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WAR ON DRUGS: Kenya, the Forgotten Hotspot of the Heroin Trade

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Nairobi, Kenya – A WATER GLASS SHARED BY 200 ADDICTS

In downtown Mombasa, a nondescript office sandwiched between multistoreyed buildings is busy as usual.

Every five minutes or so, gaunt youths, eyes bloodshot, walk into the tiny reception and straight away dash to the water dispenser at the far corner. They refill the only plastic glass next to the dispenser without rinsing it, and eagerly empty its contents before turning to the reception desk.

Between 9.30 am and 10.30 am, as this writer waits for the director of Reach Out Centre Trust, an independent outfit that helps Mombasa residents fight drug addiction, the 10-litre dispenser bottle is already finished, but it is instantly replenished. The office doesn’t seem to have a designated receptionist. But the hushed talk between the visiting youths and any official around the reception ends up in a familiar refrain.

‘Sorry, the methadone [an analgesic drug similar to morphine used in the treatment of heroin addiction] hasn’t arrived yet. We were promised a new batch a fortnight ago but nothing is here yet. But please, do keep checking.’ Then the dejected youths – one in five are female – leave the building. The ‘clients’ (known by the derogatory term mateja), are hooked on madawa, the local phrase for heroin and/or cocaine.

NACADA says 0.1% of Kenyans consume heroin; implicitly, Kenya is a trafficking rather than a consumer country although reports indicate that it is increasingly becoming an end-user

They want to break the habit, and methadone is the only solution they know about. But it has been in short supply lately. Donors had delayed disbursing funds for the acquisition of methadone. Nonetheless, the water appears to cool their nerves – for the time being. By the close of the day, more than 200 clients will have shared the glass, many of them without rinsing it.

Ominously, the casual way they use unwashed glasses (and thereby risk contracting hepatitis B), is the way they share heroin needles – a sure way of transmitting HIV. And as will be seen later in this report, injectable drug users (IDUs) have become the key agents of HIV spread in the country, accounting for about 18 per cent of new infections.

There are dozens of such methadone clinics, first introduced last year at Kenya’s Coast. Nairobi’s Mathare Hospital started administering this medication in 2014; its specialised clinic treats 450 patients daily. The 51 beds in the rehab ward are always full, with each patient staying 90 days. At the Coast, the Malindi and Mombasa government hospitals each treat 200 addicts a day.

The government moved to introduce methadone following the death of addicts triggered by heroin shortages occasioned by clampdowns on drug barons. Over 100 addicts died in 2011, many more in 2013-2014, though the total number is yet unknown.

According to the International Drugs Policy Consortium (IDPC), heroin started to be consumed in Kenya in the cities that were used as transit points (such as Mombasa) before spreading to other regions of the country and to Nairobi. Now, some 20,000 to 55,000 Kenyans inject heroin. The National Campaign Against Drug Abuse (NACADA) says it is monitoring 25,000 intravenous drug users (IDUs) spread around the country. The population that snorts the drug is still unknown but it could be larger than that of IDUs, according to the Anti-Narcotics Unit (ANU) officials.

These addicts are part of the $322 billion global drug market, as valued in 2011. And as will be seen later in this article, East Africa, a key transit hub for drugs destined for Europe and the United States, contributes $10 billion to this business. Kenya is a major player, as a trafficking hub, in this illicit global commerce.

NACADA says 0.1% of Kenyans consume heroin; implicitly, Kenya is a trafficking rather than a consumer country although reports indicate that it is increasingly becoming an end-user. ‘While data on heroin users in Kenya is limited, UNODC (UN Office on Drugs and Crime) has warned that heroin addiction appears to be on the rise in the country, particularly along the Coast,’ American online news portal huffingtonpost.com said a year ago.

‘Only a tiny fraction of the drugs believed to transit in and through Kenya is seized by authorities. Arrests rarely lead to convictions. When convictions occur in Kenya, they are of lower level couriers and distributors’

The heroin comes from Afghanistan and gets here via Pakistan. According to experts, things look bad this season. Afghanistan’s opium production could reach a new high about 8,800 tonnes (which can produce as much as 530 tonnes of heroin). Volumes have been on an upward trend since 2010, and reached a record high in 2014, says the UNODC. Eight per cent of this will pass through the East African region, what the UNODC calls ROEA (Region of Eastern Africa that draws in Kenya, Tanzania, Burundi, Djibouti, Eritrea, Ethiopia, Rwanda, Seychelles, Somalia, Sudan, Uganda).

Given that 12 per cent of that is consumed locally, 5 tonnes (with an estimated street value of $1.3 billion) will remain in the region, with Kenya being the major consumer. But other reports indicate a higher figure. About 8 tonnes enter Kenya, according to a Reuter news article of March 2015 headlined As Heroin Trade Grows, a Sting in Kenya.

BLOOD FLASHING: A DEADLY SHARING

A year ago, huffingtonpost.com published a worrying story about Kenya’s drug problem titled Recovering Addicts Battle Kenya’s Exploding Heroin Problem. It said as more heroin flooded into East Africa, more and more Kenyans were getting hooked on it.

