitarian crisis in Somalia has always been about water — either too much of it or not enough. The country’s economy is largely driven by the 60 per cent of the population that are agro-pastoralists and whose livelihoods have been wiped out by cyclical environmental calamities. Multiple droughts and famine have displaced three million people in the last five decades.

In 1973, “Daba-dheer” — the long-tailed drought — hit the northern region of the country, causing severe food shortages. Over 100,000 families were relocated to the Lower Shabelle and Juba regions by the military government of Siad Barre.

The humanitarian crisis in Somalia has always been about water — either too much of it or not enough.

In 1991-1992, as the civil war raged, famine conditions led the US government to send military airlifts of food to alleviate the suffering of millions. Despite these efforts, 300,000 people died during that period.

In 2011, the world woke up to images of millions of starving Somali children as the country was struck by yet another famine that took the lives of over 260,000 people, half of whom were children under five. In 2016-17, the country again went through another severe drought that reduced crop production and wiped out vital livestock.

Recent data from various UN agencies shows that up to 50 per cent of Somalia’s population, approximately 7.7 million people, are food insecure. This staggering statistic is a 30 per cent increase from last year. Although conflict and political instability are major contributors to food insecurity, droughts, floods, and environmental degradation have had a far greater and deadlier impact. As the climate emergency agenda now grabs our attention globally (and rightly so), it must be recalled that Somalia has endured climate disasters for over five decades.

Up to 50 per cent of Somalia’s population, approximately 7.7 million people, are food insecure.

And while in the past Somalia’s funding partners have responded to the humanitarian crises without addressing the root cause — climate change — we are now seeing a swift shift in language, where “climate solutions” are evoked to align with the billions committed at COP26 to support developing countries to adapt and mitigate climate change.

The humanitarian paradox

Somalia remains the world’s longest-running humanitarian mission, with billions of dollars spent annually, and there are some fundamental questions that must be raised as the climate crisis moves on to the global stage. Why have successive Somali governments been unable to tackle the most serious humanitarian crises? Why are we not realizing modest improvements but instead continue to see a dramatic increase in the humanitarian caseload as more aid is pumped into the system? How long can this state of emergency be sustained? Where is the return on investment for these dollars? Where is the accountability? What reforms are needed in the current structure to bring about real and tangible changes?

The water problem

While Somalis are nomadic agro-pastoralists accustomed to seasonal mobility, the extreme changes in the weather patterns have left most of the landmass uninhabitable. Rainy seasons have become extremely irregular and the rains minimal, while flash floods devastate towns along major rivers. The Gu rains have worsened conditions in human settlements and displaced tens of thousands in the critically dense urban settlements of Beledweyne and Jowhar along the Shabelle River. The problem is just as critical along the Jubba River where the poor floodwater infrastructure results in massive crop destruction.

Flooding and drought are not new to Somalia. These natural disasters have plagued the country for decades yet those in charge of Somalia, both the government and its UN partners, have long neglected addressing the central problem of Somalia’s humanitarian crises — water management.

The failure to manage water has devastated the country’s capacity for self-sufficiency. This negligence is partly responsible for the deaths of millions of Somalis from starvation and for the internal displacement of a fifth of the country’s population. Living conditions in the internally displaced persons (IDP) camps are by any standards some of the most abhorrent and inhumane. Mogadishu is the epicentre of this internal displacement of populations and hosts close to a million IDPs. Baidoa, Kismayo, and Bosaaso also host large displaced populations.

Failed government leadership

While natural disasters have caused a number of problems in Somalia, the real crisis is failed leadership across all levels of government. At the heart of the suffering of the Somali people is a defunct leadership. According to the World Bank, over 70 per cent of Somalis earn less than two dollars a day, with an unemployment rate of 80 per cent. Somalis under 35 years old make up two-thirds of the population, giving the country great potential to accelerate recovery and development with the right leadership in place.

The country’s abundant natural resources — including the longest coastline in Africa and large oil reserves — remain untapped due to inadequate human resource development and internal conflict. While the exploitation of these untapped natural resources could be a game changer, the country’s potential will undoubtedly be crushed by a conscienceless leadership.

Callous political elites have assembled for the sole purpose of chasing power and have shown very little regard for the majority whom they have condemned to a life of misery. Greed and corruption keep the country in a state of perpetual insecurity. Year after year, the country features at the top of global corruption indices. The looting of public assets and resources has been normalized and impunity reigns supreme. Those who have taken the most from the poor are rewarded by the system with ever-higher office.

Poor governance and weak institutions led by ego-driven male politicians are the source of the ongoing political, security, and humanitarian crises. The top leadership and their ministers are picked based on loyalty rather than competence. Appointing weakest-link personalities is the norm in order to curtail any criticism of the government. Lawmakers who are ill-equipped to manage the affairs of an extremely fragile post-conflict country are selected by a clan system that has proven to be inadequate and corrupt. Year after year, poorly resourced government institutions struggle to implement effective planning and coordination mechanisms and fail to meet the complex and serious challenges faced by the country. Inept leadership, mismanagement of key portfolios, and the lack of accountability within government also give humanitarian and development partners free reign to do as they see fit.

Callous political elites have assembled for the sole purpose of chasing power and have shown very little regard for the majority whom they have condemned to a life of misery.

