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SPEAK OF ME AS I AM: Ethiopia, Native Identities and the National Question in Africa

Does a country create a people, or do a people create a country? KALUNDI SERUMAGA responds to Mahmood Mamdani’s recent analysis on the political situation in Ethiopia.

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The Westphalian principles, rooted in the 1648 Treaties signed in the European region of that name, have been monstrously mis-applied when it comes to the African continent, yet they established modern international relations, particularly the inviolability of borders and non-interference in the domestic affairs of sovereign states.

The default position of a certain generation and class of African nationalist, is to cleave unto the “new” nation born at Independence, as the only legitimate basis upon which African progress can be conceived and built. Everything else, especially that dreaded category, ‘ethnicity’ is cast as a diversion and dangerous distraction.

This is the tone that runs through Ugandan Professor Mahmoud Mamdani’s one thousand-word opinion piece: The Trouble With Ethiopia’s Ethnic Federalism, published on 3rd January for the New York Times by (and patriotically reproduced in Uganda’s Daily Monitor newspaper), bearing a total of fifty-four iterations of the word ‘ethnic’.

The default position of a certain generation and class of African nationalist, is to cleave unto the “new” nation born at Independence, as the only legitimate basis upon which African progress can be conceived and built.

At Independence, the Westphalia protocols were conferred on to the former colonial contraptions. The results were economic stagnation and political repression. For over five decades, these new nations have been the focus of intellectual and political agitation among Africa’s thinkers. When, after all that rumination and fulmination, our thinkers still get things horribly back to front, we all get stuck at a crossroads.

Mamdani’s essay comes as our current Exhibit A in this long history of intellectual malfunction. Current Prime Minister, the youthful Abiy Ahmed is faced with a many-sided series of demands from a deeply frustrated population. Many of these relate directly to the lack of an economic growth model that palpably raises living standards. Others reach further back to the age-old question of land ownership and reform. Naturally, the demand for greater civic rights to speech and assembly come as a prerequisite. One feature common to these demands is the tendency for the Ethiopians to speak through, and/or on behalf of the various constitutionally recognised native identities within the country. Some may have even formed militias for this purpose.

Mamdani’s essay comes as our current Exhibit A in this long history of intellectual malfunction.

Mamdani engages with this to make an analysis not just of the Ethiopian crisis itself, but of the question of what he terms “ethnicity” which, he sees as the issue – or more accurately, the ‘problem’ – permanently bedevilling African politics. “Fears of Ethiopia suffering Africa’s next interethnic conflict are growing,” he warns.

Prime Minister Abiy has been quick to concede much, and roll out as many reforms as he can. Most notably, he has ended the two-decade stand-off with his northern neighbour, Eritrea.

Mamdani engages with this to make an analysis not just of the Ethiopian crisis itself, but of the question of what he terms “ethnicity” which, he sees as the issue – or more accurately, the ‘problem’ – permanently bedevilling African politics.

This may not be enough, Mamdani tells us. The real problem, as he sees it, is the introduction of ethnicity into Ethiopian governance, and its central position in the Ethiopian constitution. This, Professor Mamdani says, was done by former Prime Minister, the late Meles Zenawi, who served as the de facto Ethiopian strongman from 1991 to 2012. Mamdani describes this as an attempt to replicate a similar strategy of ethnic organization that, in his view, was introduced to Africa as part of the colonial method of governing:

“In most of Africa, ethnicity was politicized when the British turned the ethnic group into a unit of local administration, which they termed ‘indirect rule.’ Every bit of the colony came to be defined as an ethnic homeland, where an ethnic authority enforced an ethnically defined customary law that conferred privileges on those deemed indigenous at the expense of non-indigenous minorities.”

This analysis fails to stop itself there, which would have been bad enough.

“The move,” continues the Professor, “was a response to a perennial colonial problem: racial privilege for whites mobilized those excluded as a racialized non-white majority. By creating an additional layer of privilege, this time ethnic, indirect rule fragmented the racially conscious majority into so many ethnic minorities, in every part of the country setting ethnic majorities against ethnic minorities.”

Describing native homelands as a “fiction”, the Professor goes on to say that while such ethnic labelling and selective privileging may have served the colonial purpose, it had the effect of first, “dividing a racially conscious African population” and second, turning them into people who saw themselves as “tribes” first and foremost.

Thus, he concludes, “Wherever this system continued after independence, national belonging gave way to tribal identity as the real meaning of citizenship.”

Having thus problematized the “ethnic” thing, Mamdani goes on to imply that there may be no peace to come in Ethiopia unless the issue is excised from the Ethiopian body politic in particular, and Africa in general.

These words have many meanings, none of them good for Africans, at least.

First, this is the same thing as saying that before European arrived in Africa, “ethnic” identities were not politicized, and neither were they units of administration. Taken to its logical conclusion, this is to say that there were no ‘politics’ in precolonial Africa, and neither were there forms of administration.

Having thus problematized the “ethnic” thing, Mamdani goes on to imply that there may be no peace to come in Ethiopia unless the issue is excised from the Ethiopian body politic in particular, and Africa in general.

Africans seem to have been roaming the continent as a cohort of an undefined but also homogenous mass, with wholly insignificant identities, which were only solemnised, formalized, and bestowed with political meaning with the arrival of a European power amongst them.

Second, it also implies that only the European had the skill to animate these identities, without them tearing the (therefore necessary) European-planted state apart.

Third, that the tragedy of modern Africa began when the European withdrew his controlling hand. Left to their own devices, the identities he had created, mutated into a Frankenstein’s monster of tribal strife.

Fourth, that there is such a thing as ‘national identity’ that sprung to life fully formed at independence, a good by-product of the European-planted state, and that it is African ‘tribalism’ that destroys it. In other words, European-invented African tribalism spoils the one good thing (nationalism) that Europe brought to Africa.

Finally, that belonging to the European-planted nation in Africa is the only viable means of an African citizenship. But if the British were pre-occupied with “ethnicizing”, and the resultant people’s feelings and loyalties were exclusively ethnic, where then does “national belonging” come from at independence?

The entire analysis of the crisis is a crisis in itself: of naming, histories, theories and practice. It is intellectually disingenuous and patronising, and goes beyond the usual linguistic demotion and belittling one usually encounters from many an expert on Africa.

Naming

Why are 34 million Oromo in Ethiopia an ‘ethnicity’, and 5.77 million Danes a ‘nation’?

Why are the three great wars that shaped modern Europe (Franco-Prussian, the 1914-18 and 1939-1945 great wars), not conceptualized as ethnic conflicts?

Mamdani’s entire analysis of the crisis is a crisis in itself: of naming, histories, theories and practice. It is intellectually disingenuous and patronising, and goes beyond the usual linguistic demotion and belittling one usually encounters from many an expert on Africa.

Why are there only a handful of contemporary states in Africa whose names bear a relation to the identity of people actually living there. Everyplace else is a reference to a commodity, or an explorer’s navigational landmarks.

This frankly malevolent labelling offers the space for the linguistic demotion of entire peoples. To wit: 34 million Oromo, seven million Baganda, 43 million Igbo, 10 million Zulu will always remain ‘ethnicities’ and ‘tribes’ to be chaperoned by ‘whiteness’. 5.77 million Danes, 5.5 million Finns, and just 300,000 Icelanders can be called ‘nations’, complete with their own states with seats at the UN.

Some of these states were only formed less than two centuries ago (Italy: 1861, Germany: 1815, Belgium: 1830), while some of those ‘tribes’, and most critically for the argument, their governing institutions had already been created.