‘Drugs are destroying our communities,’ MP Abdulswamad Shariff Nassir has lamented. His Mvita constituency is among those hardest hit by the drugs problem in Mombasa, with other hotspots being Likoni and Kisauni. ‘The courts have to protect our citizens, and that’s not happening.’

The Mombasa ‘carnage,’ in the words of a Coast-based senior medical officer, wasn’t entirely unexpected. As early as 1998, Noah arap Too, then head of the country’s Criminal Investigation Department, the police arm charged with arresting trafficking among other crimes, sounded a warning, as did the United Nations.

Nothing happened. Michael Ranneberger, the United States ambassador who during his tour of duty from 2001-2011 made the anti-corruption war a personal crusade, much to the chagrin of the then regime of president Mwai Kibaki, wondered whether the country’s inertia in fighting narcotics was ‘Incompetency? Lack of will? Or worse?’ as reported in Wikileaks.

The sin of omission has caught up with Kenya. Today in Mombasa, addicts do what is called ‘blood flashing’ – the sharing of heroin-laced blood between those already high and those in need of a quick fix, practised by addicts who cannot afford the drug. This fatal ritual has been going on for about a year now, according to medical experts at the Coast.

Rene Berger, the USAid Kenya HIV/Aids team leader, says blood flashing is putting anti-HIV programmes in Kenya at risk, and warns that joblessness, prostitution and drug abuse are fuelling a ‘sense of desperation’ at the Coast.

Already, injection of heroin is becoming a key factor in HIV transmission. Figures are scanty as no serious research has been undertaken to link the drug to the spread of the disease, but the information available indicates that HIV prevalence among male drug users is 18 per cent while among females it is 44 per cent. (The country’s HIV prevalence is 6 per cent)

Reports indicate that long time addicts have turned to cocktails – combinations of cocaine, heroin, marijuana and the so-called designer drugs such as methamphetamine, and alcohol – to get their fix.

‘It’s clear that the Coast is an entry point, and wherever there’s a path, there are some crumbs left behind,’ Sylvie Bertrand, regional adviser for HIV/Aids at UNODC’s Eastern Africa office, told the press.

TRAFFICKING HOTSPOT: A SURGE THROUGHOUT THE REGION

Each year, the Kenya Police and the UN issue reports on the drugs situation. One of the reports is global while the other is local; one is analytical, the other primarily statistical. Notwithstanding their different styles, however, both reports portray a country that is battling with a drugs problem.

A section called ‘Dangerous Drugs’ in the Annual Crime Report by the Kenya Police details trends in arrests of drug users and traffickers. It reveals a consistent increase in cases related to drugs in the past 10 years. For instance, dangerous drugs (which is the description for heroin, cocaine and meths) recorded a 12% jump in 2014 over the previous year. That year’s report shows that there were 73 heroin cases that led to 94 arrests, and recoveries amounting to 10.5 kilos, 558 sachets, 2,000 litres of diesel mixed with heroin, and 3,200 litres of liquid heroin.

In the 2015 annual report, the incidence of dangerous drugs went up 14% over the previous year.

On the other hand, the UNODC Maritime Crime Programme in its 2014 annual report talks about an ‘alarming spike’ in illicit drug trafficking throughout the Indian Ocean Rim. It says that there has been a ‘surge in rates of drug trafficking throughout the region, particular with respect to heroin’. Another report by this UN agency, Drug Trafficking to and from Eastern Africa, paints Kenya as a country in the grip of drug cartels. It says that ‘a review of drug seizures from 1998 to date indicates an increase in the trafficking of heroin’ in Kenya.

It turned out wasn’t just cars and TVs the clearing and forwarding agencies were clearing. Heroin and cocaine were far better earners. In fact, of the 10 known local drug barons, nine own, or once owned, import and export companies in Mombasa and Nairobi

In a report published this year, the US State Department says, ‘Kenya is a significant transit country for a variety of illicit drugs, including heroin and cocaine, with an increasing domestic user population.’

Kenya’s transformation into a trafficking hub has been picking up speed in the past 10 years. In April 2014, an Australian Navy patrol seized heroin valued at $290 million (about Ksh29 billion) off Kenya’s Coast. This amount is equivalent to all heroin seized in the East African region in the two decades 1990-2009. Today, 40 tonnes of heroin are believed to be trafficked through East Africa annually, up from 22 tonnes in 2013 and four tonnes in 2009.

Alarmed by the amount of drugs coming from Kenya into the West, the US Drug Enforcement Agency (DEA) jointly with the Kenya police created a 16-member specialised force called the ‘Vetted Unit’ to track down drugs and drug lords. And as will be seen later in this article, this is the unit that set up and arrested the Akasha brothers (Baktash Abdalla and Ibrahim Abdalla) and their Indian cohorts in a sting operation last January.

The multibillion-dollar trafficking business has attracted international drug barons, created local cartels, and left a legion of ‘mules’ serving jail terms in foreign lands, with dozens of them on death row. The industry’s proceeds are laundered through banks, supermarkets, forex bureaus, clearing and forwarding companies, hotels and real estate, lottery and gaming companies, casinos, hospitals and high-end bars and exclusive clubs.

