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NAIPANOI LEPAPA – Dumped E-Waste Threatens Kenyan Lives, Contributes to Global Warming – The Elephant

Thousands of old refrigerators, freezers and air conditioners containing hazardous substances are finding their way into the country, putting the lives of Kenyans at risk and contributing heavily to global warming.
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On a cold Friday afternoon in July, Wambui is standing in the doorway of her roadside shop scrolling on her tablet. The street outside is empty. A woman wrapped in a Maasai shawl sits in a white plastic chair inside the shop. In front of her are plastic toys, vacuum cleaners, and electronic cutting equipment. A CCTV camera is mounted in the ceiling.
The shop is on a busy street in Ngara, Nairobi, and as I approach, Wambui calls to me to have a look at her wares.
“UK fridges are of high quality,” says the shopkeeper. A small refrigerator with no brand name is going for KSh20,000. “But I’ll sell it to you for KSh18,000. It is the best I can do,” she says.
Wambui has been in the business of selling imported second-hand appliances for about a decade. She says it is impossible to recall the number of cooling appliances she has sold, all imported from the UK through a middleman.

Inside the freezer compartment of one of the fridges are phone numbers in blue; 0870 is a premium help number for Domestic and General, a repair company in the United Kingdom, 0121 is a Birmingham number for spares. Birmingham is the United Kingdom’s second largest city.
Despite being a signatory to international treaties regulating and banning the dumping of damaged and end-of-life electronics, Kenya still imports large quantities of electronic and electrical goods that are considered too inefficient to be sold in the country of origin. The appliances enter the country legally and a tax is paid to customs for their clearance.
Nairobi, Mombasa and Eldoret have thriving second-hand markets for cooling appliances, numerous repair shops and dealers in scrap. I visited some 20 shops, the majority of which were selling appliances from the United Kingdom while others were trading in appliances from Germany, United States, India, and even Sweden in one case.
Nearly all the shops have an online presence, either on Facebook, on Instagram, Pigiame.co.ke, and Jiji.co.ke, while some use WhatsApp groups to post photos of appliances and their prices.
But this trade in obsolete and inefficient second-hand cooling appliances that are harmful to the climate is not regulated. In effect, Kenya lacks a proper e-waste law and does not have the capacity to manage hazardous substances from cooling appliances that have reached the end of their life. An Electronic Waste Bill was formulated in 2013 but was never passed into law.
“Heavy metals like mercury, zinc, cadmium are harmful when they come into contact with the human body or natural resources like water,” says Boniface Mbithi, the Chief Executive Officer of WEEE Centre, an e-waste recycling company. “When plants absorb water that is already contaminated with heavy metals, and people eat these plants, [this] causes cancer, kidney failure, or even leads to mental disorders.”
This trade in obsolete and inefficient second-hand cooling appliances that are harmful to the climate is not regulated.
Tony, a fridge repairman, sells fridge compressors and freezers from Germany and the United Kingdom. He cannot afford direct shipments like Wambui but he has his way of getting around that obstacle; sourcing his goods from towns like Mandera and Garissa that border Ethiopia is his best alternative. He is unaware that old, inefficient refrigerators can leak harmful gases into the atmosphere during repair.
Tony, displays EX Germany and EX UK freezers outside his shop. He is unaware old, inefficient refrigerators can leak harmful gases into the atmosphere during repair. Photo. Naipanoi Lepapa
“I have to check if they are working before they are released into the market. Some come broken. I repair them, refill the gas, and change the compressor,” Tony said. But despite his best efforts, not all appliances are reparable. Those, Tony says, are sold as scrap in the informal recycling sector.
Unaware of the harm refrigerants can cause, scrap dealers release the gases into the atmosphere as they try to recover valuable components from the appliances, contributing to the depletion of the ozone layer and to climate change.
Brian Waswala Olewe, an environmental education specialist at Maasai Mara University, notes, “Improper disposal of the refrigerant into the environment destroys air quality and affects health. . . . Freon, an odourless gas, cuts off oxygen supply to organs and cells and leads to cardiac arrest and death when deeply inhaled.”
