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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Is Somalia’s Quest for Membership of the EAC Premature?
Somalia must first ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the East African Community.
The current members of the East African Community (EAC) are Tanzania, Kenya, Uganda, Rwanda, Burundi, and South Sudan. The Somali Federal Government, under the leadership of Hassan Sheikh Mohamud, has expressed a strong interest in joining the EAC, sparking questions among Somali citizens as to whether the country is ready to join such a large and complex regional bloc.
During President Hassan Sheikh Mohamud initiated Somalia’s pursuit of EAC membership during his previous term as a president from 2012 to 2017. However, little progress was made during his first term and, following his re-election, President Hassan reignited his pursuit of EAC membership without consulting essential stakeholders such as the parliament, the opposition, and civil society. This unilateral decision has raised doubts about the president’s dedication to establishing a government based on consensus. Moreover, his decision to pursue EAC membership has evoked mixed responses within Somalia. While some Somalis perceive joining the EAC as advantageous for the country, others express concerns about potential risks to Somalia’s economic and social development. President Hassan has defended his decision, emphasising that Somalia’s best interests lie in becoming a member of the EAC.
To assess Somalia’s readiness to join the EAC, the regional bloc undertook a comprehensive verification mission. A team of experts well versed in politics, economics, and social systems, was tasked with evaluating Somalia’s progress. The evaluation included a thorough review of economic performance, trade policies, and potential contributions to the EAC’s integration efforts. During this process, the team engaged with various government institutions and private organisations, conducting comprehensive assessments and discussions to gauge Somalia’s preparedness.
One of the key requirements for Somalia is demonstrating an unwavering commitment to upholding principles such as good governance, democracy, the rule of law, and respect for human rights. Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Successful integration into the EAC would not only elevate Somalia’s regional stature but would also foster deeper bonds of cooperation and shared prosperity among the East African nations. While this is a positive step towards regional integration and economic development, there are several reasons for pessimism about the potential success of Somalia’s membership in the EAC.
Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Somalia has faced significant challenges due to prolonged conflict and instability. The decades-long civil war, coupled with the persistent threat of terrorism, has had a devastating impact on the country’s infrastructure, economy, governance systems, and overall stability.
The following fundamental factors raise valid concerns about Somalia’s readiness to effectively participate in the EAC.
Infrastructure plays a critical role in regional integration and economic growth. However, Somalia’s infrastructure has been severely damaged and neglected due to years of conflict. The country lacks adequate transportation networks, reliable energy systems, and while communications infrastructure has improved, internet penetration rates remain low and mobile networks – which are crucial for seamless integration with the EAC – can be unavailable outside of urban centres. Rebuilding such infrastructure requires substantial investments, technical expertise, and stability, all of which remain significant challenges for Somalia.
Political stability and governance
The EAC places emphasis on good governance, democracy, and the rule of law as prerequisites for membership. Somalia’s journey towards political stability and effective governance has been arduous, with numerous setbacks and ongoing power struggles. The lack of a unified government, coupled with weak state institutions and a history of corruption, raises doubts about Somalia’s ability to meet the EAC’s standards. Without a stable and inclusive political environment, Somalia may struggle to effectively contribute to the decision-making processes within the regional bloc.
Economic development and trade
Somalia’s economy has been heavily dependent on the informal sector and faces substantial economic disparities. The country needs to demonstrate a vibrant market economy that fosters regional trade and collaboration, as required by the EAC. However, the challenges of rebuilding a war-torn economy, tackling high poverty rates, and addressing widespread unemployment hinder Somalia’s ability to fully participate in regional trade and reap the benefits of integration.
Somalia continues to grapple with security challenges, including the presence of extremist groups and maritime piracy. These issues have not only hindered the country’s development but also pose potential risks to the stability and security of the entire EAC region. It is crucial for Somalia to address these security concerns comprehensively and to establish effective mechanisms to contribute to the EAC’s collective security efforts.
