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WARIO MALICHA – The Children of Orma – The Elephant

Although the sub-groups of the larger Oromo are distinct both socially and economically, and in terms of religious belief, they are united by a shared language, Afaan Oromoo or Oromiffa, which is widely spoken in the Oromia region of Ethiopia, in northern Kenya and in parts of Somalia.
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The Oromo are a Cushitic ethnic group and nation indigenous to Ethiopia and Kenya who trace their origins to a common ancestor. They call themselves ilmaan Orma, children of Orma. Historical explorations suggest that before they split into different regional groups in the 16th Century, the Oromo had a joint government and institutional framework. The standard system of governance functioned well in small-scale polities, but population growth and territorial expansion led to the fission of Oromo groups, which lived in federations and confederations in various independent but contiguous regions, sharing similar traditions, beliefs, and value systems from one founding father.
The Oromo are one of the most prominent ethnolinguistic groups in Ethiopia, accounting for 34.4 per cent of the country’s population of 112 million as of 2019. They are made up of many different clans, but are chiefly divided into two major groups. The Borana Oromo, who occupy the Borena zone of the Oromo region of Ethiopia and the former Northern Frontier District of Kenya (NFD – Isiolo, Garissa, Mandera, Marsabit, Moyale and Wajir). Within the larger Oromo, the Borana Oromo are believed to be the most influential group due to their unyielding adherence to the Gada social system.
The second moiety of the larger Oromo are the Barentu Oromo that inhabit the Oromia zones of Bale, Dirre Dawa, Jijiga, Afar, Amhara, Arsi zone, and West Hararghe. Although the sub-groups of the larger Oromo are distinct both socially and economically, and in terms of religious belief, they are united by a shared language, Afaan Oromoo or Oromiffa, which is widely spoken in the Oromia region of Ethiopia, in northern Kenya and in parts of Somalia.
Despite their diversity, their numbers and their occupation of large urban and pastoral zones, the Oromo people in Ethiopia have experienced a long history of marginalization, loss of land, and forced assimilation by the Ethiopian government. This ostracism has led to a decline in the pastoralist lifestyle of this larger group. The persecution of the Oromo also led to the rise of the Oromo Liberation Front (OLF) in the 1970s. What started out as a student union evolved into political movement whose main goal is Oromo self-determination, and which has gained traction with the Oromo diaspora and its intellectual leadership.
In the spring of 1991, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), the then ruling party, extended control over the Oromo region, provoking a negative reaction from the OLF, which feared occupation of Oromo land. Continued coercion and persecution provoked OLF members and supporters to take up arms against the ruling party in 1992. Although the insurgency was swiftly contained, the OLF has only grown stronger. In January 2004, the Ethiopian security forces arrested 349 Oromo students for demonstrating to demand their right to freedom of cultural expression. The repression in Oromia has been harsh, with the arbitrary detention of protestors in the occupied regions. The Ethiopian Human Rights Council has reported of arrested students being forced to trek over gravel barefooted or on their knees.
Ethiopia’s global diaspora is estimated to stand at two million with a large base in the United States. Most Ethiopians are pushed to leave the country in search of political asylum and greener pastures. As Hassan Hussein, an Ethiopian academic based in the US has said, in the absence of an independent media, lack of freedom of expression, and peaceful political struggle inside Ethiopia, the Oromo in the diaspora have stepped in to occupy the space. Feyosa Lelisa, an exiled Ethiopian marathoner who participated in the 2016 Rio Olympics, crossed his wrists above his head in a show of solidarity with those who have been suffering under Ethiopia’s brutal regime.
Jawar Mohammed, a leading Ethiopian opposition figure who had been living in exile in the US, established the Oromo Media Network (OMN) to highlight the issues of the greater Oromia region. Mohamed returned from exile in 2018 when Abiy Ahmed—who was perceived as a reformist—came to power. He has since become a fierce critic of the current regime. The media mogul was jailed together with 22 others following the cold-blooded murder of Haacaaluu Hundeessaa, who was known for relaying his criticisms and calls for Oromo liberation through his songs. Hundeessaa’s killing in Addis Ababa in June 2020 sparked protests across the Oromia region, which resulted in the killing of more than 150 people by security forces.
In the absence of an independent media, lack of freedom of expression, and peaceful political struggle inside Ethiopia, the Oromo in the diaspora have stepped in to occupy the space.
The Borana Oromo of Kenya have also not escaped the repression. Established in Marsabit, Moyale and Isiolo, the community has faced the brutal subjugation of both the Kenyan and Ethiopian governments.
The unification of the Borana Oromo of northern Kenya as entity dates back to the period of the political independence of Kenya and the gaf dabba, the Shifta war of the 1960s. As Kenya prepared for self–governance, the minority populations of the NFD were calling for self-determination under a Greater Somalia. The region exploded in rebellion when these demands were not met. The Borana community refused to engage in the Shifta war against the independent Kenyan state as it feared that the creation of a Greater Somalia would lead to the loss of political and territorial rights. Moreover, many Borana in Kenya considered Southern Ethiopia, and not Somalia, their ancestral land.
