In Yoweri Museveni’s fourth decade in power, the Ugandan state has shrunk into one man and a dog, himself and his police chief
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.
ALL THE PRESIDENT’S MEN: Uhuru Kenyatta’s proposed Cabinet raises serious constitutional and legal questions
On January 5, 2017 President Uhuru Kenyatta started the process of constituting his second-term Cabinet by naming some of his nominees. The President’s announcement is unusual in two significant respects. First, it was a partial list; he only announced nine nominees even though the Constitution demands a minimum of 14 and allows him to name up to 22 Cabinet Secretaries (his last Cabinet had 18).
Second, the President said he was “retaining” some Cabinet Secretaries and as such he would not be sending the names of all his Cabinet nominees to the National Assembly for vetting. His statement implied an existing Cabinet whose term continued uninterrupted through the 2017 general elections even though a December 2015 High Court decision held that the tenure of all appointed members of Cabinet ended on August 8, 2017. In attempting to retain some members of the previous Cabinet and exempting them from National Assembly approval, President Kenyatta is acting in contravention of the High Court judgment and the law. (It is also interesting to note that all the Cabinet Secretaries that the President “retained” are men, which also raises the issue of gender parity, which the Constitution explicitly encourages.)
Nominating Cabinet Secretaries and constituting a Cabinet is a constitutional obligation of the President contained in Articles 129, 130, 131 and 132. Article 152(1) defines the Cabinet as the President, the Deputy President, the Attorney General and not fewer than fourteen and not more than twenty-two Cabinet Secretaries. Note also that Article 152(1) provides that there shall be a “minimum” number of Cabinet Secretaries, indicating that the President has no discretion to have zero or no Cabinet Secretaries. The constituting of a Cabinet is, therefore, a mandatory function of the President, which must be performed as required by the Constitution.
In attempting to retain some members of the previous Cabinet and exempting them from National Assembly approval, President Kenyatta is acting in contravention of the High Court judgment and the law.
Article 129 of the Constitution provides that all “executive authority is derived from the people of Kenya and shall be exercised only in accordance with this Constitution.” This provision reminds the executive that executive power is delegated and has limited authority: it is delegated by the people and may not be legally exercised outside of the limits set by Constitution.
Article 130 defines the national executive as including the President, the Deputy President and “the rest of the Cabinet”, thereby emphasising that the Cabinet is integral to the national executive. Article 131 provides that the president exercises executive authority “with the assistance of the Deputy President and Cabinet Secretaries”, emphasising the necessity of the Cabinet as an instrument for the exercise of executive authority. Additionally, Articles 131(2a) and 131(2e) obligate the President to respect and uphold the Constitution and ensure the “rule of law”.
Furthermore, Article 132(2) explicitly vests powers to appoint the Cabinet in the President, providing that s/he “shall nominate, and with the approval of the National Assembly, appoint” Cabinet Secretaries in accordance with Article 152.
So, while the President has the power to nominate he cannot, without the approval of the National Assembly, appoint anyone to the Cabinet. In establishing the Cabinet, the President must follow the process in the Constitution and in law, which includes relevant judicial decisions.
Judicial decisions regarding the process of constituting a Cabinet would, therefore, apply to the President as he undertakes this function. On December 20, 2016, the Constitutional and Human Rights Division of the High Court in Petition 566 of 2015 held that the Cabinet was unconstitutional, as its composition violated Article 27(8) of the Constitution that says that “the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender”.
The High Court was asked to address two issues: the constitutionality of the process of constituting Cabinet and of the composition of Cabinet. In addition to finding the Cabinet unconstitutional, the High Court found that “the actions of the President and the National Assembly…in nominating, approving and appointing the Cabinet” were unconstitutional. As such, the process of establishing the Cabinet and the resulting Cabinet were both declared unconstitutional.
Nothing precludes the President from naming all, some or none of the members of the previous Cabinet; however, all proposed members of the Cabinet, other than the Deputy President, must be nominated again and their names must be submitted to the National Assembly for approval prior to their appointment.
However, the High Court, citing public interest, suspended the judgement for “a period of eight months or until such a time a new Cabinet will be constituted either by the present government or by the new government to be elected into office in August 2017.” The effect of this judgement was that it provided temporary legal permission for the Cabinet’s continued existence, with such permission set to automatically expire if the President named a new Cabinet or if a general election was held.
Therefore, the term for all appointive members of the Cabinet ended on August 8, 2017 by judicial order. As such, the President must, by law, name all appointive members of his proposed Cabinet afresh (a minimum of 15 and a maximum of 26, including the Attorney General). Nothing precludes the President from naming all, some or none of the members of the previous Cabinet; however, all proposed members of the Cabinet, other than the Deputy President, must be nominated again and their names must be submitted to the National Assembly for approval prior to their appointment.
The decision of the High Court in Petition 566 of 2015 found that both the President and National Assembly had violated their obligations in the process of constituting a Cabinet (nominating, approving and appointing the last Cabinet). The High Court, in holding that the National Assembly had failed to perform its role in approving Cabinet nominees, found that the National Assembly must “…apply a strict scrutiny in approving of any action of the executive and where the action involves appointment to public posts a most searching examination in all aspects must be invoked by the National Assembly.” Therefore, the National Assembly cannot be a rubber stamp of Presidential nominees but must exercise the highest legal standard in the vetting and approval, or rejection, of executive nominees.
