Not since January 25, 1986 had I felt the slow-burning, debilitating fever that I did on May 20 this year, a fever you would know if you are Iraqi, Syrian, or Ugandan over 20, or South Sudanese of any age or era:
Although akin to malarial lethargy, it is not a proper fever, its toll on your body and mind operating at a remove from the latter. It will neither ground nor kill you, but as with malaria, you are sapped of energy, you have no appetite, the joie de vivre by which you claim membership to life has flown away. You want to withdraw into a dark corner and curl up.
I am labouring to describe in unfamiliar, personal terms, the physiological experience of being caught up in a violent military coup. To live through such a moment, is to experience war compressed into hours, days or weeks. There is a prolonged bath in adrenaline that is physically and mentally draining. There is the upending of routine and rule that kills your spirit.
So on May 20 this year, when I left the house and went to town, and this fever suddenly broke out in me, I instinctively understood that Uganda had turned a corner from which return may not be possible. And yet the trigger could not have been more trivial: My telephone line had been cut.
I had expected that to happen. In fact, I had wilfully participated in the loss of my line. An announcement had been made in early April saying that all phone users must re-register their lines or be cut off in seven days. I refused to comply. On the sixth day, the Prime Minister’s Office said the deadline had been extended by a month. I stayed home. The month came to an end and promptly, the lines were cut.
The people at the mall trying to get their phones reconnected were largely upper crust, in government, in cushy private sector, NGO, UN, jobs – expatriates, well-to-do locals, denizens of Instagram, Snapchat, Facebook, well-fed and secure in their status. But now their faces reflected fear mixed with confusion
When I got to town, I was more staggered than I could have expected. There at the mall, standing in ragged lines with the sun beating down on them, was a mass of people, local and international, who could no longer make or receive calls. It was the look on their faces that reminded me of 1979, 1985 and 1986, the coup years. It was the look of people in the midst of a calamity beyond prevention.
Betrayal of the docile consumer
I had refused to comply with the directive. But those in the lines had complied; was it just inefficiency or had they been guilty of forwarding memes the state disliked? It mattered not what had happened. There at the mall, with its high-end branded products, something heartbreaking was happening:
The people there were largely upper crust, in government, in cushy private sector, NGO, UN jobs – expatriates, well-to-do locals, denizens of Instagram, Snapchat, Facebook, well-fed and secure in their status. But now their faces reflected fear mixed with confusion. This was their thing, this government and the economic ideology it espoused. Many had got their jobs by following regime diktats, not making noise, not being seen with noise-makers.
The economic encyclical they knew by heart had said that capitalist excess was good. Investors and consumers were protected by the regime. Yet now, the telephone, which had brought vast investments into the country, with its millions of dollars in taxes, had been switched off.
The regime had for over 20 years touted its openness. It had enthusiastically done what the IMF and World Bank had asked it to do, back in the early 1990s when it carried out what was then clothed in the euphemism of “structural adjustment policy” but today goes in the explicit nudity of “austerity”. It had punished its people with gut-wrenching impoverishment so it could please the Western powers and avoid regime change. Over the decades, barriers to “free trade” had come down. Uganda, the IMF told all who cared to listen, was business-friendly.
So to wake up that Saturday morning to the reality of a ham-fisted regulation, one that could strangle any multinational co-operation, was astounding. The faces in that mall asked all these questions but in the abstract: What had we done wrong? Had we not consumed (and done so conspicuously) like all well-brought up boys and girls are taught to? Had we not behaved like responsible adults by heeding Gordon Gecko’s dictum that greed is good? Had we not volunteered our energy and time on earth as a good, mostly Christian country and devoted our energy to making the rich richer? Why this punishment now?
