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The BBI Case at the Supreme Court of Kenya – Day 2

11 min read.

By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion.

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The BBI Case at the Supreme Court of Kenya – Day 2

Day 2 of the BBI hearing (read analysis of Day 1 here) at the Kenyan Supreme Court (watch here) can be divided into three phrases. In the first phase, counsel supporting the appellants (i.e., broadly, the pro-BBI side) finished their submissions. In the second phase, the bench posed a series of questions to the pro-BBI side. In the third phase, the anti-BBI side (or, the Respondents) commenced its submissions. This typology is slightly reductive: for example, Mr. Isaac Aluochier, who argued in the first session, was against the basic structure doctrine, but was also against the BBI (for other reasons). Mr. Morara Omoke, who argued in the third session, was technically an appellant, as he had filed a cross-appeal on the question of single and multiple referendum questions. However, in the interests of sanity, this typology will have to do for the purposes of this post.

First Phase

The President’s legal team opened Day 2. SC Waveru Gatonye addressed the Court on the issue of Presidential immunity. Like his predecessors the day before, he focused on how the Kenyan Constitution contains inbuilt accountability mechanisms that are consistent with wide-ranging Presidential immunity from civil proceedings during the term of office. For example, wronged parties could sue the Attorney-General, and impeachment proceedings could always be launched. A bar upon suing the President during their term of office, therefore (for things done in the operation of their office) would not lead to impunity. Continuing on the theme of Presidential powers, SC Kimani Kiragu then argued on Presidential involvement in the Popular Initiative under Article 257: he argued that the sovereign People of Kenya had delegated a part of their authority to H.E. the President. Once that had been done, there could be no half-measures: the President must be deemed to possess all sovereign powers that had been delegated – including the power to initiate constitutional reform – unless there was an express limitation in the Constitution. In the context of Article 257, there was no such limitation. Readers will take careful note of this argument; as we shall see, it will become particularly important when contrasted with the Respondents’ submissions on this point.

Mr. Isaac Aluochier took the podium, to argue against both the basic structure doctrine and Presidential immunity. I want to flag one particular argument, as it was made before the Court of Appeal as well: that the basic structure doctrine is precluded by Article 1 of the 2010 Constitution of Kenya, which states that “all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.” Mr. Aluochier argued that Article 1 is express authority for the proposition that there can be no “extra-constitutional defence mechanism” for the Constitution, such as the basic structure doctrine. However, as I have tried to show before, this argument proves too much: at all times, the phrase “this Constitution” presumes the existence of the Constitution under advisement, that is, the 2010 Constitution. However, the whole point of the basic structure doctrine is to prevent or regulate amendments that are of such a nature that “this Constitution” will no longer be “this Constitution”, as its fundamental identity has been altered. Thus, if the basic structure doctrine is otherwise correct, Article 1 does not refute it: when you say that sovereign power will be exercised in accordance with this Constitution, it already excludes situations where this Constitution is no longer this Constitution – which is the situation that the basic structure doctrine is meant to cover. To be clear: this is not an affirmative argument in support of the basic structure doctrine. It is, however, a defensive argument that demonstrates that whatever other arguments there might be against the doctrine, Article 1(1) cannot be pressed into service here.

Second Phase

In an interesting turn of events, the bench did not pose any questions to counsel while they were arguing; instead, in the second phase, each of the judges took turns in posing a series of questions. Counsel for the pro-BBI side were then granted three minutes each to respond to the questions most relevant to their brief.

Let us group the questions thematically. On the subject of the basic structure, Lenaola J asked what it meant to say that sovereignty was “extra-constitutional”. Njoki J wanted to know if the four-step sequential process was found anywhere in the Constitution. Smokin Wanjala J asked why the appellants located the Kenyan Constitution’s basic structure within Article 255 – and why believed that the basic structure doctrine was inapplicable in Kenya. On the popular initiative, Lenaola J asked if there was any global precedent for a President – or a President-like figure – being involved in something like a popular initiative. Njoki J asked if the President was authorised to move under a popular initiative in order to fulfil his constitutional functions (readers will note this question, as an interesting answer was provided during Respondents’ submissions). Smokin Wanjala J enquired why it was being argued that the popular initiative kicked in only after the collection of a million signatures – and not before. Koome CJ also asked about the initiation of the popular initiative, and whether the requirement of public participation required a legal framework or rules of procedure, to be instantiated. Finally, on the subject of distinct and separate referendum questions, Ouku J made the important point that while four judges in the Court of Appeal seemed to endorse the “thematic unity” approach to referendum questions (i.e., referendum questions within a single theme could be grouped together, but not from different themes), the final disposition of the Court of Appeal reflected the opposite holding. Lenaola J asked if it was correct to say that the question was not yet ripe, as the IEBC was yet to decide how to frame the referendum questions; and Njoki J wanted to know if – given that there was nothing express in the Constitution – whether the thematic approach implied inserting into the Constitution something that was not there.