The President hasn’t violated the law by providing only a partial list of nominees. However, by failing to submit the names of all proposed Cabinet nominees to the National Assembly for approval, and asserting the existence of a valid Cabinet after August 8, 2017, the President is acting in deliberate contravention of the Constitution and the law.
The High Court was explicit that in some cases it is the role of the National Assembly to correct the President: “The National Assembly must exercise that perfect overseer role and tap the President on the shoulder where he is about to slip.” The National Assembly, therefore, has a constitutional obligation to remind the President that all proposed nominees must undergo the entire process of nomination, vetting and approval by the National Assembly prior to their appointment. In addition, the High Court clarified that the National Assembly must reject a proposed Cabinet whose composition would violate the law.
The President hasn’t violated the law by providing only a partial list of nominees. However, by failing to submit the names of all proposed Cabinet nominees to the National Assembly for approval, and asserting the existence of a valid Cabinet after August 8, 2017, the President is acting in deliberate contravention of the Constitution and the law. These actions are especially worrisome considering the opposition’s refusal to recognise the President as legitimately elected. By his actions, the President is providing additional reasons for challenging his legitimacy.
With his announcement, the President has sent important political and legal messages about his second term. It is surprising he is trying to evade the National Assembly given the Jubilee Party enjoys a majority in both houses of Parliament. It would appear that, despite a parliamentary majority, the President is not confident that his nominees will be confirmed by the National Assembly. This anxiety may stem from Jubilee party politics, including the jostling for the 2022 succession, and betrays fears that these intra-party conflicts would play out in the National Assembly approval process. It is also possible that the President may be concerned about the opposition’s ability to utilise parliamentary processes to delay, block or undermine the eventual approval of his Cabinet nominees.
It would appear that, despite a parliamentary majority, the President is not confident that his nominees will be confirmed by the National Assembly.
For an administration whose legitimacy ultimately rests on a judicial decision, the President’s wilful disregard of a court order is also evidence that the battle with the Judiciary continues. It is an assertion of executive exceptionalism saying that the decisions and actions of the President and executive are effectively beyond judicial review. It is troubling that the President isn’t averse to confrontation with the judicial branch, and courting constitutional crises, given the just concluded experiences of the electoral period and the ongoing political uncertainty.
The message is clear: This is not business as usual. If successful, the attempt by the President to bypass Parliament and nominate and appoint a Cabinet in contravention of the Constitution would result in the imposition of an unconstitutional and illegitimate national executive.
An unconstitutional national executive would create unprecedented uncertainty as to the legality of its national and international actions. It would also exacerbate existing political conflicts while signalling to other parties that it is acceptable to resort to extra-constitutional means to resolve political and other conflicts.
By wilfully weakening so many institutions – the Judiciary, the Cabinet, the National Assembly and the Constitution – in a single swoop, the executive is potentially triggering a cycle of political conflict and social instability.
Unchecked, the failure by the President and the National Assembly to accept the constitutional limitations of their authority will lay the foundation for a systematic breakdown in the rule of law. By wilfully weakening so many institutions – the Judiciary, the Cabinet, the National Assembly and the Constitution – in a single swoop, the executive is potentially triggering a cycle of political conflict and social instability. The President and the National Assembly would be best advised to reverse the current course and ensure strict compliance with the Constitution in the process of establishing a new Cabinet.
 The August 8, 2017 presidential election was nullified by the Supreme Court on September 1, 2017. Uhuru Kenyatta won the subsequent election on October 26, 2017. This election was also challenged but this time the Supreme Court, on November 14, 2017, upheld his election paving the way for his assumption of office on November 28, 2017.
(D)EVOLVED HEALTHCARE: Makueni’s trailblazing experiment in providing universal health coverage
Universal health coverage is by many measures considered to be the Holy Grail of delivering quality healthcare. In fact, achieving universal health coverage by 2030 – ensuring that all people have access to the health services they need without the risk of financial hardship – was included as part of the Sustainable Development Goals (SDGs) adopted by the United Nations in 2015. Writing a year later, Marie-Paule Kieny, Assistant Director-General at the World Health Organization (WHO), described it as “the linchpin of the health-related SDGs; the one target that, if achieved, will help deliver all the others by providing both population- and person-centred high-quality services that are free at the point of delivery and designed to meet the realities of different people’s lives.” WHO estimates that about 150 million people around the world suffer financial catastrophe annually from out-of-pocket expenditure on health services, while 100 million people are pushed below the poverty line.
According to the 2013 Kenya Household Health Expenditure and Utilisation Survey, medical expenses account for more than 40 per cent of non-food bills in over half the counties in the country.
In Kenya, though access to quality healthcare is a constitutional right, the scarcity of quality public and private health facilities, as well as the high cost of care even when it is available, means that universal health coverage remains little more than words on paper for much of the population. President Uhuru Kenyatta has made achieving universal health coverage by 2022 a major part of his second term agenda and indicated in his inauguration speech that this would be achieved by expanding coverage under the National Health Insurance Fund (NHIF). The president said that half a century after it was established in 1966, the Fund has only attracted 6.8 million beneficiaries. The World Bank estimates that only a fifth of Kenyans have any sort of medical cover, which means that as many as 35 million Kenyans are vulnerable to the financial devastation occasioned by a medical emergency.
