“If democracy is someday to regain control of capitalism, it must start by recognising that the concrete institutions in which democracy and capitalism are embodied need to be reinvented again and again.” (Piketty 2014: 570).
During the run-up to the US elections in November, a number of my African colleagues and friends told me that Trump would win the presidency. Several even opined that something good would come out of it in the end. Experience has taught me to treat such counterintuitive observations with a degree of cautious respect. But this particular appraisal was a tricky proposition.
Trump ran more on outrage with the status quo, homespun economic nationalism, and anti-Hillary sentiment than workable policies for reversing the domestic malaise framing his rude political rhetoric. The Tea Party crowd flocked to Trump’s campaign, presenting Trump with the kind of political stage suited to his unconventional and often reptilian behaviour. The national media feasted on Trump’s antics and divisive positions, but the condescending coverage of the campaign of a candidate who started out as an outlier also camouflaged the more clinical aspects of his strategy to defeat Hillary Clinton.
The poll numbers and sophisticated data analyses dismissed the likelihood of a Trump victory. But then the same electorate who twice elected Obama by sizeable majorities propelled his polar opposite into the White House.
For the many millions of Americans and others around the world distressed by the Trump campaign, the implications of his electoral-college victory was like waking up to a collective nightmare. Most of my friends, family and colleagues were stunned. Anger and agitation quickly replaced the shock. Obama’s bleak reaction, “Well, it’s not the Apocalypse,” offered little comfort.
This added up to a lot to think about as I made my way back to the US for the first time since 2004, arriving in the country two days after Trump’s inauguration. I was told to expect massive changes. My destination was Salt Lake City, the capital of Utah, socially the most conservative of the red states of the American West.
Exposure to racist theology like that of the Church of Latter Day Saints was a primary motivator for the black power salute at the 1968 Olympics in Mexico. Tommy Smith won the 200 metres in world record time followed by John Carlos in third place. The medallists mounted the podium barefoot, to symbolise the poverty of their African-American community, and raised black-gloved fists in defiance during the raising of the American flag. The protest triggered an explosion of institutional indignation and recriminations portraying Smith and Carlos as Nazis and traitors
For decades, many Americans considered the Mormon-dominated state to be a quasi-theocratic no-go zone with a unique past that set Utah apart from other ultra-conservative Western states like Wyoming, Idaho, Montana, and the Dakotas.
During my two previous trips I had found a large and variegated landscape of rangeland, desert, and mountains, with a large inland sea thrown in to boot. I found many similarities between Utah and Marsabit and the Lake Turkana region, including its traditional spatial and social separation from the rest of the country.
Mormons fleeing religious persecution in the East settled in Utah at a time when almost everyone else was heading to California. The Territory of Utah was officially recognised in 1851. It was the only Western state to allow slavery, and attempted to secede from the Union shortly afterwards. Washington was compelled to send in the army. Brigham Young, who had succeeded the religion’s founder, Joseph Smith, capitulated, but with the promise that the government would grant the Mormons autonomy to live according to their religion. The Church of Latter Day Saints has dominated the state’s economy and government ever since.
The Book of Mormon stated that the indigenous peoples the white settlers found in their new home originally came from the Middle East, but had divided into two antagonistic groups. The “Lamanites” were idolaters revealed to have extinguished a population of “Nephrite” Hebrews who had migrated to the New World several hundred years before the coming of Christ. Mormon scripture saw dark skin as a curse from God for wickedness, but otherwise taught that peoples of colour who converted and abandoned their culture would become white over time.
Exposure to this racist theology was a primary motivator for the black power salute at the 1968 Olympics in Mexico. Tommy Smith won the 200 metres in world record time followed by John Carlos in third place. The medallists mounted the podium barefoot, to symbolise the poverty of their African-American community, and raised black-gloved fists in defiance during the raising of the American flag. The protest triggered an explosion of institutional indignation and recriminations portraying Smith and Carlos as Nazis and traitors. The firestorm also curtailed the running career of the Australian silver medallist who in solidarity wore the same human rights badge pinned to the Americans’ jerseys.
It was a radicalising moment: I compiled a comprehensive report of the protest and the conditions leading up to it for a high school project. The racism of the church of Latter Day Saints added to my impressions of the state based on the gruesome fate of the Westward-bound Donner party caravan and the numerous massacres of the local Amerindian communities during the early days of the territory. Many of us growing up at that time saw Utah as the American equivalent of Albania or North Korea.
The Civil Rights movement had already done most of the heavy lifting. This in turn provided a platform for the anti-war movement. Before long, what began as a political movement for peace and racial inclusion coalesced into a much broader social upheaval
Utah has evolved during the intervening decades. The US government has resettled refugees of diverse backgrounds in the state. Salt Lake City’s industry-friendly environment also attracted the tech companies relocating from California, bringing the formerly isolated state into the American mainstream over the past two decades. Readily available jobs, a reasonable cost of living, and a network of Kenyan friends and family already established in the former no-go zone attracted several of my kids to Salt Lake City.
The growing cultural diversity has not altered the state’s bedrock conservatism. Mitt Romney and George Bush Jr still received a phenomenal 72 per cent of Utah’s vote in 2012 and 2008. Although Donald Trump’s tally did not reach these heights in 2016, the sum of these factors designated this most red of states an appropriate re-entry point for my tour of Trump’s America.
Steve Bannon, the Breitbart News executive who became one of the key architects of the Trump campaign, declared that if you want to change politics you have to change culture first. There was the angst on the surface and uncertainty lurking underneath, but was the Republican clean sweep of White House, the Senate, and House of representatives really a marker of far-reaching culture change?
THE COUNTERCULTURAL ROOTS OF THE TRUMP PRESIDENCY
Bannon clearly arrived at his change-the-culture thesis by observing the counterculture that emerged while my generation came of age, a phenomenon that reshaped American society and politics along the way.
The post-World War II period was an era of unprecedented prosperity, middle-class growth and technological progress for the USA. Politics was something that our parents followed as it came around in four-year cycles. America was a truly great place to grow up, as long as you could keep the fear of nuclear Armageddon, and other industrial-scale threats, at a safe distance.
For the young Americans growing up in customisable bubbles coloured by the scientific advances underpinning the futuristic orientation of American society, that was harder to do as the 1960s wore on. The raised fists in Mexico City — along with other radicalising events like the Vietnam war, the violent suppression of the Yippie protests at the Chicago Democratic Convention, and the river in Cleveland that actually caught fire and burnt for 17 days — confirmed my own doubts about how wonderful everything was or was supposed to be.
