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WAR GAMES: How repressive regimes in East Africa are playing the Amisom card

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Lady Justice
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On January 15, 2016, about 209 Kenyan troops posted at the El Adde military camp in Somalia were rattled by sounds of gunfire followed shortly by a large explosion. It immediately dawned on the soldiers that they were under attack by a special contingent of Al Shabaab’s infantry specializing in mass raids against isolated Amisom (African Union Mission in Somalia) bases. This was the Al Qaeda-affiliated terrorist organisation’s most deadly attack against an Amisom base.

The initial shots in the pre-dawn attack were fired by a Kenyan sentry manning a machine gun post. He was shooting towards an approaching SVBIED (suicide vehicle-borne improvised explosive device – basically a car bomb being driven by a suicide bomber). The suicide bomber behind the wheel was a man called Abdul Qadir Ahmad Ali (nicknamed Farhan by his fellow terrorists). The gunshots did not stop the vehicle; the SVBIED ended up exploding inside the base. The first blast from the explosion incinerated everything within the vicinity, while the second blast wave ricocheted around the adjacent tents, knocking some soldiers unconscious.

The base hosted Kenya Defence Force (KDF) troops from the 9th Rifle Battalion and a few soldiers from the 5th Kenya Rifles. A day earlier, Somalia National Army (SNA) troops had vacated the adjacent base over fears of being attacked by Al Shabaab which suggested that the Kenyans were aware of an impending raid. However, their defence preparations were not well thought-out, so when the infantry from the Saleh Nabhan battalion attacked, they were met with a disorganised response, with some soldiers trying to flee and others taking cover. The attackers also appeared confused during their raid. This is what makes the fall of El Adde so perplexing and tragic.

A propaganda documentary released on April 10, 2016 by Al Shabaab showed a highly edited version of the events that occurred on that fateful day. The video showed that most of the Kenyan soldiers that fell were in their full combat gear, a clear indication that they suspected that an attack was imminent and had prepared for it. However, they appeared surprised by the scale of the attack; some even ran away and were later rescued after they reached Mandera County in Kenya.

To date, neither Amisom nor the Kenyan government nor the Kenya Defence Forces (KDF) have published an official death toll from the El Adde attack. Yet it was recognized internationally as one of the greatest military disasters to befall a peacekeeping mission in a single day. CNN even labeled it as a military massacre that was being covered-up by the Kenyan regime. American military officials were also shocked by the scale of defeat that KDF suffered, while a Kenyan official stated that Al Shabaab had done good reconnaissance on the base before attacking it.

A FRAGMENTED FORCE

Amisom was established in January 2007 by the African Union as a peace-support mission to protect the fledgling government in Mogadishu from the preeminent peace spoiler in Somalia, Al Shabaab. However, to date, Al Shabaab still retains formidable offensive capabilities despite losing considerable amounts of territory. This raises the question of whether there is a disconnect between Amisom’s mandate and the reality on the ground?

According to its official profile, Amisom was originally conceived as a transitory UN-backed peace support mission mandated to promote national dialogue and reconciliation, as well as to create a secure environment that would facilitate humanitarian operations. However, from an initial deployment of 1,500 Ugandan troops in 2007, it has grown into the AU’s largest multidimensional peace-support operation, with over 22,000 troops, as well as police and civilian components.

Neopatrimony rarely values meritocracy and competence in military matters; it’s only loyalty that counts.

The persistence of Al Shabaab attacks against both Amisom troops and their home countries as well as against the nascent Somali government have also forced Amisom to adopt a more aggressive posture. Following the July 2010 bombings against crowds watching a screening of the FIFA World Cup Final in Kampala which killed 74 people, the AU “reinterpreted” Amisom’s rules of engagement to allow for pre-emptive defence, which allowed Amisom to go on the offensive. Later that year, the UN Security council authorized a 50 percent expansion of Amisom’s mandated troop strength from 8000 to 12000. As a result, in August the next year, al Shabaab were forced out of Mogadishu.

Amisom was allowed a further 5700 soldiers in 2012 as well as an expanded logistical support package that greatly expanded the scope of its military operations in Somalia. In November 2013 the UN Security Council authorised a further surge of 2,500 fighting troops as well as support elements, including combat engineers and logistics personnel, bringing it to its current level of 22,000.

However, Amisom suffers from structural fragmentation in its command chain and realm of control. There are zones where Amisom troops operate alongside non-integrated Ethiopian (and Kenyan) troops who do not take orders from the Force Headquarters in Mogadishu. In addition, Amisom commanders from the various troop-contributing nations must first consult with their respective national militaries before allowing their troops to engage in any military operation in Somalia.

The amorphous nature of Amisom’s command structure not only allows the governments of the troop-contributing nations to exert a direct control over their contingents serving in Amisom, it also disrupts effective communication between the different Amisom contingents. This poor communication has led different Amisom contingents to rely more on their home countries for military support rather than on Amisom. This explains why the Kenyan troops in El Adde first alerted their seniors in Nairobi of the attack before requesting for military assistance from Amisom. KDF was slow to provide any relief and the base had fallen by noon. There is no evidence that KDF troops in El Adde ever relayed a distress call to their Ethiopian allies in Gabarharey.

Further, Amisom lack of air capacity to move troops limits its ability to reinforce bases that are under attack. Despite the UN Security Council authorizing deployment of an aviation component of up to 12 helicopters comprising nine utility helicopters and three attack helicopters, these assets must come from the troop contributing countries as the UN has no military choppers of its own. Though several countries, including Kenya, had promised to deploy aircraft under Amisom, this hadn’t been done by the time of the El Adde attack. As a result, and as the KDF acknowledged, Amiosom would have been unable to come to the rescue of the beleaguered base.

THE POLITICS OF PEACEKEEPING

Amisom does deserve the glowing commendations it has received from the international community for its sustained efforts at degrading the military capabilities of Al Shabaab, and for stabilising Somalia to the extent that democratic elections have been held and an internationally-recognised government has been inaugurated. Even so, there is a need to analyse the way that Amisom has evolved into a rented peace-enforcement mission that serves to legitimise neopatrimonial political systems – where state resources are used to secure the loyalty of clients in the general population.

Understanding how regional neopatrimonial politics affect the operations of Amisom will help us shed light on why Amisom has been unable of obliterate Al Shabaab, despite fielding a total of 22,000 well-paid and relatively well-equipped troops from Burundi, Djibouti, Ethiopia, Kenya and Uganda who are fighting militants whose numbers are estimated to range between 8,000 and 10,000.

Also, there is a need to assess how Amisom has served to entrench autocratic rule in troop-contributing nations such as Burundi, Ethiopia and Uganda, and whether the Kenyan government is using the Amisom card to retain power and ensure the current regime’s survival after the August 2017 general elections.