When illness eventually strikes, it takes a huge financial toll. According to the 2013 Kenya Household Health Expenditure and Utilisation Survey, medical expenses account for more than 40 per cent of non-food bills in over half the counties in the country. In fact, direct payments by citizens accounted for a third of the country’s total health expenditure in the same year, according to Dr. Izaaq Odongo, the head of the Department of Curative and Rehabilitative Health Services at the Ministry of Health, with the balance being made up by government (36 per cent), donors (20 perc ent) and employers (10 per cent). As a result, many Kenyans are forced to resort to selling off property, relying on networks of relatives and friends, or even making desperate appeals on social media to raise the necessary funds. Hence the large, and seemingly never-ending appeals all Kenyans make when clearing medical bills. Despite this, according World Bank Country Director, Diarietou Gaye, the number of those thrust into poverty by medical expenses is close to one million.
Kenya’s network of public healthcare facilities has traditionally been hierarchically organised into 6 levels, with the lowest unit being community health workers embedded within communities. At level 2, dispensaries and clinics provide the link between community-based healthcare and the formal health system. Together with level 3 facilities – health centres, maternity clinics and nursing homes – these make up the primary healthcare units. Levels 4-6 are sub-county, county and national referral hospitals. It is at the lower levels that the majority of people interact with the healthcare system and it especially at the primary healthcare facilities that national government interventions with regard to cost have been most consequential.
Since independence, Kenya has blown hot and cold on the abolition of user fees and decentralisation, both of which, given the economic circumstances of most Kenyans as well as the devolution introduced by the 2010 constitution, are prerequisites for universal health coverage. In 1965, according to the paper “Reforming health systems: The role of NGOs in decentralization – lessons from Kenya and Ethiopia by Richard G. Wamai of the Harvard School of Public Health, “a free access policy abolished the KSh5 co-payment operative in the colonial healthcare system… [and] proposed expanding coverage through centralizing the delivery responsibilities from the counties and municipalities to the Ministry of Health”. Eighteen years later, the provision of health services was again decentralised as part of the District Focus for Rural Development programme and in December 1989, user fees were reintroduced in an effort to inject money into crumbling health facilities. The “cost-sharing” programme was part of a comprehensive health financing strategy that also included social insurance, efficiency measures and private sector development. The fees would, the argument went, generate additional revenue, incentivise use of low-cost primary healthcare services rather than the more expensive referral facilities and improve targeting of resources by reducing unnecessary demand.
Still, implementation problems led to the suspension of the policy less than a year later though it was gradually reintroduced in 1991. A 1996 study found that despite revenue increases and facilities being allowed to budget for three-quarters of the money they remitted to the districts, this did not necessarily result in improved quality of care because the funds were used to offset a fall in government funding for basic care. As evidence mounted that despite a waiver policy to protect the poor and children under five, user fees were proving to be a significant barrier to access, the government – in what came to be known as the 10/20 policy – again reversed course and in 2004 eliminated all fees in dispensaries and health centres, save for a minimum registration fee of KSh10 and KSh20, respectively. By 2007, it had instituted a maternity waiver allowing for free deliveries in public health facilities and introduced the Health Sector Service Fund (HSSF) to compensate these facilities for lost revenue.
Since October 2014, Makueni has been offering its one million residents free healthcare across all its public facilities, including county and sub-county hospitals.
However, as a study published in 2015 showed, this was largely ignored by health facilities for whom user fees represented almost all the cash income they used to cover basic operating costs. As a result, most patients ended up being charged for more than the specified amount while very few received waivers. In 2013, the government abolished all user fees in public dispensaries and health centres and allocated KSh 700 million to the HSSF.
The picture was further complicated by the fact that health is one of the services devolved by the 2010 constitution. This means that while the national government is still responsible for policy and managing two Level 5 referral facilities, namely, the Kenyatta National Hospital and the Moi Teaching and Referral Hospital, the bulk of public healthcare in Kenya is delivered in facilities run by county governments. A history of skewed investment that marginalised some counties, as well as the lack of policy coordination between the various counties and between the counties and the national government, have left a rather confused picture of access to healthcare across the country.
There have, however, been some wins. For the first time since independence, residents of historically marginalised counties, such as Lamu and Mandera, now have access to Caesarean section procedures within their county. There have been problems too: from the controversy arising from the national government forcing counties to lease equipment they neither wanted nor had the resources to use, to ambulance purchases that seemed more about burnishing a governors’ image than delivering care to constituents, to the First Lady’s much trumpeted Beyond Zero initiative that today is in shambles, with many of the facilities either abandoned or turning patients away.
The Makueni model
Nonetheless, an ambitious experiment in the provision of universal health coverage is underway in Makueni, a county that borders Kajiado, Machakos, Kitui and Taita-Taveta counties. Since October 2014, Makueni has been offering its one million residents free healthcare across all its public facilities, including county and sub-county hospitals. It is a model well worth examining if President Kenyatta is serious about expanding access to medical care across the country.
