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SMACK TRACKS IN THE SANDS OF TIME: How Kenya Became a Major Narcotics Transit Route

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Drug Haven
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Nairobi, Kenya – YOUR SHIP HAS SAILED INTO PORT

In September 2015, a ship called the Hoegh Transporter called at the port of Mombasa. Kenyan police promptly detained the Norwegian-flagged ship and arrested its Filipino crew. Investigators then started a systematic search for drugs in the vessel.[1]

A few weeks earlier, the 1999-built vehicle-carrier had left the port of Hitachi in Japan with a consignment of cars meant for the United Nations peacekeeping forces in the Democratic Republic of Congo.[2] It then called at ports in Korea, Dubai and Mumbai. At this last port, according to some of the original reports, the crew hid guns and drugs within its 3,983-vehicle cargo.

The UN claimed the consignment of undeclared guns, but no drugs were ever found. [3]The ship and crew were released after a week, ending hopes of what would have been the most important drug seizure in East African history. Its presence on such a prominent commercial ship would have helped explain how Kenya now fits into the global narco-trade.

In that same half of the year, the Australian Navy had seized two ships off the Kenyan Coast with 787kg of heroin. Another 342kg was found in the tank of a ship at the Mombasa port. No one seemed to know whether the increasing seizures around the East African Coast meant enforcement was working better, or drug cartels were moving more drugs, or both.

Among the most prominent emerging routes are through West and East Africa, sometimes called the ‘Smack Track’. West Africa’s proximity to Europe, and the presence of a cluster of unstable states, made it the first choice for Latin American smugglers seeking new routes

Originally, heroin made from Afghanistan poppy found its way to markets in Europe through Pakistan, Iran or Central Asia. Across the world, coca from Peru and neighbouring countries found its way to labs in Colombia, then moved into the United States through Mexico, Panama and Venezuela. [4]The idea behind these smuggling routes was cover, since shipments from narco-states would automatically attract more attention.

As each advancement in drug enforcement dented these established routes, the business evolved. Among the most prominent emerging routes are through West and East Africa, sometimes called the ‘Smack Track’. West Africa’s proximity to Europe, and the presence of a cluster of unstable states, made it the first choice for Latin American smugglers seeking new routes.

The investments they made in building this gateway to Europe were astounding. In 2009 for example, a Boeing 727 crash-landed after taking off from a makeshift runway in the Mali desert. Its drug cargo had already been emptied and the crew escaped before the smoking hull was found.[5]

LOOKING SOUTH: THE EAST AFRICAN ROUTE

Increased policing and competition meant smugglers began to look farther south, to the East African Coast. Since the early 1980s, East Africa had been used as a minor transit point for heroin.[6] Heroin smugglers had to innovate faster than their cocaine contemporaries because for a time American authorities didn’t think cocaine was as bad as heroin.

Kenyan and Tanzanian ports and airports became increasingly attractive to smugglers seeking a circuitous route to Europe and America. Data from the United Nations Office on Drugs and Crime shows that the biggest seizures of heroin in the 1980s were of 20kg in 1987 and 44.39kg in 1990. Both were moved through airways, but a much bigger operation was happening at the port.

The most notable of this generation of drug smugglers was Ibrahim Akasha. Using his transport network, he expanded the delivery of mostly heroin into Europe, particularly through Amsterdam. Among his drug connects in Amsterdam were Yugoslav and Dutch cartels involved in distribution. [7]

In Pakistan, he had a network proven heroin supplier, and completed the network with a system of bribery and intimidation in Mombasa. His European partners handled their home ports, and the only task then was making each shipment count. One of the most colourful episodes in his underworld infamy was an unproven the story that he had once smuggled a single shipment of five tonnes of drugs into Europe.

By the time he was shot on a Dutch street in 2001, Akasha was at the top of the food chain. He had a Yugoslav man shackled in one of his houses in Kenya for not paying him, and his death triggered a war of attrition in the narcotics world. It also ended what could easily have been Kenya’s first drug cartel.

Three years later, in 2004, drug enforcement agencies staged a coordinated raid on a warehouse in Nairobi and a home in Malindi. Several hundred kilogrammes of cocaine had been nabbed in Amsterdam in containers originating from Kenya, triggering a chain of events that ended with the seizure of 1.1 tonnes of cocaine.[8] Only one person, David Mugo, was ever jailed in Kenya. His brother, George Kiragu, in whose name most of the paperwork appeared, was jailed in Amsterdam. They were the faces of the operation,[9] but it’s most likely the huge consignment had more than one owner.

ENTER THE FAMILY

The presence of the larger portion of the shipment in Malindi, in a house leased from an Italian couple, suggested that the Italian community in the Coastal city were involved in the trade. It had long been suspected that the Italian Mafia expanded to the Kenyan Coast, using it mainly for money laundering and hiding wanted criminals, but also to ship drugs. The Italian couple were acquitted, but the suspicion of Mafia involvement in Kenya’s drug trade lingers.

The Mafia would have been crucial in accessing European markets. The size of the shipment meant that this was not a virgin route. Since the late 1980s, increased American enforcement had complicated that traditional market, forcing even South American markets to seek new markets in Europe. To get access to these, they piggybacked on established heroin routes. Since this was technically a new and rather long route, they could move massive amounts of narcotics undetected. Initial intelligence about the drugs from European enforcement agencies suggested a multi-tonne shipment, and it is likely most of it was moved and hidden before the raid.[10]

Less than two years later, two men claiming to be Armenians entered Kenya. The Armenians brought in a team of six Eastern Europeans, and hired two Tanzanians as bodyguards. They quickly began moving in the highest circles of Kenyan society. All 10 would be deported without trial, and their true mission remained a matter of conjecture. Their official cover had been that they had been hired to train an anti-narcotics team, but US diplomatic cables from as early as March 2006, later leaked by Wikileaks, show they were known enforcers for the Russian Mafia. This brought in a whole new angle to just how many interests were involved in the 1.1 tonne cocaine haul.

By the time he was shot on a Dutch street in 2001, Akasha was at the top of the food chain. His death triggered a war of attrition in the narcotics world. It also ended what could easily have been Kenya’s first drug cartel

To observers of the narcotics trade, the possible involvement of the Russian and Italian Mafias meant the East African supply line was more important than previously thought. Still, the connection with South American cartels remains mostly obscure, perhaps because of the existence of several lines of criminal control between Kenyan dealers and Colombian ones. What’s most revealing about the narcotics business is the mainstay of Kenya’s smugglers, heroin.

One of the men arrested with the Akasha sons in 2014, Gulam ‘the Old Man’ Hussein, is said to be a heroin smuggling genius.[11] The other, Vijay Goswami, had served a long jail sentence for drug possession in Dubai, and is wanted in his home country, India, for suspected drug links. His criminal profile shows extensive tentacles in the drug supply world, making Goswami the guy who knows everyone, and Gulam the one who organised transportation.[12] Gulam has quite a profile, which included an 800kg haul of heroin seized off the Coast of Kenya in July 2014 and poured into the sea.

For the deal that got them nabbed, they had moved 98kg of heroin as a sample to their new Moroccan connection to test and ship to the United States. While they couldn’t satisfy the meth part of the deal, their heroin delivery suggests they could have moved a lot more.

What’s more interesting with this case is that the sale, not just the transit, was happening in Kenya. The Akashas had sourced the heroin from a Pakistani cartel led by a man simply known as ‘The Sultan,’ smuggled it into Kenya, and then sold it to a Moroccan man to smuggle into the United States. These were two different main nodes meeting, and perhaps one of the most visible instances of how the drug underworld in Kenya works. Most of this business was done in Nairobi and not Mombasa, which had long been thought to be the epicentre of the narcotics trade in Kenya.

LINES OF CRIMINAL CONTROL

In the 1990s, Kenya’s growth as a drug route attracted many new players. It’s impossible to control the entire supply chain, so they drew up lines of criminal control and outsourced key functions. They operated as a competitive network, with different nodes that one report titled Termites at Work: Transnational Organised Crime and State Erosion in Kenya called kampuni.

The report, published in A report from September 2011, Termites at Work: Transnational Organised Crime and State Erosion in Kenya, estimated that ‘there were at least 10 major international drug trafficking networks’ in Kenya.

Each snuggles into a part of the supply chain it can profitably control, and then makes its own contacts with others inside and outside the country. They have the same basic structure of a small company complete with accountants, packers, and peddlers. They tend to involve people with familial connections, as ties of blood or marriage are one way the narcotics business ensures loyalty.

Since most of the drugs shipped through Kenya are in transit, their purity is often over 80 per cent. Some of it is diluted and repackaged either for shipment, but most of it is simply repackaged. There’s evidence now that some dealers are smuggling in low purity narcotics for distribution and sale locally.