The statistics that do exist would place a figure on the business as being worth between $100 million and $160 million annually. But these figures are based merely on seizures, and as the US State Department Bureau of International Narcotics and Law Enforcement Affairs says, ‘Only a tiny fraction of the drugs believed to transit in and through Kenya is seized by authorities. Due to a lack of political will and institutional capacity, arrests rarely lead to convictions. When convictions occur in Kenya, they are of lower level couriers and distributors.’

The deportation of 120 suspected drug barons in 2013 is an indicator of the allure of the Kenya market for the global underworld.

NO LONGER A BLIP ON THE GLOBAL MAP

Indeed, as indicated earlier in this report, it isn’t happenstance that Kenya finds itself in this situation. As early as 1990s, Noah Arap Too, the then Criminal Investigation Department head, had warned about an impending crisis in the country. ‘It will be a hard and challenging job for law enforcement officers,’ to eradicate narcotics in Kenya, he said.

Prior to this warning, Kenya was perceived a mere blip on the global map of heroin. News reports then named countries such as Nigeria, Colombia, Pakistan and Afghanistan. In fact, in Kenya, most drug-related stories were about marijuana that was being produced locally. Only a tonne of heroin was seized off the East African coast between 1990 and 2009.

This picture turned out to be deceptive. According to later reports, cocaine and heroin were already here, having arrived during the tourism boom of the 1980s.There were red flags here and there but authorities, either out of complacency or because of corruption or both, declined to read the warning signs.

Attempts to arrest suspected barons have been hampered by the fact that many are in government or have business associates within the government

For instance, drug lord Ibrahim Akasha was at the time assembling a deadly kinship machine that would later torment the West, forcing Americans to demand the deportation of his children to answer charges of transporting drugs to the United States and Europe. The Akasha family ‘controlled drugs along Mombasa to Europe’ as early as the 1990s, according to Wikileaks cables.

Another red flag was the mushrooming of clearing and forwarding companies, ostensibly to cash in on the booming imports of second-hand cars and electronics. By 2007, at least 824 had registered with the Kenya Revenue Authority, a figure that would shoot up to 1,298 by 2014. It turned out wasn’t just cars and TVs these agencies were clearing. Heroin and cocaine were far better earners.

In fact, of the 10 known local drug barons, nine own, or once owned, import and export companies in Mombasa and Nairobi.

And when the drugs business boomed, the barons went ahead to create their own Container Freight Stations (CFSs). At the CFSs, containers are verified, cleared, unpacked and delivered to their destinations. Until recently, these stations were barely policed, and so became conduits through which drugs could be smuggled into the country with relative ease.

Kenyan authorities have thus been sleeping on the job. Apart from an anti-narcotics law – that provides for life imprisonment, Ksh1 million ($10,000) fines and seizure of ill-gotten wealth, little if any concrete action has been taken. In 2009, some 11 years after Noah arap Too’s statement, the Anti-Narcotics Unit, had just 100 officers to police the entire country. They couldn’t even track the 824 clearing and forwarding companies registered at the time.

Now, Kenya is suffering from the sins of omission. That explains why Huffingtonpost.com, views Kenya as ‘a forgotten hotspot of the international drugs trade’.

A CONSUMER REPORT FOR THE UNDERWORLD

There is an Internet portal that prides itself on being ‘a consumer report for the underworld.’ Havoscope.com publishes the global prices of drugs, as well as figures for money laundering, piracy and counterfeiting on the black market. In the latest upload, the price of heroin in Kenya was listed as $1.9 per gram, the cheapest among the 72 countries the Internet portal has surveyed. Brunei’s $1330.04 per gram is the most expensive followed by New Zealand at $717.4 per gram. In the United States, the price is $200 while in the United Kingdom it is $61.

In Africa, South Africa’s price is $35.1 per gram, Zimbabwe’s is $27.1 and Nigeria’s is $6.8.

In one of the cables it has released, whistle-blower Wikileaks confirms the local prices of heroin at between Ksh100 and Ksh200 a gram. The same cables say mules earn between $3,000 and $6,000 depending on the destination of the drugs and how easy it is to traffic them to that destination. Mules can make as many as six trips in a year.

Yet these figures, mindboggling as they are, do not tell the entire story about the Kenyan narcotics business. Heroin here is almost the purest in the world – usually above 80 per cent and ‘readily available and relatively inexpensive,’ according to the Wikileaks cables.

(Addicts wary of contracting HIV/Aids prefer pure heroin because it can be snorted through the nose as opposed to the diluted form used by IDUs).

A number of reasons explain why the drug, though pure, is cheap: Corruption (within politics, government and security agencies), ease of operation by drug lords (entry and exit from the country), geographical location of Kenya in relation to the drug’s origin and destination, a poorly secured and policed financial market, legislation that is not deterrent enough, and the high stake politics that drive the country.

i. Corruption

The Bureau of International Narcotics and Law Enforcement Affairs, in its 2016 International Narcotics Control Strategy Report (INSR) says: ‘Stemming the flow of illicit drugs is a challenge for Kenyan authorities. Drug trafficking organisations take advantage of corruption within the Kenya government and business community, and proceeds from drug trafficking contribute to the corruption of Kenyan institutions. High level prosecutions or large seizures remain infrequent.’