In lieu of competitive politics, Museveni’s first decade in power had operated under a ‘broad-based’ system, a serious attempt at an ideology, a kind of reconciliation by which the soviets set up at parish level (going by the name of Resistance Councils) could also include, rather than execute, kulaks
To such exemplary behaviour were due such little rewards as walking into the most expensive restaurants, not so much to eat, as to snap pictures of the dinner for Instagram. Going out the door each day was a Facebook challenge. Now even that was no longer possible. I saw in their faces horror at the prospect of returning to the anonymity of the 1990s, to operating VCRs and having to twirl cassette tapes on a Bic pen to rewind them.
We always knew the military would turn around and bite us
The Museveni government had acted out of character. What had been concealed and contained for 31 years of his time in power had at last erupted, very publicly. We had lived with a military government for a full generation. One day, we always knew, it would turn around and bite us. If you had watched the Museveni regime for the past three decades, you would have noticed that at the close of each decade, his rule shifted gear in consequential ways. We were at the start of the fourth decade, which meant a new tempo had been embarked upon.
The first 10 years had been unchallenged rule by the complete set of ideologues he had brought with him from the bush war. They were the gushing, forward-rushing youthful stage during which the government could do no wrong and genuinely tried its best not to. That was the forward-rushing youthful stage. In lieu of competitive politics, the decade had operated under a “broad-based” system, a serious attempt at an ideology, a kind of reconciliation by which the soviets set up at parish level (going by the name of Resistance Councils) could also include, rather than execute, kulaks. The “good leadership”, “political will” by which Museveni has been described, were products of this period. Victory had brought goodwill and he was eager to show it.
The period ended with the passing of the 1995 constitution, the biggest goodwill of all. And then it started. Looking back, it would seem that Museveni’s longer lasting troubles began with that document. Ugandans had given the regime the benefit of the doubt in the first decade. Now they wanted something in return. The 1990s ended with the now famous “missive” Dr Kizza Besigye wrote in 1999 declaring Museveni a dictator. Besigye’s courage took Museveni aback, as did the massive crowds Besigye attracted when he first ran for president in 2001, dwarfing the numbers Museveni attracted, for the first time giving the president an undiluted assessment of what Ugandans thought of him.
The departure of Besigye from the war veterans’ camp opened the door for the haemorrhage of Museveni’s bush war colleagues, a bleeding he and the Movement were never to recover from; what was worse, the end of the second decade marked very emphatic victories against him from a Uganda Museveni thought he had vanquished.
Through a series of legal battles, lawyers of the Uganda People’s Congress and the Democratic Party, doyens of the anti-colonial years that had been banned from operating, revealed the contradiction between Museveni’s claim to have returned constitutional rule to Uganda, and his refusal to obey the same constitution. In an attempt to pre-empt the return of political parties, the government had organised the infamous Referendum of 2000, whose cloying rationale fooled few. The banned opposition parties, unwilling to lend political legitimacy to Museveni, refused to participate, whereupon the government propped up straw parties to act the part of the Yes side while it hogged the No role. In a poorly attended exercise, 90.7% of those that bothered to vote, estimated at 30 % of registered voters chose a “No Party” Movement system against the 9.3% who chose a “Multiparty” system.
To show how much it believed in multiparty democracy, the government needed a stronger Yes than the 90% garnered by its No side the last time. It allowed a Yes percentage figure of 92.44 %. Some 4 million democracy-shy Ugandans now resoundingly allowed multiparty politics to operate
The result served as legal cover for one-party rule (described now as “no party rule”). But in 2004 a seven-judge panel of the Supreme Court declared it null and void. As if to save face, to show that it had known what it was doing, the government organised a second referendum on the same question, in 2005. This time, it was a little tricky. The government decided it wanted parties back, which meant that it was now sentimentally on the same side as the parties it had banned. It therefore invited the parties, which by law did not exist, to take the government’s side in declaring that it, the government, had been wrong. The parties refused to agree whereupon the government stood alone in acting the Yes side. But for the suffrage to be legal, there had to be a No side. For two decades, the government had said No. Now the government was saying Yes and therefore no one was saying No. Once again, props had to be found and money found to fund their No.