Some nodes play one role only, such as providing the repackaging service to other smugglers. Others, such as Naima Nyakinywa or ‘Mama Leila,’ provide supplies for the smuggling and repackaging units, as middlemen to middlemen. Mama Leila was named by the US Treasury as a key player in Kenya’s drug underworld only a few months before she was arrested in Dar es Salaam.[13] Vijay Goswami, the Indian man arrested with the Akashas, has been linked to several hauls in India of mostly precursor ingredients to processing other drugs. One of his plans was to start and run a mega methamphetamine laboratory in Kenya similar to one that was closed around the same time in Nigeria.[14]

Some nodes focus solely on smuggling, recruiting mules and sending them on delivery missions across the world. Compared with the massive shipments via the port, at one point estimated to have been at least one per week, the mules move minute amounts. It’s likely that they are hired by nodes at the periphery, who are paid for their work in narcotics that they dilute and repackage for sale.

In 2002, a Kenya Airways cabin crew member called Priscillah Kolongei was arrested carrying 27kg of heroin from Mumbai to Nairobi. She had been smuggling drugs since 1997, and her arrest was followed by a purge within the airline of suspected mules. Between 2004 and 2010, narcotics smugglers started hiring mules outside the usual groups of cabin crew. They focused on young unemployed women, white expatriates, and non-white holders of valid US visas. China currently has over 70 Kenyans in jail on drug smuggling charges. A Kenyan socialite was arrested and jailed in Kumasi, Ghana and another, Margaret Njeri, ended up in a Brazilian jail where she died in 2009.

It’s also possible that the much larger shipments by air, into and out of Kenya, are not caught because smugglers have reduced reliance on commercial flights. A similar thing happened at the port, where smugglers would offload on the high seas and head out on small motorboats to remote islands near Lamu and Pemba, away from centralised policing. To do this, smugglers avoided international airports they didn’t have connections or those like the Jomo Kenyatta International Airport that had enhanced anti-narcotics enforcement.

For this entire network to survive, it needs protection. The most common form in Kenya is political protection, although a few politicians have been named as being involved in the drug trade itself. The oldest name on the list is John Harun Mwau, an uber-rich politician and businessman who has been investigated by Kenyan and American governments. Other politicians and public figures who have been suspected of involvement in narcotics include Mombasa Governor Hassan Joho and his publicity-shy brother Abubakar Joho, as well as current Kiambu Governor William Kabogo and current Nairobi Senator Mike Sonko his brothers, although the suspicions have never been proven. One of their similarities, other than vast amounts unclear sources of wealth, is that they have been associated with owned or operated transport or as well as clearing and forwarding companies.

To observers of the narcotics trade, the possible involvement of the Russian and Italian Mafias meant the East African supply line was more important than previously thought. Still, the connection with South American cartels remains mostly obscure

Outside of the possible direct involvement of politicians, political and police connections normally have auxiliary protection roles. The entry of the Armenian brothers in 2006 was facilitated by among others Mary Wambui, the president’s second wife, and her daughter. In the years after the story died, Wambui confessed under oath to having known the Armenians, but didn’t explain why they had come to Kenya. The role of politicians and law enforcers in the Armenian mission seems to have been peripheral, with serious undercurrents that made the two men untouchable.

THE LOS PEPES EASTER EGG?

The loose nature of the narcotics economy in the region makes it hard to dissect direct connections. But at times they seem almost brazen. After the December 2004 cocaine haul, investigators raided a warehouse owned by Pepe Enterprises Ltd, a company associated with owned by John Harun Mwau. The name of the company is interesting, in a macabre sense. It triggers memories of Los Pepes, a group of vigilantes who dedicated their lives to hunting down Colombian drug lord extraordinaire Pablo Escobar in the early 1990s. The name itself came from the phrase “Perseguidos por Pablo Escobar” (persecuted by Pablo Escobar). Officially, more than once, Mwau has been named as a key connection between Kenya and the South American narcotic trade, from as early as the days of Escobar’s Medellin Cartel.

Although Los Pepes was officially a civilian vigilante group, it was funded by the Cali Cartel, which had broken away from Escobar’s Medellin group in the late 1980s. In the years after Escobar died, the Cali Cartel thrived, controlling over 90 per cent of the global cocaine market. As they expanded into Europe, they made business relationships with the heroin smuggling world, and shared distribution centres.

By the mid-1990s, the Cali Cartel controlled 90 per cent of Europe’s cocaine market too, meaning they pioneered and probably expanded the Smack Track cocaine route through Kenya, Tanzania and West Africa. If there was any South American cartel with the ability to smuggle massive amounts of cocaine into Kenya in the early 2000s, it was the Cali Cartel.

 

[1] http://www.hoeghautoliners.com/news-and-media/news-and-press-releases/h%C3%B6egh-transporter-in-mombasa-kenya-update-23-september

[2] http://www.hoeghautoliners.com/news-and-media/news-and-press-releases/undeclared-weapons-in-un-shipment-cause-of-detention-of-h%C3%B6egh-transporter

[3] ibid

[4] http://www.economist.com/news/middle-east-and-africa/21639560-east-african-states-are-being-undermined-heroin-smuggling-smack-track

[6] https://data.unodc.org/#state:

[7] https://www.standardmedia.co.ke/article/2000100784/akasha-death-opened-a-peek-into-kenyan-drug-dealings

[8] https://www.unodc.org/cld/case-law-doc/drugcrimetype/ken/criminal_case_no_1365_of_2004.html

[9] Ibid

[10] https://www.unodc.org/cld/case-law-doc/drugcrimetype/ken/criminal_case_no_1365_of_2004.html

[11] https://wikileaks.org/plusd/cables/06NAIROBI2782_a.html

[12] https://www.justice.gov/usao-sdny/press-release/file/933901/download

[13] http://www.thecitizen.co.tz/News/national/High-profile-drug-trial-to-start-afresh/1840392-2418504-w3h73rz/index.html

[14] https://www.justice.gov/usao-sdny/press-release/file/933901/download

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Owaahh is the pseudonym of a blogger based in Nairobi

Politics

The March of Folly: Why the Referendum Will Bury the 2010 Constitution

Proposals by politicians and church leaders to amend the 2010 Constitution serve narrow interests and could lead to further polarisation and exclusion in the country, argues CANON FRANCIS OMONDI.

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The March of Folly: Why the Referendum Will Bury the 2010 Constitution
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“To the man who only has a hammer, everything he encounters begins to look like a nail.” – Abraham Maslow.

The fervour for constitutional change among a section of the political class and national leadership has gained momentum. A cursory view of Kenya’s history indicates a propensity to revert to legal solutions for Kenya’s political problems or moral dilemmas. Our history demonstrates that tinkering with the constitution to accommodate the challenges facing the political class has rarely borne any fruit.

Seldom have we delved into successes political solutions afford us. The “handshake” of 9 March 2018 between Raila Odinga and Uhuru Kenyatta, they say, swerved Kenya away from the edge of the precipice of chaos. It took intriguing political turns and twists to cut the deal. Inclusivity! The courageous turns by President Kenyatta and Hon. Odinga, and the twisted, and cryptic yet surprising pact, somersaulted their lost and bewildered supporters into alignment in the new arrangement. So, Kenya is at peace today, after the grueling duel of the 2017 election, through a political solution.

But there are whispers among politicians that Kenyatta and Raila are threading the needle to solidify the handshake by anchoring it in the constitution and inevitably forcing a referendum on Kenyans. They should have stayed on this path and should never have capitulated. What a window of opportunity, not only to engrave an alternative approach to resolving our political complications, but also to transform and sanitise our politics.

The obtuseness with which this referendum is being mooted raises questions. In the early 1990s, we knew the reasons for holding a referendum. Though a referendum was not held then, public opinion and donor pressure forced President Daniel arap Moi to repeal Section 2A of the constitution (the section that made Kenya a one-party state). This precipitated the multiparty political dispensation that led to the proliferation of political parties and the eventual ouster of Moi’s Kanu party in 2002.

But there are whispers among politicians that Kenyatta and Raila are threading the needle to solidify the handshake by anchoring it in the constitution and inevitably forcing a referendum on Kenyans.

Similarly, the 2010 referendum on the new constitution was clear: Yes for change, No for the status quo. The push was to overhaul the old constitution to reflect our new realities. The changes sought included bringing voices on the margins to the centre and to institute a dramatic shift in how to share power and resources. Genuine inclusivity. For this, we found the formula in a devolved structure of government. The new constitution guaranteed a Bill of Rights that guaranteed freedom of expression, among other fundamental rights. Hence the Constitution of Kenya 2010 was promulgated.

NCCK’s proposals to amend the constitution

We live in an enchanted country under a spell of the referendum for a change in the law. The National Council of Churches of Kenya (NCCK) made a proposal mainly seeking to change the executive, which appears to voice certain politicians’ whispers. The NCCK is seizing the moment to inject into the constitution some issues they could not include during the last referendum.

During the NCCK Executive Committee meeting on 27th February 2019, participants reached the conclusion to propose a wide range of changes to the 2010 Constitution. They suggested amending Article 130 of the 2010 Constitution by inserting the words “Prime Minister” and “two Deputy Prime Ministers” immediately after the words “Deputy President”.