“When we took over in 2013, we realised that 40 per cent of the people of Makueni would sell land and exhaust family income to pay medical bills for relatives,” says Makueni’s Governor, Prof. Kivutha Kibwana. Given that medical services in dispensaries and health centres were already free and paid for by the national government, the county government figured that if it doubled the 100 million that its Level 4 sub-county hospitals were collecting in user fees, it could offer free, across the board healthcare to its residents.
Thus MakueniCare, as the county government has labelled it, was conceived. It piggybacks on the national government’s free primary healthcare policy and the national coverage provided by NHIF to plug the gap in between with the aim of providing seamless cover across all public health services.
Thus, for an annual subscription of KSh500 per household, which covers parents and all their children under the age of 18 years (or up to 24 years in case of students), Makueni residents can access free primary healthcare at dispensaries and health centres courtesy of the national government, free treatment, including inpatient care and ambulatory services, at the 13 level 4 hospitals within the county paid for by the county government, and, if they’re subscribed to NHIF, free care at referral facilities outside the county. The Level 4 hospitals provide free care and bill the county government, which also supplies them as well as the primary healthcare facilities with drugs, equipment and medical staff.
However, universal health coverage is more than eliminating out-of-pocket expenditure; it is also about ensuring access to healthcare. According to Dr. Cyrus Matheka, the head of the county’s Health Promotion Services, MakueniCare took two years to plan and was preceded and piloted by a programme offering free care to those over the age of 65 without a requirement for registration. Within that time, the county government invested in expanding facilities, from dispensaries and health centres to sub-county hospitals, and has continued to do so. In under five years, it has more than doubled the number of health facilities built by the colonial and national governments over the last 50 years. Apart from an additional 113 dispensaries and health centers, the county now boasts 13 Level 4 hospitals and has employed 160 doctors, compared to just 38 doctors and 3 hospitals in 2013. At KSh2.3 billion, health is the county’s single largest budget item.
All this means that the county can offer a wide array of free services to residents, from hospital admission, surgical procedures, X-ray imaging, laboratory testing, to dental and counselling services. Even in death, patients benefit from 10 days of free mortuary services. However, the cover does not apply to specialised care and equipment that are not available at the hospitals, including dialysis for patients suffering from kidney failure, intensive care units, implants, as well as auxiliary devices, such as wheelchairs.
Insurance schemes are essentially funds where people pay into a pool when they are healthy – in this case through both taxes and direct contributions – which they can draw on when sick. The Makueni recruitment model reversed this, thus courting adverse selection, or the tendency of people to get insurance only when they are seriously sick, which can consume huge resources.
Dr. Andrew Mutava Mulwa, the County Minister of Health, estimates that MakueniCare covers at least 93 per cent of the county’s healthcare needs. He says it is built on a platform of ensuring adequate provision of primary care by increasing facilities, improving services and ensuring that medicines are available. “Someone who is sorted at the dispensary will not find their way to the hospital,” he says, adding that only 35 per cent of patients in Makueni need to seek care in the secondary institutions covered by MakueniCare or in tertiary referral facilities outside the county.
However, the programme has had its share of challenges. The first, rather surprisingly, was low uptake. In March last year, when The Elephant visited Makueni, less than 10,000 households had signed up for the programme out of a potential 200,000. The scheme had a mere 30,000 beneficiaries. Part of the reason for this was the decisions taken to make the coverage voluntary, to register subscribers at county hospitals when they sought care and to make the cover active immediately upon registration and payment. Initially there did not seem to be much of a public campaign to get residents to register: there were no posters announcing the programme in all the hospitals The Elephant visited and, despite officials claiming to advertise on vernacular radio, most residents we spoke to had not heard about MakueniCare.
Julia Musau of Kaselia village, who we met at the Tawa Sub-County Hospital, is a typical case. She had been unaware of the scheme until a month prior to our visit. She found out about it after she took a patient to the Makueni General Hospital in Wote, and had difficulty settling the bill. It was another woman whose child had been admitted there who told her about MakueniCare. That was when she enrolled her family immediately.
However, even those who know about it opt to wait till they or their dependents get ill to register since there is no penalty as the cover is activated immediately and registration is done at the hospitals, anyway. This made registration vulnerable to industrial action by medical personnel. For example, during the nationwide strikes, first by doctors and then nurses, fewer people went to the hospitals as there was little expectation of receiving care. In any case, According to Dr. Matheka, less than 5 per cent of the county’s population seeks medical care at any one time, and many of these are over the age of 65, a group that already enjoys free care. This means registration will inevitably be slow unless there is a serious epidemic.
The Makueni model also faces other challenges. Insurance schemes are essentially funds where people pay into a pool when they are healthy – in this case through both taxes and direct contributions – which they can draw on when sick. The Makueni recruitment model reversed this, thus courting adverse selection, or the tendency of people to get insurance only when they are seriously sick, which can consume huge resources. This brings into question the sustainability of the programme. However, in more recent times, according to Wambua Kawive, a former Makueni County Minister, the county government has ramped up its recruitment efforts and has now launched a mass registration exercise targeting 100,000 registrations by the end of the year.