The Amisom mission has had a detrimental effect on democratic space in troop-contributing nations, and it is becoming evidently clear that to defeat 10,000 Islamic terrorists, nearly 200 million citizens in the East African nations of Kenya, Burundi, Djibouti, Ethiopia and Uganda will see their democratic rights curtailed. Also, the issue of military incompetence needs to be considered as it is a known fact that neopatrimony rarely values meritocracy and competence in military matters; it’s only loyalty that counts.

Furthermore, such governments are likely to engage the international community in terms that favour their regime survival over the stated objective of stabilising a conflict zone. Paradoxically, Somalia was able to conduct a relatively fair-and-free election in February 2017, while citizens in two Amisom-contributing nations were denied the same chance, all under the watch of the international community. In this context, the patron-client relationship between the ruling party and the military informs deployment of peacekeeping missions.

Peacekeeping operations become rent-generating ventures that benefit both the regime and the military while killing accountability.

Basically, rulers deploy their troops to peacekeeping zones that offer the highest dividends in terms of monetary rewards and regime protection. The ruling party acts as the patron that receives financial benefits, and then distributes it to the soldiers. In the process, the ruling party buys the loyalty of the military, and this increases the odds of regime survival.

Reports of KDF’s illicit trade in charcoal and sugar in the port of Kismayu have also led many to speculate whether KDF is in Somalia to benefit commercially. In November 2015, a Nairobi-based civil advocacy group named Journalists for Justice published an expose titled Black And White – Kenya’s Criminal Racket in Somalia that documented the illicit trading activities that KDF was engaging in while in control of the port of Kismayu. The Kenyan public was enraged, and calls for KDF to exit Somalia increased. However, KDF maintains that its mission in Somalia is critical and untainted with corruption.

Because the financial pay-outs are made monthly to the troop-contributing nation, it is regarded by the regime as rent paid for providing peacekeepers. In return, top military officials benefit from payouts, and they, in turn, ensure that the military remains loyal to the regime. As a consequence, such peacekeeping operations become rent-generating ventures that benefit both the regime and the military while killing accountability. Likewise, without any input from the citizenry, such regimes can conspire to ensure that their peacekeeping operations last for as long as possible.

Rarely do neopatrimonial powers ever relinquish power over their troops even when they are engaged in peacekeeping operations in foreign nations. This is what is happening to Amisom as the troop-contributing governments refuse to allow their peacekeepers to fall wholly under Amisom’s control; they ensure that they have direct military control over their peacekeepers, even if they fight under the Amisom hat. This also applies to KDF.

REGIME-BOOSTING DIVIDENDS

The Kenyan government’s decision to deploy KDF in Somalia was informed by three main concerns: national security concerns; humanitarian concerns; and the need for enhanced international legitimacy. Humanitarian concerns relate to Kenya’s plan to decongest, and eventually close, the Dadaab refugee camp and other camps hosting Somali refugees by repatriating refugees back to safe zones in Somalia. With regards to national security, Kenya had suffered from Somalia’s internecine conflict as it repeatedly spilled over into its bandit-prone north-eastern region, and by 2010, the threat of Al Shabaab radicalising Kenya’s restive Muslim population was too great to be wished away. A military campaign was then considered a feasible move. Still, was this military campaign planned well?

The answer to this question lies in the quality of military leadership. Starting from 2007, the political elite saw the need to hollow out the Kenyan military and recreate it as a dependable institution that can be relied upon during periods of crises. To achieve this, ethno-political considerations were prioritised over merit and competence. This removed the element of accountability that professional militaries value.

The decision of the Kenyan government to integrate KDF troops in Somalia into Amisom in July 2012 was informed by geopolitical concerns and economic reasons. By March 2012, Operation Linda Nchi had hemorrhaged the national coffers of over $180 million, and it was evident that the cost of managing a full-scale war against Al Shabaab in Somalia was quite prohibitive, if not unsustainable, especially as Kenya was suffering from low-grade economic recession occasioned by a difficult-to-manage inflation and a weak and unsteady currency.

Amisom suffers from structural fragmentation in its command chain and realm of control. There are zones where Amisom troops operate alongside non-integrated Ethiopian troops and these troops do not take orders from Amisom.

Kenya’s decision to stay on in Somalia under the umbrella of Amisom also has to do with national politics and the government’s desire to retain international legitimacy. Peacekeeping ventures offer lasting regime-boosting dividends. The governments of Burundi, Ethiopia and Uganda gained legitimacy from the international community, notably the European Union and the United States, because of their troop-contribution efforts towards Amisom. The US and the EU, two of the most vocal proponents of human rights and democracy, are also the main donors to the Amisom mission. Their silence on democracy matters is usually interpreted by autocratic regimes as tacit support for the government.

In both Uganda and Burundi, the ruling parties that oversaw the deployment of segments of their national military into Somalia were able to get controversially re-elected in what can best be described as sham elections, and still get their controversial electoral victories stamped as valid by both the US and the EU, despite concerns raised by democracy activists. Both nations have experienced periods of sustained domestic unrest and have used disproportionate force to either kill protestors, or coerce local democracy campaigners to abandon their activism.

Similar socio-political developments have been witnessed in Ethiopia. The ruling EPRDF (Ethiopian People’s Revolutionary Democratic Front) regime is accused of fomenting ethnic strife through skewed distribution of national resources and the concentration of political power within a clique of an ethnic-laced elite alliance. This has led to accusations of political marginalisation, human rights abuses, and forceful confiscation of land and other natural resources from underrepresented people.

Also, Ethiopia, despite a decade of sustained economic growth, also suffers from uneven economic development that has left a majority of Ethiopians impoverished and politically marginalised. These grievances led to the sudden eruption of mass protests in August 2016 that were followed by a six-month-long state of emergency in October (which has since been extended). To worsen matters, ethnic nationalism resurfaced, and has been stoked ever since by varied political activists.

When Ethiopia assessed that international condemnations against its protest management efforts were increasing, it simply withdrew hundreds of non-Amisom-integrated ENDF (Ethiopia National Defense Force) troops from Bakool and Hiiran regions of Somalia in October 2016. This withdrawal was done under the pretext that the soldiers were needed in Ethiopia to help manage the protests. However, the EPRDF had over 150,000 active ENDF troops at its disposal inside Ethiopia, and the troops withdrawn from Somalia were neither the best-trained nor the best-equipped. This shows that the pretext was used to cover up a more nuanced political motive. Interestingly, the withdrawal of these non-integrated soldiers immediately caused concern, with the UN stating that such withdrawals could create an exploitable security vacuum that could lead to the resurgence of Al Shabaab.

