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Purge in Senate illustrates why the law is a servant of politics

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MAKAU MUTUA

By MAKAU MUTUA
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Recently, Senator Kipchumba Murkomen was booted from his lofty perch as Senate majority leader.

He quickly rushed to court to stop his defrocking by Jubilee’s Uhuru Kenyatta. Mr Kenyatta tore off Mr Murkomen’s frock-like Senate vestments – staff, ornate office, security guards, allowances and gas-guzzlers – in an act of public whipping.

I am told his ostentatious cars were forcibly repossessed as he drove along Mombasa Road. There’s a heavy price for conspicuous consumption when one is publicly disgraced, dumped and humiliated.

But the search for justice under the rubric of the courts by Mr Murkomen and his acolytes is foolish, or a public relations gimmick. His problems aren’t legal. They are political because that’s what the law is – political.

Scholars of the law, like myself, understand that law is politics. That in fact law is a servant of politics, and not the other way round.

This point should be completely uncontroversial because it’s Jurisprudence 101.

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Today, I want to give Mr Murkomen the tutorial about the law that he apparently missed in law school.

If you think of the law as an instrument for organising, changing, regulating, perpetuating, governing and preserving a society and its basic civilisation, then your heart won’t be broken by this column.

But if you think of the law as some kind of church doctrine that’s pure, neutral, unbiased, apolitical, and beyond fallibility, then you are going to end up in tears.

The law doesn’t exist, or live, in a vacuum. Nor does it materialise out of thin air. The law is based on a society’s norms, which are drawn from its dominant civilisation.

Norms are fountains of knowledge and wisdom in which the law is sheathed. In some societies, for example, twins were regarded as evil. This was a norm.

As such, the law authorised the killing of twins. The law is always based on a norm. But the law itself, and the norm on which the law is based, is a product of the politics in the particular society.

The law can protect you, or harm you. Like a sword, it’s double-edged and cuts both ways. It’s indeterminate.

That’s why laws and norms are end products of political processes. They are the distillation of social, ethical, religious or class-based interests of elites.

Often, laws are a class imposition by a hegemonic group, or elites in a society over subordinate, or subaltern, strata. Some examples are blatant.

Colonial laws were openly racist to preserve and perpetuate the exploitation and exclusion of blacks from the goods of society.

Laws are often gender-discriminatory. For instance, girls are often denied the right to inherit property.

In some countries, a woman citizen cannot by law pass her citizenship to a child with a non-citizen man, while the man can. Under versions of sharia law, a woman isn’t fully human with all rights.

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In a modern society, even a democratic one, laws are made by the political branches of the state.

Laws are passed by the legislature through elected representatives or by factotums in the executive, which is also a political arm of the state.

Thus politicians or executive bureaucrats known as civil servants make, or interpret, the law. Legislatively, all laws are products of compromises among contending social forces in society.

If you doubt me, try to introduce legislation to permit same-sex relationships, or marriage, in Kenya. You will be lucky to exit the chamber alive.

The elite in Kenya is united in denying sexual minorities equal protection. That’s the opposite in America, the European Union, Ireland, and South Africa.

There’s a misunderstanding about what courts do. The notion of judicial independence – where the courts are the guardians of legality – doesn’t mean that judges aren’t political.

Nor does the principle of the rule of law remove politics from the judicial process. The rule of law means that laws must have a basic core minimum of fairness to safeguard basic human rights and due process protections.

Crucially, the rule of law requires that courts not be subject to executive fiat, arbitrariness, discrimination and opacity.

But the rule of law doesn’t mean that judges leave their political biases, religious bigotries and political ideologies at the door. No – that’s not humanly possible when judges interpret the law.

Judges are inherently political beings. That’s why courts are political institutions. Courts are an arm of the state, which is a political institution.

That’s why good lawyers often predict how certain judges will rule based on their ideology and political philosophy.

In the Supreme Court of the United States, like all other courts, judges harbour ideological biases.

There’s never a doubt how Justice Clarence Thomas, a staunch Christian conservative, is likely to rule on most cases.

That’s why the SCOTUS is often split 5-4 based on the political ideologies of judges.