Another challenge the system needed to cope with was an initial influx of patients into hospitals once the policy was implemented. Tawa Sub-County Hospital Administrator, Justus Kilonzo, told The Elephant that the workload at the hospital had increased, which necessitated the recruitment of more staff. Further, there has been an influx of people from neighbouring counties who sought to take advantage of the system. Geoffrey Kirui, the Health Administrative Officer at Makindu Hospital next to the busy Nairobi-Mombasa highway, spoke about having to filter out patients from other counties, especially Taita Taveta, Kajiado and Kitui. Still, trying to determine someone’s place of residence using identification cards, birth certificates and a ward administrator’s or chief’s letter is an inexact science and one gets the sense that this too was not well thought through.
MakueniCare also faces a hazard where, having paid the subscription, patients will head to the hospital for even minor complaints that can be addressed at lower levels, adding stresses to the system. They may also engage in risky behaviour knowing that there is the safety net of free care. Such behaviour may be inadvertently complemented by a shift in focus from preventative to curative care by hospitals seeking to generate more revenue and county officials seeking to make political hay from the scheme.
The latter is particularly important. It is crucial to note that MakueniCare is undergirded by an administrative structure that was created to deliver a different type of healthcare where users contributed directly. Suddenly eliminating such fees can have unintended deleterious effects on both the facilities and their ability to deliver quality services. One study on the effect of the removal of user fees found that although the revenue generated was generally low, it served to ensure that facilities met the costs of services and salaries for support staff not directly funded through the government’s budget.
There is also a legitimate fear that the political priority placed on MakueniCare may be diverting resources from primary and preventative care at the health centre and dispensary levels.
In Makueni, a doctor-turned-administrator who did not want to be named told The Elephant that MakueniCare had created a mismatch of skills, with doctors having to do administrative tasks rather than attend to patients. When MakueniCare was first proposed, the doctor told us, there was much resistance from hospitals, which were concerned about the lack of a clear system as well as lack of necessary training and preparation. “Why the rush to launch in October 2016?” asked the doctor, concluding that the timing had largely been influenced by the interests of county politicians vying in the August general election.
MakueniCare essentially transfers control over funds and decision-making away from hospitals to bureaucrats at county headquarters in Wote town. Hospitals not only have to worry about delays in receiving reimbursements for resources spent in providing care – which can happen if, for example, the national government delays disbursements to the county governments – but also about losing their largely autonomous decision-making power on the equipment they need to procure and the staff they need to recruit. Similarly, where and when new facilities are built may reflect more the political priorities of those running the county government rather than the genuine health needs of the populace. Lastly, as with all government-driven procurement decisions, the spectre of corruption is never far away.
There is also a legitimate fear that the political priority placed on MakueniCare may be diverting resources from primary and preventative care at the health centre and dispensary levels. Ilatu dispensary, which was built by the Kenya Pipeline Company and opened in March 2014, may be a case in point. In September 2015, the facility was handed over to the county government that provided staff and equipment. Adjacent to a settlement scheme, it is the busiest facility in Kibwezi West and offers outpatient, maternal and child health, family planning as well as HIV testing and counselling services. The staff of two nurses and one laboratory technologist attend to between 70 and 100 patients every day. The county government is upgrading it to a health centre and building a 40-bed inpatient facility.
Jacinta Mbula is the nurse in-charge. She says staffing and resources are big challenges. When The Elephant visited the facility, her fellow nurse was on maternity leave and she was running the facility on her own. She said that there is only enough accommodation for one nurse to stay at the facility and take care of overnight maternity cases, and that nurse still has to report to work the next day. Although they receive adequate supplies of essential medicines from the county government, they do sometimes run out of non-essential drugs.
Further, she only gets KSh60,000 – “peanuts” – every quarter from the county government to pay casual labourers and purchase essential supplies. She currently employs one casual worker and one watchman but says she actually needs – but cannot afford – two casuals and a groundsman to manage the 10-acre facility. And because it was not built by the national government, the dispensary is not entitled to access the HSSF, despite its workload, though other less busy facilities do. Ilatu does, however receive, as all facilities do, reimbursement from the national government for maternal deliveries –KSh2,500 each.
Dr. Matheka says the average distance to a health facility has been nearly halved, from 9km to 5km in the last 4 years. However, having more facilities will not necessarily improve health outcomes for the people of Makueni if the quality of care they provide begins to decline as a result of underinvestment.
So as the county keeps building more dispensaries and health centres, questions must be asked about whether underfunded facilities can truly serve as the bedrock for universal health coverage even though access has been improved. Dr. Matheka says the average distance to a health facility has been nearly halved, from 9km to 5km in the last 4 years. However, having more facilities will not necessarily improve health outcomes for the people of Makueni if the quality of care they provide begins to decline as a result of underinvestment. Further, especially as the county expands the number of Level 4 hospitals, one must wonder whether this is being done at the expense of funding primary healthcare.
Makueni officials say some of the potential pitfalls are ameliorated by enhancing public participation. Governor Kibwana says local committees of citizens participate in co-supervision of projects and must, along with technical people and administrators, give approval. This, Kawive asserts, removes politics from the equation and makes bureaucrats and hospital administrators directly accountable to citizens. While it is definitely a good idea to involve local communities, true accountability must be accompanied by real access to information as well as consequences for those who are implicated in wrongdoing.