THE HUMAN COST

The above-mentioned problems also plague Kenya. Kenya is considered the most democratic nation in East and Central Africa and is also the economic powerhouse in the region. So why would the Kenyan regime need to enhance its political legitimacy?

Kenya sent KDF into Somalia with the thinly-veiled strategic objective of creating a Kenya-backed semi-autonomous administrative region called Jubbaland, which was to serve as a buffer zone between Kenya and Al Shabaab-ruled zones in southern Somalia. This buffer zone was considered essential to securing a new transport corridor that President Mwai Kibaki’s government was planning to build to link the Lamu port to South Sudan and Ethiopia. However, what was first touted as a short and quick military incursion has now lasted nearly seven years. Yet, the Kenyan public has not been told about how many Kenyan soldiers have lost their lives in Somalia since 2011.

The Kenyan government’s decision to deploy KDF in Somalia was informed by three main concerns: national security concerns; humanitarian concerns; and the need for enhanced international legitimacy.

In 2014, Operation Linda Nchi, Kenya’s Military Experience in Somalia was published by Kenya Literature Bureau, a state-owned publishing house. This book was written by six primary authors, among them Lieutenant Colonel Paul M. Njuguna, who was later promoted to colonel in August 2016, and served as the KDF spokesman when the KDF base at Kulbiyow was raided in January 27, 2017. The book provides the official KDF-approved version of Operation Linda Nchi. It also serves as an excellent window into the military doctrine that guides military operations vis-à-vis media relations and the publication of casualty figures. According to the book, KDF lost less than 40 soldiers during the entire period of Operation Linda Nchi.

This is a surprising figure especially when the fatality count of Amisom is taken into account. In May 2013, Jan Eliasson, the UN’s Deputy Secretary-General, estimated that 3,000 Amisom troops had been killed since 2007. Amisom quickly objected to this fatality figure, but it is interesting to note that in October 2012, Kenya’s deputy foreign minister, Richard Onyonka, claimed that about 2,700 Ugandan soldiers had been killed in Somalia since 2007. Even while this government official was touting the death toll suffered by an allied troop-contributing nation, the Kenyan government remained guarded on divulging how many Kenyan soldiers had been killed.

In January 2017, Al Shabaab raided a KDF base in Kulbiyow and made away with some military hardware. However, the KDF spokesman, Colonel Paul Njuguna, released a press statement stating that the base never fell and that KDF had managed to successfully repulse the attack, and in the process had lost only nine soldiers. However, subsequent open source analysis by Africa Defense Review showed that the base was overrun and looted.

According to a policy paper entitled Exit Strategy Challenges for the AU Mission in Somalia published in February 2016 by the Heritage Institute for Policy Studies, a Somalia-focused organization, and authored by Paul D. Williams and Abdirashid Hashi, KDF lost about 50 soldiers every month between October 2011 and February 2012. This translates to a death toll of more than 200 in five months, which is far greater that the death toll figures given by KDF in its official version of Operation Linda Nchi. In October 2016, the UN, through SEMG, revealed that about 150 KDF soldiers were killed in El Adde. These two figures give a hint as to the scale of the human cost of Kenya’s mission in Somalia.

So why does KDF conceal its death toll in Somalia? One of the official reasons given is the need to maintain the morale of the soldiers. But perhaps the main reasons are to minimise public opposition Kenya’s anti-terrorism campaigns both in Kenya and in Somalia and to gain political legitimacy internationally.

Amisom is rated as one of the deadliest peacekeeping missions, yet countries in the region are still eager to contribute troops. Why? One of the main reasons is that contributing troops to Amisom pays financial and political dividends. At the moment, it is evident that Uganda, Burundi and Ethiopia are leaning towards autocratic rule as democratic space gradually diminishes in these nations. The governments of these countries need to deflect attention away from their domestic problems and secure an economic lifeline during periods of economic crises triggered by domestic unrest. So they rely on Amisom for both economic reprieve and political legitimacy.

It is clear that the obfuscation of the death toll figures by the Kenyan government is designed to not only save face, but also to protect the credibility of Kenya as a strong regional peace-enforcer. If the Kenyan government admits to a high death toll, it will face domestic opposition to its mission in Somalia, and this will automatically weaken its legitimacy if it decides to use its Amisom credentials to stay in power after the August 2017 elections.

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No War, No Peace: Life and Death in Eritrea

Thirty years after Eritrea gained independence from Ethiopia, there has hardly been any meaningful development in this small nation in the Horn of Africa. On the contrary, the government’s authoritarian policies have undermined democracy and forced young people to flee the country.

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No War, No Peace: Life and Death in Eritrea
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Eritrea was an Italian colony from 1890 to 1941. Following the defeat of Italian forces by the Allied Forces during World War Two, Britain occupied Eritrea until its federation to Ethiopia in 1952. However, by 1962 Emperor Haile Selassie had annexed Eritrea, declaring that it was part of Ethiopia, and in this way ending the federation.

In 1961, a year before the annexation, the Eritrean Liberation Front (ELF) started an armed struggle for independence from Ethiopia. The armed struggle continued for 30 years against successive Ethiopian regimes until 1991, when the Eritrean People’s Liberation Front (EPLF), who had replaced the ELF, defeated the Ethiopian forces in Eritrea. Eritrea became formally independent following a United Nations-supervised referendum in 1993.

From the beginning, the EPLF (now the People’s Front of Democracy and Justice – PFDJ)’s strategy for achieving liberation and national unity was for it to dominate all social, political, and economic spaces. The PFDJ implemented a highly centralised and opaque two-track system of administration: an unseen, powerful inner circle of elites; and public structures that projected an image of egalitarian self-sufficiency. This centralised and opaque model of governance continues today.

Since liberation, PFDJ has banned all opposition parties and treats all non-mass-movement organisations (i.e. independent civil society) with suspicion; hence there are no independent national civil society organisations in the country. Without any consultation, the PFDJ has nationalised all land; it has established a unitary form of government, and it has changed the administrative boundaries within the country. Despite these totalitarian tendencies, in 1994, the PFDJ, as the Provisional Government of Eritrea, set up the Constitutional Assembly to draft the Constitution. The task was completed in 1997. But the Constitution remains unimplemented.

Border dispute

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

The EEBC delivered its border decision on 13th April 2002, placing the town of Bademe, the flashpoint of the border conflict, on the Eritrean side. The Ethiopian government contested the allocation of Bademe to Eritrea. Therefore, a situation of “no war, no peace” ensued between the two countries as President Isaias Afewerki refused any dialogue on the issue because the parties had agreed that the decision of the EEBC was final and binding.