In particular, the last five years have been politically tumultuous. From day one, the Federal Government of Somalia (FGS) made its priority to go after political foes, stifle free speech, and inhibit freedom of movement, using government and international instruments to attack anyone it deems a threat. Attacks on former presidents, prime ministers, and the use of firepower against peaceful protests have been the hallmark of the administration. The current political standoff is indicative of an out-of-touch leadership that will stop at nothing to rig elections. A highly contested election cycle lands the country in uncharted territory. Attempts to steal the election by any means necessary have ushered in a new dawn of political chaos not seen since the country’s Third Republic was formed in 2000. As millions face starvation and security threats from Al-Shabaab mount, FGS and regional leaders have derailed all efforts to hold timely and credible elections.

President Mohamed Abdullahi Farmajo, whose term ended on 8 February 2021, attempted a coup d’état on 27 December 2021, dramatically raising the political temperature in Mogadishu. In April, over 100,000 people fled the capital after government forces and leading opposition supporters clashed over the proposed law to extend the government’s mandate by two years — a violation of the country’s provisional constitution. These delays, clashes and uncertainties have led to the near-total collapse of government functions causing economic hardship and deep fissures across all sectors including within the security apparatus.

The current political standoff is indicative of an out-of-touch leadership that will stop at nothing to rig elections.

Political volatility has contributed to the weak response to the current drought. International donors are very apprehensive about disbursing aid to support drought mitigation efforts for fear that the funds will be used to finance political campaigns. The continued political instability has also prevented major donors from providing much-needed development aid. Those in the know understand that very little progress is being made, if any, and that the “igu sawir” — the photo-ops by government officials— are only for show, to give international partners and the public the impression that things are moving forward. The recent agreement by the National Consultative Council, consisting of Prime Minister Mohamed Hussein Roble and the heads of regional governments, says that elections must be completed by 25 February 2022. This is the third such agreement on elections, a last ditch effort to salvage the polls and prevent the country from spiralling into political violence.

The billion-dollar failure

In 2020, Somalia received US$2.0 billion both in humanitarian and development aid. The absence of a vested and capable government, the lack of accountable partnerships between humanitarian aid partners and the government, rampant corruption by all actors, and psychological dependence on aid have kept Somalis on life support. While increased funds are required to tackle the complex challenges across the country, it must be understood that money alone will not change the conditions on the ground.

The problem with the humanitarian and development aid cycle in Somalia is that assessments of threats are routinely conducted, analysed and published, but meaningful steps are rarely taken to pre-empt a crisis. Prevention and proactive measures are not defined early, clearly, or prioritized and resources tend to arrive after disasters have taken hold and families have lost their most basic resilience. Recurrent droughts and floods persist because partners do not invest in real solutions that would address their root causes. Very conveniently, money earmarked for emergencies can only be used for “aid” in the form of food and non-food items; it cannot be redirected to where it would have a more meaningful impact such as water management and infrastructure.

The goal cannot simply be “saving lives” without any measure of the quality of those lives that are saved. There seems to be no feedback loop in this cycle to critique both the continued investment in inadequate strategies, and the recurrence of deadly events that hinder economic development, improved governance, the rise of civil society, and the implementation of effective, long-term solutions. The majority of programmes are designed in Halane, a UN compound where all international actors reside, with much of the decision-making taking place in Nairobi, Geneva, or London without localized understanding or willingness to programme for impact. Development work does not work in theory alone — it has to work in practice.

The goal cannot simply be “saving lives” without any measure of the quality of those lives that are saved.

There are numerous UN agencies and hundreds of INGOs/NGOs operating throughout the country, all with different approaches and mandates that they carry out in a highly paternalistic, condescending, and out of touch, master-servant manner. Each agency has its own unique mission/vision (agenda) and the aid machinery and infrastructure are greased with dollars meant for Somalia’s most vulnerable. It is a system that prioritizes the sustainable livelihoods of its expats, who receive exorbitant compensation packages.

Aid system in need of urgent reform

The failure to adapt and the refusal to reform and transfer ownership to local communities has resulted in poor outcomes. Despite the worsening climate shocks that call for long-term sustainable solutions, UN agencies and international partners continue to push an emergency response narrative and often hide behind self-imposed policies to justify ad hoc short-term programmes as the pendulum swings between extremes for the Somali people.

“This is Somalia” is a common phrase among partners that means “anything goes”, and leads to programmes that set the bar at the lowest level possible. The effectiveness of projects is hardly considered; instead, project burn rates (how fast project budgets are spent) are used as a measure of progress. In the decades-long absence of a functional national and subnational government, many in the UN system have become accustomed to unfettered powers. Partners have operated without needing to work with the government. They are governed by organizational mandates with zero oversight or monitoring from the national or regional authorities. Both local and international NGOs are funded by donors directly through UN agencies to provide nearly all the basic services (shelter, water, health, education).

Until very recently, partners and donors have been reluctant to invest in government institutions to build capacities. This act is counterintuitive to the basic principle of supporting a state-building agenda. UN agencies and donors are often not able to directly assess, monitor, and evaluate the implementation of programmes and rely on self-reported methodologies from implementing agencies whose predetermined outcomes favour them. Consequently, this leads to results that are open to interpretation, that are unreliable and questionable at best.

