Press Freedoms Under Threat In Kenya

The arrest and detention of two Kenyan bloggers, Robert Alai and Patrick Safari over pictures of dead Kenyan security officers that shared on their Twitter timelines has once again shone the spotlight on government threats to media freedom in the East African country.

The pictures posted by the two showed some of the bodies of 12 police officers killed when their vehicle ran over a landmine suspected to have been planted by members of the Somalia-based Al Shabaab terror group. The bodies had been piled in the back of a government pick-up in a disrespectful manner.

The government, perhaps predictably, took a dim view of his actions, with the National Police Service and the National Cohesion and Integration Commission both urging the photos to be taken down the pictures. The police declared in a statement that the bloggers had chosen to “callously disregard common decency of showing respect to the departed and their families”. The NCIC chimed in claiming that the pictures would cause despondency among the country's armed forces and could be construed as “propaganda for war which is not protected under the constitution”.

Both institutions seem apparently oblivious to the irony of claiming that it is not the actual treatment accorded to the officers’ bodies that showed disrespect but rather the reporting of it that was the problem. It is however not surprising. Such attempts at shaming Kenyans into silence are always employed whenever the government wishes to hush up criticism of its apparent lack of regard for officers and troops.

In January 2016, after nearly 200 Kenyan soldiers were killed in an Al Shabaab attack on their base near the Somali town of El Adde, the government also attempted to suppress any images that would highlight the scale of the failure, even going as far as to arrest and question a number of bloggers and journalists who posted pictures of the attack (though not necessarily of the dead) on his Twitter timeline. The government-sponsored hashtag #HonourOurHeroes was deployed to suggest that those demanding the truth about how many people died and for senior officers to held to account were somehow the ones dishonouring the troops, not the clumsy attempt at a cover up.

Earlier this year, on the third anniversary of that massacre, Al Shabaab militants attacked the DusitD2 hotel complex in Nairobi, killing at least 21 people. The New York Times published pictures which showed bodies of some of the dead, sparking a wave of online outrage from Kenyans on Twitter, calls for the deportation of their incoming bureau chief and threats of deregistration by the Media Council of Kenya – a state-funded body which regulates media in Kenya. At the time, while agreeing with the general consensus that the NYT was wrong to publish the pictures, some, including me, warned that allowing, and even encouraging, the government to get involved would establish dangerous precedents.

Today, those chickens are coming home to roost. The legitimization of the use of state power to intimidate and threaten the media has further emboldened those who are wont to shut down dissent. It is worth remembering that the Kenya government has had a long-standing ambition to censor the publication of pictures from terrorist attack. One attempt in 2014 sought to amend security laws to criminalize the publication of photographs of the bodies of terrorism victims without the consent of the police. It was fortunately declared unconstitutional for violating the guarantees of freedom of expression and of the media.

The government is well aware that the High Court in that judgment clearly disagreed with the idea that “images of dead or injured persons” even those “likely to cause fear and alarm to the general public or disturb public peace” amounted to propaganda for war. Though it is yet to state what laws the two bloggers are supposed to have broken, following a court appearance, they will however be jailed without charge or trial for at least two weeks while the police apparently investigate “claims they might have received the photos from an Al Shabaab sympathizer”. This despite the fact that a police officer has reportedly been arrested on suspicion of being the source of the images. The point of all this seems less to secure convictions than to harass and intimidate citizens and journalists into silence. It is little more than an abuse of both police powers of arrest and of the court process. In addition, the whole saga may also be a ruse to distract from uncomfortable questions regarding the whereabouts and quality of armored and mine-resistant vehicles that the government procured for the police three years ago to protect officers form exactly this sort of attack.

The media in Kenya should be very afraid. In essence, the government is looking to punish reporting that paints it in a bad light. If this sort of harassment is allowed to stand, it will not be long before regular journalists find themselves similarly treated when their stories rub the government the wrong way.

BLACK, RED AND GREEN: The story behind the Kenyan flag

Fifty-six years ago, on July 26, 1963, the national flag of the soon to be newly independent state of Kenya was unveiled. The standard was typical of the country that had created it – cobbled together by an elite but imbued with pretensions at unity and forging common cause with common folk.

In those heady days, as Kenya geared up to party, one could be forgiven for ignoring the tensions bubbling underneath. The country was in transition and the previous two years had been marked by political crisis, brinkmanship and even threats of war and secession. As described in 1964 by Guardian journalist Clyde Sanger and former official in the Kenyan colonial administration, John Nottingham, “During this period Kenya first experienced six weeks when neither [of the two major political parties, the Kenya African National Union or the Kenya African Democratic Union] would form a government and [Governor Patrick Renison] told visitors he was prepared to rule by decree; 10 months in which K.A.D.U., with backing from Michael Blundell's New Kenya Party and Arvind Jamidar's Kenya Indian Congress, carried on a minority government sustained by more than a dozen nominated members; and a year in which K.A.N.U. and K.A.D.U. uneasily joined in a coalition which was as full of frustrations as it was of intrigues. The politics of nation-building could not even begin until K.A.N.U. had fought and won a straight democratic election”.

Today, the messy story of Kenya’s struggle for independence has largely been swept under the symbolism of the flag, yet the contradictions and disputes that gave rise to it continue to haunt the nation as they were never fully resolved. The tale of the flag itself is a manifestation of these issues.

Historically, flags were linked to conflict. “The primordial rag dipped in the blood of a conquered enemy and lifted high on a stick – that wordless shout of victory and dominion – is a motif repeated millions of times in human existence,” wrote Whitney Smith in his book Flags Through the Ages and Across the World. Modern flags evolved out of the battle standards carried into war by ancient armies and “were almost certainly the invention of the ancient peoples of the Indian subcontinent or what is now China” according to the Encyclopedia Britannica.