Jatani Ali was a prominent leader held in high regard by the different Oromo subgroups, and particularly the Kenyan Borana. Jatani was born in 1939 in Melbana Location of Dirre District, in Borana Zone. He was educated in Ethiopia and rose to become the governor of the Borana Zone of Southern Ethiopia. Jatani’s support for Oromo liberation was unequivocal. He was often heard to say “Lafti tessan lafe tessan, laf tessan jabefadha,” literally, “The land belongs to you, and the bone is yours, take care of your land.” Jatani urged the Oromo to take their children to school and to diversify their economic activities beyond livestock keeping.
Like other Arid and Semi-Arid Lands (ASALs), the Borana zone has been facing a myriad challenges including loss of livestock to prolonged drought, pests, and diseases. To address these recurrent problems, Jatani initiated the SORDU project whose components included road construction to improve accessibility to livestock markets and the provision of veterinary services for livestock waiting to be sold. To cover this cost, the livestock owner would retain 70 per cent of the profits with the remaining 30 per cent being injected back into the SORDU project.
Like other Arid and Semi-Arid Lands, the Borana zone has been facing a myriad challenges including loss of livestock to prolonged drought, pests, and diseases.
Many in Ethiopia and northern Kenya emulated Jatani’s exemplary leadership. Before the rise of the Tigray People’s Liberation Front (TPLF), Ethiopia was ruled by the Derg, a Marxist-Leninist military junta. Jatani was on the TPLF’s most-wanted list, which drove him into self-exile in Kenya where he was assassinated by TPLF operatives in the Eastleigh neighbourhood of Nairobi in July 1992. School-going children in Marsabit were sent homes following his murder, a sign of the respect with which Jatani was held. Jatani was buried near the Marsabit War Cemetery even though his home is in Ethiopia.
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Wario Malicha is a public policy expert.
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The ubiquitous demands for financial compensation, rationalisation of land ownership, and community involvement in project planning, are all part of a wider strategy to ensure that the LAPSSET project comes to terms with local concerns and interests.
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Last May, Kenya’s president Uhuru Kenyatta launched the operations of the first berth of the new Lamu Port on Manda Bay. As the media focussed attention on a security glitch during the function, when a man attempted to approach the president on the dais, a group of local fishers were threatening to demonstrate on the streets of Lamu town. They were demanding full compensation in cash – US$170 million, or KSh1.7 billion – that a four-judge bench sitting in the town of Malindi awarded them four years ago.
According to the Kenya Ports Authority (KPA) – which is in charge of the construction of the new port at Lamu – the demand for full compensation in cash is out of step with an agreement it had made with the fishers. The agreement, deposited at the High court, stipulates that only 65 per cent of the compensation would be made in cash, and that the remaining 35 per cent would be invested in equipment to support deep-sea fishing. The fishers now appear to be less interested in the fishing equipment. As a result, payment of their compensation has been delayed.
Such demands for full financial compensation, and others for the rationalisation of land ownership, including community involvement in project planning, have been ubiquitous across the entire Lamu Port and South-Sudan Ethiopia Transport (LAPSSET) corridor since the project’s inception in 2012.
The ambitious US$25 billion LAPSSET corridor, when completed, will run from Lamu County on the Kenyan coast into Ethiopia and South-Sudan. It promises to develop infrastructure to connect a vast area covering northern Kenya, South Sudan, and southern Ethiopia with global markets. Initially driven by oil and mineral transport needs, planners hoped that the development would also boost agricultural investment, including building processing plants and distribution centres, and creating special economic zones and free trade areas. To boost agricultural production, the focus would be on setting up large plantations, nucleus farms, outgrower schemes, and large holding grounds for livestock.
Broadly, LAPSSET reflects the high-modernist impulses of its promoters (national politicians and bureaucrats), some of whom genuinely expect that their plans to transform Lamu and northern Kenya will attract the capital required to create a new modernizing force in the region. As a result, LAPSSET’s framing of northern Kenya and Lamu as empty of civilized people and modernity, but full of resources, especially land and minerals, appears to be legitimating the appropriation of “underutilized” land, while casting the state and its elites as heroes who will make these regions anew.
What is important is that this type of rhetoric – accompanied by seductive images of the future of northern Kenya under LAPSSET – is generating real anticipations on the ground. In sum, LAPSSET’s future direction is being negotiated and renegotiated in advance of any investments. The ubiquitous demands for financial compensation, rationalisation of land ownership, and community involvement in project planning, for example, are all part of a wider strategy to ensure that this large infrastructural project, with implications for the commercialisation of agriculture, comes to terms with local concerns and interests. It is through such demands that various local actors, including smallholder farmers, fishers and pastoralists, are seeking to direct the project in ways that better respond to local realities.
The promulgation of a new constitution in 2010, two-years before the LAPSSET project began, has promoted the voice of communities that will be affected. Together with the wider public ethos that accompanied the 2010 constitution, and which encourages respect for human rights and the importance of communal involvement in the policy-making process, the space needed for members of the public to petition important government projects that affect their lives has been expanded.
