During India’s G20 presidency, the initiative to seek a permanent place for the African Union (AU) at the high table was perhaps the most daring of Indian diplomatic acts. With this, India manifested that incorporating concerns of the global south into the G20 process was not mere lip service.

In January, soon after India assumed the G20 presidency, India held the Voice of Global South virtual summit, which saw a large African participation. It was the first effort by a G20 president to obtain the opinion of so many countries outside the G20 membership. The priorities articulated there were amalgamated by India among its proposals while setting the agenda for G20.

The AU is often an invitee to G20 summits. It was established in 2002 as the successor to the Organisation of African Unity (1963). The New Partnership for Africa’s Development was a separate process emerging from the African Renaissance and was established shortly before the AU. When the G20 summit emerged, often the AU and NEPAD were separately invited. Subsequently, NEPAD became a part of the AU and is now the AU Development Agency, though it continues to be invited to G20 summits with regularity.

The AU and NEPAD represent 54 African members of the United Nations and therefore are the single largest group of countries within the global south and the world at large. India has consistently supported bringing African voices to the international table from the time of the Bandung (Afro-Asian) Conference (1955), the nonaligned movement’s Belgrade conference (1961) and beyond.

Africa remains in search of a permanent seat on the UN Security Council, the process for which is stalled. The G20, therefore, was the best place for Africa to find a permanent voice at this time. It is not coincidental that India, which has always championed Africa’s cause, has taken the initiative to include Africa as a G20 member on a permanent basis rather than as an invitee. This was a courageous act, because ever since the G20 was formed nobody tinkered with its membership for fear of competing claims.

India decided that diplomatic capital would have to be expended to achieve some change in the G20. Rather than expend it on an unlikely agreement on the Ukraine crisis, India thought it would perhaps be better to persuade members to include the AU and consequently give a larger voice to the global south in the G20. Along with South Africa―the only African country in the G20 so far―this would indeed bring diversity from Africa into the G20.

Some analysts ask why India did not announce this initiative during the Voice of Global South summit itself. Perhaps at that time, India was determining how its presidency would turn out. The previous Indonesian presidency had been shell-shocked by the Ukraine crisis and the big power divide. At the Bali summit though, these differences were overcome. A joint communiqué emerged. India was looking at continuing the Bali consensus, but it soon became evident at various ministerial meetings that the insistence of western countries on including references to the Ukraine crisis and criticising Russia would be opposed staunchly by Russia and China. The situation in Ukraine had altered from the time of the Bali summit, and Russia and China were unwilling to abide by the same consensus.

The choice now was whether India would expend time and effort to try and find a common language, which seems well-nigh impossible, unless something changes on the ground in Ukraine. India therefore decided that the agenda preferred by the global south should be pursued in all working groups and meetings across the board so that a focused G20 outcome could emerge, leaving the Ukraine crisis by the side. This is also preferred by Africa, which believes that its concerns are ignored as the Ukraine crisis dominates the discourse. Therefore, what was not feasible in January was feasible in June.

India is aware that trying to alter the membership of the G20 opens up many competing rivalries. Why only the AU? Why not other regional organisations like ASEAN (Association of Southeast Asian Nations) or CARICOM (the Caribbean Community) and the like? What happens to the claims of Spain and the Netherlands, which want to expand the European cohort in the G20 but have been placed as permanent guests? India’s initiative clearly lays out that the AU representing 54 countries of the global south is much more akin to the European Union than the ASEAN or CARICOM are. There is no comparison between the numbers of these regional organisations.

Several AU partners like the US, China, EU, Russia and others advocate AU’s inclusion. It is unclear however whether all these supporters of Africa see this as a lever to pry open the membership issues for their own ends. India has set the diplomatic ball rolling and awaits a consensus on AU’s inclusion.

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This article was first published by The Week.

