Back in September 2016, I published a piece on Facebook that suggested, based on recent party dissolutions and mergers into Jubilee and the accompanying defections by numerous politicians, that – barring discontinuous events, such as the death of a senior leader – the August 2017 general elections in Kenya were already almost over and that Jubilee’s victory seemed assured. The key data I used was the publicly declared political affiliations of each incumbent constituency MP and governor. At the time, the Jubilee bandwagon looked near unstoppable, with two-thirds of the elected constituency incumbents then in their camp (compared to only half after the 2013 elections). Nine months have passed since then. With hindsight, how accurate does that prediction look today?
What follows is an independent, unpaid analysis. It is not sponsored or supported by any political party, and it makes no attempt to argue right or wrong, or to favour one alliance over the other; it is purely to assess the current situation and to make an educated guess as to the likely outcomes. As it contains predictions about the unknowable future, it will of course be wrong in many details. But Kenyan election results are far from random; they follow regular patterns and rarely exhibit discontinuous changes, and it is possible to make educated guesses about what will happen based on previous experience. This piece of crystal ball gazing assumes no sudden deaths or disbarments amongst senior leaders, and it doesn’t suggest these results are immutable. Most voters are pretty clearly spoken for, but there is still a sufficiently large “floating vote” to change the result.
Reading the Kenyan media, the answer to my question would seem to be “no”: my 2016 prediction of a Jubilee victory doesn’t look good at all. The opposition NASA has had an excellent 2017. Since the start of the year, it has formally brought Musalia Mudavadi’s Amani National Congress (ANC) and Isaac Ruto’s Chama Cha Mashinani (CCM) into the CORD alliance of ODM, Wiper and FORD-Kenya, creating NASA (The National Super Alliance). Its aim was to emulate the national alliance that created the National Rainbow Coalition (NARC), which defeated Uhuru Kenyatta in 2002 (and to respond to the creation of the Jubilee Alliance Party itself). It has also chosen its presidential and vice presidential candidates without mass defections among those who lost out. Energised by numerous real or imagined corruption scandals and by the recent food crisis, Jubilee has been on the defensive throughout. For example, the opposition took good advantage of the grand opening of the Standard Gauge Railway between Nairobi and Mombasa, intended to be a “signature” Jubilee achievement, by focusing on alleged corruption in its procurement, leaving Jubilee’s claims of service delivery looking hollow and unconvincing.
NASA’s choice of Raila Odinga and Kalonzo Musyoka as presidential and vice presidential candidate, respectively, was both logical and predictable, but also a conservative strategy that set the two candidates up for an exact reprise of 2013, with the same two frontmen on both sides.
However, a strong performance doesn’t yet mean victory. There are several reasons why my prediction back in September 2016 of a 55-45 victory for Kenyatta over the (yet to be chosen at that time) opposition candidate remains plausible.
Firstly, the opposition shunned the chance to play a different game, and faced up to Jubilee with exactly the same lead players as had fought and lost in 2013. NASA’s choice of Raila Odinga and Kalonzo Musyoka as presidential and vice presidential candidate, respectively, was both logical and predictable, but also a conservative strategy that set the two alliances up for an exact reprise of 2013, with the same two frontmen on both sides. On that basis, it is hard to see the result being materially different. For NASA, the opportunity to improve on their 42% performance in 2013 lies with the incorporation of much of Mudavadi’s vote (4% nationwide, mostly in western Kenya) into NASA. For Jubilee to improve on their 50% performance in 2013, it needs to leverage the power of incumbency, its deeper pockets, the resources it has allocated to specific communities, and the positive messages (hard to sell as they are proving) about their delivery to Kenyans during 2013-17.
Secondly, Jubilee is only just beginning to start campaigning in earnest, and has substantial resources in reserve. Uhuru Kenyatta and William Ruto are now touring nationwide, leading public rallies with exhortations to support Jubilee because of the (state) resources they have directed to local communities and the (state) jobs they have given to local elites in classic KANU-era style. At the moment they appear strangely uncertain and unconvincing in their message. But elections are not won on the campaign dais. There is much more work which can and will be done at the grassroots in parallel to target specific swing groups and persuade voters in those regions to stay with the “devil they know”. Jubilee is significantly wealthier than NASA, with a more unitary command structure and better campaign technical support. It has barely started to attack Odinga and Musyoka personally, and there is a huge amount of mud which could – and probably will be – thrown at NASA between now and August.
