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FOLLOW THE MONEY: How To Make Dirty Cash Clean Without Omo

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Financial Flows
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Nairobi, Kenya – LOOK TO WINDWARD TRADING, WHO LOOTED HALF A BILLION

Two events of momentous proportions took place in Kenya since the beginning of this year.

On January 30, sons of the slain drug lord Ibrahim Akasha, Baktash Akasha and Ibrahim Akasha, Indian drug suspect Vijaygiri Goswami and Gulam Hussien, a Pakistan, were extradited to the US to face charges of drug trafficking. Since 2014, the Akashas had been fighting not to be deported to the US.

In March 2015, the four were arrested with 98 packets of suspected heroin. The US then issued an Interpol “red notice” for their capture and request for extradition. The Manhattan District Attorney said of the quartet when they arrived in New York: “Kenya drug trafficking organization with global ambitions”.

On March 3, 2017, a meeting quietly took place at the Treasury Building in Nairobi between National Treasury Permanent Secretary Kamau Thugge and Senator Ian Gorst from Jersey Island. The two officials representing their respective countries were concluding an agreement that finally returned money that had been stashed in the tax haven island.

Jersey had just returned Ksh380 million ($3.8 million), part of Ksh500 million ($5 million) that had been stolen by two senior Kenyan state bureaucrats in 2011 and hidden in the island’s banks, known for their secrecy and lax tax laws.

A former chairman of the rich and influential parastatal, Kenya Power and Lighting Company (KLPC), Samuel Gichuru and a former minister of energy, Chris Okemo, had conspired to loot public money, which they then expatriated to the tax haven. As is normal with such conspiratorial and illicit transactions, Gichuru formed a ‘phantom’ company, Windward Trading Ltd, that was then used to siphon out the Ksh500 million.

In June 2011, Jersey’s Attorney General requested the extradition of the two, and the United Kingdom, under whose jurisdiction the island falls, issued an arrest warrant. In February 2016, the Royal Court of Jersey finally confiscated the stashed money after the company pleaded guilty to four charges of laundering corrupt money.

Even though the money has been repatriated, the extradition case is still going on and the remaining Ksh120 million was retained to cover transactional charges incurred by the Jersey government.

In a country like Kenya, where state corruption is rife, money stolen from the public coffers by powerful civil servants and those close to power, invariably ends up stashed in foreign offshore accounts

The case illustrates how illicitly acquired money is hidden, transferred and invested in foreign banks through a labyrinthine maze of electronic transfers. Identical mechanisms, including dummy companies, are also used by companies and individuals to hide income from tax authorities in the countries where it is earned and to transfer it to low-tax jurisdictions. Through such illicit financial flows (IFFs), Africa loses, according to the Tax Justice Network-Africa, the equivalent of $10 for every $1 it receives in aid.

In 2016, the Panama Papers, the world’s biggest data leak, provided a glimpse into the scale of the problem. Briefly, the Panama Papers refer to 11.5 million data files leaked from the Panama-based law firm, Mossack Fonseca, the world’s fourth largest offshore law firm. The leak named individuals who included presidents, influential politicians, powerful bureaucrats and companies that use the law firm as a registering agent to channel their — oftentimes illegally acquired — money to jurisdictions with secretive and lenient tax laws. The files traced 191 individuals and 25 companies to Kenya.

“IFF is a generic term,” says Jared Maranga of Tax Justice Network-Africa (TJN-A), a pan- Africa research and advocacy organisation based in Nairobi. Maranga is an investments and tax policy expert. He says the terminology depends on the form and nature of how the money is being moved. ‘Generally speaking, there are three ways in which IFFs are facilitated: through state corruption, bilateral and multilateral treaties and tax incentives.’

The Washington DC research and advocacy group Global Financial Integrity defines IFFs as illegal movements of money or capital from one country to another. This movement of money is what is classified as ‘illicit flow’ — especially when the money is illegally earned, transferred, or used.

The advocacy group says IFFs originate from three main sources: commercial engagements — through tax evasion, inflating and manipulation of prices of goods; criminal activities such as drug and human trafficking, illegal arms trade and smuggling of contraband; and corruption by influential and powerful state officials.

Importers whose aim is to dodge paying tax use underhand tactics such as inflating the price of goods to evade or undercut Custom duties, VAT or income tax. Crime syndicates launder their illicit profits by mixing them with legal money earned from legitimate business such as buying and selling of used cars, for example. Bureaucrats create fake companies to transfer dirty or stolen money to a bank account in a foreign country. Huge sums of cash are also ferried across the border by human traffickers with the aim of depositing the money in a foreign country.