Yet, Kenya does not have accurate data on imports of cooling appliances, especially refrigerators and air conditioners. The Customs Department of the Kenya Revenue Authority claims that it does not have specific records of the second-hand cooling appliances entering the country because most imports of these electronics come in consignments together with other goods.
Although Kenya is a signatory to the Montreal Protocol – an international treaty to protect the ozone layer by phasing out the production of numerous substances that are responsible for ozone depletion, such as hydrochlorofluorocarbons (HCFCs) and Chlorofluorocarbons (CFCs) which may be contained in cooling appliances – these refrigerants are still finding their way into the country.
A common trend in the Kenyan second-hand market is the sale of electronics without appliance specifications, making it impossible for consumers to determine the quality of the products they are buying. Without these details, it was impossible to identify the refrigerants present (the compounds that provide refrigeration in air conditioners and fridges) in the appliances sold at Hoist Refrigeration Services, a major dealership in Utawala, along the Eastern Bypass in Nairobi.
Hoist refrigeration services air conditioner that contain refrigerant R22 (Freon), a refrigerant that contributes to the depletion of the ozone layer and is being phased out. Photo. Naipanoi Lepapa
However, investigations show that the presence of R134a, a hydrofluorocarbon (HFC) refrigerant is rife. Although R134a does not pose a threat to the ozone layer because it does not contain chlorine, it is still a potent greenhouse gas with a very high potential to cause global warming and its production is being phased out under Kigali Amendment to the Montreal Protocol.
“We call it an Ex-UK fridge,” explains a saleswoman who is clearly ignorant of the chemical makeup of the electronics on display at Hoist Refrigeration Services. “I have sold so many ex-UK fridges and have never had a complaint about the energy consumption,” the seller said. But contrary to the seller’s claims, a UNEP report on energy efficiency standards states that Kenyans spend an additional US$50 to US$100 on electricity every year because of using obsolete and inefficient second-hand equipment and appliances.
An environmental dumping report released in 2020 by the environmental campaign group CLASP and the Institute for Governance and Sustainable Development revealed that the air conditioners sold in Kenya contain banned and environmentally harmful substances, with 37 per cent not meeting energy efficiency ratings above 3.0 W/W, a common standard around the world.
According to the report, Kenya imported between 30,000 to 40,000 air conditioners, of which 27 per cent contained R-22 (Freon), a refrigerant that contributes to the depletion of the ozone layer and is being phased out; 4 per cent contained R-32, a refrigerant that contributes highly to global warming; and 69 per cent contained R410a. (One kilogram of this refrigerant has the same greenhouse impact as two tonnes of carbon dioxide.)
The obsolete and harmful refrigerants and appliances were imported from China, Malaysia, Thailand and India.
Tad Ferris, Senior Counsel for the Institute for Governance and Sustainable Development and lead author of the joint report, said the units are “energy vampires”, sucking up vital energy needed to recover from the pandemic and the economic slowdown, and inflating consumer spending on electricity bills.
Kenyans spend an additional US$50 to US$100 on electricity every year because of using obsolete and inefficient second-hand equipment and appliances.
However, the Energy and Petroleum Regulatory Authority (EPRA) has denied the existence of electronics without labels in the market. In an email response EPRA, which is responsible for monitoring and labelling of quality standards and energy performance of electronic equipment in Kenya, said, “The Authority does compliance inspections on a monthly basis across the country and has not seen any household refrigeration appliances and split-type non-ducted air conditioners lacking labels.” The email further said, “not all cooling appliances are governed by the standards and labelling scheme.”
In Kenya, the energy efficiency label is a red and green tag that awards a maximum of five stars on electronics and electrical appliances such as air conditioners and refrigerators. Minimum Energy Performance Standards are outlined in KS 2464: 2020 by the Kenya Bureau of Standards (KEBS), the country’s quality and standards body. To enter the market, appliances must be inspected and cleared by KEBS and other enforcing agencies, including the National Environment Management Authority (NEMA) and Customs.