Third, Jubilee went into the primaries with the support of even more MPs than it had in 2016. Rather than mass defections to NASA, the stream has continued to flow (though more slowly) to Jubilee. Individual politicians can be both “leading” and “lagging” indicators, either encouraging their constituents to change course or responding to a disquiet already felt at the grassroots. But they rarely make a change without expectations of at least a chance of electoral victory.
The attached images show where the 290 elected constituency MPs stood at the beginning of the party primaries, viewed by county, and each sized according to the number of seats in that county.
This is a new view of Kenya by constituency, organised according to the 47 counties. One square is one parliamentary constituency, whatever its geographical size or population. Rough geographical similarity is preserved, but it is only rough.
Opinion polls show the gap between the alliances narrowing, but Jubilee is still ahead. The end-May Ipsos poll after Odinga and Musyoka were declared as the presidential candidates showed a 47%-42% lead for Jubilee, but with 10% of those polled undecided or unwilling to answer. With so many successful or near-successful insurgent political campaigns over the last 18 months (Brexit, Trump, Macron, Le Pen, and most recently, Corbyn) nothing is certain. But most of those undecided/unwilling voters will go with one or the other alliance in the end. If simplistically, one split the “undecided/unwilling” down the middle, the result from this poll would be a 52-47 victory for Jubilee. In practice, the undecideds will probably fall – if lessons can be learned from other recent elections – slightly in favour of the more conservative option (here, the incumbent). No poll at any point has yet suggested a NASA victory.
Although a mess, the April-May 2017 party primaries were probably better run than ever before, despite the ensuing complaints, cancellations and court cases. Apart from rotating and refreshing ethno-regional political elites, however, they changed little at the national level. Party-hopping after losing has been banned, but it has been replaced this time round by a plethora of newly-independent candidates. However, these politicians are not truly independent; they are simply allies of one national faction or other who were unsuccessful in the primaries. Virtually none have changed their underlying allegiance. With so many independents, the main parties do risk splitting their vote in some marginal seats. Both alliances have this problem, though Jubilee’s is more severe. But NASA has an even more serious difficulty – their Wiper, ODM and ANC candidates are standing against each other without any pre-election deal in many parliamentary, senate and gubernatorial seats, including in Kakamega, Vihiga, Kisii, Mombasa and Taita-Taveta counties. If some cannot be persuaded to stand down, they will split their votes and may allow Jubilee candidates to slip through. This is only a problem at lower levels in the political structure though. Although eight presidential candidates have been cleared, the national race is effectively a two-horse one and a second round is very unlikely (in contrast to 2013, when Mudavadi was running as a third force and the runoff chance was much higher).
Party-hopping after losing has been banned, but it has been replaced this time round by a plethora of newly-independent candidates. However, these politicians are not truly independent; they are simply allies of one national faction or other who were unsuccessful in the primaries, and virtually none have changed their underlying allegiance.
Next, democracy is a numbers game. The “tyranny of numbers”, has become a curious point of contention in Kenya over the last decade. But much depends on how you present the concept. The “tyranny of numbers” is also “one man, one vote”: electoral democracy where all are equal and no-one’s vote is more important than any other’s. As long as that widely supported and widely praised system is in use in Kenya, victory comes with winning the support of most voting adults, not of most clans, ethnic groups or counties. So, to understand where Kenya stands, we need to look at two key numbers: the number of registered voters in each county and their propensity to turn out for their favoured candidates, and to combine these with a model of voting preference amongst the people in those counties. And, like it or not, the majority of Kenyans (probably two-thirds) can have their political alliances predicted with a high degree of confidence based on their ethnicity. This heuristic can be confirmed (or challenged) by examining where key politicians are standing in each community, the number of voters turning out in the various party primaries, fighting and complaints of intimidation by weaker parties, and whether the other “side” can even find a candidate willing to risk standing for them in some seats.
We now have provisional and unaudited registration results from February 2017 which show that 3.5 million voters were added in the last three months, with the growth fastest in the Coast and North-Eastern regions and in Nairobi. There are no obvious signs so far of structural pro-government bias in the allocation of voter registration kits or in these unaudited results. These numbers give us a strong (though unvalidated) baseline to work predictively. Next, we need to estimate the turnout figures in each county. 2013’s numbers are a solid basis for this, though turnouts will probably be a little lower across the board this time than last. Some of the turnouts last time (such as in Mandera) were very suspect and this analysis assumes – for now – that these exceptions return to the norm.
Finally, we need to make a judgement about how each county and each community within that county is likely to vote, based on previous experience, but adjusted for events and changing alliances since 2013, and the influence of major regional political figures. So, let us run through the old provinces or regions and the 47 counties one by one, to set the basis for that prediction.
