Elections are supposed to flip power relations. During an electoral process, a country’s political elites remember their fundamental jobs and are – more than ever – the servants of the people. While campaigns are ongoing, the elites need voters’ support, their attention…and most importantly, their votes. During this time, it is voters who can sit back and evaluate their leaders, deciding whether or not their actions are deserving of another term in office. Over the years and around the world, however, this power structure has often been reversed. In the quest to win and/or retain power, political elites have managed to shape the electoral process to their advantage, creating loopholes and amending laws that dilute public power.
PUBLIC CONFIDENCE IN THE KENYAN ELECTORAL PROCESS
Kenya is no exception to this rule, and voters have taken note. Over the past fifteen years, the Kenyan public’s confidence in elections has dropped precipitously. In fact, between 2005 and 2015, the proportion of Kenyans who strongly agreed that elections were the best way to choose leaders decreased by more than ten percentage points. Unsurprisingly, faith in the credibility of elections has also suffered. In fact, there has never been a time over the last three election cycles (including the current one) when a majority of Kenyans has felt that the last election was completely free and fair.
With the next general election in Kenya scheduled to take place in less than three months, it is critical to think about how to urgently address this marked dearth in voter confidence. An important first step is the assessment of potential vulnerabilities. Reflection about what went wrong last time and what is at risk of going wrong again is useful, not only for policymakers but also for voters, who can and should take time to critically assess whether or not their electoral processes prioritize their roles and voices.
There are, of course, many issues to consider. These include poorly enforced electoral laws, delayed timelines, the lack of intra-party democracy, incidents of pre-election violence, and shrinking space for vigorous public debate on the most contentious and timely election-related issues. At this stage in the electoral cycle, however, it is most urgent to focus attention on the factors that most significantly impacted the credibility of the last election and which continue to haunt this election cycle. Together, unresolved questions regarding leadership and integrity, the Independent Electoral and Boundaries Commission (IEBC), voter registration and the process of counting and tallying threaten the credibility of the upcoming elections.
LEADERSHIP AND INTEGRITY
To begin, the 2013 election was the first to take place under the guiding principles of the country’s new, internationally lauded constitution, itself the result of a decades-long struggle. The constitution included many new provisions that would have a bearing on elections, but one of the most fundamental, overarching issues concerned the qualifications for and conduct expected of state officers. Indeed, Chapter Six of the constitution, devoted to leadership and integrity, is groundbreaking in the context of Kenyan political history, confronting, as it does, some of the most longstanding and deeply embedded obstacles to good governance.
Over the past fifteen years, the Kenyan public’s confidence in elections has dropped precipitously. In fact, between 2005 and 2015, the proportion of Kenyans who strongly agreed that elections were the best way to choose leaders decreased by more than ten percentage points.
Chapter Six fundamentally shifted the relationship between state officers and the people, requiring the former to selflessly serve the latter. Despite the dramatic weakness of the Leadership and Integrity Act that was passed to operationalize Chapter Six provisions, the lead-up to election day in 2013 did include bold efforts to test the letter and spirit of the law. The most notable of these was a lawsuit filed by the International Center for Policy and Conflict and five others, which asked a deeply controversial question: were Uhuru Kenyatta and William Ruto in violation of Chapter Six standards, and therefore ineligible to run for office, based on the International Criminal Court’s indictments against them for their alleged commission of crimes against humanity in the aftermath of the 2007 election?
The High Court’s judgment was disappointing, leaving the public doubting that state institutions were in fact committed to the standards of the constitution. Although the Court claimed that it lacked jurisdiction on matters related to the presidential election, its judgment did define the standard of integrity required by a person seeking public office. According to the Court, such an office-seeker should be beyond reproach and should not have unresolved questions about his/her character and commitment to the national values in the constitution. On the other hand, however, it also ruled that there is a distinction between appointive and elective positions. For the latter, the Court was of the opinion that it is up to the voters to decide who to choose, based on candidates’ “honesty, rectitude, uprightness and scrupulousness.” After the judgment was handed down, a lawyer for the petitioners remarked, “Today marks the official death of one of the chapters in the constitution. That is Chapter Six.”
Uhuru and Ruto were thus free to run for office, and Kenyans were told that questions about their character related to the indictments against them were “a personal issue.”