The modus operandi in Somalia is to continue to rely on non-state actors to deliver essential services while the government at all levels fails to build true capacities, sound governmental systems, civil and economic infrastructure and financial models to resource programmes for its citizens. Rigid partner structures that operate parallel to the government at best downplay the role of the government and at worse stifle real institutional development.

Remedial actions

The humanitarian crisis across the country needs the immediate attention of the government and the international community before it becomes a full-blown famine. The Somali government must mobilize resources and capacities to prevent yet another humanitarian catastrophe.

As the election fever builds, federal government and the federal member states should redirect the millions allotted for vote-buying and election rigging to the hundreds of thousands of families that have lost the means to support themselves. Governments both national and local must begin people-centred campaigns to fundraise from Somalis at home and abroad. It is fundamental that international partners and the aid infrastructure make room for swift reforms that shift programming power to local actors and governments.

Investment in water infrastructure to support adequate water resources is the only way out of Somalia’s humanitarian conundrum. Given that nearly all of the rural livelihoods are agro-pastoral — investment in robust water infrastructure is critically needed to build resilient, sustainable communities that no longer need to rely on water trucks for the supply of water.  

Empowering affected communities to apply locally developed solutions should be prioritized. Top-down plans with heavy overheads must be avoided. Direct support to communities using transparent money transfer systems is needed to provide immediate relief to the communities for whom agro-pastoralism is a traditional way of life. Developing and investing in low-hanging fruit such as the blue economy and livestock, the backbone of Somalia’s fragile economy, is urgently needed.

New conversations must be had around what it means to assist those in dire need with the goal of building resilient and self-sufficient communities. The historical humanitarian systems of shock and response have systematically failed Somalia. Such approaches keep Somalia mired in a state of despair, unable to make ends meet. Reform of the aid system led by a strong capable government that understands the complexity and the expertise required to tackle many of the existential threats the country faces is needed. This will reinforce mutual accountability between the government and the international community.

Developing and investing in low-hanging fruit such as the blue economy and livestock, the backbone of Somalia’s fragile economy, is urgently needed.

It is about time humanitarian actors in Somalia asked themselves where the value-added for their investments is to be found and how they can restructure the current approach to bring about a significant impact to the lives of marginalized Somalis.

Government leadership must prioritize saving millions from starvation, end the political standoff, and hold timely and credible elections. The international community and those who bankroll Somalia’s political elite have a moral and practical obligation to ensure that election stagnation ends and that credible election outcomes are obtained. By failing to do so, Somalia’s partners will have contributed to the imminent demise of the Third Republic and to allowing the famine that now threatens the country to take hold.

When the Bill and Melinda Gates Foundation and the Rockefeller Foundation launched the Alliance for a Green Revolution in Africa (AGRA) in 2006, it was billed as a game-changer in addressing the continent’s hunger crisis. Africa would get the sort of productivity revolution that could reduce hunger, improve livelihoods and create jobs. “Sustainable intensification” was the goal – getting more food from the same land, the “green” in the name being in opposition to the “red revolutions” that were sweeping through Asia in the 1960s.

While at the outset this ambitious project appeared to be the sort of aid that could transform Africa’s agricultural sector and feed its growing population, AGRA is now hard-pressed to demonstrate its achievements after 15 years and one billion dollars in funding.

The criticisms against AGRA emanate from diverse quarters and are gaining momentum. The Alliance for Food Sovereignty in Africa (AFSA), the continent’s largest civil society network, comprising 35 groups that involve some 200 million food producers, has embarked on a robust campaign, painting AGRA as a misguided effort that has fallen short in bringing any sort of productivity revolution in its 13 focus countries. Faith leaders in Southern Africa issued their own challenge to the Gates Foundation. Neither has received a reply from AGRA’s major donors, which include the two US foundations and aid agencies from the United States, United Kingdom, Germany and Canada.

Those challenges came to a head on 2 September 2021 at a press conference prior to the opening of AGRA’s annual Green Revolution Forum when civil society leaders called for donors to stop funding AGRA. “What African farmers need is support to find communal solutions that increase climate resilience, rather than top-down profit-driven industrial-scale farming systems,” said Francesca de Gasparis, the executive director of the Southern African Faith Communities’ Environment Institute (SAFCEI).

AFSA released an open letter signed by its 35 member networks and 176 international organizations from 40 countries. “AGRA has unequivocally failed in its mission to increase productivity and incomes and reduce food insecurity, and has in fact harmed broader efforts to support African farmers,” reads the strongly worded letter.

AGRA Vice President for Innovation Aggie Asiimwe Konde disagrees. “We focus on informing farmers, enable access to technology and increase production and income to farmers. We have had a resounding success in that we have seen farmers doubling their income, diversification of crops, and integration into the market.”

Searching for evidence of Green Revolution success 

AGRA was founded in 2006 with ambitious goals: To double productivity and incomes for 30 million smallholder farming households by 2020 while reducing food insecurity by 50 per cent. That deadline has now passed, and independent research suggests that AGRA’s rosy promises are far from being realised.