Why has the ethno-federalization of Great Britain itself, not been seen as such, and as a recipe for conflict?

This, in fact, is the real ‘fiction’, and it has led to decades of instability. But just because Westphalia does not see them, does not mean the African nations don’t exist. The denial of their existence is in fact, an act of violence.

This is what led a thus exiled Buganda’s Kabaka Edward Muteesa II to write: “I have never been able to pin down precisely the difference between a tribe and a nation and see why one is thought to be so despicable and the other so admired.”

Many modern Africans, especially those whose identity is a product of the European imposition of contemporary African states, have a vested interest in making a bogeyman out of native African identity. The starting point of this enterprise is to invite the African to agree to see our own identities as a liability to African progress, by labelling them “ethnic”.

When “ethnic” conflicts do flare up, those natives who have refused to jump on to this bandwagon are subjected to a big “I told you so”, as Mamdani’s essay now seeks to do.

Many modern Africans, especially those whose identity is a product of the European imposition of contemporary African states, have a vested interest in making a bogeyman out of native African identity.

This was the position of the OAU member states, and many African political parties, including those in opposition to their increasingly repressive post-Independence governments.

But Ethiopia presents a huge problem for Professor Mamdani’s theory of the colonial roots of “ethnicity”, since its history falls outside the usual African pattern of a direct experience of European colonialism.

Since his initial assertion when introducing the issue of ‘ethnicity’, was that it was a result of European labelling leading to a “divide and rule” situation, Mamdani is then faced with the difficulty of explaining where those particular Ethiopian ‘ethnicities’ spring from if there were no Europeans creating them. Unless, to develop his assertion of homelands being a ‘fiction’, he thinks Ethiopia’s various nationalities are fictional too?

Ethiopia presents a huge problem for Professor Mamdani’s theory of the colonial roots of “ethnicity”, since its history falls outside the usual African pattern of a direct experience of European colonialism

He covers up this logical gap by pre-empting a proper discussion of that history. Then changing tack, he suggests that the presence of “ethnic” problems in Ethiopia, despite the country’s lack of a European colonial history actually shows that “ethnicity” is somehow a congenital defect in the body politic of all Africa.

“The country today resembles a quintessential African system marked by ethnic mobilization for ethnic gains.”

Of course the correct answer to all the above questions is that Africa’s Africans had their ‘ethnic’ identities well known and in place long before the arrival of any European explorer or conqueror. And these were not anodyne proto-identities, but actual political institutions and methods of organization and governance. But this is an inconvenient truth, because then it forces the proper naming of these alleged ‘ethnicities’: nations.

All told, deploying notions of “ethnicity” and “tribe” is a tactic to corral Africans into primordial nomenclatures, thereby avoiding a recognition of their pre-colonial formations as nations. It serves to fetishize the colonial project as the godsend device to rescue the African ethnic strife and predestined mayhem.

But if the 34 million Oromo are an ethnicity, then so are the 5.77 million Danes. More so for our situation so are the English, Scots and Welsh who field national teams during the World Cup and the Commonwealth games. We need consistency, people must be spoken of as they are.

Deploying notions of “ethnicity” and “tribe” is a tactic to corral Africans into primordial nomenclatures, thereby avoiding a recognition of their pre-colonial formations as nations.

Naturally, the emergent Independence-era African middle class was more than happy to go along with this erasure, in what Basil Davidson called an attempt at “the complete flattening of the ethnic landscape”, and even fine-tuned it. Where some concessions had been made to the existence of the old nations, these were quickly, often violently, dispensed with.

In British Africa, the politics of trying to dispense with this reality is what dominated virtually all the politics of pre-independence constitutional negotiations. The question informed even the political alliances that emerged at independence.

In Zambia it required a special constitutional pact between the new head of state, Kenneth Kaunda and the ruling council of the Barotse people – they have recently sought to repudiate it and return to their pre-colonial status.

Ghana’s Asante kings were against the British handing power to Nkrumah’s government. They argued that since they had ceded power to the British via treaty, then the departure of the British meant a termination of those treaties. Logically, therefore, that power should be re-invested in the ones it had been taken from under treaty.

In Kenya, the Maasai and the Coastal peoples used the same argument during the decolonisation conferences at Lancaster House. Significantly, the Somali rejected inclusion in the independence Kenyan state, insisting that they wanted to be integrated into independent Somalia. Unable to resolve the ‘Three Questions’ the Foreign and Colonial Office cynically kicked them into the not-very-long grass for the incoming leadership to deal with. The Mombasa Republican Council of today draws its political legitimacy from the updated colonial-era Witu Agreement of 1906, signed between their ancestors and the independence government.

Histories

To understand the current situation in Ethiopia, one must face up to the challenge of properly understanding any part of Africa, a continent so taxonomised and anthropologised by white thinking that it is barely recognizable on paper to its indigenous inhabitants.

It is a two-stage challenge. First: to understand Ethiopia’s history. To do that, one must first recognise and accept the possibilities of an African history not shaped, defined and animated by European imperatives. Africans, like all people, have been making their own history. And like people elsewhere, this has as much narration of the good as it does the bad.

To understand the current situation in Ethiopia, one must face up to the challenge of properly understanding any part of Africa, a continent so taxonomised and anthropologised by white thinking that it is barely recognizable on paper to its indigenous inhabitants.

Ethiopia’s crisis is a consequence of a century-old unravelling of the empire built by Emperor Menelik II (1889-1904).

As his title implies, this was not a nation, but an Empire: a territory consisting of many nations, brought into his ambit by one means or another.

Menelik’s motives and method can, and should be debated, but the fact is that Europe met its match in the Ethiopian Highlands, and were forced to leave Menelik to it.

Ethiopia’s crisis is a consequence of a century-old unravelling of the empire built by Emperor Menelik II (1889-1904).

Yes. Africans also produce momentous historical events. It is not an exclusive trait of white people.

We must get into the habit of discussing our own non-European driven history as a real thing with real meanings. Just as we may talk about the continuing long-term effects of the collapse of the Austro-Hungarian Empire on the European Balkan region, so can we talk about how the demise of Menelik’s empire continues to impact on the greater Horn region.

If that sounds far-fetched, bear in mind that since Menelik’s passing 120 years ago, Ethiopia has had only six substantive rulers: Zewditu/Selassie, Mengistu, Zenawi, Dessalegn and now Abiy.

On his passing, Menelik left a region covering more than three times the area he inherited. Prince Tafari, upon eventually inheriting the throne as Emperor Haile Selassie in 1930 simply sought to consolidate it.

In his 2002 biography: Notes from the Hyena’s Belly: An Ethiopian Boyhood, the Ethiopian author Nega Mezlekia tells the story of him and his family, as one of many Amhara families that migrate to Jijiiga, a region in the far east of Ethiopia during the reign of Emperor Selassie. This was part of a government programme of Amhara settlement to many parts of the Ethiopian countryside. Jijiiga is home to ethnic Somalis. Amhara expansion, one of several factors, eventually provokes an armed revolt. Ironically, the author in his youth joined the insurgents.

Emperor Selassie can be said to have made some errors, but the context is critical: his reign spanned a period that saw immense changes in global politics, and social ideas.

Consider his life and times:

He witnessed the two great inter-European wars, the fall of its empires (Italian, German, Ottoman, Japanese) and the end of direct European occupation of Africa. He suffered two European invasions of his realm, and lived in exile. He was a regent during the Bolshevic Revolution in 1917, and saw the emergence of the Soviet Union as a world superpower and the Cold War that followed. He may have been one of only a handful of world leaders to have been a member of both the United Nations, and the League of Nations that preceded it.