The Civil Rights movement had already done most of the heavy lifting. This in turn provided a platform for the anti-war movement. Before long, what began as a political movement for peace and racial inclusion coalesced into a much broader social upheaval. The country entered a state of agitation sustained by an expanding range of worthy causes from the conditions of migrant farm workers to rampant industrial pollution. Much of the conflict was generational, and reflected a polarising explosion of new memes, pheromones, and mind-altering visions.
As the awakening and the activism of the Vietnam era ran its course, American conservatives felt increasingly isolated. Not only had their values been shunted aside, the country’s conservative hard core saw the reforms and new liberalism as a direct threat to the sources of their wealth. Conservative partisans like Steve Bannon may have missed the party, but they were taking notes
The sentiment at the time was that only a far-reaching cultural reorientation could triumph against the entrenched political order and the military-industrial complex controlling it. The mix of hot politics and cool culture was always more about challenging the conventional assumptions underpinning American exceptionalism than the political revolution advocated by the far-left fringe.
Waves of new music, innovative lifestyles, radical role models, and more mundane concerns like promoting healthy dietary choices rocked the national status quo. People started searching for alternatives to the mindless consumption of the planet’s limited resources. Tabs, buttons, and mushrooms opened up new internal vistas that encouraged interest in ancient cultures and their spiritual religious traditions. We probed the mystical symbols adorning the dollar bill and investigated the esoteric philosophies guiding the new nation’s founding fathers.
The combination of protests, new cultural orientations, and developments in the war zones of Southeast Asia shifted public opinion. Withdrawal from Vietnam accompanied progress on other fronts from race relations to female liberation. New legislation addressed discrimination based on colour, creed, and gender, reined in the CIA, and created the Environmental Protection Agency to control serial polluters.
The ship had been righted, the course of the nation redirected, and use of the term “politically correct” offered backhanded acknowledgement of the nation’s cultural makeover in politics. In the end, many of the political attitudes engendered by the counterculture followed long hair, frayed jeans, and recreational marijuana use into mainstream America.
The changes, affected over a relatively short period, had made America even more exceptional in our eyes. But some observers disagreed. The eminent anthropologist Marvin Harris opined that the main impact of the counterculture was selling a lot of records. Iconoclastic musician Frank Zappa said that rock music’s potential revolutionary impact had been felt mostly in the textile industry. Cultural revolution did little to change the nation’s political structures and economy.
As the awakening and the activism of the Vietnam era ran its course, American conservatives felt increasingly isolated. Their champion, the embattled president Nixon, resigned office in disgrace. Not only had their values been shunted aside, the country’s conservative hard core saw the reforms and new liberalism as a direct threat to the sources of their wealth. They were still wealthy, but had become dinosaurs inhabiting a political landscape dominated by progressive ideas and proponents of activist government. Conservative partisans like Steve Bannon may have missed the party, but they were taking notes.
IT’S NOT REALLY ABOUT TRUMP
The Koch brothers are ferociously independent heirs to one of the largest private corporations in the United States. Like the Bush family and their cronies, their father, Fred Koch, built up his fortune during the 1930s, training Bolshevik engineers and selling his advanced oil refining technology and refineries to Stalin and Hitler’s Germany. His children’s nanny was a Hitler sympathiser, and after the war Fred Koch became a strong supporter of the rabidly anti-Communist John Birch Society to assuage his guilt over aiding the USSR. He transferred his extreme libertarian values to his sons, and after his death in 1967, Charles and David Koch bought out their two more liberal minded siblings.
In Dark Money, a book first released in 2016, Jane Mayer tells the story of how the Koch Brothers assembled a network of 400 über-wealthy industrialists. Mayer’s documentation of their activities reads like a virtual symphony of corporate crime in the form of fraud, tax avoidance, violations of workplace safety and employee welfare, foreign bribery, and environmental violations
Under the brothers, Koch Industries became the country’s second wealthiest private corporation, and they parlayed their financial muscle into the single most influential political machine in the country. Their first venture, David Koch’s run for the presidency on the Libertarian Party ticket in 1980, failed miserably. Plan B was based on a totally different approach. It began with annual summits attended by a handpicked list of like-minded individuals opposed to most forms of government regulation and taxation.
In Dark Money, a book first released in 2016, Jane Mayer tells the story of how the Koch Brothers assembled a network of 400 über-wealthy industrialists who leveraged their money and influence to penetrate the American political system for their personal financial benefit. The brothers are the sixth and seventh wealthiest Americans and their combined wealth makes them number one. Most of those they recruited belong to the top .01% of the country’s wealthiest billionaires and are known as the “invisible rich” because they operate private companies that shield them from public scrutiny and government rules for fiscal disclosure.
Mayer’s documentation of their activities reads like a virtual symphony of corporate crime in the form of fraud, tax avoidance, violations of workplace safety and employee welfare, foreign bribery, and environmental violations. Over several decades, this network, or the Kochtopus as it was dubbed by one analyst, spent billions of dollars funnelled through tax-free foundations and charities exempted from public oversight to promote their objectives.
The Koch summits provided the institutional foundation and financial support for a long-term strategy based on three overlapping components: The reformulation of libertarian ideology in terms of ideas and concepts enabling its propagation within mainstream society; the creation of institutions for translating this free-market ideology into policy positions and legislation; and building political vehicles on the ground for placing politicians aligned with their ideas and policies into public office.
Most of the Koch-networked and -funded institutions and political action committees, like Americans for Prosperity, flew underneath the radar. At the same time, an array of media personalities, talk show hosts, and academic celebrities duplicated the role that rock musicians, intellectuals and artists, political activists, and outspoken athletes like Mohammed Ali played in energising the masses several decades before. They elevated the role of divisive social issues like abortion rights in the political arena, fuelling the culture wars that influenced otherwise politically moderate citizens.
The Koch network funded think tanks based in respected universities to reinforce their anti-government ideology and critiques of public spending. Covertly funded political action committees were used to gain control of executive offices and legislative bodies. Over a period of 40 years, the Koch Brothers and their clique of archconservative supporters patiently cultivated a right-wing movement, often with more power to block and obstruct than to legislate their own agenda.
An array of media personalities, talk show hosts, and academic celebrities duplicated the role that rock musicians, intellectuals and artists, political activists, and outspoken athletes like Mohammed Ali played in energising the masses several decades before. They elevated the role of divisive social issues like abortion rights in the political arena
But despite the inroads and influence generated by their free-flowing money, the Koch network still lacked a nation-wide vehicle for mobilising grassroots supporters.
ENTER BARACK OBAMA, PURSUED BY MAD HATTERS
Help came from an unexpected source.