In fact, AGRA is unable to provide evidence of that progress, says Timothy A. Wise, a senior advisor on the Future of Food at the Institute for Agriculture and Trade Policy and senior research fellow at Tufts University’s Global Development and Environment Institute. Wise undertook an impact assessment in 2020 and found no comprehensive evaluations of AGRA’s progress in meeting its goals by AGRA itself or by its major donors. After AGRA refused to accede to his request for data on its beneficiaries, Wise took a broader and more revealing approach.

“I chose to examine data from AGRA’s 13 priority countries to see if there were indications that a productivity revolution was taking place with rising incomes and improved food security. I found little evidence of significant productivity improvements,” notes Wise on his research. As he explained in a recent article for The Conversation, “By any estimate, 30 million smallholder farming households represent a significant majority of farmers in the 13 focus countries. If the alliance had doubled yields and incomes and halved food insecurity for that many farming households, that would indeed have shown up in the data.”

It did not. For a basket of staple crops, Wise found that productivity increased just 18 per cent over 12 years. That is nowhere near the goal of doubling productivity, which would be a 100 per cent increase. More tellingly, it is barely higher than the rate of productivity growth before AGRA was launched.

And neither did incomes nor food security improve significantly. According to the latest United Nations estimates, the number of severely “undernourished” people in AGRA’s 13 focus countries has increased by 30 per cent since 2006, a far cry from AGRA’s promise to cut food insecurity by half.

“After 15 years and one billion dollars in outside funding, AGRA has failed to catalyse a productivity revolution in African agriculture. Farmers’ yields have not grown significantly,” Wise stated at the September 2 press conference. “It is time for donors to listen to African farmers and community leaders.”

Wise pointed out that his critique goes well beyond AGRA, implicating the entire Green Revolution approach to which African governments devote significant resources, including an estimated one billion dollars per year in subsidies for seeds, fertilizers and other inputs. “Our research assessed the progress of the Green Revolution project as a whole. This should indeed have produced measurable results in 15 years given the billions of dollars invested in the project. It has not,” he wrote in The Conversation.

“It is time for donors to listen to African farmers and community leaders.”

African and German civil society organisations produced a report drawing on Wise’s research. Titled False Promises, the report calls on countries to abandon AGRA and its Green Revolution and instead support initiatives that boost small-scale food producers, particularly women and the youth, to develop climate-resilient and environment-friendly farming practices.

A lot of money went into supporting maize production, and total production went up 87 per cent, according to the report. But most of that increase came from farmers increasing the land under maize cultivation, encouraged by the subsidies. Yields increased only 29 per cent over 12 years, but land under maize production went up nearly 50 per cent, hardly a sustainable way of farming.

The bias towards maize at the expense of other equally essential food crops such as millet, which are drought-tolerant and more nutritious, has also been cited as one of the downsides of AGRA’s interventions. Millet production had declined by a quarter, says the report.

Rising hunger across the continent

The decline in crop variety can result in a drop in diet diversity, which may be contributing to the alarming rise in hunger. According to the UN Food and Agriculture Organization’s annual hunger report published on 12 July 2021, the world experienced an almost unprecedented increase in severe hunger from 2019 to 2020. The agency’s annual estimate of “undernourishment” showed an increase of up to 25 per cent over the 2019 levels, to between 720 and 811 million people.

In sub-Saharan Africa, about 44 million more people faced severe malnutrition in 2020, with 30 per cent of the continent’s population struggling to feed their families. Some 66 per cent of the population faced “moderate or severe food insecurity” in 2020, says the FAO, up from 51 per cent in 2014, an increase of 244 million food-insecure people in just six years.

The decline in crop variety can result in a drop in diet diversity, which may be contributing to the alarming rise in hunger.

Wise points out that since AGRA was founded in 2006, hunger in Sub-Saharan Africa has not gone down by half but has increased nearly 50 per cent. “The Green Revolution is taking Africa in precisely the wrong direction,” he says.

AGRA’s defence 

AGRA has itself faulted Wise’s survey, conducted under the aegis of Tuft University’s Global Development and Environment Institute, saying the research failed to meet “basic academic and professional standards of peer review. . .” Andrew Cox, chief of staff and strategy at AGRA, is quoted terming the research as “not professional and ethical.” But Tufts University administrators have defended Wise’s methods.

AGRA’s Konde said in an interview that the organization was successful. “We targeted 9.5 million farmers and now we have 10 million farmers with minimum technology.” She then went on to fault African governments for not doing their part. “Unfortunately, only Ghana, Rwanda, and Nigeria have implemented the 10 percent of their budget to the agricultural sector as per the 2003 Maputo Declaration. The rest of Africa has only committed 2 percent of their budget to agriculture.”

Konde took issue with the demands of AGRA’s critics. “Taking into account the uncertainties brought about by climate change and the COVID pandemic, it would be unfortunate to call for the disbandment of AGRA at this point in time. I wonder which farmers they are representing. AGRA believes in increasing choices to farmers, and promotes ways how more farmers can have access to technology and apply them.”

She went on: “We have been carrying out value for money assessments and every $1 we have spent has produced close to $10. The questions we should be asking are did the African farmers get access to information and technology?”

