Hunted down after leaving al-Shabaab

Somali refugees Photo Petterik Wiggers

Abdul (35 years old) can no longer sit still. He was a fighter once in one of the most brutal terrorist groups in the world. “Al-Shabaab messed up my life. My head, my heart, my chances. Everything.”

Abdul, who for safety reasons changed his name, constantly fiddles with his breast pocket. Every warrior from the Somali terrorist group keeps a grenade there to blow himself up in case of capture. “I always feared getting stuck behind a branch and accidentally blowing myself up.”

Abdul is Kenyan and was recruited in the Majengo slum of the Kenyan capital Nairobi by al-Shabaab in 2011 to fight in Somalia. “I wanted employment and the recruiter promised me a job as a driver.” Hundreds of Kenyans have been traveling to Somalia in recent years, from the Kenyan coastal strip and from the ghettos in Nairobi.

About a quarter of the Kenyan population is Muslim and lives mainly on the coast and in the poor lowlands that extend to the border with Somalia. Al-Shabaab controls territory in Central and Southern Somalia and set up a network of cells in Kenya. The terror group recruits poor young people in Kenya and offers them a salary. When they die, their families receive $ 500 and the deceased awaits 72 virgins in heaven.

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If elections changed anything, they would have abolished them



If elections changed anything, they would have abolished them[2]. 

Every five years the English bourgeois political parties ask the proletariat to choose which party they would like to oppress them for the next five years![3]

 It is indisputable that law has its economic, social, cultural, and political foundations in the broader power and property relations in society. However, electoral disputes, ipso facto, provide a very direct and immediate interface between politics and law. Few disputes insert the Judiciary in the front door furnace of politics than election petitions – and so does this paper.

Electoral litigation are sui generis in character, both in regularity and regulations or rules. Consequently, many jurisdictions, Kenya included, recognize that they do not strictly fall within the ambit of conventional civil law, and therefore require different sets of regulations and rules to guide their determination. A few questions linger with respect to electoral disputes: One, should courts even entertain them, or do they fall within the purview of the political and policy questions which are not justiciable, and to which, therefore, courts should be restrained? Two, can African courts adjudicate electoral disputes, particularly presidential ones, and institutionally survive the corrosive effect of African politics? Three, what is the emerging body of jurisprudence and what is their real jurisprudential and juridical value? What is the role of the Bar? What is the place of electoral management agency, the political parties and citizens? These are some of the issues that this presentation addresses.

Elections are an important pillar of any democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative. As Francis Fukuyama, in tracing the origins of political order in society has noted, ‘[T]oday the dominant form of procedural accountability is elections, preferably multi-party elections with universal adult suffrage’[4]. When, as Chief Justice, I presided over the swearing in of Kenya’s electoral commission members on 14th November 2011, I spoke at length on the importance of elections, and essentially said that subverting sovereign will of a people is a crime more serious than treason, as it is a crime against society as against the state. I stated that:

‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.

However, there is an emerging – and a rapidly entrenching – notion in Africa, that electors or voters no longer decide who their leaders are – whether in party primaries or the general election itself. That leaders are decided either by unaccountable party barons, or by manipulated electoral management agencies, or by the security forces, or by technology and data companies, or by the courts. In this continent (and, admittedly, America is beginning to show these signs too), there is a widening chasm between voting and counting – a strange paradox of inverse literacy, where peasants and workers (most voters) know how to peacefully cast their ballots during the day on Election Day, but graduates and computers (technologically-aided presiding and returning officers) ‘forget’ how to count on election night. There is urgency in changing this perception and/or reality and reclaim and reaffirm public faith in electoral politics.

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Kill me, but tell me who you are. Plunder and terror in Eastern Congo

Lake Kivu near Goma(photo Koert Lindijer)

Aurélien Kambala in the north-eastern Congolese city of Butembo is preparing himself for his role as an election observer on Sunday*. The father puts his work aside when Moise Paluki comes by to tell his story. He wants to embrace Moise Paluki, but an Ebola epidemic in the region forbids such compassion. Consolation is no longer allowed. His visitor tells him how militia fighters killed his eldest son last week and set fire to his truck loaded with peanuts. “I have nothing left, how do I continue with my life”, laments Paluki, “and imagine, I do not even know who the perpetrators are”.

The inhabitants in the north-eastern region are desperate. For years they have suffered the terror of numerous armed groups. On top of that came Ebola. The violence in this wooded agricultural region began in 2014 and already led to 2000 civilian deaths and 200,000 more displaced. Who the perpetrators are and what motivates them is unclear. The UN soldiers of a peacekeeping force also often wonder who their enemy is, but they do observe the connections of the militias with politicians. Using the disorder, neighbouring countries and Congolese politicians, smugglers and tribal chiefs set up the fighting groups for their own interests. In fertile Congo with its numerous mineral resources, war is more profitable than peace – at least for a small group of profiteers. Congo is a place to plunder, since the Belgian king Leopold to Mobutu and then from Mobutu to the Kabila’s.

“Kill me, I do not care anymore,” Moise Paluki mourns as he raises his hands to an imaginary attacker, “but tell me who you are, and why you want to kill me!”

The chaos rages throughout Eastern Congo, as well as in the central region of Kasai. Virtually nowhere in Africa is the gap between citizens and rulers so distressing.

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