Cape Town, South Africa – PEACE AT ALL COSTS: BUT ONE DAY, YOU WILL HAVE TO PAY
During an election year such as this one in Kenya, much is made by politicians, the news media and to a lesser extent, the voting public, of media objectivity and neutrality.
The examples of how certain media houses and journalists showed partisanship and worse in the run-up to the 2007 election, and how much of the Rwandan media behaved leading up to the 1994 genocide, are dragged out and displayed as a caution to any Kenyan journalists and media houses that may be tempted to stray from the straight and narrow.
The British journalist Michela Wrong has spoken in the past of how the Kenyan media adopted a new ‘peace at all costs’ approach after the notorious 2007 election. In an attempt to reduce the likelihood of conflict, they started to avoid live broadcasts (or more general coverage) of potentially inflammatory content.
This strategy seemed to work at the 2013 election, which was peaceful, but as Wrong notes, the media’s self-censorship had other, more problematic effects – for example, helping to fuel the government’s ‘draconian’ new media law. If you suppress, muffle or bypass legitimate debates during elections,’ she said, ‘you could be storing up trouble for the future.’
As was recently demonstrated at the US elections and before that during the Brexit vote, real issues such as the economy, poverty, health, education and defence, are abandoned at the altar of bias
The August 2017 election in Kenya is that future and from where I sit, it would appear to me that ‘legitimate debate’ has been stifled in the media by the reporting of trivialities as well as not particularly skilful manipulation by the different political groupings and of course the tribalism issue.
Media practitioner Oscar Obonyo queried this trivialising of issues in favour of a tribal agenda in a recent social media posting where he queried how voter registration numbers were being reported. Obonyo observed, ‘The media and politicians are now falling over themselves concluding who between [the ruling] Jubilee [party] and [the nascent] National Super Alliance, NASA, will win the August polls.’
Obonyo, a former writer and analyst on the Sunday Nation, asked, ‘Why are you boxing us in regional blocs and conditioning us to vote along tribal lines? Do we as Kenyans have no crucial campaign issues? This is cheapening a very important exercise about our lives to a mere tribal competition of numbers!’
This last point of Obonyo’s recalls the much debated Tyranny-of-Numbers hypothesis that was generated a few years ago by occasional media contributor Mutahi Ngunyi, leading to the conclusion that Raila Odinga and his CORD Alliance lost the 2013 election to Uhuru Kenyatta’s Jubilee Alliance the moment the voter registration ended on December 18, 2012.
The facts on the ground are that pretty much ever since the dawn of Kenyan Independence, the country’s voting has been largely directed by tribal leaders, some might say warlords. The only exception to this rule came during the period between 1969 and 1991 when the country went from being a de facto to a de jure one-party state where tribal blocs were neither particularly obvious nor relevant in the way Kenyans voted.
Indeed, at all elections I’ve covered in Kenya as a reporter since the return to multiparty election of 1992, one of the most unfortunate aspects affecting the mainstream media has been this manipulation into a tribal agenda by leading politicians. It has caused many journalists (and at times, entire media houses), to blur the distinction raised by Obonyo and others.
A PASSIVE PUBLIC: WHAT MORE COULD POLITICIANS WANT
As was recently demonstrated at the US elections and before that during the Brexit vote in the UK, fact checking and real issues such as the economy, poverty, health, education and defence, are abandoned at the altar of bias.
When the media wittingly or unwittingly leads news consumers to see everything through the distorting prism of tribal strengths and weaknesses, the voters themselves end up becoming passive objects of the ‘news agenda’ being pursued in tandem with the wishes of the political tribal chiefs.
What ends up happening is that the public is rendered passive via bombardment by a constant news cycle highlighting the tribal minutiae of the election as per the media’s agenda.
Pesach Benson of the honestreporting.com site and author of Red Lines: The Eight Categories of Media Bias, highlighted what he called the Eight Violations of Media Objectivity:
Benson lists these as:
- Misleading definitions: Prejudicing readers through language.
- Imbalanced reporting: Distorting news through disproportionate coverage.
- Opinions disguised as news: Inappropriately injecting opinion or interpretation into coverage.
- Lack of context: Withholding a frame of reference for readers.
- Selective omission: Reporting certain events over others, or withholding key details.
- Using true facts to draw false conclusions: Infecting news with flawed logic.
- Distortion of facts: Getting the facts wrong.
- Lack of transparency: Failing to be open and accountable to consumers of news.
I can say without fear of contradiction that one time or another in the run-up to the August election (which, in these days when Kenya would appear to be on a permanent election campaign footing, is the period since the end of the 2013 election) the Kenyan media has been guilty of each of these sins.
A common error by journalists and others is to assume that objectivity helps ferret out the truth. In actual fact, objectivity in journalism has nothing to do with seeking out the truth, except in so much as truth is a matter of accurately reporting what others have said.
Some of us who have been engaged in news gathering over the years have learned that reporting involves judgements about what is a good story, who will be interviewed for it, what questions will be asked, which parts of those interviews will be printed or broadcast, what facts are relevant and how the story is written.
In theory, journalists would like to claim that their own biases and the pressures from advertisers and media owners do not affect their work because of their professional norm of ‘objectivity’ but the reality on the ground often tells a different story.
HE SAID, SHE SAID… EXACTLY NOTHING
We like to think that when writing a story or broadcasting, we do not overtly express our own views, evaluations, or beliefs. But do this successfully tends to replace journalistic investigation altogether and instead limits a story to the ‘he said, she said’ discussion of clashing opinions, rather than facts gathered by the reporters themselves.
And while some think that such reporting is ‘balanced,’ there are others, including myself, who believe it is disingenuous in that it perpetuates the impression that reporters are simply conveying the ‘facts’ and not trying to influence how people interpret them.
Some of us who have been engaged in news gathering over the years have learned that reporting involves judgements about what is a good story, who will be interviewed for it, what questions will be asked, which parts of those interviews will be printed or broadcast, what facts are relevant and how the story is written
When it comes to a situation such as the coverage of elections, at least, there are those who believe that ‘just the facts’ without any evaluation of the story or the reporter’s personal view of a story in a publication that is known to lean one way or the other, is unhelpful and somewhat dishonest.
As far as I’m concerned, the ideal of complete journalistic objectivity is in practice an unrealisable dream. And the sooner journalists and media houses come to accept this, the better.
It would appear I am not alone.
A paper entitled The Myth of Objectivity in Journalism: A Commentary, by Richard F. Taflinger published by the Washington State University, argues, ‘Preconceptions, prejudices, biases, cultural norms and mores, education, superstition, peer opinion, all play their role in an people creating their own realities.’
Taflinger writes: ‘These filters are preconceptions, biases, prejudices and attitudes that influence the way the mind processes information and therefore how the individual constructs his or her world and reality.
‘For example, several witnesses see a traffic accident no one could survive. Nonetheless, nobody is hurt. All the witnesses see, objectively, the same event. Yet, what they “see” differs according to how they filter the information: A devoutly religious person will see the hand of God in sparing the victims; a politician may see a necessity for government action to make that intersection safer; an attorney may see a potential lawsuit; a sexist may blame a driver of the opposite sex. It is a problem well known to law enforcement and the legal profession: Eyewitnesses can’t seem to agree on what they saw. It is not the fault of the witness. It is simply that what is perceived must be understood, and understanding usually comes through relating new information to old. Whatever the old information is influences how the new is understood.’
In fact, what is needed is for the consumer of news to be more discerning and to be aware that the reporter’s worldview or that of a particular media house, are always going to be a component of the news.