AGRA officials say that the agency’s budget and contributions are too small to have its impact reflected in national-level data. “The data could not possibly be extrapolated onto the kinds of regional/sub-regional work that we do,” AGRA’s Cox wrote via email to Stacy Malkan of U.S. Right to Know. Critics point out that if AGRA reached the 30 million farmers it set out to reach and transformed their practices, such impacts would be evident. Still, AGRA claims that its recent Annual Report provides evidence of yield increases, income gains and improved food security.

Wise reviewed the new documents and was critical of the data, saying it was hastily constructed, poorly documented, and highlighted improvements in just a few crops and countries over a very short period. Other critics also consider AGRA’s failure to document its impacts over its full 15 years of existence as telling.

Muketoi Wamunyima, country coordinator for PELUM Zambia, which works to improve the livelihoods of small-scale farmers by fostering ecological land use management, co-signed a letter to AGRA last year asking for evidence of its impacts. They received a long response from AGRA’s Andrew Cox, which they dismissed as non-evidence. “As civil society organisations working in Zambia, we have challenged AGRA’s model and engaged with our local government to highlight the fact that AGRA’s approach does not respond to the needs of the small-scale food producers,” Wamunyima said.

Rwanda is widely touted as a star performer in AGRA’s plan, with a quadrupling of maize production since 2006. But according to the False Promises report, the Rwandan “miracle” showed weak overall productivity improvements across staple crops in the country as farmers abandoned the cultivation of more nutritious local crops for maize. And according to the UN’s latest hunger estimates, the number of undernourished people in Rwanda has increased by 41 per cent since the advent of AGRA.

Mariam Mayet, executive director of the African Centre for Biodiversity, said, “For years we have documented the efforts to spread the Green Revolution in Africa, and the dead-ends it will lead to: declining soil health, loss of agricultural biodiversity, loss of farmer sovereignty, and locking of African farmers into a system that is not designed for their benefit, but for the profits of mostly Northern multinational corporations.”

Africa is not a monoculture

AGRA’s Konde dismissed AFSA’s criticisms. “We invited those that have been complaining to the AGRF summit so that we can exchange views but they did not come.”

AFSA’s General Coordinator, Million Belay, confirmed that he was invited but only at the last minute. Belay explained why he declined the invitation in an opinion piece for Al Jazeera.

“We at AFSA disagree with the Green Revolution’s approach on a basic level. The strategy has indebted our farmers, ruined our environment, harmed our health and undermined our seeds and culture. We object to the flurry of initiatives to amend our seed laws, biosafety standards, and institutionalise fertiliser rules and regulations that seek to entrench Africa’s overreliance on corporate agriculture.”

He took particular issue with AGRA’s claim that the forum would speak for Africa in a “single coordinated African voice.”

“Africa is not a monoculture and we do not want it to become one. Africa does not speak with a single voice, certainly not that of the Green Revolution Forum. Its diversity of voices is as rich as the diversity of the continent’s landscapes, cultures and food traditions. Those voices want to sing, not in monotones but in harmony, with one another, with nature, and with government leaders and donors who value that diversity and support it.”

According to the UN’s latest hunger estimates, the number of undernourished people in Rwanda has increased by 41 per cent since the advent of AGRA.

Anne Maina, the Coordinator of the Biodiversity and Biosafety Association of Kenya (BIBA-K), concurs. She believes that sustainably improving nutrition, increasing production, enhancing biodiversity, raising resilience and boosting incomes will come about with the participation of all – smallholder farmers, pastoralists, fisher folk, hunter/gatherers and indigenous peoples – in their diversity and not through expensive, high-input monocultures.

And while AGRA’s technocrats have in the past been more combative in their response to criticism, its board chairman, Ethiopia’s former Prime Minister Hailemariam Dessalegn, sounded conciliatory in an op-ed published by AfricanArguments.com.

“The solutions for transforming Africa’s food systems [have] come down to one approach over another. Such binary debates are unhelpful and at times counterproductive. Building more resilient food systems on the continent will require a mix of approaches from agroecology to the latest crop and soil science,” wrote Mr Dessalegn.

Whatever the case may be, the need to resolve Africa’s hunger crisis in a sustainable way is an urgent one.

As with Day 2, the final day of the proceedings in the BBI Case before the Supreme Court of Kenya can be divided into three phases (watch here). In some ways, it was a microcosm of the entire hearing – and indeed, of the entire BBI case so far: in Phase One, the Respondents finished their arguments. In Phase Two, the bench put a series of questions to the Respondents. In Phase Three, the Appellants made their Rejoinder. This, then, concluded the hearing (read analysis of Day 1 and Day 2 here), and judgment was reserved.

Phase One: The Respondent’s Arguments

Carolene Kituku advanced detailed submissions on the IEBC/Quorum issue, arguing – in particular – that when a judgment struck down a legal provision as unconstitutional, the default position was that the provisions so struck down were deemed to have been always unconstitutional, right from the moment of their enactment (and not from the date of the judgment). Now if these amended provisions were void ab initio and never came into force, it would follow that the original, pre-amended provisions were never actually replaced, and continued to hold the field in the interim period. Thus, when in the Katiba Insitute case it was held that amended paragraphs 5 and 7 of the Schedule to the IEBC Act were unconstitutional, it would follow that the pre-amended provisions for quorum – which the IEBC was in breach of – would continue to apply during the intervening period – and indeed – as Elisha Ongoya argued later in the day – would be applicable until either the declaration of unconstitutionality was set aside, or another, legally valid amendment, was enacted. Carolene Kituku also advanced submissions on why the popular initiative process failed to pass the threshold of public participation (insufficient time, the draft bill only on the internet, PDFs, and so on).