Indeed, politics has come in the way of the work of the country’s anti-narcotics agency. ‘Politicians may be opposed to the drug barons in theory but when it comes to business, they are bed-mates,’ says an ANU officer. Attempts to arrest suspected barons have been hampered by the fact that many are in government or have business associates within the government.

Drug lords have contacts in the government, politics (governors, senators, MPs), the religion industry (evangelical preachers) and in the country’s top security agencies

The police source calls it ‘high-stakes politics’ because of the price drug lords pay to protect themselves and their trade. Almost all senior politicians, even those not directly involved in drugs, find themselves on the payroll of the narco-barons.

They have amassed considerable wealth they can use to intimidate and threaten the law and law enforcers.

Sometime back in December 2010, the then Internal Security Minister George Saitoti named in Parliament five lawmakers (Harun Mwau, William Kabogo, Hassan Joho, Simon Mbugua and Mike Mbuvi) as well as tycoon Ali Punjani and long-rumoured unofficial Kibaki second wife, Mary Wambui, all of whom he said were involved in narcotics trafficking. The unprecedented move followed pressure from the international community to have Kenya act against the vice.

A team of police officers formed to carry out investigations into the matter uncovered no evidence to charge the five. Kenya’s leading newspaper, Daily Nation, claimed succinctly that the probe had come ‘up with zero’.

The Interim Report on Drug Trafficking Investigations had said of Mwau, thus ‘No evidence has so far been found to link him with drug trafficking.’ Six months later, the US government declared Mwau a global ‘narco-kingpin’ and moved to freeze his assets. Americans estimate that he is worth $300 million.

Saitoti, who had earlier served as Kenya’s vice president, would die in a plane crash in June 2012. Several MPs, incidentally among them Mwau, claimed in Parliament that he was killed by drug syndicates although they released no evidence to corroborate their charge.

There are politicians and police who facilitate the trafficking of drugs and provide protection to the cartels, there are those who conceal the identity of the cartels, and there are those who get paid to ensure that vessels carrying drugs are not destroyed. And lastly there are those who benefit from drugs seized from traffickers. ‘The nexus is huge,’ says an anti-narcotics officer based in Mombasa.

‘Drugs barons have bought some of our officers and this is very sad… We have information that police vehicles and ambulances are being used to transport drugs within Mombasa County and the Coast region,’ Mombasa County Commissioner Nelson Marwa told journalists in December 2015.

Drug lords have contacts in the government, politics (governors, senators, MPs), the religion industry (evangelical preachers) and in the country’s top security agencies.

ii. Links

In 1998, Koli Lur Kouame, then local head of the UN control agency, described Kenya as a ‘port of call’ for traffickers. Since then, various reports have portrayed the country as a major transit hub for drugs.

Kenya has extensive air and marine links to Europe, the Americas and Asia, as well as within Africa.

According to sources, bulk heroin comes from Afghanistan through Pakistan or Iran, often concealed in consignments of sugar, rice, used motor vehicles, second-hand clothes, tea, fish and other imports. It is stuffed in bulk cargo to make it difficult for scanners to detect it at the entry points. The $290 million’s worth of heroin destroyed by Australian Navy in Mombasa in April 2014 was concealed in bags of cement.

UN officials say the coastline between Somalia and Mozambique is the major trafficking zone for heroin. Apart from the official entry points, such as Mombasa and Dar es Salaam ports, this coastline has hundreds of unregulated entry points that emerged centuries ago to facilitate the slave trade and now serve as trafficking points for drugs, humans and smuggled goods. The drugs enter directly through Kenya’s coastline or via its porous borders with Somalia and Tanzania.

The porous borders the country has with Somalia, Uganda, Ethiopia and Tanzania ‘provide low risk opportunities … for those engaged in illicit trade,’ Peter Gastrow says in his ground-breaking study, Termites at Work: A Report on Transnational Crime and State Erosionin Kenya, published in 2011.

In Kenya, the heroin is blended and repackaged as tea or coffee and chocolate to avoid detection, then transported through Jomo Kenyatta International Airport (JKIA) or shipped to West Africa, Europe and the United States. Some couriers, especially West Africans and Kenyans, ferry the drug as pellets in their tummies.

Initially, heroin made in Afghanistan entered Europe via Pakistan, Iran, Turkey and the Balkans, what is known as the Opium Trail, and the northern route via Central Asia and the Caucasus to Russia and the West.

For decades, it was the preferred route for drug networks. But in 2010, authorities in Tanga, northern Tanzania, after arresting four Tanzanians and two Iranians with 95 kilos of heroin destined for Kenya, stumbled on another route, the Smack Track or Southern Route.

The absence of a Coast Guard has made drug trafficking easy. The Navy boats on patrol cannot possibly track all the boats that ply Kenya’s 1,420-km coastline. Authorities are convinced that dhows, boats and big vessels pick up drugs on the high seas on a large scale and transport them to the mainland.

It is not certain how many boats and dhows ply the coastline but Lamu County alone, which covers 45.7 per cent of the coastline, has 4,000 registered boats. The actual number is unknown because most vessels are not registered with the Kenya Maritime Authority.