This is not a new phenomenon and as I don’t see it dying out any time soon, perhaps then for the sake of transparency the media should drop all pretence at neutrality or objectivity and let the consumer decide if they want to support a particular newspaper, website or broadcaster.
It happens in other democracies such as in Europe, where certain newspapers are known to be right or left leaning as the case may be. In Britain, all newspaper readers know for instance that the Telegraph, the Times and the Daily Mail will favour the conservatives, while the Guardian and the Daily Mirror will bat for the Labour Party.
In the US, it’s the same with newspapers of record such as the New York Times, known to support the Democrats, and others such as the Wall Street Journal that tend to be more conservative in their views and readership.
IDELOGY IN KENYA: SO, WHAT TRIBE ARE YOU?
Of course, the problem in Kenya is that there is no longer any strong ideology guiding political parties and alliances, which again reduces public discourse to the division of tribes.
At Independence, Kanu was perceived as an alliance of the two ‘big tribes’ – the Kikuyu and the Luo – while the so-called smaller tribes tended to coalesce in Kadu.
At the beginning of the second multiparty dispensation in Kenya, at first with the original Ford party, it appeared as though the tribal pairing off had ended, but soon with the splitting of the party into two and later three Fords, it became apparent that Ford-Kenya attracted mainly Luo support while Ford-Asili was supported mainly by Kikuyus (who split their vote with the Democratic Party which cast itself as a party of the wealthy as opposed to a particular tribe) and Kanu was mainly a Kalenjin, Luhya and Kamba outfit.
Since then, the tribal alliances may shift somewhat at the elections, but the parties remain vehicles to propel one or the other tribe to State House. Even the much touted 2002 election that saw Kanu thrown out of power for the first time since Independence, saw tribal chiefs come together as Narc, leaving mainly the Kalenjin in Kanu.
Back in 1992, there were three main daily newspapers: Daily Nation, the Standard and the Kenya Times; two mainstream political news weeklies, Weekly Review and the People newspaper; and two broadcasters, the state-owned KBC with its TV and radio stations and the then Kanu-owned (but not that you’d know it) KTN TV station that tried to act as a commercial entity to counter the state broadcaster, which pretty much gave the opposition a blackout.
The Kenya Times (where, in the interests of disclosure, I worked at the time) was owned by the ruling party Kanu and made no bones about it. The paper supported Kanu and though there was never anything on paper to suggest that this was policy, editorially it did all it could to reflect Benson’s eight violations of media objectivity.
Daily Nation tried to position itself as the newspaper of record and full objectivity, but it was clear to anyone who took an interest in such matters, that the newspaper was pro the DP. It made a point of running DP adverts in a prominent position on its front pages, claiming when questioned that the party had booked the space and elbowed out all the other parties who had to fight for less prominent positions on the inside pages.
Many Kenyans have embraced a poorly regulated social media scene and more and more news websites, a number of them purveying fake news or propaganda, have been taking advantage of this to push their agenda
Though the Standard was at that time owned by the LonRho conglomerate and as such nominally independent, the head of LonRho in Kenya was Mark Too, a known factotum of Kanu’s President Moi, and so while the paper tended to cover the opposition Ford parties, it was clear that in the end it danced to the Kanu tune.
By the 2007 election, the Kenyan media landscape had changed quite a bit from how it appeared in 1992, and so, to some extent at least, had the political landscape.
Kanu, which had been routed at the 2002 election, was now a mere shadow of its former monolithic self and the Kenya Times newspaper had thus fallen on hard times; it would eventually fold in 2010.
Daily Nation, which had for most of the Moi-Kanu regime been broadly opposition-leaning, was under the Kibaki-Narc administration perceived by many to be a pro-establishment newspaper leaving the once pro-Kanu Standard to assume the opposition newspaper mantle while in 2007 the brand new Star newspaper also seemed to favour the opposition.
The once influential state-broadcaster no longer enjoyed dominance of the airwaves as there were now at least 90 private FM stations and more than 15 private TV stations giving it competition and the public, ostensibly more choice – even though many of the private radio and TV stations are owned by a handful of media houses that in turn are owned by leading politicians and their supporters.
AND LASTLY, THE INTERNET: STFU, HATERS
Another difference today is related to comparatively high Internet use in Kenya boosted by better connectivity enabled by submarine cables and the widespread use of mobiles, which has enabled more Kenyans than ever to access the web. In fact, according to Internetworldstats.com, there were 21 million Internet users by December 2013 in a population of 44 million people.
As a result, many Kenyans have embraced a poorly regulated social media scene and more and more news websites, a number of them purveying fake news or propaganda, have been taking advantage of this to push their agenda.
While on paper the country’s Constitution contains potential curbs on press freedom with regard to privacy, incitement and hate speech, from purely anecdotal evidence there would appear to have been very little monitoring of hate speech and political propaganda on the fast growing social media scene or for that matter vernacular radio.
To counter this perception, the Communications Authority of Kenya recently announced plans to monitor social media activity and has reportedly secured monitoring equipment to help it achieve this aim. The regulator has also warned that it could pull the plug on social media if national security comes under threat.
But it remains to be seen whether such measures will be enough to prevent problems the closer the country gets to the election.
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Arror & Kimwarer Dams Saga: Fighting Corruption or Realpolitik?
The cases at the Milimani Anticorruption Court provide few concrete answers amid claims that the investigations into the Arror and Kimwarer Dams projects are politically motivated to weaken Deputy President William Ruto who is running for the presidency.
A joint investigation by IrpiMedia and The Elephant
Soon after Uhuru Kenyatta and his deputy William Ruto secured a controversial second term in November 2017, investigations begun into the procurement and financing arrangements surrounding the Arror and Kimwarer dams in the Rift Valley county of Elgeyo Marakwet.
The dams had been commissioned years earlier, and billions had been paid out but there was nothing on the ground to show for either dam. The Kimwarer project has since been cancelled, the Arror one scaled down, and eight defendants today face charges of conspiring to defraud the government of nearly Sh60 billion. However, there have been claims that the investigations and prosecutions are politically motivated and aimed at weakening Deputy President William Ruto who is running to becoming Kenya’s fifth president. Just this week, during the presidential debate, Ruto essentially said the dams were casualties of the 2018 fallout with his boss. This has been many times denied by the Director of Public Prosecutions.
The two cases dealing with the dams at the Anti-Corruption Court in Milimani, Nairobi, focus on alleged irregularities in the tendering and contracting of the dams as well as alleged illegal payments made to two Italian companies. The crux of the ODPP’s case is that officials of Kerio Valley Development Authority and the national government colluded to grant CMC di Ravenna and its joint venture partner, Itinera S.P.A, a contract for the construction of the two dams for which they had not won the tender and that differed fundamentally from the terms advertised in December 2014, which called for proposals for the “funding, design, build and transfer” of the dams. The eight Kenyan officials in case No. 20 of 2019 and the 18 Italian companies and individuals in case No. 21 of 2019, are accused of executing a sleight of hand, initially pretending that the contractors would mobilize money from the Italian government to build the dams and then switching it to a commercial loan with the government as the borrower. Furthermore, instead of the borrowed money being deposited into the Consolidated Fund as the constitution prescribes, on the contrary, it was sent directly to the contractor. In the ODPP’s view, this is where the fraud arose.
The initial contracting model selected was Engineering, Procurement, Construction and Financing where the contractor also arranges financing for the project through tie-ups with financing institutions. They can be useful when contractors have better access to low-cost financing, including state-provided export-import financing. However, the Parliamentary Service Commission has noted that these contracts are vulnerable to abuse and in 2019 parliament suspended 20 dam projects, including Arror and Kimwarer, saying “Kenyans [were] not getting value for money in this model”.