In his submissions, Elisha Ongoya pointed out that at this stage, the BBI case had received close attention from a dozen judges combined (five at the High Court and seven at the Court of Appeal), and their concurrent findings should, therefore, be treated with a modicum of deference; in particular, and in any event, factual findings (such as insufficient public participation) should not be disturbed. Following up on this argument, Elisha Ongoya argued that the High Court’s determination of the basic structure doctrine – and the four-step-sequential process – was rooted in a detailed analysis of the text, structure, and history of the 2010 Kenyan Constitution. Ongoya argued that the onus was on the Appellants to demonstrate, specifically, which of these considerations was wrong or irrelevant; however, they had not done so, choosing instead to attack the High Court in general terms, for having converted itself into a philosophical tribunal. In particular, on Article 89 (delimitation of constituencies), the High Court produced six specific reasons, none of which had been disturbed by the Appellants. Moving through the abstract and the particular (as he had in the Court of Appeal), he illustrated the very specific political and historical concerns around constituency delimitation that had necessitated the High Court to evolve the basic structure doctrine. He was followed up on this by Evans Ogada, who argued that by prescribing a procedure and a time limit for the IEBC to carve out these new constituencies, the BBI Bill fatally compromised the independence of this fourth-branch institution. The line-up on the Respondents’ side was finally completed by Dr John Khaminwa, who summed up the arguments in favour of the basic structure doctrine.

Phase Two: The Judges’ Questions

In my opinion, the brief half an hour around midday today was perhaps the most important part of the hearing; having heard the judges’ questions to the Appellants the day before, their questions to the Respondents perhaps indicated in the clearest manner what their concerns were, and what the issues were upon which the decision would finally turn.

On the basic structure, Ouku J asked whether the High Court and Court of Appeal had provided sufficient guidance to the citizens of Kenya for determining what the basic structure was; and further, was the four-step-sequential process to be found within the Constitution, or coming from outside. Wanjala J asked about the distinction between “amendment” and “alteration”: what meaning was to be given to the “disappearance” of the word “alteration” from the constitution-making process, and how might that word be revived, constitutionally. He also asked about the where the juridical form of the constituent power was located. Koome CJ wondered if Kesavananda Bharati had attained the standard of a municipal decision that could be taken to lay down “a general principle of international law” – and whether, indeed, it had informed the framing of Kenya’s own Constitution, in particular Articles 255 – 257. Sticking with the theme, Lenaola J asked where in Kesavananda Bharati it was said that the Indian Constitution has any “eternity clauses”. He then asked what – in my view – was the most important question of the hearing (I will examine the reasons for this below): given that Article 255(1) specified which entrenched matters had to go to a referendum for amendment Article 257(1), what were those matters outside Article 255(1) that might need to go to the primary constituent power for amendment?

On the IEBC and quorum, Ouku J asked what would happen to those acts that the IEBC had done while it was improperly constituted. Njoki J asked if the quorum requirements could be read into the Constitution – and if not, why did the Constitution provide a “minimum” and a “maximum” number for the composition of commissions. Wanjala J wanted to know what would happen if Parliament made a law for a three-member commission, and fixed quorum on that basis. Similarly, Lenaola J asked what the meaning was of Article 250(1) setting the minimum number at three (as no constitutional provision ought to be considered superfluous), and what – if any – acts the Commission could undertake with three members.

On public participation, Njoki J asked what specific steps the IEBC could have taken to reach ordinary Kenyans. And Koome CJ expressed a concern similar to the one she had expressed during Appellants’ arguments: was there something in the Constitution that could be used to determine the standards for public participation, even in the absence of express statutory framework?

Discursion: Thinking through Lenaola J’s Question

Before continuing with this post, I want to briefly think through Lenaola J’s question, as I believe it is fundamental to the case. The point is basically this: as the Appellants argued repeatedly, the Kenyan Constitution has a two-track process for amendment. The regular Parliamentary route on the one hand (Article 256), and then, for the ten entrenched subjects under Article 255(1), the public participation + referendum route under Article 257. Appellants argued that this two-track process was doing the same work that the basic structure doctrine was otherwise meant to do: it was identifying the basic features of the Kenyan Constitution, and then prescribing a more onerous, people-involved way of amending them, which approximated the primary constituent power.

This being the case, the obvious challenge for the basic structure doctrine is this: if you say that the basic structure of the Kenyan Constitution is the ten subjects under Article 255(1) (the supremacy of the Constitution, the territory of Kenya, the sovereignty of the People, etc.), then an immediate problem arises – given that there is a specific and express way to amend these subjects (Article 257), how then can the four-step process be simply superimposed upon this scheme? If, on the other hand, you say that the basic structure of the Kenyan Constitution is not in these ten subjects, then a whole host of other problems arise. What, for example, is even more fundamental or basic than sovereignty, or the bill of rights, or constitutional supremacy, that would need an even higher threshold of amendment than what is set out in Article 257? And how would you identify what those even more fundamental themes are?