Kenya’s coastline, and Mombasa port in particular, is like a magnet for traffickers. Kilindini Harbour handles 700,000 standard size containers annually. Only 1% of the containers are inspected. Transit containers and big vessels are barely searched.

Joanna Wright in the UNODC report Transnational Organised Crime in Eastern Africa: A Threat Assessment, claims that there is ‘an awful lot (of heroin) coming in from the (Kenya) Coast’. The country is no longer ‘a backwater producer of marijuana,’ as it was regarded two decades ago.

However, reports indicate that Nairobi appears to be taking over from Mombasa as heroin distribution hub. ‘While international heroin traffic might still be heavy around the Kenyan coast, local supply chains are predominantly coordinated from Nairobi,’ says Margaret Dimova in the report, A New Agenda for Policing: Understanding the Heroin Trade in Eastern Africa.

iii. Laundering

Kenya’s 43 licensed commercial banks, dozens of microfinance institutions and mortgage finance companies, almost 100 forex bureaus, dozens of Somali-style hawallah networks, and many makeshift or unregistered/unlicensed ‘saving and lending’ organisations, are a major attraction to the underworld.

For years now, Kenya’s relatively developed financial infrastructure has been a boon to drug barons. The country’s 43 licensed commercial banks with their extensive branch networks in the region, dozens of microfinance institutions and mortgage finance companies, almost 100 forex bureaus, dozens of Somali-style hawallah networks, and many makeshift or unregistered/unlicensed ‘saving and lending’ organisations, are a major attraction to the underworld.

There are almost 130,000 money agents in Kenya, working mostly with the mobile money provider M-Pesa.

This vast infrastructure is attractive to drug lords out to conceal their earnings. They can transfer their ill-gotten wealth to their home countries, pay for the ‘goods’ or receive payments for the same, and clean up the money within Kenya by investing in the financial markets, real estate and other properties.

In fact, Kenya is among the 67 countries the US Department of State denotes as ‘money laundering countries of 2015.’ In Africa, only Kenya, Nigeria, Somalia and Zimbabwe appear in the classification of ‘jurisdictions of primary concern,’ according to its publication, International Narcotics Control Strategy Report 2016. It states, ‘Kenya remains vulnerable to money laundering and financial fraud. It is the financial hub of East Africa, and its banking and financial sectors are growing in sophistication. Furthermore, Kenya is at the forefront of mobile banking.’

It is for this reason that the Financing Reporting Centre (FRC) was established in 2012 to track such illicit proceeds. However, because of the lack of capacity, the FRC has only managed to process 254 of the 878 suspicious transaction reports (STRs) submitted to it since it was created, and forwarded the results to investigation and prosecution agencies. Nobody has been convicted.

iv. Legislation

The Narcotics Drug and Psychotropic Substances (Control) Act came into force in 1994. It provided for a Ksh1 million ($10,000) fine and seizure of wealth. At the time, this was regarded as highly punitive and deterrent enough. But as it turned out, the legislation has hardly proved a deterrent.

Indeed, in hindsight, this piece of legislation may be a blessing in disguise for cartels.

Firstly, the drafters lacked foresight; the legislation appears to target marijuana and not necessarily hard drugs such as cocaine, heroin and the designer drugs. If you look at the penalties, in particular the fine, it is clear that authorities didn’t foresee a much higher-value drug. Heroin, cocaine and the so-called designer drugs are pricey. An offender needs just a half kilo of heroin to pay the fine.

In a report published after Kenya’s 2013 general election, the US Department of State said of Kenya, ‘Drug barons use the proceeds to contribute to political campaigns and to buy influence with government officials, law enforcement officers, politicians, and the media.’

Second, this legislation gives judicial officers considerable leeway that they can abuse to let drug barons off the hook – or mete out very lenient sentences. Ideally, the weight of the sentence should depend on the amount of drugs and/or their street value. But as a look at some of the rulings shows, the prices are arbitrary. For instance, in Criminal Case 313 of 2010, some 20 grams of heroin were valued at Ksh200. But in Criminal Case 702 of 2010, in Kibera, 11.054 kilos were valued at Ksh11,054,000 (Ksh1 million per kilo). And in Criminal Case 1302 of 2010, Mombasa, 2 grams were valued at Ksh4,000.

There is also a wide discrepancy in the sentences. In Criminal Case 1176 of 2011, the Mombasa principal magistrate convicted George Awuor Mbwana to 10years and Ksh1 million for trafficking 10 sachets of heroin valued at Ksh3,000 – although this sentence would be reduced to five years in 2014 upon appeal. In Criminal Case 705 of 2009, the Malindi chief magistrate sentenced Carolyne Auma Majabu to life imprisonment plus a Ksh1 million fine for trafficking seven sachets of heroin valued at Ksh700.

According to UNODC’s Country Review Report of Kenya 2010-2015, there appear to be problems in regard to proportionality, consistency and adequacy in sentencing/convictions in cases related to drugs as well as economic crimes, such as money laundering.

Cartels Battle

A year ago, Nairobi Governor Evans Kidero complained about ‘state capture’ by organised criminals. Without mentioning their identity, he said they were providing Nairobi residents with free-of-charge services that are meant to be sources of revenue to counties. He said the underworld individuals were out to purchase political power by using the proceeds of drug trafficking.