Responses to these questions were along familiar and expected lines: counsel reiterated – or further explained – the positions they had taken, including the argument that the basic structure doctrine applies only when there is a parliamentary monopoly over amendments, that the Kenyan Constitution’s basic structure was identified in Article 255 and provision for its amendment set out in Article 257, that Kesavananda Bharati is inapplicable to Kenya, that the scope of public participation is expressly set out in Article 257, and varies with the stage of the popular initiative, that the referendum question issue was unripe. Most of these points were addressed in yesterday’s blog post, and I will not repeat the arguments here.

Let me, however, flag two interesting responses. One response came on the question of global precedent: apparently, in Lichtenstein, the Prince had proposed a series of constitutional changes through a popular initiative (including the power to appoint judges), which were eventually passed by a referendum. Now, it was undoubtedly fascinating to hear – for the first time – some comparative constitutional law from Lichtenstein! I do wonder about the appropriateness of the example, though: a Prince taking control of the judiciary through constitutional amendment doesn’t exactly feel like a particularly inspiring instance of the use of the popular initiative. Out of curiosity, I did some digging after the hearing: it appears that the Venice Commission strongly criticised many of the constitutional reform proposals for their anti-democratic character, for the reason that they would result in excessive centralisation of power with the monarch. If anything, therefore, the Lichtenstein example seems to show that letting a powerful head of State bring about constitutional reform through popular initiative is more a recipe for abuse than anything else!

The second response was on the basic structure. Perhaps for the first time, counsel bit the bullet, and told the Court that if, tomorrow, there was a constitutional amendment seeking to curtail judicial review itself, the Court could participate in the public discussion around it – but would have no power to invoke the basic structure to invalidate the amendment. Putting the point in such stark terms – i.e., telling the Court that it had no legal power to protect even its own existence from constitutional amendment under Article 257 – is undoubtedly a starkly honest – and rather bold! – argumentative technique. It remains to be seen how the Court will respond to the issue being framed in such categorical terms.

Third Phase

The third phase was kicked off by Mr. Morara Omoke’s team, which had filed a cross-appeal on the referendum questions issue, but ultimately launched a full-throated defence of the High Court and Court of Appeal judgments. Counsel responded directly to the Appellants’ Kesavananda point, noting that there was a key distinction between Kesavananda and David NdiiKesavananda expressly “locked out” a set of amendments altogether. The High Court and the Court of Appeal, however, were equally express that in principle, every provisions of the 2010 Kenyan Constitution – including its basic structure – could be amended (as I argued in yesterday’s post, this distinction is crucial, as it – in my view – tracks the contextual differences between the Kenyan and Indian Constitutions). Secondly, counsel argued that the purpose of the four-step sequential process was to deepen public participation in the amendments process. It is important to read the two arguments together. The first argument is an argument demonstrating the need for a different form of the basic structure doctrine in the Kenyan context; and the second argument is an argument demonstrating that the form chosen by the High Court and the Court of Appeal was justified: where the amendment process already provides a role for the People (the two-track process referred to by the Appellants), the basic structure doctrine can only exist to the extent that it deepens that role to a level commensurate with constitutional framing. That, in essence, was what – according to counsel – the High Court and Court of Appeal did, and that was why this particular form of the basic structure doctrine (i.e., the four-step sequential process) was justified in the specific context of Kenya.

Mr. Morara Omoke then advanced a series of arguments supporting the High Court and Court of Appeal: on the issue of IEBC quorum, that Article 250(1) mentioned that the composition of Commissions had to be a minimum of three – but that composition did not equate to quorum. Extending the argument – in terms somewhat similar to the constitutional statute point made in yesterday’s blog post, he took the example of the tax code: if – Mr. Morara Omoke argued – amendments to the tax code were struck down, would it be the case that the Code itself would be treated as repealed, leaving the entire domain unregulated? He argued that that could not be the case – and similarly, the striking down of Sections 5 and 7 of the IEBC Act Schedule could not lead to the conclusion that there was now no statutory regulation governing the functioning of the IEBC.

For the sake of completeness, this argument was carried forward later in the day by Ester Ang’awa, who pointed out that the IEBC was regulated by both the Constitution (Article 250(1)), and by statute (the IEBC Act) – both of which, together, functioned as two wings of a plane, and were necessary for it to continue flying. On the failure of one engine (the statute, parts of which were struck down), the plane could not simply run perpetually just on the other. Readers may here again spot similarities with the constitutional statute argument, without the term expressly being mentioned.

Finally, on the issue of referendum questions, Mr. Morara Omoke noted that he had written to the Court of Appeal after its judgment, requesting clarification on the apparent contradiction between the holdings and the disposition; he had a reply stating that there was no contradiction (pretty impressive due diligence!). Mr. Omoke then made the case in favour of the “thematic unity” approach. The case is, by now, a familiar one: a voter cannot exercise choice in any true sense if she is provided with a grab-bag of seventy-four constitutional amendments – some of which she may support and some of which she may oppose – and then asked to approve or reject all of them in an up-down vote. This is a specific problem when “sweeteners” that have nothing to do with constitutional reform are thrown into the mix with the specific intention of making the reform proposals more palatable.

