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Reflections on Medical Ethics in the Era of COVID-19

11 min read.

The intense centralisation of health services has killed the doctor-patient relationship while hospitals have now become centres for gathering detailed patient information that is exploited by pharmaceutical companies.

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Reflections on Medical Ethics in the Era of COVID-19

According to William Ruddick, the wide field usually referred to as “medical ethics” comprises a range of disciplines, including medical ethics (primarily, medical doctor-centred), and healthcare ethics (including nurses and other healthcare providers), clinical ethics (focused on hospital case decisions with the aid of diverse committees and consultants), and bioethics (including general issues of reproduction, fair distribution of organs and other scarce life-saving resources, and protection of the biosphere). All discussions of medical ethics proceed from the assumption that all things being equal, all patients have moral status. As Matjaž Zwitter observes in a chapter on “Moral Status”, “There should be no doubt that all of us with a capability of deciding about ourselves have moral status.” Zwitter further points out that only beings with moral status can be meaningfully said to have rights.

However, in our time, the misconception is widespread that science, of which medicine is a part, is all about “objective” observation of facts without any consideration of values (standards by which we judge some things to be good or bad, right or wrong, beautiful or ugly, and so on). Nevertheless, we human beings cannot live without values, because it is they that make life truly human by enabling us to choose our goals and the appropriate means of attaining them. Thus, in the introduction to his Medical Ethics: A Very Short Introduction, psychiatrist Tony Hope writes, “As my clinical experience grew so I became increasingly aware that ethical values lie at the heart of medicine. Much emphasis during my training was put on the importance of using scientific evidence in clinical decision-making. Little thought was given to justifying, or even noticing, the ethical assumptions that lay behind the decisions. So I moved increasingly towards medical ethics, wanting medical practice, and patients, to benefit from ethical reasoning.” In what follows, I examine the viability of the doctor-patient relationship, undergirded by medical ethics, in the era of COVID-19.

Principles of medical ethics in the era of COVID-19

One of the best-known texts associated with medical ethics is the Hippocratic Oath authored in ancient Greece about 2400 years ago. It required a person being admitted to the position of a medical doctor to swear by a number of healing gods to uphold certain ethical standards. The oath established several principles of medical ethics that are still considered crucial to the conduct of a medical doctor today. At the heart of medical ethics are questions regarding what is morally acceptable or morally unacceptable for a doctor to do in the course of caring for the sick. Three of the key issues in medical ethics are commitment on the part of the doctor to do only good to the patient, to respect the patient’s right to accept or decline a medical procedure, and to conduct medical research in line with sound ethical principles.

Doing only good to the patient

According to William Ruddick, the Hippocratic injunction “Strive to help, but above all, do no harm” is the ruling moral maxim in the doctor-patient relationship. In current discussion, this maxim has been codified in oft-cited principles of beneficence (action to promote the good/welfare) and non-maleficence (refraining from doing evil). For the doctor to achieve these noble goals, he or she must utilize their medical knowledge in a free atmosphere in which their only concern is their patient’s well-being, without having to worry about demands from an elaborate medical care bureaucracy. Yet in the era of COVID-19, the doctor has been turned into a functionary of just such a bureaucracy, receiving instructions from local and global health authorities, and being stopped from using certain medications, even if he/she and his/her patient would have liked to use them.

Respecting informed consent

The principle of informed consent stipulates that the patient has a right to accept or decline a medical procedure after being duly furnished with information about what it entails and the possible positive and negative impacts arising from it. As I indicated in COVID-19 Vaccine Mandates in the Light of Public Health Ethics, the medical ethical principle of informed consent is based on the conviction that each and every human being is endowed with intrinsic infinite worth (dignity) and human agency (the capacity of the person to act out of his/her own uniquely human viewpoint). Underlying the two considerations is the assumption that the human person is a ‘know-er’, since it is impossible to adequately enjoy human dignity and human agency without knowledge. All this implies the idea of human rights—certain entitlements due to every person by virtue of his/her humanity.

Human dignity, human agency and human rights presume the autonomy of the individual. In his On Liberty, John Stuart Mill asserted the autonomy of the individual as follows:

“The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”

In a chapter on “Autonomy and Its Limitations”, Matjaž Zwitter highlights at least five characteristics of individual autonomy. Understood as the right to self-determination, autonomy includes the right to information and protection of privacy. In an ideal situation, a patient with full autonomy participates in all essential medical decisions, and consents to every invasive procedure. Nevertheless, even patients with full capacity have the right to transfer their autonomy to others such as family members, friends, or to their physicians. In cases where patients are unable to decide for themselves and therefore with limited autonomy, surrogate decision-making is justified. Nevertheless, a doctor is not morally obliged to respect a directive by a surrogate decision-maker if this directive is clearly against the patient’s interests. Some persons make advance directives, to be followed in case of their future incapacity to participate in decisions regarding their treatment. While such written or oral directives are helpful, their validity may be re-considered in situations that the person could not have foreseen at the time of making the advance directive.

In the era of COVID-19, the doctor has been turned into a functionary of just such a bureaucracy, receiving instructions from local and global health authorities.

Thus, in “COVID-19 Vaccine Mandates in the Light of Public Health Ethics”, I pointed out that in the light of the notions of human dignity, human agency and human rights manifesting in medical care as informed consent, any measures imposed on the patient in the name of containing COVID-19 is paternalism, that is, the treating of adults as though they were children. This is equally true in medical care where the doctor-patient relationship is in operation, as in public health policy where health authorities institute measures for the welfare of populations.