The election of Barrack Obama in 2008 triggered the formation of the anti-government Tea Party movement. Its emergence enabled the Koch network to dedicate their annual summit in 2009 to organise an all-out assault on the Democrats during the 2010 mid-term elections. Tea Party candidates defeated Democrat and mainstream Republican incumbents as the GOP regained control of the House and Senate. The trend continued in 2012, even though Obama retained the White House with a 5.5 million-vote margin of victory.
Despite their growing clout within the federal and state governments, the Koch-Tea Party coalition could not field a viable presidential candidate of their own creation, as demonstrated by the succession of inchoate candidates like Marco Rubio, Ted Cruz, Rand Paul, Rick Santorum, Ben Carson, Michelle Bachmann, and the pizza king Herman Cain.
The problem was about to repeat itself in 2016, until along came the Donald. Trump blitzed the field, reducing both establishment candidates like Jeb Bush and Tea Party aspirants to props in his carnival-style campaign. He proceeded to tweet himself into the White House, portraying himself as a new and independent force in American politics.
That he was. “I even did without a guitar and piano,” he quipped, a jibe referring to the star power Hillary Clinton trundled out at the end of her self-satisfied campaign.
Actually, the Trump team had something much better. Cambridge Analytica is a company dedicated to “the use of data to change behaviour,” or in the case of the 2016 election, using emotional manipulation based on psychological profiling to induce people to vote against their own socioeconomic interest. Electoral analysts confirm that CA helped sway the vote in key swing states like Florida, North Carolina, and Michigan, but their advanced analytics arguably required the distortionary prism cultivated by the alt-right players like Breitbart News and Steve Bannon to be effective.
THE REAL HOMELAND INSECURITY
It is easy to denigrate Trump the person. But Trump the politician scored some important points on my political scorecard. I had witnessed the beginning of the decline overtaking rural areas in the American South, and now even communities and people in America’s heartland who did everything by the book to adapt to the industrial decline still couldn’t win. The economic nationalism agenda clearly spoke to their concerns, even if it was short on viable solutions.
Despite their growing clout within the federal and state governments, the Koch-Tea Party coalition could not field a viable presidential candidate of their own creation, as demonstrated by the succession of inchoate candidates like Marco Rubio, Ted Cruz, Rand Paul, Rick Santorum, Ben Carson, Michelle Bachmann, and the pizza king Herman Cain. The problem was about to repeat itself in 2016, until along came the Donald
A Trump versus Bernie Sanders contest focusing debate on the overlapping issues at the core of both candidates’ campaigns would have been much better for the country and the eventual winner. That did not happen thanks to the Democratic National Committee’s pro-Hillary machinations. Instead, we got a noisy post-truth spectacle that made one candidate look like a sleazy demagogue while the other came across as an opportunistic mannikin compromised by special interests.
The country emerged from the polls more polarised than ever, and the acrimony of the aftermath offered little hope for improvement. The fact that Trump was not part of the Kochtopus and the Koch brothers did not support his campaign offered some hope: Maybe the guy would revert to the former Democrat who was cool with Dennis Rodman on The Celebrity Apprentice. But then again, Vice President Michael Pence was a Koch-funded poodle; Trump promptly loaded his Cabinet with Koch partisans like Betsy DeVoss and Ben Carson.
It was not easy to see where my friend’s “something good will come out this” would come from with these people in charge.
A few days after I arrived in Utah, Trump announced his Muslim travel ban. A wave of spontaneous protests erupted as airport authorities detained several hundred arrivals from abroad including a former Middle Eastern head of state. The mainstream media went into overdrive and anti-Trump posts proliferated on social media, many of them creative, incisive, and entertaining. This and the breaking news about Russia drove a former State Department official to lament that the US has become a “Banana Republic.”
Although a federal judge declared the ban unconstitutional on the first working day following the executive order, a Utah-based friend from Lamu, spooked by the ban, still felt it necessary to travel back to Kenya to escort his wife, who had just received her long-awaited US visa, past airport immigration and security. More significantly, three days later, the LDS church issued a statement opposing the ban.
I argued that the election was the best thing that happened for progressive forces in decades. It woke people up, and saved the world from a hawkish and dissembling Hillary. At least the decades of drift culminating in the aristocratic takeover of party and state by the Clinton dynasty were over
This was unexpected news, as was a University of Utah study that reported most Muslim immigrants found the state more welcoming and adjusting to the US easier in Utah’s family oriented and no-alcohol Mormon culture. I also discovered that the religion’s founder and prophet, Joseph Smith, was actually an abolitionist, and that the Utah territory granted women the right to vote in 1870, 50 years before the federal government legislated universal suffrage by passing the 19th Amendment (Congress responded by disenfranchising Utah women with the Edmunds–Tucker Act, which was designed to weaken the Mormons politically and punish them for polygamy).
Red America is not as monolithic as it may appear in media political narratives. I spent Super Bowl Sunday in Salt Lake City with a houseful of Mexican relatives. More of them were more upset with the New England Patriot’s last minute Trump-style victory than worried about Trump’s wall.
I visited blue America. We convened a large family gathering in Los Angeles, and spent time with friends in San Francisco. There were a lot of Teslas and other electric cars, and a few self-driving vehicles on the freeways, their passengers contently working on phones and tablets.
THE COMING SECESSION OF HOTEL CALIFORNIA?
California is the high-tech future. But it is also the land of a new long-tail market peasantry. Internet-savvy entrepreneurs were surviving by reselling appliances and other recycled items. Co-operatives in the form of Internet-based groups were pooling their knowledge to utilise the online economy.
I have in-laws in LA who subsist by swapping coupons and minimising household costs through scientific shopping for bargains and stocking their freezer with food reduced for clearance.
Despite their struggle to keep body and soul intact, every month they host poetry readings and other cultural events in their home that are attended by dozens of friends and associates more concerned with the fate of the country than their own declining incomes.
The two coasts had emerged as the centre of anti-Trump activism, and some of the protests, like the student protests in Berkeley that forced the administration to cancel an appearance by the Breitbart editor, Milo Yiannopoulos, crossed the line, violating basic constitutional and democratic principles. When I mentioned the retrogressive nature of some of these developments, my friends in California ranted about the new regime and talked about secession in terms that recalled my conversations with the Mombasa Republican Council’s leadership.
I responded by arguing that the election was the best thing that happened for progressive forces in decades. It woke people up, and saved the world from a hawkish and dissembling Hillary. Contributions to the American Civil Liberties Union were spiking; at least the decades of drift culminating in the aristocratic takeover of party and state by the Clinton dynasty were over.