In battle, flags were both symbolic and practical. They provided mobile rallying points for soldiers engaged in combat, could be used to signify victory or even, in plain white form, a truce or surrender. In the days before radio communications, they were also ways of communicating across vast distances, especially by sailors. In the modern age, they are still carry powerful symbolic significance. “Show me the race or the nation without a flag, and I will show you a race of people without any pride,” Marcus Garvey was reported to have declared in 1921.

On the African continent, almost all the current national flags were created in the years following the Second World War and in the run-up to the demise of colonialism. Many still bear hallmarks of that colonial past. According to the Encyclopedia Britannica, the ensigns of countries that had a common colonial past “bear strong family resemblances to one another”. It distinguishes two major categories: those former French colonies which “tend to have vertical tricolours and are generally green-yellow-red” and those of the Anglophone which “have horizontal tricolours and often include green, blue, black, and white.”

Kenya’s standard also carries this history. It can be traced directly to that of the Kenya African Union, which was founded in 1942 under the name Kenya African Study Union, with Harry Thuku as its president. The flag of the KAU (the word “Study” was dropped in 1946) adopted the Pan-African colours pioneered by Garvey’s Universal Negro Improvement Association and African Communities League 25 years before – red, black and green, which respectively represented the blood that unites all people of Black African ancestry and which was shed for liberation; the race of black people as a nation; and the natural wealth of Africa. (It must be noted, though, that some have suggested that when Garvey proposed the colours, he meant the latter two to reflect sympathy for the “Reds of the world” as well as the Irish struggle for freedom.)

However, when originally introduced on September 3, 1951, according to the Encyclopedia Britannica, KAU’s flag was only black and red with a central shield and arrow. The following year, the background was altered to three equal horizontal stripes of black, red and green with a white central emblem consisting of a shield and crossed spear and arrow, together with the initials “KAU”. At the time the black stood for the indigenous population, red for the common blood of all humanity, green symbolised the nation’s fertile land while the shield and weapons were a reminder that organised struggle was the basis for future self-government.

Jomo Kenyatta took over the presidency of KAU from James Gichuru in 1947. Five years later, as reported by Karari wa Njama, a Mau Mau veteran and alumnus of Alliance High School, in the book Mau Mau from Within, Kenyatta’s explanation of the significance of the KAU flag had changed. “What he said must mean that our fertile lands (green) could only be regained by the blood (red) of the African (black). That was it! The black was separated from the green by the red: The African could only get to his land through blood.”

Kenyatta was speaking in Nyeri as the Mau Mau uprising was gathering steam. Though billed as a KAU meeting, Karari says that “"most of the organisers of the meeting were Mau Mau leaders and most of the crowd Mau Mau members".

Yet Kenyatta himself had little to do with the Mau Mau. On the contrary, he consistently denied any involvement with them and is, in fact, reported – on the same day – as having distinguished the KAU from the uprising and having disavowed the use of violence. “He who calls us the Mau Mau is not truthful. We do not know this thing Mau Mau…K.A.U. is not a fighting union that uses fists and weapons. If any of you here think that force is good, I do not agree with you: remember the old saying that he who is hit with a rungu returns, but he who is bit with justice never comes back. I do not want people to accuse us falsely – that we steal and that we are Mau Mau.”

However, Karari’s recollection is important given that the red in the Kenyan flag would later be claimed to reflect “the blood that was shed in the fight for independence”.

By 1956, the Mau Mau revolt had been brutally quashed and gradually the restrictions on political organisation were eased. In 1960, the eight-year State of Emergency was lifted and the ban on colony-wide African political parties relaxed. KANU was founded on May 14 of that year and, as Charles Hornsby writes in his book Kenya: A History Since Independence, “its name, black, red and green flag and symbols were chosen as a direct successor to those of KAU”. At some point, the cockerel and battle axe were introduced as symbols of the party. A month later, on June 25, KADU was formed. John Kamau, an Associate Editor with the Daily Nation has written that the “Kanu and Kadu flags were similar in design. Both had three horizontal bands and two similar colours, black and green. The difference was only in the third colour, red for Kanu and white for Kadu.”

KANU was dominated by the large agricultural communities – the Kikuyu and Luo – while KADU represented smaller, mostly pastoral ones, which feared domination. KANU won the 1961 election but refused to form a government before Kenyatta, who had been detained in 1952, was released. KADU, after extracting some concessions from the British, which included building Kenyatta a house in Gatundu and moving him there, formed a minority government with its head, Ronald Ngala, as Leader of Government Business and later as Chief Minister.

It was only in September, after it had been in power for five months, that KADU begun to foster an issue that would come to define the conflict between the two parties. KADU espoused Majimbo, or regionalism, in opposition to KANU’s preference for a highly centralised post-independence state. KADU was egged on by the white colonial establishment to adopt this stand.

As explained by Sanger and Nottingham:

“Majimbo's origins should be traced further back, to Federal Independence Party formed in 1954 by white farmers, who saw that political control would one day pass into African hands and wanted to seal off the 'White Highlands' from an African central government and save the great wealth of the Highlands for those considered had been solely responsible for developing it.
“Indeed, regionalism really goes much further back than this. Elspeth Huxley recalls that the F.I.P. was only proposing to 'develop the "white island" idea … to carve out a small territory, about the size of Wales, comprising present areas of the Highlands. In this area they would exercise self-government; so would the Africans in other areas; and Kenya would become a federation of three or four smallish states, in only one of which would the colonists have political control. Here they would entrench themselves.'”
x

It is interesting that devolution, which is rooted in the Majimbo debates, has become a pillar of the 2010 constitution. Many Kenyans do not realise just how much current political debates are a reflection of much older, and not always innocent, proposals.