They also recommended inserting a new clause (3) to read: “130 (3) The President, Deputy President, Prime Ministers, and Deputy Prime Ministers, shall all be from different ethnic groups.” They recommended giving both the Prime Minister and Deputy Prime Ministers executive authority.

During the NCCK Executive Committee meeting on 27th February 2019, participants reached the conclusion to propose a wide range of changes to the 2010 Constitution. They suggested amending Article 130 of the 2010 Constitution by inserting the words “Prime Minister” and “two Deputy Prime Ministers” immediately after the words “Deputy President”.

NCCK also recommended amending Article 131 (1) (b) by inserting the words “Prime Minister and Deputy Prime Ministers” immediately after the words “Deputy President”. They reasoned that introducing the Prime Minister and Deputy Prime Ministers as members of the National Executive will enshrine greater inclusivity in the government’s structure. The Prime Minister, Deputy Prime Ministers, and Cabinet Secretaries are to be accountable to both the President and Parliament through the amendment of Article 153 by: a. Inserting in Clause (2) the words “Prime Minister, Deputy Prime Ministers” immediately before the words “Cabinet Secretaries” and b. Inserting in Clause (2) the words “and Parliament” immediately after the word “President”.

Reforming the executive structure is evidently the thrust of the NCCK’s recommendations. I have since found out that the NCCK conducted several seminars at the grassroots to garner support for the referendum. But in many places, the membership refused to drink this “Cool Aid”. They rejected these recommendations.

Ambassador Francis Muthaura, the former Head of Public Service, while making a submission during a Building Bridges Initiative (BBI) event on 10 July 2019, suggested bold changes to the 2010 Constitution. Amb. Muthaura rooted for a power-sharing government of the two protagonists, with Cabinet positions shared equally once in power, an arrangement reminiscent of President Mwai Kibaki’s and the then opposition leader Raila Odinga’s Grand Coalition Government of 2008. He proposed that both the winner and the runner-up candidates in the presidential election share in a coalition government as the President and the Prime Minister, respectively.

“Once the results of the presidential elections are announced by the electoral commission, the candidates having the highest number of votes and the second-highest number of votes will form a government of national coalition,” he said.

He further suggested that in Parliament, the president’s party should provide the leader of government business, while the prime minister’s party should provide the deputy leader of government business, which will make the government more consultative rather than the confrontational.

Enter Punguza Mzigo

The Third Way Alliance of Dr. Ekuro Aukot caught many by surprise when it got the Independent Electoral and Boundary Commission (IEBC)’s nod for a referendum. With over 1 million signatures, they had the people’s mandate for their reform bill, dubbed “Punguza Mzigo” Bill 2019.

At the core of the bill is relieving the public financial burden by trimming the government’s runaway expenditure. The proposed amendments aim to deal a fatal blow to corruption and theft of public funds, to redistribute national resources to the ward levels – which is a shift from the constituency level, as we know it today – and to rearrange presidential terms to only one, but for seven years. True to its name, the Punguza Mzigo bill plans on drastic austerity measures in both the government and in the legislature, which its proponents argue will spur economic growth, and percolate prosperity to ordinary Kenyans. David Ndii, a leading economist in Kenya, submits that it won’t boost economic growth as many argue.

It is disingenuous of Dr. Aukot, one of the Committee of Experts who birthed the 2010 Constitution, to now propose to overhaul it without a clear audit of what Kenyans gained or lost after its promulgation. For instance, reducing the number of legislators undermines the key gains of the 2010 Constitution on the principle of representation. The rationale for the present arrangement outweighs the populist reasons of cost-saving of taxpayers’ funds. This is sheer populism that won’t remedy the appalling state of the masses. Why change the law, when these changes are achievable through fiscal discipline and robust economic policies?

I am sceptical about whether changing laws to expand the government for inclusivity, either as advocated by the NCCK or Amb. Muthaura, reaches the depth of the issue. These proposals risk engraving tribal politics in our laws, which breed exclusion. What the NCCK suggests will distribute executive positions based on one’s tribe, while Muthaura’s winner and runner-up sharing positions may tie the positions to the same political groupings.

It is disingenuous of Dr. Aukot, one of the Committee of Experts who birthed the 2010 Constitution, to now propose to overhaul it without a clear audit of what Kenyans gained or lost after its promulgation.

Given how party politics in Kenya are tribally bent, these proposals may lead to an eternal exclusion of some communities. If we allow the changes as suggested, we would give birth to a bastard democratic order, with a government without the checks and balances that a credible opposition can offer. Doubtlessly, the changes will re-concentrate political power around a certain group in power and this will eventually bury the 2010 Constitution.

We may assume that the malaise is because of the defects in our institutions. Yet the problem lies elsewhere. A sound constitution would need a corresponding sound “structure”. For instance, the Constitution of the Soviet Union also granted a Bills of Rights, but that did not prevent the centralisation of power in one person or in one party. And as soon as that happened, the constitution was dead. The party or the chief became supreme. Even banana republics have sound constitutions protecting rights and promoting inclusivity, but most of them end up being mere words on paper.

If we allow the changes as suggested, we would give birth to a bastard democratic order, with a government without the checks and balances that a credible opposition can offer. Doubtlessly, the changes will re-concentrate political power around a certain group in power and this will eventually bury the 2010 Constitution.

Inclusivity cannot be achieved through a referendum 

Addressing the US Senate Judiciary Committee, the late Justice Antonin Scalia refuted that American “exceptionalism” was embedded in the US constitution, as many assumed. On the contrary, he argued, it was in the structure of its government, the independence of its judiciary and the bicameral legislature.

In this system, Scalia explained, “legislation passes one house [and] it doesn’t pass the other house; sometimes the other house is in the control of a different party; it passes both, and then this President, who has veto power, vetoes it. And they look at this and they say, ‘Ah, it is gridlock’.” This disagreement, he observed, is the key that provides the check and balances, and this is what makes American constitutionalism exceptional.

The “inclusivity” that supposedly came about as a result of the “handshake” between Raila Odinga and Uhuru Kenyatta or which is being proposed by the NCCK and Muthaura pays little attention to this kind of accountability. Rather, it blurs this vital element of democratic government. (To their credit, the drafters of the Punguza Mzigo Bill 2019 recognised the need to improve the checks-and-balances role of the legislature. They propose reforming the legislature to increase the power of the Senate as the Upper House and so improve the role of Parliament as a government watchdog and people’s representative.)

It is a cruel irony that we are now using a referendum to achieve inclusivity. A referendum, by its nature, is divisive. Every referendum we have held left us divided: In 2005, it was “Banana” or “Orange” groups. In 2010, it split us between the “Yes” and “No” camps. We have observed a referendum sorely dividing the United Kingdom, between “Brexiters” and “Remainers”.

In a referendum exists a tacit assumption that denounces those who are on the opposite side as enemies and this can lead to violence. With a referendum, we cannot walk the sensible middle of the road, or achieve compromise needed over complex social challenges, because it simplifies complex issues into sound bites. It hinders a thorough and factual debate over issues. Our leaders espouse referendums to gauge public opinion, while in reality, they are their tool to cause the public to parrot their untested ideas.

It is a cruel irony that we are now using a referendum to achieve inclusivity. A referendum, by its nature, is divisive.

The general tendency of a referendum is to inhibit an independent evaluation of issues against the general assessment of national interest by experts who would balance multiple interests. Further, it obstructs compromise by producing a result in which a majority, by any margin of votes, feels entitled to speak for the whole nation and the minority don’t count.

Fixing our politics

So, investing more in politics than the law remains our most viable option. During the BBC’s 2019 Reith Lectures, In Praise of Politics, (the retired Justice of the UK’s Supreme Court, Lord Jonathan Sumption, criticised the law’s expanding of the empire into our lives. He observed the law’s corroding influence on democracy, and argued that politics, not the law, holds the solutions for the crises in society. He warned, “Every human problem or moral dilemma can’t call for legal solutions.”

Justice Sumption makes the case for strengthening the political process through representation, which is the role of Parliament, for it is difficult for all citizens to vote over and decide over a matter. The masses often have insufficient data and information to reach an informed decision.

Besides, as Sir David Hume, a prominent figure of the 18th century’s Scottish Enlightenment observed, there is an incurable narrowness of soul that makes people prefer the immediate to the remote and to safeguard parochial rather than national interests. Sumption, therefore, supports taking this process away from the electors who have no reason to consider but a desire for the immediate and narrow opinion of their own. He insists that political decision-making should stay in the hands of politicians because they can accommodate the widest array of opinions and act in the national interest.

It’s a tragedy that our lawmakers are strangers to this principle of representation. At best, they only listen to the concerns of the constituents but do not promote among their constituents a broader view of public interest.

James Madison, in The Federalist Papers, made the strongest justification for representative politics, which he argued, is to “refine and enlarge the public views, bypassing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”

Regrettably, our legislature operates as a creation of the executive, and/or their political party heads. Nothing goes without them saying so. Sir Edmund Burke, an Anglo-Irish politician, political theorist, and philosopher who served as a member of parliament reminds us, “Parliament was not a congress of ambassadors but its members were there to represent the national interest than the opinions of the constituents.”