Other developments of the past several months painted a much more nuanced picture of the state of the nation. San Francisco 49ers quarterback Colin Kaepernick revisited the spirit of the Mexico Olympic protest by refusing to stand for the national anthem. In pro-Trump Louisiana, the city of New Orleans took down the statue of Robert E. Lee — the state’s last remaining symbol of the Confederacy. John McCain penned an incisive op-ed in the New York Times underscoring the importance of human rights in foreign policy as an extension of domestic American values. Bob Dylan, the first poet of the counterculture, became a Nobel laureate.
The United States is a highly dualistic nation held together by a strong political centre. The nation’s political trajectory has consistently zigzagged between right and left of centre over the course of my lifetime. The transition from Obama to Trump was consistent with this dialectic
After the election, the website for the largest Tea Party PAC crowed that it took the anti-war movement 25 years to elect one of their own to the White House while they had done the same over the course of two electoral cycles. In reality, the success rate of Tea Party candidates peaked in 2012. Now minority politicians with names like Chokwe Lumumba and Khalid Kamau were winning seats in local government. Unheralded candidates recently won by-elections for seats in New Hampshire and New Jersey districts that had never elected a Democrat.
In his book What’s Wrong With Kansas, Thomas Frank describes how conservatives used religion and the culture wars to flip the formerly progressive state into a Republican stronghold. A decade later, the economy is tanking, while the state’s model education system deteriorates due to the spending cuts instituted by the Koch-supported Governor. Back in another flyover state, there are helped wanted signs everywhere and the Utah economy is booming. The difference is not accidental.
After I returned to Kenya, Bloomberg News published an article entitled How Utah is Keeping the American Dream Alive. The writer begins by confessing, “There’s no getting around it: For a girl raised on the Upper West Side of Manhattan, Salt Lake City is a very weird place.” She then proceeds to detail how the state government is collaborating with Latter Day Saints agencies to provide social protection for the poor while providing job training addressing local demand for skilled and semi-skilled labour. The formula is generating Scandinavian levels of social mobility in a state with a small but committed civil service and the country’s lowest per capita expenditure on education.
FACING AN UNEXCEPTIONAL FUTURE?
In 2017, I found a country not so different from the one I left on the brink of electing Barack Obama. Communication was efficient and uncomplicated; people were without exception polite, helpful, and friendly. The malls were filled with new versions of the usual stuff, and if you shopped smart most of it was much cheaper than it would cost in Kenya. Smoking reefer was laissez faire or just legal. The junk food was healthier, and the country was awash with innovative ideas and creative content. East Africa has changed so much more during the interim. But appearances can be deceptive.
Truth will make a comeback, and there is a world of well-informed and innovative solutions out there to get things going. Once again, it’s looking like my African friends got it right
The United States is a highly dualistic nation held together by a strong political centre. The nation’s political trajectory has consistently zigzagged between right and left of centre over the course of my lifetime. This makes for a lot of contradictions, but also for a more purple Republic over the long run. The transition from Obama to Trump was consistent with this dialectic, which is also a source of American democracy’s distinctive pattern of continuous change and incremental reform. President Trump is the latest exhibit in this tradition, but there are caveats.
The problem is not that Trump’s diagnoses of the nation’s problems were not on target. His vision for making America Great Again, in contrast, is informed by nostalgia, special interests, and backward-looking solutions. Trump’s proposed budget and tax cuts will injure the less educated and economically insecure voters who flocked to his rallies. The jobs at the Carrier factory Trump “saved” from being outsourced to Mexico are to be automated. Many elements of the economic nationalism he showcased on the stump are already in remission, and he is retreating from the foreign policy positions he used to whip up the crowds. He turned the government’s Middle East foreign policy over to the Saudis in exchange for a large order of weapons.
The future of the middle class is uncertain. The accelerating pace of machine learning and artificial intelligence may bring about the economic singularity within a generation. The country I grew up in was about exploration, problem solving, and optimising potential as we moved forward. Now I sense that for many Americans, the future is as murky as the Great Salt Lake on a cloudy winter day.
EVIL WINNERS WHO INVESTED IN PSEUDO-CHARITIES
The Koch Brothers and their friends tried to manufacture a new political culture based on libertarian values, but are really perpetuating the same financial industrial royalty presidents from Jefferson to Eisenhower warned us about. The likes of Bill Gates and Warren Buffet are following the tradition of other American philanthropists guided by noblesse oblige; the super wealthy populating the alt-right are evil winners who invested in pseudo-charities dedicated to advancing their own narrow interests.
Things were humming along until an outsider crashed the party.
Now the Trump presidency is unravelling in the face of problems largely of his own making. Our institutions are engaged, and my only hope is Trump & Co stay in office long enough to take down the whole prevaricating, alternative fact, toxic waste emitting and hate-mongering circus. We have seen worse, and I don’t begrudge the sincere citizens who played their trump card on the Donald having their day in the sun. But now it’s time to sort out the unprecedented crisis of inequality facing capitalism everywhere. Truth will make a comeback, and there is a world of well-informed and innovative solutions out there to get things going.
Once again, it’s looking like my African friends got it right.
African Continent a Milking Cow for Google and Facebook
‘Sandwich’ helps tech giants avoid tax in Africa via the Netherlands and Ireland.
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.
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.
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.
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’.
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.
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’.
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 2019. This leaves US$ eighteen billion for Africa and the Middle East.
This article was first published by our partner ZAM Magazine.
An Unlikely Alliance: What Africa and Asia can teach each other
Once African and Asian leaders looked towards each other for guidance. What possibilities can a renewed cross-continental solidarity offer?
When independent Congo’s first prime minister, Patrice Lumumba, was assassinated in 1962, over 100,000 people protested in Beijing Workers’ Stadium. Thousands more protested in New Delhi and Singapore.
When Sudan lacked a formal plaque at the 1955 Bandung Conference, where the leaders of Asia and Africa declared the Third World project, India’s Jawaharlal Nehru wrote “Sudan” on his handkerchief, ensuring Africa’s then largest country a seat.
It was a time when Asia and Africa, home to almost 80 percent of humanity, found kinship in their shared trauma and conjoined destiny. Both were always spoken of in tandem. Martin Luther King Jr.’s “Letter from a Birmingham Jail,” drew inspiration from what he saw overseas: “The nations of Asia and Africa are moving with jet like speed toward gaining political independence.”
Too often we forget that the most defining event of the 20th century was not World War II or the Cold War, but the liberation of billions in Asia and Africa between the 1950s and 1980s as citizens of almost 100 new-born countries.
It also marked the revival of an ancient, pre-European connection. Historically, Asia and Africa were enmeshed centers of wealth and knowledge and the gatekeepers of the most lucrative trade routes. The Roman Empire’s richest region was North Africa, not Europe. A severe trade imbalance with South Asia forced Roman emissaries to beg spice traders in Tamil Nadu to limit their exports.