KANU, in opposition, was vociferously opposed to Majimbo, which it saw as entrenching tribalism. And by the second Lancaster House Constitutional Conference, which lasted from February to April 1962, both sides seemed, at least rhetorically, firmly entrenched in their positions.

But it was mostly for show. As Prof. Robert Manners wrote at the time, “The contesting parties are less divided by issues, programs, and even concepts of political structure than they are by competing personal ambitions.” He added that he had spoken to several within the KADU camp, including two front benchers, who told him that they were not really afraid of KANU domination but rather, were cynically hyping up fears for personal benefit. “In short, it is fairly certain that KADU's leadership does not share the ‘tribal’ fears they have helped to arouse in their followers. They have employed some ancient anxieties and provoked a number of new ones with the apparently calculated intent of prolonging in some measure and for some time the freakish position of power with which they were endowed when KANU refused, in April 1961, to form a government.” Sound familiar?

Regardless, the outcome of the conference was a coalition government led by both Ngala, the Minister of State for Constitutional Affairs with special responsibility for administration, and Kenyatta, who had since been released and was now the Minister of State for Constitutional Affairs with special responsibility for economic planning and development. Each declared victory.

This “nusu mkate” government was a fractious affair from which Kenyatta’s Number Two in KANU had been excluded at the insistence of the Colonial Office. In his book, Not Yet Uhuru, Oginga Odinga speculated that “Governor Renison persuaded the Colonial office that my visits to Socialist countries made me unfit to take Cabinet office”. He was also aware of “behind-the-scenes discussions in London in which some Kanu men hinted that I would be unacceptable not only to Kadu but even to some groups in Kanu”.

Still, the coalition held till the elections in 1963, which KANU again won handily and this time they got to form the government, with Kenyatta as Prime Minister. In June, Kenya attained self-government and arrangements for independence began in earnest. Among the issues that would need to be settled was the question of a political union with neighbouring Uganda and Tanzania. As late as July, the idea of an East African Federation was still being taken seriously.

A month before, on July 5, Kenyatta and his Ugandan and Tanganyikan counterparts, Milton Obote and Julius Nyerere, had issued the Declaration of Federation, in which they committed to establishing a political federation by the end of the year. This was another idea with a long history, pioneered by the white colonial settler establishment who, as far back as the 1920s, were ready to establish a federal capital in Nairobi in order to reduce the influence of London in the region.

The region was already tied together by a network of more than 40 different East African institutions covering areas such as research, social services, education/training and defence. As Nyerere had observed in March, “A federation of at least Kenya, Uganda and Tanganyika should be comparatively easy to achieve. We already have a common market, and run many services through the Common Services Organisation…This is the nucleus from which a federation is the natural growth.”

When the issue came up for debate in the UK’s House of Lords on July 15, Francis Twining warned of the difficulties of federation since it involved the loss of sovereignty which “these new countries value … above all else. They jealously prize their status symbols, such as national flags and national anthems”.

And, as Nyerere himself would admit 34 years later, flags and other national symbols, rather than tools to rally unity, had become tools of personal aggrandisement and actually stood in the way of such unity. “Once you multiply national anthems, national flags and national passports, seats at the United Nations, and individuals entitled to 21 guns salute, not to speak of a host of ministers, prime ministers, and envoys, you have a whole army of powerful people with vested interests in keeping Africa balkanised.” Across the continent, attempts at political federation met quick deaths.

As Kenya moved towards independence, some within Kenyatta’s circle wanted to use the KANU flag as the national flag. This was not without precedent. As Tom Mboya, the brilliant young Justice and Constitutional minister, noted, “It is not without significance that our neighbours, Tanganyika and Uganda, both saw it fit to use the ruling party flag simply as a basis for the national flag.”

However, Mboya cautioned against simply adopting the KANU flag, warning that it would further polarise the country. He managed to convince Kenyatta, who formed a small committee chaired by Dawson Mwanyumba, the Minister for Works, Communication and Power, to come up with the national colours. Doing so was not difficult because he was not really looking for national colours but rather a political compromise everyone could live with. So he did the obvious thing and combined the colours of the KANU and KADU flag by introducing the white fimbriation. The flag retained and updated the elements of the KAU flag, such as the shield and spears. The KANU cockerel and axe were omitted from the flag but made it onto the coat of arms.

When the flag was shown to the cabinet, the meaning of the red colour matched what Karari had understood Kenyatta to say over a decade before. Rather than simply including KADU, the white fimbriation was said to symbolise a multiracial society but the cabinet changed it to “peace”, perhaps a sign that while racial minorities would be tolerated in the new Kenya, their integration was not necessarily on the agenda.

But there were other issues related to minorities to be settled. In the northeast, the Somali population was in open revolt.  A 1962 survey had found that 85 percent of Somalis preferred to join Somalia. However, in March 1963, Duncan Sandys, the Colonial Secretary, under pressure from Kenyan ministers, supported a Kenyan future for them. This sparked mass protests, an election boycott, calls for armed secession and attacks on government facilities. By November, the so-called Shifta war was raging, with audacious attacks by rebels armed and trained by Somalia.

In Nairobi, Mboya pushed an amendment to the National Flag, Emblems and Names Act to outlaw the display of flags purporting to represent Kenya or a part thereof. This was meant to stop the Somalis flying the Somalia flag in the Northern Frontier District. But it also had other targets.

At the third and final Lancaster House Constitutional Conference, held between late September and mid-October 1963, tensions were so high that KADU leaders Ngala and Daniel arap Moi, who had been elected President of the Rift Valley Region, threatened to secede from Kenya, with Moi releasing a partition map and threatening a unilateral declaration of independence. (Again, sound familiar?) There were even suspicions of an alliance with the Somalis in the NFD, which were fueled by a cable from Jean Seroney, at the London talks, to Moi: “Dishonourable betrayal of majimbo agreement by Britishers. Alert Kalenjin and region and Kadu to expect and prepare for worst. Partition and operation Somalia only hope.”