Economic Disparity and Compatibility
Somalia’s economy primarily relies on livestock, agriculture, and fishing, which may not align well with the more quasi-industralised economies of the other EAC member states. This mismatch could result in trade imbalances and pose challenges for integrating Somalia into the regional economy. For instance, according to the World Bank, Somalia’s GDP per capita was US$447 in 2021 whereas it is US$2081 for Kenya, US$1099 for Tanzania, and US$883 for Uganda. Furthermore, Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
This divergence in economic structures could lead to trade imbalances and impede the seamless integration of Somalia into the regional economy. The substantial economic gap between Somalia and other EAC member states suggests a significant disparity that may hinder Somalia’s ability to fully participate in the EAC’s economic activities. Additionally, Somalia has yet to demonstrate fiscal or economic discipline that would make it eligible for EAC membership. While Somalia has a functioning Central Bank and the US dollar remains the primary mode of financial transactions, the risk of integration lies with the other EAC members; cross-border trade would occur in an environment of instability, posing potential risks to the other member state.
Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
While these fundamental challenges remain, it is important to acknowledge the progress Somalia has made in recent years. This includes the gradual improvement in security conditions, the establishment of key governmental institutions, and the peaceful transfer of power. One can also argue that many of these fundamental economic, infrastructure, political instability, and security concerns exist across the East African Community. However, what makes Somalia unique is the scale of the challenges it faces today. Somalia has adopted a federal political structure, which has not worked well so far. This level of fragmentation and civil political distrust makes Somalia’s case unique. More than ever, Somalia needs meaningful political and social reconciliation before it can embark on a new regional journey.
The absence of an impact assessment by the relevant ministries in Somalia is alarming. Without this assessment, it becomes challenging to make informed decisions about the potential benefits of joining the EAC and the impact on our economy and society. Conducting this assessment should be a priority for Somalia’s ministries to ensure a comprehensive evaluation of the potential benefits and risks involved in EAC membership. Furthermore, President Hassan Sheikh Mohamud’s decision to pursue Somalia’s integration into the EAC lacks political legitimacy as a decision of this nature would normally require ratification through a popular vote and other legal means through parliament. The failure to achieve this could potentially allow another president in the future to unilaterally announce withdrawal from the EAC.
Fragile state of Affairs and internal disputes
The recent reopening of the Gatunda border post between Uganda and Rwanda after a three-year period of strained relations indicates a fragile state of affairs. The East African Court of Justice has ruled that Rwanda’s initial closure of the border was illegal, highlighting the contentious nature of inter-country disputes. Furthermore, Tanzania and Uganda have formally lodged complaints against Kenya, alleging unfair advantages in trade relations, and have even gone as far as threatening Kenya with export bans. These grievances underscore the underlying tensions and competition between member states, which could potentially hinder the harmonious functioning of the East African Community. These political and economic disagreements among member states increase the risks associated with Somalia’s membership. Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions. Joining the East African Community at this juncture carries the risk of being drawn into ongoing disputes and potentially being caught in the crossfire of inter-country rivalries.
Conflict in South Sudan
The prolonged conflict in South Sudan, which has been ongoing since its admission to the East African Community (EAC) in 2016, serves as a cautionary tale for Somalia. Despite the EAC’s efforts to mediate and foster peace in the region, the outcomes have been mixed, resulting in an unsustainable peace. This lack of success highlights the challenges faced by member states in resolving conflicts and maintaining stability within the community. Somalia must carefully evaluate whether its participation in the EAC will genuinely contribute to its stability, economic growth, and development, or if it risks exacerbating existing internal conflicts. Joining the community without a solid foundation of political stability, institutions, and peace could potentially divert resources and attention away from domestic issues, hindering Somalia’s progress towards resolving its own challenges. South Sudan’s admission to the EAC in 2016 was seen as a major step towards regional integration and stability. However, the country has been mired in conflict ever since, with two civil wars breaking out in 2013 and 2016. The EAC has been involved in mediation efforts, with mixed results.
Somalia must evaluate the readiness of its institutions, infrastructure, and economy to effectively engage with the East African Community. Comprehensive preparations are crucial to ensure that joining the community is a well thought-out and strategic decision, rather than a hasty move that could further destabilise the nation. Somalia needs to assess whether its infrastructure, institutions, and economy are sufficiently developed to cope with the challenges and demands of integration. Premature membership could strain Somalia’s resources, impede its growth, and leave it at a disadvantage compared to more established member states.
Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions.