The Respondents then formally opened proceedings, with Mr. Nelson Havi starting the case. His conceptual and theoretical arguments on the basic structure should – by now – be familiar; one important point to flag is that Mr. Havi affirmed that – by its very nature – primary constituent power must lie outside of the Constitution itself. This is a direct response to the argument – made by George Oraro SC the day before – that the 2010 Constitution had textualised the primary constituent power within Articles 255 and 257. Now, while this is true as a matter of constitutional theory, a more subtle point that the appellants had made remains: which is that the closer the amending process in a Constitution gets to the primary constituent power, the less role there is for judicial intervention through the basic structure doctrine. To this, Mr. Havi replied that the four-step sequential process was what provided the wedge between constitutional amendment and constitutional repeal. The four-step sequential process – which lay outside the Constitution – kicked in only when what was being attempted was constitutional repeal (express, or through necessary implication). Thus, no matter how close an amendment process came to approximating the primary constituent power, when what was being done was not an amendment at all, but a repeal, it became necessary to look outside the Constitution in order to find the power for such an action; because, recall – Mr. Havi argued – that the primary constituent power is the power to framere-frame, or repeal a Constitution, and must therefore lie outside of it.

On the involvement of the President in the popular initiative, Mr. Havi inverted the argument made by the Appellants: he asked, instead, where in the Constitution was the President granted the power to involve himself in the popular initiative process. This emphasises the point that I made in yesterday’s blog post: the popular initiative dispute is, at the end of the day, a dispute about how to interpret a constitutional silence, and will turn upon what the Court thinks is the purpose of Article 257. If the Court thinks that the purpose of Article 257 is to establish bottom-up direct democracy, it will exclude the President; if, however, it does not view Article 257 in that manner, it may not do so.

In the final set of arguments for the day, Elias Mutuma addressed submissions on Presidential involvement in the popular initiative – again, responding specifically to the appellants’ core point that in the absence of any constraining provision, the President should be deemed to have the power as part of the normal exercise of his constitutional rights. While it was true – Mr. Mutuma argued – that the People had delegated sovereign power to the President, it was important to note that what had been delegated was executive, not legislative power; thus, to the extent that the President wanted to legislate (and constitutional reform through the Popular Initiative was a form of legislation), he needed express authorisation under the Constitution. A constitutional silence, thus, would need to be interpreted against the President.

Mr. Mutuma went on to make a fascinating argument about the nature of the popular initiative, and when it could be deemed to commence. Under Article 257 – he noted – the People had to be involved with enacting the constitutional reform in question. This envisaged an active role for the People right from the beginning, and not simply a situation where the People were just given a constitutional reform proposal to endorse or reject. Thus, the mere fact that there was a reform proposal with one million signatures did not ipso facto mean that the requirements of Article 257 had been fulfilled.

I want to pause for a moment and reflect upon the deep roots of this argument in democratic theory. Article 257 of the Kenyan Constitution – as I’ve argued before – is a particularly important provision in how it seeks to infuse direct democracy into the constitutional amendment process. Direct democracy itself, however, can be of two kinds, depending upon whether the citizenry is to be treated as passive consumers of laws, or active participants in their enactment. In the former situation, the political elite continue to devise and frame the laws, with the “direct” role of the People being limited to (mostly) accepting them by acclamation, or (rarely) turning them down. In the latter situation, however, the involvement of the People is deeper, and begins from the moment of the devising of laws. Mr. Mutuma argued that Article 257 envisioned the latter conception of direct democracy, and this would have an impact (a) on the question of when the Popular Initiative could have been deemed to have begun, and (b) on the scope of public participation. Incidentally, it would also have an impact on the question of Presidential involvement: it is far more difficult to justify Presidential involvement if the purpose of Article 257 is to empower an active citizenry to play a front-stage role from the get-go. Top-down, led initiatives are in fundamental conflict with this vision of direct democracy.

Finally, Mr. Mutuma posed a hypothetical: if this was a pre-constitutional moment, and the 2010 Constitution was being submitted for ratification, would the procedure under Article 257 be deemed sufficient? He argued that it would not, and that was why the four-step sequential process – which provided for a deeper and more sustained level of public participation – was justified. Arguments for the day were then concluded by Caroline Jerono, who argued that as all the terms in Article 257 (Bill, Amendment, Suggestion) were in the singular, it was a strong indication in favour of the thematic unity approach to referendum questions.

Conclusion

This brings us to the close of day 2 of the hearings. By now, it is evident that the battle lines have been drawn, and the points of conflict are beginning to appear in a clearer fashion. Tomorrow should bring the curtains down upon the case, and leave us with a clear sense of the issues on which this case will finally turn.

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Gautam Bhatia is a constitutional lawyer based in New Delhi, India.

Politics

Shifting Rights: Dispossession of Pastoralists by Predatory Stealth

Pastoralist communities are effectively losing their rights to their communal lands through an obscure and predatory engagement process that involves conservation NGOs and self-seeking community leaders.

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Shifting Rights: Dispossession of Pastoralists by Predatory Stealth

Scientific evidence strongly affirms that arid and semi-arid ecosystems are key frontiers for shifting resource rights and increased exposure to global challenges such as climatic risks. A large share of Kenya’s land is classified as ASALs (Arid and Semi-Arid Lands) with different forms of ecosystems including ranches, community-based conservancies and game reserves, among others, all of which contribute to community livelihoods and resilience as well as to the national economy. As the world grapples with the underwhelming resolutions of COP26, there is increasing need to pay attention to climate justice as a fundamental basis for achieving the Paris targets and sustainable development goals.