Western Europeans left their shores in desperation, not exploration, in the 1500s to secure a maritime route to the wealthy Indian Ocean trading system that integrated Asia and Africa. Somali traders grew rich as middlemen transiting coveted varieties of cinnamon from South Asia to Southern Europe. The Swahili coast shipped gold, ivory, and wildlife to China. Transferring the world economy to the Atlantic first required Portugal’s violent undoing of the flow of goods and peoples between Asia and Africa.
In Bandung, Indonesia’s Sukarno declared “a new departure” in which peoples of both continents no longer had “their futures mortgaged to an alien system.”
Yet that departure became a wide divergence that is complex to comprehend. Over the last few years, I’ve shuttled between the megacities of Asia to East and Central Africa. I also grew up in four Asian countries—India, Thailand, Philippines, and Singapore—and lived through Southeast Asia’s exponential rise.
The gap between Africa and East Asia, including Southeast Asia, is perplexing because we share much in common—culture, values, spirit, and worldview. I’m reminded of this in Somalia, Sudan, Uganda, or Ghana, where I’ve felt an immediate sense of fraternity.
It’s now a familiar story: 70 years ago, African incomes and literacy rates were higher than East Asia, then an epicenter of major wars. But in one generation, East Asia achieved wealth, human development, and standards of living that rival a tired, less relevant Western world.
The shockingly inept response by many Western countries to a historic pandemic has only amplified calls for Africa to abandon the Western model and learn from its once closest allies. A new book titled Asian Aspiration: How and Why Africa Should Emulate Asia, hit stores this year, co-authored by former Nigerian and Ethiopian heads of state. An op-ed in Kenya’s Star newspaper even prior suggested Kenyans shift their gaze from the supposed advancement of Westerners to “the progress of our comrades in the East.”
The incessant idea that Africa’s future lies in models not of its own making can be patronising. But Africa can indeed learn from the successes and pitfalls of East Asia, the world’s most economically dynamic region also built from scratch, while imparting wisdom of its own.
Many who previously pondered this gap came up with multiple theories, but often ignored a simple reality: Africa’s geography. Like Latin America, Africa is bedeviled by a predatory power to its north that siphons capital, talent, labor, and hope. By contrast, East Asia, even with several U.S. bases, is an ocean away from the United States and a 12-hour flight from Western Europe.
Europe’s proximity to Africa also cultivated a perennial barrier to development: the Western aid industry. Whether I’m in Haiti or Chad, the sheer domination of Western NGOs, development agencies, aid convoys, and all manner of plunder masquerading as goodwill—$40 billion more illicitly flows out of Africa than incoming loans and aid combined—is something I never saw even 25 years ago in Southeast Asia. Industries look for growth opportunities. Developed societies with robust public systems in East Asia offer few for saviors. The streets of Bangkok and Hanoi are lined with Toyotas and tourists, not wide-eyed youths in armored vehicles guided by white burden. The development industry and most of its participants I’ve had the misfortune of meeting are toxic. Large swaths of Africa remain under occupation of a different kind.
For much of the 20th century, Africa also faced a virulent settler colony in its south which destabilized the region and was so hateful of Black Africans that its mercenaries set up a series of bogus health clinics to surreptitiously spread HIV under the guise of charitable healthcare.
East Asia’s settler colony, Australia, was never able to replicate South Africa’s belligerence. It did lay waste to Papua New Guinea (where it continues to imprison asylum-seekers) but Australia never invaded or occupied Indonesia or the Philippines.
Another fallacy explaining African inertia is poor leadership. Leadership is paramount, but Africa produced a generation of independence era leaders whose values and decency the world desperately needs today. All were killed or overthrown by the West—because Africa is a far deeper reservoir of resources than East Asia.
South Korea, Singapore, and Taiwan are not resource rich. Thailand was never even colonized. An Asian country afflicted by similar conditions to Africa is mineral-rich Myanmar, closed to the wider world and progress for decades. Showcases of democracy aside, its kleptocratic, authoritarian political culture, like many African countries, was inherited from British rule. George Orwell’s less referenced book Burma Days, a recount of his time as a police officer in colonial Burma, called the British Empire “a despotism with theft as its final object.”
Resources prevented African leaders from towing a middle road that kept Western powers happy while investing in their society. The choice was resource nationalism or authoritarian acquiescence “with theft as its final object.” It was either Lumumba or Mobutu.
East Asian success stories worked within the global capitalist system and conducted deft diplomacy to placate Western superiority complexes while fortifying relationships with the rest of the global South. At independence, Singapore dispatched diplomats around the world, including several African countries, to build trade ties. Its manufacturing companies provided cassette tapes for Sudan’s then booming music industry. It hired Israeli advisors to train its military while staying in the good books of neighbors and Arab partners who stood with the Palestinians. These maneuvers are only possible when you aren’t sitting on $24 trillion worth of minerals.
Geography aided East Asia. Colonial borders, with a few exceptions, resembled some form of community that came before the nation-state. Consider both the Malay and Korean Peninsulas. Thailand’s borders, while amended as concessions to imperial powers, conformed largely to the cultural and linguistic boundaries of ancient Siam.
Africa’s artificial borders concocted nation-states with no experience as a community of any kind. The nation-state model creates fissures even in Europe, with the Yugoslav wars and constant, violently suppressed demands for statehood by the Basques and Catalans in Spain, not to mention a referendum by the Scots. Partitions across Africa, a special kind of cartographic violence, congealed animosity for generations.
So while Africans were marginally better off at independence than East Asians, structurally they actually did not have a head start. But Africa still thrived in the 1970s. It is only now reaching average income levels akin to half a century ago. To dismiss the continent’s record since independence as a perennial failure is a historically illiterate point of view. Its cultural output and musical dynamism were astonishing—arguably unrivaled—during this era. Liverpool and Manchester? Try Luanda and Mogadishu.
Africans were well aware of the right course but were thwarted more viciously than East Asia’s most developed states. Perhaps the West is more tolerant of Asian success because of racial hierarchies, just as the US parades Asian-American affluence as a symbol of the universality of the US-led Western model but violently responds to the smallest hint of actual wealth creation in Black-American communities.
Now, amid a precarious coming decade, East Asia indeed offers prescriptions for not only natural allies like Africans but societies worldwide seeking transformation in record time.
First off, it’s all about networks. Do the rules of your country facilitate local, regional, and international networks? A new Harvard study concluded that brisk business travel has the single biggest impact on building networks, diffusing knowledge, and birthing new industries. Europe’s own development benefited from its small land space, which tailored expansive, tight-knit networks that rapidly spread ideas revolutionizing everything from the sciences to football tactics.