We will remain torn apart by the submitted adjustments unless these motions undergo a process of refinement and enlargement through the broad workings of the legislative process. Here, such ideas are transformed from private persuasions at public hearings or at a local level, to the deliberative proceedings in Parliament. And from the contests and accommodation of interests in legislative committees to the representatives’ open declarations to their constituents.

The representation principle was intended to prevent such narrow interests and unjust views from determining public decisions. Thus the job of the representative is not to follow daily polls or sudden breezes in popular opinion, which Madison thought were too often the result of prejudice and partial interests. Rather, the representative should promote a consensus grounded in justice and the common good.

The Kenyan ordinary political process is murky and treacherous, devoid of true representatives. Can we fix this? We must demand deliberation within the legislature of the proposals by NCCK, Muthaura, Punguza Mzigo Bill 2019 and any others that will be put forward, and seek a two-way process of communication between the representatives and their constituents. Within this milieu of public communication and deliberation, perhaps a kind of civic education will take place. Maybe this then will contribute to forming and settling public opinion based on what is right, and therefore, will justify “the respect due from the government to the sentiments of the people.”

I opine that this madness to tinker with the code may become our “march of folly”. Mrs. Barbara W. Tuchman, in The March of Folly: From Troy to Vietnam, gives a stark warning on decisions leaders make without referring to the facts and which end up harming ordinary people. In some of her conclusions, she asserts that folly is sometimes caused by people’s ‘’wooden-headedness’’ or ignoring their earlier history. Just folly.

This is not a situation where leaders make an error in judgment due to ignorance; it is a situation where decisions are made out of foolishness. Mrs. Tuchman sets out three conditions for such decision-making. First, the leaders and those responsible were warned about the potential for a disaster. Second, there were workable alternatives to the course they took. Third, it was groups, not individuals, who perpetrated the foolishness.

Mrs. Tuchman supported her assertions with four major acts of folly in human history. These are: 1) the Trojans’ decision to move the Greek horse within the walls of their city; 2) the refusal of six Renaissance popes to arrest the growing corruption in their church and their failure to recognise the increasing restiveness that would lead to the Protestant secession; 3) the British misrule under King George III that eventually cost England her American colonies; and 4) America’s mishandling of the conflict in Vietnam.

We must halt urgently this referendum march. For there is nothing new about our present crisis and the suggested constitutional reforms are usually irrelevant to the problem that provoked them. The peril Kenya faces lies not in our laws or institutions, but in the decline of our character as a community. Without a powerful sense of community, even the best laws and institutions will remain a dead letter.  The facade will stand, but there will be nothing behind it. The rhetoric will be loud, but it will be meaningless.

And the fault will be ours.

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Politics

Cambridge Analytica and the 2017 Elections: Why Has the Kenyan Media Remained Silent?

Did President Uhuru Kenyatta and his Jubilee party win the 2013 and 2017 elections fairly, or did a dubious UK-based consultancy company help them win by using unethical means? RASNA WARAH explores possible reasons why the Kenyan media has remained mum about Cambridge Analytica despite the international uproar about its use of dirty tactics.

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Cambridge Analytica and the 2017 Elections: Why Has the Kenyan Media Remained Silent?
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In the run-up to the August 2017 elections, the Star newspaper carried a short news item in its inside pages that stated the Jubilee Party had contracted a company known as Cambridge Analytica to help it win the elections. Most of the other Kenyan mainstream media outlets ignored the story, which seemed strange considering that the company was embroiled in various scandals that suggested that it had manipulated British voters in the Brexit referendum, and that it might have used unethical means to get Donald Trump elected as President of the United States in 2016. Steve Bannon, who was then Trump’s chief strategist, was the company’s Vice President at the time of the Brexit referendum.

The company, owned by billionaire Robert Mercer, was known for running campaigns that amounted to “psychological warfare”. Some claimed that the data mining company’s operations might even be construed as being illegal as they crossed boundaries of privacy that should not be allowed in a democracy.

I subsequently wrote in my column in the Daily Nation about how this company might be manipulating voters in the 2017 Kenyan election, but my column did not generate much interest among my fellow journalists, even though I had warned Kenyans that this controversial company’s dirty tactics amounted to social engineering and could lead to the spread of hate speech and fake news during the election campaign period.

Not even an explosive exposé of the unethical practices employed by the company, which was published a year later in the UK’s Guardian and Observer newspapers, led to further investigations by the Kenyan media or by Kenya’s electoral body, the Independent Electoral and Boundaries Commission (IEBC). It was as if Cambridge Analytica, despite its tarnished reputation, had successfully managed to buy the silence of Kenyan journalists and electoral officials.

The Kenyan media’s puzzling lack of interest in Cambridge Analytica’s dirty tactics was mind-boggling. No Kenyan journalist or electoral body official investigated whether the company was behind the uthamaki movement that saw Uhuru Kenyatta win by a landslide in Central Kenya. No one bothered to find out whether the company was behind a social media campaign to instil fear about a Raila Odinga presidency – and Luos in general – even though undercover reporters in the UK had recorded the company’s top managers admitting that they dug the dirt on their clients’ political opponents, and often hired spies and sex workers to obtain potentially embarrassing information. What dirt did they have on Kenya’s opposition leaders? And was the fear of this dirt being exposed a reason for the “golden handshake” between Raila Odinga and Uhuru Kenyatta last year? Again, no one to date has bothered to find out.

Dirty tactics

The unethical tactics employed by Cambridge Analytica were revealed last year by the whistleblower Christopher Rylie, who claimed the company harvested Facebook data from millions of people around the world and then targeted them with political messages and misinformation without their knowledge or consent.

This was confirmed by a series of articles known as “The Cambridge Analytica Files” published in the Observer, which showed that Cambridge Analytica used data from sites such as Facebook to manipulate people’s emotions, and get them to vote in a particular way. One former employee told journalist Carole Cadwalladr — the author of the series — that the aim of the company was to capture every voter’s information environment, from magazine subscriptions to airline bookings, and to use this data to craft individual messages to create an “alt-right news and information ecosystem”.

The unethical tactics employed by Cambridge Analytica were revealed last year by the whistleblower Christopher Rylie, who claimed that the company harvested Facebook data from millions of people around the world and then targeted them with political messages and misinformation without their knowledge or consent.

Cadwalladr says that Cambridge Analytica’s tactics were not just about combining social psychology with data analytics – they were much more sinister. The company was not ideologically neutral and had strong links with well-heeled right-wing groups and politicians in Britain, the United States, Russia, Lithuania, Latvia, Ukraine, Iran and Moldova. Its campaigns thus propagated a distinctly ultra-right agenda. Later investigations into the Trump campaign’s alleged links to Russia prior to the 2016 elections also raised the question about whether Cambridge Analytica facilitated these links.

These revelations led to Facebook CEO Mark Zuckerberg admitting that 87 million Facebook users’ data had been mined. He was subsequently hauled before the US Congress and fined $5 billion for privacy violations. Britain’s parliament referred to Facebook as “digital gangsters” and the UK government has since started an antitrust inquiry into the company. France, Australia, Japan, India, New Zealand and Singapore are also considering passing new laws to regulate giant Internet platforms like Facebook.

The Cambridge Analytica scandal not only impacted the fortunes of Facebook, whose share prices plummeted, but also Cambridge Analytica, which went bankrupt and was forced to shut down. However, in Kenya, no inquiry into Facebook or Cambridge Analytica took place and no laws or regulations to protect people’s online privacy have been passed.

Why now?

Having ignored this story for so long, it seems odd that now, nearly two years after the 2017 election, the Daily Nation’s editors feel that news about a high-profile British MP admitting to the UK’s Channel 4 News that she worked for Cambridge Analytica in Jubilee’s election campaign in 2017 deserves front-page treatment. In its 17 July 2019 edition, the Daily Nation splashed the story of Alexandra Phillips telling a journalist that she was secretly employed by Uhuru Kenyatta as a political communications consultant. The newspaper also carried a photo of Phillips donning a Jubilee cap. In the leaked video clip where she admitted to working for Jubilee, Phillips also said that she loved Kenya. (Why wouldn’t she? Her contract was valued at £300,000 per month and her job description, she claims, including writing speeches for Uhuru.)

The Jubilee Party denied any links with Cambridge Analytica, but a few days later, in its Sunday edition, the Nation revealed that it had seen leaked emails that linked State House operative Nancy Gitau with the disgraced company. Apparently all communication between Cambridge Analytica’s consultants working in Kenya had to be copied to Ms. Gitau, who also offered suggestions on how the election campaign should be conducted.

Why did this story merit newspaper space and why now? Perhaps it has to do with the politics of the 2022 elections. Uhuru Kenyatta will not be running in these elections, as he will have come to the end of his second and final term. Moreover, the Jubilee Party is no longer what it was, with the in-fighting between the two principal parties of this coalition becoming more vicious by the day. So a story like this is not likely to have any significant impact on the 2022 elections. And it will also have no effect on the fortunes of Cambridge Analytica, which has already closed shop, thanks to the many scandals it was embroiled in. Which is why it seems odd that the Nation chose to highlight this story now.