President Isaias Afwerki, who is also the chair of the PFDJ, took advantage of the strained relationship with Ethiopia to:

  1. indefinitely postpone the implementation of the 1997 Constitution as well as the general elections;
  2. arrest and disappear dissenters, especially University of Asmara students and the members of the government known as G15 who promoted a democratisation process (2001);
  3. close the independent media and arrest journalists (2001);
  4. abolish the Eritrean National Assembly (i.e. the Eritrean Parliament) (2002);
  5. maintain a high level of militarisation of the country.

To maintain a high level of militarisation, the government vertically integrated the National Service to the National Development Programme (i.e. the Warsay Yikaalo National Development Programme) and to Education. This integration allows the Eritrean government to move students into the National Service and the National Development Programme from high schools (i.e. Grade 12) and indefinitely extends the period of service of the conscripts, hence taking full control over the working population.

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

Through the integration of the National Service into the Warsay Yikaalo National Development Programme and Education, the government has limited the citizenship rights of conscripts who while in service cannot: legally obtain a mobile phone or SIM card; get or renew a business licence; access land; and access travel documents and exit visas. Deserters or objectors are denied any rights and cannot access state services. Thus, the official Eritrean concept of citizenship is intrinsically linked to conscription and the fulfilment of National Service duties.

The National Service is a combination of military training and civil service, working for little pay in non-military activities such as agriculture, the construction of roads, houses and buildings and mining. The Warsay National Development Programme relies on the deployment of te National Service (Warsay) and defence personnel (Yikaalo) as a labour force. The programme operates under the umbrella of the Ministry of Defence.

Since 2003, the government as closed the University of Asmara (the only university in the country). It has also required that all Eritrean students complete Grade 12 at the Sawa military training camp. Students who have not completed their final year of secondary school at Sawa and have not sat for the National School Certificat, cannot access college education. The PFDJ has replaced Asmara University with regional colleges, which are administered jointly by an academic director and a military director.

National Service conscripts work for an indefinite period on development projects, the administration of ministries and local authorities, as well as in PFDJ-owned businesses. Such work is carried out for very little pay and in conditions that a UN Commission of Inquiry on Human Rights in Eritrea described as “forced labour”.

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa. The government will not issue an exit visa to any Eritrean above the age of five, irrespective of their situation (i.e. family reunification, health, etc.)

The government’s control over the Eritrean people is a political, social and economic process of deprivation and human rights violations for which it refuses to take any responsibility. It is systematically impoverishing the population. Therefore, Eritrean youth face having to choose between the life of slave labour or exile. They describe their situation as slavery: “[The] situation in Eritrea and long time ago with slaves is the same. We build the houses of the elites without money. We work on farms of government officials for no money. If you are educated, they deploy you to anywhere…for a short time, you can tolerate it…but this is for life.”

Faced with accusations of human rights violations, the government reverts to “threat” mode. It labels any reference to human rights violations as “lies” and “ploys” of its enemies to undermine the state. The PFDJ Head of Political Affairs, Mr Yemane Gebreab, dismissed the findings of the Commission of Inquiry on Human rights by saying: “….[it is] really laughable……There is no basis to the claims of the Commission of Inquiry…”

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa.

In addition to taking control over the working population, the government also took control of the economic sectors, including finance, import and export, transport and construction. It has achieved control over the economic sphere through a process of unfair competition with private business, facilitated by the fact that it does not pay taxes and does not comply with labour, environmental, and other regulatory requirements. Also, as the regime has control over the working population, it has unlimited access to a large pool of free labour, effecting a net transfer of the workforce away from the private sector. This policy of moving human resources to labour sites identified and controlled by the government has crippled the private sector, especially the agricultural industry, which still relies to a large extent on subsistence farming.

The government’s control and domination of the economy have not increased economic activity or productivity. The economy is stagnating, further weakening the private sector and restricting economic opportunities for Eritreans.

Notwithstanding PFDJ’s rhetoric, Eritrean youth experience the state as an albatross around their necks. They understand the state in terms of spy networks; as a human rights violator curtailing civil, political, and economic rights and as the as the source of torture and deprivation. They see it as the source of all restrictions and deprivations. This is the reason why they flee the country.

Peace Agreement with Ethiopia and its aftermath

In April 2018, the Ethiopia Prime Minister Abiy announced the acceptance of the EEBC decision, in particular the allocation of the flashpoint town of Bademe to Eritrea. In this way, he started a process that led to the signing of the Ethiopia Eritrea Peace Agreement in July 2018, thus ending two decades of “no war, no peace”. The land borders opened to much jubilation in 2018. However, by April 2019, the Eritrean government had closed them all. So far, the only achievements of the Peace Agreement are the reopening of embassies and telecommunication lines and the resumption of flights.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country. Soon after the signing of the Peace Agreement, the Eritrean Catholic priest Aba Teklemichael pointed to the sweeping reforms implemented by Prime Minister Abiy in Ethiopia, and urged the Eritrean government to also undertake necessary reforms in Eritrea and to democratise the government. By Easter 2019, the Eritrean Catholic bishops were also calling for a constitutional government and the rule of law. They also encouraged the government to release political prisoners and start a process of reconciliation within the country. However, to date there have been no reforms in the country, a state of affairs confirmed by the UN Special Rapporteur on Human Rights in Eritrea who at the start of this year reported that she had: “ ……no tangible evidence of a meaningful and substantive improvement in the situation of human rights in Eritrea”.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country.

The ongoing peace process is not transparent; it has mostly remained an elite political level agreement unable to deliver on the economic front or to resolve the issue of Bademe as both Prime Minister Abiy and President Isaias Afewerki have marginalised the Tigray People’s Liberation Front (TPLF) for political motives. The Eritrean government has increasingly identified the Tigray State and the Tigray People’s Liberation Front (TPLF) as an existential threat to Eritrea, thus justifying the maintenance of a high level of militarisation. Consequently, Eritrean youth continue to flee the country. In 2018, UNHCR ranked Eritrea as the ninth-largest refugee-sending state in the world.

Ailing health sector

The totalitarian agenda of the Eritrean government did not spare the health sector either. The task of reconstructing the Eritrean health system after the liberation struggle and following the 1998-2000 Eritrea-Ethiopia border war was monumental. It was an undertaking that the late and former Minister of Health Saleh Meki undertook with passion, commitment, and zest from 1997 to 2009 when Ms Amina Nurhussein replaced him.