This will require that keen attention be paid to the shifting resource rights of ASAL communities. In effect, resource management decisions have often been accompanied by strong claims that these communities have been involved in the decision making process, that consent has been obtained and that they are happy with the decisions taken.

However, what has not been revealed is the manner in which consultations and engagements with these communities have been used to shift rights from communities to other powers. Community engagement is a fundamental platform through which community voices are included in the decision-making process, and therefore, understanding how these engagements are being used to shift resource rights is critical to strengthening the engagement capacities of the affected communities.

This blog provides a reflection from fieldwork undertaken in Samburu County, Kenya, that focused on how land rights intersect with adaptation strategies. The fieldwork was carried out under the Rights and Resilience Project funded by Danida. The project aims to investigate resilience and land rights in the context of pastoral adaptation in Kenya. More specifically, the project looks at how adaptation strategies interact with land needs. The implementation of the project is led by researchers from the University of Copenhagen, The Institute for Development Studies (IDS), University of Nairobi, University of Roskilde, the Danish Institute for International Studies (DIIS), and the International Livestock Research Institute (ILRI)

How are community-based conservancies are established? 

The concept of Community-Based Natural Resource Management (CBNRM) underpins the establishment of community-based conservancies (CBC), mainly by communities with an interest in particular outcomes. Conceptually, pastoralist communities, including those living in the ASALs, are expected to drive the establishment of conservancies as a means of preserving resources and supporting their livelihoods both during normal seasons and in times of shocks. However, the process is not a purely community undertaking, but is often catalysed by actors posing as “good Samaritans” who either bring experience, resources, or information to support the process. For instance, the Northern Rangeland Trust (NRT), a Kenyan conservation NGO, has led and financed the establishment of some 23 CBCs covering about 1,687,985 hectares in the Isiolo-Samburu-Laikipia landscape since 2004, involving an estimated 400,000 community members.

A study of the Sera Conservancy situated within the Losesia and Sereolipi Group Ranches in Samburu shows how communities lose their rights to the CBC through a relatively obscure and predatory engagement process. The conservancy was established in 2001 and covers an area of 339,540 ha.

According to community members, the decision to establish the conservancy was driven by the changing ecological conditions (e.g., shifting weather patterns), increasing population and resource scarcity. This meant that the community had to rethink and embrace new ways of managing their resources, inspired by the awareness campaigns carried out by established conservation NGOs such as the NRT. In establishing the conservancy, parts of the group ranches were delineated as wildlife corridors while specific areas were designated for livestock usage.

Communities lose their rights to the CBC through a relatively obscure and predatory engagement process.

The fundamental idea behind the creation of the conservancy was to preserve its ecological and resilience value and promote the resilience of both the conservancy and the community by regulating the availability of feed during the different seasons. This approach to building resilience is widely recognised in international policy on climate change as part of ecosystem-based adaptation (EbA). EbA involves a wide range of ecosystem management practices to increase resilience and reduce the vulnerability of people and the environment to climate change.

Transitions in engagements: from decision makers to mere public participants 

The establishment of CBCs is anchored in the community’s support for conservation that involves conservationists providing training and creating awareness among selected community members – mainly the leaders of the various community ranches. The need to establish CBCs is then mooted as an option for ensuring a more effective management of the resources of pastoralist communities especially given the changing climate and the increasing population. This often culminates in some form of negotiation between the community leaders and a promoter (e.g. the NRT). These negotiations begin with initial meetings with community elders and representatives of group ranches where the ideas around CBCs are discussed and the associated benefits highlighted. Community leaders then relay the information to the wider members of the group ranches who are called to attend meetings with selected political leaders such as members of the county assembly and where they are informed about the need to conserve the resources available for pastoralism.

According to members of the Losesia Group Ranch, discussions in community meetings are often based on the understanding that the CBC idea is driven by the community. Yet the reality is that the process is driven by conversations held elsewhere outside the community. The early-stage experiences in initiating the Sera CBC raise key questions around whether the CBC concept as framed in literature and policy is really community-led or are just a model approved by the community. Whatever the case, this represents the first juncture at which rights begin to shift within the engagement space. In this case, the community’s right to decide the best model of conservation for its resources is weakened as the process is driven by conversations initiated outside the community. Indeed, it has been argued elsewhere that the creation of CBCs is motivated by the rich wildlife resources on the community lands rather than by the interests of the community. Yet at the CBC initiation stage community rights still remain relatively high because they still have the power to make and question decisions since no deals have been struck at this point.

Figure 1: Illustration of the critical junctures along the community engagement process where rights shift from the communities to other powerful actors

Figure 1: Illustration of the critical junctures along the community engagement process where rights shift from the communities to other powerful actors

Once a community agrees to the establishment of a CBC, it develops the rules and regulations that will govern the organisational engagement with the CBC. These rules include delineating specific areas for wildlife and others for livestock. Community leaders, in conjunction with the conservation NGO, ensure that the areas demarcated for wildlife become relatively restricted to community access. At the same time, the movement of livestock in certain parts of the conservancy is systematised to ensure that pasture is managed and preserved for use by all during the different seasons. At this point, community rights still remain relatively strong given that most decisions, including the CBC’s rules and regulations are made by the community. However, narratives around wildlife conservation begin to strongly emerge as part of the CBC discourse within the community.