While information asymmetries continue to cause confusion and suspicion, civil society organisations along the corridor are demanding comprehensive social and environmental impact assessment studies be conducted, with communal consultation and other safeguards. It is these anticipations of the prosperous future that LAPSSET is promising, and which are intensified by information asymmetries that cause confusion and panic, that will influence the overall, future direction of LAPSSET – in ways that were not necessarily anticipated at the policy-design stage.
A central narrative driving the activist agenda around LAPSSET in Lamu is that information about the project is not forthcoming. Demands for information have variously been made through petitions addressed to concerned authorities, street demonstrations and court cases. A petition citing concerns over communal safeguards, community consultation, environmental protection, and the fate of customary natural resource management led to the formation of the LAPSSET Steering Committee, which brought together LAPSSET officials and local activists, smallholder farmers, women, youth, Beach Management Unit (BMU) managers and local religious leaders. However, after receiving official recognition on 2 March 2012, the steering committee was dissolved after six months due to political wrangling at county-government level.
The promulgation of a new constitution in 2010, two-years before the LAPSSET project began, has promoted the voice of communities that will be affected.
Following the dissolution of the committee, the political environment has become fraught, with multiple actors struggling to overturn and control certain aspects of LAPSSET in ways that will advance their competing interests. In some instances, LAPSSET managers have made unilateral decisions without consultation, especially regarding land acquisition for key components of the corridor.  This has affected the swift implementation of LAPSSET, as people resort to taking their grievances to the High Court, and communal protests against LAPSSET and its associated projects in Lamu have become more frequent.
Apart from the lack of information, communities are concerned with how their local cultures and livelihoods will be respected and protected, especially in relation to access to Lamu’s ecological diversity and the management and stewardship of “indigenous” territories and areas in line with customary laws, values and decision-making processes. Local conservationists have deployed multidimensional traditional knowledge systems transmitted culturally through generations, which they argue provide a better understanding of local and interconnected patterns and processes over large spatial and temporal scales, such as turbidity on the sea caused by port dredging; cycles of resource availability within forests and coral reefs; and shifts in climate or ecosystem structure and function. The Bajuni fishers living on the islands of the Lamu archipelago are worried that the port risks destroying Lamu’s ecological diversity, and with it, the livelihoods of its residents. Therefore, activists have pressed LAPSSET decision-makers to pay attention to environmental conservation and human rights, and respect existing livelihoods and culture.
Lamu communities are also looking towards other possible opportunities, such as higher investment in public education and scholarship opportunities for locals so that they can become skilled in, for example, port and related operations, with the prospect of future employment. Farmers’ groups are also expecting compensation for their land and other natural resources based on a precedent set in 2015 when 300 smallholders were compensated for their plots at Kililana (now within the port area). However, local opinion is divided as some groups focus on the long-term consequences of LAPSSET on land, smallholder farming and fisheries, while others focus on immediate benefits.
Research has shown that when such mega-infrastructure projects as LAPSSET hit the ground, they interact with social groups within the state and in society that are differentiated along lines of class, gender, generation, ethnicity and nationality, and that have historically specific expectations, aspirations and traditions of struggle. It is these dynamics that produce diverse responses involving a diverse set of actors, with different consequences. A useful summation may be found in a new Kenyan adage, vitu kwa ground ni different! Things on the ground are different (from what you may think!).
Despite the recent pompous launch of the Lamu port – a key component of the wider LAPSSET corridor – the project is experiencing difficulties because the infrastructure was mainly intended to improve petroleum transport but falling petroleum prices, conflict in South Sudan, and Uganda’s decision to transport oil through Tanzania, and not Kenya, will continue to cause delays in implementation. Despite such complications to the realisation of LAPSSET, it can be observed that for a place like Lamu, the mere existence of the project, even on paper, has produced real material effects on the ground, where LAPSSET is influencing, and in turn being influenced by local political, economic and social processes, or simply, the realities of rural Africa.
Take land-use change. Since at least the 1990s, there has been increased sedentarization and intensification of land-use in Lamu County, occasioned by the spread of rain-fed agriculture, increased migration into the county, and perhaps following this, the spread of communal conservation efforts such as the establishment of ranches and conservancies. Coupled with the need for allocation of land to LAPSSET project activities, such increasing demands for land in Lamu are driving wider calls for the rationalisation of land ownership, related to a nervous politics of belonging, where renewed meanings of land as property, driven by the anticipations of LAPSSET, are conflicting with meanings of land as a cultural resource, or as ethnic territory.
For a place like Lamu, the mere existence of the project, even on paper, has produced real material effects on the ground.
The idea of land as ethnic territory constitutes a widespread ideology in Kenya, where land is inexorably linked with ethnic identity, ideas of citizenship are informed by ethnicity, and land and ethnicity have both influenced the politics of redistribution. In the context of increasing competition for land and resources in Lamu, prominence has been given to exclusivist notions of belonging and citizenship – where commonplace terms such as wageni (“guests” or “migrant” communities) and wenyeji (“hosts” or “indigenous” communities), are being cast in a new light, as individuals and groups anticipate LAPSSET’s prosperous future.