Frequent trips to any major city in East Asia connect you to lucrative networks half a world away. Business travel (at least before the chaos of coronavirus) to East Asia is accessible, affordable, and hassle-free. The right infrastructure and laws—state-of-the-art airports, good accommodations, low-cost, high-speed telecommunications, rapid transportation links and whole scale visa liberalization—are needed to accommodate network-building travelers of every stripe and budget. African countries should follow suit, and streamline business travel, which would allow African travelers to build dense regional and continental networks—currently a tough ask when pre-pandemic flights from Nairobi to London were far cheaper than to neighboring capitals.
Since the 1980s, the Anglo-American West, ideologically intoxicated by deregulation, abdicated their society’s fate to self-interested individuals and free markets alone. East Asian countries enacted hardcore capitalist policies but never bought into this demented idea. The US and UK spent the last four decades dismantling their states; East Asian countries meanwhile reinforced their capacity with vast investments in education, telecommunication, and especially healthcare.
Thailand abandoned the neoliberal approach to healthcare in the early 2000s for a private-public model that guaranteed universal coverage and secured its place as the first country in Asia to eliminate HIV transmission from mother to child. Both Singapore and Hong Kong have the most efficient healthcare systems in the world. Sharply guided public health policies underwrote East Asia’s masterful management of COVID-19. Vietnam and Laos had zero deaths from coronavirus while Germany, somehow a celebrated success story in the Western press, has over 9,000 deaths.
Recently, Kenya sought Thailand’s expertise in revamping a typically price-gouged private healthcare system. Ethiopia invited Vietnamese telecommunication companies to make its systems reliable, fast, and, like much of Southeast Asia, affordable.
In the Nigerian and Kenyan corners of Twitter, “The Singapore Solution” resonates. People yearn for a Lee Kuan Yew figure. Lee once told an Indian audience that Singapore’s model cannot be adopted by India, which, according to him, “is not a real country…Instead it is thirty-two separate nations that happen to be arrayed along the British rail line.”
The same can be said about Nigeria and Kenya. Singapore is an entrepot state of a few million at the gateway to the Malacca Straits, the world’s busiest shipping lane, with deep ancestral ties to China and India, the world’s richest economies for 1,800 of the last 2,000 years.
Each country’s trajectory is highly contingent on a set of unique circumstances and should never be applied wholesale. With the immense benefit of hindsight, Africans can choose from the best, most fitting lessons from the region, while staying vigilant of and mitigating many pitfalls.
For every one of me, inheritors of East Asia’s boom, there are, like New York City and London in the early 1900s, millions trapped as cheap labor servicing endless growth, forced to compete over scraps in unforgiving cities. East Asian inequality is nauseating. South Korea has the highest elderly poverty rate in the OECD, with almost half of its senior citizens condemned to destitution rather than retirement. Only disparities that torture the soul can create award-winning films like Parasite.
This is a feature, not a bug, of East Asia’s rapid growth. Opening up to global capitalism inevitably instills hierarchies and racialized aspirations. When I see advertisements for new luxury condominiums, possibly the most prevalent hoardings in Southeast Asia, it’s an image of a white man with his East Asian wife and mixed-race child. The message is clear. As Frantz Fanon wrote, “you are rich because you are white, you are white because you are rich.”
East Asia may not have the levels of violent, heartless racism on brazen display in Western societies, but the 1990s were a turning point. East Asians began to look down on those modernization taught them to distrust. You don’t go from mourning an assassinated Congolese leader by the thousands to treating African expatriates as diseased in one generation without a drastic, very recent shift.
Some Westerners, like washed up drunks screaming profanities at a bar, might be tempted to repeat the mantras falsely underlining their sense of superiority to make preposterous demands of such young countries pieced together overnight. They might ask, “Well what of democracy? Human rights? Freedom of the press? Free markets?” These are all wonderful things, if they actually existed.
Not a single Western country was a democracy during its development. Western Europe had a fascist government in Spain until 1975. France and Britain fought horrific wars to deny Algeria and Kenya independence even after defeating Nazism. You can’t be a democracy when you deny democracy to others. European colonies were run as totalitarian dictatorships and lasted well into the late 20th century.
Freedom of the press? Try criticizing Israel in the mainstream US or German media.
Human rights? Europe lets migrants drown by the thousands in the Mediterranean. Australia has offshore camps for asylum seekers where abuse and rape are rampant. The US has kids in cages and its cops murder young Black men for sport.
Free markets? Both the US and Britain were viciously protectionist societies that relied on massive state intervention, and overwhelming military force, to mint its corporations.
The marriage of free markets to supposedly liberal democracy gave us Brazil’s Jair Bolsonaro, India’s Narendra Modi, the Philippines’ Rodrigo Duterte, and kept war criminal Benjamin Netanyahu as Israel’s longest serving leader. The Western liberal order, Indian writer Pankaj Mishra meticulously reveals, is an “incubator for authoritarianism” because it’s premised on fairy tales.
An open society, a vibrant marketplace, and a respect for human dignity are of course worthy and necessary goals. More representative forms of government, hopefully devised by us rather than imported from Cornwall, England, will arrive. We need not be “Jeffersonian Democrats”; we can surely do better than a system championed by slave owners. As Deng Xiaoping said when China opened up after its century of humiliation, “Let some people get rich first,” which should be interpreted as a call to enrich societies as a whole before succumbing to obnoxious Western moralizing about values they rarely practice themselves.
Advancement need not only be predicated on economic growth and democratic politics and Africa need not only be the student and Asia the mentor. Asia has much to learn from Africa’s grand investments in culture in its earliest days. Aside from Vietnam, whose communist government funded the arts, and South Korea, which subsidized its K-Pop industry, most East Asian countries pay little attention to their cultural prowess on the world stage.
When kids in Djibouti listen to songs on their phone, it’s Somali music or Nigerian hits. Hop in a taxi in Accra or Khartoum and you hear that country’s sound. Africans listen to their own music. Southeast Asia does not. The richest music is derided as a pastime of lower classes, unfit for well-heeled urban elites. Talent gets lost in the never-ending roster of cover bands for top 40 American pop.
In Jakarta’s many behemoth malls, “you will not hear Indonesian music,” wrote journalist Vincent Bevins. “You will not hear Japanese music, or anything from Asia… It will all have been packaged and sold in the USA.” It’s the same story anywhere in the region.