Kenya was host to the inaugural Africa Climate Summit (ACS) from 4th to 6th September 2023 in the country’s capital, Nairobi, at the Kenyatta International Conference Centre. The event was organized by the African Union and hosted by the government of Kenya. The Summit was intended to be a platform for African governments to discuss climate change matters with specific focus on what global plans mean for Africa, and the need to prioritize Africa’s position and perspectives in the lead up to the 28th UN Climate Change Conference of Parties (COP28) set to take place in Dubai in December. The African Union’s plan was to use the Summit as a platform for influencing commitments, pledges, and outcomes, and to the develop the Nairobi Declaration.

The Africa Climate Week (ACW), organized by the UN Framework Convention on Climate Change (UNFCCC), also took place in the same week and at the same venue. The ACW was one of four regional climate weeks that were planned for 2023. The regional climate weeks are aimed at building momentum ahead of COP28 in Dubai, designed to chart the way for fulfilling the Paris Agreement‘s key goals.

To put it in less technical terms, both the ACS and the ACW are opportunities for African governments to consolidate Africa’s position ahead of COP28 and develop the continent’s plan for addressing climate change. It was a moment to develop (and agree on) ‘Africa’s climate action plan’.

Climate action is the collective term for all actions aimed at addressing climate change and its impacts. These actions are broadly divided into actions to reduce greenhouse gas emissions (mitigation measures), and actions to prepare for and adjust to both the current effects of climate change and the predicted impacts in the future (adaptation measures). Examples of mitigation measures include replacing non-renewable energy sources (such as oil and coal) with renewable sources (such as wind and solar), and sustainable transportation (electric vehicles). Examples of adaptation measures include upgrading infrastructure to be able to deal with the effects of climate change such as floods. Restoring natural landscapes, mainly done through afforestation and reforestation, is considered both a mitigation and an adaptation measure.

Africa’s positions on the agenda items up for discussion are of particular importance because of the extent to which countries in the global south are affected by the effects of climate change (despite having contributed the least emissions). The African continent contributes the least to climate change yet it is the most vulnerable to its impacts, and therefore has to invest more finances to adapt to the climate crisis.

The summit also came with its fair share of differing views. However, while participating organizations had divergent opinions about what should be the focus of the summit and which voices should get priority, we must acknowledge that having the summit presents a platform for the different stakeholders to inform the discussion. The summit generated enough traction for even those who disagreed with its organization and thematic focus to be able to voice their dissent. As a friend and colleague put it to me, even being able to state that some groups were not adequately represented at the summit is progress because if we did not have the summit all groups would not have gotten this platform. And we also have to acknowledge that we couldn’t have gotten everything right at the inaugural summit. Kenya has set the bar high and a lot will be expected from the next ACS, based on the Nairobi Declaration and everything that happened in this period.

One topic that has not gained prominence in the climate change discussions is that of land rights and tenure rights, and how all the planned climate action will impact these rights in Africa. Global climate action, aimed at addressing the causes and effects of climate change, includes a lot of actions to be undertaken on land. Actions such as setting up wind power farms and solar power farms, enhancing forest protection while promoting afforestation and reforestation, and protecting biodiversity hotspots all have a significant impact on land uses, and consequently on the land and tenure rights of communities living in these areas. And for most countries in Africa, these communities rely on these lands for their livelihoods and household food security. However, the discussion on the actions to mitigate climate change and adapt to the effects of climate change is happening without sufficient consideration of the implications these actions will have on the land rights and tenure rights of Africa’s rural communities.