Research ethics in medicine

Progress in the medical field rides on research, but therein also lies the danger of the violation of the moral principles that ought to govern the doctor-patient relationship. Consequently, as Adebayo A. Ogungbure notes, the aim of medical research ethics is to ensure that research projects involving human subjects are carried out without causing harm to the subjects involved.

One of the most outrageous violations of medical research ethics was the “Tuskegee Study of Untreated Syphilis in the Negro Male”  of which Ogungbure writes:

“The Tuskegee Study of Untreated Syphilis in the African American Male was the longest experiment on human beings in the history of medicine and public health. Conducted under the auspices of the US Public Health Service (USPHS), the study was originally projected to last six months but ended up spanning forty years, from 1932 to 1972. The men used as subjects in the study were never told that they had the sexually transmitted disease. The term “bad blood” was coined to falsely depict their medical condition. The men were told that they were ill and promised free care. Offered therapy “on a golden platter”, they became willing subjects. The USPHS did not tell the men that they were participants in an experiment; . . .

Though the study was organised and managed from Washington, the participants dealt with a black nurse named Eunice Rivers, who helped with transportation to the clinic, free meals, even burials. The project did not stop until Peter Buxtun, a former PHS venereal disease investigator, shared the truth about the study’s unethical methods with an Associated Press reporter.”

As Ogungbure further explains, the health authorities went to great lengths to ensure that the men in the “Tuskegee Study” were denied treatment, even after penicillin had become the standard cure for syphilis in the mid-1940s. He points out that the ignominious study only came to an end when the Associated Press published a well-researched article about it by whistle-blowing reporter Jean Heller. As a result, writes Ogungbure, congressional hearings about the Study took place in 1973, and the following year the United States Congress passed legislation creating the National Commission for the Protection of Human Subjects of Biomedical and Behavioural Research. Apologising for the Tuskegee Syphilis Study on 16 May 1997, President Bill Clinton described it as “deeply, profoundly, and morally wrong”.

Yet in the early years during which African Americans in Alabama were being ravaged by the Tuskegee Syphilis Study, Adolf Hitler’s regime in Germany was busy conducting grossly unethical research on segments of the population that he considered to be inferior to his mythical Aryan race in the name of eugenics (a set of beliefs and practices that aim to improve the genetic quality of a human population by excluding people and groups judged to be inferior or promoting those judged to be superior). Ogunbure explains that one of the consequences of the atrocities committed by Nazi Germany was the drafting of the Nuremberg Code by an international panel of experts on medical research, human rights and ethics, which served as the initial model for those few public and private research and professional organisations that voluntarily chose to adopt guidelines or rules for research involving human subjects.

Progress in the medical field rides on research, but therein also lies the danger of the violation of the moral principles that ought to govern the doctor-patient relationship.

The following are the ten basic principles of the Nuremberg Code: Seek the voluntary consent of the human subject; conduct only an experiment that is necessary, and whose results will promote the good of society; an experiment on humans ought to only follow experiments on animals; an experiment ought to avoid all unnecessary physical and mental suffering and injury; no experiments likely to cause death or disabling injury should be undertaken; the humanitarian importance of the problem to be solved by the experiment ought to exceed the degree of risk involved; the experimental subject should be protected against even remote possibilities of injury, disability or death; an experiment ought to be conducted only by scientifically qualified persons; the human subjects should be at liberty to opt out of an experiment at any stage; the scientist in charge must be prepared to terminate an experiment at any stage if he/she has any reason to believe that its continuation is likely to result in injury, disability or death.

Several other documents on medical research ethics have been issued since the Nuremberg Code, including the World Medical Association’s Declaration of Helsinki of 1964 which has been revised several times since, and Canada’s Belmont Report of 1979.

Centralisation killing the doctor-patient relationship 

One of the dominant trends in our day is the centralisation of services. Those of us who are older recall a time when the branch bank manager had considerable freedom to make decisions. Then, due to digitisation, came the motto “Every Branch is Your Branch”, because every branch was now directly link to the head office. What we were not told was that the branch manager would henceforth be a mere functionary who had to wait for decisions on every minor detail from the head office. We have witnessed similar developments in the university system, with the Commission for University Education (CUE) now having massive control over the operations of universities in Kenya, so that although there are over forty public universities in the country, CUE requires all of them to operate along the same lines, leaving very little room for lecturers to exercise the time-honoured academic freedom.

Similarly, as hospitals have grown in physical size as well as in the number of personnel, so have their centralizing bureaucratic procedures (“red tape”). Doctors have to comply with elaborate protocols put in place by hospital management to avoid or reduce the number of court cases filed against the hospitals. Similarly, the elaborate chains of command pile pressure on doctors to comply with the policies of the hospitals even when those policies are contrary to patients’ interests. For example, one leading hospital chain in Kenya requires doctors to “request” three different tests on every patient suspected of having malaria, significantly raising the patients’ bills. If the results show that patients do have malaria, doctors in the hospital chain are again duty-bound to administer only a specific set of drugs. In short, doctors have very little say in that whole process.

Furthermore, hospitals have now become centres for gathering detailed information about patients for purposes other than the patients’ welfare. Many of my Kenyan readers have probably noticed that they can only purchase drugs or have tests done in private hospitals after giving their phone numbers to the personnel at the front desk. This enables the hospitals to access a patient’s personal records for the purpose of building a detailed history of all the drugs and tests that he/she has procured from that hospital over the years. This is precisely the kind of information which large pharmaceutical companies are eager to buy from the hospitals for a handsome price. In the era of the Fourth Industrial Revolution, the pharmaceuticals use artificial intelligence to analyse the massive information (“big data”) to get a  very clear picture of trends in the health of individuals and populations, thereby enabling them to design business plans that bring them massive profits.