Since 2016, the generally pro-CORD/ODM Mijikenda coast (Kilifi, Kwale and parts of Mombasa) has once more solidified for NASA. Many of the MPs who defected with pomp and pride to Jubilee in 2016 now look very vulnerable and Jubilee’s inroads in 2016 seem to have been reversed. Despite misgivings about the regional dominance of the controversial Hassan Joho and the Arab/Swahili community, NASA will win almost all the Coast, except Tana River, Lamu and perhaps one seat in Taita Taveta. In Nyanza, Odinga will get virtually every Luo vote, his support as solid as ever, and a plurality (perhaps 70%) of Gusii votes, where again the 2016 defectors to Jubilee look to be falling en masse.
Western Province now seems solidly for NASA too. But the result nationwide will hinge on how well Mudavadi, Moses Wetangula and others can turn out the Luhya for NASA (with no “horse in the race” now and relatively low registration in Mudavadi’s home Vihiga). Through ex-New FORD-Kenya recruits, Jubilee still has a position of sorts among the Bukusu of Bungoma and Trans-Nzoia. But I suspect Jubilee is going to poll no more than 10-15% of the vote in Western overall, even including their majority support amongst the Iteso of Busia and Kalenjin of Mount Elgon.
In contrast, Nairobi seems to be firming up narrowly for Jubilee, especially in the governorship, where Mike Sonko’s spectacular campaign is overwhelming ODM incumbent Evans Kidero’s low profile and modest legacy. A 50-50 split looks plausible at the moment, though this may change. This assumes that pro-Jubilee independent Peter Kenneth will not materially split the Jubilee vote or create a cross-party movement and that the Independent Electoral and Boundaries Commission (IEBC) does not disbar Sonko or Kidero or both.
As in 2013, Central Province will vote entirely for Jubilee. NASA has no candidates and no prospect of support here, the homeland of the Kikuyu community that is still numerically the largest in the country. Apart from the ethnically mixed peri-urban areas of southern Kiambu, more than 95% of voters in the province will back “their President”.
Despite misgivings about the regional dominance of the controversial Hassan Joho and the Arab/Swahili community, NASA will win almost all the Coast, except Tana River, Lamu and perhaps one seat in Taita Taveta. In Nyanza, Odinga will get virtually every Luo vote, his support as solid as ever, and a plurality (perhaps 70%) of Gusii votes, where again the 2016 defectors to Jubilee look to be falling en masse. The Somali North-East, in contrast, is stronger for the ruling Jubilee party than in 2013. Mandera was already wholly Jubilee in 2013 and remains so, and Wajir has been moving steadily towards Jubilee during Kenyatta’s term.
Jubilee will also win almost all the Kalenjin voters in the Rift Valley, bar the Kipsigis of Kericho, Bomet, western Nakuru and northern Narok. The alliance between Ruto and Kenyatta remains deep and strong. Despite doubts about whether the Kikuyu will really hand over the presidency to William Ruto in 2022, regional support for “their man” and for the power-sharing deal remains firm. The support for maverick Kipsigis Governor Isaac Ruto is the key variable here. With strong support in Bomet, he has the potential to fracture the southern Kalenjin vote and bring a material chunk to NASA. But I suspect that many of his supporters will vote for him for governor and Uhuru and Ruto for the presidency. Trans-Nzoia will split but probably favour NASA, Laikipia will favour Jubilee, while Nakuru will be a solid Jubilee zone.
The Somali North-East, in contrast, is stronger for the ruling alliance than in 2013. Mandera was already wholly Jubilee in 2013 and remains so, and Wajir has been moving steadily towards Jubilee during Kenyatta’s term. The incumbents have worked hard among the Somali and now only Garissa remains a battleground. The mostly pastoralist non-Somali northerners (the Samburu, Turkana, Borana, Gabbra, Rendille, Orma, Burji and Wardei) of the Rift, North of Eastern and Tana River will vote mostly Jubilee or allied parties. However there will be a few constituencies where those alliances reverse and Samburu and Turkana might still vote ODM. Among the southern communities, the Kuria will remain Jubilee, but the larger and politically significant Maasai will again split their affections. With Jubilee having made several missteps and put forward a lacklustre set of candidates, NASA will do better here than in 2013, and will probably win Narok, while Kajiado might go NASA at governor level but Uhuru for president.