This may seem trivial, but a country’s image is vital to any lasting progress. In a world no longer able to “identify with, let alone aspire to, Hollywood’s white fantasies of power, wealth and sex,” wrote Fatima Bhutto in New Kings of the World: Dispatches from Bollywood, Dizi, and K-Pop, “a vast cultural movement is emerging from the global South… Truly global in its range and allure, it is the biggest challenge to America’s monopoly of soft power since the end of the Second World War.”
African countries laid the foundations in the ‘70s to fill this vacuum. Their image will be defined in the next decades by their stellar music, set to be in our lifetimes the global staple and standard. Independent labels and corporate players like UMG and Sony, now with headquarters in Lagos and Abidjan, have ensured unprecedented international access to Africa’s abundance of music, past and present.
African literary festivals have also blossomed, adding to an impressive six percent growth in the industry. It’s only a matter of time before small and multinational publishing houses scout a new cadre of young African writers to make household names, as they did in South Asia. Africa hosts over 35 annual literary festivals, even in struggling cities like Mogadishu, while East Asia only enjoys 21.
Economic engines inevitably slow. Southeast Asia in particular must emulate African pride in its own music and related expressions of culture to seize on openings left behind by a once omnipotent cultural hegemony in full retreat. South Korea understood this early and enjoys a powerful, beloved global brand molded by pop music and films, not per capita income.
Even if Africa and Asia swap carefully selected approaches, ultimate success is only possible from a unity akin to the 1955 Bandung Conference. When we again mingle and ally, when we mourn each other’s dead, when we scribble names on napkins as acts of solidarity, we will again realize our lasting success. The final phase to complete the process of decolonization will have to be done jointly, in unison, or never at all.
Fear and Loathing in Kenya’s Parliament
Parliament’s failure to enact laws to bring women into elected national leadership has only exposed its soft underbelly, revealing a combination of narcissism and incompetence.
A month before Chief Justice David Maraga advised the president to dissolve parliament, legislators were toying with plans to delete the constitutional requirement that would include women in national political leadership.
“You cannot compel citizens to elect either men or the other gender,” said Justin Muturi. Speaking at a parliamentary retreat, the Speaker of the National Assembly appeared to have lost whatever empathy he previously harboured for affirmative action legislation to promote women’s participation in elected leadership in June 2016.
Following the CJ’s September 21 advice, Muturi mobilised the Parliamentary Service Commission, which he chairs, to mount a court challenge against it. He remarked: “The clamour to pass legislation to ensure [the] two-thirds gender principle potentially violates the sovereign will of the electorate at least to the extent that such legislation will demand top-ups or nominations of women”.
Jeremiah Kioni, who chairs the Constitution Implementation Oversight Committee, told the parliamentary retreat that politicians only agreed to include the clause on the inclusion of women in elective leadership in the 2010 constitution “to stabilise the country and cool tempers”.
Unknown to many at the time of the retreat debate, the Speakers of the National Assembly and the Senate had received an August 3 letter from Chief Justice David Maraga informing them that he was considering six different petitions asking him to advise the president to dissolve parliament as provided for in the constitution. The letter followed up on a 25 June 2019 one inquiring about the progress made by Parliament in enacting laws to increase women’s participation in leadership.
In August, Muturi cautioned members of parliament that there was a real risk of dissolution over failure to enact the law on including women in leadership, but since Maraga delivered his coup de grâce on September 21, the Speaker has gone on the warpath.
Although the constitution – which was passed by 68.6 per cent adult suffrage in August 2010 – gave parliament independence, it contains a suicide clause giving the president the power of dissolution should it fail to enact laws that bring the constitution into application. The clause kicks in if the High Court certifies and declares that parliament has failed to pass a law within the required timelines.
The constitutional provision requiring that no gender should constitute more than two thirds of any elective or appointive body has been successfully implemented in county assemblies, but it has remained a sticking point at the national level. Elections for the National Assembly and the Senate in 2017, and the subsequent allocation of special seats, gave women only 23 per cent of the share of legislative leadership at the national level – a 9 per cent improvement on the 2013 elections.
A 2018 National Democratic Institute survey of gender participation in politics found that “[w]omen who had served in specially nominated positions, for example, were more likely to win an election than those who had never held office at all”.
A combination of political chicanery, slothful self-interest and duplicitous male chauvinism has repeatedly thwarted efforts to create an inclusive national legislature. The laws required to cash the promissory note given to women when the country passed the Constitution have never been passed because neither the National Assembly nor the Senate has been able to muster the two-thirds quorum required to debate a constitutional amendment.
The National Gender and Equality Commission documents the Journey to Gender Parity in Political Representation, noting the four floundering attempts to enact laws that would increase the number of women in national legislatures.
In each instance, the bills proposed to become law had already been developed off-site, complete with a costing of what each option would mean for the taxpayer, and all that was required of MPs was for them to show up and make the quorum for the bills to come under consideration.
The last effort at passing the gender law had been stepped down from the order paper in November 2018 over fears that there would be lack of quorum to consider it since it touched on the constitution. The bill was the product of painstaking negotiation, bargaining, and deal making involving over 50 organisations and that had lined up President Uhuru Kenyatta, political party leaders Raila Odinga and Kalonzo Musyoka.
When the proposed law was put to the National Assembly in February 2019, the headcount came in at 174 MPs – 59 short of the 233 required to consider a law relating to the constitution. Earlier, under the hammer of the High Court in 2016 to pass a similar law, Speaker Muturi innovated a way to get round the requirement for constitutional amendment law proposals to wait 90 days, fast-tracked the bill through the 11th Parliament – only for it to fail because there was no quorum to consider it.
Frustrations over the repeated failure to pass laws that promote women’s increased participation in elective politics have triggered a record number of court petitions. The most consequential of these is the petition filed by the Centre for Rights Education and Awareness, from which the High Court issued a declaration that parliament had indeed failed to perform its duty to enact a law to promote the participation of women in national elective leadership.
The Speaker of the National Assembly lost an appeal against the 2017 High Court decisionordering parliament to enact the law providing for inclusive leadership within 60 days.
Last year, on 5 April, the Court of Appeal observed that the repeated failure to get a quorum to pass the law “does not speak of a good faith effort to implement the gender principle”, noting that Parliament had already exhausted the option of extending for a year the deadline for enacting the gender law.
That decision confirmed parliament’s failure to perform its duty, and within two months inspired five petitions requesting the Chief Justice to advise that it be dissolved. The Law Society of Kenya lodged its petition with the Chief Justice in June this year.
Ken Ogutu, who teaches law at the University of Nairobi, analogises the current dilemma to a construction project where the main contractor has completed the main structure of a new house and a subcontractor is then left to do the finishing to ensure the house is completed to the required standards. “The main contractor gives the subcontractor a schedule of the finishing he must do and by when, and if the subcontractor fails to complete these tasks within the specified timelines, he is fired and a new one hired to do the work”.