In his efforts rebuild the Eritrean health system, Saleh Meki sought to establish strategic partnerships with critical international health institutions, private practitioners, faith-based organisations, such as the Catholic Church, as well as professional members of the Eritrean diaspora. The former Minister of Health carried on with his efforts despite the enormous pressure to conform to the dictates of President Isaias Afwerki, and the concerns generated by the closure of international non-governmental organisations, as well as the restriction of movement imposed on all organisations working in the country. Against all the odds, he re-established the medical school known as the Orotta Medical School.

Saleh Meki died on 2nd October 2009. Soon after his death, all the medical missions of international organisations that he had worked so hard to bring to Eritrea ended. By 2011 the Eritrean Government forced the closure of all private medical clinics. And, by 2018 a total of 29 Catholic health facilities providing maternal and child health support and serving some of the more remote communities in the country were closed. The seizure and closure, of the Catholic health facilities was carried out in complete disregard to the health and safety of the patients, most of whom were left to fend for themselves.

There was no clear justification for the closure of the private health facilities. However, the closure of the Catholic health facilities was justified as an enforcement of the 1995 Proclamation to standardise and articulate religions institutions (Proclamation No 73 of 1995). The Proclamation prohibits religious bodies from engaging in social and welfare services. This position is contested by all faith-based organisations, especially since there was no consultation in the development of the law. The Eritrean Catholic bishops’ communication with the government on the seizure and closure of their health facilities point out that the facilities operated by abiding with all the requirements of the Ministry of Health.

Poor COVID-19 response

The closure of health facilities has reduced the number of available beds and the overall capacity of the health system. Hence, Eritrea, with a score of 0.434, was ranked 182nd out of 189 countries by the 2019 Human Development Index. The low Human Development Index combined with a hospital bed capacity of 7 beds for 10,000 people, and no available data as to the number of health professionals (i.e. doctors and nurses) available per 10,000 people, suggests that the situation might be even more dire. And the poor connectivity of the country (i.e. mobile phones, internet, broadbands) means that the country’s capacity to deal with pandemics such as COVID-19 is low.

The low capacity of the Eritrean health system to deal with the COVID-19 pandemic was also of concern to the diaspora Eritrean Healthcare Professionals Network (EHPN), which urged the Eritrean government to immediately implement the World ealth Orbanization (WHO) and Centre for Disease Control (CDC) guidelines and advisories to contain the pandemic. EHPN expressed concern that the country lacks the necessary prerequisites to implement hygiene measures because: “There is a shortage of water, disinfectants, laboratories that carry out diagnostic tests and medical professionals, including nursing and technical staff. There is also a lack of functioning intensive care units with adequate ventilation equipment needed to properly treat patients. The reality is that many Eritreans will not be able to seek and obtain medical treatment in their homeland or neighbouring countries. In short, the Eritrean health system is not adequately prepared for COVID 19.”

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The government’s willingness to reject donations has, however, launched a COVID-19 appeal among citizens. The appeal is remarkable for the lack of information as to how the funds raised will be used. There is no single COVID-19 emergency response bank account designated for the appeal; hence, in the diaspora, funds are collected in different foreign bank accounts set up by Eritrean embassies. Consequently, there is a real danger that the funds will never enter the country and will disappear into the government’s opaque offshore financial system. Also, there is no information as to how the Ministry of Health will use the funds. Reports by Eritrean human rights activists say the appeal is coerced, confirming the lack of transparency and accountability of the fundraising process.

There is also no transparency in the COVID-19 data that the Eritrean government is providing. It reported the first four COVID-positive cases on the 21st and 23rd of March. One patient was an Eritrean national resident in Norway, and the other three positive patients were Eritrean nationals returning from Dubai. Because of these events, by 26th March, the government banned all commercial passenger flights for two weeks. It also closed schools. And, by 1st April, it imposed COVID-19 lockdown measures.

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The lockdown measures did not include the closure of the Sawa military training camp or the release of political prisoners. The government has recently released 27 Christian prisoners, who were imprisoned without charge or trial for as long as sixteen years. Their release is conditional on their family lodging their property deeds with the government as a guarantee that the people released will not leave the country.

While maintaining a strict lockdown, the Eritrean government has allowed mass gatherings to celebrate the graduation of the 33rd round of Sawa military training camp graduates as well as the transfer of Grade 12 conscripts to the facility.

From 1st April to 18th April, the Eritrean government reported 39 COVID positive cases, all linked to Eritreans visiting or returning from their travels. Then, for two months, there were no new cases reported. After that, the number of COVID-positive cases increased, and by the 12th of October, Eritrea reported a total of 414 COVID-positive patients and 372 recoveries.

Though the government makes repeated references to quarantine centres, it has not shared a list of the centres, their location or capacity. It is also not reporting the daily number of COVID tests. Nor has it reported any COVID-related deaths or any community transmission of the virus. It continues to attribute all the new COVID cases to Eritreans returning through “irregular land and sea routes” from Ethiopia, Sudan, Djibouti and Yemen. But there is no explanation as to why so many nationals are travelling despite the government’s strict lockdown procedure that prohibits all movement between towns and that restricts te movement of any vehicles, including buses and taxis, which require movement permits. Such permits are not easy to obtain.

Finally, there are only five incidents of Ministry of Information reporting the number of individuals tested or in quarantine:

  1. 3,000 quarantined – 8th May 2020;
  2. 5,270 quarantined – 3rd June 2020;
  3. 7,158 nationals returned through irregular land and sea routes. Not clearly stated but the implication is that they were all quarantined – 14th June 2020;
  4. 18,000 citizens allegedly returned through irregular land and sea routes. This movement occurred in the last four months. Again, not clearly stated but the implication is that they were all quarantined – the 12th October 2020;
  5. 41,100 tests – 12th October 2020.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The COVID lockdown in Eritrea, like in other countries, has brought economic activities to a standstill. The difference between Eritrea and other countries is that the Eritrean economy was already on its knees before the lockdown and the Eritrean government has not made any attempt – beyond extorting donations from its citizens – to alleviate the suffering of the people with economic support packages. Consequently, Eritreans are hungry and desperate and have started to ignore strict lockdowns. They are on the streets selling all kinds of goods. Women are out in the streets, making tea and cooking food for sale. Family and friends describe Asmara, the capital city, as full of mobile tea shops.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The Eritrean Afars have, through the Red Sea Afar Human Rights Organisation (RSAHRO), issued a press statement, describing their situation under lockdown as a: “… siege imposed by the Eritrean regime on the citizens of the region.”. They warn of the danger of hunger in their area. They also describe confiscation of boats, camels and supplies by the military, closed health centres, unprepared quarantine centres, as well as lack of medical supplies. The human rights organisation also accuse General Tekle Manjus of confiscating trucks of emergency food sent from Asmara for distribution among the Afar.