According to the ODPP, the tendering process for the two dams was riddled with irregularities. In an affidavit sworn in February 2020 on behalf of the DPP, Police Constable Thomas Tanui states that, unlike the Arror dam, the Kimwarer project had not been approved by the Cabinet, as required by the 2013 Public Private Partnership Act (PPA). Further, in the course of the process, the tender documents for CMC di Ravenna were illegally altered at least twice to switch CMC’s joint venture partners from South Africa’s AECOM to a company only known as MWH, and then again to Itinera S.P.A. And while it was Italy-based CMC di Ravenna that made the bid, the tender was awarded to South Africa-based CMC di Ravenna, a different legal entity with whom KVDA signed Memoranda of Understanding regarding the two dams in December 2015 and February 2016 that were meant to end with the signing of concessional contracts within 8 months.
However, the MOUs expired without the concessional contracts being signed and instead, on 5 April 2017, the KVDA signed commercial contracts for the construction of both dams with the Italian CMC di Ravenna and its joint venture partner Itinera S.P.A. for a total combined amount of US$501.8 million, including 10 per cent contingencies that had not been negotiated for under the concessional agreements.
In his affidavit, PC Tanui avers that the dam projects were conceived as concessionary projects under the PPA but were surreptitiously converted into a commercial instead of a concessional contract. However, what the ODPP means by “concessional contract” and how that differs from a commercial contract is not clear. There’s no mention of a “concessional contract” in the PPA which defines a concession as “a contractual licence . . . entitling a person who is granted the licence to make use of the specified infrastructure or undertake a project and to charge user fees, receive availability payments or both”. While the law allows government agencies to “enter into a project agreement with any qualified private party for the financing, construction, operation, equipping or maintenance” of infrastructure, none of the 15 types of public private partnership arrangements it lists in its second schedule seem to fit what KVDA had initially advertised.
However, perhaps what the ODPP refers to as a “concessional contract” is a reference to the way the project was to be funded. According to press reports and Richard Malebe’s petition, the initial charges alleged that the national government and KVDA officials as well as the Italian companies conspired to “entered into a commercial loan facility agreement disguising it as a government-to-government loan guaranteed by the Italian Government . . . ‘while knowing the tender document contained in the request for proposals for the development of the dams project was a concessional agreement where the intended concessionaire was to be the borrower and financier and not the Government of Kenya’”. In essence, by substituting the commercial contract for the concessional one, rather than an arrangement where Government only paid once the dams were delivered, with the contractor and financiers assuming all the risk, it was the public that was left holding the baby when things went wrong. If anything, the Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.
A Treasury press statement dated 28 February 2019, signed by one of the accused, former Cabinet Secretary Henry Rotich claims that the financing agreement for the two dams was “government-to-government” with the Italian government—represented by the 100 per cent owned Servizi Assicurativi Del Commercio Estero (SACE)—providing “insurance cover and financial support” amounting to close to 88 per cent of the total loan amount, with a consortium of four banks led by Intesa Sanpaolo said to provide the rest. The statement details “the Conditions Precedent”, which were payments apparently required before funds could be released to the government and the contractor. These include €7.83 million (Sh951 million) in fees and commissions and €94.2 million (Sh11.4 billion) in credit insurance to cover lenders for both dams. In addition, another US$75.2 million (Sh9 billion), or 15 per cent of the total contract sum for both dams was paid out to the contractor.
The Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.
The Treasury claims these fees and advances were provided for and paid from the loan from SACE and the banks, not Exchequer funds. This aligns with a November 2019 note by SACE to the Italian foreign ministry which states that the agreement required the “payment of the sums due by the Contracting Authority to the CMC-Itinera joint venture through direct disbursement by the lenders on a current account of the contractor opened outside the State of Kenya” —a violation of the Kenyan constitution which requires all sums borrowed by the government to be deposited in the Consolidated Fund. However, according to both CMC-Itinera and a confidential analysis by the ODPP seen by The Elephant, the advance payment was for a total of €66.6 million (Sh8.09 billion), a discrepancy of nearly Sh1 billion. (It should be noted that the National Treasury appears to have entered into a facility contract with lenders in Euros, and payments appear to have been made in the same currency, even though the commercial contracts were in US dollars, which exposed taxpayers to losses through changes in the exchange rates. In this article, we have used the current exchange rates to reflect the amounts in Kenya Shillings.)
Further, according to business journalist Jaindi Kisero, SACE does not appear in the external debt register which raises doubts as to whether they were indeed the main lender. Also, the November 2019 note by SACE to the Italian foreign ministry says the insurance guarantee was “in favor of the Lenders for the entire amount financed”, which seems to say that all the money came from the banks. The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them. It argues that the insurance premium was fraudulent because if the funds came from SACE, as the agreements suggest, it would have been a government-to-government loan which would require no insurance. It concludes that “payments made by GoK were made with the intention to siphon money from the country in the disguise of advance payment, insurance premium and commitment fees”.
Deputy President Ruto has claimed that only Sh7 billion was in question and that the government had a bank guarantee that protected every penny. The Treasury statement seems to back him up, at least as far as the guarantee is concerned, claiming the advance payment was backed by “a bank/insurance guarantee” which would be called “if the contractor is unable to deliver the service to the Government or runs bankrupt”. And in February 2022 Regional Development Principal Secretary Belio Kipsang told Parliament that Heritage Insurance and Standard Chartered Bank had respectively issued insurance guarantees for the advances paid to the CMC Ravenna-Itinera joint venture for Arror (Sh4.1 billion) and Kimwarer (Sh3.6 billion). He said the government had already recalled the Arror guarantee and was planning to do the same regarding Kimwarer, whose guarantee expires in June 2023. However, it is again unclear from his statement what currency the guarantees are in: dollars, euros or shillings. If in shillings, then it seems that up to Sh1.3 billion may not be covered.
The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them.
It is unclear exactly how much Kenya stands to lose given the discrepancies in the currencies used. In total, according to the ODPP, €168.5 million (Sh20.5 billion) was paid between 4 May 2017 and 7 November 2018 to cover the insurance premium, various fees as well as the advance payments. The statement from the Treasury, as noted above, puts this figure at €102 million and US$75.2 million for a total of Sh23.5 billion at current rates. In addition, the external debt register lists Kenyans as being on the hook for the entire loan amount of €578.4 million (Sh70.3 billion) which stands to be repaid until November 2035. Yet it does not seem that any further disbursements have been made by the banks to the companies beyond the insurance premium, fees and commissions and the advance payment. Why the full loan amount would be reflected as drawn down in the debt register is a mystery. It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.
The cases at the Milimani Anticorruption Court provide few concrete answers. There are currently two cases, consolidated from the initial four—two cases for each dam dealing separately with charges of financial and procedural irregularities. Each of the four initial cases had numerous defendants including directors of companies based in Italy who refused to come to Kenya to take plea, occasioning long delays. Eventually, all the cases were consolidated into two, with Case 20 of 2019 having 8 accused persons based in Kenya, and Case 21 of 2019 dealing with the alleged crimes of 18 Italian individuals and companies. This arrangement has allowed the Kenyan cases to proceed with the first witness out of 57 taking the stand in November last year.