More importantly, since the substantive issues of the case were never appealed to the Supreme Court, Kenyans were left with an electoral context that was marked by the severe limitations of the candidate pool. After all, the Court had not considered that by attempting to leave it up to voters to decide how strictly candidates should be judged with regard to factors of integrity, it could well be that voters ended up with little substantive choice. With no enforcement of Chapter Six provisions for elective office-seekers, voters could well be faced with a slate of candidates, all of whose characters were tainted by integrity-related problems. The ruling also made it clear that there was little political will to apply the leadership and integrity laws across the board, thus cementing the status quo of elite impunity.
Unsurprisingly, unresolved leadership and integrity issues continue to plague this electoral cycle. In 2016, PricewaterhouseCoopers conducted a survey on the prevalence of economic crimes in the world and found that Kenya topped the list of 78 countries in the study. A shocking one percent of the country’s national budget had been properly accounted for in the previous year. Theft and misappropriation was the most common type of crime. As of 2016, there were 17 MPs who had been charged in court for committing serious criminal offenses, including fraud, forgery, hate speech, rape, corruption and incitement to violence. At least 90 others were under suspicion for graft.
The public has noticed. When asked how much they trusted the ruling party, the opposition and MPs, Kenyans reported significantly low levels of confidence.
Table 1: Trust in Parliament, the Ruling Party and Opposition Parties
|Not at All||Just a Little||Somewhat||A Lot||Don’t Know|
Source: Afrobarometer R6 2014/2015
Such findings are telling, and they are especially relevant in the context of upcoming elections. Given the lack of political will to seriously implement and enforce constitutional standards of integrity, the public has little reason to put its trust in the state, or in the electoral process. Without proper enforcement of Chapter Six provisions, voters’ choices are always restricted. Over time, such an environment can lead to increasingly low levels of public confidence. In the long run, this endangers democratic resilience.
In an attempt to address the gaps in Chapter Six enforcement, the IEBC recently convened what is known as the Chapter Six Working Group on Election Preparedness. The group, which includes several state institutions, plans to vet parties’ lists of nominated candidates to ensure that they adhere to the Attorney General’s recently published guidelines. It is unclear, however, what authority this group has to carry out its stated purpose, especially given that the Court’s ruling in the case against Uhuru and Ruto made it clear that the presumption of innocence holds until cases are concluded.
THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
Closely linked to public confidence in elected leaders is trust in the body charged with administering elections, the Independent Electoral and Boundaries Commission (IEBC). In fact, one study found that public confidence in a country’s electoral management body (EMB) is tied to public faith in the credibility of the election. Specifically, in a paper on Nigerian elections, Nicholas Kerr found,
The strongest correlate of citizen’s perceptions of election quality is the performance of [Nigeria’s Independent National Electoral Commission (INEC)]…when citizens are highly satisfied with the performance of INEC, they are thirty-eight percent more likely to consider the 2007 elections free and fair… But even more importantly, it highlights that ordinary Nigerians associate their evaluations of EMB performance more with their assessments of election quality, despite how strong their partisan attachments may be.
In Kenya, public confidence in the IEBC has fluctuated dramatically over the last five years. At the end of 2012, surveys showed that 70 percent of Kenyans had faith that the IEBC was carrying out its work impartially and 72 percent believed in the Commission’s independence. One month before election day in 2013, 91 percent of respondents said that they had faith in the IEBC’s competence to manage the election and 89 percent believed in the Commission’s impartiality. 91 percent of respondents also said they believed the IEBC was independent enough to conduct the election in a free and fair manner.
These pre-2013 election levels of confidence were a high point for the Commission, which suffered from plummeting levels of public faith after the 2013 election. The drop in confidence was due to a combination of factors, the most notable of which included procurement delays and irregularities in the lead-up to election day, problems with technology during voter registration and on election day, the failure of the electronic results verification system and the subsequent delay in announcing the result. The Supreme Court case challenging the integrity of the entire process, filed by the Africa Centre for Open Governance (AfriCOG) and the Kenyan Asian Forum, also publicly highlighted the multiple technical and administrative problems throughout the process. Indeed, post-election polls revealed a precipitous drop in public confidence in the Commission. In the immediate aftermath of the election, 44 percent of Kenyans reported that they were confident in the IEBC. In Nyanza, only 8 percent of respondents felt this way. By 2015, the figures had not changed dramatically, with 43 percent of Kenyans reporting confidence in the IEBC. Among opposition supporters, 71 percent reported that they did not have confidence in the Commission.
After the judgment was handed down, a lawyer for the petitioners remarked, “Today marks the official death of one of the chapters in the constitution. That is Chapter Six.”