The creation of CBCs is motivated by the rich wildlife resources on the community lands rather than by the interests of the community.

Community members have said that while they appreciate the value of wildlife conservation as part of their culture, they do not have a clear understanding of what rights they have over the conserved wildlife. They are merely informed by their leaders about its potential value in terms of tourism and revenue generation to support various community projects. On the other hand, they are clear about the value that their livestock is able to attract even though livestock is controlled and pushed to the periphery by the drive to delineate wildlife areas.

Therefore, while the communities still feel that they have rights to the CBCs and the associated benefits, whether from wildlife or livestock, their rights are increasingly weakened as they commit to set aside a section of their land for wildlife conservation while they have little control over the expected activities and benefits. Moreover, it is the community itself that will have placed restrictions on access to the designated wildlife areas. This is a clear illustration of how community engagements serve to open up avenues for loss of resources, especially when communities become eager to align to changing conservation models or when they mainly focus on beneficial opportunities without interrogating the inherent consequences.

However, it must be noted that most community members do not have the capacity to interrogate such issues. In cultures that reproduce elites and confer powers differently to different categories of social groups, the collective voice of the community to interrogate emerging issues is relatively weak, and there is a general reluctance to do so because such questioning is seen as going against one’s own culture.

The areas set aside for conservancies are in truth the major frontiers for the further erosion of community rights as new interventions begin to leverage the economic value of wildlife. Several studies have raised concerns about this, equating the designation of wildlife areas to the commodification of wildlife for economic gain. To date, about ten lodges and hotels have been established within CBCs, occupying a significant share of the areas set aside for wildlife conservation. These investment deals are negotiated with community members who all along believe that they are in control of the CBC without realising that they are systematically losing control in this sphere of engagement. Negotiations regarding investments in CBCs are mediated and facilitated by particular conservation NGOs, such as the NRT in the case of Samburu, a conservation NGO which already has very strong connections with donors and investors at the international and domestic levels, as well as with policy and business actors. It is at this juncture, therefore, that powerful new actors are introduced into the community engagement space. This means that decisions at this point are no longer under the remit of the community but rather under a wider cadre of interests with different powers.

Several studies have raised concerns about this, equating the designation of wildlife areas to the commodification of wildlife for economic gain.

According to the Losesia community, representatives of the ranches negotiate with the investors based on their constitution, which allows community members to lease out parts of the conservancies. Various economic advantages are touted during these negotiations, resulting in the perception that the community has given its consent through the local elites who are culturally perceived as representing the interests of the community but who in reality have become self-seeking gatekeepers to community land. In presenting the potential economic benefits, however, the financial details are often concealed from the relatively uninformed community members and it is often simply agreed that a certain percentage of the revenues collected will be ploughed back to support conservation. Community members are also promised jobs and other benefits.

While the constitution encourages interventions that promote the conservation agenda, it is relatively vague on issues of rights and benefit sharing and management. Moreover, there are no clear mechanisms to ensure that investors adhere to the conservation principles enshrined in the CBC agenda. This provides a huge window of opportunity for investors to pursue different agendas and further infringe on the rights of the community. Consequently, community members feel that the investments made within the conservancies have actually shifted focus from conservation to pure profit generation to the exclusion of the community members themselves. Some community members highlighted that investors have often expanded boundaries beyond the agreed areas, have introduced new recreational activities—including illegal game hunting—that are detrimental to the ecology of the conservancies, and in most cases have become less transparent about the revenues they generate. Furthermore, new physical boundaries are established, creating a permanent sense of exclusion from the conservancies.   

Yet this new trajectory, while clearly infringing community rights, is gaining support from the authorities, particularly at the level of the county government where the interest centres on revenue collection. The county government is expected to provide an enabling environment for investors while at the same time protecting the rights of the community but investors’ interests systematically take precedence over community rights. Moreover, concerns have been raised that some county governments are currently developing county conservancy laws aimed at completely shifting the management of conservancies from communities to the counties. Some community members have also raised concerns that conservation NGOs and investors who initially consulted them closely no longer engage them directly but go through the county government. The common interest around revenues and profits has therefore resulted in a powerful coalition between the investors, the county government, and the NRT, that has taken over the management of the conservancies to the near-complete exclusion of the communities.

New physical boundaries are established, creating a permanent sense of exclusion from the conservancies.

This effectively means that communities are no longer in direct control of the conservancies as was originally envisaged. The community engagement process is no longer about the community decision-making process; it has now become merely a public participation exercise. Community members are invited to meetings pertaining to the conservancies as public participants rather than as interested parties with a stake in decision-making. A community member observed that while the CBC retains their name, it is no longer theirs.

What role does policy play in the shifting community rights? 