The Jubilee Party denied any links with Cambridge Analytica, but a few days later, in its Sunday edition, the Nation revealed that it had seen leaked emails that linked State House operative Nancy Gitau with the disgraced company.

But what the story did reveal was the extent to which Uhuru Kenyatta and his Jubilee Party were willing to go to win the 2013 and 2017 elections. Uhuru is not averse to paying foreign PR companies huge amounts of money to manipulate voters and the media. In the run-up to the 2013 elections, when he was facing charges of crimes against humanity at the International Criminal Court (ICC), he hired the services of a London-based PR firm called BTP Advisers to manage his election campaign. The PR company, whose slogan is “We deliver campaigns that change hearts and minds”, advised Uhuru to use aggressive propaganda tactics that cast the ICC as racist and its supporters, including local civil society organisations (which his propagandists dubbed “the evil society”), as puppets of the West.

On its website, BTP Advisers revealed the winning strategy that delivered the presidency to Uhuru in 2013: “By exposing the weak and flawed nature of the ICC case against him, we made the election a choice about whether Kenyans would decide their own future or have it dictated to them by others.” By framing the ICC cases as a sovereignty issue for Kenyans, the strategy cleverly undermined both the ICC and the case against Kenyatta. As fate would have it, the ICC would later drop charges against Kenyatta and his fellow indictee and running mate William Ruto due to lack of sufficient evidence.

Uhuru also hired a group of bloggers and journalists dubbed “The State House Boys” who carried out an aggressive propaganda campaign on social and other digital media to whitewash Uhuru and his party. The so-called Presidential Strategic Communications Unit was built by Johnson Sakaja – a young man with political ambitions who would later become Senator for Nairobi County – who recruited the likes of Dennis Itumbi and David Nzioka to build Brand Uhuru. Although this roguish bunch of propagandists have since been sidelined and now work for Deputy President William Ruto, their vitriolic rhetoric and misinformation campaign had a lasting impact on the 2013 and 2017 elections.

Digital surveillance

Did President Uhuru Kenyatta and his Jubilee party win the 2013 and 2017 elections fairly, or did a UK-based political consultancy company called Cambridge Analytica help them win by using unethical means? This question surfaced again after the release of an explosive documentary aired on the UK’s Channel 4 News in 2018 that showed the managing director of the company, Mark Turnbull, admitting to stage-managing the last two elections in Kenya, from rebranding the Jubilee party twice and even writing its manifesto and speeches. In the Channel 4 News documentary, Turnbull is shown telling undercover reporters that the company uses people’s deep-seated hopes and fears to manipulate them. “It is no good fighting an election campaign on the facts, because actually it is all about emotion,” he said.

The question Kenyans must ask is whether Cambridge Analytica undermined our democracy and made a mockery of our elections. Is the company responsible for deepening ethnic divisions in our society? The deliberate manipulation of people’s fears and emotions also raises ethical questions. In a country like Kenya, where ethnic-based tensions have led to violence and bloodshed in the past, was Cambridge Analytica being highly irresponsible by stoking these tensions?

Other African countries have been more diligent about employing companies that create divisions and disseminate misinformation. For example, in the wake of the corruption and “state capture” scandals involving former South African president Jacob Zuma and the notorious Gupta family, the UK-based PR company Bell Pottinger was accused of initiating a cynical campaign on behalf of the Guptas that pitted South Africa’s whites against blacks. When details of the “economic apartheid” campaign were exposed, the PR company lost credibility and collapsed. But in Kenya, not a single investigation has been conducted to expose the unethical actions Cambridge Analytica was involved in that might have impacted our elections and polarised the country along ethnic lines.

The question Kenyans must ask is whether Cambridge Analytica undermined our democracy and made a mockery of our elections.

Going forward, can we expect similar campaigns in the run-up to the 2022 election? Are there other companies such as Cambridge Analytica that are marketing themselves to Kenyan politicians? Such companies have found a ready market in poor and corrupt countries where leaders will go to any length (and pay millions) to win elections. Might Ruto, the presidential candidate in 2022, also hire a company like Cambridge Analytica for his election campaign? Ruto has loads of money and the contest in 2022 will very likely be a high stakes game. Cambridge Analytica may have closed shop, but other companies might be waiting in the wings to make money during the 2022 election campaign period? Might they now have their eyes on Ruto? And will the Kenyan media be more diligent about such companies or will they wait for foreign media to expose them?

We must also ask whether the introduction of the Huduma Namba (the newly rolled-out National Integrated Identity Management System) in the absence of regulations that protect privacy could also impact the elections. Could the personal biometric and other data that has been captured by the Huduma Namba be manipulated by electoral officials? Was electoral official Chris Msando’s murder prior to the 2017 elections linked to his knowledge of such a scheme?

We live in scary times. Information technology, which was once viewed as “the great leveler” that would deliver true democracy to the world’s people, is now being used to manipulate elections, subvert democracy, and promote authoritarianism.

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Politics

Dying for Justice: Who Killed Oscar Kingara and George Paul Oulu?

Cases of extrajudicial killings by police and other state security agents are commonplace in Kenya, where such murders often do not lead to prosecution or justice for the victims. ISAAC OTIDI AMUKE revisits the case of two prominent human rights defenders who were killed in 2009 in broad daylight on a Nairobi street.

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Dying for Justice: Who Killed Oscar Kingara and George Paul Oulu?
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Whenever one drives along Ring Road in Kilimani, and glances across the hedge of the Kileleshwa Police Station, where several vehicles are parked inside the compound, one is likely to spot an abandoned white Mercedes Benz E200, registration number KAJ 179Z, with a missing rear windshield, The last time the Mercedes Benz moved before it was towed to the police station was when it was forcefully shoved by enraged University of Nairobi students into the entrance of Hall 2, one of their hostels located adjacent to State House Road. Pushing the Mercedes Benz onto the sloped university terrain wasn’t difficult. It had stood stationary on State House Road, its occupants shot dead.

It was Thursday 5 March 2009 at about 6 p.m when Oscar Kamau Kingara, the Executive Director of the Oscar Foundation Free Legal Aid Clinic Kenya (OFFLACK), and George Paul Oulu, also known as GPO, his Communications and Advocacy Officer, were caught in evening Nairobi traffic on State House Road. One would expect to run into a little traffic at that hour and place. However, what the duo were unaware of, as narrated by a number of university students who witnessed what next transpired at close range, was that the gridlock was stage-managed.

‘‘A group of us were coming from lectures that evening,’’ Mathew (not his real name) told me. ‘‘Others were walking from the hostels towards town and the main library. The killers acted as if we were nonexistent. We saw everything.’’

A Mitsubishi Pajero drove out of a University of Nairobi gate, the one located right next to Hall 11 in front of one of the university’s clinics, pretending to be joining State House Road. It then stopped midway on the road once it had cut off the flow of traffic, its occupants staying put, as if unperturbed by the intentional inconvenience they were inflicting on the now slowly building up stream of vehicles coming down from the State House Girls School side. The Pajero rudely cutting off traffic was the first red flag for the students.

‘‘A group of us were coming from lectures that evening,’’ Mathew (not his real name) told me. ‘‘Others were walking from the hostels towards town and the main library. The killers acted as if we were nonexistent. We saw everything.’’

‘‘We saw the Pajero interrupting traffic, but didn’t think much of it,’’ said Andrew (not his real name) who was part of Mathew’s group from the lecture halls. ‘‘We imagined it was one of those big-car uncivil Nairobi drivers.’’

One of the vehicles the Pajero forced to stop was the Mercedes Benz. Kingara was its driver, Oulu the passenger. In under a generous estimate of three minutes of the students encountering the Pajero, the students heard a series of loud gunshots. By this time, they had walked into the Lower State House residential unit, which holds Halls 10, 11, 1 and 2. Knowing the frosty relationship between University of Nairobi students and the police, the gunshots instantly triggered anxiety among the students already settled inside their hostel rooms. They all started screaming from their windows, expecting the worst. Had the police shot one of their own?

Cutting the University of Nairobi’s main campus halls of residence right into two – Lower State House and Upper State House clusters of hostels – students from both sides of State House Road were now scrambling in their hundreds out of windows, confused and wanting to catch a piece of the action. Looking at the under 100 metre distance between the huge tree behind Hall 11 where the shooting took place and the little gate from where the Pajero had stalled, the students who had the best vantage point to witness everything were those looking out from the upper floors of Halls 11 and 9, the two male student hostels sandwiching the scene.

‘‘The gunshots were so loud, which made us suspect the shooting was happening within the university’s vicinity,’’ James (not his real name), a third year Bachelor of Arts Hall 9 resident told me. ‘‘It wasn’t difficult to locate the Mercedes Benz from my window on the second floor. It was the only vehicle with men hovering around it.’’

