Judges are trying to save Africa from lawlessness and greedy politicians

It is cheaper to buy a judge than to hire a lawyer. That saying has been true since Kenya’s independence in 1963, but that is slowly changing. Judges are trying to save Africa from lawlessness and from greedy politicians. In Kenya, Malawi, Zambia and South Africa, judges have recently taken a bold stand by handing down sentences that went against the wishes of politicians.

“Africa’s most pressing question is whether the judiciary will become the temple of justice,” says Willy Mutunga, 74, a former Chief Justice in Kenya. He is a member of Justice Leadership, a group of former justice ministers and Chief Justices, founded in the Netherlands in 2015. He is also active as an election observer in several African countries. “Judges must give up their neutrality if the constitution is violated and when there are grave injustices.”

In the past, judicial independence in Africa was a rarity: the government dominated and controlled the judiciary. To anchor democracy and the rule of law, judges are now increasingly showing their teeth.

Last year, for example, in South Africa, the decision of the Constitutional Court to put ex-President Jacob Zuma behind bars for contempt of justice attracted attention. The year before, Malawi was in the news, where a court declared the election invalid for fraud, a first since independence in 1964.

That had happened before in Kenya, where in 2017 Chief Justice David Maraga ordered the elections to be run again. President Uhuru Kenyatta was so outraged that he labelled the judges fraudsters. Maraga then accused the president of undermining the rule of law and vowed to be “willing to pay the ultimate price to protect the constitution and the rule of law.”

In present-day Kenya, another tough battle is raging between the judiciary and the government, led by the president. Earlier this year, President Kenyatta refused to appoint a group of new judges nominated to him. Elections are coming up in 2022, which, as usual in Kenya, will be fraught with fraud and violence. Judges will then have to pass their judgment on the course of the ballot. Kenyatta’s opponents suspect that he will therefore try to appoint as many friendly judges as possible.

Bribes

The biggest clash between the rule of law and the Kenyan president last year took place in May, when five Supreme Court Justices blocked a government-backed plan for a constitutional amendment. The constitutional amendment bill, commonly known as the Building Bridges Initiative, would secure positions of power among several political patronage groups around Kenyatta and his former opponent Raila Odinga. In order to get the opposition along, the number of parliamentary seats would be increased. Also, a prime minister’s post would be created, which would go to Kenyatta, it was speculated, who could not be re-elected as president. Incumbent MPs had already received more than a thousand euros in bribes to support the proposal, according to news reports. The judges put a stop to this. They called the proposal “illegitimate” and thus stopped “a creeping coup d’état by a kleptocracy trying to stay in power,” activist Okiya Omtatah, who had gone to court, told the BBC’s Focus on Africa programme.

After three quarters of a century of colonialism and almost as many years as independent states, Africa still struggles to build strong and democratic nations. In everyday life, age and origin determined the manners in the clans, the family and the tribe, and respect was of the utmost importance. Those long-standing traditions outweighed the liberal systems that the colonials left behind when they left.

The independence that many African states gained in the 1960s did not turn out to be as decisive a moment as hoped. That expectation was implied in the statement of Ghana’s first president Kwame Nkrumah in the late 1950s: Seek ye first the political kingdom, and all things shall be added unto you. But Nkrumah was wrong: the postcolonial regimes were not so different in habits and ways of thinking from their colonial predecessors. After independence, African states had adopted the forms of government of the white rulers, including symbols such as British wigs and gowns and French cavalry uniforms. What was missing were the essential ingredients for a stable democracy: a strong government, an educated population, a middle class, a free press, an independent judiciary and democratic parties.

A wave of protests in Zambia, Benin and many other African states led to the introduction of multi-party democracy in the early 1990s. But this did not help either. “Elections never lead to change, they are never free, fair and peaceful,” Mutunga says. “Elections are always about money, about those who have the millions to bribe judges and people.”

Ethnic electoral violence in late 2007 and early 2008 brought Kenya, which had always been praised for its stability, to the brink of collapse. More than a thousand people were killed then. In the wake of this dark episode, the internationally acclaimed Mutunga was appointed to reorganize the judiciary. In 2011, he became president of the Supreme Court. After his appointment, the heads of the corrupt judges began to roll. He was averse to the pomp and circumstance that usually befalls African leaders; and was popularly called the Robin Hood of the Kenyan justice. He resigned in 2016 and handed over the mantle to David Maraga, who has since been succeeded at the beginning of this year by former human rights activist Martha Koome. Mutunga’s successors continued to reform the judiciary and did not shy away from confronting the president and parliament.