Mr Murkomen and his acolytes should realise courts are highly fallible and inherently political instruments. Like the law, courts can be a shield or a sword.

Makau Mutua is SUNY distinguished professor at SUNY Buffalo Law School and chair of KHRC; @makaumutua.

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EDITORIAL: East African economies can be reopened, but with caution

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The EastAfrican

By The EastAfrican
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This week saw a steep jump in the number of confirmed cases of Covid-19 across East Africa, suggesting that the pandemic was entering a critical phase. It was also the week that governments began easing movement restrictions imposed 10 weeks ago, at the height of uncertainty over how the pandemic would unfold in the resource-constrained region.

Tanzania opened its airspace to international travel on June 1 and the other member states of the East African Community are expected to follow suit over the coming weeks.

On June 4, Uganda started a gradual return of public transport across most of the country, save for regions that are located along international borders.

Uganda’s move spooked citizens who could not understand why a government that ordered a lockdown before even a dozen cases had been registered, should be opening up when all indications were that it was on the cusp of exponential spread of the pandemic.

Uganda’s move aptly captures the difficult choices that governments across the world are facing. Covid-19 kills people, but the domino effect of an economic crash could result in even more deaths that would not be directly attributable to the virus.

While the jury is still out on the benefits of the lockdowns, going by what has so far happened, the governments cannot be denied credit for staving off what might have been.

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East Africa, and Africa in general, has not seen the kind of case burden and fatalities witnessed in the developed world. But as the pressure for easing suggests, most people feel that the peak of any benefits from the lockdowns has probably been passed and further tightening would probably only inflict economic pain. The economies have contracted rapidly, impacting government’s capacity to sustain the requisite social interventions.

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The challenge for governments across the world continues to be how to prevent a health crisis from progressing into an economic crisis.

In East Africa, fiscal revenues have taken a nosedive because firms are not earning while export earnings are down to a trickle because of the break in connectivity between producer economies and international markets.

Reopening the economies is therefore the logical next step for the world but needs to be approached in a more co-ordinated manner. If the asymmetry that characterised the implementation of anti-Covid-19 measures is allowed to continue, opening up might yield the maximum dividend and, could potentially undo the gains achieved by the lockdown.

A logical first step should be opening up domestic movement. That will generate the knowledge that informs the next steps.

Covid-19 is still around and the risk of a relapse ever present. A harmonised view of the risk it poses to the region and sensible mitigation measures is necessary to preclude the risk of disruptive knee-jerk reactions.

A common testing regime would, for instance, negate the need for lengthy and costly quarantine periods for cross-border travellers.

Quarantines are not very different from lockdowns and countries that insist on them would have to effectively keep their borders shut. Without a co-ordinated reopening of the regional economy, disjointed efforts will not yield much.

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JAGUN-DOKUNMU: Why we must ensure our food is safe to eat

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By JUMOKE JAGUN-DOKUNMU

Make no mistake about it, coronavirus is a devastating health and economic disaster. More than six million people worldwide have been infected and close to 380,000 have died from Covid-19, the disease caused by coronavirus, according to the World Health Organization.

Africa has so far done well to shield itself from the worst of the health crisis, though the numbers continue to rise in many parts of the continent, where healthcare workers are under pressure.

With coronavirus, however, has come a vastly heightened public awareness of the importance of good hygiene practices.

The world is waking up to what the food industry has long known: careful hand washing, consistent cleanliness and care techniques, and yes, even the wearing of gloves and face masks, all help keep infection and disease at bay.

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Food producers know that contaminated food can bring serious financial and reputational ramifications. For consumers, bad food can make them sick, force them into hospital – or even worse.

The WHO estimates that food-borne illnesses struck 91 million people in Africa in 2015 and killed 137,000 that year, the highest in the world.

Meanwhile, The Safe Food Imperative, a 2018 World Bank report, estimates that food safety issues cost developing countries a staggering $110 billion in lost productivity and medical treatment in 2016 alone.

With the coronavirus pandemic making us hyper vigilant to what we touch – and eat – food safety has become a hot topic in households, grocery stores and kitchens in Africa and around the world.