To show how much it believed in multiparty democracy, the government needed a stronger Yes than the 90% garnered by its No side the last time around. It allowed a Yes percentage figure of 92.44%. Some 4 million democracy-shy Ugandans now resoundingly allowed multiparty politics to operate.
Nobody loves the jackboot
Having kept them under the military jackboot for 20 years, Museveni now castigated the parties for refusing to support their own return to life. They were “not contributing to Uganda’s development,” he said.
That was the spirit in which Museveni ruled for 20 years, that play-acting at magnanimity, the third-rate theatre by which he blarneyed his way through, year after year. He was after all a “good” leader and that called for “good” behaviour. It is easy to forget, but in the first two decades, Museveni cut a figure somewhere between a likeable clown and a deadly fighter.
The judicial humiliations of 2004-2005 were not isolated events. The end of his second decade in power presented Museveni with new realities neither he nor Ugandans could have anticipated. This period of irrevocable change started in 2003 and did not end until 2006-2007. Museveni’s perennial bogeymen, the figures he could invoke to frighten Ugandans into obedience, Idi Amin and Milton Obote, died (2003 and 2005), deaths that left him exposed. Suddenly, he was left alone. The shadows of the past gone, he would now be judged by his actions alone.
And then the war in northern Uganda jolted to an abrupt end. What had provided political ballast, the spectre of Nilotic rule that had made the Bantu southerners so uneasy, faded rapidly. To further complicate life for Museveni, the end of the northern war left him without a diversion to distract restless, politicised military officers, nor cover for the classified budgets to defence that had hitherto provided a useful slush fund.
But not as yet. An election was still looming in 2006 and Besigye had learnt nothing from the beatings and imprisonment he had suffered. Yet if the returned political parties were triumphant, the electorate did not share this triumph. The 92.44% voters who wanted them back did not show up for them. The crowded field of presidential candidates, which included Milton Obote’s widow, Miria Obote, played supporting roles to the protagonists.
Museveni, realising that the constitution he had nursed to life would not be on his side, began to make the moves that would lead to the funereal pall of May 20, 2017. He appointed one General Kale Kayihura as Inspector General of Police. The disastrous militarisation of the police had begun. Kayihura had made his name as commander of the Revenue Protection Unit, which went after smugglers and tax dodgers with methods that threw the operation into disrepute. He was not a nice man.
Kayihura, Uganda’s longest serving IGP
Footage courtesy of New Vision TV
Not forgetting what it had done to him, Museveni also moved against the judiciary through appointments and outright humiliation. In a striking display of what would characterise the next decade in power, the so-called Black Mamba squad invaded the High Court and rearrested 22 suspects granted bail by the judges. They were allegedly part of the People’s Redemption Army, allegedly linked to Besigye.
Newer global forces, particularly ‘terrorism,’ provided fresh nomenclature. Now Uganda was an ally in the ‘war on terror.’ Renewed support from Washington boosted the regime and may well have bought it a decade extra in power. Sending troops to Somalia served to divert the military and inject income-replacing lost revenue from Congo and northern Uganda
The drift away from constitutionalism had begun. It is still unbelievable, the degree of violence that the army and the police deployed in this, Museveni’s third decade in power, from the brutal actions on the streets during the 2011 elections, to the disarmament of Karamoja pastoralists. Whoever was in charge, was not of the calibre of Besigye, whose stewardship of battalions in the first decade of Museveni’s rule had won so much respect in most parts of Uganda. These were a raw, untempered lot. As the decades piled up, principled men and women refused to work with Museveni, leaving the dregs to exercise power.