Somalia must ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the EAC. A phased approach that prioritises capacity building, institution-strengthening, and inclusive governance would enable Somalia to lay a solid foundation for successful integration and reap the maximum benefits from EAC membership in the long term. Failure to address these concerns would make Somalia vulnerable to exploitation and market monopolies by stronger economies, and could also risk a lack of seamless convergence for Somalia’s membership. While there is political will from EAC leaders to support Somalia’s membership, it is vitally important that they make the right decision for Somalia and the EAC bloc as a whole to ensure a successful integration. I believe that, at this juncture, the disadvantages of Somalia joining the EAC outweigh the benefits.
2023 Marks 110 Years Since the Maasai Case 1913: Does it Still Matter?
It was a landmark case for its time, a first for East Africa and possibly for the continent. A group of Africans challenged a colonial power in a colonial court to appeal a major land grab and demand reparations. They lost on a technicality but the ripple effects of the Maasai Case continue to be felt.
In the name Parsaloi Ole Gilisho there lies an irony. It was spelled Legalishu by the colonial British. Say it out loud. He gave them a legal issue, all right. And a 110-year-old headache.
This extraordinary age-set spokesman (a traditional leader called ol-aiguenani, pl. il-aiguenak) led non-violent resistance to the British, in what was then British East Africa, that culminated in the Maasai Case 1913. Ole Gilisho was then a senior warrior, who was probably in his mid- to late thirties. In bringing the case before the High Court of British East Africa, he was not only challenging the British but also the Maasai elders who had signed away thousands of acres of community land via a 1904 Maasai Agreement or Treaty with the British. This and the 1911 Agreement – which effectively rendered the first void – are often wrongly called the Anglo-Maasai Agreements. In Ole Gilisho’s view, and those of his fellow plaintiffs, these elders had sold out. The suit accused them of having had no authority to make this decision on behalf of the community. This represented a very serious challenge by warriors to traditional authority, including that of the late laibon (prophet) Olonana, who had signed in 1904, and died in 1911.
The British had expected the Maasai to violently rebel in response to these issues and to colonial rule in general. But contrary to modern-day myths that the Maasai fought their colonisers, here they resisted peacefully via legal means. They hired British lawyers and took the British to their own cleaners. Spoiler: they lost, went to appeal, and lost again. But archival research reveals that the British government was so convinced it would eventually lose, if the Maasai appealed to the Privy Council in London (they didn’t), that officials began discussing how much compensation to pay.
The facts are these. The lawsuit was launched in 1912. There were four plaintiffs, Ole Gilisho and three fellow Purko (one of the 16 Maasai territorial sections) Maasai. In Civil Case No. 91 they claimed that the 1911 Maasai Agreement was not binding on them and other Laikipia Maasai, that the 1904 Agreement remained in force, and they contested the legality of the second move. They demanded the return of Laikipia, and £5,000 in damages for loss of livestock during the second move (explained below). Ole Gilisho was illiterate and had never been to school. But he and his fellow plaintiffs were assisted by sympathetic Europeans who were angered by the injustice they saw being perpetrated against a “tribe” that British administrators conceded had never given them any trouble. These sympathisers included people who worked for the colonial government, notably medical Dr Norman Leys and some district officials, lawyers, a few missionaries, the odd settler, and a wider group of left-wing MPs and anti-colonial agitators in Britain.
What had led up to this? After the 1904 Agreement, certain groups or sections of Maasai had been forcibly moved from their grazing grounds in the central Rift Valley around Naivasha into two reserves – one in Laikipia, the other in the south on the border with German East Africa. The British had pledged that this arrangement was permanent, that it would last “so long as the Maasai as a race shall exist”. But just seven years later, the British went back on their word and moved the “northern” Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve. In all, it is estimated that the Maasai lost at least 50 per cent of their land, but that figure could be nearer 70 per cent. The ostensible reason for moving them was to “free up” land for white settlement – largely for British settlers but also for South Africans fleeing the Boer War (also called the South African War).
But just seven years later, the British went back on their word and moved the ‘northern’ Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve.