Parliament has argued that it has passed all the other laws and should not be punished for not enacting the gender inclusion laws.
The Chief Justice’s advice to dissolve Parliament will likely expose the institution’s hidden weaknesses. Its failure to enact laws to bring women into elected national leadership has only exposed its soft underbelly, revealing a combination of narcissism and incompetence.
Beneath the shining veneer of success, evident in the passage of 47 out of the 48 laws required to implement the constitution as outlined in its Fifth Schedule, there is plenty of evidence that parliament is still stuck in the old constitutional order. Some argue that parliament has been the weak link in turning Kenya into a constitutional democracy.
Since 2011, Kenya Law Reports has documented 48 statutes or amendments to the law that the courts have struck down for being unconstitutional. Eight of the controversial laws struck down by the High Court or the Court of Appeal relate to the management of competition in elections.
Judges sitting singly or in panels of three in the High Court, or in the Court of Appeal, have struck down parliament’s attempts at power grabs by avoiding public participation and making laws that violate the constitution. It is even more worrying that the 48 are only those laws that citizens or organisations have challenged, meaning that there could be a great deal of unconstitutionality hidden in other laws.
For example, commenting on the attempt to sinecure seats for political party leaders in the election law, appellate judges Festus Azangalala, Patrick Kiage and Jamilla Mohammed wrote in their judgment: “[F]ar from attaining the true object of protecting the rights of the marginalized as envisioned by the constitution, the inclusion of Presidential and Deputy Presidential candidates in Article 34(9) of the Elections Act does violence to all reason and logic by arbitrary and irrational superimposition of well-heeled individuals on a list of the disadvantaged and marginalized to the detriment of the protected classes or interests”.
Other judges have described some of the legislative attempts as “overreach” or “no longer [serving] any purpose in the statute books of this country”. Judge Mumbi Ngugi, commenting on the anti-corruption law passed by parliament, remarked: “The provisions […], apart from obfuscating, indeed helping to obliterate the political hygiene, were contrary to the constitutional requirements of integrity in governance, were against the national values and principles of governance and the principles of leadership and integrity in . . . the Constitution . . . [and] entrenched corruption and impunity in the land”.
The low quality of laws emanating from parliament since the promulgation of the constitution in 2010 arises from several factors, among them competence gaps and self-interest, and despite the inclusion of an entire chapter on integrity in the constitution, the country’s politics is weighed down by poor political hygiene. Similarly, the law on qualification for election as a member of parliament sets a very low threshold while the one for recalling elected leaders is impossible to apply.
Data aggregated from the parliamentary website shows that 72 per cent of all members of the National Assembly are university graduates, but many of the qualifications listed appear to be shotgun degrees from notorious religious institutions acquired in the nick of time to clear the hurdle for election. The modest intellectual heft of members in the National Assembly especially makes the institution unsuited for the task of navigating a Western-style democracy in the design of the constitution.
Some 40 MPs have law degrees, but the Kenya Law Reform Commission, the Attorney General’s office, and various interest groups carry out much of the legislative drafting. Parliament is then often left with the duty of playing rubber stamp.
At moments of national crisis, legislative initiative has tended to emanate from outside parliament, whose members are then invited to endorse whatever deal has been agreed. Cases in point from recent history include the resolution of the stalemate over changing the composition of the Independent Electoral and Boundaries Commission in 2017, and the political détente in the aftermath of the putative 2017 presidential election.
In a global first of game-warden-turned-poacher, the Public Accounts Committee, Kenya’s parliamentary watchdog, was disbanded over allegations of corruption. The Conflict of Interest Bill was only published last year and is yet to reach the floor of parliament. It was not the only instance of members of parliament literally feathering their nests. Legislators have been most voluble in defending the benefits they feel entitled to, and clinging onto the control of the constituency development fund, which they have turned into a pot of patronage.
The constitution refashioned parliament as an independent institution with law-making, oversight and budgeting powers. The institution has not acquitted itself in watching over public institutions and spending, often playing catch-up with reports of the Auditor General. Its lax fiscal management and oversight has resulted in the country’s debt stock growing from Sh1.78 trillion in 2013 to the current Sh6.7 trillion. Only this year, the Sh500 billion contract for the construction of the standard gauge railway using Chinese loans was found to have been illegal.
Its review of the annual reports from the judiciary and the 14 constitutional commissions has been lacklustre, with the worst case being the parlous state of the Independent Electoral and Boundaries Commission. One of the concerns raised about dissolving parliament is around the readiness of the commission to undertake nationwide parliamentary elections, given that four of the seven commissioners have resigned and have not been replaced, and that the institution does not have a sufficient budget to undertake its work.
Another anxiety around the dissolution of parliament has been that the electorate would not cure the gender imbalance in the national legislature through an election. That anxiety is a misapprehension.
On 20 April 2017, in deciding a case filed by Katiba Institute, Justice Enock Mwita ordered that political parties formulate rules and regulations to bring to life the two-thirds gender principle during nominations for the 290 constituency-based elective positions for members of the National Assembly and the 47 county-based elective positions for members of the Senate within six months. He added that if they failed to do so, the IEBC should devise an administrative mechanism to ensure that the two-thirds gender principle is realised within political parties during nomination exercises for parliamentary elections.
The August 2017 High Court judgment requires the IEBC to ensure that party lists contribute to the realisation of the gender principle. The decision has not been appealed or vacated. Given the parliament’s proclivity to pursue the interests of its members in increasing their pay even when not allowed to do so, it is not unlikely that MPs, detained by their own fear of political competition, have refused to see how affirmative action legislation would increase women’s participation in politics.
For now, the Chief Justice’s advice to the president to dissolve parliament has been challenged in court by two citizens, with Judge Weldon Korir certifying that the case raises constitutional questions that need to be adjudicated by an uneven number of judges. It is not unlikely that the matter could go all the way to the Court of Appeal, meaning that the earliest a final position could be settled is February next year.
The dissolution saga will likely highlight the distance yet to be covered in realising the parliament Kenyans wanted to establish through the constitution. Although parliament has a five-year term, it can be extended in times of war or emergency for a period of one year each time, for a maximum of one year. The corollary is that its term can be shortened if it fails to live up to constitutional expectations.
Bereft of any real power or competence and unable to cut the umbilical cord binding it to the executive, parliament will be President Uhuru Kenyatta’s poodle waiting on his charity. And as the president concludes the political calculation of the costs and benefits of dissolving parliament, the country will be assessing its legislature’s performance not just on gender but on everything else.
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