Mboya’s motion was thus not just aimed at the Somalis; the threats of secession by KADU regions had to be put down and one way was to deny them the right to fly flags purporting to represent an autonomous, or even independent, part of Kenya. Local councils, though, like the Nairobi City Council, were allowed to have their own flags.

There would be more drama surrounding the flag on independence day. The symbolism of lowering the Union Jack at midnight right before the Kenyan flag went up was profoundly discomfitting to the British. They determined that their flag would not be raised for the event after it had been lowered, as was customary, at 6pm. Kenyatta, who by now was their reliable lackey, was happy to go with it but when he presented the plan to the Cabinet, it was shot down, largely thanks to Mboya. So another plan was hatched with Arthur Horner, the former Permanent Secretary in the Ministry of Works and then the head of the Independence Celebrations Directorate (the body charged with organising the event), who secretly ordered to put out the lights as the British standard came down and switch them back on as the Kenyan flag was raised. It was a ploy the Brits had pulled before, in both Uganda and Tanganyika.

On 30^th July, just a few days after the national flag had been introduced, Kenyatta had given a ministerial statement on the independence day celebrations in which he bemoaned the people’s penchant to fly party flags wherever and whenever they desired, declaring it illegal. The national flag, he declared, would only be flown by “Cabinet Ministers and other authorised persons” and its reproduction, along with that of Kenyatta’s own portrait, would be strictly controlled. In this way, under the guise of honouring it, the flag was shielded from the masses and reserved for the glorification of the ruling elite. The flag, and the state it stood for, became the property of a few, not of all Kenyans.

After independence, this “protection” of the flag from the people, who were deemed too unclean to handle it, continued with frequent debates in Parliament about who could and who couldn’t fly it. Under Jomo Kenyatta’s successors, the law and the policy has remained largely unchallenged.

But the last two decades have seen the beginnings of a popular movement to claim the Kenyan flag. It has become ever more present in Kenyans’ lives – from activists like Njonjo Mue, who in 2004 scaled the walls of Parliament and ripped the flag off a cabinet minister’s car as a way of demonstrating the government’s loss of moral authority to govern, and who more recently has been charged with flying the flag on his own car, to the many Kenyans brandishing it during public rallies and sporting events (it even famously made an appearance at the World Cup) it seems that, as Kenyatta feared 55 years ago, “every Tom, Dick and Harry” is flying it. He must be turning in his mausoleum. Good.

However, besides reclaiming the use of the flag, Kenyans need to also consider what it means today. If it is not to be a tool of personal aggrandisement or unthinking and enforced veneration of the state, then what should it be used for? Who or what does it represent?

In the years since independence, it has been a symbol, not of Kenyans and their struggles against oppression, but of Kenya and the power the continues to be wielded against them. The rituals associated with the flag and other symbols such as the national anthem, both reinforce and, paradoxically, disguise this. It is clear in the common statement that “Kenya is greater than any one of us” which at once distinguishes Kenya from Kenyans while also proclaiming the myth that the state is something more than a largely self-serving political arrangement between elites competing for power and prestige. Kenya, we are rather told, is a divinely-ordained an eternally established ordering of Kenyans to which we all owe allegiance and subservience. It recalls a time in my childhood when I was informed that suicide was illegal because it deprived the state of taxes, as if Kenyans were made for Kenya and not the other way around.

In the week where we mark the anniversary of Kenyatta’s “Tom, Dick and Harry” statement to the House of Representatives, perhaps we could all take some time to remember all the history – good and bad – that the flag represents, as well as reflect on what else it could stand for.

We can choose, and many are choosing, to reinterpret its design and colours to suit, not the ambitions and egos of politicians, but the realities and aspirations of ordinary Kenyans. As it did for Karari wa Njama all those years ago, it should today serve as a reminder of the need to continue the struggle to free ourselves from the existing colonially-inspired order – that despite 55 years of independence, the black is still separated from the green.

Matiang'i: Uhuru's Middle Finger To The Constitution

President Uhuru Kenyatta’s recent elevation of Fred Matiang’i to “chief” of the Cabinet Secretaries has been widely interpreted as a swipe against his deputy, William Ruto. While there may be some truth in that, it feels like once again the country is missing the wood for the trees. The appointment is also a swipe against the constitution itself, part an unrelenting assault that the President and his party have mounted on the document since their campaign for office in 2013.

To understand why this is the case, one needs to think back to the illegal deportation of Miguna Miguna, the self- declared “General” of the National Resistance Movement. Many will recall that this action, which came in the aftermath of Raila Odinga’s mock swearing in at the end of January, precipitated standoffs between the Executive and the Judiciary, with the former disobeying multiple court orders to produce him in court and return his Kenyan passport.

In December, the High Court ruled on Miguna’s constitutional challenge to the government’s action and agreed in toto with him. In fact, Justice Chacha Mwita found that Matiang’i, as well as the Inspector General of Police, Joseph Boinnet and Immigration Permanent Secretary, Gordon Kihalangwa, had violated the rule of law, the constitution and that their conduct amounted to abuse of their office. The constitution prescribes that such conduct is grounds for removal from office, not promotion.

This is the context in which we should understand President Kenyatta’s actions. He has basically flashed the constitution his middle finger and, by so rewarding, rather than firing, one who has so callously violated it, demonstrated his own contempt for the document and the institutions and standards it establishes.

This contempt has been on display even before he became President. It was his and Ruto’s candidacy for the highest office while indicted for crimes against humanity at the International Criminal Court that made a nonsense of the constitution’s prescriptions on leadership and integrity. Today, he appears completely oblivious of the irony when he says that no person charged or implicated in corruption will get a State appointment until they are cleared, as a measure of dealing with graft.