By the time the case came to court, Ole Gilisho had become a defendant, even though he was in favour of the plaint. So were at least eight other defendants. He had signed the 1904 Agreement, and now stood accused with 17 other Maasai of having no authority to enter into such a contract. The first defendant was the Attorney General. Ole Gilisho’s son-in-law Murket Ole Nchoko, misspelled Ol le Njogo by the British, and described as a leading moran (il-murran or warrior) of the Purko section, was now the lead plaintiff. The plaint was called Ol le Njogo and others v. The Attorney General and others.
Challenges facing the plaintiffs
Most Maasai were illiterate in those days, and this obviously placed them at a major disadvantage. They could not write down their version of events. They were forced to rely, in their dealings with officials and their own lawyers, upon translators and semiliterate mediators whose reliability was questionable. But it is evident, from the archival record which includes verbatim accounts of meetings between Maasai leaders and British officials in the run-up to the moves and case, that the level of verbal discourse was highly sophisticated. This comes as no surprise; verbal debate is a cornerstone of Maasai society and customary justice. Unfortunately, that alone could not help them here. They knew they needed lawyers, and asked their friends for help. Leys, who was later sacked from the colonial service for his activism, admitted in a private letter: “I procured the best one in the country for them.” This was more than he ever admitted openly.
Local administrators used intimidation and all kinds of devious means to try and stop the case. (I didn’t come across any evidence that the Colonial Office in London sanctioned this; in fact, it ordered the Governor not to obstruct the main lawyer or his clients.) They allegedly threatened Ole Gilisho with flogging and deportation. They threatened and cross-questioned suspected European sympathisers, including Leys and the lawyers. They banned Maasai from selling cattle to raise the legal fees, and placed the Southern Reserve in continuous quarantine. It was hard for the plaintiffs, confined to a reserve, to meet their lawyers at all. At one point, lawyers were refused passes to enter the reserve, and their clients were prevented from leaving it.
We hear Ole Gilisho’s voice in the archival record. Forced to give a statement explaining his actions to officials at Enderit River on 21 June 1912, when asked if he had called Europeans to his boma, he replied: “Is it possible for a black man to call a white man?” He denied having called the Europeans (probably lawyers or go-betweens), saying they had come to him. Leys later explained to a friend that Ole Gilisho had probably been “terrified out of his wits”, and hadn’t meant what he said.
What happened in court
The case was thrown out when it first came before the High Court in Mombasa in May 1913. The Maasai appealed, and that is when the legal arguments were fully aired by both sides – lawyers for the Crown and the Maasai. The appeal was dismissed in December on the grounds that the plaintiffs’ claims were not cognisable in municipal courts. The two agreements were ruled not to be agreements but treaties, which were Acts of State. They could not, therefore, be challenged in a local court. It was impossible for the plaintiffs to seek to enforce the provisions of a treaty, said the judges – “The paramount chief himself could not bring such an action, still less can his people”. Claims for damages were also dismissed.
The Court of Appeal’s judgement centred on the status of a protectorate, in which the King was said to exercise powers granted to him under the Foreign Jurisdiction Act of 1890. Irrational as it sounds, the Crown claimed that British East Africa was not British territory, and the Maasai were not British subjects with any rights of access to British law, but “protected foreigners, who, in return for that protection, owe obedience” to the Crown. As Yash Pal Ghai and Patrick McAuslan later put it, when discussing the case in a 1970 book: “A British protected person is protected against everyone except the British.” On the plus side, the judges ruled that the Maasai still retained some “vestige” of sovereignty. (The Maasai’s lawyer argued that they did not.) This triggered later moves by Maasai politicians, in the 1960s, to float the idea of secession from Kenya and the possible creation of a sovereign Maasai state. John Keen had threatened this in 1962 at the second Lancaster House Conference in London, attended by a Maasai delegation.
Alexander Morrison, lawyer for the Maasai, argued that British rule and courts were established in the protectorate, which had not been the case 30 years earlier. The Maasai were not foreigners but equal to other British subjects in every way. The agreements were civil contracts, enforceable in the courts, and not unenforceable treaties. If one took the Crown’s claim about Acts of State to its logical conclusion, he argued, a squatter refusing to leave land reserved for the Maasai could only be removed by an Act of State. None of his arguments washed with the judges. (See my 2006 book Moving the Maasai for a fuller account.)