At the national level, Kenya has developed a range of developmental policies targeting the management of these resources. Additionally, Kenya’s climate change policies such as the National Climate Action Plan, the updated Nationally Determined Contribution, and the Adaptation Action Plan, focus on adaptation and building resilience. These policies acknowledge the role of conservancies in improving livelihoods and the broader economic development, but are more focused on using resources for development rather than for enhancing livelihoods and the resilience of communities. Therefore, national development and resource management policies do not pay attention to the fundamental resource rights necessary to protect local communities from powerful actors. The policies also lack room for strengthening local governance. While the Community Land Act exists to strengthen the role of communities in managing their resources, this law seems to be increasingly superseded by other national and county-level legislations.

The value of traditional and communal resources and rights is less articulated in contemporary conservation policies. This has exposed resilience-building resources such as community conservancies to powerful economic interests that tear apart the communities’ resilience-building social structures, creating further inequalities and social vulnerabilities.

Some county governments are currently developing conservancy laws aimed at completely shifting the management of conservancies from communities to the counties.

At the county level, county governments are expected to provide an enabling policy environment for the conservation interventions, and to protect the rights of the communities within the conservancies. However, the case of Sera CBC shows that county governments are motivated by the developmental goals tied to revenue collection rather than by community rights. For instance, the Samburu County Integrated Development Plan acknowledges that CBCs are resources that can be harnessed for increased revenue collection and county development. This also aligns with the narrative at the national level where conservancies are viewed through the lens of tourist attraction, foreign exchange, and GDP enhancement. As already highlighted above, some counties are developing county conservation laws aimed at putting conservancies under the direct control of county authorities, which is seen as a threat to the rights of the communities concerned.

What are the implications for resilience? 

The loss of these rights is leading to an accumulation of social injustice such as gender imbalances. Community governance is also weakened by the community’s exclusion from the decision-making process, leading to the loss of resilience-building resources in pastoralist communities. The loss of rights is exacerbated by the state-centric approach to resilience planning, an approach that has been associated with capitalistic ambitions to control resources and the subsequent resource grabs from vulnerable communities, a phenomenon that has created new cycles of climate risk accumulation. Consequently, the proposed development and resilience-building options are yet to encompass the lived realities of the communities that they seek to help.

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Politics

Ethiopia: Return of the Revanchist TPLF

The civil war in Ethiopia is a fight over control and access to the country’s national cake that was previously enjoyed solely by the TPLF regime, and which they are now determined to recapture at all costs.

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Ethiopia: Return of the Revanchist TPLF

In many parts of the world where ethnic balance has not been achieved, politics turn violent. Ethiopia is a classic example where a lack of ethnic balance leads to ethnic violence. The Ethiopian federal system was born out of internal power struggles between the government and ethnic forces that tried to gain control of territorial boundaries. Ethiopia’s political and cultural construction of ethnicity has been different from that of other African countries. Moreover, no Western power was ever able to penetrate and colonise Ethiopia so it has retained its independence. The country has however, experienced numerous incidences of political unrest over the last century, from the dissolution of the empire state to the establishment of a federalist system of governance.

A year into the crisis in Ethiopia pitting the federal troops against the Tigray Defense Forces (TDF), with periods of escalation in the relentless war in the Tigray region, ethnic conflicts, humanitarian tragedies, and centrifugal dynamics have considerably intensified, eviscerating one of the largest economies in the Horn of Africa. In as much as Ethiopia’s’ economic crisis had been deepening even before the start of the conflict, the current conflict has enflamed the situation.

This has prompted scholars, academics, pundits from the Horn, and outsiders to share their views on the current crisis in Ethiopia. Ethiopia is one of the largest multi-ethnic states on the continent, and the complex nature of the relationships between the different ethnic groups under different regimes makes the country even more complicated to analyse.

From the first Aksumite Empire, through Menelik 1 to the current federal government of Abiy Ahmed, Ethiopia has metamorphosed from an almost failed state to a “development state”. The Tigray Peoples Liberation Front (TPLF) regime has been different from previous regimes such as the Derg or the imperial period both of which greatly strengthened development programmes through the exploitation of politically marginalized regions, unlike the TPLF that tried to “rectify” this through the federal system. From silencing the voice of dissent to restricting freedom of speech and expression, the TPLF system of governance was noted for its iron-fisted rule that was similar to that of its predecessors until its takeover by Prime Minister Abiy Ahmed in 2018.

Unlike the imperial regime that was in place from 1941 to 1974, and Derg regime which collapsed after the fall of the Soviet Union, the Ethiopian People’s Revolutionary Democratic Front-led government was a multiparty entity that saw the introduction of universal suffrage. The TPLF/EPRDF-led government introduced 32 articles in the constitution regarding the protection and upholding of human rights. In contrast to the laws under the imperial period and Derg regime, the current constitution provides for the domestication of the provisions of international treaties into the country’s laws.

Woyane

Over the last several decades, Tigrayans have participated in two popular uprisings. The first was the Woyane Rebellion of 1943 when Tigrayans resisted their forceful integration into Haile Selassie’s centralized government. Woyane is the consecrated term used by Tigrayans to epitomize the resistance of the Tigray people to oppression by the Amhara-Shoan elite.