This sweep of history also had its impact on the Ethiopian peoples. One response was a growing demand for social, economic and political reform, including loosening the bonds of Selassie’s empire.

By the time of the 1975 coup against him, the world was a fundamentally different one than the one he had met when he took the throne. He was, in fact, so “old school” that his captors were taken aback when he calmly informed them that he had no personal income or savings to look after himself.

He took a hard line on Eritrea, which had settled into an uneasy federation, provoking a war of secession; continued Amhara settler expansion into Oromo and elsewhere; and he failed to manage Tigrayan nationalism, rooted partly in their dynastic loss of the imperial throne to that of Menelik’s Shewa kingdom. Critically, he did not effectively address agrarian land reform, one of the roots of the country’s political and agricultural crises.

So, to sum up Emperor Selassie: ultimately, he neither succeeds to fully consolidate his empire, nor does he re-order the empire’s boundaries and strictures, which he had inherited in a fundamentally different era. He found himself fighting the more conservative elements of his aristocracy opposed to his reforms; the modernist republicans concerned that he was not reforming fast enough; and the increasingly radical nationalists in the regions demanding self-determination.

Enter Colonel Mengistu, something of a zealot, but who, for all his violent tendencies, was more of the “social reform” persuasion, and sympathetic to the “land to the tiller” demands of the early radical youth movements. Having overthrown a monarch, he saw himself in the image of the Soviet Union’s Communist party in Russia which had deposed the Russian King Tsar Nicholas II. His task, as he saw it, was to create a socialist state.

However, Mengistu had basically taken over the same state that Selassie inherited and he was still wedded to it. His modernist concept of history and the world prevented him from understanding that he was dealing with a home-grown imperial history, and that he was in effect therefore, running an empire.

This blinds him to the “nationalities question”, and only intensifies the agitations among the various indigenous nations trapped in his now secular empire.

So, he basically tries to kill everybody opposed to him.

This is the reality Mamdani fails to see, and mistakenly calls Mengistu’s state a ‘unified republic’; interestingly, he does not offer any of the gruesome details of how Mengistu ‘instituted’ this so-called unification. The only places where Ethiopia was unified and a republic was in Mengistu’s mind (and in his armory). What the various territories wanted was recognition of their separate identities, and an unchallenged say over the land of their ancestors.

Mengistu’s response was to raise even higher the levels of violence needed to keep these rebellions in check, simultaneously fighting Tigrayan, Eritrean, Somali and Oromo insurgencies.

Theory and practice.

Ideologically, the leaderships of the Ethiopian insurgencies were taken over by persons claiming to be as Marxist as Lenin was. Eventually, all the belligerents, including the regime, claimed to be Marxist organisations, yet they were in conflict with each other. What intensified the crisis was the conflicting understandings of what Marxist practice should therefore be, in their context. It was at this point that a number of left-ideological debates came into play, and where a lot of left-ideologues lost their way.

Marxist theory, which mobilized millions of people worldwide, and its practical implications, should be examined with some care. History on this point is necessary.

These nationalist struggles based their arguments on the Leninist principle of “The Right of Small Nations to Self-Determination”, which had been partially applied in the Soviet Union from its formation in 1917. After Lenin’s death in 1924, his successor, Josef Stalin, found less time for it, and, in the face of sustained Western European aggression seemed to see it as a liability to the security of the revolution.

The 1975 coup that brought Mengistu to power (or, more accurately, the coup that Mengistu then subsequently violently hijacked) was a response to widespread unrest, particularly among youth and student movements. This led to a number of practical problems on the ground, in relation to ideology.

At the heart of both the Dergue and the later Tigrayan movements was the issue of land reform. Mamdani does note that the initial upheavals of the 1970s were driven by this, but then fails to make the correct links.

For the vast majority of Africans, especially back then, land is not just a place to live, but also a place of work. To be without land is to be without a secure job. Subsistence peasant agriculture is back-breaking, often precarious, and not financially lucrative. It is also – and many progressives fail to recognize this – autonomous. To a very great extent, the subsistence peasant is not dependent on the state or the global economy. If anything, those entities depend on the farmer whose austere lifestyle acts as a hidden subsidy in providing the market with cheaply-grown food at no investment risk to the consumer or the state. Clearly, one thing that can transform and undergird this existence is sensible reforms to the way the farmer secures tenure of the land they work.

But what happens when land rights encounter cultural rights based on land? A “homeland” is certainly not the “fiction” of Mamdani’s assertion. It hosts the identity and worldview of the people that occupy it. It holds their sacred sites, and places marking their cultural consciousness. More so, that culture underpins their ability to keep producing autonomously. To suggest that it does not exist or does not matter, actually shows a complete failure to grasp who black African people are and how they live, and think. It is a fundamentally anti-African statement implying, as it does, that black Africans do not have an internal intellectual and spiritual logic, developed indigenously, and augmented by physical spaces and objects within them, that informs a worldview. Africans, the suggestion is, are inherently transposable, as they are not tied to any thing or any place.

The captains of the old transatlantic slave ships could not have theorized it better.

Coming from someone who lives in Africa, this is a bit surprising. Coming from a professor heading an institute within one of Africa’s new universities, designed to bolster the colonial state’s mission of deracinating the African, perhaps less so.

However, the current crisis in Ethiopia is very real, and failure to finally resolve it holds huge implications for the entire region. That is precisely why a correct analysis is needed. Not a comfortable one rooted in essentially racist tropes.

The allegedly ‘ethnic demands’ were demands for a different type of guarantee to land rights than those being promoted by Mengistu. For example, would an Amhara family like Nega Mezlekia’s, originally settled by Emperor Selassie in Jijiiga, have a legally equal claim to land against the ethnic Somali communities native to the area, just because they now happen to be the ‘tillers’ there? Would there be a hierarchy of claims? In any event, who should decide? A central authority in Addis Ababa, or a federated unit representing the historic native community?

There are no easy answers. But the regime’s (and other ‘progressives’) complete refusal to even consider the issue, is what led to the conclusion that for there to be justice in Ethiopia, the issue of native nationalities, and their land-based cultural rights, would have to be physically resolved first. In short, it became clear that the land reform question could not be effectively addressed without also addressing the underlying question of productive cultural identities and the historical land claims that arise from that.

This was particularly sharp in those areas of the country –such as Oromo and Tigray- that are dominated by pastoralist communities. Historically, much of Africa’s land grabs have taken place against pastoralist communities, the great city of Nairobi being a prime example.

This is the basis of the ‘ethnic’ movements that have so perturbed Professor Mamdani. It was, in fact, a debate of the Left, and not some right-wing atavist distraction.

So, the great irony is that Ethiopia, home to that great bastion of mis-applied Westphalian thinking, the Organisation of African Unity, becomes ground zero for the great unresolved National Question as it applies to Independent Africa: what is an African nation, and is it the same thing as a given African state (or, more accurately, a state located in Africa)?

The armed struggle began in Eritrea, after Selassie’s unilateral abrogation of the federal arrangement. The original fighting group, called the Eritrean Liberation Front was soon violently displaced from the field by a more radical Eritrean Peoples’ Liberation Front of Isias Afwerki, espousing those aspects of Leninism and Maoism that enabled it to mobilise a broad front of all classes affected by the feeling of Occupation.

The rebels’ demands were clear: a federation of Ethiopia or separation from it; control of their own lands, and an equal recognition of cultures.