Morrison advised his clients to appeal. It seems they couldn’t raise the funds. However, oral testimony from elders reveals a different story: Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea. This is impossible to verify, but it rings true.
In an interview carried out on my behalf in 2008 by Michael Tiampati, my old friend John Keen had this to say about the outcome of the case: “If the hyena was the magistrate and the accused was a goat, you should probably know that the goat would not get any form of justice. So this is exactly how it was that the Maasai could not get any fair justice from British courts.”
Contemporary African resistance
Unbeknown to the Maasai, there was growing anti-colonial resistance in the same period in other parts of Africa. All these acts of resistance have inspired African activists in their continuing struggles. To mention a few: the Chilembwe rebellion in Nyasaland, now Malawi (1915); the Herero revolt in German South West Africa, now Namibia (1904–1908); resistance in present-day Kenya by Mekatilili wa Menza (largely 1913-14); the First Chimurenga or First War of Independence in what is now Zimbabwe (1896–1897); and the Maji Maji rebellion in German East Africa, now Tanzania (1905–1907). But none of these rebellions involved lawsuits. The closest precedent may have been R vs Earl of Crewe, Ex-parte Sekgoma in 1910. Chief Sekgoma, who had been jailed by the British in the Bechuanaland Protectorate (now Botswana) after many attempts to remove him as chief, instructed his lawyer to bring a writ of habeus corpus against the Secretary of State for the Colonies, Lord Crewe. He demanded to be tried in an English court, refusing an offer of release on condition that he agrees to live in a restricted area of the Transvaal. The suit was dismissed, the court ruling that the King had unfettered jurisdiction in a protectorate, and his right to detain Sekgoma was upheld. Sekgoma apparently said: “I would rather be killed than go to the Transvaal. I will not go because I have committed no crime – I wish to have my case tried before the courts in England or else be killed.” Freed in 1912, he died two years later.
The case, and other key events in early twentieth century Maasai history, have given rise to several myths. They include the idea that the stolen land should “revert” to the Maasai after 100 years, but that was not stated in the 1904 Agreement, which was not limited in time, was not a land lease, and has not “expired” as many people claim. Neither agreement has. Keen knew this, but nonetheless called for the land to “revert”. Other myths include the idea that Olonana’s thumbprint was placed on the 1911 Agreement posthumously, and it must therefore be invalid. But neither his thumbprint nor name are on the document, which was “signed” by his son Seggi. Anyhow, Olonana was a key ally of the British, who had no reason to kill him (which is another myth).
The original of the 1904 Agreement has never been found, which has led some Maasai to believe that it never existed and therefore all the land must be restored and compensation paid for its use to date. There may be sound legal arguments for restorative justice, but this is not one of them. These myths are ahistorical and unhelpful, but may be understood as attempts to rationalise and make sense of what happened. Some activists may wish that the Maasai had resisted violently, rather than taken the legal route. Hence the insistence by some that there was a seamless history of armed resistance from the start of colonial rule. Not true. There are much better arguments to be made, by professional lawyers with an understanding of international treaty rights and aboriginal title, which could possibly produce results.
Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea.
Where does all this leave the Maasai today? Over the years, there has been much talk of revisiting the case and bringing a claim against Britain (or Kenya) for the return of land or reparations for its loss. None of this has resulted in concrete action. I attended a planning workshop in Nairobi in 2006 when plans were laid for a lawsuit. VIPs present included the late Ole Ntimama, scholar Ben Kantai and John Keen. Keen declared, with his customary flourish, that he would stump up a million shillings to get the ball rolling. I don’t know how much money was raised in total, but it disappeared into thin air. As did the lawyers.
Leading lawyers have advised that too much time has passed, and (unlike the successful Mau Mau veterans’ suit) there are no living witnesses who could give evidence in court. It is unclear whether the agreements still have any legal validity. The British government might argue, as it previously has, including in response to my questions, that it handed over all responsibility for its pre-1963 actions to the Kenyan government at independence. This is a ludicrous argument, which is also morally wrong. Former colonial powers such as Germany have accepted responsibility for historical injustices in their former colonies, notably Namibia. Has the time come for Ole Gilisho’s descendants to call a white man to court?
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
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