Though MakueniCare faces its share of challenges, everyone The Elephant spoke with in Makueni who was aware of the programme was full of praise for its ambition, including those who were critical of its implementation. The fact is, as Kenya ponders the way to achieve universal health coverage, the country would do well to pay attention to the lessons from Makueni. The expansion of NHIF cover by itself will not suffice; the national government must work with county governments to outline a plan that creates a seamless spectrum of cover at every level of care and provides the necessary resources at the appropriate time.
Further, there should be horizontal cooperation among counties in providing healthcare and any plan must strive for equity but without punishing the counties that have taken serious strides. Criteria for eligibility for county programmes should be clearly spelt out and counties should be encouraged to collaborate in designing their schemes within the framework of the national plan.
Thirdly, the system should primarily invest in and direct resources towards building the capacities of the public health sector, not in creating opportunities to generate private profits. It should embrace a rights-based approach that seeks to deal with health as a human right rather than an industry. That shifts the focus away from the needs of “investors” to those of citizens. As Ann Wanyoike notes, “an expanded role for the private sector became a health sector reform theme of the 1990s” but this resulted in “a dichotomous health structure that was characterised by the rich opting for high-cost private healthcare providers, with a majority of the populace who had no such means relying on the publicly run health institutions”. This means that those who can contribute the most to a national universal health coverage scheme have little incentive to do so, especially if such contributions are voluntary. More on that later.
In addition, it does no good to simply superimpose universal health coverage on a system designed for hospitals to generate revenue. The latter must be fundamentally retooled to suit the former and this will take both time and resources.
Fourth, the plan must prioritise prevention and care at the lower levels. In 2013, according to the Kenya Service Availability and Readiness Assessment Mapping report, less than 6 out of 10 health facilities in the country have the capacity to provide the Kenya Essential Package for Health (KEPH) – a standardised comprehensive package of health services – and less than half have the basic amenities to provide healthcare services. And while two-thirds have half the basic equipment required, 59 per cent do not have essential medicines. Only 2 per cent of facilities are providing all KEPH services required to eliminate communicable diseases. Providing universal healthcare on such a foundation would be building on sand.
Universal healthcare requires a substantial increase in the resources both levels of government commit to health. The point is not that both levels of government should spend more on health at the expense of other social services; rather they should increase spending on the full range of human rights and social determinants of health. For example, Kenya’s Health Policy identifies reducing the burden of violence and injuries as one of the top objectives and notes that this will require addressing causes. Given that road crashes account for between 45 and 60 per cent of all admissions to surgical wards, comprehensively addressing the problems on our roads would free up considerable resources in the health sector.
According to Djesika Amendah, an associate research scientist at the African Population and Health Research Centre, Kenya spends most of its health budget on salaries, allowances, drug supplies and other recurrent costs; only 7 per cent of the budget goes towards capital expenditure to improve the quality of healthcare by building new facilities or purchasing equipment to care for more people in the future.
How the money that is allocated to the health sector and how it is spent should also change. According to Djesika Amendah, an associate research scientist at the African Population and Health Research Centre, Kenya spends most of its health budget on salaries, allowances, drug supplies and other recurrent costs; only 7 per cent of the budget goes towards capital expenditure to improve the quality of healthcare by building new facilities or purchasing equipment to care for more people in the future.
In addition, the country spends nearly four times as much on curative care as it does on disease prevention and “we devote a higher share of our health shillings (20 per cent) on governance, health system and financing administration; in other words, paying people in the ministries of health who actually do not see any patients rather than spending money on preventing diseases or promoting health.” Further, although most Kenyans live in rural areas, government health expenditure has in the past tended to favour urban areas. Given the country’s limited resources, more prudence will need to be exercised if universal access to care is to be guaranteed to all.
Along the same lines, there should be an emphasis on getting Kenyans to pay into the system when they are healthy and not to wait till they get sick to get the cover. This also means making it easier for people to register and pay. For example, one can currently download a registration from the NHIF website but one then has to deliver it physically to their offices. There appears to be no way to pay via mobile money or credit/debit card. With nearly all Kenyans able to access the internet though their mobile phones, allowing online registrations and payments would be an easy way to bring in more registrations.
Further, whether the scheme should be voluntary or compulsory is a matter for serious debate. While Makueni’s system is completely voluntary, the NHIF is compulsory only for those in formal employment. Yet the WHO’s 2010 World Health Report titled “The Path to Universal Coverage” says that “there is strong evidence that raising funds through compulsory prepayment provides the most efficient and equitable path towards universal coverage. In the countries that have come closest to achieving universal health coverage, prepayment is the norm, organised though general taxation and/or compulsory contributions to health insurance.”
Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it.
There is also the question of whether, like in Makueni, everyone pays the same amount regardless of income, and whether wealthier people are asked to pay a little bit more in order to lighten the load on the poor. As the WHO notes, “financial risk protection is determined by how funds are raised and whether and how they are pooled to spread risks across population groups” and “rais[ing] funds equitably … usually implies a degree of progressivity (where the rich contribute a higher proportion of their income than the poor)”. The NHIF, rather strangely, only has a graduated scale for contributions from those in formal employment; others who join pay a flat monthly fee regardless of income. This is curious for a country where, according to the United Nations’ Economic Commission for Africa, only a quarter of workers are in the formal sector.