After the first gunshots, students with a quicker reflex directed their attention to the scene and caught sight of the two men dressed in similar suits finishing the job. Occupants of nearby vehicles didn’t dare step out, possibly paralysed by the display of impunity by the shooters who had the audacity to summarily execute the driver and his passenger in broad daylight right in the environs of the University of Nairobi, which is known for its protests.

‘‘After shooting the vehicle’s occupants,’’ James from Hall 9 went on, ‘‘the shooters in identical suits shot in the air before slowly strolling towards a minivan that was about three vehicles behind the Mercedes Benz. They got into it, and as it was turning around before driving away, my friends and I noticed its driver was wearing what resembled a police uniform. Our observation would later be corroborated by other students.’’

For a long time, whether having beers at Senses or standing in groups outside the library, the tens of student witnesses I have interviewed spoke about that Thursday evening in surgical detail, piecing together minute bits of information crowd sourced from whoever saw anything, eventually managing to reconstruct the scene.

‘‘We all saw different bits of whatever happened that evening,’’ a now thirty-something Mathew told me. ‘‘But when we pieced everything everyone saw together, which became the widely accepted narrative, our conclusion was that once the Pajero created a temporary traffic jam, the men in identical suits disembarked from the minivan with their guns. They then looked inside each of the vehicles ahead of the minivan, until they got to the Mercedes Benz. On identifying the two men as their targets, they summarily executed them.’’

‘‘I’ve been told by a Hall 9 student that the driver of the minivan was wearing a military fatigue jacket, the ones worn by the police. Did any witness you interacted with share the same view?’’ I asked Mathew.

‘‘I’ve heard the same thing before from third parties,’’ Mathew replied, ‘‘but I can’t confirm its veracity.’’

However, what the students didn’t need to reconstruct was what happened after Oulu and Kingara were shot.

‘‘Not too long after those in Halls 9 and Hall 11 watched the men in suits in action,’’ Mathew recollected, ‘‘those of us from the lecture halls ran to State House Road and surrounded the scene. We wanted to see who had been shot. That is when we heard another gunshot. As we dispersed temporarily, two men walked from the direction of the Pajero, wanting to access the Mercedes Benz, each holding a pistol. We watched them ransack the pockets of the two shot men before taking documents and a laptop from the back seat.’’

‘‘Can you identify the men if you saw them or their photos?’’ I asked Mathew.

‘‘I don’t want to answer that,’’ Mathew said. ‘‘I don’t like the idea of killers thinking I can recognise them.’’

According to Mathew, the men from the Pajero were in no hurry. Going by that evening’s series of events, the students arrived at an inescapable conclusion: the killers were policemen. No other logical conclusion could explain such a display of meticulous organisation and absolute impunity – the Pajero cutting off traffic, the men in suits shooting the Mercedes Benz occupants, and finally the men from the Pajero taking their time at the scene as if crossing the T’s and dotting the I’s.

It was when the two men were milling around the scene of the killing that the group of students tried to engage them in small talk.

‘‘Mbona humuwabebi?’’ a student asked as the men left the scene. Why aren’t you taking away the bodies?

‘‘Wengine watakujia,’’ one of the men casually replied, unruffled. Others will come to clear the scene up.

After the men in the Pajero left, the students realised that Oulu was still breathing. Unlike Kingara, whose death best illustrates the term summary execution (he was shot at least three times in the head, possibly in quick succession, and his body remained in an almost upright position in the driver’s seat) Oulu had used his left hand to block a bullet, which went through his wrist and through his head. Seeing that the university sanatorium was less than 100 metres from the scene, daring students removed Oulu’s body from the vehicle, but before they could move beyond 20 metres, they noticed he had stopped breathing.

Just before nightfall, a few senior students managed to positively identify Oulu. He had been a celebrated Vice Chairman of the Students Organisation of Nairobi University (SONU). On leading a protest in 2004 against tuition fee increment, he had received a 1,000-day or three academic year suspension. He came back to the university in 2007 to complete his degree course in Mathematics and Economics. He hadn’t graduated by the time he was shot in March 2009.

The students’ original police-and-robbers theory was disproved. One of the victims was, in fact one, of their own, as was initially feared when they first heard gunshots. Knowing the University of Nairobi students’ modus operandi, State House Road was immediately shut at the first sign of protest. News had to get to the president, who lived barely 500 metres away.

It was under these circumstances that the students shoved the Mercedes Benz into Hall 2. Thereafter, Kingara’s bled-out body was hidden under a staircase. Wanting to forcefully retrieve the body, anti-riot police engaged in an overnight battle with students. In the process, a first-year student, Edwin Gesairo, was shot dead.

‘‘I am the one who hid Kingara’s body,’’ a former student told me. ‘‘We were going for an all-out war.’’

But, some still ask, were the students even half right in their prima facie police-and-hardcore-wanted-criminals hypothesis? Who were Kingara and Oulu, and what had they been doing that might have led to their violent and bloody death?

***

The answer came in agenda item three during the May 2009 11th session of the United Nations Human Rights council in Geneva. In an addendum to his presentation, Prof. Philip Alston, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions, confirmed that Oulu and Kingara were among members of civil society with whom he had met during his February 2009 visit to Kenya to investigate rampant extrajudicial killings by death squads within the security system and the police. In affirming the student’s suspicion that the killing of Oulu and Kingara was premeditated assassination, Alston stated:

‘‘Moreover, we urge your Excellency’s Government to expeditiously carry out an independent investigation into the killing of Oscar Kamau Kingara and George Paul Oulu. While we do not in any way prejudge the question of the responsibility for this assassination, it is inevitable under the circumstances that suspicion should fall upon the Kenya Police.’’

However, if one were to argue that the police per se weren’t involved in the assassination or shouldn’t be the primary target of investigations, as alluded to by the Special Rapporteur’s statement, then the outlined mandate within which Prof. Alston was basing his request carried a more comprehensive scope of what was meant by his suspicion of the state’s complicity. He was asking for an investigation into:

‘‘Deaths due to the attacks or killings by security forces of the State, or by paramilitary groups, death squads, or other private forces cooperating with or tolerated by the State; death threats and fear of imminent extrajudicial executions by State officials.’’

There was no doubt that Kingara and Oulu had made enemies in high places. But did they, eighty-four days before their slaying, sign their own death warrants?

On New Year’s Day 2009, the Oscar Foundation wrote a letter to the Office of the Chief Prosecutor at the International Criminal Court (ICC) at The Hague, calling for investigations into suspected state-sponsored extrajudicial killings targeting alleged members of Mungiki – the predominantly Kikuyu cultural and sometimes spiritual grouping, which from time to time ventured into the political sphere, and which was in other instances accused of criminality. Mungiki was accused of enforcing a parallel taxation regime in the public transport sector in Nairobi and Central Kenya, and of running a shakedown racket in informal settlements in Nairobi, where it demanded payment in exchange for protection of businesses.

‘‘I am the one who hid Kingara’s body,’’ a former student told me. ‘‘We were going for an all-out war.’’

Fashioned as Mau Mau reincarnate, Mungiki swept through Central Kenya in an unprecedented manner, a form of peasant uprising against the moneyed and ruling Kikuyu elite, which at the time controlled the levers of state power. The group was condemned as being some sort of loose-cannon ragtag militia prone to extortionist tendencies, a ready gun for hire for politicians, sometimes including suspected state actors. It was therefore a messy, complicated affair, where it now appeared its leadership and membership – who knew too much and became unruly according to the powers that be – had become a liability to the political and security establishments. The extrajudicial killings of Mungiki members came after its members were suspected to have been deeply involved in revenge attacks during the 2007/2008 post-election violence, hence resulting in extrajudicial and enforced disappearances of some within its ranks. It was therefore anyone’s guess as to who had authorised the mopping up of Mungiki.

On New Year’s Day 2009, the Oscar Foundation wrote a letter to the Office of the Chief Prosecutor at the International Criminal Court (ICC) at The Hague, calling for investigations into suspected state-sponsored extrajudicial killings targeting alleged members of Mungiki…

The Oscar Foundation’s audacious request to the Office of the Chief Prosecutor at the ICC was for warrants to be immediately issued against the President of the Republic of Kenya, Mwai Kibaki, the Minister of Interior, Prof. George Saitoti and his outspoken predecessor John Michuki, and the Commissioner of Police, Maj. Gen. Hussein Ali, alongside his subordinates who were allegedly directly linked to extrajudicial killings and enforced disappearances in Kenya.

The timing of the letter couldn’t have been worse. In January 2009, the Kenyan political establishment was jittery. There were rumours of probable indictments of prominent Kenyans by the ICC, with elements within Mungiki being perceived as likely corroborators in sections of the prosecution’s evidence, which could be used against leading political players implicated in the violence following the 2007/2008 post-election violence – violence where over 1,200 lives were lost and over half a million citizens got displaced in under two weeks. The Oscar Foundation request to ICC’s Chief Prosecutor, Luis Moreno Ocampo, asking him to direct his investigative torch towards Kenya, seemed like an affront to the political establishment.