As hospitals have grown in physical size as well as in the number of personnel, so have their centralizing bureaucratic procedures.

The death of the doctor-patient relationship on the back of intense centralisation has already taken a huge toll on the quality of health in hospitals in Kenya. According to the “Kenya Patient Safety Survey” conducted by the Ministry of Health in 2013, a patient’s safety could not be guaranteed in a majority of medical facilities in the country: only 13 hospitals out of 493 public and private health facilities in 29 counties surveyed achieved a score greater than one on an ascending scale of 0-3. The report stated, “Overall safety compliance was relatively poor, with less than one per cent of public facilities and only about two per cent of private facilities achieving a score greater than one in all five areas of risks assessed.” For instance, less than 10 per cent achieved a score greater than one in providing safe clinical care to patients. Of the 13 that scored more than one, 11 were private facilities, while only two were public. Furthermore, less than six per cent of public hospitals achieved a score greater than one in having a competent workforce. According to the report, this state of affairs had in some instances resulted in death.

Besides, in mid-2015, twenty-eight children in Busia County became partially paralysed due to medical malpractice. According to The Standard, the children had partial paralysis arising from injections given in the six months between December 2014 and June 2015, although those with severe paralysis reported initial complaints after treatment in 2013. The Standard quoted then Cabinet Secretary James Macharia as stating, “Our initial investigations point towards medical malpractice from inappropriate injection techniques as the primary cause of partial paralysis in all the 28 children.”

This is precisely the kind of inforamation which large pharmaceutical companies are eager to buy from the hospitals for a handsome price.

Yet in the era of COVID-19, the heavy centralisation of hospital operations that is stifling the traditional doctor-patient relationship has moved to an unprecedented high level. COVID-19 testing and treatment are heavily centralised and meticulously directed from the highest health authorities in each country. In many countries, doctors are strictly forbidden to use COVID-19 vaccines and therapies that have not yet been approved by the World Health Organisation (WHO) and adopted by their own top health authorities. Besides, countries are required to share their data on COVID-19 infections, hospitalisations, vaccinations and deaths with the WHO. Many health authorities at country level run online COVID-19 databases through which citizens can request for vaccination, download their vaccination certificates, and show proof of vaccination. Various governments also have arrangements among themselves to verify the authenticity of international travellers’ vaccination certificates/passports.

Furthermore, David Ngira and John Harrington inform us that generally, WHO recommendations are used as a form of quality control by domestic regulators who view them as a guarantee of safety and effectiveness. Ngira and Harrington also point out that many African states have relied wholly on the WHO Global Advisory Committee on Vaccine Safety given their weak national drug regulators and the limited capacity of the Africa Centre for Disease Control (CDC). The Africa CDC itself deems vaccines safe for use by member states on the basis of WHO recommendations. This means that the doctor no longer has the latitude to give his/her patient guidance strictly on the basis of his/her medical training and experience, but rather on the basis of protocols formulated by local and global health authorities.

Thus in the face of intense centralisation of medical care in the era of COVID-19, time-honoured principles of medical ethics such as the single-minded promotion of the good of the patient, confidentiality, respect for the patient’s right to informed consent, and the imperative for moral integrity in medical research, all of which held the doctor personally responsible for what he/she did in the course of his/her work, are inconceivable in a situation in which a doctor only acts on “orders from above”. The loser in this undesirable paradigm shift is the patient, and the winner the wealthy who have turned medical care into a business. I recently heard a senior Israeli medical professor state that when politics is mixed with science, all that remains is politics. To which I add that when medical care is mixed with business, all that remains is business.

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Dr. Reginald M.J. Oduor is Senior Lecturer in Philosophy at the University of Nairobi. He is the first person with total visual disability to be appointed to a substantive teaching position in a public university in Kenya. He was the founding Editor-in-Chief of the New Series of Thought and Practice: A Journal of the Philosophical Association of Kenya from 2009 to 2015. With Drs. Oriare Nyarwath and Francis E.A. Owakah, he edited OderaOruka in the Twenty-First Century. He is also Co-founder and current Chair of the Society of Professionals with Visual Disabilities (SOPVID). Email: rmjoduor@gmail.com. Blog: http://kenyancrossroads.blogspot.co.ke

Politics

Al-Shabaab Mobilization and Muslim Leadership in Kenya

Muslim leadership, whether political or in civil society, is crucial if the instrumentalization of grievances to entice Kenyans to join al-Shabaab is to be avoided.

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Al-Shabaab Mobilization and Muslim Leadership in Kenya

On 29 November 2013, a group of Muslim youths took over Sakina Jamia mosque in Majengo, Mombasa from its Imam, the late Sheikh Mohamed Idris, forcing him, his personal aide and the national organizing secretary of the Council of Imams and Preachers of Kenya (CIPK), Sheikh Mohamed Khalifa out of the mosque. The three are said to have been shielded by “moderate” youths from being harmed by perceived “radicals”. This was part of a trend.

Between 2013 and 2014, several mosques in Kisauni and Majengo in Mombasa County, namely Umar Ibn al Khattab, Liwatoni, Mbaruk, Swafa’a, Mina and Rahma, had either been seized or were about to be seized by charged youths who further threated to extend their actions to the entire Mombasa County. The youths claimed that the clergy lacked the legitimacy to serve them because they had failed to address the myriad of problems affecting Muslims, including discrimination by the state’s predominantly Christian elites with whom the clerics cooperated.