The IEBC has experienced significant changes since the 2013 election. Senior members of the Commission were implicated in a corruption scandal, and a series of opposition protests against the IEBC eventually resulted in the dismissal of all the commissioners. New commissioners assumed office in late December 2016.
The changes seem to have made some difference. A recent poll shows that 72 percent of respondents feel that the IEBC is prepared to conduct a free and fair election. On the other hand, Kenyans are also extremely cautious in their outlooks. In fact, in four of Kenya’s former provinces, more than 20 percent of the population is not sure that the Commission will be able to administer a credible election.
While the high level of public confidence is encouraging, the new IEBC stands at an important crossroads. In order to maintain public faith, the Commission will have to work to show Kenyans that it is serious about avoiding the mistakes that marred the last process and that it is willing to fight to maintain its independence. The signs so far are mixed. The Commission’s decision to cancel the tender process for election technology and engage in a direct award of the contract to the same firm that was partially responsible for the previous set of botched technology raises questions about how well the IEBC has learned from past mistakes. This is compounded by a more recent announcement that the IEBC may proceed with a direct award to a ballot-printing firm. Moreover, recent analysis of the last mass voter registration exercise has revealed serious administrative and technical irregularities. On the other hand, the Commission’s stated commitment to enforcing gender parity in party lists and to enforcing leadership and integrity standards in the vetting of candidates is admirable.
The IEBC is making certain attempts to keep the public updated. It does hold press conferences, and it regularly updates its website with relevant press releases. This information is useful, but the Commission must go further with regard to transparency if it wishes to maintain public confidence. There are several outstanding questions at this stage of the electoral process, the most urgent of which are related to procurement, voter registration, the ongoing audit of the voters’ register, the use of technology, and counting of results. If the IEBC begins to address some of these concerns, it could go a long way in preserving public faith, especially as it is likely that problems will continue to arise as election day gets closer. No election is perfect, but the IEBC’s honest evaluations of its strengths and weaknesses related to current concerns are critical.
In 2013, much of the public’s dissatisfaction with the IEBC was rooted in problems with the voters’ register. The register was shrouded in a certain amount of mystery, with the total number of registered voters in Kenya shifting throughout the electoral cycle. The first sign of the problems to come appeared in February 2013, when it became clear that the final, gazetted register differed significantly from the provisional register released in December 2012. Overall, the register had grown by 12,500 voters.
Without proper enforcement of Chapter Six provisions, voters’ choices are always restricted. Over time, such an environment can lead to increasingly low levels of public confidence. In the long run, this endangers democratic resilience.
While a decrease in the number of registered voters was expected (because the verification and cleaning process would expunge dead voters, multiple registrations, etc), it was unclear how the register grew in size between December 2012 and February 2013. Moreover, there were significant regional changes in the numbers between December and February. These are detailed in the table below.
Table 2: Internal Changes to the Register of Voters
|Region||Changes between December 2012 and February 2013|
Source: AfriCOG/KPTJ. 2013. “Voter Registration for the 2013 General Elections in Kenya.”
These changes became more worrying when the IEBC could not commit to one total number of registered voters. In fact, there were at least six different totals announced during various parts of the electoral cycle.
Table 3: Shifting Totals of Registered Voters in Kenya
|Provisional Register (December 2012)||14,340,036|
|Principle Register (February 2013)||14,352,545|
|Special Register (March 2, 2013)||36,236|
|Election Results Total (March 9, 2013)||14,352,533|
|Green Book Total||14,388,793|
|Post-Election Register (July 2013)||14,388,781|
Source: AfriCOG/KPTJ. 2013. “Voter Registration for the 2013 General Elections in Kenya.”
This shifting total, in addition to the IEBC’s assertion that what was known as the “green book” (A green book is an unregulated, manually-recorded list of registered voters. It had been severely criticized by experts.) was being used for purposes of registration, severely compromised public confidence in the integrity of the register. Indeed, the lack of a single, verifiable register breeds suspicion about political influence at worst and basic incompetence of the electoral management body at best.
Doubts around the register have not faded. In fact, the IEBC’s two mass voter registration exercises in the current cycle were rife with problems. These included widespread problems obtaining IDs, problems with dysfunctional and nonfunctional biometric voter registration (BVR) kits, unexplained use of the green book, disorganized registration centres and poorly trained IEBC staff, registration bribery, coercive registration practices and massive amounts of transfers. At the end of these processes, the IEBC announced that the total number of registered voters had grown to 19,749,310, representing a 37 percent increase since 2013.