Fifth, accountability must permeate the entire system. Implementation of the scheme should not become, as we have seen with the free primary education reintroduced in 2003 and the Standard Gauge Railway, hostage to political priorities. Kenyans must accept that if it is to be done well, it will not be done overnight. Public participation at every stage should be encouraged and resources, especially human resources, should be utilised in the most appropriate and effective manner. Effective public participation as well as transparency will be indispensable if the country is to avoid universal health coverage becoming another avenue for looting by the state.
While universal health coverage focuses on reducing the financial burdens of patients, more will be required if access to the healthcare system is to be expanded. As the World Health Report notes, “eliminating direct payments will not necessarily guarantee financial access to health services, while eliminating direct payments only in government facilities may do little to improve access or reduce financial catastrophe in some countries. Transport and accommodation costs also prevent poor people using services, as do non-financial barriers, such as restrictions on women travelling alone, the stigma attached to some medical conditions and language barriers.”
Finally, Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it. All that is needed is a belief that Kenya should be run for the benefit of all Kenyans and that Kenyans are just as capable as any other people of imagining and creating better worlds and better futures. This may be the greatest lesson we can learn from Makueni County.
POT CALLING THE KETTLE BLACK? France’s shady deals in Africa
“I think the corruption of Africa is taken totally out of context, Africa is no more corrupt than any other place around us. For every African leader who is corrupt, we have a 1000 European, American, Chinese business people who are corrupt, where are those guys? Why only talk about African corruption? What about the Chinese corruption, American corruption and European corruption? We need to be really fair in looking at this issue of corruption. What about companies not paying taxes in Africa? What about profit shifting, mispricing? There is a whole lot of corruption around us. What about anonymous companies? Companies whose official ownership is not known, where people hide their stolen money. All that are issues of corruption, so that is all that needs to be discussed and let’s get away from the scenario that only African leaders have a monopoly on corruption which is not true”.
These words came from the mouth of Mo Ibrahim, the Sudanese-British businessman who in 1998 founded the telecommunications company Celtel International and is now the chairman and founder of the Mo Ibrahim Foundation, established in 2006 to support good governance and exceptional leadership on the African continent. Since 2013, Mo Ibrahim has been measuring and monitoring governance performance in African countries through the Ibrahim Index of African Governance (IIAG). He is an iconic figure: he represents African efficiency and good entrepreneurship.
The point made by Mo Ibrahim is clear: corruption is a global issue that is making the world sick. Targeting the sickness should be a priority of the whole planet. There is no moral superiority here: each country should blame itself for something. There are countries that behave like strong boxes protecting the financial secrecy of the rich world; others are still trying to colonise the poor while some allow a tiny elite to control the rest of the population.
There is a tendency to view Africa as corrupt. No doubt lack of ethical leadership and economic and political neocolonialism are key factors in the high levels of corruption on the continent. However, treating the corruption issue as an African peculiarity is unfair. Especially if the one complaining is a European country.
Related stories: Special Reports from Reuters journalists around the world
European companies are part and parcel of corruption in African countries. The most recent example concerns Eni SpA, the partially-national Italian oil company and the partially-national Dutch Royal Dutch Shell PLC. On December 20 this year, the Court of Milan indicted Royal Dutch Shell PLC, the chief executive of the Italian oil and gas company Eni SpA and other industry executives on corruption charges connected to a 2011 deal to acquire drilling rights off the coast of Nigeria. “Prosecutors say in court documents that Eni CEO Claudio Descalzi and the other executives at both Shell and Eni knew that most of the $1.3 billion Eni and Shell paid to the Nigerian government to acquire the drilling rights would be distributed as bribes. Prosecutors will argue that Goodluck Jonathan, the Nigerian president at the time of the deal, received part of the kickbacks, according to court documents”, FoxBusiness reported.
There is a tendency to view Africa as corrupt. No doubt lack of ethical leadership and economic and political neocolonialism are key factors in the high levels of corruption on the continent. However, treating the corruption issue as an African peculiarity is unfair. Especially if the one complaining is a European country.
Nigeria is ranked among the most corrupt countries in the world. Corruption has remained rampant in Nigeria, and became worse under the rule of Goodluck Jonathan. In the 2011 case connected to Eni and Shell, there are also several prominent Nigerian figures mentioned in the alleged bribing scheme.
In the European mindset, corruption is a vicious circle: nobody seems to be interested in breaking the bribe rule because it is considered “normal” and it secures success, especially in countries where impunity is the norm. Yet Western countries that have invested in Africa always claim moral superiority: they have better governance, accountable and efficient systems, and they bring jobs. But this supposed superiority is just a veneer that allows these countries to be corrupt and opaque abroad.
France is globally recognised as among the most corruption-free countries. However, there are questions being raised in Kenya concerning whether the France-based company OT-Morpho paid bribes to officials of the Independent Electoral and Boundaries Commission (IEBC) in order to be granted the contract for the electronic voting system used in the 2017 election.
The French government has also in the past been accused of being infiltrated by mafia-like groups that use bribery as a tool to influence politics. Recently, the strongest criticism of France’s dealings abroad came from the broadcaster Arte, which aired a documentary called “Mafia et Republique”.