The Tigrayan rebellion was sparked by their systematic political and economic ostracism after the death of Tigray’s Emperor Yohannes IV in 1889. The government responded to this first insurrection with punitive force, bombing Mekelle, Hintalo and Corbetta with air support from the United Kingdom Royal Air Force. To deter future revolts, Selassie’s government took land belonging to the Tigray people and gave it to gentry loyal to the emperor. The government also imposed heavy taxation on the people of Tigray and transferred Tigrayan hereditary regional powers to loyal Amhara-Shoan administrators.

The Derg 

The Amhara ruling elite purposefully and systematically enacted policies to sideline the Tigray people, forcing them to migrate to Eritrea and to the capital, Addis Ababa, in search of better economic conditions. One such retributory measure was the famine suffered in Tigray in 1972-1974 while the country had enough food supplies to feed its population; the government deliberately failed to provide food relief aid to the Tigrayans.  This did not deter Tigrayan revolution ideologies, but fuelled the antagonism, leading to the Bale armed uprising of 1963-1968 and the Gojjam armed mutiny of 1967. Emperor Haile Selassie was ousted from power by a military junta, commonly known as the Derg, on 12 September 1974, and the military took control of the government.

Tigrayans hoped that the new government would look into their plight but such expectations were dashed as the Derg declared Ethiopia a monolithic society where calls for ethnonationalism and demands for self-governance and self-determination were against Ethiopian interests and the “constitution”.

To deter future revolts, Selassie’s government took land belonging to the Tigray people and gave it to gentry loyal to the emperor.

This stance prompted a group of Tigrayan ethnic-nationalists to seek to secure their right to autonomy within and outside Ethiopian polity by dethroning the Derg military junta through armed resistance and the Second Woyane Rebellion of 1974-1991 started to take shape. It is this second insurgence that prepared the ground for the formation of the Tigray force that would decide their destiny and future. On 14 September 1974, seven university students formed the Tigray National Organization (TNO), a group comprising teachers, civil servants, and students that laid the foundation for the formation of the Tigray People’s Liberation Front (TPLF), which led to its materialization on 18 February 1975.

After close to 17 years in power, the Derg was overthrown on 28 May 1991 by the TPLF in alliance with other ethnic rebel fronts. The conflict led to the killing of 250,000 civilians and the displacement of one million people to neighbouring countries. Together with other ethnic coalitions in Ethiopia, the TPLF formed the Ethiopian People’s Revolutionary Democratic Front (EPRDF), which set about abolishing the economic marginalization of minority groups by establishing a federal system of governance.

The conflict led to the killing of 250,000 civilians and the displacement of one million people to neighbouring countries.

Much has been said and written about the excesses and abuses of power by the TPLF ruling class. Although the EPRDF party was successful in setting the country’s economic growth in the right direction, it failed to entrench the principles of democratic governance by suppressing the freedom of the press and human freedom, quashing nonconformist views, and opposition groups. Some have argued that the EPRDF maintained state tyranny under the federal system, and the culture of economic marginalization and political suppression.

Ethiopian People’s Revolutionary Democratic Front  

Despite the fact that the EPRDF comprised different ethnic factions, the TPLF was at the centre of the control of the party and policy responses. After deposing the Derg military junta, the TPLF disbanded the old Ethiopian military and ensured that top generals and senior military personnel in the new forces were drawn from the TPLF’s ranks, the majority being Tigrayans. This military supremacy and political power gave the TPLF the economic dominance it required to exercise complete control over Ethiopia’s economy and critical natural resources like land and aid flows.

Before the rise of Abiy Ahmed to power, the TPLF-led government took loans from external private creditors and, principally, from China, which in 2018 accounted for 60 per cent of the country’s Gross Domestic Product (GDP). The United States, one of Ethiopia’s closest allies and its largest single donor, pumped US$2.2 billion through the latest Productivity Safety Net Program (PSNP) in 2021.

The TPLF-dominated government party arm-twisted the EPRDF party operations with their intention of self-determination. The intention was to use military force to misappropriate public resources, enlarge Tigray’s borders, and disaffiliate from greater Ethiopia. The TPLF’s response was to use military force based on the ousted Derg’s militarization of all facets of society, from economic, to social to political. This was made clear in the TPLF manifesto of 1976, that called for the creation of The Republic of Greater Tigray and presented an elaborate framework for the liberation of the Tigray region from Ethiopian rule, starting with the re-demarcation of the borders with “historical Amhara lands”, the annexation of coastal land within Eritrea and the formation of an autonomous state.

One significant development for the people of Tigray under the TPLF/EPDRF rule was the establishment of the Endowment Fund for the Rehabilitation of Tigray (EFFORT), which directed a considerable amount of Ethiopia’s national budget and international aid to the region. As a result, the region experienced radical changes in infrastructure development and economic growth, while development in the other regions stagnated.

What is often ignored in political and scholarly discourse and in most of the articles and analytical texts on Ethiopia is that the majority of the Tigrayans, although associated with the TPLF regime, live under the same economic conditions as Ethiopians of different ethnic origins. The key beneficiaries of the regime are the Tigrayan political elites, the business class, and well-connected non-Tigrayan personalities. The TPLF-led government has created deep antipathy within the Oromo and Amhara ethnic groups. These two groups combined account for over half the Ethiopian population of 119 million that has been threatening the TPLF government.