In the immediate aftermath of the election, 44 percent of Kenyans reported that they were confident in the IEBC. In Nyanza, only 8 percent of respondents felt this way. By 2015, the figures had not changed dramatically, with 43 percent of Kenyans reporting confidence in the IEBC. Among opposition supporters, 71 percent reported that they did not have confidence in the Commission.
The elections law also allows the IEBC to engage a professional firm to conduct an audit of the voters’ register. The stated purposes of such an audit are to verify the accuracy of the register, recommend mechanisms to enhance its accuracy and to update it. While an audit may go a long way in promoting public confidence in the register, the process has thus far been controversial. In addition to allegations that there were irregularities related to the decision to hire KPMG, there is mistrust because of the firm’s lack of expertise in conducting such audits. Indeed, KPMG’s proposed methodology does not reflect internationally accepted best practice for the audits of voters’ registers, and there has thus far been a lack of transparency with regard to KPMG’s progress and therefore its eventual findings.
In addition to these technical problems with registration, the legitimacy of the entire process was cast in doubt when it emerged that the IEBC had cancelled a public tender process for the acquisition of an integrated elections management system in order to give a direct award to a company known as Morpho, the same company that provided the problematic BVR kits in 2013.
The doubts that have arisen as a result of the above issues have been compounded by the IEBC’s refusal to make the register publicly accessible. In fact, the IEBC did not even provide the updated register to political parties during their primaries. The lack of the register made it impossible for parties to confirm that voters were in fact registered, and this contributed to the chaos that characterized the primary processes. The IEBC has also refused to give the data to civil society on the grounds that it cannot release it until after the audit is complete. Without access to the pre- and post-audit data, however, it is impossible for the public to conduct its own analyses and understand the changes.
A related issue is that of the integrated election management system (IEMS) itself. According to the IEBC, the system is meant to be wholly integrated, such that voter registration, voter identification and results transmission are linked. Since the IEMS technology did not arrive until well after the conclusion of registration, however, it is unclear how all the components will be linked, if at all.
ELECTION DAY, COUNTING AND TALLYING
Confidence is also, of course, based on the credibility of results announcements. In 2013, the IEBC used an electronic results transmission system, which was designed to allow polling station officers to transmit results to regional tallying centres and to IEBC headquarters in Nairobi via a secure, digital connection. This system was meant to protect the credibility of the count and prevent the kind of manipulation that had been seen in past elections, which often occurred during the time when tally sheets were being physically transported from polling stations around the country to Nairobi. Unfortunately, however, the system was a spectacular failure. Midway through the counting process, Kenyans watched the stream of live results freeze on television screens. Journalists based at the Bomas of Kenya, which was the national elections centre, referred to it as the Bomas screen saver.
When the electronic system failed, the IEBC again relied on the paper forms, which had to be ferried from all over the country to Nairobi. As expected, the paper forms were highly problematic. Issues with the polling station-level tallying forms (Forms 34) included:
- Many Form 34s showed that there were more votes cast than registered voters. In Turbo constituency, Polling Station 69, Stream 2, there were 784 votes cast but only 755 registered voters. In Polling Station 71, Stream 2, there were 741 votes cast but only 716 registered voters. In Kacheliba, Polling Station 112, there were 215 votes cast but only 214 registered voters.
- In some Form 34s, only some presidential candidates were listed. For example, in Baringo South, Polling Station 91, Stream 1, it was only the names of Uhuru Kenyatta, Raila Odinga and Paul Muite that appeared. Some candidates were also missing from Form 34 in Baringo South, Polling Station 68, Stream 1.
- Many of the figures on the form did not add up. For instance, one of the most glaring discrepancies occurred in Kacheliba constituency, Polling Station 102. Here, the votes cast are recorded as 0, while there are 170 rejected votes and 170 valid votes. In Baringo South, Polling Station 117, Stream 1, there were 133 valid votes and 0 rejected votes, which should total 133 votes cast. The figure for votes cast, however, was 134. In Cherangany, Polling Station 2, Stream 5, the number of valid votes is 332 and the number of rejected votes is 4, which adds up to 336 total votes cast. The number of votes cast, however, was 340. In Turkana North, Polling Station 12, the number of votes cast (340) did not equal the number of valid votes (340) plus the number of rejected votes (5).
- There were several instances of changes having been made to various figures on the form, with no authorizing signature next to the change. Such alterations affected individual candidates’ results, the total number of votes cast, the number of rejected votes, the number of valid votes and the number of registered voters. This change had the potential to affect other numbers on the form. For instance, a change to the number of rejected votes would necessarily change the number of total votes cast.