In addition, civic engagement about LAPSSET has raised key questions about the control and ownership of the proposed corridor, including who benefits. LAPSSET managers and local politicians should pay attention to the often exclusivist nature of local politics because local divisions in terms of expectation and resource distribution may drive conflict between and amongst people of different ethnicities and political orientation, most of whom are smallholder farmers and fishers. Smallholder farmers and fishers are concerned that if they do not influence the future direction of LAPSSET, especially regarding access to land, seascape, and markets, integration to value chains will not automatically accrue benefits to them. While public communal narratives have embraced concepts like consultation, inclusivity, and participation, it is unclear if these ideals will be practised in the future, when investors begin engaging with the upstream segments of the anticipated value chains.
Despite an active civil society space in Lamu, information asymmetries regarding LAPSSET persist, causing confusion, misinformation, and suspicion. This is why local activists, smallholder farmers, and recently fishers, are focussing their attention on issues that pose a direct threat to existing livelihoods, including those that promise immediate benefits such as financial compensation for land and resources claimed by the infrastructural developments.
To achieve the LAPSSET vision, it is essential to include the vision of local actors by making more informed choices, taking more effective action, and influencing the nature of the anticipated value chains. Quotas should be created for the participation of smallholder farmers and fishers in the LAPSSET Corridor Development Authority (LCDA), for example, by including respectable smallholder and fisher associations and land rights groups. The LCDA should collaborate with the Pastoralists Parliamentary Group to develop proposals for value-chains that will not exclude the interests of pastoralists.
Lastly, LAPSSET Steering Committees should be established in the counties that will be traversed by the corridor. They will provide a much-needed channel of communication between local communities and LAPSSET managers to help project managers and community representatives address information asymmetries in order to reduce the need to resort to the courts, street demonstrations, and state harassment of local activists.
In the face of an indifferent traditional media, citizens from the marginalised communities of northern Kenya have taken to social media to highlight the challenges they face at the hands of government security agencies.
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In early September 2021, Dr Abdiwahab Sheikh Abdisamad, a Horn of Africa security expert, was abducted by unidentified men in Nairobi’s Central Business District. The academic was forced into a vehicle that took him to an undisclosed location where he was held hostage for close to two weeks. His abduction was allegedly triggered by his critical comments online on regional politics. Immediately after the incident, Kenyans took to social media to report his disappearance. #FreeAbdiwahab and other hashtags were created, and a week-long discursive discourse erupted online, consistently calling for his immediate release.
While Kenyans from different communities joined this discourse, Somalis from northern Kenya, where Abdiwahab hails from, dominated this wave of digital protests. The Tweets were explicit that the communities from north-eastern Kenya are victims of abductions that are normalized and justified under the guise of countering terrorism. The Tweets also pointed fingers at the Kenyan government’s reluctance or failure to investigate, and its covert involvement in some of the kidnappings.
Going through my social media timelines, I realized how the online discourse not only resulted from the absence of critical coverage by the Kenyan media regarding the lack of investigations of these kidnappings but also how digital media is employed by this marginalized community to highlight the unique challenges they face.
In short, the reaction following Abdiwahab’s abduction reflected how the absence of accountability institutions cemented the normalization of kidnappings that often end in extrajudicial killings. Moreover, the critical online discourse that followed this incident serves as an ideal case study of how Twitter and other digital media platforms enable marginalized communities to set the agenda for the media and the public.
Counter-narratives constructed on Twitter by citizens from northern Kenya allow them to not only claim power but to also “broadcast these ideas to a wide audience to court support for these ideas, and to form networks with like-minded individuals.”
There has been a rise in abductions and subsequent extrajudicial killings targeting the Muslim community following the al-Shabaab attacks of the last decade. In counties along the coast and in northern Kenya, national security agencies have been accused of being behind the deaths of young Muslim men suspected of having ties with the terror group in Somalia.
The abduction of Abdiwahab in broad daylight was not the first and, judging by the government’s tight-lipped response, it will not be the last. Following the Kenya Defence Forces (KDF) 2011 invasion of Somalia to “fight al-Shabaab”, numerous terror attacks have been carried out across the country, prompting a response from the political and security elites to counter the violence perpetrated by the Somali-based terror group. The group has taken advantage of unemployed and traditionally marginalized youths in counties like Mombasa, Isiolo, Garissa, and even Kiambu, by brainwashing them and promising them economic and religious benefits if they join the militants.
The normalization of these illegal counter-terror tactics has been brought about by the precedents set by Western countries led by the US in their efforts to curb terror attacks in cities like New York, Paris, and London. Since 9/11, Western military elites have justified the illegal capture and killings of Muslim men from the Middle East suspected of working with groups like the Taliban, al-Qaeda, and Islamic State.
For instance, the existence of Guantanamo Bay, a detention camp that holds hundreds of terrorism suspects from countries like Afghanistan, Iraq, and elsewhere, serves as a reminder of how governments operate in a lawless universe when dealing with “terror suspects”. These Western tactics have informed how terror-afflicted countries like Kenya deal with citizens accused of being terrorist sympathizers.