So how does one answer Lenaola J’s question? I think there are two sequential (sorry!) responses. The first is to accept that the basic structure is (largely) located within Article 255(1) of the Kenyan Constitution (as the Court of Appeal, in fact, did) and not outside of it. However, here is the key: not every amendment to an Article 255(1) subject will trigger the basic structure doctrine and the four-step-sequential process. It is important to note here that the OG basic structure case – Kesavananda Bharati – never actually said that you cannot amend the basic structure. What it said – and this is crucial – is that you cannot damage or destroy the basic structure. And the distinction is significant: for example, amendments to Article 16 of the Indian Constitution setting out the modalities for affirmative action have passed the judicial scrutiny, even though they “amend” the Constitution’s equality code, which is unambiguously part of the basic structure.

So, even with respect to the subjects set out under Article 255(1), not every amendment will necessarily trigger basic structure scrutiny. Consider, for example, 255(1)(e) – the Bill of Rights. Article 24 of the Kenyan Constitution sets out the conditions for limiting a particular fundamental right. It follows familiar language – the nature of the right, the purpose of the limitation, etc. Now, suppose you wanted to amend Article 24 and make the language clearer – for example, incorporate into the Article, in express terms, the global proportionality standard that is now followed in many jurisdictions across the world. This would be an amendment to an Article 255(1) subject, and therefore trigger Article 257. However, it would not be damaging or destroying the basic structure in a manner that would trigger the primary constituent power, and the four-step-sequential process. Indeed, you can think of many ways in which the subjects set out under Article 255(1) could be amended (i.e., making language more precise, modifications to standards, adding standards, etc.) that would not trigger what we generally think of as basic structure scrutiny. On the other hand, if you were to repeal Article 24 altogether, and replace it with a provision such as: “All rights in this Part may be limited whenever the government deems fit in the public interest” – now that would be a basic structure violation that would go beyond Article 257 and trigger the four-step-sequential process.

This point is crucial, because it really does go to the heart of the case – the difference between amendment and repeal – and why the existence of the two-track process (as the Appellants argued) does not preclude the operation of the basic structure doctrine. This is because at the end of the day, the two-track process is concerned with amendment – whether of non-entrenched provisions (Article 256 route) or entrenched provisions (Article 255(1) + 257 route). The two-track process does not contemplate wholesale repeal of the Constitution (express or implied). It is for those situations that the primary constituent power and the four-step-sequential process is needed. Thus, there is nothing absurd about saying that one does not need to go looking for the basic structure outside of Article 255(1): the same sub-clauses under Article 255(1) might trigger either Article 257 or the four-step-sequential process, depending upon the nature of the change in the Constitution sought to be effected, and whether it genuinely amounts to an amendment, or whether it is a repeal. In other words, the key is not Article 255(1), but the nature of the change.

My second, brief point is that at the same time, one might hesitate to definitively say that Article 255(1) necessarily exhausts the basic structure. Arguments were made before the High Court and the Court of Appeal, for example, showing how the questions of boundary delimitation – given Kenya’s context and history – needed to be considered as basic structure questions (arguably this would come within sub-clause (g), but bracketing that for the moment). One can also think of a case such as Indira Nehru Gandhi v Raj Narain, for example, where a constitutional amendment that simply precluded a challenge to the Prime Minister’s election was invalidated by the Court. Again, this would arguably fall within 255(1)(d) (the rule of law) and (g) (independent of the judiciary), but it is possible to differ on that. In any event, I do not think too much turns on this point: I think it is also perfectly reasonable to finally and conclusively say as follows:

. . . the basic structure – as the Appellants correctly argue – is found in Article 255(1). But not every amendment to Article 255(1) triggers the application of the basic structure doctrine, the primary constituent power, and the four-step-sequential process. For the primary constituent power to be triggered, the amendment must be of such nature, extent, and consequence, that it amounts to an implied repeal of the Constitution or its basic structure. Thus, if you were to make a venn diagram, there would be a larger circle of amendments to Article 255(1) subjects, and a smaller circle – contained within it – of amendments that triggered the basic structure doctrine.

With respect to the judge’s questions, Nelson Havi argued that both the High Court and the Court of Appeal had correctly stated that to identify the basic structure, you would have to look at the context and history of each provision. For example, in order to understand why the independence of the judiciary was part of the basic structure, you would have to look at how the colonial judiciary was a department of the executive, and how and why it migrated from the State department to independent status. On the four-step process, Havi argued that it was not found within the Constitution, but a means of preventing constitutional death: it was found in the process that made the 2010 Constitution. Indeed, it had to be outside the Constitution because the primary constituent power was, by definition, primordial. On the distinction between “alter” and “amend”, Havi submitted that the reason for the change was precisely the flaws that had been discovered with the Independence Constitution providing for the means of its own “alteration”.

Esther Ang’awa then argued that quorum could not be read into the Constitution, as the Commission had to operate on the basis of both the Constitution and legislation (the two engines). This argument was supplemented by other counsel, who pointed out that “composition” was just for membership, whereas quorum was to transact business – thus, the two concepts remained fundamentally distinct.