The cost of doing politics in Uganda goes up
And then, 16 months before the 2011 elections, something exceedingly alarming happened. In September 2009, the King of Buganda, Kabaka Ronald Mutebi, set off to visit a district his kingdom claimed as part of its territory. Kayunga, home to the Baruli community, had been a vassal state in pre-colonial Buganda, so the visit provided ironies all around, not least for Buganda, which was demanding the return of its properties from the Uganda state, the same kind of demand the Baruli were making of the Buganda Kingdom. The government blocked the visit, upon which Buganda erupted. The extremely ethnicised nature of the riots that followed were a frightening demonstration of what people felt, that Museveni and his ethnic group were “oppressors” hell bent on a massive land grab. It brought out fears of the kind that lie just under the surface of African politics.
The cost of doing politics in Uganda had gone up. In the run up to the 2006 elections, plainclothes operatives had fired live bullets and killed a man, just yards from where the Kabaka stood next to Besigye. It had been the single most chilling episode of that campaign period, one which left the Buganda, long mass supporters of Museveni who had in the previous two elections voted overwhelmingly for him, in no doubt of what they were facing. The 2009 riots were a delayed reaction. The country became a less happy place, if it had been happy in the first place.
But newer global forces, particularly “terrorism,” provided fresh nomenclature. Now Uganda was “an ally” in the “war on terror.” Renewed support from Washington boosted the regime and may well have bought it a decade extra in power. Sending troops to Somalia served to divert the military and replace lost revenue from Congo and northern Uganda. The modus operandi of Museveni has been that there must always be a war; as rulers throughout the ages know, war enriches soldiers and is also a neat way to get rid of problematic officers.
The opposition had gained traction by now. The public had seen a side to the regime it would not forget. Only voter intimidation and rigging ensured the ruling party stayed in power in 2006. In 2011, in a bizarre move, Museveni courted northern Ugandan voters. The ballots returned significant gains for the Movement. It was a shocking event, for Museveni had always ignored the northern vote. But now, he had also lost southern support. The cost of buying the northern vote, as well as the amount of fear-mongering needed to secure it, was too high. It was not tried again in 2016, when the opposition returned to its previous sweep of the region.
Newer global forces, particularly ‘terrorism,’ provided fresh nomenclature. Now Uganda was an ally in the ‘war on terror.’ Renewed support from Washington boosted the regime and may well have bought it a decade extra in power. Sending troops to Somalia served to divert the military and inject income-replacing lost revenue from Congo and northern Uganda
However, it must be noted that faith in elections ended in 2001; whatever little remained burned out in 2006. What the government may have missed was that by participating in the 2011 elections, the opposition was in effect, simply looking for a casus belli – daring the government to show its hand – by which to justify its next move. The state duly obliged. The world and the judges agreed that the elections had been a sham. The demonstrations that followed (this was Arab Spring season) in the well-reported “Walk to Work” protests in which political leaders “siding” with the poor ditched their cars and walked to parliament, initiated a novel approach to Ugandan politics. It also neutralised the use of armed force. It was a battle of image for which Museveni the guerrilla-fighter could not have been more ill-prepared.
Neoliberalism begins to unravel
It was also in this decade that the economic policies adopted in the early days of the regime had so endeared Museveni to Western powers, began to unravel. The failure of neoliberal economics to deliver promised “trickle down” benefits had done its damage in the Third World countries forced to swallow it. But following the 2008 banking crisis, the failures of that ideology had crept up from its Third World laboratories into the heartlands of extreme capitalism. While it had never really had a chance to work in a country like Uganda, the crisis meant that the lifeline of foreign aid that had tube-fed the Museveni government suddenly ran dry. Incapable of providing the patronage he had once dispensed, and with poverty underlining the degree of income inequality, things had come to a head by the time the third decade in power was coming to a close.
Enter Amama Mbabazi. He had been Museveni’s co-tribune, a Movement pillar and prime minister from 2011 to 2014. It had always been rumoured that he had been the organiser, the man who made things work. He first publicly expressed his presidential ambitions back in 2000 when he accused Besigye of jumping the succession queue. Had there been a pact between him and Museveni that he would be president after him? And how patient was he going to be? In 2015, when it became plain that Mbabazi had presidential ambitions, the Movement machinery whirred into action to do what it had rarely, if ever, done. It turned against its own.