The Afar coastal area is not the only area in danger of hunger. The information from Eritrea is that hunger is very real all over the country. The government media and social media accounts do not report the danger of hunger or any of the difficulties that the people are facing during this COVID-19 emergency. Their postings give the impression that Eritrea is doing just fine.

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The Search for a Puppet Chief Justice

The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results.

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The Search for a Puppet Chief Justice
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Anxiety over who will replace Chief Justice David Maraga exploded into the public domain on Friday, October 16, 2020, when a member of the Judicial Service Commission (JSC) alleged a plot to delay the recruitment process. Macharia Njeru, one of the two representatives of the Law Society of Kenya (LSK) to the JSC, claimed in a public statement that the Chief Justice and a few others were “hellbent on derailing the orderly recruitment of his successor and leaving the institution of the Judiciary in a crisis of leadership”.

LSK immediately dissociated itself from Macharia’s position and asserted that the “state capture of the Judiciary and the Judicial Service Commission would not be executed through its representatives”.

The parliamentary Justice and Legal Affairs Committee had earlier failed to prevail on Justice Maraga to take early terminal leave, and subsequently published a proposal to change the law on when to begin recruitment of a new Chief Justice. The Chief Justice will officially retire on January 12, 2021, when he turns 70, but he is expected to take leave on December 15, 2020.

Powerful individuals in the country’s politics cannot wait to see Justice Maraga’s back because of his surprising show of spine. On September 1, 2017, the mild-mannered and soft-spoken jurist led a four-judge majority of the Supreme Court to annul the presidential election in a decision that reverberated across the globe. Last month, Justice Maraga advised the President to dissolve Parliament for failing enact laws to increase representation of women in national elected leadership on the strength of a High Court declaration and six petitions.

Between the two monumental decisions, the Chief Justice has called out the President over judiciary budget cuts, disregard for court orders and verbal attacks on the institution he leads.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric. None of these backhanded actions have brought the politically powerful any satisfaction, hence the abiding desire to find a more user-friendly Chief Justice.

Vacancies in the Judiciary can only be advertised seven days after they open up, according to the law, which means that the Chief Justice, who also chairs the JSC, plays no role in recruiting his successor. Previously, individuals in the presidency unsuccessfully sought to influence who becomes Chief Justice since the Constitution of Kenya, on its promulgation in 2010, retired Justice Evan Gicheru in February 2011. At the time, President Mwai Kibaki nominated the Court of Appeal’s Justice Alnashir Visram for Chief Justice without inviting applications or conducting interviews. He was countermanded by the newly-constituted JSC, which then conducted one of the most brutal public interviews for the position before choosing civil society icon and law scholar Willy Mutunga.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric.

Dr Mutunga’s transparent recruitment freed him from the usual baggage that would accompany a political appointment to lead the transformation of the judiciary into an independent, publicly accountable institution [Full disclosure: I was communication advisor in the Office of the Chief Justice from 2011 to 2015]. By the time Dr Mutunga chose to retire a year early in June 2016, he had trebled the number of judges to increase efficiency, built confidence and secured the highest funding ever for the institution. He also ring-fenced decisional independence that would enable courts to act as a check on executive and legislative power.

After the Supreme Court upheld the 2013 presidential election, an internal corruption investigation in the Judiciary sucked the institution into a confrontation with the National Assembly, which petitioned the President to appoint a tribunal to investigate six members of the JSC. A five-judge High Court bench neutered the tribunal before it could sit and presented the first contest between Dr Mutunga and President Uhuru Kenyatta.

President Kenyatta would play possum with a list of 25 judge nominees presented to him by the JSC, first appointing 11 and then keeping the other 14 in abeyance for a year. An amendment to the law to require the JSC to send the President three names from which he could choose the Chief Justice was struck down on account of unconstitutionality.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament. By the time interviews for Dr Mutunga’s replacement began in September 2016, the Executive was disoriented and unable to muscle its substantial vote strength in the JSC for a single candidate.

Although the presidency nominates two non-lawyers as members of the JSC in addition to the Attorney General and a nominee of the Public Service Commission, thus controlling 36 per cent of the vote, the Judiciary has five members – the Chief Justice as chair and one representative each for the Supreme Court, the Court of Appeal, the High Court and the magistrates – and has 45 per cent voice. The Law Society of Kenya’s two representatives – 18 per cent – provide an important swing vote for the Executive or the Judiciary whenever there is no consensus.

Justice Maraga of the Court of Appeal emerged as the dark horse in the three-month search for the Chief Justice on the strength of his electoral law jurisprudence. Earlier attempts to name Supreme Court judge Jackton Ojwang as acting Chief Justice were abandoned. Justice Ojwang trailed fellow Supreme Court judge Smokin Wanjala, Kenyan-American law professor Makau Mutua, and constitutional law expert Nzamba Kitonga.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament.

The Supreme Court’s annulment of the presidential election in September 2017 produced voluble complaints from President Kenyatta, who threatened unspecified action against the Judiciary. The independence of the Judiciary, represented in the person of the Chief Justice, has clearly rankled President Kenyatta and his supporters. He subsequently began a systematic reorganisation of the Executive’s representatives to the JSC by picking a judiciary insider, Court of Appeal president, Kihara Kariuki, to replace Attorney General Githu Muigai. Even before the terms of public representatives Winnie Guchu and Kipng’etich Bett were midway, he recalled them and replaced them with Prof Olive Mugenda and Felix Koskey. And then he declined to gazette the re-election of Mohammed Warsame as Court of Appeal representative to the JSC. Judge Warsame was finally seated without re-taking oath courtesy of a court decision that obviated the need for his election to be gazetted. He joined the judiciary column led by the Chief Justice, Deputy Chief Justice Philomena Mwilu, who had been elected to represent the Supreme Court, and Justice David Majanja, who represents the High Court.

Fears have been rife that the election of the magistrates’ representative to replace Chief Magistrate Emily Ominde in December and the replacement of LSK woman representative Mercy Deche could provide an opportunity for the Executive to support pliant candidates, in addition to Macharia Njeru.

It is likely that urgent attempts to start the Chief Justice’s recruitment could exclude the two representatives of the magistrates and the LSK, thus denying the panel two critical voices. Voting strength in the JSC could also be significantly altered if some of the commissioners apply for the Chief Justice’s position. For one, it is not clear if the 62-year-old Deputy Chief Justice Philomena Mwilu, who already represents the Supreme Court in the JSC, will act as chairperson of the commission once Justice Maraga leaves.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Political horse-trading with Parliament is a necessity for nominees to the position of Chief Justice and Deputy Chief Justice to be confirmed during vetting. Often, politicians view the Chief Justice’s position as one of the spoils to be traded during ethno-regional deal-making. So far, the Chief Justice’s position has been occupied by a kaleidoscope of Kenyans – including many ethnic and religious colourations.