In a country like Kenya, where state corruption is rife, money stolen from the public coffers by powerful civil servants and those close to power, invariably ends up stashed in foreign offshore accounts. As a way of ‘cleaning’ it, the cash is used to buy real estate in developed countries in Europe and the Americas or invested in legitimate businesses through buying shares in multinational companies. In 2004, a report by report by the international risk consultancy Kroll commissioned by the Mwai Kibaki administration identified over Ksh130 billion ($1.3 billion) that relatives and associates of former President Daniel arap Moi had hidden in nearly 30 countries using a web of shell companies, secret trusts and frontmen.

IFFs have also provided drug barons with devious ways of moving their money without being detected. If the drugs trade itself is a dangerous and risky business, laundering the proceeds, which run into billions of shillings, is even a riskier undertaking.

In Kenya, drug lords have over time used both traditional and innovative means to hide and move their cash without attracting undue attention. And in situations where they cannot avoid detection, they have employed the time-tested methods of arm-twisting, bribery and coercion.

ALL THE MAJOR BANKS HAVE BEEN INVOLVED IN HIDING DRUGS MONEY

According to a 2009 report by the Financial Transactions and Reports Analysis Centre of Canada, drug traffickers launder approximately $100 million per year through the Kenyan financial system. ‘I’ll tell you this as a matter of fact,’ says Anselm Mbogo, a retired forensic auditor and banking fraud investigator, who in the course of a three-decade career worked in nearly every big local and international bank in Kenya. ‘All the major banks in Kenya have at one time or the other been involved in hiding or moving drugs money.’ Today, as a forensic consultant, his clients include some of his former employers. ‘The banks are still susceptible to money laundering by the drug lords,’ he says. ‘[That’s] basically because the drug barons have perfected the art of circumventing the 2012 Central Bank of Kenya (CBK) laws on money laundering and because bankers, just like any other human beings. are vulnerable to bribery and corruption.’

In a move to curb money laundering the CBK decreed that no more than $10,000 (Ksh1 million) could be deposited in a single transaction. It also developed regulations requiring banks to know their customers and their customers’ sources of funds, and to report any suspicious transactions.

Drug barons are attracted to heavy cash retail businesses, which move money on a daily basis. Retail businesses such as supermarket chains, matatus, pubs, are easy targets for cleaning illegal money because customers pay in cash

Laundering by banking officials is neither new nor is it about to end. ‘Four years ago, HSBC, a banking institution based in London, got into big trouble after it was found to have facilitated drugs money from Mexico,’ says Mbogo. HSBC bank was accused by the US federal banking authority of clearing suspicious travellers’ cheques worth of billions of dollars.

A DYNAMIC THREE-STAGE PROCESS

Money-laundering is a dynamic three-stage process. The three stages are usually referred to as placement, layering and integration. Placement involves introducing the dirty cash into the financial system, perhaps mingling it with ‘clean’ funds to create an aura of legitimacy. Layering involves attempts to distance the money from its illegal source through layers of financial transactions. Integration makes the money available to the criminal as proceeds of legitimate commerce such as purchase of shares in business or investment in luxury goods and real estate.

Because illicit money generated from the drug business has to be infused into the financial system, it involves an intricate web of people and movement to ensure no paper trail is left behind. First, the money is ‘broken up’ into different amounts, even in different currencies, then moved around different accounts, to effectively obscure the audit trail. Once this is successfully done, the owner can access his clean money.

‘A couple of years ago. if you recall, a new entrant into Nairobi politics, inadvertently boasted that he ran 200 bank accounts,’ says Mbogo. ‘Just ask yourself, why would a person need 200 accounts, never mind the only business he was known to be engaged in was running some matatus in the city?’

According to Mbogo’s banking fraud investigations in Kenya, secondhand car bazaars and real estate construction businesses are the closest we have to drug money being laundered. ‘Let’s put it this way, drug barons are attracted to heavy cash retail businesses, that move money on a daily basis,’ says Mbogo. ‘Retail businesses such as supermarket chains, investing in the running of matatus, running a pub business, are easy targets for cleaning illegal money because customers pay in cash; hence it is easy to create fake transactions and receipts, which are reported as business sales when depositing cash on a daily basis.’

A big time building materials hardware company does not have to receive “illegal” money directly from a drug baron. All it needs to do is ask the property developer, in this case the money launderer, to deposit the money into a certain account

Big time supermarkets chains deliver huge volumes of cash, sometimes 4-5 time a day to banks. ‘The banks, in all fairness, cannot suspect that some of this money could be from illicit drug profiteering. On a good day, the biggest supermarket chain in Kenya deposits anything between Ksh30 million and Ksh50 million,’ says Mbogo. ‘The same applies to the matatu industry and bar owners. They deposit money on a daily basis, oftentimes 2 to 3 times depending on the briskness of the business.’