For his part, Mengistu, now fighting five separate militant groups, including a very militant hard-line the Ethiopian People’s Revolutionary Front based in urban Ethiopia, placed all his faith in military might. He ended up building the largest armed force in Sub-Saharan Africa (if not Africa as a whole) of some half- a million soldiers, and being heavily dependent on the Soviet Union, which saw him as a vital foothold in Africa, for war materiel and other supplies. He also received military support from Cuba. It again may not be widely known that at the height of the fighting, these different forces which had grown in to wholesale armies, were fighting some of the largest engagements (including tank battles) since the 1939-1945 European inter-ethnic conflict called the Second World War.

The fight progressively turned in favour of the rebels. With Mengistu’s main arms supplier, the Soviet Union, finally capitulating against the US in the Superpower contest in 1989, his forces were routed and he was driven from the capital in 1991.

The Eritrean armed struggle started in 1961, the Tigrayan one in 1975 and Oromo’s in 1973. All end with Mengistu’s fall.

If Mamdani genuinely believes these nationalities are just “ethnicities”, and that Ethiopia is now running the risk of hosting “Africa’s next inter-ethnic conflict”, then this history shows that Ethiopia has in fact already had the “next inter-ethnic” conflict. Mamdani’s fears, this is to say, are 30 or 40 years late.

To sum up Mengistu: he seized power in response to a severe political crisis, and then, misreading his position, sought to impose his concept of “socialism” on the various peoples still caught in the net of Menelik’s Empire state. This led to a situation of mounting violence, in which he saw just about everyone as an enemy to be physically crushed. His regime eventually succumbed to the overwhelming resistance.

Enter Meles Zenawi, who came out of that generation of student activists who took up the nationalities and land reform demands during the time of the Emperor. To many of them, Mengistu’s high-handedness in dealing with the matter was a disappointment. Tigrayans today do not easily recall that when Meles led the the youth to start the war, they sought refuge in Eritrea, and were nurtured and trained there by Isias Afwerki’s EPLF forces already at war against the Ethiopian state.

The issue of identity does not therefore mean that Africans are perennially and illogically at each others throats in some kind of primordial frenzy. They do politics, and are fully capable of defining their interests and maintaining relations, or breaking them off, as needs may dictate.

Zenawi (to an extent like Daniel Ortega on the other side of the world, and even Yoweri Museveni, in his own way), found himself in charge of a state now encountering a new, neo-liberal global world order being enforced by the only super power left standing. Like Selassie, the circumstances around them had changed greatly from when they had begun their political journeys.

Far from simply “introducing” a federal constitution whose “ethnic” nature Mamdani is problematizing, Zenawi’s regime was finally having the Ethiopian state recognise the long-standing historical realities that had emerged from decades of political and armed struggle.

To reduce the product of all that sweeping history to a notion of “fictions”, is a dangerous over-simplification.

In this quest for erasure, Mamdani applies the same misleading thinking backwards by calling the 1994 Ethiopian constitution a “Sovietificaton” of Ethiopia. The Russian nationalities were no more an invention of Lenin than the Ethiopian ones are of Meles Zenawi’s creation. The various units that made up the Union of Soviet Socialist Republics were based on nationalities long in place before the 1917 communist revolution took place there. The responsible thing to do, as a starting point, was acknowledge that fact, which the communists did (and Stalin to a greater extent than Lenin before him).

Yes, Meles was a dictator. And yes, the constitution is based on indigenous nations. That does not automatically suggest causality: Meles Zenawi did not “turn Ethiopia to ‘ethnic’ federalism”. Its long history did.

In fact, events show that Zenawi and the dominant faction he governed with, were no longer in support of the “rights of small nations” by the time they took power.

With the exception of holding the pre-agreed referendum on Eritrean independence (he may have had little choice in the matter: friends in Addis used to like to tell the story of how Meles’ own stepmother, who happens to be Eritrean, and who raised him, left him in his official Addis residence to go and vote for independence in Eritrea, then returned after), he fails to implement the spirit and the letter of the new arrangements that were based on principles forged in the course of the long war.

The best example is found in the very incident that sparked the current uprising: if the regime knew that – as Mamdani points out – the 1994 federal constitution guaranteed the nationalities concerned authority over their land, why then did it try to expand the boundaries of the Federal capital Addis further into Oromo territory over the objections of people there?

In other words, the problem in Ethiopia is the exact opposite of what Professor Mamdani sees. It is not the “ethnic” constitution at fault; it is the failure by the Zenawi regime to genuinely implement it, by negating the spirit of the idea in private, while pretending to uphold it in public.

In particular, Zenawi’s “Woyane” regime repeated Mengistu’s mistake of trying to hold on to Menelik’s state. Critically, he too failed to address the historic issue of land reform that began the whole shake-up of Ethiopia with the student protests against the Emperor. In practice, land is still the property of the state, to be handed out for “developmental” purposes, upholding the Mengistu mentality, but now in the context of global neo-liberalism.

“Derg and [the TPLF] took a very similar approach to the land question. Which is why, three decades after TPLF comes to power, they have still been unable to do land reform, abandoned agrarian reform and ironically, put rural Ethiopian land on the international auction. Something like four million acres of rural farmland, mostly in southern Ethiopia has been leased out to foreign investors since the mid-2000s, ” observes journalist Parselelo Kantai, who frequents the country.

Power comes with its temptations, and a state machine comes with its own institutional imperatives. It would appear that once a group finds itself in control of the apparatus of an empire such as Menelik’s, they become very reluctant to abandon its workings. Perhaps it is only the armed forces in Portugal, having overthrown their autocratic Caetano regime in 1974, that ever went on to immediately dismantle their empire and allow the conquered to go free.

The politics of the armed coalition coming together and finally driving Mengistu out may well have been the moment for this change in attitude to begin, not least because the Meles’ TPLF was by far the militarily dominant faction of the alliance.

To sum up Meles Zenawi: he evolved into what many ‘revolutionaries” became after the Cold War era: a technocratic autocrat placing his hopes in a neo-liberal approach to solving the country’s deep economic problems through a “developmentalist” strategy. He quite literally burned himself out hoping that, by bringing rapid infrastructural development, he could perhaps outpace the historical political claims, and thus render them redundant.

This essentially meant a new form of what Mengistu and Selassie had done before him: overlook people’s ancestral claims to this or that, and simply see the whole landmass as a site for “development” projects, no matter who they may displace or inconvenience.

But “any notion of ‘progress’ or ‘modernization’ that does not start from a peoples’ culture is tantamount to genocide.” the late Professor Dan Nabudere warned us.

Meles Zenawi sought to hold on to the very imperial state he had once fought. His unwillingness to fully honour the terms of the broad alliance of all the fighting groups, and instead consolidated his armed group to take factional control of the whole state and set the course for new upheavals. His sudden death became the opening for these issues to spill out into the streets.

His immediate successor, Hailemariam Desalegn, soon found that the kind of extreme state violence that had served Zenawi, and Mengistu before him, and Selassie before them both, no longer worked, forcing Deslaegn to resign in failure.

Abiy Ahmed must finally deal with these realities. Ultimately, any attempt to do politics based on the imperatives of the Menelik-created state was, and is, going to come up against the fact that this state actually started life as an empire. If the history of Ethiopia has shown one thing, it is that this approach has always provoked rebellions.

Ethiopia, one could say, is back to the pre-war situation it was in just before Mengistu’s coup.

The problem is conceptual; the same one that confronted Selassie and Mengistu: are we running a nation, or a homegrown empire made up of several? 

Mr Abiy Ahmed would be wise not to go down that path.