This wasn’t the first time such a complaint had come up. Within and outside Kenya, people are convinced that the underworld is not only entrenched in Kenyan society, but that it is influencing the country’s political development. MPs, Senators and Governors, military and police officers, preachers and businesspeople are linked to trafficking but their identities are only mentioned in hushed tones.

None of them has been prosecuted or charged in court for their involvement in the illicit business.

In a report published after Kenya’s 2013 general election, the US Department of State said of Kenya, ‘Drug barons use the proceeds to contribute to political campaigns and to buy influence with government officials, law enforcement officers, politicians, and the media.’

According to CID sources, authorities have isolated four types of networks that drive the Kenyan drugs underworld: The loose or fluid network often cobbled together for a one-off deal – which collapses thereafter; the highly secretive patriarchal or kinship-based networks that control the illicit trade at the Coast; the upcountry syndicates that bring together mostly business allies and their political friends; and the trans-border cartels that bring together Kenyans and foreigners.

Cartels operate on political expediency. Specific cartels emerge during specific political seasons or regimes. That apart, the divisions – sometime blurred – may also be based on location or base of operation of the cartel, smuggling routes, and nationality and family links

Whatever type of network, close relationships among the players, also called nodes, are critical to their conduct and survival – what Margarita Dimova calls ‘compact, supple’ in the report, A New Agenda for Policing: Understanding the Heroin Trade in Eastern Africa.

Normally, the Kenyan cartels comprise just dozens of players who are mostly family members or business partners or acquaintances. Extra hands may be roped in case of extra load or work.

According to sources within the ANU, the cartels combine drug trafficking and smuggling (of humans and goods) and counterfeiting. Thus, Kenya’s underworld never lacks choices; drug lords can easily switch their business to conceal their tracks.

Interestingly though, the networks transform very fast in response to the changing political landscape. In the past 15 years, a number of cartels have collapsed while new ones have been formed to fill the void. The Mombasa-based Akasha organisation went down during President Kibaki’s regime while others emerged, linked to the new crop of politicians at the Coast and further inland.

It is important to note that churches have become key conduit for drug lords. In February 2014, a New Zealand missionary who often travelled to Nairobi was jailed for 12 years for trafficking 6.15 kilos of meths and 2.87 kilos of heroin, all valued at Ksh200 million, to Australia

Cartels operate on political expediency. Specific cartels emerge during specific political seasons or regimes. That apart, the divisions – sometime blurred – may also be based on location or base of operation of the cartel, smuggling routes, and nationality and family links.

Nairobi-based operatives, Kenyans and foreigners, depend on the airports and land routes to transact their illicit business. On the other hand, the so-called Coast Mafia has seized Mombasa port, airstrips at the coast, and myriad docking points on the Indian Ocean coastline.

BRIBING A GOVERNMENT ALREADY STEEPED IN CORRUPTION

For a long time, while Kanu was in power and Daniel arap Moi was president, the narco-trade was controlled from Kenya’s Coast, especially at the port and in Malindi. The Coast Mafia (including the Akashas and a former nominated MP based in Mombasa) and Europeans (Italians and Germans) were in firm command of the business. Kenyans and Nairobi-based West Africans (Nigerians, Ghanaians and Guineans) played the role of couriers or middlemen.

Drug lords used their ill-acquired proceeds to bribe a government that was already steeped in corruption. In the process, the kingpins were able to easily launder money by investing it in real estate, exports and imports, and in trans-shipment.

The Italians, after elbowing out the Germans, invested their proceeds in real estate – constructing 4,000 villas and homes along the beach and on second row plots. There were complains that the villas were hideouts for fugitives but the government did little to investigate the claims. It now emerges that convicted Italian fugitive Leone Alberto Fulvio used Malindi as a hideaway from Italian authorities for close to 23 years. While in Kenya, Fulvio got citizenship, a gun licence and a certificate of good conduct, and was cleared by the Kenya Revenue Authority. His cover would later be blown by the Interpol. He is now fighting extradition.

According to Frederico Varese, the author of the book Mafias on the Move: How Organised Crime Conquers New Territories, Malindi provides an ideal mafia revenue source, and a locale for money-laundering.

On the other hand, the Coast Mafia formed clearing and forwarding companies and got into export and imports and the transport business. And during Kibaki’s regime, they began setting up Container Freight Stations.

THE AKASHA EXTRADITIONS

Earlier this year, a specially selected team of Police officers assisted by America’s DEA spirited the so-called Akasha brothers – Baktash Akasha Abdalla and Ibrahim Akasha Abdalla – and their Indian cohorts Gulam Hussein and Vijaygiri Goswani to the United States to face charges of narco-trafficking.

US prosecutors who sought the extradition say their organisation is responsible for ‘production and distribution’ of large quantities of narcotics. ‘As alleged, the four defendants who arrived yesterday in New York ran a Kenyan drug trafficking organisation with global ambitions. For their alleged distribution of literally tonnes of narcotics – heroin and methamphetamine – around the globe, including to America, they will now face justice in a New York federal court,’ said Manhattan U.S. Attorney Preet Bharara.