In 2012, the controversial cleric Abud Rogo was shot dead in Mombasa County. Rogo was accused of spearheading the recruitment of youth from the coast to join the terror group in Somalia. Rogo was not the only Muslim cleric gunned down by the Kenyan security agencies. Between 2012 and 2014, Haki Africa, a Mombasa-based human rights group, documented the killing of 21 Islamic clerics across coastal Kenya. The Kenyan government has continuously denied any involvement in the kidnappings and killings. The lack of investigations and the covert support for these acts explains why fingers have been pointed at the government.
Western military elites have justified the illegal capture and killings of Muslim men from the Middle East suspected of working with groups like the Taliban, al-Qaeda, and the Islamic State.
The global advocacy group, Human Rights Watch (HRW), revealed that between 2013 and 2015 “at least 34 people, including two women, were taken into custody by security forces during counterterrorism operations in north-eastern Kenya . . . whose whereabouts remain unknown.”
These are just the numbers documented by rights groups. Because of fear and the sensitivity surrounding the issue of terrorism and al-Shabaab, numerous cases go unreported. The few known ones remain unresolved since, as HRW puts it, “police have not meaningfully investigated these deaths.” Nonetheless, it is important to point out that while such cases have skyrocketed since 2011 when terror events surged in Kenya, communities in north-eastern Kenya have faced these challenges since Kenya’s independence in 1963.
In 1980, thousands of residents in Garissa County were rounded up and many died in what came to be known as the Bula Karatasi Massacre. The Kenyan security agencies were responding to an incident where civil servants were gunned down in a bar in the Bula Karatasi neighborhoodneighbourhood. Farah Maalim, a prominent Kenyan politician, notes that “Many people were killed,” because of the Kenyan government’s response to this incident. “Soldiers shot anything in sight.”
In Wajir County, it is believed that over 5,000 men were killed in 1984 by the Kenyan army when it went in to disarm Somalis in the county following ethnic conflicts. These are just a few examples that demonstrate how Kenyan elites have been dealing with generations of Somalis from north-eastern counties.
The Kenyan mass media’s systematic lack of critical coverage of these acts means that the government has not been held to account. As I have argued before, Kenyan journalists based in Nairobi have cemented the culture of portraying northern Kenya as a region engulfed by conflict, with the result that no substantive or thematic coverage is undertaken.
With few journalists from this region working for the mainstream news media, and in the absence of correspondents on the ground to cover these acts of violence, the community has been left out of the national conversation. There were no avenues that could have been used to create awareness about the unique challenges faced by Kenyan citizens in the north. This explains why the Somali community in the region is embracing social media platforms to not only push back against misrepresentations of their issues but also to prominently place their narratives in the national agenda.
The historical and contemporary injustices faced by communities in north-eastern Kenya have led them to embrace digital media. But it is also essential to note that a majority of Kenyans are unable to own smartphones or access the internet in order to be active participants in on-going debates on platforms like Twitter.
Only 17 per cent of Kenyans use social media and as a result of this digital divide, most Kenyans access news through traditional media like radios and newspapers. These traditional, mainstream mediums have failed to adequately advocate for the critical coverage of issues like the systematic abductions and killings of citizens in northern Kenya.
There is a growing body of literature on how marginalized communities like African Americans in the US and Muslims in Europe use digital media to counter the predominant narratives constructed by the mainstream media. These studies show that digital platforms like Twitteroffer citizens most invisible in mainstream politics radical new potentials for identity negotiation, visibility, and influence.”
It is believed that over 5,000 men were killed by the Kenyan army in 1984 when it went in to disarm Somalis in the county following ethnic conflicts.
A classic example of the power arising from the intersection of marginalized publics and digital media is the #BlackLivesMatter (BLM) movement. This group, which was created and organized by youthful online activists highlighting racial injustice in the US, remains impactful and has been successful in setting the agenda in the US and elsewhere. The killing of George Floyd in Minnesota in 2020 that ignited an explosion of protests from Minneapolis to Accra, demonstrates how digital media has the power to set the agenda for national and global discourses.
In Nigeria, the lack of critical coverage of campaigns such as the #EndSARS movement prompted protesters and community leaders to take to social media platforms. Protesters in the West African country called for the abolition of the notorious Special Anti-Robbery Squad (SARS) that has terrorized Nigerians for years. South Africa’s #FeesMustFall was also successful in fighting plans to increase fees in higher education, advocating instead for increased funding to universities. These examples are testaments to the importance of social media for excluded citizens such as Kenyan Somalis.
Human rights lawyer Abdinassir Adan was among the Twitter users who tirelessly advocated for the release of Abdiwahab. He affirms that social media remains an important tool “because it is an easy way to get attention from the state [and] it is a quick way of making it trend. Our main aim is to create awareness and stand up against enforced disappearances and injustice [that are] contrary to the rule of law.”
Adan shares the frustrations of many, pointing out that the limited and uncritical coverage of these abductions by the Kenyan mass media forces them to raise this awareness online. “It is very unfortunate that the mainstream media over the years has been ignoring challenges faced by the Somali community in Kenya. Social media has rendered the hollow and the gibberish media useless. In a nutshell, we felt that digital media is more effective, and it easily helped us to achieve our goals.”