The Energy (Appliances’ Energy Performance and Labelling) Regulations were introduced in 2016 and promoted by CLASP and the Kenyan government under the Kigali Cooling Efficiency Program (KCEP). However, although Kenya has pledged to reduce greenhouse gas emissions by 32 per cent by 2030 to comply with the Paris Agreement under the revised National Determined Contributions (NDCs), it has yet to ratify the Kigali Amendment to the Montreal protocol that restricts the production, entry and use of HFCs such as R134a.
Not only do second-hand cooling appliances consume more energy and rely mostly on fossil-based energy to power them, they contain refrigerants that have the capacity to warm the atmosphere thousands of times more than carbon dioxide. A Study shows that the cooling appliances industry contributes significantly to climate change and accounts for 10 per cent of global greenhouse gas emissions.
According to Dr Collins Odote, an environmental lawyer and Associate Dean at the Faculty of Law of Nairobi University, for Kenya to reduce greenhouse emissions and combat climate change, the country must eliminate the importation and use of banned substances, reduce reliance on fossil fuels and use clean energy. Kenya is one of the countries most vulnerable to climate change. The country’s economy depends largely on tourism, agriculture, forestry and fishing, all sectors that are susceptible to climate change, Odote says, adding that the increased temperatures contribute to the loss of billions of shillings through droughts, famine, floods and human displacement.
In order to get a sense of how these operations run under the radar of the authorities, I presented myself to some of the dealers as a prospective player in the business. It turns out that for bulk imports, which are cheaper, a contact — often a relative — in the exporting country is required.
Moreover, money to bribe your way out of the port is a necessity some said, and there were allegations that not bribing certain officials could result in clearance delays or impounded goods.
One of the dealers was open to doing business with me against payment of KSh10,000 for a connection to a middleman based in the UK. The deal didn’t go through, however, as a few days later, the middleman declined.
The obsolete and harmful refrigerants and appliances were imported from China, Malaysia, Thailand and India.
Experts say that rich countries are dumping e-waste in developing countries such as Kenya under the guise of exporting second-hand appliances. Exporting e-waste, non-functioning or near-end-of-life, or environmentally harmful refrigerants is a criminal act under the Basel Convention and the European Union Waste Shipment Regulation.
Yet according to a United Nations University study of transboundary movements of used and waste electronic and electrical equipment (UEEE), between 2008 and 2013, 184 tonnes of used freezers and fridges worth €1.5 million were exported to Eastern African countries, including Kenya.The study analysed EU exports of second-hand refrigerators, freezers, laptops and desktop computers considered as waste using trade statistics from the EU COMEXT database. The analysis revealed that most exports came from Germany and Great Britain. The study did not capture data on electronics exported unconventionally and therefore the number of cooling appliances could be higher.
This indiscriminate dumping of e-waste from developed countries is exacerbating the problem of e-waste management in Kenya where just one per cent of the 51.3 tonnes of e-waste generated domestically is properly managed and recycled while the rest is discarded carelessly in dumpsites and in rivers, incinerated, thrown into pit latrines or left in homes.
Speaking in an interview, Dr Ayub Macharia, Director of Environmental Education in the Ministry of Environment said, “Kenya is a victim of illegal movement of e-waste from developed countries.”
To curb dumping of e-waste in Kenya, Dr Macharia declared a ban on the importation of second-hand electronic devices starting January 2020. But the ban mainly affected old cell phones, computers and laptops sent by donors to schools and institutions and not obsolete cooling appliances.
Dandora is Kenya’s fourth largest slum and home to the biggest dumpsite in Kenya. It is high noon but the sky here is grey from the swirls of smoke rising from burning waste.
Kevin, a scrap dealer, sits in front of a shack constructed from rusty corrugated iron sheets held together with cable and wire mesh. The middle-aged man agrees to divulge the secrets of his business anonymously.
“A client who imports sells me the broken ones. I get ex-UK, Japan and German-made appliances,” Kevin says. “I remove the copper and sell to jewellers or I take the copper to industrial Area, Mlolongo or Cabanas, to be exported to China.”