Currently, Prime Minister Abiy, whom Tigrayans consider to be unelected and view as centralizing power through a hegemonic political agenda, is fighting the country’s oldest revanchist regime. The TPLF intends to oust the current prime minister through guerrilla warfare and to recapture economic and political influence. The Ethiopian conflict has escalated over the last year, with reports of civilian casualties, loss of life and property, and massive displacement. The escalation of the conflict is bound to have a ripple effect and political and economic repercussions in the Horn region.

As they did during the First and Second Woyane Revolutions, Tigrayans across the globe from America to Europe have been calling for secession through social media and non-state platforms, terming the Ethiopian political marriage as cruel and demanding an end to the acts of “genocide” and other atrocities committed against the Tigrayan people. However, the fundamental underlying causes of the conflict are often misconstrued.

Abiy vis-a-vis the TPLF 

External observers and pundits view the crisis in Ethiopia as differences between Tigray regional leaders and the Prime Minister Abiy regarding the parliament’s unconstitutional postponement of the national and regional elections due to the current COVID-19 pandemic that has ravaged the globe. On the other hand, some scholars view the crisis as having been sparked by the ideological differences between the prime minister and the TPLF political elites. These arguments do not, however, explain why such minor differences have resulted in military hostilities.

The TPLF intends to oust the current prime minister through guerrilla warfare and to recapture economic and political influence.

Contrary to the views expressed by external observers, the conflict is the ultimate battle for control of the economy, natural resources, and billion-dollar aid from international financiers and donors. All these resources were at the disposal of the TPLF political elites, which they controlled for nearly three decades before Abiy took power in 2018. The call for self-determination is just the face of the war; it’s not about who gets to rule the Tigray region. Rather, it is a fight over who should occupy the commanding heights of the country’s economy. It is a fight over control and access to the country’s national cake that was previously enjoyed solely by the TPLF regime, and which they are now determined to recapture at all costs; control of the economy has to get back into the hands of the TPLF insurgents, even if it is by means of the gun. However, this is easier said than done.

Anti-Abiy coalition

The Tigray Democratic Front (TDF), a faction of TPLF, is fighting alongside the Oromo Liberation Army (OLA), an offshoot of the Oromo Liberation Front (OLF), and eight other opposition groups united under the United Front of Ethiopian Federalist and Confederalist Forces with the sole objective of removing Abiy.

All these formations have two sides. Firstly, if the alliance could advance and enter Addis Ababa, the capital city, there is the likelihood of bloody in-fighting within the alliance, particularly between the Tigray-affiliated and Oromo-allied groups. The current factions are politically motivated but based on historical narratives and historical resentment against the 27-year-long darkness of the TPLF; repressive rule is unquestionably likely to be met with resistance. Furthermore, the OLA does not necessarily represent the interests of the larger Oromia region, and this may lead the Oromo people to take up arms against “one of their own” movements.

The largest ethnic group in Ethiopia, the Oromo, considers the heart of the capital, commonly known to them as Finfinne, as their ancestral land. This is supported by the OLA spokesperson Oda Tarbii, who has said that once the operation enters Addis Ababa, the OLA will be spearheading it, as it is within their dominion. Since the capital city is the hub of business, technology, industrial and infrastructure development, the Oromo-affiliated factions might fight TDF insurgents to protect their land and “people”. The Oromo People’s Democratic Organization (OPDO), the party of the Oromo ruling elite, was subservient to, and a puppet of, the TPLF rule for 27 years, hence they failed to secure the rights of the greater Oromo and Oromia region. The party was serving the interests of the TPLF/EPRDF-led government under the guise of opposition and standing up for the welfare and interests of Oromia.

The largest ethnic group in Ethiopia, the Oromo, considers the heart of the capital, commonly known to them as Finfinne, as their ancestral land.

Additionally, the capital has been the focus of resistance to the TPLF’s 30-year rule since the EPRDF party masterminded the suppression of Oromo opposition groups and active citizens. Close to 200 people were killed, 800 wounded and 30,000 arrested in a disputed election in 2005. Strong anti-Tigrayan sentiment seems to reverberate in many parts of the capital and its adjacent cities.

The second side of the argument is that Amhara might erupt in outright insurrection with the alliances fighting the federal government. When the federal government waged war with the TPLF rebels, Amhara youths took up arms and fought alongside the area’s federal forces.  Amhara, which borders Tigray to the South, has experienced a decade-long dispute over land taken from Tigray during 100-year Amhara rule that has become exacerbated in the current war with the TPLF. Consequently, given the support of youths and armed groups within Amhara, and years of brutal leadership under the TPLF government, a bloody insurgency is inevitable if entry into the capital occurs.

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Somalia’s Famines, Government Apathy and the Aid Industry

Failed government leadership, the lack of accountable partnerships between aid partners and the government, rampant corruption, and psychological dependence on aid have kept Somalis on life support.

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Somalia’s Famines, Government Apathy and the Aid Industry

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.

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