This letter was followed by Kingara’s and Oulu’s presentation of evidence on extrajudicial killings in February 2009 to the UN’s Prof. Philip Alston in a public event at the United Nations Office in Gigiri, Nairobi. Feathers were surely ruffled.

***

The Oscar Foundation wasn’t a huge organisation. Run from a small but tastefully furnished rented office in China Centre on Nairobi’s Ngong Road, the organisation’s operations were pretty specific – to document cases of extrajudicial killings and enforced disappearances, and to offer free legal aid to families of victims of the same. The partitioned office had two sections, the first one filled with thousands of files neatly arranged in a series of wall-to-wall cabinets surrounding an open plan office for paralegals. The second partition was where Oulu and Kingara operated. It was a lean, mean team causing the state considerable discomfort.

However, the dark cloud hanging over the Oscar Foundation was that it was a cover for Mungiki. On the morning of 5 March 2009, the day Oulu and Kingara were killed, the Government of Kenya’s spokesman, Dr. Alfred Mutua, issued a scathing attack on the organisation, repeating allegations that it was a conduit through which Mungiki received foreign aid and laundered money. In a move which would later come back to haunt the state, Dr. Mutua issued a not-so-veiled threat against the organisation, promising that the state would act firmly on Mungiki and its sympathisers. Less than 12 hours later, Oulu and Kingara were dead.

***

Within civil society, there were murmurs that a plausible trigger for the assassination of Oulu and Kingara was the abrasive nature of their approach to activism. For instance, on the day of their shooting, the duo had paralysed public transport on major routes in Nairobi. They worked with matatu touts and drivers who went on a go-slow in solidarity with the families of those within their ranks who had been killed on suspicion of being members of Mungiki. It wasn’t the first time the Oscar Foundation had coordinated such a protest.

‘‘Kingara owned this huge roadshow truck on which he displayed life-size images of the president and a number of cabinet ministers, all of whom the accompanying texts were effectively calling murderers,’’ a civil society executive who wished to remain unnamed told me in Nairobi. ‘‘That was extremely audacious.’’

Was the Oscar Foundation a cover for Mungiki, or was it that since the majority of its clients (families and friends of those suspected of having been summarily executed by the state) were members of Mungiki, therefore the organisation and those it served were conflated into one? This will remain a matter of conjecture, since the Kenyan state has never released evidence to prove the claim. That the state declined a formal offer by the United States Ambassador to Kenya to have the FBI join in on the investigations into the assassination of Oulu and Kingara – among other pointers towards possible complicity – continues to fuel the theory that very highly placed elements within government had something to do with the killing of the two human rights activists.

To date, the assassination of Oulu and Kingara remains unresolved.

***

The killing of Oulu and Kingara shook the Kenyan human rights fraternity to the core. It was no longer a question of human rights defenders receiving empty threats; death by execution was officially on the cards.

‘‘The most profound case I have ever encountered in the defence of human rights defenders has to be the assassination of Kingara and Oulu,’’ Sam Mohochi, a lawyer and human rights defender who at the time of the killings was the Executive Director of the Independent Medico-Legal Unit (IMLU), told me. ‘‘I made a deliberate attempt to escalate the matter legally, but one of the families kindly requested that we shouldn’t.’’

IMLU had been one of the few lone voices in the wilderness speaking against extrajudicial killings, which were backed by its numerous autopsy reports. In what may appear to be as a stroke of genius, IMLU combined medicine and the law, somehow playing the role of Kenya’s non-existent coroner at a time when doing such wasn’t mainstreamed.

The killing of Oulu and Kingara shook the Kenyan human rights fraternity to the core. It was no longer a question of human rights defenders receiving empty threats; death by execution was officially on the cards.

As Executive Director, Mohochi found himself having to stick his head out several times. He recalls that in December 2008, on the sidelines of the United Nations Human Rights Council meeting in Geneva, he met Prof. Philip Alston and his assistant Sarah – now a professor in New York – who told him that finally, the Kenyan government had agreed for the Special Rapporteur to pay Kenya an official visit. Prof. Alston was therefore asking for support. When Mohochi got back to Kenya, he started readying things.

‘‘I told them they can do their preparations,’’ Mohochi told me, ‘‘and that on our end, we would provide them with suggestions on which organisations they should consult, and plan for which victim groups they would meet. The fact that Alston was having meetings at the Kenya National Commission on Human Rights or using church facilities whenever he went outside Nairobi, were all very deliberate choices from our end, much as we weren’t part of his mission. The only thing I did was to invite Alston’s interlocutors, including Kingara.’’

According to Mohochi, he hadn’t agreed with Kingara, especially on the claim by the Oscar Foundation that over 8,000 individuals were victims of either enforced disappearances or extrajudicial killings by the police, since the only evidence backing up that claim were names and photos, and there was no way of ascertaining whether those were over 8,000 unique names and images. In a word, the data wasn’t solidly verifiable.

‘‘I didn’t agree with Kingara’s modus operandi for arriving at those very high figures,’’ Mohochi said. ‘‘That notwithstanding, I invited him to speak to Prof. Alston because in this struggle, all contributions are valid.’’

During Prof. Alston’s first closed-door meeting with the Kenyan civil society at Hotel Intercontinental, Oulu and Kingara arrived early to erect three Oscar Foundation drop-top banners. No one else had brought any publicity or similar material. When Prof. Alston walked into the room, he asked Mohochi what the banners were.

‘‘I called Oulu and asked him to kindly put the banners away,’’ Mohochi said. ‘‘At that moment, we noticed the presence of two suspicious characters in the room. When asked who they were by Muthoni Wanyeki of the Kenya Human Rights Commission, they couldn’t explain themselves properly. I told them I was the one who had sent out the invitations, meaning I hadn’t sent them any, and asked them to kindly leave.’’

In subsequent days, Oulu and Kingara had the opportunity to present their evidence on extrajudicial killings and enforced disappearances to Prof Alston. The next time Mohochi saw them was at the United Nations Office in Nairobi on the day Prof. Alston released his damning report, which labelled Attorney General Amos Wako as the embodiment of impunity and which demanded the resignation of Commissioner of Police Maj. Gen. Hussein Ali. In Prof. Alston’s eyes, it appeared, extrajudicial killings in Kenya needed urgent mitigation.

Even to Mohochi, who had played a leading role during Prof. Alston’s visit, the final report was shocking.

‘‘I hadn’t had a look at the report,’’ Mohochi said. ‘‘I was part of the crowd just like everyone else. If you consider Alston’s career as a rapporteur, he had never gone that far. That report was quite undiplomatic, partly because there had been attempts of state interference on his investigations in places like Bungoma.’’

A fortnight after the report came out, Oulu and Kingara were assassinated.

Did Alston’s report contribute to their deaths, or were there more complicated reasons behind their killing?

***

During the subsequent sitting of the United Nations Human Rights Council in May 2009 in Geneva, barely two months after the assassination of Oulu and Kingara, the Government of Kenya sent two high-powered delegations to Switzerland. One was led by the Minister of Interior, Prof. George Saitoti, while the second was led by the Minister of Lands, Senior Counsel James Orengo. There were certainly jitters in Nairobi.

Attending a discussion at which Prof. Alston, Mohochi and the Kenya National Commission on Human Rights (KNCHR)’s chairperson, Florence Simbiri-Jaoko, were panelists, Mutea Iringo, the Principal Secretary in the Ministry of Interior, asked to be provided with specifics on the threats faced by human rights defenders so that the government could intervene. It was farcical, given that not too long before, Oulu and Kingara had been killed in death squad style. Mohochi decided to play along, giving two death threats against him as an example.

‘‘I couldn’t risk giving details about anyone else’s death threats,’’ Mohochi said, ‘‘and so I volunteered my own two death threats, going as far as giving the Occurrence Book (OB) Number under which I reported them at Parklands Police Station. To date, neither Mr. Iringo nor Parklands Police have ever contacted me about the same.’’

***

It was under these tension-filled circumstances that organisations such as Mohochi’s IMLU, the Kenya Human Rights Commission (KHRC), the Release Political Prisoners (RPP) pressure group, among others, upped the ante in the protection of human rights defenders. They had already operationalised the National Coalition of Human Rights Defenders (NCHRD) back in 2007 – a clear sign that threats to activists didn’t start with the killing of Oulu and Kingara – which was hosted at different times by either IMLU, KHRC or RPP. It wasn’t until 2012 that NCHRD established a fully functional secretariat from where it solidified its programmes and countrywide protection networks, with Mohochi as founding chairman of its board of trustees.

‘‘We were already protecting human rights defenders starting from as early as 2001,’’ Mohochi told me, ‘‘not just as IMLU but as a broader coalition of actors. We were meeting at the Kenya Human Rights Commission, and had a budget for this. It’s not that we woke up in 2007. That’s only when we formalised the NCHRD to proactively put in place further mitigation measures for human rights defenders to do their work without fear of recrimination. Defenders were always alive to the sorts of risks their work attracted.’’