Judging by the reaction to the abduction of Abdiwahab, it is evident that marginalized communities in northern Kenya are systematically using social media to change the culture of news media production in Kenya. The result is that, as a primary agenda-setter, the Kenyan press has been forced to adopt the social media agenda created by the public and make it part of the national agenda.
While this is a good opportunity for minority communities across Kenya, it is important to address the question of whether this is good in the long run. Most of the citizens in these northern counties still receive their news through traditional media, particularly community radios. While young people like Adan, who mostly reside in urban areas, can afford smartphones and have internet access to push back against government discrimination and media bias, a large proportion of the population of these counties is left out.
Moreover, by their very nature, these platforms have helped advance free speech, prompting some African governments to try to curb the freedom of expression among citizens by introducing high taxes on digital activity and passing restrictive legislation.
Further, online platforms have also been infiltrated by users who spread propaganda on behalf of the state. Social media influencers are paid as little as US$15 to spread disinformation, creating negative perceptions for institutions like the judiciary. This can have a negative impact on marginalized communities that depend on these platforms to share their challenges.
As a primary agenda-setter, the Kenya press has been forced to adopt the social media agenda created by the public and make it part of the national agenda.
The mainstream media should not remain passive, waiting for social media to highlight cases of human rights abuses against the people of northern Kenya. The demonstrated systematic pattern of targeting this group by government security agencies is enough to warrant a comprehensive, critical coverage of this important issue.
The Twitter conversations are also a reminder to Kenyan security agencies that, unlike the past, neglected citizens like those from north-eastern Kenya are now armed with digital platforms to counter-narratives constructed by the political and media elites.
In an age where information is shared within seconds, it is time the Kenyan government drops its abusive counter-terrorism tactics and systematically investigates cases like that of Abdiwahab. The Kenyan government and mass media need to treat Kenyans equally and to apply the law equally to citizens accused of any crimes. When communities in northern Kenya are accorded the same treatment as others across the country, then perhaps people like Adan will not be forced to use Western-owned digital media tools to highlight the challenges faced by Kenyans like him.
The 2010 Constitution requires that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. Article 170, which provides for the appointment of Kadhis, does not specify their gender. Yet the constitution is absent in the intra-Muslim discussions on the appointment of female Kadhis.
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Kadhi courts are arguably the oldest judicial institution in Kenya, being the judicial system prevailing in the Sultanate of Zanzibar that controlled a substantial portion of the East African coast.
In the 1963 agreement between Prime Minister Muhammad Shamte of Zanzibar and President Jomo Kenyatta of Kenya, the coastal strip was brought within the territorial jurisdiction of Kenya. In exchange, the Kenyan government would guarantee the preservation the Muslim religion and its institutions, courts, officers, schools, lands and the Arabic language within the new state.
Kadhi courts have thus been an integral part of the judiciary since pre-colonial times and were the focus of fierce contestations during the 2010 constitutional review process in Kenya.
Kadhis, especially the Chief Kadhis, have always been males, appointed from Muslim communities and from scholarly Arab Muslim families at the coast (the Saggafs, the Mazruis, the Bākathirs and the Barawa). After independence, Kadhis were also appointed from other non-coastal communities, notably the Somali.
Following the promulgation of the 2010 constitution, Kadhi courts now reflect the face of Kenya. In the last decade, the Judicial Service Commission (JSC) has recruited Kadhis from a pool of scholars of Islamic law, some hailing from such minority Muslim communities as the Maasai, the Agikuyu, the Ameru, the AbaGusii, the Turkana and the iTeso. Yet the gender composition of the courts remains unresolved, and it has become a topic of debate in the last few months.
It is not clear what has sparked the recent debates, but the impending retirement of the current Chief Kadhi, Hon. Ahmed Muhdhar, must have animated discussions among the various interest groups over the possibility of appointing a Chief Kadhi of non-Arab descent and the appointment of female Kadhis, both of which are unprecedented in Kenyan legal history.
The Kenya Muslim National Advisory Council (KEMNAC), led by Sheikh Juma Ngao, had in the months before the women Kadhis debate erupted called successive press conferences pitching for the appointment of a non-Arab Chief Kadhi.
The women Kadhis discussion only came to the fore after The Standard published an article asking whether the time was ripe for a female Kadhi.  Another piece followed in The Nation. In early July 2021, the Garissa Township Member of Parliament, Hon. Aden Duale, weighed in on the question while addressing a gathering. He came out strongly in opposition to the appointment of women Kadhis. Duale wields immense authority among the Muslims of northern Kenya and his comments generated debate within the Muslim social spaces. I followed the debates closely and actively participated in some of the discussions, especially on Facebook. I documented some of the comments, followed almost every discussion on social media, on television and in the Friday Khutba sermons such as those by Sheikh Feisal Al–Amoody of Malindi and Ibrahim Lethome of Jamia Mosque Nairobi. Various sheikhs also commented on the debate in their darsas (mosque lessons), notably Al-Sayyid Ahmad Ahmad Badaway, aka Mwenye Baba, who is regarded by the Muslim faithful as one of the foremost religious authorities.