Kenya’s government, for example, has set out to plant 15 billion trees over the next 15 years to realize the country’s forest restoration targets and tackle the effects of climate change. President William Ruto has reiterated the importance of this programme as part of the country’s effort to address climate change severally. The Ministry aims to reach 30 percent tree cover by 2032 (as of June 2022, Kenya had attained 12.13 percent tree cover and 8.83 percent forest cover). While it is commendable that the highest office in the land took up, and is championing a most crucial environmental agenda, we need to be more explicit about where we will plant these trees. The political goodwill from the presidency should also include support for development of a clear strategy for identifying the lands where these trees will be planted, ascertaining the ownership of (or claims to) these lands, and ensuring the trees will be cared for to maturity. Issues that we should address as we attempt to achieve this momentous goal include: total area of land required to plant this number of trees; a stock take of the amount of land available for restoration; the existing ownership of the lands that will be targeted for tree planting and for restoration in general; the current land uses of these lands; the impact of land use changes on the socioeconomic wellbeing of the landowners or tenure right holders; and whether the existing legal framework on land and environmental governance will sufficiently protect rural communities’ food security and livelihoods.

Kenya’s government has also stepped-up efforts to establish a legal framework to guide ‘carbon trading’. Since March this year, the government has been developing legislation to regulate carbon offset projects. In May, the Ministry of Environment undertook public participation to get proposals from sector stakeholders and from Kenyans on the Climate Change (Amendment) Bill, 2023. The Bill amends the Climate Change Act of 2016 by introducing a section to guide the establishment of carbon offset projects in the country. An amended version of the Bill was introduced to Parliament in August. In July, the National Assembly’s Budget and Appropriations Committee (BAC) approved the Carbon Credit and Benefit Sharing Bill, 2023 for a formal introduction to Parliament. This is another bill that attempts to provide a legal framework for carbon offset projects, but focuses on how the funds from carbon offset projects will be shared among the project owners, the national and county governments, and local communities.

However, both bills do not put land rights, or land ownership, at the centre of these projects, and consequently fail to provide safeguards for local communities who rely on these lands for their livelihood and food security.

The version of the Climate Change (Amendment) Bill that was presented for public participation did not include reference to land ownership. The amended version that was introduced to parliament in August 2023, is an improvement as it refers to land-based projects, and provides that such projects shall be implemented through community development agreements when implemented on public or community land. The Bill also introduces a benefit-sharing mechanism that falls short in terms of consistency with the provisions of existing legislation (specifically, the Community Land Act) on benefit-sharing for investments on communally owned lands.

The distinction between land-based and non-land-based projects is a step in the right direction. However, the Bill does not include sufficient provisions to guarantee that the livelihoods of communities living in areas where these land-based projects will be undertaken are safeguarded. Furthermore, the lack of distinction between public, private and community lands means that the community benefitting from the annual social contributions of the project may be in some cases getting less than their fair share of proceeds – a share not commensurate with the community’s contribution to protecting a forest or restoring degraded lands. (The President assented the Climate Change Amendment Act, 2023 into law on Friday, 01 September 2023).

Without recognition of local communities land rights and tenure rights, there is a risk that all these actions, while well-intended, will result in even more communities being disenfranchised. If we do not develop a framework where we can identify the legitimate landowners before commencement of these projects, then there is a high likelihood that despite the huge investment in carbon offset projects, the communities that are the legitimate landowners will be short-changed.

Unfortunately, there has already been a report of a carbon project for which a company allegedly earned millions of dollars (estimates of between US$21 million and US$45 million) from tech giants Netflix and Meta, but the tens of thousands of pastoralists in Northern Kenya who are the legitimate owners of the land did not get a just share of these proceeds, despite the project significantly interfering with their lives and their livelihoods. The report raises several issues, including that of the status of land ownership. Kenya’s Community Land Act provides a framework that, if implemented before this project began, would have ensured the communities are not short-changed in any investments that happen on their land.

The Africa Carbon Markets Initiative (ACMI) Roadmap report is another report that highlights the risk of carbon offset projects benefitting other stakeholders as opposed to legitimate landowners. The report lists high reliance on intermediaries as a challenge to the growth of African carbon markets, and further states that these intermediaries can take up to 70 percent of the value of carbon credits. The ACMI Roadmap report therefore emphasizes the need for establishing clear revenue sharing frameworks. The United Nations Development Programme (UNDP) also recommends that there should be transparency in the institutional and financial infrastructure for carbon market transactions, and there must be adequate social and environmental safeguards to mitigate against any adverse project impacts – and to promote positive ones.