Soon after, two main narratives emerged to explain these developments that were taking place against the backdrop of heightened al-Shabaab attacks and mobilization on Kenyan soil. One was that the youth were legitimate reformists who had had enough of their clergy’s hypocrisy while the other, which ultimately became mainstream, accused them of pursuing a hidden external “extremist” agenda to create a state of anarchy through violence.

However, to understand and make sense of this contention, it should be remembered that discord between “Muslim leaders” and their constituency was nothing new when the riots began. What was relatively new were al-Shabaab’s activities in Kenya. To gain constituents, al-Shabaab’s mobilization strategy is that of creating division in society while at the same time building social solidarity (Assabiyya) with the targeted group. It does this by using its intelligence network (Amniyat) and its social capital in the form of a rich mastery of the functioning of the target society.

Much like in mainstream political campaigns, these are shaped into various narratives that reflect the target group’s dynamics, characteristics, and concerns. The process is known as framing and involves construction of meaning. While diagnostic frames identify problems in the system and link them to a cause, prognostic frames propose solutions and strategies to solve the identified problems. In addition, motivational frames provide a rationale for action and together, these frames form collective action frames that promote and legitimize the activities and campaigns of a movement or organization. This does not occur in a mechanistic manner; instead, it involves constant negotiation and is mediated by social, political, cultural and historical factors within a given context. During this process, frame alignment and frame resonance can be achieved. Frame alignment is when the interests and beliefs of a movement converge with those of a target audience while frame resonance is when frames become plausible (acceptable) to the target audience; it enables their mobilization/participation. Therefore, the Mombasa riots have to be analysed in this context although it is crucial to first appreciate the state’s position in this conflict.

The contention between Muslim citizens and their state is almost as old as the Kenyan nation-state itself given the myriad of historical issues dating as far back as the reign of the sultanate of Zanzibar, to contemporary claims such as marginalization and demographic size. At the centre of these are Muslim leadership entities in their diverse capacities—whether religious, quasi-religious, civil society or elective-political—who have come to define their role as intermediaries and administrators of Muslim affairs. Excluding elective politics, the Supreme Council of Kenya Muslims (SUPKEM) was the pioneer in this attempt to administer and manage Muslim affairs. SUPKEM replaced its predecessor, the National Union of Kenyan Muslims (NUKEM) in 1973, the first Muslim organization formed in 1968 in the context of fears that independent Kenyan elites would opt for secularity and abolish customary religious laws.

SUPKEM was headed by two junior members of the then ruling party, the Kenya African National Union (KANU) against the backdrop of failed secession attempts by the Muslim majority at the coast and in the former Northern Frontier District. As a result, and due to rising political temperatures at the time, SUPKEM’s officials encouraged Muslims to be loyal to President Moi and his KANU party in return for support from the government as the legitimate representative of Kenyan Muslims. This led to the appointment of some Muslims to government.

Later, in the 1990s, with the opening of the democratic space and eventual banning of the Islamic Party of Kenya (IPK) by Moi, Muslim civil society organizations, many of which were newly formed by former democracy activists, remained as the only bridge between the state and Muslim citizens. They include the Council of Imams and Preachers of Kenya (CIPK) and Muslims for Human Rights (MUHURI). With relatively minimal returns, most of these organizations tend to address issues such as the underrepresentation of Muslims in government and public institutions, neglect of those parts of the country with a majority Muslim population, especially in terms of number of schools, employment and other opportunities. It is worth mentioning that these are the same issues that had led to the formation of the IPK.

Due to rising political temperatures at the time, SUPKEM’s officials encouraged Muslims to be loyal to President Moi and his KANU party in return for support from the government.

However, these Muslim organizations are broadly perceived by their constituents as bipartisan, especially because of their relationship with the state and persistent internal wrangles. Some (and perhaps many) members of the clergy (Imams), who either head various mosques or are members of various Mosque Management Committees (MMCs) across the country, are also perceived as bipartisan by virtue of their association with these Muslim leadership entities. This concern and accusations of failure to deliver on their mandate is what was at the centre of the push to “overthrow” and “replace” certain clergy from their pulpits in Mombasa back in 2013 and 2014.

Regardless of the truth in these claims, this was also an opportunity for al-Shabaab to mobilize, judging from the timing and the content of the claims. Sheikh Aboud Rogo—considered an al-Shabaab protégé in Kenya—often spoke about the marginalized status of Kenyan Muslims whom he urged to refrain from engaging with the state. Aboud Rogo pointed to what he termed as failures of secularism and democracy, and claimed that some Muslim leaders had become hypocrites and puppets of the regime who were still clinging on to what he saw as an illegitimate political system. These leaders, he claimed were apostates because they continued to remain silent in the face of discrimination and victimization of Muslims and so they had a shortage of faith (iman) and needed to pronounce the Muslim profession of faith (kalimat) afresh. The ultimate solution according to Aboud Rogo was, therefore, violence in the name of “jihad”.

This is an illustration of how instrumentalization of grievances led some Kenyans to join al-Shabaab, a process that cannot be de-linked from its historical context, yet literature on al-Shabaab and other groups that militarize religion tends to ignore these dynamics. It is also highly likely that these factors will continue to have significance, and the risk of being instrumentalized by similar armed non-state actors will remain.