But it is not only the President who is at fault. The constitution give Parliament the duty of oversight over Cabinet Secretaries and MPs can initiate a process for removing those that are guilty of gross misconduct. Yet to date, there has been no attempt to probe Matiangi’s conduct or even calls for his resignation or removal. Neither has any of the MPs raised their voice in protest at his elevation except in as much as it concerns the fortunes of Ruto.

The media, too, has not shown any particularly interest in rocking the political boat, instead preferring to let the politicians take the rudder. As always, the press has been entrance by the drama of of our personalized political contests (and especially the fate of Ruto’s ambitions to succeed Kenyatta) and are blind to the substance of the issues such contests skirt around. Quite the contrary, the media has been only too keen to lionize Matiangi’ and to present him as the savior of the wananchi, rather than the dangerous lawbreaker he is.

And we have been here before. In 2004, it was the late John “The Crusher” Michuki who was all the rage, the media again doing little to question his methods and motivations. They would pay dearly for that when he would authorize the 2006 raid on the Standard premises and order a news black out in the wake of the violence that followed the 2007 election.

Finally, failed by their representatives and kept singularly uninformed by the press, Kenyans have also been unable, even unwilling, to recognize the threat that allowing the several arms of government to subvert the constitution poses. After more than a century of governmental repression both before and after independence, the arrangements and duties in the 2010 constitution were primarily aimed at achieving one thing that its predecessor had failed to do: to bring the Leviathan to heel. That failure inaugurated half a century of brutal, murderous and kleptocratic regimes.

Yet nearly a decade after Kenyans voted overwhelmingly to adopt it, the constitution faces a similar fate: amended or simply ignored into irrelevance. And with no one to stand for it, this is a fight the constitution cannot win.

Kenya vs NYT is not about press freedom. But it could be.

The New York Times decision to publish graphic images of victims of Tuesday’s terror attack at Dusit D2 Hotel in Nairobi and the backlash it has engendered online have sparked furious debates about everything from the perceived racism of the foreign press, to media ethics and the limits of press freedom.

Many shades of opinion have been expressed with some seeing the photographs and the NYT’s refusal to take them down as a continuation of violence against the victims and their families, and as evidence of racist double-standards in the reporting on terrorist atrocities. Others have opposed the torrent of personal abuse and calls for deportation visited on incoming NYT bureau chief, Kimiko de Freytas-Tamura following her initial tone-deaf and seemingly dismissive responses to complaints on social media. Now threats by the state in the guise of the Media Council of Kenya to revoke or suspend her and her colleagues’ media accreditation if the Times did not remove the images and issue an unconditional apology have also opened up a regulatory can of worms.

Photographs of deceased victims of terror attacks strike a particularly sensitive chord in Kenya and it is not just the foreign media that has found itself on the receiving end of a social media backlash. Following the 2013 attack on the Westgate Mall, in which 68 people lost their lives, the Sunday Nation was excoriated and forced to apologize after it published on its front page a gory photo of bloodied and screaming woman. Three years ago, the government arrested and threatened to prosecute bloggers for circulating pictures of dead Kenyan soldiers following the overrunning of their base in Somalia.

While extremely sensitive, it is not one that lessens Kenyans’ general commitment to press freedom. Fifteen months after Westgate, many were outraged when the government rammed through Parliament amendments to security laws that included a prohibition on the publication or broadcast of images of terror victims without the consent of both the police and the victim. The law was later struck down by the courts which ruled it infringed on the constitutional guarantees of press freedom and freedom of expression.

Media editors also have to contend with evolving community standards and attitudes as well as social media’s empowering of audiences to forcefully express themselves. Two decades ago, in what seems a completely different era, graphic images of victims of the 1998 bombing of the of the US Embassy in Nairobi in which 224 people died, caused little uproar. And while pictures of victims of state violence do not always attract the same umbrage, the traumatizing and, in many ways, uniting effect of terror incidents gives their expression particular force.

It is within this context that we must understand the reaction to the publication of the photographs. The New York Times claims it was motivated by the need “to give our readers around the world a clear picture of the horror of an attack like this”. However, many are not buying it, pointing out that, despite the paper’s assertions to the contrary, similar standards are rarely applied to white and US victims. In a telling interview explaining the Dusit D2 decision, Meaghan Looram, the NYT’s director of photography admitted that she could not recall seeing pictures of victims of school shootings in the US and the need to abandon historical notions that “may have applied different standards to material from locations broadly thought to be remote or “over there,” rather than close to home.”

But it is these same racist notions that have seen the paper refuse to bring down the offending photograph despite over 14,000 people signing a petition for it to do so. That this demand is being made by ordinary Kenyans is what should matter. It is not about censorship by the state. Rather, Kenyans are demanding that the folks at the New York Times choose humanity over their editorial policy. It should be a no-brainer.

The stand-off with the MCK is thus unnecessary. But it does have rather toxic implications for press freedom in Kenya. Not only does it make it easier for the state to isolate and target the foreign press corps, something it has previously done, but giving the government a taste of the power to decide what content media can carry could whet its appetite for more. As was demonstrated with the 2014 security laws amendments and again with a shutdown of local private broadcasters for a week last year, this is no idle threat.

So, for the sake of humanity and press freedom, the Times must take down the photo. And an apology would be nice too.

How to Talk About Terror Attacks

The attack on the Dusit D2 hotel complex seems frighteningly familiar. From the images of people crouching along flower beds as gunshots ring out, to the smoke billowing from the top of the building, to the report of people hiding in rooms from terrorists, it feels like a rerun of the attack on the Westgate Mall in September, 2013.

There are crucial differences though. The government's response was much faster and appeared much better coordinated than it was at Westgate. The government communications are also much better managed, if not exactly more informative - at least the confusion of five years ago has not been repeated.