The law only provides for the Deputy Chief Justice to act as Chief Justice “[i]n the event of the removal, resignation or death” and only for a period not exceeding six months pending the appointment of a new one. It remains to be seen if legal experts will argue that retirement is not equivalent to removal, resignation or death. Should Justice Mwilu also throw her hat in the ring for the top job, she would not be able to cast a vote as a JSC member.

Another JSC member who has to weigh between voting and chasing the job is 66-year-old Justice Kihara Kariuki, believed to be a front-runner to succeed Chief Justice Evan Gicheru in 2011 but has bided his time, rising to President of the Court of Appeal before accepting to serve as Attorney General. Meanwhile, Justice Mwilu has been embroiled in petitions seeking her removal from office since the Supreme Court annulled the presidential election. Two years ago, the Director of Public Prosecutions and the Director of Criminal Investigations launched a highly publicised effort to arrest and charge her with corruption before the High Court discharged her and advised that complaints against her be first have been processed through the JSC. Justice Mwilu has since tied the JSC in legal knots over the involvement of the Attorney General and one other member in hearing the complaint against her, claiming that they have shown bias.

Although the Constitution allows a Chief Justice to serve for a maximum of 10 years, the practice so far has been to choose individuals who are close to the retirement age, with the effect that those chosen preside over only presidential petitions from one election cycle before they reach the retirement age of 70. If appointments continue to be short-term to limit the pain individuals can inflict on the institution, candidates in their mid-60s appear to be chosen to navigate the 2022 election and leave before the 2027 one.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Former Deputy Chief Justice Nancy Baraza, 63, has expressed a desire to return Although the Supreme Court’s Justice Smokin Wanjala gave a good showing at the 2016 interviews and was ranked second, his age – 60 – means that if appointed, he would hold the job for 10 years. Law scholar Makau Mutua, 62, who was ranked third in the 2016 interviews for Chief Justice, could also give the job another try, as would former Attorney General Githu Muigai, who would similarly be hampered by fears of serving out the 10 years in the post.

The Executive’s frustration with the Judiciary has been expressed as blame for the slow pace of corruption cases, where the courts are criticised for not pulling their weight to deliver quick convictions. The most evident sign of frustration has been the President’s refusal to appoint 41 individuals nominated by the JSC as Court of Appeal and High Court judges. The law does not permit the JSC to reconsider its nominees after the names have been submitted to the President, except in the case of death, incapacity or withdrawal of a nominee. Last week, judge designate Harrison Okeche died after a road traffic accident before he could be sworn in because the President has not published the names as expected. It remains to be seen how the JSC responds.

Chief Justices chair the Judicial Service Commission, and preside over the Supreme Court, which decides the presidential election petitions. Besides the very constrained and collegial power in these two sites, the Chief Justice also exercises administrative power in empanelling High Court benches for constitutional references, and posts judges – powers shared with the President of the Court of Appeal and the Presiding Judge of the High Court.

A Chief Justice cannot direct judicial officers – from the lowliest magistrate to the Supreme Court judge – on how to decide a matter. Much of the power she or he wields is moral and symbolic. The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results for those seeking a puppet Chief Justice.

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African Continent a Milking Cow for Google and Facebook

‘Sandwich’ helps tech giants avoid tax in Africa via the Netherlands and Ireland.

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Algorithmic Colonisation of Africa
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Google’s office at the airport residential area in Accra, Ghana, sits inside a plain white and blue two-storey building that could do with a coat of paint. Google, which made more than US$ 160 billion in global revenue in 2019, of which an estimated US$ eighteen billion in ‘Africa and the Middle East’, pays no tax in Ghana, nor does it do so in most of the countries on the African continent.

Google Street View of the building registered as Google's office in Accra

Google Street View of the building registered as Google’s office in Accra

It is able to escape tax duties because of an old regulation that says that an individual or entity must have a ‘physical presence’ in the country in order to owe tax.  And Google’s Accra office clearly defines itself as ‘not a physical presence.’ When asked, a front desk employee at the building says it is perfectly alright for Google not to display its logo on the door outside. ‘It is our right to choose if we do that or not’. A visitor to the building, who said she was there for a different company, said she had no idea Google was based inside.

Facebook is even less visible. Even though practically all 250 million smartphone owners in Africa use Facebook, it only has an office in South Africa, making that country the only one on the continent where it pays tax.

Brick and mortar

The physical presence rule in African tax laws is ‘remnant of a situation before the digital economy, where a company could only act in a country if it had a “brick and mortar” building’, says an official of the Nigerian Federal Inland Revenue Service (FIRS), who wants to remain anonymous. ‘Many countries did not foresee the digital economy and its ability to generate income without a physical presence. This is why tax laws didn’t cover them’.

Tax administrations globally have initiated changes to allow for the taxing of digital entities since at least 2017. African countries still lag behind, which is why the continent continues to provide lucrative gains for the tech giants. A 2018 PriceWaterhouseCoopers report noted that Nigeria, Africa’s largest economy, has seen an average of a thirty percent year-on-year growth in internet advertising in the last five years, and that the same sector in that country is projected, in 2020, to amount to US$ 125 million in the entertainment and media industry alone.

‘Their revenue comes from me’.

William Ansah, Ghana-based CEO of leading West African advertising company Origin 8, pays a significant amount of his budget to online services. He says he is aware that tax on his payments to Facebook and Google escapes his country through what is commonly referred to as ‘transfer pricing’ and feels bad about it. ‘These companies should pay tax here, in Ghana, because their revenue comes from me’, he says, showing us a receipt from Google Ireland for his payments. During this investigation we were also shown an advert receipt from a Nigerian Facebook ad that listed ‘Ireland’ as the destination of the payment.

Like Google, Facebook does not provide country-by-country reports of its revenue from Africa or even from the African continent as a whole, but the tech giant reported general revenue of US$ sixty billion as a whole from ‘Rest of the world’, which is the world minus the USA, Canada, Europe and Asia.

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

The specific transfer pricing construction Google and other tech giants such as Facebook use to channel income away from tax obligations is called an ‘Irish Double’ or ‘Dutch Sandwich’, since both countries are used in the scheme. In the construction, the income is declared in Ireland, then routed to the Netherlands, then transferred to Bermuda, where Google Ireland is officially located. Bermuda is a country with no corporation tax. According to documents filed at the Dutch Chamber of Commerce in December 2018, Google moved US$ 22,7 billion through a Dutch shell company to Bermuda in 2017.