One way to prioritize and safeguard rural communities livelihoods, and to ensure equitable and transparent distribution of revenues from carbon offset projects, is by recognizing and securing the land rights and tenure rights of these communities. Recognizing and securing communities’ tenure rights in line with national legislation will introduce safeguards for the communities and ensure equitable sharing of revenues from carbon offset projects when the legislation includes provisions on benefit-sharing. In addition, recognizing and securing communities’ land rights and tenure rights will encourage communities living in areas targeted for climate action to implement measures that can contribute to national environmental targets (such as community-led landscape restoration).

In Kenya, a practical requirement that can safeguard communities’ interests as we continue implementing different types of mitigation and adaptation measures is to ensure the land ownership is ascertained before commencement of any environmental project. While the process of ascertaining land ownership is straightforward for private lands, documenting communally owned lands is a lengthier process that involves more steps and would likely take months, or years, to complete for each parcel of community land. This lengthy process would present a challenge to the efficiency with which we can initiate these environmental projects. However, the benefits of initiating the process of ascertaining land ownership prior to implementing land-based environmental actions far outweigh the risks of implementing actions that will impact land uses without ascertaining land ownership first.

Kenya’s Community Land Act details the process of registering communally owned lands. This process can be broken down into two general steps: (i) registering the community laying claim to the land, and (ii) registering (surveying and adjudicating) the community land. For all projects that aim to reduce emissions or reduce the effects of climate change on local communities, the government should ensure that registering the community laying claim to the land on which these projects will be undertaken happens before such projects begin. This would mean that if a company plans to set up a solar power farm or undertake a carbon offset project in Laisamis Location in Marsabit County, the Ministry of Lands would first have to initiate the process of community land registration and provide the company with a legally registered community entity that claims the land on which the project will be undertaken. Once the ministry informs the company of the legally registered community — one that has an updated community register (a register of all adult members of the community) — the company would be able to negotiate with the community in a fair manner, and in accordance with the law. Without this first step, all discussions on how revenues from the project will be distributed will be based on an entity (Laisamis Community, for example) that is not formally documented. This often results in a scenario where other parties (including elected representatives) can exploit legal loopholes to their benefit, and to the disadvantage of the community. For most land-based investments, when a community is not formally documented, the community often (involuntarily or otherwise) cedes their decision-making to other existing institutions (elders, elected representatives, etc.).

In 2019, the UN Convention to Combat Desertification (UNCCD) passed its landmark Land Tenure Decision. The decision identified responsible governance of tenure, including recognition of communities’ tenure rights, as a way of reconciling community livelihoods with the national actions to achieve the goals of the convention. The UNCCD’s land tenure decision goes further to invite member countries to integrate land tenure by adopting principles of responsible land and tenure governance such as legally recognizing equal use and ownership rights of land for women, the enhancement of women’s equal access to land and land tenure security, and the promotion of gender-sensitive measures. The adoption of this decision is an acknowledgement that responsible governance of tenure can be the solution to ensuring actions to protect and conserve the environment, and to save the planet, can be achieved while safeguarding the livelihoods of rural communities and ensuring they equitably benefit as custodians of the lands that are targeted for environmental and climate action.

If the tenure rights of indigenous people and local communities are not recognized, and formalized, prior to implementing climate change mitigation and adaptation measures, climate action could increase inequalities and put communities livelihoods more at risk.