The contestation over the appointment of female Kadhis in Kenya first arose during Chief Justice Willy Mutunga’s time at the judiciary. The Chief Justice, a known crusader for equality and human rights, openly backed the appointment of women to serve as Kadhis. Predictably, this put him on a collision course with the National Muslim Leaders Forum (NAMLEF) and the Supreme Council of Kenya Muslims (SUPKEM). Both strongly objected to such appointments. They occasionally used the Friday sermons to teach and remind Muslims of the position of Islamic jurisprudence on the appointment of female Kadhis. Sheikh Bahero of Bakarani Mosque, Mombasa, for example, dedicated khutba after khutba to this issue.
The latest debates have seen the two organizations take a measured approach while KEMNAC has taken centre stage in shaping the discourse. I can confirm that KEMNAC, Jamia Mosque Nairobi, SUPKEM and the Council of Imams and Preachers of Kenya (CIPK) have all written to the JSC urging that women should be not be appointed as Kadhis. So far, the only organ that has come out clearly in support of the appointment of women Kadhis is Muslims for Human Rights (MUHURI) led by Khelef Khalifa.
Perhaps the most eloquent opposition to the appointment of female Kadhis is from Hon. Aden Duale’s speech transcribed below:
We will not listen to what the NGOs will tell us. We will not listen to what government will tell us. We will not listen to what Western countries and powers will tell us. Sisi ni Waislamu, katiba yetu sisi ni hiyo kitabu ya Qur’an awwalan (We’re Muslims and our Constitution is that book of Qur’an first). Hii ingine ya Kenya inakuja second (This other one of Kenya comes second). We will not accept a woman to be a Kadhi. It is not found in the Qur’an, and it is not found in the teachings of the Prophet. Wakati wa nikaah, umeona mwanamke huko? (During marriage solemnization, do you see a woman there?). Islam has given the roles women can perform and the roles they cannot achieve. [Hon.] Martha Koome is a Chief Justice in a secular judiciary, and she is not a Chief Justice over religious organization or religious belief. Msijaribu kuweka mkono yenu katika (do not try to interfere in) how Islam is run in this country, the same way we will not allow you to run the Christian faith. We must leave it to the bishops. We must respect religious leaders kama nyinyi mnataka hii Kenya ikuwe nchi nzuri (If you want Kenya to be a nice country). . . .”
Such a speech conjures up images of past contestations over the inclusion of Kadhi courts in the 2010 constitution and raises questions as to whether the debate was concluded. Even though the Christian clergy who vehemently opposed the inclusion of the Kadhi courts in the 2010 constitution have moved on, some of the fears they raised at the time now seem to have caught up with Muslims.
As Duale stated, there is no specific Quránic verse or Hadith (Sayings) of the Prophet that approves of the appointment of women to the position of Kadhi or to any other position of leadership. The Hadith that says, “There shall not prosper a nation that appoints a woman to rule them,” is often quoted as a direct prohibition. There are verses of the Qur’an, like 4:34, that show men’s authority over women, and only in the story of the Queen of Saba (Sheba) is a woman seen to have power over men.
Some verses discourage women from mixing with men or appearing “unnecessarily”   in public places. Further, the two-women-equals-one-man ratio in the inheritance law and in the law of testimony during evidentiary proceedings signifies, in the opinion of the majority of jurists, that the woman is not a man’s equal.
The only organ that has come out clearly in support of the appointment of women Kadhis is Muslims for Human Rights (MUHURI) led by Khelef Khalifa.
Furthermore, in the fourteen centuries of Islamic history no woman has been appointed to the position of judge (Kadhi). Then there is the Hadith that says a woman is deficient in intellect and religiosity, which is taken to warrant her disqualification from holding such an important office.
A majority of Muslim exegetes and jurists in the pre-modern era took to these arguments as a restatement of the law on this particular question: Women should obey their husbands, stay at home, and have no authority over men.
Another class of jurists has provided interpretations that seem more gender-egalitarian and have used historical, logical, textual and contextual nuances in the explanation of the texts relied upon by the first strand of jurists. Their discussions can be found in the studies by Prof Mohammad Fadel  of the University of Toronto School of Law and by Dr Abdulkadir Hashim, a Senior Lecturer in the Department of Philosophy and Religious studies of the University of Nairobi.
All the verses and Hadith relevant to the question of female Kadhis are analysed in their two works using exegetical, hermeneutical and comparative perspectives. Fadel uses tools within the philosophy of Islamic jurisprudence to argue that appointing women as judges in Kadhi courts is possible even without resorting to extraneous sources of law for justification. On the other hand, Hashim uses both historical and comparative law approaches to answer this question while situating it within the immediate Kenyan context.
Women should obey their husbands, stay at home and should have no authority over men.
On comparative perspectives, there is a text titled Women Judges in the Muslim World: A Comparative Study of Discourse and Practice by Nadia Sonneveld and Monika Lindbekk. This work documents the practice of appointing Muslim women in Muslim majority countries to be judges, and even more specifically, Sharia court judges who are the equivalent of Kadhis.
These countries include Malaysia, Pakistan, Palestine and Indonesia. Most of these countries are, like Kenya, commonwealth-common law jurisdictions with a rich Islamic heritage and a robust jurisprudence. Islamic law forms part of its basic structure and can provide parameters for consideration in Kenya.