Today, although confrontations between the so-called “radicals” and “moderates” are no longer visible on the streets thanks to the War on Terror (WOT) that has been waged in a variety of ways, this should by no means be mistaken for successful conflict settlement. On the contrary, going by cases of abductions, disappearances and extra-legal killings, a perpetual state of fear seems to exist. The situation for Muslim leaders and activists today seems more terrifying than at the height of the democratic activism of the 1990s when state-perpetrated violence was the main threat. Without exonerating them of whatever wrongdoing they may be accused of, Muslim community leaders owe their communities—at least as long as they perceive themselves as leaders who have a crucial role to play in preventing the instrumentalization of community affairs.

In order for them to play this role, however, it is crucial that they are guaranteed a safe environment. With the increased involvement of East Africans in the activities of groups like al-Shabaab, the region—and Kenya in particular—has become a marketplace of various counter-terrorism (CT) activities. While it is beyond question that some of these measures have led to some success in terms of thwarting attacks, they have also come at a tremendous cost, polarising relationships between the state and its Muslim citizens, as well as amongst citizens.

The situation for Muslim leaders and activists today seems more terrifying than at the height of the democratic activism of the 1990s.

Al-Shabaab’s claim of fighting for Islam by attacking non-Muslim civilians, and the fact that known al-Shabaab bear Muslim names, has worsened the situation as resentment against Muslims rises with the perception that they are al-Shabaab sympathizers. Engaging in civil rights activism as a Muslim has therefore become an increasingly dangerous endeavour because one is likely to be labelled either as a suspected “terrorist” (an al-Shabaab sympathiser) or as an apostate (a Kenyan-state sympathiser). Muslim activists and leaders have therefore lost much of their agency yet it is this agency (and accountability) that is also crucial in the struggle against al-Shabaab and its narratives.

Following the recent kidnappings of two prominent Muslim scholars, Professors Abdulwahab Sheikh Abdiswamad and Hassan Nandwa, a number of Muslim leaders led by SUPKEM chairman Hassan Ole Naado and Abdullahi Abdi of the National Muslim Leaders Forum (NAMLEF), in cooperation with other civil society groups, came out to strongly condemn the abductions and called out what they termed a “War on terror”-turned-“War on Islam” and the treatment of Muslims as second-class citizens. The outcry resulted in the release of the two abductees. Therefore, if there is anything to be learned from this experience, it is that Muslim leadership, whether political or in civil society and as an intermediary between polity and the state, is crucial and can no longer be brushed aside, especially at a time when the militarization of religion seems to have become the norm.

The current status quo has become a catalyst for the mobilization to violence, which means that something has to change for the situation to improve. No one has the social capital to understand Muslim communities better than Muslims themselves and, therefore, constructive engagement should first mean breaking the hierarchy that separates Muslim elites from their constituents at the grassroots. A multitude of interventions can then follow, from issues of their legitimacy and capacity, to the grievances of the Muslim community and even the situation of women that was recently the subject of a hot debate. Most significantly, it should mean more than press briefings during times of crisis as was recently witnessed; after all, organizing and accountable leadership is one of the best and most cost-effective strategies to stop an al-Shabaab that thrives on local concerns and narratives.

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Politics

Racist Europe: The Ukraine Conflict and the Dark Underbelly of Euro-Modernity

As the total disregard for people of African descent is shown in the context of the deadly invasion of Ukraine by Russia, Christiane Ndedi Essombe and Benjamin Maiangwa argue that the contempt and compulsive need to invalidate, belittle and dehumanize people of African descent remains unchanged in an irredeemably racist Europe. Essombe and Maiangwe ask what does this racism reveal about international human rights frameworks?

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Despite the supposed universality of human rights, we are constantly reminded that these ‘rights’ seemingly never quite apply the same way to racialized people.

It is worth highlighting that the Universal Declaration of Human Rights (UDHR) was signed after World War II, at a time where virtually all of Africa was still colonized by European powers, Jim Crow laws were still enforced in the United States and the vast majority of Indigenous peoples could not vote in Canada. Such an omission, in and of itself, may have been the silent admission that universal human rights were not intended to be so universal after all.

The multiple violations of human rights against people of African descent specifically, from the Transatlantic slave trade to the state-sanctioned murders of suspected Haitians in the Dominican Republic, can leave one wondering whether anti-blackness is the oldest and most accepted international foreign policy. Indeed, the UDHR does not seem to apply to people of African descent who still die in droves in the Mediterranean, remain at risks of getting beaten by US border agents as they exercise their right to seek asylum and can get forcibly tested, evicted and framed as carriers of COVID-19 or Ebola without seemingly any breach of human rights frameworks.

The ongoing armed conflict in Ukraine has understandably shaken and shocked an overwhelming number of governmentsand citizens around the world. For many, the last few weeks may very well have been a reminder that history is written in real time and brutality is still the order of international politics. An assault on an independent sovereign country and deadly attacks on civilians – including children – is no longer the distant rhetoric from past historical events but constitute instead a contemporary reality.

NATO country members openly shared that they are “more united than ever” as Russia faces “unprecedented sanctions”. Several NGOs and UN agencies have also immediately joined forces to ensure the safety of the people of Ukraine, illustrating a clear commitment to their human rights and a stand against the invasion of Ukraine overall. The understandable and anticipated condemnation has been swift and unequivocal, even if ineffective so far.

Yet this response has not been equally applicable to non-Ukrainians, particularly people of African descent. Even non-white people fleeing wars and poverty on the continent, or in Syria, Libya, Yemen, Afghanistan are treated with disgust or allowed to drown in huge numbers in the Mediterranean. This nonresponse to the plights of the “Other” shows the cracks in the so-called universal responsibility to protect, while also demonstrating the nonchalance of African leaders who treat their own people as non-beings at home and abroad.