The crisis meant that the lifeline of foreign aid that had tube-fed the Museveni government suddenly ran dry. Incapable of providing the patronage he had once dispensed, and with poverty underlining the degree of income inequality, things had come to a head by the time his third decade in power was coming to a close
The subsequent ejection, failed presidential candidacy and fall of Mbabazi quickly faded out of sight and he was not to become a subject of public discussion afterwards. The essential rebellion had been Besigye’s 1999 missive. There was to be no repeat. Attention remained focused on the latter, whose arrests and trials continued apace.
That was on the surface. Underneath, the ouster of the cringe-worthily naive Mbabazi, as it is now turning out, was to provide the essential plot and character for Museveni’s entry into the fourth decade in power. It is the thread that led to the fear I read that afternoon of May 20:
The ouster of Mbabazi was accompanied by a purge of the government and of the Movement system of alleged Mbabazi supporters. The high-level paranoia that underneath his own system, rebellion was growing, denied Museveni trust in a system as complex as a government needs in order to function. And yet it had been that trust the knowledge technocrats had that the president was both reasonable and supportive, that had delivered the key achievements of his early days in office, like the economic recovery and the fight against HIV/Aids. These achievements had in various forms not survived beyond the first decade but the original impetus had created a momentum of goodwill, for the image of “good leadership,” once earned, is hard to lose, if only because society is desperate for it. At any rate, Museveni had always profited by the inexhaustible store of goodwill extended to him.
It was inexhaustible until it ran out. By 2014, when Museveni made the ill-advised and very public move to sign the so-called anti-gay Bill, there had been a considerable body of international opinion that he was not exactly a democrat. By inserting himself needlessly into the Western cultural wars, Museveni had blundered in a costly fashion. He may have calculated that it would improve his electoral chances back home, but his opponents were never going to support gay rights to start with. The advantage was cancelled out. His detractors in the West had their opportunity. They pounced.
Aid money was cut left, right and centre. They needed the money for their own people. What had been billed as economic recovery was revealed to have all along been baloney. Uganda under Museveni had never improved its productivity in real terms. It was an aid-money autarky all the time.
By the time the 2016 elections came and went, it was undeniable that the country was in serious trouble. Police and other civil servants, not least teachers, nurses and doctors, went months without pay. Medicine was unavailable in hospitals. At the same time, the internal witch hunt in government, and the air of fear and suspicion following the ouster of Amama Mbabazi was causing a cave-in from the other end: There was no money to pay public workers; at the same time, people in high office became afraid to work, in case they were seen to be ambitious.
Fear and intimidation take over
Museveni’s innate instinct, the use of force and intimidation, seems to have taken over. The perennial troubles of Kasese, the Rwenzururu Kingdom, which predated colonial Uganda, and which had been handled diplomatically since the Obote I government in the 1960s, now met military force. More than 100 people were gunned down. It was not as if such a small kingdom could have caused national damage (its cause remains obscure outside the Rwenzori region), but it reflects what one analyst told me is the mentality of those whom the president now puts trust in – use maximum force.
Every ministry, from Health, Education, to Energy, is feeling the chill wind of administrative paralysis, but not all of them have as yet displayed incompetence in the manner in which famine in eastern Uganda has shown up the Ministry of Agriculture. But it is coming
Without respect and trust in the seasoned technocrats who shepherd political masters through the jungles of laws and acts and regulations that are effectively the “system,” a number of odd things have been happening in Uganda. Foremost among them is the failure to manage a looming food crisis in eastern Uganda. The coming environmental crisis, the first of which is the developing collapse of fish stocks, could have been avoided had the civil service been allowed to do its work. Every ministry, from Health, Education, to Energy, is feeling the chill wind of administrative paralysis, but not all of them have as yet displayed incompetence in the manner in which famine in eastern Uganda has shown up the Ministry of Agriculture. But it is coming. The spectacular bungling of telephone registration brought these issues to the fore.