Pakistan, for example, has a Federal Shariat Court (FSC) that checks on the repugnancy of any law to the doctrines of Islam. Twice, a petition was filed to bar women from being appointed as judges using arguments from within the Islamic legal tradition. The FSC threw out both petitions.
The female Kadhis debates have generated a few thoughts. First, most Muslims are not aware of the historical developments in the court across the years, the laws that regulate the functionality of the court, the recruitment procedures for Kadhis, and the status and place of Kadhis and Kadhi courts in the judicial structure in Kenya. One discerns from the discussions that they are speaking of an idealized Islamic court, in a historicised Islamic state far removed from modernity, globalization and the realities of the nation-state that is Kenya.
Second, secular-religious dialectics pop out in these discussions. There are questions as to whether the constitution is superior, or whether it is God’s law that is superior. Some other Muslims are asking whether Kadhis are judicial officers performing religious duties or religious leaders performing secular judicial functions, or even both.
Third is the crisis of Islamic scholarship and religious authority in Kenya, something that has been alluded to in the past. Unlike the Catholic Church, for example, Muslims do not have a papal figurehead. Their religious and legal authority derives from allegiance to the Qur’an, the Hadith and the interpretation of these sources by Muslim jurists of the four schools of law across the centuries and geographies. Muslim states, and some Muslim minority states such as Uganda, have an official Mufti who is the ultimate authority on issues at the intersection of religion and governance.
On the particular question of female Kadhis, there was a whole mix of people attempting to issue a fatwa on a question that no one, not even the JSC, raised. The rules of fatwa in the Islamic legal tradition are that there must be someone or an entity that asks a question seeking legal interpretation. A juristic authority must exist to answer the question authoritatively. Neither has the JSC asked anyone to provide a ruling on the appointment of female Kadhis, and nor do we have such a fatwa-issuing authority in Kenya currently. I have previously asked for the constitution of such authority.
Women in the pre-modern era in the Roman, Persian and Islamic civilizations essentially did not have authority over men and did not hold public office except in monarchical structures. The absence of women in public office was not limited to the judgeship only. Before the modern nation-state, we did not have Muslim women as presidents, ministers of state, peoples’ representatives, or managers in public corporations. In a strictly “Islamic sense” as expounded by the first group of jurists, no Muslim woman would be qualified today to hold any such office.
There are questions as to whether the constitution is superior, or whether it is God’s law that is superior.
It is true that women, even in other religious groups, do not solemnize marriages. But Kadhis today rarely solemnize marriages as Muslim marriage officers appointed under the Marriage Act 2014 are spread across the country. Imams even solemnize the bulk of marriages, and parties only come to court to make applications before the Kadhi for marriage recognition and registration. What prevents a female Kadhi for example, from making judicial orders that a potential couple have met the requirements of marriage in Islamic law and can therefore proceed to a recognized marriage officer of their choice for solemnization of their marriage?
There is also the apprehension that as Kadhis, Muslim women will have the authority to dissolve marriages, an authority popularly exercised by men within the domestic sphere. It is a known fact that Muslim women have been unilaterally dissolving their marriages through the khul’ procedure and nothing in Islamic law denies them that jurisdiction. As Kadhis, Muslim women would be exercising public authority in dissolving marriages by judicial decree, the same way women magistrates do. They would only be observing the regulations for the judicial dissolution of such marriages as provided for under Islamic law.
Moreover, Kadhis’ appeals go to the High Court, and women judges in the High Court dissolve the same Muslim marriages. So, it smacks of cognitive dissonance to deny Muslim women an opportunity to serve in the Kadhi courts on the basis that women did not have that jurisdiction in the past. Yet, the same jurisdiction is exercised at appeal by women, and Muslim women judges in particular.
Unlike the Independence Constitution, the 2010 Constitution provides in Article 27 for the two-thirds gender rule, which requires that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender. Article 170 of the constitution that provides for the appointment of Kadhis does not specify the gender of the Kadhis, and that has been a fundamental aspect for those agitating for the appointment of female Kadhis.
It smacks of cognitive dissonance to deny Muslim women an opportunity to serve in the Kadhi courts on the basis that women did not have that jurisdiction in the past.
A notable aspect is that the constitution is absent in the intra-Muslim discussions on female Kadhis, either because Muslims do not believe in the supremacy of the constitution as suggested in Hon. Duale’s remarks, or Muslim religious authorities see it as a hot potato, or both. I expected someone like Sheikh Ibrahim Lethome, an advocate, a former CKRC Commissioner (Constitution of Kenya Review Commission) and someone trained in Islamic law to have a broader approach to this question that situates the constitution within the discourse. He has been on many platforms speaking about this issue, but he has chosen to gloss over the place of the constitution in the question.
Old jurists’ opinions are authoritative but not timeless; neither are they eternal in their signification. They are embedded in a context, and contexts change, and such changes require the expenditure of juristic energy in finding solutions to old questions posed in a different environment. That energy is what Muslim scholars in Kenya worth the name must expend.
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