- In some forms, there was no figure indicating the number of registered voters. There was no official Form 34 for Polling Station 19 in Turkana Central. Instead, the results were reported on an ordinary piece of paper, which did not include the number of registered voters.
- Many Form 34s were missing. There was no Form 34 for Polling Station 84 or for Polling Station 99 in Turkana North. Polling Station 99 did not appear on the list of polling stations published on the IEBC website on February 24, 2013, but it did appear in the paper gazette. Forms 34 for Polling Stations 92 and 113 in Turkana Central were missing.
- Some forms did not include results for certain candidates. In Turkana Central, Polling Station 55, there were no results listed for Muite and Kenneth. In Turkana Central, Polling Station 65, there were no results listed for Kiyiapi, Karua, Dida, Muite and Mudavadi.
- There were non-identical duplicates of certain forms. In Turkana Central, Polling Station 89, there are 4 nearly identical copies of Form 34. It is unclear whether the numbers on these forms were counted multiple times. In Kacheliba, Polling Station 2, there were two forms with different entries. There were also multiple copies of perfectly identical forms, and it was unclear whether or not these figures were counted more than once.
- There were many forms in which it was extremely difficult to determine the exact value of the written figure, either because of the handwriting or because the original figure had been written over with another number. There were an overwhelming number of such cases, and the choice of which number to report was subjective.
The most worrying issues called the very accuracy of the count into question.
The failure of the electronic system was not a complete surprise. In the month before the 2013 election, tests of the electronic systems revealed significant problems. In fact, Sarah Elderkin detailed how a test of the system “had gone horribly wrong.” After one hour, only one of five mock polling stations could successfully transmit results. In this election cycle, the IEBC again plans to use an electronic system. The IEMS, mentioned above, includes results transmission. It is unclear, however, if and when the IEBC will publicly test the kits and publicly explain its plans for the kits’ dysfunction or failure. In fact, one of the most pressing unanswered questions in this cycle is related to proposed back up systems. New amendments to the electoral law allow for the use of complementary registration, identification and results transmission mechanisms, to be used in the event that the technology fails. To date, however, the election regulations only provide vague provisions about using the printed out register for voter identification in cases where voters cannot be found in the biometric list. The regulations do not clarify what, if any, complementary systems will be used in case the electronic results transmission system fails.
The lack of a clear definition of these complementary mechanisms is highly problematic, especially given Kenya’s political history and context. During mass voter registration, the IEBC used the green book in conjunction with the BVR kits. Does this mean that the green book was the complementary mechanism with regard to voter registration? Will the green book be used in addition to the printed out register to identify voters on election day?
Midway through the counting process, Kenyans watched the stream of live results freeze on television screens. Journalists based at the Bomas of Kenya, which was the national elections centre, referred to it as the Bomas screen saver.
There is one significant difference with regard to the law in the current election cycle. The High Court recently ruled that constituency level results for all elections are final and can only be appealed through a court process. The decision nullified Section 83(4) of the General Elections Regulations, which empowers the IEBC to “confirm” results before announcing them as final. The IEBC filed an appeal to the decision, with IEBC Chair Wafula Chebukati stating that constituency level officers could “make mistakes.” The IEBC’s decision to appeal has sparked some controversy, with the opposition threatening that there will be no election if the IEBC does not abandon its appeal and alleging that it means the Commission wants the power to unfairly change results. Civil society has also expressed its reservations about the appeal, suggesting that it erodes public confidence in the IEBC’s commitment to upholding the law.
Given the extreme controversy and suspicion surrounding the announcement of results in 2013 and in other past elections, the IEBC should acknowledge that there is significant public concern around the potential use of manual systems. To promote public faith, the IEBC should explain its rationale regarding the appeal. If constituency level results are erroneous, as Chebukati fears, a court process to address such problems would allow the public to see and understand the issues at hand. It would promote transparency. Surely, this option is better than a closed process in which the IEBC changes constituency results at the national tallying centre.
As it currently stands, it is unclear whether the IEBC and other stakeholders have learned from past elections. If public confidence is a priority, these stakeholders must immediately respond – at minimum – to the above public concerns in an honest and open way, remembering that it is voters who hold the power at this stage of the game, and it is voters who will ultimately decide the credibility of the election. The legitimacy of the upcoming election now hangs in the balance, but there is still time to save it…if only we are willing to learn from the past.
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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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