In any event, it would be expected that during an armed conflict, international human rights law would apply for “everyone within the state’s jurisdiction or effective control”. This implies that representatives of the state ought to guarantee everybody’s human rights regardless of citizenship, including their right to safety as per three of the Universal Declaration of Human Rights.

Yet, several videos have circulated showing how African students, and South Asian individuals were denied that very right. Waiting in the cold for hours, threatened to get shot atdenied access onto trains and forced to walk for hours , it appears that these individuals were not to benefit from the very international laws that should protect them at any time.

“They’re not allowing Black people […], they prioritize Ukrainians” shared a witness recounting their experience as they attempted to leave Ukraine. In addition to illustrating a clear violation of international human rights by discriminating people based on their skin color, this sentence speaks to the intrinsic functioning of racial hierarchy. Black people are seen as belonging to the bottom of such a hierarchy: they are existentially understood as the “Other” who cannot enjoy the same rights as the majority. The only conclusion that can be drawn in the face of such accounts: the treatment of Black foreigners and South Asian foreigners within an emergency context is a manifestation of racism and a clear confirmation that the ‘non-western’ is indeed the wretched of the earth, failed by their own governments and the world community.

Further corroborating that conclusion are the neighboring government’s deliberate changes to prevent documentation and paperwork from jeopardizing border crossing for those fleeing the war. As such, for Ukrainian authorities, documentation cannot be used as a premise to discriminate between individuals. The only reference that remains is a phenotypical one and, effectively, the distinction between white people and non-white people was applied. White people, seemingly regardless of nationality, were able to leave without much difficulty.

Evidently, international human rights principles are colour-blind which might be the very reason why they repeatedly fail to acknowledge, anticipate, and address racism. In 2022, after global condemnation of racism following the videotaped murder of George Floyd, the sudden amnesia and denial about racism as a global phenomenon is both disturbing and revealing. Racism is a critical underpinning of the nation-state ideology. As such, in a nation based on homogeneity, in this case European ancestry, so-called “minorities” are racialized individuals for whom the state laws will not be applied the same way. In such a construction, the very fabric of the society is based on a hierarchical treatment between the majority who belongs and the minority who is only tolerated as long as it knows its place.

That very premise – the differential application of human rights towards racialized populations – is constantly left unchallenged despite being constantly corroborated, be it internationally or in internal disparities in police brutalityincarceration rates, and poverty rates in countries such as Canada and US.

On 1 March, 2022, the African Union shared that it was “disturbed” by reports of African nationals fleeing the war in Ukraine and being denied access to neighbouring countries. In keeping with the common habit of using ‘discrimination’ as a euphemism for racism in political statements, the statement also fell short of calling the treatment of African nationals attempting to flee Ukraine for what it was: racism and ineptitude on the part of the African governments.

What does it say then, that both non-African and African governmental bodies alike ignore the obvious plight of people of African descent and other racialized populations?

What does it say that for many, condemning racist practices against African people inherently distracts away the attention from the “real issue”?

These reactions, one could argue, point to the same underpinning: in human rights laws and in the common imaginary, the individual to protect is inherently seen as white and somehow without of a racial identity. It follows that non-White people are still not seen as deserving of rights and protection.

That would also explain, at least in part, the double standards in rhetoric and overall media coverage witnessed since the beginning of this war.

When such a blatant and terrifying aggression could be an opportunity to both renew a commitment to prevent wars and defend human rights for all, it appears that it is currently failing abysmally.

As a result, when facts show that Ukrainian civilians are caught in a terrible war and deserved to be safe and that non-white people are simultaneously subjected to racism by Ukrainian authorities even during the war, there is seemingly no framework to comprehend this horror.

Two manifestations of human rights violations end up pitted against each other in the Olympics of Oppression instead of being analyzed as stemming from a similar ideological ill: the pursuit of domination over a given people. In any case, the observable consequence is that, once again, human rights don’t extend to racialized people and specifically not to people of African descent.

Does it imply then that people of African descent are already perceived as inexistant and that extending human rights to them is seen as unnecessary?

Death of a people and its civilization does not seem to have such obvious characteristics. It is often only in hindsight that one can appreciate the erasure of a people from international frameworks. Complicating that endeavor is the fact that often, Africans themselves only know about their history as told by former colonial powers or by the Africans who ended up assimilating into a supposedly colorless, objective, approach to their own people.

Fanon warned us that “for the colonized subject, objectivity is always directed against [them]”. It must then be concluded that “objective” international human rights cannot possibly apply objectively to African nationals.

The odds are even further reduced when the geographical setting is Europe itself: the colonial “metropole” that normalized the use of astoundingly barbaric methods to conduct their hegemonic ambitions and carry its so-called mission civilisatrice (civilizing mission) for the purported welfare of the “uncivilized African”.

Centuries pass by and yet, it appears that the contempt and compulsive need to invalidate, belittle and dehumanize the non-western Other – in this case, the person of African descent – remains, even in the context of a war.

Evidence piles up and yet, the very authorities that should speak up against the mistreatment of any other racialized people, remain timid.

Again, we ask, what do these reactions (or lack thereof) reveal about international human rights frameworks? What do they reveal about the existence of African people? Where do they belong?

Even on the African continent, it could be argued that laws and political decisions do not protect our existence and the sustainability of our cultures and heritage.

It is estimated that hundreds of pre-colonial African languages are close to extinction and many have already disappeared.Discourses proffering  various philosophical approaches to governance and social relations such as Negritude (nativist humanism), Afrocentricity, Pan-Africanism, African Socialism (Ujamaa or familyhood), and Ubuntu (togetherness) have for the most part disintegrated after the fanfare of political independence subsided. The architectural landscape on the African continent counts very few remaining pre-colonial artefacts except for the royal palaces of Abomey in Benin, Rock-Hewn churches of Lalibela in Ethiopia and the Djenné mosque in Mali.