His challenge is to dismantle the remnants of Meles’ personal military apparatus, genuinely re-orient the country back to its federal constitutional ethos, begin to address the land tenure question, and quickly, before the political grievances – and the economic challenges underlying them – completely boil over.

As the world becomes less secure and with fewer overlords, there will be more and more examples of Africa’s invisible nations asserting themselves to manage control of their resources.

Dismissing them as “ethnic” is simply laying a foundation to justify violence against them.

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Mr Serumaga is a social and political commentator based in Kampala.

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India Election 2019: Modi’s Victory Signals Growing Far Right Intolerance in India and Around the World

Narendra Modi epitomises the kind of neo-fascist right-wing leadership that is sweeping across some parts of Europe, the United States, South America, Asia, and even Africa, where the likes of Donald Trump, Victor Orban, Benjamin Netanyahu, Rodrigo Duterte and Jair Bolsonaro are imposing intolerant, highly regressive policies that polarise populations and create false “them-versus-us” narratives.

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India Election 2019: Modi’s Victory Signals Growing Far Right Intolerance in India and Around the World
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The re-election of Narendra Modi as India’s Prime Minister (his second term) is hardly surprising but does signify a worrying global trend of increasing intolerance and xenophobia. India’s weakened opposition – personified by the lacklustre and lightweight Congress leader, Rahul Gandhi – had no chance in a country riding on a wave of nationalism that equates Hinduism with patriotism. Rahul Gandhi’s lineage (he is the son of former Prime Minister Rahul Gandhi, the grandson of India’s “Iron Lady”, Indira Gandhi, and the great grandson of India’s founding father, Jawaharlal Nehru) failed to attract sufficient voters, perhaps because the Gandhi family is associated with the kind of dynastic politics that Modi says he is eschewing. (Modi never fails to remind Indians that he is the son of a tea seller who rose through the ranks without the support of any political godfather or dynastic family.)

Modi and his Bharatiya Janata Party (BJP) have been selling the narrative that the Hindu religion and way of life have been undermined by centuries of subjugation of the Indian people, first by Muslim Mughal conquerors/emperors, then by British colonialists, and finally by the secularist (read Congress) politicians who led India to independence and thereafter imposed a socialist mindset on the country’s governance. This narrative also feeds off the decades-old rivalry between India and Pakistan that began when India split into two countries at independence in 1947.

The re-election of Narendra Modi as India’s Prime Minister (his second term) is hardly surprising but does signify a worrying global trend of increasing intolerance and xenophobia

As the activist and author Arundhati Roy quipped, being a Muslim in Modi’s India is now considered unpatriotic. “Of late, the criterion for being considered anti-national has been made pretty simple: If you don’t vote for Narendra Modi, you’re a Pakistani. I don’t know how Pakistan feels about its growing population.” (The number of Muslims in India is almost the same as the number of Muslims in Pakistan, around 180 million.)

Despite not keeping many of his promises (like improving the lot of India’s struggling farmers), Modi managed to rally his countrymen and women behind him. The reasons for this are many, among them a compliant and conservative Indian media, which did not challenge his divisive politics. As one Indian commentator put it, “A major section of the media has been a willing accomplice in the marketing of the Modi cult and the over-selling of the government’s performance in various ‘schemes’.”

Modi and his Bharatiya Janata Party (BJP) have been selling the narrative that the Hindu religion and way of life have been undermined by centuries of subjugation of the Indian people, first by Muslim Mughal conquerors/emperors, then by British colonialists, and finally by the secularist (read Congress) politicians who led India to independence and thereafter imposed a socialist mindset on the country’s governance

Indeed, the mainstream media and journalists have been under increasing attack in recent years by the BJP government. Journalists have also been targeted for assassination by Hindu fundamentalist groups, among the most recent case being that of Gauri Lankesh, an outspoken left-wing journalist who was killed outside her house in Bangalore in 2017.

Elitist politics

Modi’s victory perhaps reflects an Indian electorate that is fed up with the elitist kind of politics associated with the Congress Party, which, despite (or perhaps because of) its secular credentials, failed to inspire a majority of the country’s people who have lost faith in the institutions that Nehru and his successors in the Congress party set up. As Ramesh Thakur commented in an op-ed piece in the Times of India, “Inevitably this [Congress Party culture] morphed into the VIP culture that Indians by and large detest with a depth of contempt, anger and resentment” – a situation that Modi fully exploited.

Aatish Taseer explained some of the reasons for Modi’s victory in a recent TIME magazine article:

“The nation’s most basic norms, such as the character of the Indian state, its founding fathers, the place of minorities and its institutions, from universities to corporate houses to the media, were shown to be severely distrusted. The cherished achievement of independent India – secularism, liberalism, a free press – came to be seen in the eyes of many as part of a grand conspiracy in which a deracinated Hindu elite, in cahoots with minorities from the monotheistic faiths, such as Christianity and Islam, maintained its dominion over India’s Hindu majority. Modi’s victory was an expression of that distrust.”

Modi’s and his party’s supporters claim that he has brought India into the 21st century, and rather than being a traditionalist, he is actually a modernising reformer. (However, as he himself has pointed out, he does not equate Westernisation with modernisation; rather, he sees all the trappings of modernity in India, such as being fluent in English, drinking alcohol or eating meat, as contrary to the Hindu ethos of vegetarianism and spiritual purity. (Alcohol and meat are no longer on the menu at state banquets and several states in India have banned the eating of beef.)

As the activist and author Arundhati Roy quipped, being a Muslim in Modi’s India is now considered unpatriotic. “Of late, the criterion for being considered anti-national has been made pretty simple: If you don’t vote for Narendra Modi, you’re a Pakistani. I don’t know how Pakistan feels about its growing population

But Modi’s claim that he is taking India into modernity are not entirely accurate. India under the leadership of the Congress Party’s Oxford-educated Manmohan Singh, first as Finance Minister, then as Prime Minister, ushered in the first wave of liberalisation in the early 1990s, which opened up the economy to foreign investment and led to the deregulation and privatisation of various sectors. Modi is simply riding on the back of that first wave, which, fortunately, also coincided with rising economic growth, which catapulted millions of Indians into the middle classes.

Modi’s main appeal lies in his ability to convince a majority of India’s people that he is a reformist that can uproot India’s entrenched corruption and make government bureaucracy less cumbersome by ushering in a business- and private sector-friendly environment that can compete with the likes of China and the United States.

He also appeals to the aspirational instincts of India’s rising middle classes, who are eager for a cleaner, more efficient India. They say that the BJP has increased the country’s economic potential by building new roads, highways and airports. This is evident in cities such as Mumbai and New Delhi, where the infrastructure has been markedly improved in some areas. The Prime Minister’s campaign to clean up India and improve access to sanitation has also been welcomed by a population used to seeing filth on the streets of Indian cities and villages. He even managed to mesmerise some leading Bollywood stars, who not only campaigned for him, but even stood as candidates on a BJP ticket.

Hindutva and fascism

Modi is no doubt a charismatic and disciplined leader, but his brand of politics can also be dangerous for a nation, especially a nation as vast, diverse and complex as India. He represents a particular kind of nationalism-cum-populism that has the potential to fragment a country irreversibly and take it back to place where rights and freedoms are arbitrarily – not universally – applied.

Modi’s main appeal lies in his ability to convince a majority of India’s people that he is a reformist that can uproot India’s entrenched corruption and make government bureaucracy less cumbersome by ushering in a business- and private sector-friendly environment that can compete with the likes of China and the United States.