However, some things have sadly remained the same. The media coverage, for example, has largely consisted on regurgitating the government line and especially urging Kenyans to desist from sharing information that the state has not verified. This has been taken to ridiculous extremes, with analysts on one TV news station warning that terming the attack a terrorist act before the government declares it to be one is aiding the terrorists. On social media, there is talk of the circulation of fake pictures and news as well as constant admonitions against sharing anything. As KTN's Lindah Oguttu put it, "the less you say, the better". 

Given the country's long familiarity with attacks, especially since 2011, you would think that Kenyans would have figured out a way to talk about and around ongoing operations against terrorists. Yet across both mainstream and social media, the message is the same - follow the government's lead. This is despite the state's equally long record of lying and obfuscation during and after terrorist attacks. Rather than keeping the public informed, its primary goal has been to deflect any criticism and pre-empt any calls for accountability.

For example, nearly everything government officials said about Westgate turned out to be false. In fact, while the attack itself was done and the attackers either dead or had escaped by the evening of the first day, the security forces maintained an elaborate fiction of fighting terrorists while they systematically looted the mall for three days.

Today's attack comes on the third anniversary of the sacking of a camp manned by the Kenyan contingent of the African Union Mission in Somalia during which at least 173 Kenyan troops were killed. Once again, the government's rendition of the facts surrounding the attack turned out to be largely a work of fiction. To date, it has refused to disclose the exact number of casualties and its initial descriptions of facing 3 massive truck bombs and "truckloads of suicide bombers" were designed to exaggerate the scale of the attack  in order to explain away the fact that the camp had been overrun.

It is thus clear that the government cannot be trusted to provide accurate information on terror attacks. While it is equally true that the unmitigated spread of information among citizens, especially through  social media, can harm security operations, when the government makes appeals for restraint, it is hard not to think of its past lies and to wonder what it is trying to hide this time.

Thus a discussion of how better to report on, or speak about, ongoing operations against terrorists must begin with addressing the state's mendacity. For as long as the government refuses to consistently deal truthfully and honestly with its citizens, it will be folly to ask them to ignore their suspicions of its motives. In any case, the idea that following an attack, citizens must suspend their thinking faculties, and blindly and unquestioningly support the government's every whim, is the very definition of being terrorized.

And it is not a very smart thing to do either.

WHAT IS YOUR TRIBE? The Invention Of Kenya’s Ethnic Communities

David Ndii’s decision to publicly renounce Kikuyu ethnicity last year and adopt a “Jaluo” one may spark a long overdue debate about the nature of ethnicity in Kenya and in Africa. For many people, both on the continent and outside it, the idea of tribe - with its connotations of strong, primitive, primordial ethnicity and ancient cultural traditions - is an indispensable part of African identity. The makers of the blockbuster superhero movie, Black Panther, who imagined the fictional African state of Wakanda as the most technologically advanced nation in the world and one that retained its essential character, still felt constrained to organise that nation into tribes. Africans are first and foremost seen as tribesmen or tribeswomen and tribe is taken for granted as the best explanation for their actions. This idea is so deeply ingrained that few ever bother to question it.

Yet question it we should. For rather than something indelibly encoded into the African genetic make-up and over which one exercises little choice, tribe turns out to be largely an artificial construct. The fact is, there is a marked difference between how ordinary Africans, including Kenyans, think of tribe and its origins and what history and social science has to say about it.

To begin with, just what is a tribe? Even this question turns out to be not as straightforward as some would have us believe. “Tribe has no coherent meaning” wrote Dr. Christopher Lowe of Boston University in his 1997 paper “Talking about ‘Tribe’: Moving from Stereotypes to Analysis”. “If by tribe we mean a social group that shares a single territory, a single language, a single political unit, a shared religious tradition, a similar economic system, and common cultural practices, such a group is rarely found in the real world,” he wrote.

What? But people do identify as Kikuyus or Luos, no? And they have done this for ages, haven’t they? Well, yes and no. People have always banded together in groups in search of security. As they grew, such groups, initially defined by kinship relations, developed common ways of responding to and relating with the world around them, as well as systems to manage relations within the group. But since the world kept changing, so did these groups. Some were subsumed into others, some got separated and developed along different paths, others disappeared altogether. Customs and languages changed. The idea that our current ethnic communities have survived unchanged from ancient times is plainly false. As Prof. Scott MacEachern of Bowdoin College in the US says, “‘Tribal’ and/or ethnic identities have never been primordial and immutable, in Africa or elsewhere.”

In fact, our current ethnic formations - some of which did not even exist a century ago - and our understanding of how they relate to each other, are the products of much more recent events. “What is a tribe?” asks Mahmood Mamdani, the Executive Director of the Makerere Institute of Social Research. “It is very largely a creation of laws drawn up by a colonial state which imposes group identities on individual subjects and thereby institutionalises group life… Above all, tribe was a politically driven, totalising identity.”

“The politicisation of ethnic identity began with the colonial experience,” says Prof. Kimani Njogu in the recent Africa Uncensored documentary titled In Tribe We Trust. According to the book Ethnicity and African Politics by Crawford Young, “although the ethnic labels… have pre-colonial origins, they became comprehensive and rigidly ranked categories only in the colonial period; they were heavily influenced by imperial codifications and further transformed by politicised actions in the last half-century.”

Clearly, pre-colonial peoples had their ideas as to who they were and how they related to the world around them. But what we call tribes today bears little semblance to the ever-changing aboriginal identities they fashioned and would probably be completely unrecognisable to them. In any case, the idea that today’s ethnic communities necessarily grew out of kinship relations is bogus.