The French government has also in the past been accused of being infiltrated by mafia-like groups that use bribery as a tool to influence politics. Recently, the strongest criticism of France’s dealings abroad came from the broadcaster Arte, which aired a documentary called “Mafia et Republique”. The historical investigation started in 1929, when in Marseille, Southern France, two friends, Carbone and Spirito, started a criminal group: the very first group of Corsican mafia. In the beginning, this was a gang dedicated to drug trafficking, but the next generation of mobsters in the ‘60s found some politicians who were closer to their interests. The most prominent one was Charles Pasqua, the former interior minister (‘86-’88 and ‘93-‘95) and congressman for almost 35 years. When he died in 2015, he was called the Godfather of Francafrique – the term coined by the former Ivorian president Félix Houphouët-Boigny to define the colonial-style influence that France has in some former French colonies in West Africa. Tchad, Cameroun, Centrafrican Republic, Gabon, Angola – these are some of the African kleptocracies, some still in power, that began their rule in these years. The other important Godfather of Francafrique was Robert Feliciaggi, the middleman between politicians and mafia gangs. He ran casinos with Michel Tomi in Western Africa and died in uncertain circumstances in Ajaccio, Corsica, in 2006.
From 1980 to 1994, France was shaken by the Elf affair, probably the biggest political and corporate sleaze scandal to hit a Western democracy since the Second World War that exposed bribes paid by the national oil company all over the world. In Africa, the intermediaries for the illicit payments were Feliciaggi and Tomi. “Elf’s former chairman, Loik Le Floch-Prigent, 60, was sentenced to five years in jail and fined €375,000 (£260,724); his principal bag-man, the former director Alfred Sirven, was given the same prison term and ordered to pay €1m. The company’s ‘Mr Africa’, André Tarallo, was jailed for four years and fined €2m”, reported the Guardian in 2003. After an eight-year investigation and four-month trial, 30 out of 37 defendants were jailed for embezzling €305 million. This case is a concrete example of an organised, hierarchical mafia-like syndicate that is able to penetrate the so-called grey zone where criminals, politicians and businesses merge together.
According to Reuters’ findings, “Areva’s mines pay no export duties on uranium, no taxes on materials and equipment used in mining operations, and pay a royalty of just 5.5 percent on the uranium they produce. A spokesman for Areva declined to confirm the authenticity of the documents and did not comment on their contents”.
Sometimes corruption is simply a matter of money and power, without criminals or gangs involved. These cases are harder to prosecute because often finding the money is impossible. One such case was reported by Reuters in 2014. The main character was Areva, the mining company that is the global leader in uranium extraction. Areva-Niger’s agreements had never made public and in 2014 they expired. According to Reuters’ findings, “Areva’s mines pay no export duties on uranium, no taxes on materials and equipment used in mining operations, and pay a royalty of just 5.5 percent on the uranium they produce. A spokesman for Areva declined to confirm the authenticity of the documents and did not comment on their contents”. Profits without expenses.
Reuters reported that Areva said that a higher royalty rate would have made the business unprofitable. “Mining Minister Omar Hamidou Tchiana, leading the negotiations for Niger, told Reuters the government wants to increase uranium revenues to at least 20 percent of the budget, from just 5 percent at present…‘For 40 years, Niger has been one of the world’s largest uranium producers, but it’s still one of the poorest countries on the planet,’ he said. ‘At the same time, Areva has grown to be one of the world’s largest companies. You see the contrast?’”.
On his last trip to Burkina Faso, the French president Emmanuel Macron said he wanted to reset French-African relations and get rid of Francafrique-style dealings. “I haven’t come here to tell you what is France’s African policy because there no longer is one, there is only a continent that we need to look straight in the face”, he said in his November 2017 speech in Ouagadougou.
How did Areva obtain these privileges? The answer has never been found.
In 2017 Oxfam France’s report called “La transaprence à l’état brut” exposed the lack of transparency in Areva’s taxes paid in Niger. The same report also mentioned some questionable tax payments by Total in Angola.
On his last trip to Burkina Faso, the French president Emmanuel Macron said he wanted to reset French-African relations and get rid of Francafrique-style dealings. “I haven’t come here to tell you what is France’s African policy because there no longer is one, there is only a continent that we need to look straight in the face”, he said in his November 2017 speech in Ouagadougou. He added: “The crimes of European colonisation are unquestionable . . . It’s a past that needs to pass.”
Despite this new approach, there are still enormous biases that divide France from its former colonies. The first one is the colonial approach of the French multinational corporations, as listed above. The second is more symbolic and maybe more important. France is still hiding secrets from its former colonies. There are strong suspicions about a French role in the conspiracy to kill Thomas Sankara, Burkina Faso’s Che Guevara, in 1987. The French government has also been accused of being involved in the Rwandan genocide in 1994. (However, the military documents that can prove that France supplied some militias with arms are still classified.) People protesting in Togo blame the French authorities of supporting President Faure Gnassigbé, the kleptocrat who has refused to follow the constitution, according to his opponents. The same situation applies to other West African ruling families who are heavily criticised at home, but who have good allies in Paris.
Corruption is criminal and immoral. While European countries benefit from this vice, African countries are left to deal with its devastating consequences.
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