While paying lip service to secularism, Modi has entrenched an insidious form of Hindu nationalism (Hindutva) that has allowed anti-Muslim, anti-Christian and anti-Dalit (lower caste) sentiments to flourish. Physical attacks and violence against non-Hindu groups and individuals have risen in recent years and the image of India as a country that accepts all religions is being severely eroded. India, a land of immense diversity and where virtually every religion in the world has found a safe home, is now being touted as land for and of only Hindus.

The BJP has also embarked on propagating a revisionist history of India that fails to recognise that the subcontinent has never been a purely Hindu entity; it has been an amalgam of different religions for centuries, and Hinduism itself has undergone various transformations since its birth some four thousand years ago. In fact, one could say that India has never been a purely Hindu country, and that Hinduism is not so much a religion as it is a way of life that is interpreted differently by every Hindu, depending on her God, what region she hails from, and what caste group she belongs to.

Unfortunately, Modi epitomises the kind of neo-fascist right-wing leadership that is sweeping across some parts of Europe, the United States, South America, Asia, and even Africa, where the likes of Donald Trump, Victor Orban, Benjamin Netanyahu, Rodrigo Duterte and Jair Bolsonaro are imposing intolerant, highly regressive policies that polarise populations and create false “them-versus-us” narratives. Brexit and growing neo-Nazi and racist groups in Europe and the United States have further fuelled the idea that outsiders are to blame for a nation’s woes. In India, Modi’s Hindutva has emboldened Hindu chauvinists who no longer feel they need to hide their hatred for other races and religions. In all these places, democratic institutions are being weakened and the media and intellectuals are being vilified. Fascism – the feverish exaltation of ethnicity, race, nation or religion above the rights of the individual – has become the new normal.

Modi’s victory perhaps reflects an Indian electorate that is fed up with the elitist kind of politics associated with the Congress Party, which, despite (or perhaps because of) its secular credentials, failed to inspire a majority of the country’s people who have lost faith in the institutions that Nehru and his successors in the Congress party set up

There is also an inherent anti-intellectualism in these leaders’ statements and a propensity to install pliant and mediocre people whose only qualifications are sycophancy and blind loyalty to the leadership. In the Indian state of Uttar Pradesh, for instance, the BJP appointed a hate-mongering Hindu priest as chief minister, and did not suffer any consequences for this grave mistake. These trends, not just in India, but in many parts of the world, should worry all those committed to promoting human rights and democratic values.

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Out of the Box Thinking or Garbage Can Policy: Is Jubilee’s Government Protectionism and Economic Controls Good for the Country?

Uhuru Kenyatta’s grand scheme, the Big Four manufacturing agenda, is predicated on the restoration of protectionism and economic controls. But as DAVID NDII argues import licensing and exchange controls – the old tools of the trade – are no longer available, hence the “out of the box” solutions of the Jubilee government.

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Out of the Box Thinking or Garbage Can Policy: Is Jubilee’s Government Protectionism and Economic Controls Good for the Country
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In October last year, Uhuru Kenyatta fired a broadside at imports of fish from China: “The Finance bill has passed but we can think outside the box. We might as well say the fish imported is bad then we lock it. There are many ways the government can work if we really intend on serving our people.”

The trick backfired. The ban was imposed in November and lifted two months later following what was reported as a “biting shortage”. Had he taken a quick peek into the Economic Survey – the government’s annual statistics report that should be on his desk – he would have noted a steady decline in domestic fish production over the last five years – from 160,000 tonnes to 98,000 tonnes, a difference of 35,000 tonnes. Imports in 2018 were 22,000 tonnes, not enough to plug the deficit. On several occasions prior to the ban, senior government officials had been widely reported explaining that Kenya has a large and growing fish deficit. That they went ahead to implement a harebrained roadside declaration tells us everything we need to know about the state of sycophancy in the Jubilee government.

The latest from the Uhuru Kenyatta out-of-the-box policy institute is a proposed ban on used motor vehicle parts. Initially reported as a blanket ban, the Government has since clarified that it is limited to particular parts that endanger safety, such as brake pads. Sensible, isn’t it? Roads full of overloaded matatus and Proboxes with faulty brakes is a scary thought.

Road safety is not the business of trade policy. The person most at risk from a defective vehicle is the driver so, a safe, roadworthy car is in their interest. That said, drivers do kill and maim themselves and others far too often, not just because of defective vehicles but also by dangerous driving, notably speeding and drink driving. I can say without fear of contradiction that defective drivers, and not defective vehicles, are the single largest cause of road accidents. Moreover, there is no law that compels owners to service their vehicles. In many countries, vehicles over a certain age are required to undergo regular roadworthiness inspections. In the absence of a law requiring vehicle owners to replace worn parts, banning the import of used parts is an exercise in futility. What, then, is the ban in aid of?

The latest from the Uhuru Kenyatta out-of-the-box policy institute is a proposed ban on used motor vehicle parts. Initially reported as a blanket ban, the Government has since clarified that it is limited to particular parts that endanger safety, such as brake pads. Sensible, isn’t it? Roads full of overloaded matatus and Proboxes with faulty brakes is a scary thought.

Some economic history background is helpful and this is the history of the import control regime that was in place from the early 70s to the early 90s. The regime was a two-stage process, the first of which was the acquisition of an import licence. Import licences were issued by a committee of the Ministry of Commerce and Industry known as the Import Management Committee (IMC). Having acquired an import licence, one proceeded to apply for a Foreign Exchange Allocation Licence (FEAL) at the Central Bank. The role of the IMC was to implement quantitative restrictions. It would review the imports to be authorised based on the domestic production capacity and adjust the amount of imports that would be allowed in accordingly. Obviously, it is impossible to do this for hundreds of products when both the production capacity and the size of the market are constantly changing. Moreover, for some strategic products, importers were required to obtain a “no objection” from the domestic monopoly.

While import substitution industrialisation became the accepted justification, this was actually not how the control regime came about; import substitution industrialisation had been proceeding satisfactorily using tariff protection without import and foreign exchange controls. The regime was put in place in response to the effects of the 1973 oil price shock on foreign exchange and the controls were supposed to be temporary, to be lifted once the effects of the shock subsided. The effects subsided and were, in fact, followed by a coffee boom that more than offset the oil price shock, but the control regime remained.

I can say without fear of contradiction that defective drivers, and not defective vehicles, are the single largest cause of road accidents

Once it was in place, people discovered that it was useful in other ways. Everything about the regime was subject to bureaucratic discretion that could be abused – and was abused – in two ways. First, the determination of import tariffs was completely discretionary, and was determined to a considerable extent by political influence as opposed to economic logic. Second, influential incumbents were able to buy protection not just from imports but also from potential domestic competitors. Suppose an established incumbent noticed a competing product from a new local manufacturer on the shelf. With sufficient influence, the incumbent would get the bureaucrats to frustrate the competitor by denial or long delays in obtaining import licences or foreign exchange allocations. The surest way of buying influence was to have a business relationship with powerful people in government, either as sleeping partners or as distributors or suppliers. The overall effect was a corrupt, distorted, unpredictable policy regime that stifled competition and rewarded inefficiency, effectively undermining investment and entrepreneurship.

It should not come as a surprise then that by the early 80s, import substitution industrialisation had stalled. In Sessional Paper No.1 of 1986 on Economic Management for Renewed Growth, the government owned up to the failure of import substitution industrialisation and ushered in the era of market liberalisation and economic policy reforms known as structural adjustment programmes (SAPs). The paper argued that the state-centric protectionist economic model had reached a dead end. In particular, it highlighted the system’s failure to create jobs and warned that, unless it was reformed, we would be “overwhelmed” by population growth.