Finally, if we look at the organizations of societies themselves on the continent, whether it is populous centers, the division of labour or existing socio-economic classes, they can all be traced back to an era where the erasure of people of African descent was an explicit political ambition.

Whether it is abroad or on the continent, it seems that no legislative or human rights framework can effectively protect the rights and existence of African people.

As the total disregard for people of African descent is further evidenced, this time in the context of the deadly invasion of Ukraine by Russia, perhaps it is worth considering Issa Shivji’s clarion call for an anti-imperialist reconceptualization of human rights that would ‘unreservedly’ be centred on the collective rights and struggles of oppressed people.

This article was first published by ROAPE.

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Politics

Somalia’s Electoral Impasse

Somalia’s prospects for holding an election based on universal suffrage remain a distant dream because of the fundamental flaws of its political system and a political class bent on retaining power at all costs.

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Somalia’s Electoral Impasse

Voting in elections is a civic duty that is vital to democracy. While elections have an intrinsic value (citizens’ choice of their leaders), they also have an instrumental value—building, nurturing, and consolidating democratic governance, transparency, peace, and political stability. In a free and fair election, each valid ballot cast registers a political position. Therefore, informed voters count. But elections are only part of the institutional fabric of a democracy, and a democracy is only as good as its institutions, collectively. Credible election abhors violence, which inhibits the voters’ right to freedom of choice in peace and in line with their conscience. It craves politicians and electoral umpires to ensure peaceful campaigns. Hence, hindering electorates from exercising their franchise negates popular government.

Somalia’s experience of leadership transitions between 1990 and 2022 is a mixed bag. The elections were warfare-like, often mired in widespread corruption, tension, violence, and delaying tactics. Somalia’s electoral calendar has been repeatedly shifted and elections delayed. The prospects for holding an election based on universal suffrage remain a distant dream. Delegates chosen by their respective clan elders vote in members of parliament on the basis of the 4.5 power-sharing formula by which they elect the 275 members of the Lower House (House of People) while the assemblies of the Federal Member States (FMS) elect the 54 Senators of the Upper House. The two houses jointly elect the president. As such, clan elders and FMSs retain considerable power under this system and have long resisted reforms to the electoral law.

Somalia is once again at a crossroads due to the ever-recurring political disagreement over the electoral process. Prime Minister Roble and President Mohamed Abdullahi Farmajo have long been at loggerheads over the long-delayed elections, raising fears that their squabbling could trigger violence.

Election debacle

Somalia’s general elections were to begin in late 2020 but were postponed due to disagreements between the Federal Government and the Federal Member States. While all parties agreed to the indirect election model in September 2020, they nonetheless disagreed on how the model would be implemented. Two Federal Member States, Puntland and Jubaland, have argued that indirect elections cannot be implemented until new conditions are met. These conditions include direct supervision by International partners, replacement of the key election officials, and formation of the national transitional committee that will organize the election. On the other hand, President Farmajo and the presidents of the FMSs of Hirshabelle, Galmudug, and South-West maintain that all parties should implement the September 2020 electoral model without conditions.

On 21 February 2020, President Farmajo signed the electoral bill into law. But the electoral bill has drawn criticism as some important provisions, such as the definition of constituencies, the allocation of seats to constituencies, and the modalities for electing the lawmakers for the breakaway region of Somaliland, were not included in the legislation. Suddenly, on 27 June 2020, the National Independent Electoral Commission of Somalia (NIEC) told parliament that it needed 13 more months to organise one person, one vote national elections. Many, including some of the FMSs and opposition groups saw this as an attempt to extend President Farmajo’s mandate. It was a recipe for political instability.

Somalia is once again at a crossroads due to the ever-recurring political disagreement over the electoral process.

The political crisis flared up when the country missed a second deadline for the legislative and presidential elections planned before the end of the incumbent government’s term of office in February 2021. This was a significant setback for the agreement reached on 17 September  2020 between the Federal Government and FMSs.

Tensions escalated on 12 April 2021 when Somalia’s Lower House of Parliament voted a controversial law extending the president’s term for another two years and allowing the government to prepare for one person, one vote elections. The parliament’s move only added fuel to the already explosive political crisis. It triggered an armed confrontation in Mogadishu where the Somalia National Army attacked units supporting different political leaders. The fighting resulted in death, injury, and the displacement of populations.

The extension of the president’s mandate was short-lived however. In May 2021, the parliament reversed the decision to extend the presidential term limit, averting outright violence. The Speaker of the Lower House of Parliament retracted the extension under intense domestic and international pressure, paving the way for negotiations amongst the Somali leaders. On 27 May 2021, Somali political leaders agreed on the way forward and gave the responsibility of organising the indirect elections to the National Consultative Council (NCC) made up of the prime ministers and the FMS leaders.

In early January 2022, the prime minister convened a national consultative meeting, a forum established to bridge the electoral differences consisting of representatives from the Federal Government and the FMSs. The forum concluded with a 9 January  statement announcing a revised electoral timetable under which the outstanding elections would be held between 15 January and 25 February 2022, with all parties agreeing to conclude all elections by 25 February 2022.