Kenya does not mine copper but the copper collected at scrapyards like this one is exported to countries like China and the UK, generating significant revenues for the country.
Kevin says he is just a tiny fish in the pond that is Kenya’s copper export market; politically connected people run the big deals. Security operatives visit his shop on a daily basis to collect bribes; he has secretly stashed away a large amount of copper in a storeroom somewhere to avoid exploitation from corrupt “CID” officers.
Utachukua dawa? (Will you buy copper?) ,” an e-waste scavenger asks Kevin.
The copper trade is flourishing despite the harm caused to the environment and people by the release of refrigerants into the air. Kevin doesn’t have a degassing machine; he doesn’t see the need for one. He leaks refrigerants directly into the atmosphere as he recovers valuables like copper or steel.
One of the dealers was open to doing business with me against payment of KSh10,000 for a connection to a middleman based in the UK.
“There is no harm. The gases don’t have odour,” an ignorant Kevin says, adding, “That is a scientific theory. Even if it had, you cannot compare such pollution with one caused by a motorcycle.”
Kenya does not mine copper, so Kevin cannot get a licence to trade in the mineral. But the illegal trading, the harassment from corrupt government officials and the information that refrigerants cause harm to people and to the climate have not deterred him. Kevin says he’s already teaching his son the business.
Utachukua dawa?” (Will you buy copper?), another waste scavenger asks Kevin.
This new business deal brings our chat to an end.
In another area of the dumpsite, James is sitting in his wood and corrugated iron shanty extracting copper from a fridge using a hammer. Around him are sacks containing various bits of scrap. To extract the copper from the appliances, the scavengers around Dandora use crude equipment, exposing other heavy metals and releasing gases into the air in the process. They complain of chest pains that they say are caused by the dark smoke emanating from the dumpsite.

James says he already has KSh200,000 worth of copper in a secret storeroom. The scrap copper is from fridges, construction sites and other sources. He hopes to collect KSh1,000,000 million worth of copper and maybe sell it by the end of the year. The copper will be exported to the United Kingdom, he says.
E-waste scavengers come carrying loads of copper that James weighs and pays for. He cannot tell where the copper brought to him has come from.
As I leave the dumpsite, rain falls from the heavy clouds above. In a few minutes, the water will flow in ditches and find its way into the Nairobi River a few miles away from the slum.
Scientific studies have confirmed the presence of dangerous elements, such as lead, which present a serious hazard to human health at the dumpsite. A study commissioned by UNEP found high levels of heavy metals in the surrounding environment and in the bodies of local residents.
Rich countries are dumping e-waste in developing countries such as Kenya under the guise of exporting second-hand appliances.
Lead and cadmium levels were 13,500 ppm (parts per million) and 1,058 ppm respectively, compared to action levels in the Netherlands of 150 ppm and 5ppm for these heavy metals.  But because of the economic gains that they derive from the business, residents and collectors are not willing to abandon it or to move from the site.
To make matters worse, Kenya “[does] not have regulations that guide in e-waste management and disposal, we have them in draft,” says Dr Catherine Mbaisi, Acting Deputy Director, Environmental Education and Awareness, National Environment Management Authority (NEMA).
This means that influxes of obsolete cooling appliances through porous borders will continue to flood the market. According to Dr Mbaisi, the Ministry of Environment has formulated Extended Producer Responsibility Regulations that will render the manufacturer responsible for the entire life cycle of a product including a take-back scheme, recycling, and final disposal. She hopes the bill will be enacted.
Controlled Substances Regulations 2020 have also been formulated but have yet to be enacted. The regulations will promote the use of ozone-friendly substances and products, and ensure the elimination of those that deplete the ozone layer. They need to be urgently enacted because lack of regulation and the lax control of energy-hungry, toxic goods is putting Kenyan lives at risk and harming the environment.

This article was developed with the support of the Money Trail Project. Additional research by Leslie Olonyi
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Naipanoi Lepapa is a freelance investigative and feature journalist based in Nairobi Kenya. She is interested in under-reported stories and writes about gender, human rights, health and environmental stories. She also writes about culture and technology.
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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.
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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