One strange thing about the cases filed by the ODPP is that while they allege a conspiracy to defraud the government through the commercial agreements, there is little indication of the other side of that coin: how did the individuals involved benefit from the scheme? No one is charged with paying or receiving a bribe and there has been little evidence produced so far to warrant the many press allegations of corruption and kickbacks. According to a report in the East African Standard, Sh450 million was “wired by the Treasury to Italian firm CMC di Ravenna . . . was sent to an account in London then Dubai and later to Nairobi”. One of the report’s writers, Roselyne Obala, would later add that the same Sh450 million was part of a larger payment of over Sh600 million and that it was paid to an account in Barclays Bank in Nairobi. However, none of this is in the charges preferred at the Anti-Corruption Court. Further, it is unclear whether “over KSh600 million” refers to the much larger advance payments which, in any case, was (illegally) transferred directly by the banks in London to the companies. Further, the absence of prosecutions within Italy, which has a law criminalizing Italian companies paying bribes to public officials abroad in return for contracts, suggests that there is no evidence that a bribe was paid in this case.
There have been allegations raised that the prosecution of the dam cases was politicised, targeting allies of Deputy President William Ruto. In October last year, Rotich instituted a petition at the Milimani High Courts questioning why the DPP left out key personalities involved in the tendering process such as the former Attorney General Githu Muigai, solicitor general Njee Muturi and former Environment CS Judi Wakhungu. Rotich has also argued that he was not responsible for procurement of the tenders and was not the accounting officer at Treasury. “It is absurd that the respondents chose to charge me while the Attorney General is not charged in this respect. This is an indication of selective prosecution that cannot stand the test of objectivity and fair administration of action,” he argued in the petition. Others have pointed to the dropping of charges against members of the KVDA Tender Committee as well as some of Rotich’s co-accused, former Treasury PS Kamau Thugge and Dr Susan Koech, a former PS in the Environment Ministry, as proof of malicious prosecution.
It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.
Regarding the latter accusation, it is notable that many of the former accused have actually become witnesses so it may just be a case of the DPP using the small fry to net the “big fish”. However, when it comes to why the former AG, the solicitor-general, and the various ministers who oversaw KVDA between 2014 and 2019 are not in the dock, the answers are not so convincing.
A bigger source of discontent is the lack of similar prosecutions over similar projects. For example, the contract over the Itare Dam in Nakuru, also in the Rift Valley, features the same set of characters—SACE, CMC di Ravenna, Intesa San Paolo, BNP Paribas—and was the first dam awarded to the Italians in 2014. After advance payments of Sh4.3 billion were paid out, the project appears to have collapsed. As Nakuru Senator Susan Kihika noted in February 2019, “It . . . seems as if there is no equal treatment of all the projects across the country.”
In 2013, CMC had signed a consultancy contract with Stansha Limited, owned by Stanley Muthama, the MP for Lamu West, in which Stansha pledged to help CMC in its bid for tenders for the construction of Itare Dam, which is under the Rift Valley Water Services Board, and Ruiru II Dam under the Athi Water Service Board, for a fee of 3 per cent of the contract value. For Itare, it came to Sh330 million. According to the ODPP analysis, on 25 November 2015, a Stanley Muthama identified as “Staff CMC Kenya office” participated in a high-level “clarification meeting” with KVDA officials regarding the tender for the Arror dam, one of the decisive meetings for the award of the contract. Among those at the meeting were Paolo Porcelli and Gianni Ponta, two CMC officials the ODPP has charged, among others, for having “conspired to unlawfully have the services of CMC di Ravenna-ITINERA JV procured by KVDA for the development of Arror and Kimwarer multipurpose dams”. There is however no Stanley Muthama being prosecuted by the ODPP in the Kenyan case and no suggestion of any wrongdoing with regard to the contracts.
There, however, seems to be a pattern emerging where CMC di Ravenna—which has been in economic turmoil for four years; in 2018 it owed creditors €1.5 billion euros—receives advance payments for projects it does not thereafter complete. In Nepal, a US$550 million contract for the construction of a hydroelectric plant was terminated in 2019 and the company ordered by an Italian court to return €15 million to a bank in Nepal that had financed the project. CMC had not warned the Nepalese bank of its financial problems and had not even begun the work.
In Kenya, though, the two Italian firms have also claimed the cases were politicised and lacked grounds. In December 2020, they filed a suit at the International Court of Arbitration at the International Chamber of Commerce claiming they were victims of power politics between President Uhuru and his deputy William Ruto. They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations and are demanding US$115 million (KSh13.7 billion) in compensation for the cancellation of the contracts.
A bigger source of discontent is the lack of similar prosecutions over similar projects.
“It seems hardly coincidental that the highest ranking official to be investigated and charged in the criminal proceeding is Kenya’s Treasury CS Mr Henry Rotich, an ally of Mr Ruto,” stated the court document as reported in Business Daily. They claim that allegations of impropriety did not surface until two years after the contracts were signed and that KVDA had admitted that the projects had been politicised with an intention of terminating them.
In notes sent to the Italian Foreign Ministry, the joint venture complains of “delays in the payment of fees [by Kenya] to the Agent Bank with the risk of blocking future disbursements”. The companies blame the failure of the project to get off the ground on the failure by KVDA to deliver the necessary land, a claim repeated by Deputy President Ruto during the presidential debate in July. They also claim that import permit exemptions had not yet been issued.
President Kenyatta has also reportedly tasked AG Paul Kihara and Head of Public Service Joseph Kinyua to negotiate with the joint venture to seek an amicable settlement although it is curious that Kenya would seek to pay off the very companies it accuses of conspiring to defraud it. The country has, however, trodden this route before. In 2014, President Kenyatta ordered payment of Sh1.4 billion to briefcase companies for termination of contracts to supply telecommunication equipment and bandwidth spectrum, part of the Anglo Leasing scam where billions were paid to fictitious companies for security-related contracts.
Further, in May last year, SACE wrote to the AG, the Treasury and the Ministry of Foreign Affairs saying that Kenya could get a partial refund of its insurance premium but only if it committed to paying off the banks on whose behalf the country had taken out the policy. And the letter included a not-so-subtle hint that Kenya’s relationship with Italy was on the line.
They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations.
In brief, it seems clear that there were serious irregularities during the tendering and contracting for the two dams. KVDA tendered the projects under the PPA for a concessional arrangement but awarded a commercial contract under the Public Procurement and Disposal Act to a legally different entity from that which had won the tender without beginning the process afresh. Further, the arrangements to transfer money directly from commercial banks to the contractor seem clearly illegal and the shift from a concessional arrangement to a commercial one probably means Kenyans ended up paying more—including for unnecessary insurance. However, no money appears to have been paid out directly from the Exchequer, although the fees, commissions and advance payments have accrued a debt of up to Sh23.5 billion (at current exchange rates), less than a third of which may be covered by bank/insurance guarantees. Assuming the debt register is mistaken when it lists the entire loan amount, and that the guarantees by Standard Chartered Bank and Heritage Insurance are eventually honoured, Kenyans would still be, when we eventually get round to paying it, out of pocket by around Sh13.5 billion, the sum of the insurance premium (part of which we may get back), the various fees and commissions, and the exchange rate costs. As noted, no one has been accused of actually pocketing bribes. It also does not seem like either Kenya or the banks are pursuing a refund of the money paid to the joint venture in the Italian courts.
The biggest obstacle to a clearer understanding of what is happening with regard to the Arror and Kimwarer dams is the political whirlwind around it. Adding to the confusion is the language employed—terms like scam and kickbacks—suggesting that the officials involved pocketed bribes, whereas they are not actually accused of any of that. Further, journalists have tended to report the story much like the proverbial blind men of Hindustan—each accurately describing a part of the elephant’s anatomy, but not able to grasp the entire animal., It is to be expected that, even after the general election, the controversy surrounding the Arror and Kimwarer dams will continue to generate more political heat while shedding very little light.