A tortoise’s journey towards elections 

Somalia’s legislative body has two chambers: the Lower House (House of the People) and the Senate (Upper House). While members of the Lower House are supposed to be elected directly by the people, members of the Senate are elected by the regional parliaments. The ongoing 2021-2022 election mirrors the 2016 exercise but has expanded the number of delegates involved in electing members of the Lower House from 51 to 101 delegates.

The election of the 54 members of the Upper House had been completed By July 2021. Moreover, more than 150 of the 275 members of the Lower House have so far been elected. The election of the remaining members was expected to be completed by 25 February 2022.

The Speaker of the Lower House of Parliament retracted the extension under intense domestic and international pressure.

However, in both chambers the majority were elected to the seats through a voter suppression tactic known locally as Mallis: two candidates compete for a seat but one of them is a fake rival candidate who either garners few votes or withdraws from the race.

The Federal Government has been accused of meddling in state elections to swing the votes in its favour. Frequent skirmishes have broken out in several parts of Somalia between federal and local security forces and between clans with contrasting loyalties and interests.

Power struggle, intimidation and corruption

There is growing political tension between President Farmajo and Prime Minister Roble. The recent conflict between them has caused a gridlock in the Somali government’s operations. The strain between them was caused by Prime Minister Roble sacking the head of the National Security Intelligence Agency (NISA), the reshuffle of Cabinet Ministers who are close allies of the president, and the replacement of seven members of the Electoral Dispute Resolution Committee by the prime minister (who accused them of favouritism). The president, sensing a declaration of war by the premier, issued a decree rescinding the prime minister’s decisions. Farmajo attempted to suspend the powers of the prime minister, citing insubordination and making allegations of corruption and land-grabbing. The prime minister remains defiant and accuses Farmajo of carrying out “a coup against the government”. President Farmajo questioned the prime minister’s intransigence and tendency to act on his own.

Opposition leaders have also accused President Farmajo of coercion and gerrymandering elections. They claim that the deployment of special federal forces and paramilitary units in certain regions is aimed at hastening the election process using state violence and intimidation to install a handpicked individual. Jubaland MPs and officials in Kismayo hailing from the Gedo region expressed their frustration, citing interference by federal government security forces in their regional election.

In both chambers, the majority were elected to the seats through a voter suppression tactic known locally as Mallis.

All stakeholders, including the Federal Government and Federal Member States, endorsed candidates who are their allies. These include failed politicians linked to the plunder of public coffers, military and intelligence officials and ex-warlords implicated in human rights abuses, corruption, and murder. On the other hand, Federal Member States’ leaders have bypassed the process by orchestrating the illegal selection of dubious “MPs” to serve their political agenda.

The election process has involved widespread corruption, nepotism, and political violence. The NCC is accused of rigging the elections for the Upper House. Almost all FMS presidents have appointed most of their allies as senators without free and fair competition. Similarly, the NCC has installed its political allies in the Lower House.

The 4.5 power-sharing model

The 4.5 power-sharing formula may have provided some semblance of inclusivity. However, many Somalis believe that 4.5 does not meet their aspirations for greater democracy, inclusivity, and accountability, as it encourages appointment based on clan identity rather than competence. In addition, it does not guarantee that all clans and sub-clans within those clan families are represented in elective positions. The model has also served to further institutionalize the exclusion of women and the youth while wealthy elites continue to dominate the election process.

Role of external actors

A large injection of political finance by external actors may well influence the eventual choice of president, as has happened in the previous two presidential elections. While the most oversized purse does not automatically decide the presidential winner in Somalia, a strong anti-incumbency or tendency towards rotation of power might play a role.

Gulf rivalries have seen Qatar and the United Arab Emirates become increasingly involved in providing political elites with campaign support in order to secure access to oil, port, and airport development projects.

Kenya and Ethiopia have several reasons to take what is happening in Somalia seriously. Ethiopia has been one of the most influential actors in Somalia and, since the election of Prime Minister Abiy Ahmed in 2018, has taken a much stronger position in support of President Farmajo, including supporting the Federal Government’s interventions in regional elections (Ethiopia intervened in both South-West and Jubaland).

Challenges ahead

Challenges persist in achieving substantive progress in Somalia’s democratic transition. Firstly, a fair electoral process and outcome are central to political power contestation and periodic change of government. Somalia’s electoral commission both at the federal and state level should be beyond reproach. Its credibility and independence depend on how it is constituted and appointed. The presidents and leaders of the Federal Member States should not have full control over the comings and goings at the electoral commission.

Many Somalis believe that 4.5 does not meet their aspirations for greater democracy.

Secondly, the politicisation of the institutions of the state, especially those charged with the legal and exclusive use of force such as the military, NISA and the police, both at federal and state level, is detrimental to the health of Somalia’s political systems. These critical institutions need to serve the Somali state and not the political elite. The security forces should be apolitical; as discussed previously, Somalia’s security forces have been used as the ruling party’s attack dog to intimidate, arrest and harass the opposition, ultimately skewing the election in favour of the ruling party.

Thirdly, the critical barriers to resolving Somalia’s constitutional disputes are its fragile judiciary, the weak rule of law, and lack of a reliable mechanism of checks and balances. A potential transitional path lies in strengthening the judiciary by ensuring its independence and improving its competence. More specifically, a robust judiciary framework with a clear and transparent institution of judicial review in statutory law and practice is needed.

This 2020/22 electoral cycle has demonstrated a fundamental weakness of democratic politics in a flawed democracy—the superficial and instrumentalist practice of democracy without the intrinsic belief in the value system that democracy entails. As such, the elections in Somalia have not moved the country’s democratic needle forward. Instead, they have highlighted the fundamental flaws of a political system and a political class bent on retaining power at all costs.

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