Yet judges in Kenya still accept bribes. Mutunga even refers to Kenya as a “bandit economy” in which cartels siphon off millions of public money when signing government contracts. It is covered extensively in the media, but the government benefits from not cracking down on it, so as not to offend the political elite.

“Certainly, part of the judicial system is corrupt,” Mutunga agrees. “A righteous judge is one who never thinks of taking or asking for a bribe. But the cartels quickly make supposedly shocking revelations about uncorrupted judges in order to blackmail them. We must oppose this and must judge without fear and without receiving any favor in return.”

Last year again dozens of extrajudicial executions took place of lawyers and activists whose bodies have been found in game parks and rivers. A state governor murdered his pregnant girlfriend and an MP in a nightclub shot a DJ in such a way that he is permanently disabled. Yet both politicians went unpunished. To swim against that tide of impunity, a judge must be courageous.

New protest movement

“It is worth dying for defending the integrity of the judiciary,” says Mutunga. “The rulers are fighting back by bribing judges. But I see more and more how judges cope with that political pressure, how their courage and commitment increase. They work for a better future as they resist cartels, social injustice and murder. In this way they endear themselves to the people and a new protest movement germinates in Africa.”

Despite its massive corruption and the stifling influence of cartels, Kenya is now the freest country in all East Africa. In neighboring Ethiopia, Sudan and Somalia, disputes are being fought out in devastating civil wars, while Kenya is beginning to look like a stable democracy, with the rule of law attached to it. “That’s because the NGO sector is so active in Kenya,” Mutunga thinks. Time and again activists start lawsuits against those in power. “Those activists must use the judiciary to capture the imagination of the population and lead to something new. The judiciary is part of that struggle for alternative and fair leadership.”

This article was first published in NRC Handelsblad on 29-12-2022

If Africa lags behind in the fight against corona, it will give mutations of the virus a tailwind

“Without a job, you die here” says Martin Maina (38) in the Kibera slum in the Kenyan capital Nairobi. Leaning against the earthen wall of his house, he tells how last year, during the first corona wave, he not only lost his job in a bar, but also got tuberculosis and became seriously ill. “My end seemed in sight. I could no longer stand on my feet, the community clinic was closed and I had no money to go to a hospital.” A bed and a plastic chair are Martin’s only possessions.

A good Samaritan, working in the closed community clinic, rescued Martin, took him to the hospital, gave him medicine, 25 euros for the monthly rent and even a mattress. He also got money to go to the public toilet in Kibera, because he lives so close to a busy alley that he can’t, as is often the case here, put his needs in a plastic bag and throw it over the fence.

Martin once more goes to the now reopened clinic to get his medicines. He then has to jump over a little stream filled with garbage, past women who hang clothes over the line and toddlers who defecate in the water behind a clump of plastic.

Sarah Chandi, in her thirties, is chief nurse at the neighborhood clinic and charged with TB control. “We have lost sight of many TB patients because of corona,” she says. “Tuberculosis kills thirty to forty thousand Kenyans every year, much more than because of corona. People with a cough are afraid to come to the clinic, for fear of being mistaken for a corona patient and as a consequence having to isolate themselves. In this clinic alone, the number of tests has been halved. I sometimes wonder why corona gets so much more attention than tuberculosis, because that is still the largest epidemic in Africa.”

Big setback

Not only is healthcare system under pressure from Covid in Kenya, this is also the case elsewhere in Africa. According to figures from the Global Fund, the worldwide fund to fight AIDS, malaria and TB, corona is the biggest setback in 20 years in the fight against these older, endemic epidemics.

In 2020, there were 22 percent fewer HIV tests performed in Africa, which equates to 30 million people who have not been tested for HIV. The number of people tested and treated for tuberculosis fell by 18 percent, or about one million untreated patients since 2020.

Kenya got off to a good start when the first corona cases from Europe were identified in March last year. The country was locked down and Nairobi went into lockdown. But the government lacked the resources to strictly enforce these measures. Tens of thousands of residents managed to illegally escape from the capital via what is called ‘rat routes’ in Kiswahili, and brought corona to the countryside. And there the government has much less control over what the population does.

Epidemics are hitting hard

Songa Rota, a village in Western Kenya near Lake Victoria, is one of those places where epidemics hit hard for the largely poor population. This has been the case since HIV: more than 16 percent of the population here is positive.

The soil is fertile near Songa Rota. Herons peck in the rice fields, noisy ibises ask for attention. But for Maureen (24) who had just given birth, it “felt like I had ended up in hell.”