As the four regions continue to consolidate their positions ahead of the UNFCCC COP28, it is important that nations from the global south, and particularly African countries, introduce the topic of securing communities’ tenure rights and land rights in the context of climate action. African member states agreeing on the position that tenure rights of rural communities should be prioritized in the context of climate action, especially as member states pursue large scale ecosystem restoration and carbon offset projects, is one way to introduce this discussion to all parties. With 90 percent of Africa’s rural lands being undocumented and informally administered, the communities that rely on these lands are at risk of losing their main source of livelihood to support activities that may further limit their capacity to adapt to the effects of climate change. The recognition of communities’ tenure rights, and consequently securing the benefits that accrue to them in the context of local level environmental actions, would also mean that their adaptive capacities are strengthened. The Africa Climate Summit was the first opportunity to call parties’ attention to the fact that without securing the land rights and tenure rights of local communities there is a significant risk that the investment in climate action, including the investment in carbon offset projects, will benefit the intermediaries and other stakeholders, and not the communities who have been custodians of these lands and are most vulnerable to the impacts of climate change.

The 27th of August 2023 marked thirteen years since we, the Kenyan people, gave ourselves a new constitution. One cannot forget the historical hurdles that befell the process. Be it the Yash Pal Ghai-led version, the Wako draft, or the Nzamba Kitonga-led team, the three versions of the document each faced contestation, and had supporters and opposers. At each stage, critical opposition to the draft document centred around themes of power-sharing (devolution), land, boundary demarcations, the role of religion in adjudication (Kadhi’s courts), and more vehemently, women’s bodily autonomy (abortion). Eventually, post the referendum, the final product has become a loved, celebrated and widely quoted document that civil society and religious groups, the courts, parliament and the executive have all found to be a source of inspiration and justification for their actions, or lack thereof.

It has not been all glitz and glamour post-2010, however. There have been several instances where flagrant attempts to mutilate the constitution have been made. The Building Bridges Initiative (BBI) represents the most notorious of these attempts. The failure to implement the two-thirds gender rule is another case in point; this grundnorm has been disrespected despite court orders. The Linda Jamii Constitutional Amendment Bill by the Kenya Christian Professionals Forum is the latest attempt to change the text of certain provisions that do not sit well with the group. Whether these clauses of the constitution are an affront to democracy, the rule of law and the values we espouse as a nation is a debate for another day.

On the flipside, over these thirteen years there have been numerous successful wins thanks to the constitution. Willingly ceding power and implementing devolution was one of the earliest litmus tests for abiding by the katiba. While not yet perfect, we seem to be increasingly getting a grip on the benefits of decentralising power. Today, governors and their county assemblies seem to be much more in sync. Mandates seem clearer. The woes that governors such as Martin Wambora and Kivutha Kibwana faced in the earlier years of power struggles seem to have lessened (without, of course, ignoring Governor Kawira Mwangaza’s rocky start to her leadership in 2022).

Many more wins have perhaps been exhibited in court. Today, we see the utility of Article 2(5) and 2(6) of the Constitution, particularly when the government has violated the international provisions of the treaties that Kenya has ratified. Case in point: Zipporah W. Mathara was a pivotal reminder of the Kenyan government’s duty under the International Convention on Civil and Political Rights – ICCPR. From judicial precedent, accountability is no longer just restricted to the national laws we have passed (or failed to pass) in our parliament; we now hold government to a higher standard.

As a feminist scholar with a bias towards women’s progress, I must point out that the constitution has been generous and creative in bequeathing rights to women. Taking the cue from the katiba, the courts have pronounced themselves on such prominent cases as JMM v the Attorney General (access to safe abortion for rape survivors), LAW v Marura Maternity Hospital (forced and coerced sterilisation of women living with HIV), Josephine Majani v Bungoma District Hospital (disrespect during childbirth), Maimuna Awour vs Pumwani Maternity (detention of women post-childbirth) and Dr Tatu Kamau v Attorney General (Female Genital Mutilation). Through these cases, the courts have given life to Articles 26, 27, 29 and 43 of the katiba. On paper, I dare say, Kenyan women today have layers of safeguards on a broad range of health-related rights.