‘‘It was in the early 90s when we started having conversations about who defends the defenders,’’ Salome Nduta, a protection officer at NCHRD, told me at their near-clandestine Nairobi nerve center. ‘‘Before a functioning protection network was in place, activists had to be each other’s keepers, in the literal sense.’’

To date, the NCHRD has taken up hundreds of protection cases from across Kenya while doing what every responsive organisation in its shoes would ordinarily do – to continue disrupting itself and adopting fresh strategies as new threats emerge. From the word go, the difficult question has been – and not only for the NCHRD: How does one ascertain what comprehensive protection entails? With time, the scope of what it means to offer protection has kept expanding, as new, more complicated cases have landed at the NCHRD.

The broad strokes with which protection has been painted include offering legal, medical and psychosocial support, and in extreme cases, relocation. The practicalities of these range from bailing out activists during protests, to offering them advocates for those charged in courts of law, paying their medical bills and offering counselling, all meant to cushion human rights defenders, especially those in the frontlines at the grassroots.

‘‘Since our inception, protection has evolved,’’ Salome told me. ‘‘Now we have situations where an activist gets killed, and the idea of protection means you may now have to intervene and support their families for a time in whatever way possible, since a lot of times the deceased happens to be the sole breadwinner.’’

These sorts of interventions can be difficult, since organisations such as the NCHRD almost always have budgetary constraints. The idea that anyone can knock on their doors anytime and seek assistance has similarly created the impression that the organisation is swimming in wads of cash, something Salome tells me is far from the truth. Interestingly, the largest chunk of their budget goes into offering legal support.

‘‘I cannot quantify the amount of money we’ve spent on paying for bail and bond so far,’’ Salome says. ‘‘A lot of times our legal kitty runs dry sooner than expected. The arrest and harassment of activists doesn’t stop, while the ongoing cases take forever. This means ours is a continuous, long game of legal support.’’

According to Mohochi, the evolution of the concept of protection cannot happen without local context.

‘‘I have always maintained that we can’t blindly copy Westernised ideas of protection without factoring in our circumstances,’’ he says. ‘‘Something like temporary relocation. You can imagine how many people one might need to relocate, but then after they come back what next? I therefore believe in a proactive approach to protection, where we built a nationwide grassroots network of defenders who continuously assess their risk levels and act to mitigate threats before things escalate. We encourage them not to take suicidal risks.’’

Yet no matter how fool-proof protection programmes got, and despite the numerous cautionary measures human rights defenders employed at a personal level, there were no guarantees that more soldiers of justice wouldn’t lose their lives in the line of duty.

***

On 27 June 2016, Kenya woke up to a strongly trending social media hashtag #FindLawyerWilly. Willy Kimani, an advocate working for International Justice Mission (IJM), had gone missing four days earlier. Missing alongside Willie were his client, Josephat Mwenda – a bodaboda rider and victim of a supposed accidental shot in the arm by Senior Sergeant Fredrick Leliman – and Joseph Muiruri, their taxi driver. They had last been seen thirty odd kilometers from Nairobi, at the Mavoko Law Courts where Mwenda had sued Senior Sergeant Leliman.

‘‘There was a sense that IJM didn’t want to make a lot of noise publicly about the matter,’’ a lawyer who was involved in the early stages of the investigation, but who sought anonymity, told me. ‘‘They believed the police would speed up investigations, possibly because they had received assurances from senior state officials, or out of high-level interventions by the U.S. embassy, seeing that IJM is an American charity.’’

Yet no matter how fool-proof protection programmes got, and despite the numerous cautionary measures human rights defenders employed at a personal level, there were no guarantees that more soldiers of justice wouldn’t lose their lives in the line of duty.

Soon, the Law Society of Kenya, of which Willy was a member, the U.S. embassy in Nairobi, representing Willy’s employer, hundreds of taxi drivers and bodaboda riders standing in for Mwenda and Muiruri, were all up in arms, unrelenting in their demand for justice. The state quickly complied and moved to investigate.

Four days later, Willy’s, Mwenda’s and Muiruri’s dead bodies were discovered in Ol-Donyo Sabuk River. All were stuffed in the kind of gunny sacks usually used to package agricultural produce. The autopsy revealed that the trio had been clobbered on their heads by a blunt object before being strangled. The killers had hit Willy the hardest; his skull had the severest fracture. Mwenda appeared to have been physically tortured the most, as if someone sought a confession from him. Muiruri, the taxi driver, seemed to have been collateral damage, a case of being in the wrong place at the wrong time.

The game-changer in the Willy, Mwenda and Muiruri case arose from a most unlikely quarter. Peter Ngugi Kamau, a police informant whom preliminary investigations had placed inside the murder syndicate, unleashed a 21-page confession, detailing how the three men were abducted after leaving Mavoko Law Courts before being driven away in the vehicle of Senior Sergeant Leliman, the man accused of shooting Mwenda. Leliman was in charge of the Syokimau AP Camp, which is where he held the abductees in a cell. According to the confession, Willy, Mwenda and Muiruri were later driven to an open field where they were killed one after the other before their bodies were disposed. Other suspects in the murders were Sergeant Leonard Maina Mwangi, Corporal Stephen Chebulet and Constable Silvia Wanjiku Wanjohi. Their dramatic trial is still ongoing.

Questions have been asked as to why the police moved swiftly in the matter. Was it the Americans, or was it because the decision to kill was made by junior officers, or both? Does the level at which a decision to kill is made affect the nature and speed of investigations? For now, hope abounds that justice will be served.

‘‘My sense was that the police officers who committed the murders considered Willy a disposable small fish,’’ the lawyer told me, ‘‘thinking that they could kill him and his colleagues and that no one would raise a finger. They were mistaken. Lawyers and other human rights defenders saw the deaths as a wake-up call.’’

The next big hashtag campaign a couple of years later resulted in serious contestation. On 10 February 2019, #FindCarolineMwatha was the big fuss online. A founding member of the Dandora Social Justice Centre, Caroline Mwatha had disappeared four days earlier. Described by Wangui Kimari of the Mathare Social Justice Centre as one of the kindest and most likable individuals she had ever met, Mwatha and her colleagues had received a series of death threats for their work documenting extrajudicial killings in Dandora, considered one of Nairobi’s hotspots.

‘‘They shared with me the threats they had received,’’ Wangui told me, ‘‘after which I wrote emails to a number of organisations seeking support. Seeing that it was December 2018 and organisations were preparing to break for the holidays, there is a real possibility that some of those pleas went unheeded, or those concerned planned to act in the New Year. We evacuated a few individuals, with the majority retreating to their home villages.’’

A hardcore grassroots organiser, Mwatha was part of a ground-up human rights movement, where instead of waiting to write and release reports in air-conditioned offices, they operated at the very front lines, shielding disadvantaged communities from rampant police brutality. In her Dandora locale, Mwatha and her colleagues were investigating a number of extrajudicial killings, especially of young men killed in cold blood on the pretext of fighting crime. It was because of this work that trigger-happy policemen were slowing down.

‘‘It isn’t uncommon for well-known killer cops to issue public death threats to those working at social justice centres,’’ Wangui told me. ‘‘In Mathare, some of our colleagues can’t go to places such as Mlango Kubwa because the reigning killer cops in those areas have given them direct warnings. It isn’t child’s play.’’

After the hashtag trended for a few days, on February 11, activists met and decided to hold a protest the following day to put pressure on the state to either produce Mwatha, or give a progress report on their investigations, if any. The protest never materialised. That morning, news broke that Mwatha’s body was found at the City Mortuary. According to subsequent investigations, the police alleged that Mwatha had been brought to the facility after dying from bleeding at a clinic in Dandora, where she was procuring an abortion.

Through a series of media leaks, the police alleged that from their analysis of her phone records, Mwatha was having an extramarital affair which resulted in an unwanted pregnancy, hence the abortion. In what was alleged to be Mwatha’s last communication with the man believed to be her secret lover – once again leaked to the press – the messages revealed a woman in distress.

Was someone concocting a predetermined narrative with the calculated media leaks?

‘‘We have never believed the abortion theory,’’ one of Mwatha’s colleagues who has since withdrawn from human rights work told me. ‘‘She was a powerhouse in Dandora and silencing her has had a chilling effect on everyone here. We have been asking ourselves, if they could kill Caroline, then who can’t they kill?’’

The autopsy, which was witnessed by leading members of civil society, revealed that Mwatha bled to death courtesy of a raptured uterus. However, the looming question the pathologist left for investigators was: Did Mwatha procure the botched abortion voluntarily, or was it done to her against her will – for her to bleed to death and for the abortion narrative to be used as a cover-up for murder? In the world of activism, it is common for perpetrators to employ such seemingly picture-perfect techniques in eliminating a target. It has been hard to convince Mwatha’s colleagues of the abortion theory. To them, it remains an assassination.

For now, human rights defenders keep watching their backs, hoping they won’t become a hashtag. A few others whose names couldn’t trend fell through the fissures of social media, slipping away quietly.

A criminal human rights reporting project by Africa Uncensored (AU) and the Institute of War and Peace Reporting (IWPR)

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