Eliud Njoroge, one of the few hedge fund managers in the country, says supermarket stocks are a good investment for drug kingpins. ‘They will identify a popular and fast growing supermarket chain and buy into it by way of stocks, which are in hundreds of millions of shillings. The yearly dividends that accrue, will be clean money, never mind the dirty money that was injected into the business through buying its shares.’

The forensic auditor avers that the proliferation of car bazaars in Nairobi coincided with the increased drug trade in this part of the world, when the Indian Ocean littoral was identified as an important ‘unmanned’ route. In the secondhand car businesses, you can claim to be banking money every day from fake car sales. With the setting up of a legitimate motor car business as a front company, the drug money is infused into the financial system legally through the opening of multiple accounts that handle money accrued from sales.

The other popular way that illicit drug money has been injected into the financial system is through the property development projects. ‘Just like the proliferation of secondhand car marts, it is also not a coincidence that the boom in the real estate industry has taken place in the past couple of years,’ observes Mbogo.

Like a supermarket, real estate development is a heavy cash business that involves employing casual labourers who are paid daily, or sometimes weekly. It also involves the buying and hiring of expensive heavy machinery (not on a daily business though), and building materials on a daily basis. ‘The construction business is favoured by drug barons because it facilitates what we call trading in goods,’ says the forensic auditor.

‘A big time building materials hardware company does not have to receive “illegal” money directly from a drug baron. All it needs to do is ask the property developer, in this case the money launderer, to deposit the money into a certain account. Once that is done, he can then go to the hardware shop and be given all the materials he has paid for. There is no money exchange, but there is value for money, which leaves no paper trail.’

The introduction of mobile money 10 years ago was a blessing to the drug barons, says Mbogo. The barons today have maximised the use of M-Pesa, Safaricom’s mobile money transfer innovation that mainly targeted Kenyans who did not have banking facilitates. There are 60,000 plus M-Pesa agents countrywide, as opposed to 840 bank branches in the country.

Today, a simple e-mail sent from Swindon, southeast London by a Kenyan living in the UK, to a fellow Kenyan in Nairobi can facilitate the moving of millions of shillings without actual movement of the money itself

‘Just like trading in goods to exchange value for cash, customers who use M-Pesa exchange cash for virtual value that goes into their phone. This allows them to buy goods, transfer money and even receive credit. Drug barons nowadays are moving huge amounts of money through M-Pesa in multiple credit lines, which allows them to even withdraw the money in another country. ‘Mobile transactions are made through text messages and therefore are difficult to trace,’ says Mbogo.

Safaricom, the company that runs the M-Pesa banking facility, recently said since 2016, Kenyans have been moving on average Ksh16 billion ($160 million) a day. The maximum amount one can transfer in a single transaction is Ksh140,000 ($1,400). ‘Let’s assume a drug lord operates or has access to upward of 10 mobile phone lines. He is capable of moving Ksh140,000 in all these credit lines, every day, every week, every month, several times over. In a year, he will have moved a humungous amount of money, running into hundreds of millions of shillings, without raising an eyebrow from the concerned authorities,’ explains Mbogo.

AND THERE’S ALWAYS BEEN HAWALA

One of the oldest forms of sending and transferring money without moving the money itself, Hawala, an Indian concept used in many centuries, is still as attractive to drug barons as it is to people who either do not have bank accounts or want to avoid the banking system altogether. ‘Today, a simple e-mail sent from Swindon, southeast London by a Kenyan living in the UK, to a fellow Kenyan in Nairobi can facilitate the moving of millions of shillings without actual movement of the money itself.’ Mbogo says he once traced an e-mail correspondence between the UK and Nairobi’s River Road that talked of money transfer. ‘The system works on trust, there is no paper work, the e-mail is written in coded language, you’d have to be knowledgeable in the language to know what’s being talked about.’

The really bold drug barons will set up their own banks to avoid all the hassle of bribing the numerous people from the police to banking officials; dodging the tedious procedures and the obvious scrutiny from government bureaucrats. ‘In this county, we have had such banks, some OF whose operations have been suspended, but I can tell you as night follows day, the banks are still very much in operation,’ says Mbogo.

 


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Mr Kahura is a senior writer for The Elephant.

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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”.

A referendum implicitly denounces those who are on the opposite side as enemies, and this extremism can lead to violence. A referendum does not allow us to walk the sensible middle of the road, or achieve compromise needed over complex social challenges, because it simplifies complex issues into sound bites. Referendums hinder a thorough and factual debate over issues. Our leaders claim to want referendums for the purpose of gauging public opinion, while in reality, what they really want is to make 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.

Referendums generally tend to inhibit us from carrying out an independent evaluation of issues. They are likely to deny us opportunities to listen to experts who would give a general assessment of national interest and enable us to balance multiple perspectives. Further, a referendum will obstruct compromise, especially because it will produce a result in which a majority, by any margin of votes, feels entitled to speak for the whole nation and to stifle the voice of the minority. 

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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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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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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