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

An ongoing court case in Ghana — albeit on a different issue — recently highlighted attempts by Google to justify its tax-avoiding practices in that country. The case against Google Ghana and Google Inc, now called Google LLC in the USA, was started by lawyer George Agyemang Sarpong, who held that both entities were responsible for defamatory material against him that had been posted on the Ghana platform. Responding to the charge, Google Ghana contended in court documents that it was not the ‘owner of the search engine www.google.com.gh’; that it did not ‘operate or control the search engine’ and that ‘its business (was) different from Google Inc’.

Google Ghana is an ‘artificial intelligence research facility’.

Google Ghana describes itself in company papers as an ‘Artificial Intelligence research facility’. It says that its business is to ‘provide sales and operational support for services provided by other legal entities’, a construction whereby these other legal entities — in this case Google Inc — are responsible for any material on the platform. Google Ghana emphasised during the court case that Ghana’s advertising money was also correctly paid to Google Ireland Ltd, because this company is formally a part of Google Inc.

Rowland Kissi, law lecturer at the University of Professional Studies in Accra describes Google’s defence in the Sarpong court case as a ‘clever attempt’ by the business to shirk all ‘future liability of the platform’. Kissi is cautiously optimistic about the outcome, though: while the case is ongoing, the court has already asserted that ‘the distinction regarding who is responsible for material appearing on www.google.com.gh, is not so clear as to absolve the first defendant (Google Ghana) from blame before trial’. According to leading tax lawyer and expert Abdallah Ali-Nakyea, if the ‘government can establish that Google Ghana is an agent of Google Inc, the state could compel it to pay all relevant taxes including income taxes and withholding taxes’.

Cash-strapped countries

Like most countries, especially in Africa, Nigeria and Ghana have become more cash-strapped than usual as a result of the COVID 19 pandemic. While lockdowns enforced by governments to stop the spread of the virus have caused sharp contractions of the economy worldwide, ‘much worse than during the 2008–09 financial crisis’, according to the International Monetary Fund, Africa has experienced unprecedented shrinking, with sectors such as aviation, tourism and hospitality hardest hit. (Ironically, in the same period, tech giants like Google and Facebook have emerged from the pandemic stronger, due to, among others, the new reality that people work from home.)

With much needed tax income still absent, many countries have become even more dependent on charitable handouts. Nigeria recently sent out a tweet to ask international tech personality and philanthropist, Elon Musk, for a donation of ventilators to help weather the COVID 19 pandemic: ‘Dear @elonmusk @Tesla, Federal Government of Nigeria needs support with 100-500 ventilators to assist with #Covid19 cases arising every day in Nigeria’, it said. After Nigerians on Twitter accused the government of historically not investing adequately in public health, pointing at neglect leading to a situation where a government ministry was now begging for help on social media, the tweet was deleted. A government spokesperson later commented that the tweet had been ‘unauthorised’.

Cost to public

The criticism that governments often mismanage their budgets and that much money is lost to corruption regularly features in public debates in many countries in Africa, including Nigeria. However, executive secretary Logan Wort of the African Tax Administration Forum ATAF has argued that this view should not be used to excuse tax avoidance. In a previous interview with ZAM Wort said that ‘African countries must develop their tax base. It is only in this way that we can become independent from handouts and resource exploitation. Then, if a government does not use the tax money in the way it should, it must be held accountable by the taxpayers. A tax paying people is a questioning people’.

‘A tax paying people is a questioning people’

Commenting on this investigation, Alex Ezenagu, Professor of Taxation and Commercial Law at Hamad Bin Khalifa University in Qatar, adds that in matters of tax avoidance by ‘popular multinationals such as Facebook and Google, it is important to understand the cost to the public. If (large) businesses don’t pay tax, the burden is shifted to either small businesses or low income earners because the revenue deficit would have to be met one way or another’. For example, a Nigerian revenue gap may cause the government to increase other taxes, Ezenagu says, such as value added tax, which increased from five to seven and a half percent in Nigeria in January. ‘When multinationals don’t pay tax, you are taxed more as a person’.

Nigeria has recently begun to tighten its tax laws, thereby following in the footsteps of Europe, that last year made it more difficult for the digital multinationals to use the ‘Irish Double’ to escape tax in their countries. South Africa, too, in 2019 tailored changes to its tax laws in order to close remaining legal loopholes used by the tech giants. These ‘could raise (tax income) up to US$ 290 million a year’ more from companies like Google and Facebook, a South African finance source said. With US$ 290 million, Ghana’s could fund its flagship free senior high school education; Nigeria could fully fund the annual budget (2016/2017 figures) of Oyo, a state in the south west of the country.

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

Nigeria’s new Finance Act, signed into law in January 2020, has expanded provisions to shift the country’s focus from physical presence to ‘significant economic presence’. The new law leaves the question whether a prospective taxpayer has a ‘significant economic presence’ in Nigeria to the determination of the Finance Minister, whose action with regard to the tech giants is awaited.

In Ghana, digital taxation discussions are slowly gaining momentum among policy makers. The Deputy Commissioner of that country’s Large Taxpayer Office, Edward Gyamerah, said in a June 2019 presentation that current rules ‘must be revised to cover the digital economy and deal with companies that don’t have traditional brick-and-mortar office presences’. However, a top government official at Ghana’s Ministry of Finance who was not authorised to speak publicly stated that, ‘from the taxation policy point of view, the government has not paid a lot attention to digital taxation’.

He blamed the ‘complexity of developing robust infrastructure to assess e-commerce activity in the country’ as a major reason for the government’s inaction on this, but hoped that a broad digital tax policy would still be announced in 2020.” Until the authorities get around to this, he said he believed that, ‘Google and Facebook will (continue to) pay close to nothing in Ghana’.

Comment

Google Nigeria did not respond to several requests for interviews; Google Ghana did not respond to a request for comment on this investigation. Neither entities responded to a list of questions, which included queries as to what of their activities in the two countries might be liable for tax, and whether they could publish country by country revenues generated in Africa. When reached by phone, Google Nigeria’s Head of Communications, Taiwo Kola Ogunlade, said that he couldn’t speak on the company’s taxation status. Facebook spokesperson Kezia Anim-Addo said in an email: ‘Facebook pays all taxes required by law in the countries in which we operate (where we have offices), and we will continue to comply with our obligations’.

Note: The figure of eighteen billion US$ as revenue for Google in ‘Africa and the Middle East’ over 2019 was arrived at as follows. Google’s EMEA figures for 2019 indicate US$ 40 billion revenue for ‘Africa, Europe and the Middle East’ all together. According to this German publication, Google’s revenue in Europe was 22 billion in 2019This leaves US$ eighteen billion for Africa and the Middle East.

This article was first published by our partner ZAM Magazine.

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