Election 2022: Will the Incoming Leaders Deliver the Promises of Devolution to the People of North-Eastern Kenya?
The leadership is simply not investing in priority areas. The livestock sector, the main source of livelihood and the economic mainstay of the region remains highly underinvested.
Kenyans will go to the polls on 9 August to elect their representatives at the national and county levels. The upcoming elections are the third in Kenya under the 2010 constitution that introduced devolution. Instituted in 2013, devolution sought to bring government closer to the people by devolving political and economic resources to Kenya’s 47 county governments, to better address the local needs of Kenyans.
Just like the rest of Kenya, the residents of the three north-eastern counties of Garissa, Wajir, and Mandera where I was born and brought up, will once again go to the polls to elect their representatives: governors, members of county assembly, women representatives, members of the national assembly, and senators. Those who will be elected will be in charge of managing devolved resources at the county level for the next five years.
In the last decade, devolution could potentially have transformed the lives of the people of north-eastern Kenya but, unfortunately, this has not happened, despite the accrual of substantial funds and political power; the billions of Kenya shillings that have gone into the region have not brought improvements. On the contrary, some sectors such as healthcare and water service provision, have seen a decline or remained the same despite billions of Kenya shillings being pumped into these sectors in the last 10 years. Northeastern Kenya remains one of the most underdeveloped regions in Kenya, lagging behind the rest of Kenya in almost all development indicators, and the people are among the poorest in the country. The majority lack access to basic services and infrastructure such as water and healthcare, good roads and electricity.
The lack of progress in the last ten years is largely attributed to poor governance and the massive theft and misappropriation of public resources by elected leaders, the region’s elites and public officials. All indications are that massive graft, corruption, and misallocation of political and economic resources have stunt the region’s ability to take advantage of devolution and catch up with the rest of Kenya. Resources meant for the population are being misappropriated and the leadership has nothing to show for the ten years after devolution existence; blatant theft and embezzlement of public funds and misgovernance have been its defining characteristic in the last ten years.
This article is a review of devolution in north-eastern Kenya ten years after its inception. It focuses on the three north-eastern counties of Garissa, Wajir and Mandera and is a reflection of the writer’s assessment of devolution in north-eastern Kenya over the last ten years. The situation described above is similar elsewhere in the larger northern Kenya in the counties of Marsabit, Isiolo, Tana River, Samburu, Turkana, and West Pokot, but this piece focuses exclusively on the three north-eastern counties.
The lack of progress in the last ten years is largely attributed to poor governance and the massive theft and misappropriation of public resources by elected leaders, the region’s elites and public officials
Disclaimer: By highlighting the failures of devolution and how it has not delivered for the people of north-eastern Kenya, the writer is by no means advocating for the previous Nairobi-based centralised governance system where resources were shared only by a few at the centre (1963-2013), a system that had neglected and marginalized the region for far too long, denying it investments, the cause of the current predicament the region faces today.
The current failure of devolution in northern Kenya is partly tied to the failure at the centre; the ills of the centre have been replicated at the periphery. Under the Jubilee government, the national government has since 2013 experienced astronomical levels of corruption and theft of public funds affecting public sector institutions than any other time in Kenya’s history. National state oversight institutions mandated to fight corruption at both levels of government have been unable or unwilling to effectively carry out their oversight duties. Also, of importance to note is that, the widespread allegations of corruption and misappropriation of public funds are not unique to the counties of north-eastern Kenya but are also reported across most of the country’s 47 counties and this has greatly demoralized Kenyans.
Blatant theft of public resources
In north-eastern, county officials and leadership, including governors, executives and other public officials are stealing from the people. Over the years, the office of the Auditor General has exposed massive misappropriation of resources and irregular procurement rules. General public perception in the region is that the leaders are not serving the people’s interests, but are only enriching themselves with the resources they have been entrusted with, with impunity and zero accountability. As a consequence, the electorates have given up and resigned themselves to their fate, leaving it to God to will punish the thieving elites in the hereafter.
Over the last decade, and during the tenure of the last two county administrations, the elected governors have turned the north-eastern counties into family “fiefdoms” and “small monarchies” similar to Middle East monarchies where those who benefit most are the immediate family members, close friends and cronies. Nepotism and favouritism have become widespread, and governors and their appointed county executives use relatives, including extended family members and close friends as proxies to siphon off public resources meant to benefit citizens. Across the three counties, the governors and other senior county public officials have put close family members and relatives on the county payroll as ghost workers who have no job descriptions, actual portfolios or offices. Individuals who have previously never worked in any major capacity and have little experience are given high paying public jobs only because they belong to the right families or know the right people.
Governors, county executives and elected local leaders also use proxies and companies owned by friends and close family members to obtain lucrative multimillion contracts. For the five years the governor and the county executives are in charge, they and their proxies remain inaccessible and out of reach of the ordinary mwananchi.
A small portion of the loot is laundered in the region. Much of the looted money is laundered in major cities such as Nairobi and Mombasa, where the county leadership uses the ill-gotten wealth to invest in residential properties and shopping malls. County governors and their executives have bought houses, apartments and palatial homes worth hundreds of thousands of US dollars in Nairobi’s upscale residential areas such as Kilimani, Kileleshwa, Lavington, Parklands, Karen, Spring Valley and others. One favourite estate among senior Somali county officials from northeastern is the South C neighbourhood, where a high number of county executives live and operate from, instead of their respective county headquarters. They either pay high monthly rents or have bought expensive apartments and houses. The Eastleigh neighbourhood the looted public money is “reinvested” in businesses in the form of shopping malls. Some use the looted public resources to marry second and third wives or to purchase vehicles worth many times their annual salaries as county officials, while others have used the plundered money to go to Mecca on pilgrimage and “contribute” to religious causes such as building mosques and Islamic madarasa schools. Governors, specifically, have moved some of their ill-gotten wealth abroad, especially to the Middle East and Turkey. Other favourite destinations include Dubai and Turkey where the governors have bought palatial holiday homes and apartments in cities such as Ankara, Dubai, Abu Dhabi, and elsewhere.
All north-eastern governors have offices in Nairobi where they spend a ood part of their time instead of operating from their county headquarters. Governors and county executive members also hold county executive meetings in Nairobi instead of the county headquarters. You will also find that many county officials such as executive members, chief officers and members of county assemblies are ever present in Nairobi, operating from the city instead of operating from their respective county headquarters.
The current failure of devolution in northern Kenya is partly tied to the failure at the centre; the ills of the centre have been replicated at the periphery. Under the Jubilee government, the national government has since 2013 experienced astronomical levels of corruption and theft of public funds affecting public sector institutions than any other time in Kenya’s history.
Why is this the case? How are elites able to steal with impunity? The stealing that happens in the counties mostly happens through the flouting of public procurement rules, inflating the price of projects and at times even budgeting for non-existent projects. Kenya has been plagued by corruption since independence, but corruption and blatant theft of public resources has become commonplace since 2013 when the Jubilee Party led by Uhuru Kenyatta came to power. Under the Jubilee government, corruption cases involving the blatant theft of billions of shillings of taxpayers’ money have become the norm since 2013. Pervasive institutional corruption at the centre has spread to the periphery through devolution and, therefore, political and economic devolution to Kenya’s 47 counties has only enabled the creation of another cadre of corrupt elites with the ability, through elections, to capture institutions and resources. What used to happen at the centre has been replicated at the county levels through devolution; county leaders plunder everything from nationally devolved county funds to donor contributions. They take for themselves and their proxies the most lucrative contracts. Development projects in the region have become contractor- and vendor-driven with the governors, deputy governors, county executives and elected members of county assemblies being the biggest beneficiaries.