She tells her story under the avocado tree near the clinic, an elongated building on the edge of the hamlet. “I felt so insecure during my pregnancy. At first I couldn’t go to the clinic and later I didn’t dare to go there anymore.”

More than 8 percent of children in Songa Rota are born with HIV, a much higher percentage than elsewhere in the country. Last year, Songa Rota saw an 8 to 10 percent increase in HIV transmission from pregnant mothers to their babies. “What will become of my baby?” muses Maureen, who is HIV positive herself.

The resolute Auma Apull (54) works as a volunteer in Songa Rota. “When corona came, HIV-positive residents could no longer collect their medicines. I’ve accomplished so much with my work over the years, and now I see it all breaking down,” she says sadly.

She gestures to Maureen. „I was not allowed to visit her, because everyone had to stay at home. My passion is to help people. At first we thought TB was the biggest epidemic to ever hit us. Then came HIV thirty years ago. And now corona again. Everyone is scared and thinks, ‘Is this ever going to end?’”

Kenya has more than 86,000 health care volunteers, mostly middle-aged, such as Auma Apull. They receive a meagre salary of the equivalent of 25 euros per month and for that they visit the houses in slums and in the countryside to check for all kinds of diseases. Their only equipment is an umbrella and a notebook.

Only 27 percent of health care providers in Africa have been fully vaccinated against corona, leaving most of the workforce on the front lines unprotected against the pandemic, preliminary figures from the World Health Organization (WHO) show. “At the beginning of corona we didn’t even have plastic gloves, mouth caps and liquid soap.”

The closing of the informal sector of the economy to contain corona, paradoxically also led to health damage. People were deprived of their income, domestic violence increased. As schools closed, schoolgirls were more at risk of rape, leading to an increase in HIV infections among schoolchildren, according to Kenyan newspapers.

Marylene Akinyi (24) hugs her three-month-old baby, Princes Sasha, named after the daughter of ex-President Obama, whose father was born in Western Kenya, under the avocado tree. “I got pregnant because the school was closed,” she says in a trembling voice. She nervously plucks at the threads of her frayed hat. “My boyfriend, who took care of me, impregnated me, but now he doesn’t want to hear from me anymore. He destroyed my life.”

More used to epidemics

Africa is more used to epidemics than Europe. It knows how to fight them, but doesn’t always have the resources and infrastructure to do it quickly. And that entails a risk, emphasizes Tobias Rinke de Wit, professor of molecular biology at the Institute of Global Health at the University of Amsterdam.

For years he has been researching HIV in Africa, including West Kenya. If the continent lags behind in the fight against corona, it will give mutations of the virus a tailwind, he says – especially in people with weakened immune systems, such as HIV patients. “Due to a weakened immune system, the coronavirus can mutate more quickly in an HIV patient.” As with HIV/AIDS at the time, Africa is now lagging far behind in the fight against corona. Six percent of Africa’s residents are now vaccinated, compared to about 70 percent of those in rich countries. The causes are many. Lack of vaccines still plays a role, including a shortage of the right injection needles or the fact that countries have not set up adequate vaccination campaigns. Donated vaccines are sometimes so close to expiration that countries have to destroy them.

“During the AIDS epidemic in the 1990s, it took many years before the drugs were available, long after everyone in the wealthy West could get them,” says Tobias Rinke de Wit. It has contributed to Africa now having about 24 million AIDS deaths. Rinke de Wit: “You now see with corona that the same mistakes are made.”

All photo’s by Bernard Otienno/Global Fund.

-1 TB clinic

-2 Martin Maina

-3Healtworker in Vihega

-4 Healtworkers in Vihega

-5 Marylene Akinyi with her babyPrincess Sasha

This article was first published in NRC Handelsblad on first of December 2021

COVID-19: The 1 to 9 Dilemmas facing Africans

The Corona Virus Disease 2019 better known as COVID-19, finally landed in Africa. This is after its debut in China, brief and deadly sojourn in South-Korea, long and professional contract in Europe where it is ravaging Italy, (Almost finishing a whole generation), Spain, Turkey, U.K etc. It flew to Canada and it is currently feasting on the same table with Donald Trump.

Africa was largely virgin, un-touched and barren, for many months it remained a dark content with Utopian and futuristic reasons why the virus was keeping at bay. Tales of superior genetics, ancestral curses finally catching up with colonialists and oppressors, God’s divine protection, China needing an army of slaves after destroying America and Europe were chats online, in parliaments, markets, boardrooms and even bedrooms.

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