Beyond women’s reproductive rights, the constitution has also not shied off safeguarding minority rights. Today, the Lesbian, Gay, Bisexual, Trans and Intersex (LGBTQI) community in Kenya celebrates the freedoms protected thanks to Articles 10, 27, 36, 43 and many more. In the words of the Katiba Institute, “The adoption of the Constitution meant that the State cannot pick and choose which types of people are deserving of having their rights respected, protected and fulfilled.” The gains to this community have been reaffirmed under various themes. Audrey Mbugua’s challenge to the Kenya National Examination Council reminded us that any human being had the right to government-issued documentation that bore their desired name in the case where a person had legally changed their name. Equally, in February this year, the Supreme Court was quick to remind us in the precedent-setting case of Eric Gitari v Non-Governmental Organization Co-ordination Board & 4 others that discrimination on grounds of sexual orientation is unconstitutional. Guided by the provisions of the constitution, the court reaffirmed the freedom of association as not being exclusive to certain groups.

“The adoption of the Constitution meant that the State cannot pick and choose which types of people are deserving of having their rights respected, protected and fulfilled.”

Furthermore, March 2018 was another critical date for the LGBTQ community, with the Court of Appeal (Mombasa) testing the right to privacy, dignity and fair hearing in the case of COI & another vs Chief Magistrate’s Court Ukunda. The Court of Appeal’s determination that it was illegal and unconstitutional to obtain and adduce evidence in court through forceful anal testing has been a useful reminder to public health practitioners about the constitution’s safeguards. The intersex community also celebrates the gains derived from the constitution. In 2019, the Taskforce on Policy, Legal, Institutional and Administrative Reforms regarding Intersex Persons in Kenya recommended the suspension of the practice of “corrective surgery” for intersex children. The taskforce also recommended the introduction of a third gender marker on official identity documents. The 2019 National Census thus factored this recommendation in the population headcount and since then there have been incremental gains for the intersex community, with more gender markers – including a third category – aligning with the provisions against non-discrimination provided by Article 27.

Other groups that have tested the range of our constitutional freedoms include Team Maandamano who greatly benefited from Article 37’s guarantee of the right to assemble and picket. Until recently, numerous groups would often easily obtain police permits to hold walks, protest deaths within their communities, demand for action, etc. Religious groups in all their diversity have also continued to enjoy the protections of Article 32 (while also continuing to enjoy tax exemptions in an extremely hostile economic environment). Our freedom of worship as Christians, Muslims, Hindus… – and even the protection of atheists – is guaranteed. The width and breadth of the right to a fair hearing has also been tested by a wide variety of beneficiaries; be it arrested suspects, members of parliament, students dismissed from educational institutions, many Kenyans have made applications to the courts under Article 50 of the Katiba and received reprieve.

By no means is our katiba perfect. There is evidence of its abuse, with politicians most notorious for disrespectfully disregarding Chapter Six on the ethical standards demanded of public officials. On both sides of the political divide, there have been several instances where politicians have shown that they may not be 100 per cent committed to the implementation of the constitution. Both factions have in the past (and also currently) been involved in subverting the constitution and, going forward, this is a fundamental question that Kenyans must address. Many other clauses – particularly those not favouring incumbents, such as term limits – have come under fire. These hiccups are, however, minor and do not warrant any sudden attempts to mutilate the document by inviting Constitutional Amendment Bills. As argued by Jill Ghai, those who may want to change the constitution want to do so because they do not desire change. Proposals to amend the katiba must, therefore, be scrutinised with great care. Jill’s remarks are reinforced by Miguna Miguna who has in the past argued that “there is nothing wrong with the Constitution. No defect. No errors. Nothing that requires amendments or mutilations. The Constitution of Kenya requires honest and consistent implementation, application and respect. Period!”

The government, the Church, and civil society organisations all have a duty to breathe life into the document, test its range in the courts and find creative, legal solutions to address any lacunas. Thirteen years later, any ideas of wantonly amending this grundnorm must be zealously discouraged.