In pre-colonial societies, as Young explains, ethnicity was a fungible cultural artefact, one that was not necessarily encoded into one’s genes, attached to particular homelands or imbued with ideas of political sovereignty. Individuals and even entire societies could navigate in and out of them. In fact, even the ideas of kinship and shared ancestry were “notoriously malleable to serve contemporary social or ideological purposes. But once rooted in the social consciousness, mythology convincingly impersonates reality.” For example, a study by Timothy Parsons of Washington University details how the colonial government once urged Meru elders to accept anyone willing to bow to their authority as Meru. He further states that “Kikuyu” was more an expression of agricultural expertise than a coherent or bounded ethnic group.

However, for a colonial administration that required order and control in order to facilitate its extractive aim, such inexactitude was unacceptable. Confronted with the reality of the diversity on the African continent, the European colonisers tried to hammer it into compliance with their preconceived ideas. Much of this was accomplished using administrative measures and backed up by brute force. Young writes: “The task of the colonial state was to discover, codify, and map an ethnic geography for their newly conquered domains, according to the premise that the continent was inhabited by ‘tribal man.’ This ethnic template, as imagined by the coloniser, became the basis for administrative organisation.” Parsons adds that “faced with a confusing range of fluid ethnicities when they conquered Kenya, colonial officials sought to shift conquered populations into manageable administrative units.”

Thus colonialism imposed its own version of order, superimposed its idea of tribes bounded within district boundaries on this ethnic patchwork, and even created an entirely new “traditional” administrative structure in the form of tribal chiefs who were actually state employees. Young writes of “the illusion that colonial ethnic mappings were historically authentic”. In this way, the state created the tribe which, in turn, became, as Parsons states, “the basic unit of government, education, labour, law, and most importantly land tenure.”

The late Prof Terence Ranger, in his famous 1983 essay on The Invention Of Tradition in Colonial Africa, shows how invented traditions, both European and African, were a crucial plank in allowing colonial settlers and administrators to “define themselves as natural and undisputed masters of vast numbers of Africans.” Which meant reinventing colonials as feudalistic patriarchs and the African as the tribal savage. Though many “found themselves engaged in tasks which by definition would have been menial in Britain and which only the glamour of empire building made acceptable” they were still proud to belong to “an aristocracy of colour”. Echoes of this remain today in the deference with which European “expatriates” are treated.

Ranger also notes that “since so few connections could be made between British and African political, social and legal systems, British administrators set about inventing African traditions for Africans… transforming flexible custom into hard prescription.” So successful was this effort that “many African scholars as well as many European Africanists have found it difficult to free themselves from the false models of colonial codified African ‘tradition’.” As he would more recently summarize, the colonial period was marked “by systematic inventions of African traditions - ethnicity, customary law, ‘traditional’ religion. Before colonialism Africa was characterised by pluralism, flexibility, multiple identity; after it African identities of ‘tribe’, gender and generation were all bounded by the rigidities of invented tradition.”

However, it is important to note that while tribe and tradition were built into the very foundation of the colonial state, the people were not just passive victims. Just as they had been doing for eons, they both resisted and reacted to the impositions, inventing and discarding identities and traditions of their own. At the outset of the colonialism, some identities, like Kikuyu, were already in the process of being created though, as described by Prof Bruce Berman, were not yet stable nor traditional; they hardened in response to the colonial state. Later, similar innovations like Gusii, Luhya, Kalenjin and Mijikenda appeared in the years between the two World Wars to essentially beef up numbers for the negotiation of status within the colonial state. What John Iliffe said of our neighbours to the south in his book, A Modern History of Tanganyika, was true in Kenya: "The British wrongly believed that Tanganyikans belonged to tribes; Tanganyikans created tribes to function within the colonial framework." Such ethnic and cultural refashioning continues to this day.

The important takeaway is that rather than ancient “nations”, today’s ethnicities are a creation of the colonial era - “state-sponsored tribal ethnographies and romantic essentialised notions of tribal culture”, as Parsons describes them. Writing a decade ago as Kenya threatened to descend into ethnic carnage, American historian Caroline Elkins, author of Britain’s Gulag: The Brutal End of Empire in Kenya, noted that “Britain's famous imperial policy of ‘divide and rule’, playing one side off another, … often turned fluid groups of individuals into immutable ethnic units, much like Kenya's Luo and Kikuyu today. In many former colonies, the British picked favourites from among these newly solidified ethnic groups and left others out in the cold. We are often told that age-old tribal hatreds drive today's conflicts in Africa. In fact, both ethnic conflict and its attendant grievances are colonial phenomena.”

In addition to creating and freezing tribal identities, the colonial state discouraged and outrightly forbade political organisation across the district lines they had drawn up. This meant that tribes were not just administrative and geographical entities; they were also set up as units for political mobilisation. Tribes were, therefore, state-mandated political identities that substituted for authentic cultural expression. “The structure of tribal administration enabled the ruling British elite to deny any representative character to the troublesome urban nationalist, while claiming for itself just that,” wrote Talal Asad, Distinguished Professor of Anthropology at the Graduate Center of the City University of New York in his essay “Political Inequality in the Kababish Tribe.” “Thus ‘the tribe’ and the ‘tribal system’ from being a means of efficient administration became the justification for perpetuating colonial domination.”

During the bulk of the colonial era, competition for state power was conducted along racial lines (race being a similarly artificial construct) while resistance to it was channeled along the tribe.  The Legislative Council, for example, had a racial make-up, with representatives of Europeans, Arabs, Indians and eventually Africans. However, as Barasa Nyukuri of the University of Nairobi observes, “The early political parties in Kenya that championed the nationalist struggle against colonial establishments were basically `distinct ethnic unions'.”  As independence approached, feuds over the state that the British would leave behind were transferred to the tribal arena.

This understanding provides a different perspective to the essentialist arguments offered by David Ndii about Kenya being a marriage of tribes. The reverse is actually true. The reality is that Kenya created tribes and then based its governance arrangements around them. And this is the primary reason why tribalism continues to infect our politics – as the Kenyan investigative journalist John Allan Namu declared, “Kenyan politics, by design, was always meant to be tribal.”