On public participation, Carolene Kituku provided various ways in which it could have been secured (e.g., use of other media of communication, such as radio). She also made an interesting burden of proof argument. Flipping the question around – i.e., what evidence was there that public participation was insufficient – she asked, instead, what evidence had been produced by State organs to show that public participation had taken place. I believe that this question is correctly framed: because if public participation is a guaranteed right under the Kenyan Constitution, and if it is easier for the State to prove the affirmative (i.e., that public participation had been carried out), then to me it seems to follow that the initial evidentiary burden lies upon the State: until the State has produced satisfactory evidence that the public participation requirement has been fulfilled, the presumption ought to be that it has not (this flows from the fact that it is a right).

Finally, Topua Lesinko made the point that the judgments of the High Court and the Court of Appeal were different in crucial respects from Kesavananda: to continue with the running theme of the proceedings, while in Kesavananda the Court permanently shut out certain amendments from being made altogether, the High Court and Court of Appeal surrendered them to the primary constituent power without shutting them out. In my view, another way of putting it would be that Kesavananda puts substantive limits on constitutional amendments based on their content, while the High Court and the Court of Appeal placed procedural limits based on deepening public participation, so that the People could adequately determine when the content could be allowed to go through and when not.

Third Phase

The last segment of the hearing saw the rejoinder by the Appellants. I will focus here on the basic structure doctrine, as the rest of the arguments were addressed, but only briefly, and with arguments similar to those that have already been discussed previously.

On the subject of the basic structure, in closing, the Attorney-General’s legal team laid out the core of their case: that the basic structure constituted the foundational provisions of the Constitution. These were entrenched, and were to be found in Article 255(1). At the same time, the basic structure doctrine was an extra-constitutional doctrine that substantively limited the power of amendment. Thus, the Kenyan Constitution had a basic structure, but did not contemplate the basic structure doctrine. The Kenyan Constitution’s basic structure was protected not by the basic structure doctrine, but by the onerous amendment provisions under Articles 255 and 257.

The reason why the basic structure was located in Article 255(1) was to be found in the history of the constitution-making process. The People’s concern during the framing – as captured in the Constitution of Kenya Review Commission report – was how quickly and how fundamentally the Independence Constitution was amended. The CKRC then identified the People’s solution: a distinction between entrenched and non-entrenched provisions, with a stringent procedure being put into place for the amendment of the latter. This would safeguard the core of the Constitution. And that core was what was provided under Article 255(1).

The AG’s team argued that the basic structure doctrine was being deployed to obstruct the sovereign (i.e., the People’s) right to amend the Constitution under Article 257. In this context, there was no real difference between “amendment” and “alteration.” The contextual meaning of the word “amend” simply flowed from the ability of the sovereign to make or unmake anything, and that was the manner in which it was used in Chapter XVI of the Kenyan Constitution.

George Oraro SC then took up the baton. Speaking about the four sequential steps, he argued that what the High Court and Court of Appeal judges were trying to do was to revert to the original ratification procedure as a basis for legitimising the basic structure doctrine. But – according to Oraro SC, as I understood him – this, ultimately, was a futile endeavour: the power of making a Constitution was primordial and belonged to the People. By definition, it could not be regulated by a Court. The People had the right of reserving to themselves how they would use this power (e.g., Article 1(1)) – but even that could not stop them from coming up with a new method of creating or recreating a Constitution.

However, for now, the People had set out the route that they wanted to take, and that route was through Articles 255 and 257. The role of the Court, thus, was to ensure that those strict provisions for exercising the primary constituent power were very strictly followed: for example, sufficient participation, sufficient consultation. In essence, the role of the Court was to ensure that the right of the People to exercise their primary constituent power was protected. Oraro SC closed by stating that ultimately, it was the citizens – who were registered voters – who were holders of the primary constituent power, and it was this primary power that had been textualised under Article 257. This – thus – precluded the application of the basic structure doctrine.

As a closing remark of my own, I believe that this is as clear a statement of the case as it is possible to make. However, I am not entirely convinced that it responds to the core point: namely, that while the People indeed chose to constitutionalise the amendment to entrenched provisions under Article 257, that does not necessarily imply that said power carried with it the power of repeal or abrogation. Oraro SC’s argument assumes a conflation of that distinction, but in my respectful view, does not demonstrate it. It does not respond (in my view) to the independent arguments making that distinction, and showing why the primary constituent power is different from the power of amendment, and why – therefore – it must lie outside the Constitution.

Conclusion

The three days’ hearing before the Supreme Court saw arguments touch upon a wide range of issues crucial to both Kenyan constitutional law, and to comparative constitutional law in general. What is at stake (in my view) is one of the most unique contributions to global jurisprudence in recent times: a basic structure doctrine that is not substantive but procedural, that does not impose a judicial veto but seeks a deeper form of public participation to amend the Constitution, and which provides to direct deliberative democracy an integral role in processes of significant constitutional change. We will now wait to see the final fate of this case.

As Solicitor General Kennedy Ogeto said at the very end of the hearing, the judgment of the Court would be with Kenya for posterity. To that I will only add: it is also the kind of judgment that will echo in the annals of global constitutional law and thought for generations to come.