The trade regime was one of the first targets for reform. The first task of the reform agenda was an exercise known as tariff harmonisation, which culminated in three tariff bands: 0 per cent for raw materials and capital goods, a 10 per cent band for intermediate products and a 25 per cent band for finished goods. Also included was a list of items prohibited for health and safety reasons. The second task was the removal of import licences and foreign exchange controls, which was completed in 1993. The same regime was subsequently adopted by the East African Community. The effect of these reforms was to level the playing field and to tie the government’s hands, and the policy regime itself became stable and predictable. It is this policy straightjacket that the out-of-the-box solutions are meant to circumvent.

In Sessional Paper No.1 of 1986 on Economic Management for Renewed Growth, the government owned up to the failure of import substitution industrialisation and ushered in the era of market liberalisation and economic policy reforms known as structural adjustment programmes (SAPs)

Up until 1993, the reforms had been proceeding in fits and starts, with several reversals in between due to resistance from vested interests. But in the aftermath of the 1992 general elections, the Goldenberg chickens came home to roost. Staring an economic meltdown in the face, Moi accepted to open up the economy in exchange for a financial bailout. The impact was immediate; trade boomed and within a year, Nairobi’s city centre was transformed into one big bazaar. People spruced up. On the streets, you could no longer tell people’s socio-economic status by their appearance – everyone was well dressed. In the rural areas, patched up clothes disappeared. Everyone wore shoes. Motor vehicle ownership boomed. Vehicle registrations, which had been in decline, rebounded immediately, growing 22 per cent per year over the next five years, and 12 per cent per year over the decade (see chart). Owning a decent car ceased to be a status symbol for the upper echelons of society, and they resented it – some still do.

The rationale for foreign exchange controls – that liberalisation would cause scarcity – was blown out of the water; foreign exchange availability actually improved. But most importantly, the prognosis of the 1968 Sessional Paper on employment was vindicated; employment growth doubled from 4.8 per cent in the previous decade, to 9.4 per cent in the decade following liberalisation. This labour absorption was driven by an explosion in micro and small enterprises, particularly in trade, but also in jua kali manufacturing and in other sectors as well. Supermarket shelves featured a wide variety of colourful, affordable local brands of consumer goods – toiletries, shoe polish, vegetable oils – where previously choice was limited to two or three staid multinational brands that had remained unchanged for twenty years or more.

Staring an economic meltdown in the face, Moi accepted to open up the economy in exchange for a financial bailout. The impact was immediate; trade boomed and within a year, Nairobi’s city centre was transformed into one big bazaar. People spruced up.

Uhuru Kenyatta’s grand scheme, the Big Four manufacturing agenda, is predicated on the restoration of protectionism. But import licensing and exchange controls – the old tools of the trade – are no longer available, hence the “out of the box” solutions.

The used spare parts ban opens a window for bureaucrats to rummage through every consignment of used car parts looking for prohibited parts. Bribes, demurrage and other transaction costs will go up. Many businesses, particularly small ones, will be driven out of business. Maintaining the diverse models of imported used cars will become a challenge and the used-car import trade will be strangled to death by regulation and bureaucracy.

Uhuru Kenyatta’s grand scheme, the Big Four manufacturing agenda, is predicated on the restoration of protectionism. But import licensing and exchange controls – the old tools of the trade – are no longer available, hence the “out of the box” solutions.

The Draft National Automotive Industry Policy featured in this column a month ago has precisely this situation as one of its objectives. This ban complements the plan to initially lower the maximum age of used-car imports to five years from the current seven, and then to three years, effectively putting cars out of reach for many people.

But the Government has a plan – model rationalisation and homologation. Model rationalisation means reducing the number of models sold in the market while homologation simply means state certification. The policy is “geared towards an entry model for the local market based on acceptability and affordability”. In short, the state will choose one model of car that will be mass-produced for the local market.

The logic of this is as follows: because we are a small market, having too many models makes it difficult for the local assemblers to have economies of scale. This of course means that the chosen model will be frozen in time technology-wise, and will probably be available in just a couple of colours. But of course, in other markets, design and technology will be moving on and therefore, this will only work if “the people’s car” is protected from the imported used cars that consumers would prefer.

This has been done before; India had the Ambassador, the Soviet Union had the Lada, and East Germany the Trabant. We had the Peugeot 504, which we kept assembling for at least a decade after it had gone out of production. I had the good fortune of visiting Berlin in my youth, just a year before German reunification, and I still recall the surreal images of Trabants sputtering along on one side of the Wall while BMWs, Audis and Mercedes Benzes whizzed by on the other. I find it difficult to contemplate that, thirty years on, and on the cusp of the fourth industrial revolution, we have apparatchiks formulating communist industrial policy.

In the decade after the 1993 “big bang” as we called it, the economy created four million jobs – 400,000 a year, compared to 80,000 a year in the preceding decade. In the absence of these reforms, Kenya would have preceded Zimbabwe on the route to land invasions and economic meltdown. We may not have led then, but we are certainly doing our best to follow now.

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In Whose Interest? Reflecting on the High Court Ruling Against John Githongo

The core issue in the Murungaru v Githongo case remains whether the revelations of the Anglo Leasing scandal – which was not just exposed in the Nation newspaper that published the Githongo Dossier in 2006, but was also extensively documented by the British journalist Michela Wrong in her book, It’s Our Turn to Eat were in the public interest.

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In Whose Interest? Reflecting on the High Court Ruling Against John Githongo
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The awarding of a hefty Sh27 million ($270,000) in damages to the former minister Christopher Ndarathi Murungaru by the High Court judge Joseph Sergon has sent a chilling message to all those who might be inclined to report corruption or wrongdoing within government: do so at your own peril.

Murungaru’s libel case against anti-corruption activist and former Governance and Ethics Permanent Secretary, John Githongo, has raised serious questions about whether court decisions are being made without due reference to constitutionally-protected rights and freedoms and whether Kenya’s judiciary has been “captured” by the state.

These questions were recently discussed and debated at a public forum in Nairobi organised by various civil society organisations, and attended by prominent legal minds, including the former justice minister and NARC leader, Martha Karua, who described the Sh27 million award by the judge as “outrageous”. Karua, who has been accused by her critics of not doing enough to protect Githongo when she served in Mwai Kibaki’s administration (when the so-called Anglo Leasing scandal that implicated Murungaru and others in government was exposed), stated that the case will make people afraid of coming out and reporting corruption within government. She further claimed that when she realised that many of the Anglo Leasing contracts that Githongo had exposed in what is known as the “Githongo Dossier” were fraudulent, she made several attempts to have the government not honour them, but was thwarted in her attempts by none other than the then Attorney General, Amos Wako.

As George Kegoro, the Executive Director of the Kenya Human Rights Commission, pointed out, “This case was about isolating John and exposing him financially. It was to embarrass and ruin him and to silence him.”

Wachira Maina, a constitutional lawyer and governance consultant, believes that this case illustrates how “state institutions have been repurposed for private gain”. He wondered why Murungaru had not sued the Nation newspaper, which published the dossier, suggesting that the case was a personal vendetta against a soft target who could be financially crippled by the case. As George Kegoro, the Executive Director of the Kenya Human Rights Commission, pointed out, “This case was about isolating John and exposing him financially. It was to embarrass and ruin him and to silence him.”

The amount awarded to the plaintiff also seemed unusually large. As Jill Ghai noted, “If you lose a leg in an accident in Kenya, the most you get awarded is 2 million shillings, so 27 million for damages is outrageous.”