The looting of public resources has largely been successful and continues unbated due to weak government oversight institutions such as the anti-corruption agency, the Ethics and Anti-Corruption Commission (EACC), the Department of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (DPP). The lack of effective anti-corruption mechanisms and political will at the national level to fight graft plays a major role in fuelling graft and theft at all levels of government. Inessen ce, there is little to no risk of being held accountable and this explains why the leaders are unafraid. Not a single culprit who has stolen from the people in the last ten years is behind bars because of what he or she has done, despite large-scale corruption and mismanagement.
Poor service delivery
The mismanagement, graft and elite capture of county resources has resulted in poor service delivery to the people of north-eastern counties. A major challenge is that the leadership is unable to prioritize development that would transform and improve service delivery. Despite the billions in investment – cumulatively, the three counties received close to Shs100 billion in devolved funds over the last ten years – there is nothing much to show for it. Also, the leadership is simply unwilling to prioritize and invest in areas of public need where the impact would be greatest. Instead, funds are spent as they come in poorly thought-out contractor-driven “development” projects. As a consequence, crucial sectors such as livestock and water, healthcare, and education provision, where the needs of the population lie, have been ignored and, in some instances, the quality of services has deteriorated compared to the period before devolution.
In the counties, the easiest way to steal public funds is through infrastructure projects that are of no benefit to people, such as repairing a rural road that does not actually require refurbishment. Millions in resources have been poured into the construction of structures that now lie idle. For instance, it is quite common to build a structure in a certain village and label it “a health centre” or “a market” even as it remains unoccupied and abandoned. No health workers, equipment and drugs are deployed to the structure to make it an operational health facility. Office blocks are also be built which then remain unoccupied.
To symbolize misplaced priorities, the leadership has invested millions in ultra-modern office blocks, and residences for the leadership, instead of fighting poverty and investing in critical infrastructure such as water, healthcare and fodder for livestock at this time of severe drought.
The leadership is simply not investing in priority areas. The livestock sector, the main source of livelihood and the economic mainstay of the region remains highly underinvested. The recent response to the drought emergency is a testament to the ineffectiveness of the county leadership in responding to emergencies and assisting people at a time of need. Last year alone, millions of head of livestock died after water pans and grasslands dried up following a severe drought season. The drought is even now ongoing. Had the county and national governments intervened and provided needed water and fodder for the livestock, the deaths of millions of head of livestock, which are people’s livelihoods, could have been prevented. The pastoralists had no one to turn to as the response from both counties and the national government was lacklustre; the pastoralists had to fend for themselves, buying water for their livestock from private water vendors at an exorbitant cost. On average, one water truck cost between KSh10,000 and Sh50,000 depending on the distance from water sources, which in many cases are at the county headquarters. I witnessed residents of Wajir County who live far from the county headquarters having to wait for “their turn” to receive water supplied by trucks contracted by the county government. In one village less than 50 kilometres from Wajir town, residents had to wait more than 14 days for their turn to receive water. And when the one truck arrived at the village of 300-plus residents, it could only provide water for the people but not their livestock. In many of the less accessible villages in Wajir, help from the county government never arrived.
To symbolize misplaced priorities, the leadership has invested millions in ultra-modern office blocks, and residences for the leadership, instead of fighting poverty and investing in critical infrastructure such as water, healthcare and fodder for livestock at this time of severe drought.
North-eastern is most water-stressed region in Kenya, the number one hurdle that the people of the north-eastern face. Obtaining drinking water for both people and their livestock is a major challenge. Unfortunately, the region’s leadership has not been willing to find a sustainable solution to the perennial water shortage, the most common response to “alleviate” the water problem in the last decade being the construction of expensive water pans and boreholes. The big ugly holes dotting the landscape serve as temporary rain water reservoirs, but do nothing to solve the perennial water problem in the region. The leadership prefers them because they are easy to implement as they do not involve much technical skill and are normally constructed at inflated cost. Water pans are not a sustainable long-term solution as they dry up almost immediately at the onset of the dry season.
Ten years after devolution, and after receiving billions of shillings annually including in allocations for the water sector, residents of Mandera County headquarters do not have access to running water in their homesteads. The Mandera leadership has been unable to tap the waters of River Daawa, which flows through the county headquarters for most of the year. The county residents rely largely on commercial water vendors.
The World Bank-funded Water and Sanitation Project meant to connect households to piped water, provide community water points, and improve sanitation services in Wajir Town, the Wajir County headquarters, is failing largely because of lack of county leadership, and elite competition for contracts related to the project.
Half of the homesteads in Garissa Town do not have access to running water. Those that do have access to water benefited from a water project that was undertaken in the town during President Mwai Kibaki’s 2003-2007 administration. This means that from 2013 to 2022 the Garissa County leadership has not done much to expand water provision. This is despite River Tana flowing right through Garissa Town to drain into the Indian Ocean.
The health sector is an area that has seen a deterioration in services during devolution. Hospitals and health centres have been incapacitated from lack of staff, lack of adequate medical equipment and essential supplies such as drugs and laboratory reagents.
The three main referral hospitals in the region are run down. Public health facilities have collapsed to the extent that they do not offer basic services such as CT Scans; citizens are forced to seek such services in private facilities at exorbitant prices. When medical equipment such as MRI machines and CT Scans break down, the authorities take months to have them fixed. As an example, when the MRI machine at Garissa’s main referral hospital broke down, it took the administration months to have it repaired. On a visit to Wajir Referral Hospital in Wajir town, I found that the hospital did not have staplers to pin papers together, staff in the maternity ward were using bandages to tie papers together, a situation that persisted throughout the period of one week that I visited a sick relative in the hospital’s maternity wing. Upon enquiry, I was informed by the staff that this had been the situation for weeks. They also told me that it was common for them to run out of other basic essentials such as cotton wool.
A call to the people of north-eastern counties
This is a wakeup call and a public appeal to the people of north-eastern Kenya to elect people of integrity in the upcoming election on 9 August. It is only the electorate who can stand up to and liberate their counties and resources from the thieving “leaders” who have captured and appropriated the county resources. The electorates should give priority to electing leaders of integrity who have a good track record. It is time to reverse the misgovernance and misappropriation of public resources of the last ten years.
Statutory government oversight institutions such as the EACC, DCI and the DPP have spectacularly failed to rescue the counties from the thieving elites. Despite the wanton theft and loss of billions, the corrupt are walking free and are not held accountability. On the contrary, they flaunt their ill-acquired wealth in front of the poor citizenry they have stolen from.
No single public official has been apprehended and convicted for stealing and misappropriating public resources in the last ten years. However, we should not lose hope. Hopefully, the next national government that will be elected in Nairobi in August will prioritize the fight against corruption and theft of public resources, and reform and empower anti-corruption agencies.
In the meantime, the citizens of north-eastern should not give up and resign themselves to their fate, but rather, use the power of the ballot to vote in good leaders who will serve them.
Kenya’s Internally Displaced: An Enduring Colonial Legacy
Whoever between Raila Odinga and William Ruto takes the presidency of this country after 9/8 must find the moral courage to finally break with a colonial legacy that has relegated thousands of our co-citizens to a life of unending misery and despair.