A boyish, almost flagrant informality
An order was given that telephone users “verify” their numbers. However, Ugandan citizens were told they could not use driving permits, passports, work IDs, local council IDs, only National IDs. It was a telling admission that the Ministry of Internal Affairs was inept, that its identity documents were a sham. A properly functioning government would have been advised against such a move for the demands of one arm of government must be reconciled across all government arms to ensure systemic uniformity. It is the reason there is a prime minister and a Secretary to the Cabinet. This one was a weird call, until it was revealed that the call came from the IGP’s office.
At his first press conference back in 2005, which I attended as journalist at The EastAfrican, I watched Gen. Kayihura’s demeanour. I observed his short attention span, his easily distracted manner, twiddling with his phone in the middle of taking press questions and his affinity for a boyish, almost vagrant informality. It was a frightening projection of things to come.
In 2017, you could see Gen Kayihura’s hand in that telephone debacle. A chess piece moved at the end of the second decade in power, had showed its own hand at the beginning of the fourth decade in power.
What it said, and what precipitated that fever that we felt on May 20, was the fact that the administrative state in Uganda, had been overthrown by the security forces. There had been a coup. The Office of the Prime Minister, which supervised the Ministry of Internal Affairs, which supervised the Police, was forced to humiliatingly “follow” the orders of a policeman; parliament recognised its own impotence by attacking the line minister who formally made the announcement, knowing well that the minister had simply been following the orders of the IGP, whom they dared not touch. Prime minister, parliament and line minister were all to be further humiliated when the NRM parliamentary caucus overruled all of them. Four days after shutting down phone lines, they switched them on back again, and said we would have three more months to comply with the registration order.
It has become clear now that, going into his fourth decade in power, Museveni has effectively shut down the Uganda state and is intent on ruling through a secret and sometimes not so secret cabal of gunslingers, chief among them his IGP
There is the misled belief that an Orwellian-sized national biometric database will give the state means to track everyone and prevent an Arab Spring-style social media uprising. Sources say the government’s investments in electronic surveillance have been extensive. When it first asked citizens to acquire National IDs in 2013, very few people bothered to register. Then someone had a brain wave – threaten to take away their phones, that will bring them running. And so for all of April and May, the entire country was thrown into turmoil. We wait to see what happens in August when the three-month extension runs out.
It has become clear that there are now two centres of power in Uganda, President Museveni and IGP Kayihura. Everyone else, from the vice president to district officers, has gone quiet. In a sign of how disastrous this leadership model is, the “old” model was forced to intervene after President Museveni jumped protocol and directly accused fictitious Chinese diplomats of ivory trafficking. The incensed Chinese put their foot down and the Ministry of Foreign Affairs, which had not been consulted when the letter of accusation was sent out by the president’s office, apologised publicly to China. What it demonstrated was the manner in which Museveni now micro-manages Uganda.
It has become clear now that, going into his fourth decade in power, Museveni has effectively shut down the Uganda state and is intent on ruling through a secret and sometimes not so secret cabal of gunslingers, chief among them his IGP Gen Kale Kayihura. But even in there, things are not going swimmingly, which may explain the ultra-violent execution of Gen Kayihura’s deputy, Felix Kaweesi, on March 17 this year. It was the killing that provided the justification for shutting down telephone lines. There is a deadly power struggle even within the securocratic redoubt into which Museveni’s fourth decade is retreating. The new front of cyber security and fear of the power of social media has meant that a new front of enemies has opened up; it is no longer just past leaders, Nilotics or opposition who are “against development”; it’s also now a teenager with WhatsApp who must be closely monitored.
There is a general realisation that time is running out. Those in positions of power and opportunity are taking as much cash out of the public and through their offices as they can while they still have the chance. Principled and seasoned individuals are opting out, leaving a bevy of the callow and ethnically loyal to take positions of authority. The centre retreats into self-serving fiction.
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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