The four were arrested in a sting operation originating with a Moroccan informer in November 2014. It came four months after the Vetted Unit seized 341 kilos of heroin concealed in a ship’s fuel tank.

But it wasn’t until after the murder of their father, Ibrahim Akasha, that Kenya woke up to the fact that it had its prototypical global drug lord. For a long time, Ibrahim, killed in Amsterdam in 2000, was the drug kingpin of the East African region. He controlled Mombasa port and landing sites between Kilifi and Vanga in the south of Mombasa. The Italians reigned unchallenged from Kilifi north to the Somalia border.

Ibrahim’s battles with local businessmen were muted and rarely became public because he never ventured out of the drug business, even as his rivals moved into transport, import and exports, and real estate to launder their profits.

He suffocated the West Africans, especially the Nigerians and Guineans, who were forced to take up the secondary role of couriers or middlemen from their bases in Nairobi. Other Kenyans who have since amassed wealth from drug trafficking also played second fiddle to the Akasha narco-machine.

The Akashas used Mombasa port to bring in heroin and hashish from Pakistan and cocaine from the Americas. It would then be blended with tea or coffee, to confuse sniffer dogs, and then packaged, ready for export to Europe and the United States. He also had associates who did the refining, dilution and repackaging

While the Akashas controlled the maritime routes, foreign networks held sway at the JKIA and the Moi International Airport in Eldoret.

The Akashas’ empire flourished because it was kinship-based. But two things happened that changed the fortunes of this cartel and placed it on a warpath with itself: Patriarch Ibrahim was murdered; and Mwai Kibaki replaced Moi as president of Kenya.

When Akasha senior was killed, his protégés/understudies were left splintered and in confusion. The death stoked a bitter feud within the family that led to several deaths. A number of Kibaki allies used their influence in Nairobi to target the Akashas and get into the business.

It has taken time for the Akashas to rebuild. Now they are part of the supply chain that stretches from the poppy fields of Afghanistan through India into East Africa. US authorities who extradited two of the Akasha sons and their Indian cohorts say their organisation is responsible for ‘production and distribution’ of large quantities of narcotics.

In India, it was reported last year that the Akasha organisation and their Indian collaborators had transported 100 kilos of morphine base, which can be refined into heroin, in January 2016. Some months ago, the Times of India newspaper reported on a plan by the Akasha sons and their Indian collaborators – Vicky Goswami and his former actress girlfriend Mamta Kulkarni – to set up a manufacturing and drug refining operation in Kenya.

ENTER THE EUROPEANS, EXIT THE NIGERIANS

European cartels have also moved into Kenya following the collapse of the Opium Trail. They managed to solidify their base during Kibaki’s regime by creating networks with Nigerians and local politicians.

In the decade from 2003 to 2013, this would morph into what Anti-Narcotics Unit sources called a ‘super cartel’ that roped in several MPs and foreign drug lords. It also recruited security and military personnel and powerful businessmen at the Coast.

The vicious cartel, which coalesced around close allies of president Kibaki, almost wiped out the Akashas and other networks of drug-lords cum politicians developed during president Moi’s time.

The super-cartel is alleged to have been behind the assassination on New Year’s Day 2006 of DCIO Hassan Abdillahi who had been tasked with investigating the theft of containers at the Mombasa Port. Three brothers of Kiambu governor William Kabogo (whom then US ambassador William Bellamy described in the Wikileaks cables as ‘known thug and rich-far-beyond-visible-means’) were arrested over the murder.

The cartel feared that the lead investigating officer was working with the Akashas to target them.

The government’s crackdown on the West Africans has created a void in the heroin trafficking business that has now attracted Kenyan, Tanzanian, Chinese, Indian and Eastern European cartels. Indeed, according to ANU sources, West Africans appear to have lost the heroin market to Asians, Tanzanians and Kenyans following the emergence of the Smack Track route. They had dominated this market so long that they had managed to push the pioneer drug-lords, including the Akashas, out of Nairobi, only to find themselves out of the loop when conflicts in North Africa and parts of Europe made the Turkey route impassable.

It is important to note that churches have become key conduit for drug lords. In February 2014, a New Zealand missionary who often travelled to Nairobi was jailed for 12 years for trafficking 6.15 kilos of meths and 2.87 kilos of heroin, all valued at Ksh200 million, to Australia. Ms Bernadine Terry Prince (aka Pastor Bernie McCully), 42, who was married to a Nigerian, was arrested after she had toured Nairobi, Nigeria, and Cambodia. She claimed she was the Australian chief executive of Oasis of Grace Foundation that has affiliates in Kenya, Ghana, and several other countries. She was a missionary with Oasis of Grace International Church in Nairobi’s Kayole Estate.

Prior to her arrest, she had attended a conference in Nairobi and later spent time in Nigeria and Cambodia. In her defence she claimed that a Kenyan, Mummy Rose, her given her seven backpacks with handicrafts to sell in Australia. The court found drugs and not handicrafts.

President Uhuru Kenyatta has moved to dismantle the cartels that formed during Kibaki era. But his war is unstructured and some of those he is targeting are close allies of his friends. Uhuru first targeted foreigners, clipped the wings of a cartel run by a former assistant minister and later trained his guns on the Coast Mafia, including Joho’s family.