The long-awaited rains are finally here and yesterday’s dry, cracked black cotton soil that we here call kagenyo has turned into a gluey, slippery mess that sticks three inches thick to the soles of your shoes. I am struggling to keep my sneakers on as I make my way up the path to Wanjĩra’s* homestead.
Wanjĩra greets me at her gate and stands there, not showing any signs of inviting me in. Her handshake is firm and her manner brisk, a big woman in a body fed mainly on stodge. Clearly, Wanjĩra is waiting for me to get to the point of my visit so, in the manner of country people, and to break the ice, I begin by observing that, thank God, the rains are finally here. Wanjĩra turns her head, points her chin at the field behind her wooden cottage and says that she’s wondering whether she should bother to start over again. She had planted the early-maturing Pioneer variety of maize seed in anticipation of the long rains but nothing had come of that and the shoots had died in the ground, beaten down by the unyielding sun. Will the rains be sufficient this time round? There follows an awkward silence; where does one begin when one is intruding on the already difficult lives of those displaced by politically instigated violence?
I had learnt only recently that there were internally displaced people living not five kilometres down the road from me, further inland, and I determined to find out their circumstances, concerned that there could be desperate cases—like those I had found at Shalom—living within my community. That is how I ended up at Wanjĩra’s gate, led there by her orphaned niece, a twenty-something young woman with an infant strapped to her back.
Wanjĩra was born and raised in Londiani, Kericho County. Like many Kikuyus of his generation, Mũreithi, Wanjĩra’s father, had been uprooted from his home in Mũrang’a and moved to a colonial village under the colonial government’s villagisation programme that, by the end of 1955, had “relocated some one million Kikuyu into 804 fortified, policed and concentrated villages from their scattered homesteads that were in turn demolished”. From here, having been fingerprinted and with a mbugi around his neck, “no longer a shepherd but one of the flock”, Mũreithi was removed from the kiugũ, the cattle pen, as Wanjĩra sardonically described the village, shoved onto the back of a lorry and transported to Londiani on the other side of the country, never again to return to Mũrang’a. Mũreithi’s final destination was a settler’s farm where he earned a monthly wage of two shillings and fifty cents as a farm labourer. He married and brought up Wanjĩra and her siblings on that pittance but was never able to find the wherewithal to buy land of his own when independence came. A son had done well enough to purchase a quarter-acre in Karamton, Nyandarua County, and this is where Mũreithi was buried when he died.
Born in 1958 and now with a family of her own, Wanjĩra worked in the Londiani Forest planting trees in exchange for permission to grow crops in the clearings, while also slowly building up a herd of 38 cattle that she would graze in the forest. But the violence that broke out following the 2007 general election would prove to be the final straw for Wanjĩra and her family; she and her husband gathered up their eight children and fled Londiani. When the couple married, Wanjĩra’s father-in-law had made room on his one-acre piece of land for the couple to establish a home and raise a family. But beginning in early 1992, the family’s hold on life became increasingly tenuous as the clashes that broke out in late 1991 in Tinderet in Nandi District spread like wild fire to Londiani and other parts of the Rift Valley. The family hunkered down and survived the onslaught but found their lives once again threatened by the politically motivated ethnic violence that followed in the wake of the December 1997 elections. They survived that spate of violence too and carried on with their lives.
But a decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death. Living under constant threat of violence took its toll on Wanjĩra’s parents-in-law and both died within months of each other. Hardly were they buried on their one acre but Wanjĩra and her Kikuyu neighbours were surrounded by hostile youths blowing cow horns and wielding bows and arrows. The herd she had so painstakingly built over time was driven away before her very eyes and her home was razed to the ground. Wanjĩra and her family fled without a backward glance, her husband with three arrow wounds in his side.
A decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death.
Unlike the many displaced who ended up at the Nakuru Show Ground where disease was rife and the hardship beyond endurance, Wanjĩra and her husband took their family to Gatundu North. Someone had told them that they could live and grow their food inside Kieni Forest in exchange for providing labour to plant trees. From 2008 to 2013, the family joined those who had moved into the forest following the 1992 clashes, living under plastic sheeting in a river valley inside the forest, co-existing with marauding elephants as best they could until the government sent in the General Service Unit to evict them. Following a stand-off, the 805 families squatting in the forest were eventually paid 400,000 shillings each by the government in lieu of land, and it is this payment that enabled Wanjĩra and her husband, together with four other families that had also taken refuge in Kieni Forest, to buy land in Ndaragwa in Nyandarua County.
Like much of the land in this part of Nyandarua County that borders Laikipia East, the land on which Wanjĩra and her family finally settled had been occupied by a British settler in colonial times. The 3,400-acre ranch was eventually sold in 1964 to a group of Kenyans who ran it commercially for almost two decades, growing wheat and keeping livestock, before they subdivided the land among themselves. Over time, some of the owners have further subdivided their farms, bequeathing the parcels to their offspring or selling them to those like Wanjĩra’s family looking for land on which to (re)settle.
Just a kilometre or so down the road from Wanjĩra’s homestead, one such landowner sold some 30 acres of his land to the government to be subdivided amongst victims of the 2007/2008 post-election violence, each family receiving two and a quarter acres. Waithiageni does not know exactly how old she is. Ndiathomire, she tells me, I did not go to school. But she thinks she was about eight years old when her father moved the family from Mũrang’a to what was then Kisumu District. Waithiageni’s father had left his family behind and moved to Nakuru to work on a settler’s farm. Come independence, he applied to be resettled on the Koru Settlement Scheme and moved his family there.
Waithiageni now lives by herself in a corrugated iron shack by the side of a dusty track, having been chased off her father’s 20 acres at Koru and losing her only son in the 2007/2008 post-election chaos. To survive, the now elderly Waithiageni depends on casual work, when it can be found, and on the kindness of her neighbour Nyagũthiĩ, a mother of two grown-up daughters who escaped the violence at Londiani in late 2007.
A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves. The closest source of water is a trek downhill to the Pesi River, the nearest school miles away and the health centre further beyond. No matatu comes this way and a boda boda ride to the trading centre along the Nyeri-Nyahururu road will set you back 300 shillings, a day’s wage in these parts. The 25,000 shillings they had each received to build a home and the 10,000 shillings start-up capital did not stretch far enough and eight of the twelve families left within the year to find a more hopeful livelihood elsewhere.
Kenya is a state party to the Great Lakes Pact, one of the few international agreements that address displacement in a comprehensive and holistic manner. Kenya domesticated the Pact’s Protocol on the Protection and Assistance to Internally Displaced Persons through an act of parliament on 31 December 2012. It establishes a legal framework for the protection of IDPs through the incorporation of the United Nations Guiding Principles on Internal Displacement into domestic law.
A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves.
Specifically, Section 9 of the IDP Act foresees that “The Government shall create the conditions for and provide internally displaced persons with a durable and sustainable solution in safety and dignity. . .” and that, among others, the following conditions for durable solutions shall apply: long-term safety and security; enjoyment of an adequate standard of living without discrimination; access to employment and livelihoods; and access to effective mechanisms that restore housing, land and property.
In November 2013, Nelson Ributhi Gaichuhie, then Chairperson of the Departmental Committee on Administration and National Security, made a statement in parliament to the effect that the government had fully complied with Section 9 (3) of the IDP Act, saying that those affected had been provided with relief food and decent housing. However, to put it in Kenyan parlance, things on the ground are different. Eight years after they were dumped by the government in their new “home”, Wathiageni and her neighbours still live in what can only be described as hovels lacking even the most basic of amenities. Eight long years on, the government has yet to undertake the necessary surveying to allow for subdivision of the land into individual parcels and so, unable to work their land, and without title, they live huddled together on a bare patch by the roadside, walking miles each day in search of casual labour on other people’s farms.