“The court did not consider that Anglo Leasing happened under Murungaru’s watch,” said Maina. He further pointed out that every ruling in the courts must “pass the constitutional test”, which this ruling clearly did not. “There is no single reference in the judgement to the constitution. Judges are not only expected to apply the constitution, but are also expected to interpret law to reflect the constitution.”

Did the public have the right to know the people and events that constituted the Anglo Leasing scandal? Definitely, because billions of Kenyan taxpayers’ shillings were involved, and the contracts signed had to do with national security

Several countries are reconsidering their libel laws and amending them so that they do not impinge on freedom of speech and the right to access to information, which are constitutional rights in many countries, including Kenya. These rights and freedoms become even more salient when the publication of certain information is in the public interest. The UK’s Defamation Act of 2013, for instance, curtailed what is known as “libel tourism” (libel cases brought by people who go to court in countries where they are most likely to be awarded large amounts of money in damages) and extended to the mass media the “qualified privilege” defence, which provides protection from a defamation lawsuit for journalists who publish information that is in the public interest.

Perceived injury to an individual versus public interest

The core issue in the Murungaru v Githongo case remains whether the revelation of the Anglo Leasing scandal – which was not just exposed in the Nation newspaper that published the Githongo Dossier in 2006, but was also extensively documented by the British journalist Michela Wrong in her book, It’s Our Turn to Eat: The Story of a Kenyan Whistleblower, published in 2009 – was in the public interest. Did the public have the right to know the people and events that constituted the Anglo Leasing scandal? Definitely, because billions of Kenyan taxpayers’ shillings were involved, and the contracts signed had to do with national security. (The Anglo Leasing scandal, as the corruption scam that Githongo exposed has come to be known, was a series of fictitious security contracts signed with shell companies by the Moi and Kibaki governments that cost the Kenyan taxpayer millions of dollars. According to reliable estimates, the contracts were worth more than $700 million, of which an estimated $250 million was paid out). Some of those implicated are currently facing trial in the Kenyan courts.

Kimeu said that the role of the judiciary is to interpret the law, and to do so in line with the aspirations of the people. “This case was about Kenyans and their money,” he stated. “The case made an example of John – it is basically telling us to lie low. If you speak out, it is to your personal detriment.”

Moreover, the court must determine that there was “actual malice” on the part of Githongo when he claimed that Murungaru and four other high-level government officials orchestrated the Anglo Leasing scam. So, for instance, there needed to be evidence that Githongo deliberately tried to malign Murungaru in order to cause harm to him or to damage his personal or professional reputation. (Murungaru claimed that he lost his parliamentary seat as a result of Githongo’s allegations, which is neither here nor there.) As Samuel Kimeu, the Executive Director of Transparency International-Kenya, rightly asked, “How is it that a perceived injury to one person trumps the public interest?”

Kimeu said that the role of the judiciary is to interpret the law, and to do so in line with the aspirations of the people. “This case was about Kenyans and their money,” he stated. “The case made an example of John – it is basically telling us to lie low. If you speak out, it is to your personal detriment.”

Kimeu highlighted that there is currently no law in Kenya that protects whistleblowers, which makes exposing wrongdoing a daunting task, and that this particular libel case has had a “disorienting” effect on those who protect the public interest.

Integrity issues

Prof. Kibe Mungai, an advocate of the High Court, admitted that many judges and public officers in Kenya disregard the constitution, especially on issues to do with integrity and values. However, as I have noted in previous articles, the precedent was set by none other than the current presidency, Uhuru Kenyatta and William Ruto, who stood for the highest political office in the land despite being indicted by the International Criminal Court (ICC) for crimes against humanity. By doing so, they contravened Article 73 of the constitution that states that “authority assigned to a State officer is a public trust to be exercised in a manner that … promotes public confidence in the integrity of the office”.

In my opinion, Kenyatta and Ruto should have disqualified themselves as candidates in the 2013 election (but could have stood for political office when or if they were acquitted). While I believe that the ICC process has proved to be flawed and perhaps even discriminatory, and that Mwai Kibaki and Raila Odinga – respectively the head of state and the leader of the opposition during the post-election violence in 2007/8 – should have borne ultimate responsibility for the deaths and destruction during that time, I think that by putting themselves up as candidates, Kenyatta and Ruto rubbished both the ICC and the Kenyan constitution – an unfortunate development that severely eroded Kenya’s reputation as a country that upholds the rule of law and which had a detrimental effect on the country’s political landscape.

The constitution, in particular Chapter 6 on Leadership and Integrity, was further ignored by a large segment of the Kenyan electorate, which went ahead and voted for Kenyatta and Ruto, not despite the fact that they were indicted, but because they were. The country has been on a downward spiral constitutionally since then, and we the Kenyan voters, have only ourselves to blame.

Justice Sergon also failed to recognise that the role of a whistleblower is not to bring forth evidence, but simply to raise suspicion about possible wrongdoing that will, hopefully, result in a full investigation by the relevant authorities

George Kegoro believes that the case, which took 13 years to conclude, was flawed from the start. First, in March 2015, the previous judge, Justice David Onyancha, disqualified himself from the case on the grounds that there had been attempts to compromise him, while providing no details about who the compromisers were. This raised the question about whether his successor, Justice Sergon, was considered to be a more pliable judge by those who tried to compromise his predecessor.

Moreover, Justice Sergon proceeded as if Anglo Leasing never happened. As Kegoro argued in an opinion piece published in the Standard:

“Besides underrepresenting issues of process in the final judgement, Justice Sergon totally ignored questions of context. The suit against Githongo arose from the Anglo Leasing scandal that gripped the country in 2006, giving rise to a tumultuous political situation that almost toppled the young Kibaki government. The fallout from the scandal included the resignation of Githongo from government before he went into exile in the United Kingdom. Also, a number of high officials, including Murungaru and [former finance minister David] Mwiraria, eventually lost office or were charged in court in relation to the scandal over which there was significant public outrage… Allowing Murungaru’s claim against Githongo has given judicial approval to a blinkered and contrived self-view by the former minister, which is at variance with how the general public has come to view him…”

Yet, in his ruling, Sergon stated: “There were no iota of evidence presented by the defendant and his witness linking the plaintiff to the corrupt practices. Therefore the contents of the dossier in the absence of evidence to establish their truthfulness means that the publication is and was defamatory of the plaintiff.”

Justice Sergon also failed to recognise that the role of a whistleblower is not to bring forth evidence, but simply to raise suspicion about possible wrongdoing that will, hopefully, result in a full investigation by the relevant authorities.

Kenya’s legal history is littered with bad judgements and excessive punishments, not just for those who raise their voices against injustices and human rights violations but also for those ordinary citizens who cannot afford savvy lawyers or who lack access to political influence

Githongo has said that he will appeal the High Court decision, and a crowd-funding mechanism to raise Sh27 million has already been put in place in case he loses the appeal.

Kenya’s legal history is littered with bad judgements and excessive punishments, not just for those who raise their voices against injustices and human rights violations but also for those ordinary citizens who cannot afford savvy lawyers or who lack access to political influence (like chicken thieves who end up eight years behind bars because a judge deemed that a hungry man who steals a chicken is more criminal than a man who robs an entire country).

We must also not forget that Kamlesh Pattni, the mastermind of the Goldenberg scandal in the early 1990s, which almost brought Kenya to its knees economically, is still enjoying fresh air and living large. The Murungaru v Githongo case might just outrage Kenyans enough for them to demand more accountability from governments that steal and from courts that continuously thwart or ignore the will and aspirations of a fatigued citizenry yearning for a more just and humane society.

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