A Senator allied to the ruling party runs a trafficking network that operates from Wilson Airport. According to senior military officials who have served in Somalia, as at last year, authorities in Somalia had confiscated two containers destined for Kenya that belonged to the Senator. ‘One had electronics and the other had a white substance. We couldn’t isolate the substance so it was anybody’s guess,’ a Somali official said. The military officer has since been redeployed elsewhere so it’s still not clear what happened to the containers.

According to the International Drugs Policy Consortium, a policy network that promotes open discussion on drug policy, the Kenya-Somalia border is a playground for drug cartels that operate without fear of being detected

‘Local and international drug smugglers are taking advantage of the limited resources of security forces and borders control like, for example, on the border between Kenya and Somalia where drug smugglers can operate without being detected,’ says the consortium report.

But, in an interview for this report, police spokesperson George Kinoti denied knowledge of the Somalia route. ‘So far, we have not been able to detect drugs trafficking on the Somalia route. The route has not been known for drugs coming to Kenya.’

The Mail&Guardian warns that drugs, crime and dirty money are so entrenched in Kenya that any threat to destabilise this underworld could actually be detrimental to the entire economy

STATE CHALLENGE: NO COHERENT RESPONSE

Kenya’s anti-drugs war is characterised by haphazard half-measures. Authorities appear to dither even as the prevalence of trafficking – illustrated by the number of couriers in jails and large seizure amounts – continues to rise. There hasn’t been a coherent response to the menace. Indeed, responses have oscillated from ‘mute, bizarre or half-hearted reactions, to outright lies to bold admission,’ according to a Western diplomat.

In a recent interview, Kinoti said, ‘Here in Kenya, I can say drug trafficking is a challenge but not a huge problem. Our security agencies are up to the task when it comes to dealing with drug trafficking.’

Hamisi Masa, the ANU boss, told Reuters, ‘Now, it is not just about us here in Kenya …The whole world is involved.’

When he destroyed a vessel seized with 370 kilos of heroin in 2014, President Kenyatta thundered, ‘We will not allow drug barons to destroy the future of our young people. We will track and deal with them decisively.’ Commenting on the destruction, John Mututho, the NACADA boss, promised to reveal the people behind the narco business in Kenya. ‘We are investigating 50 suspected drug barons and we are sure we will recommend action by the end of the year.’

After more than two years, no names have been released.

Few believe the government is serious in its war against the drug barons

Narcotics Impact

The Mail & Guardian, a leading South African newspaper, warned in a recent report that Kenya was hurtling towards becoming Africa’s second ‘narco-state’ after Guinea Bissau. Titled The Making of an African Narco State, the news piece warns that drugs, crime and dirty money are so entrenched in Kenya that any threat to destabilise this underworld could actually be detrimental to the entire economy. ‘Kenya is emerging as a money laundering hub; incredibly, trying to stop the illicit flow of money could hurt the economy more than letting it continue.’

(A narco-state, according to Collins English Dictionary, is ‘a country in which the illegal trade in narcotics drugs forms a substantial part of the economy.’)

‘We are in deep trouble,’ a senior anti-narcotics officer told this writer. ‘The security agencies, the police, the politicians and some mandarins are either in bed with the drug barons or are the kingpins. You cannot isolate the barons.’

According to reports, more than 3,000 Kenyans are rotting in foreign jails, with some serving life sentences while others await execution. Others have died in jails abroad. About 3,000 are in local jails, convicted over hard drugs. The politics of Kenya’s major towns, Nairobi and Mombasa, is now influenced by drugs. While some drug-lords hold top offices in the country – two governors, a Senator, several MPs and other politicians are on the radar of the Vetted Unit, others, including top bureaucrats, police and judicial officers, provide protection to the barons.

‘We are in deep trouble,’ a senior anti-narcotics officer told this writer, but asked that his name not to be published lest he offended his bosses, some whom are allies of known drug barons. ‘Will we get out this? I doubt it. The arresting agency is a prisoner too. In fact, the security agencies, the police, the politicians and some mandarins are either in bed with the drug barons or are the kingpins. You cannot isolate the barons.’

Undeniably, Kenya is a major trafficking hub for drugs. It also has a growing consumption problem. Those interviewed for this report detailed a number of approaches that can help defeat traffickers and trafficking: Detect, deter and interdict. It needs strengthening of the country’s data collection systems, international co-operation, effective border controls, and law enforcement.

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Mr Opala is a freelance investigator based in Nairobi.

Politics

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

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

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

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

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

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

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

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

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

NCCK’s proposals to amend the constitution

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

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

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

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

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

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

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

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

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

Enter Punguza Mzigo

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

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

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

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

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

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

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

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

Inclusivity cannot be achieved through a referendum 

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

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

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

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

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

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

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

Fixing our politics

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

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

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

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

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

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

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

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

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

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

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

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

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

And the fault will be ours.

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Politics

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

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

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

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

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

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

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

Dirty tactics

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

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

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

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

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

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

Why now?

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

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

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

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

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

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

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

Digital surveillance

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

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

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

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

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

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

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

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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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