As for Wanjĩra’s family, the 400,000 shillings that it finally received in compensation was just about enough money to buy two acres of land and put up a small wooden structure to house the family of ten. After years of ill health compounded by the hellish living conditions in Kieni Forest, Wanjĩra’s husband died in 2016 and was buried on his land. Her first-born son followed soon after. Her seven surviving children are now grown and two have established their homes on the family’s land. Wanjĩra says that, having lost everything in Londiani, rebuilding what the family lost without resources seems like an insurmountable challenge. On a neighbouring farm is a neatly tended field with onions planted in zai pits. Wanjĩra tells me the land is leased by a farmer with the means to bring water up from the Pesi River about a kilometre away. Wanjĩra hasn’t those means; she must wait for the rains.
The second of the Great Lakes Pact’s ten protocols that is particularly relevant to the internally displaced is the Protocol on the Property Rights of Returning Persons that requires member states to provide legal protection for the property of the displaced and establish legal principles on the basis of which they are able to recover their property. But while the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government appears to have thrown in the towel even before it has started. The following statement from Gaichuhie to parliament makes clear that the government has no plans to ensure that those who lost land and property recover them or are adequately compensated:
“Some of them have title deeds. Very few of them have not been able to go back to where they were living. But I can tell you that most of the IDPs were business people in major towns. That is why the Government has decided that rather than wait to buy land and give it to somebody who had a big supermarket in town, it would give such individuals Kshs400,000 to start businesses. So, not all the IDPs had land. Some of them were businessmen. Some had land for which they did not have title deeds”
The IDP Act became operational in 2013 but the constitution of the National Consultative Co-ordination Committee (NCCC), the body tasked with implementing the Act, was only gazetted in October 2014 and the Chair of the committee appointed in November 2014. Patrick Githinji, who had been appointed to the committee as one of the two IDP representatives foreseen in Section 12 (3)(i) of the Act, and with whom I spoke at length on the 3rd of August 2022, explains that the committee commenced its work in April 2015, and its first task was to vet the internally displaced still living in 65 camps across the country with a view to compensating them and shutting down the camps. This task was accomplished by mid-2016 and—with the exception of Muhu Camp in Nyandarua County and Donga Farm in Subukia in Nakuru County, because the land bought by the government for the resettlement of these IDPs is in dispute—all the camps were closed and 11,000 households were paid 200,000 shillings each, the government having argued that it could no longer afford the 400,000 shillings it had paid to Wanjĩra’s family and others in 2014.
While the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government seems to have thrown in the towel even before it has started.
The next task of the committee was to ensure the compensation of the so-called Integrated IDPs (that is, those living dispersed among communities, whether with relatives or friends or in rented accommodation in urban or peri-urban areas) who numbered 193,000 households according to government records. They were offered a paltry 10,000 shillings in compensation which they turned down. Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households. Of these, 30,000 households were never paid, the government having recalled the funds from the disbursing banks. As it turns out, Wanjĩra and Waithiageni are the lucky ones.
According to an undated confidential report of the Refugee Consortium of Kenya available online, the NCCC is no longer operational. This is confirmed by Githinji who says that although the term of the first NCCC was to end in December 2017, by September of that year the NCCC secretariat had been shut down and seconded staff recalled to their respective ministries.
Together with other members of the National IDPs Network-Kenya, Githinji eventually petitioned the Senate in October 2020, alleging that there were attempts to repeal the IDP Act. In their petition, the group also claimed that land bought by the government to resettle IDPs had been illegally allocated to non-IDPs or grabbed by individuals, and that many IDPs continue to languish in makeshift tents. They also accused the government of refusing to release the funds due to Integrated IDPs because of identification errors introduced into the records by the government’s own officials, and lamented that there was no government authority at whose door they could lay these claims.
Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households.
Upon receipt of the petition, the Senate invited the group to appear before the Senate Committee on Lands, Environment and Natural Resources chaired by Sen. Mwangi Githiomi in November 2020, where, following a two-hour meeting, they were advised to table a fresh petition using the Senate’s guidelines. This they did and it was agreed that the group would again meet with the Senate Committee after the Christmas recess, in February 2021. They have no news since.
By the time the IDP Act was enacted in December 2012, another 112,000 people had joined the ranks of the internally displaced, followed by a further 55,000 in 2013, over 220,000 in 2014 and over 216,000 by mid-2015 (even as the NCCC was finally sitting down to its task), most of them victims of inter-communal violence. Meanwhile, as recently as October 2021, members of the National IDPs Network-Kenya were appealing to President Uhuru Kenyatta to finalise the resettlement and compensation process for those IDPs that were forced to flee their homes in 2007/2008 before the end of his term. Both President Kenyatta and his Deputy William Ruto had made numerous promises on the campaign trail in the run-up to the March 2013 general election—while facing charges of crimes against humanity at the International Criminal Court in the Hague—that all the displaced would be resettled within the first 100 days of their administration if they were elected.
In the face of government inaction, some of the Integrated IDPs who were denied compensation in 2017 have converged on Kianjogu, in Laikipia County, occupying land that was purchased by the government for IDP resettlement but never subdivided. They arrived in March/April of this year from Nyeri, Nairobi, Uasin Gishu and other counties across the country and are living in Kianjogu much as they did when they were first forced to flee their homes, massed together in unsanitary conditions and refusing to yield to threats from the government.
It would appear that the IDP Act was cynically enacted for the sole purpose of creating a vehicle—the NCCC—to facilitate the closure of the tens of camps strewn across the country and disband their residents; out of sight out of mind. If that is the case, then the government has circumvented its duty not only to address the plight of generations of IDPs, but to also provide assistance and protection to the newly displaced, and to put in place structures and measures to prevent further internal displacement. The outgoing government of Uhuru Kenyatta and his deputy William Ruto has instead chosen to perpetuate the generational suffering of Kenyans who were first forcibly evicted or were caused to leave their homes by the brutal and inhumane rule of the British colonial government.
Over the century since the Maasai were forcibly removed from their lands in the central Rift Valley in 1904/1905 to make way for white settlers, successive regimes have overseen the destitution of hundreds of thousands of Kenyan families. In the post-independence era, many have been forced to leave their homes by politically instigated violence where community is set against community, or by drought, famine, man-made disasters such as the Solai Dam tragedy and development-induced displacement. These hundreds of thousands of our co-citizens exist in the shadow of our lives and many lie in unmarked graves awaiting increasingly illusive justice.
The new government must, therefore, and with great urgency, operationalize the IDP Act and revive and properly reconstitute the NCCC so that it can continue with the arduous task of ensuring that durable and sustainable solutions are found for all the internally displaced. In finally beginning to properly address the plight of the internally displaced, the incoming government will not be without resources: in particular, a policy paper drawn up by the Internal Displacement Monitoring Centre dissects the IDP Act and makes concrete recommendations that, if applied, will equip the nation with an internal displacement response system that is fully operational.
It is unacceptable that over the almost sixty years of Kenya’s independence, successive leaders have built on the colonial legacy of dispossession and destitution of Kenyans. Whoever takes the helm after the 9 August general election must find the moral courage to put an end to the suffering of these Kenyans who, as much as anyone else in this country, have a right to expect a life lived in safety and in dignity.
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