The good news is that no reported cases of Covid-19 have been linked to contaminated food. Still, it is always important to maintain good hygiene practices around food to reduce the risk of contamination.

With concerns over hygiene and health on the rise, the second World Food Safety Day, which will be marked on June 7, is assuming much greater significance.

Under the theme ‘Food safety, everyone’s business’, the action-oriented campaign will promote global food safety awareness and call upon countries and decision makers, the private sector, civil society, UN organisations and the public to promote and enforce food safety.

In Africa, Kenya and other countries have made strides in improving food safety, but they would do well to establish independent bodies to help regulate food safety and to bring food legislation in line with international requirements.

For private businesses operating in Africa’s food sector, safety must become a priority.

African consumers also have an important role to play. They must be more vigilant – and settle for nothing less than safe food.

Finally, development organisations such as the World Bank Group can convene leaders and policy makers to pursue improved food safety legislation. They can also help businesses implement and maintain rigorous food safety systems – this is a focus of IFC, a member of the World Bank Group.

Over the past decade, IFC’s food safety programmes have helped clients, including Twiga Foods and others, increase sales by over Sh50 billion ($480 million), helping them solidify their existing client base and reach new markets. IFC has also recently published an updated version of its Food Safety Handbook, which guides food sector companies through the process of establishing or improving food safety systems.

There are many benefits from improved food safety. With safer food, African countries can take a bite out of poverty, improve health outcomes and help their food producers grow and expand their reach.

And to think it all starts with washing hands or covering your mouth and nose when you cough and sneeze.

The writer is International Finance Corporation’s Regional Director for Eastern Africa

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Tale of Zanzibari woman who found fortune on the Internet

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CHARLES ONYANGO-OBBO

By CHARLES ONYANGO-OBBO
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This is the 31st anniversary of the Internet globally, but these things often arrive late on Africa’s shores.

Hard to imagine, but it’s only the 20th anniversary of the Internet’s “proper” arrival in Africa, although some early adopters on the continent got there before that. Barely a dozen newspapers on the continent at that time had websites.

After the Internet arrived, coinciding with the beginning of the wide spread of the mobile phone, they took off with a fury.

However, it’s only about 10 years since we started seriously thinking of making money online. The memory of the first presentation I sat in about using the Internet in Africa to grow business is still fresh in my mind. I had been to places outside Africa where people were making noises about it, but not here at home.

It happened in Mombasa in 2000. A then fairly young UK Department for International Development and British Council organised a workshop there and invited a couple of people in East Africa who were known to be tinkering with the Internet.

There was a smart, but sweaty and twitchy lad who had come from London to present.

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Perhaps sensing bored expressions on some people’s faces, he decided to bring it to East Africa. He told us the story of a woman in Zanzibar, a leading maker of handicrafts for tourists.

She had a small good business going. Every year tourists came, and every year she sold pretty much the same quantities of handicrafts and was happy.

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One day in 1998 or 1999 someone from the British Council who was searching for people to work with, approached her and told her she could grow her business significantly if she used the Internet. She had heard of the Internet in idle talk on the island, but never paid attention.

Fortunately, she listened. You couldn’t yet sell stuff on the Internet at that time, but she was told how she could get a computer, a dial-up modem, get on the internet, and find out about colour and other style preferences of the people from countries that sent most tourists to Zanzibar.

If British women were in the mood that summer for short brimmed hats with yellow bands, she made straw hats with short brims to sell to them when they came to Zanzibar. If the Germans liked bigger-brimmed hats with purple bands, she would make a few of those too.

She became among the first small business women to use a computer and the Internet on the island, and her business exploded. At the time, her name wasn’t important. A handicraft woman in Zanzibar was enough.

Today, of course, we would have asked for her Facebook and Pinterest pages, and checked her out immediately. She is possibly retired now, having handed the business to a grandchild who ran it down. Can’t stop wondering though; who was that pioneer digital entrepreneur in Zanzibar?

Charles Onyango-Obbo is a journalist, writer, and curator of the “Wall of Great Africans”. [email protected]

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