Sadly, despite their relatively recent colonial origins, tribal identities have proven to be all too enduring and ingrained. In the post-independence era, the ruling elites who inherited the colonial state from the British largely maintained its extractive nature and divide-and-rule character, even further entrenching ethnicity while paying lip service to the need to eradicate tribalism. As noted by Professor Daniel Branch in his book Kenya: Between Hope and Despair, “elites have encouraged Kenyans to think and act politically in a manner informed first and foremost by ethnicity, in order to crush demands for the redistribution of scarce resources.”

The consequences have been predictable. Rather than tools for common advancement, the state and the resources it controls have become prizes in a bitter, no-holds-barred, ethnic contest for supremacy. The “totalising identity” of tribe has meant that Kenyans are unable to conceive of themselves otherwise, and thus are unable to imagine a different basis for political engagement. The zero-sum nature of the competition for power further reinforces and hardens tribal affiliations, engendering a with-us-or-against-us mentality with those who resist it branded as “ethnic traitors”. This all creates a vicious spiral at the bottom of which lie brutal conflagrations, death and displacement. Floating above the melee, just as the British did, is the political class that incites and is then able to continue its thieving ways with little fear of retribution.

Basing a state on the idea of tribe has also led to the perpetuation of regional inequalities as communities “not in government” are either neglected or, worse, treated as enemies of the state. It also drives corruption as public office is seen as an opportunity for tribal “eating”. Which is why the ethnic affiliation of the head of a public institution is always a good indicator of the ethnic composition of its employees. It is also the reason Members of Parliament feel constrained to defend public officials who suffer disciplinary action, as was the case recently when Lily Koros, the CEO of the Kenyatta National Hospital, was sent on compulsory leave after doctors at the hospital performed a brain surgery on the wrong patient. As Jerotich Seii observed on Twitter, “If Lily Koros was, say, Mjikenda, not a peep would have been heard from these Kalenjin MPs. Ok, perhaps from Mjikenda MPs. And therein lies the problem. We defend tribe and not competence.”

The tribalisation of governance also fosters development strategies based on false ideas of ethnic characteristics, such as the one that some groups are not as suited for modernisation as others. Further, as Mamdani explains, the idea of unchanging tribes leads to the deification of fake, colonially-articulated, “traditional” culture and values, as well as the externalisation of social progress as “Western”. That has real consequences for social policy, for example on gay rights.

It will be impossible to eradicate tribalism without undoing the colonial state on which our current ideas about ethnicity are founded and whose logic of extraction sustains them. As John Lonsdale puts it, “There are, then, two very different dynamics currently at work in Kenya: internal ethnic dissidence and external tribal rivalry. Neither can be disarmed without rewriting the rules of political competition for the power of a rather different (‘post-post-colonial’) state.” Tribes today exist primarily as vehicles for capturing the state rather than as celebrations of diversity – which they, in fact, try to rub out. They exist to safeguard elite extraction and to prevent us from imagining different ways of being.

Kenyans today have perfected the curious art of decrying tribalism even while accepting the validity of tribe. Following the colonial template, the 2010 constitution institutionalizes ethnic formulations as the basic unit of government via the creation of counties based on colonial administrative districts and the safeguarding of “ethnic diversity” in public jobs. Today’s social justice activists railing against “uthamaki” –  the skewing of state appointments towards particular groups – and demanding "regional balance" seem incapable of comprehending that the construction of the state around the idea of tribe is itself the problem. In a recent article, for example, Boniface Mwangi seems unaware of the irony of establishing his Kikuyu bona fides - “I am as Gikuyu as Gikuyus come”- before launching into a screed against Kikuyu tribalism.

Recognising that the tribe was a colonial-era invention is empowering because it means it can be disinvented or reimagined; tribe is not destiny. Many look to Tanzania as an example of how the adverse effects of tribe can be ameliorated through public policy. Young also cites Kenya as an example where this has been attempted via constitutional design through devolution, the proscription of ethnically-based political parties and the requirement for presidential candidates to garner 25 per cent of the votes in a majority of the counties. However, this retains – rather than challenges – the idea of tribe and only seeks to manage relations between tribes, which means the potential for harmful political mobilisation of tribal affiliation remains. As Young acknowledges, “while constitutional engineering is of substantial value, it cannot alone respond to the challenge of accommodating cultural diversity”.

The only way to completely eliminate real and potential inter-tribal tensions is to eliminate tribes. And the only way to do that is to eliminate the colonial state that created and nourished them, and to construct a different state and identities, even a national identity, on different foundations in its place. The problem is less the politicisation of ethnicity and more the ethnicisation of politics – the assumption that ethnicity is destiny without interrogating how ethnicity was and still is manufactured.

Kenyan social and political scientists can and should lead this effort. For too long we have left it to the politicians who have an interest in maintaining the status quo. Many Kenyans will understandably be scared of the idea of letting go of the ethnic brands that have defined them their whole lives, regardless of how hollow or counterproductive that branding may actually be. Providing a language to deconstruct the state and the tribe, as well as developing a basket of alternative, homegrown and much more authentic and beneficial political identities, are the overriding challenges of our time.

There is no point in pretending that this is going to be either easy or straightforward. Or that such a project would not itself be vulnerable to capture by a ravenous and oppressive elite seeking to legitimise its rule, as has happened in Rwanda. But we can begin a national conversation about who we really are as people and how we build a Kenya for Kenyans and an Africa for Africans. That itself means beginning to see ourselves not as the “tribes” of Western imagination strait-jacketed by concocted traditions, but as free and thinking human beings with varied and ever-changing ways of being, and who are capable of imagining and bringing to life new worlds of our own.

A version of this article was first published in The Elephant.