In the southern half of the old Eastern province, the densely populated Embu and Meru are solidly for Jubilee (despite Odinga’s efforts) and will vote more than 90% for Kenyatta and Ruto. The key question in Eastern is how well NASA will do in Ukambani. It will win a majority in all three counties, to be sure, but their support appears weaker than in 2013. Then, Musyoka delivered 85% of the vote in Ukambani for Raila, with a turnout of 84%, not a census vote but a strong performance. Now, however, he is struggling, even after his selection as NASA’s vice presidential candidate. He has lost nearly half of his Ukambani MPs (10 out of 23) who have gradually defected to Jubilee, while recent internal disputes within Wiper and his estrangement with two of his most senior and experienced allies (Machakos Senator Johnstone Muthama and Kitui Governor David Musila) leaves him vulnerable. He also faces an insurgency of unknown power in Machakos led by influential Governor Alfred Mutua, whose “Maendeleo Chap Chap” party is allied with Jubilee. I suspect, based on current knowledge, that Jubilee will poll 20-30% of the Kamba vote.
Jubilee will also win almost all the Kalenjin voters in the Rift Valley, bar the Kipsigis of Kericho, Bomet, western Nakuru and northern Narok. The alliance between Ruto and Kenyatta remains deep and strong, and despite doubts about whether the Kikuyu will really hand over the presidency to William Ruto in 2022, support for “their man” and for the power-sharing deal remains firm.
Applying this analysis at the county level gives us the following prediction for winning candidates at the presidential and county levels: 17 counties are solid for NASA, 22 for Jubilee and eight are still – in my view – in play.
June 2017 predictions of winning presidential and gubernatorial candidates
*In this image, one square is one county, whatever its size or population.
While the presidency remains the most coveted job, experience since 2013 has shown that governorships are extremely lucrative and politically rewarding roles, with MPs coming third, senators and the reserved seats for women in the house next, and county assembly members (MCAs) last (even though county assembly members are the closest to the grassroots and most likely to be known personally to voters).
As in 2013, all six contests will tend to follow a similar pattern, with most (though not all) voters voting the same way for the presidency, senator, governor and women’s representative, with more variability at parliamentary and MCA levels. I predict that Jubilee will win 23-26 governorships and NASA 21-24. The symbolically important Senate – created in the 2010 Constitution to enshrine a US-style division of legislative powers – has proved of limited effectiveness, and is likely to be abolished in the next Parliament (as its predecessor was in 1966-7).
The heavy legacy of “Chickengate” makes the IEBC extremely vulnerable to campaigns by NASA (or indeed by Jubilee, if needed) alleging its systematic incompetence and corruption, and therefore bias. That has not started yet in earnest, but the groundwork is being laid to undermine the credibility of the commission by election day, if NASA believes it will lose and that Jubilee will cheat to win.
Nationally, the combination of registration numbers, turnout and an ethnically and historically voting-based preference model still predicts a first round win for Uhuru and Ruto, by 53% to 46% (with a maximum of 1% of votes to other candidates). It suggests Kenyatta and Ruto will get roughly 8.5 million votes (of which more than 5 million will come from the Kalenjin and Kikuyu communities) while Odinga and Musyoka will poll 7.5 million, of which approximately 3 million will come from Luo and Kamba voters. This would be on a national turnout of 83%, with a regional variation from 90% in Central and Luo Nyanza to 65% in Mombasa, Kilifi and Kwale. Turnout is one of the great imponderables, however, and elections can be won or lost on the day based on successes or failures at the grassroots level in turning out supporters. Historically, Jubilee and its predecessor alliances have been slightly better than NASA and its predecessors at this, but in this election, Jubilee may have less of an advantage here.
Finally, let us turn to the referee and organiser of the upcoming contest, the Independent Electoral and Boundaries Commission (IEBC). The IEBC, after an appalling 2016, seems to have stabilised under its new lower-profile leadership. It appears to be trying to keep its head down and focus on technical delivery of its mandate, while trying to cope with a stream of complaints and allegations of bias. It has had good success in ending party hopping, but it has so far failed to exercise its authority over the integrity issues raised about a number of high profile candidates, and has not yet responded to evidence of salaried civil servants campaigning for Jubilee. In fact, it is struggling to match its duties and obligations to the timelines allocated and seems unable to proceed whilst following competitive procurement procedures, with its every decision contested in the courts. The heavy legacy of “Chickengate” makes the IEBC extremely vulnerable to campaigns by NASA (or indeed by Jubilee, if needed) alleging its systematic incompetence and corruption, and therefore bias. That has not started yet in earnest, but the groundwork is being laid to undermine the credibility of the commission by election day, if NASA believes it will lose and that Jubilee will cheat to win.
Will there be post-election violence? Personally, I believe the experience of 2007-8 was so appalling and salutary for Kenyans that any trouble will be localised, unless the electoral abuses are gross.
Whether Jubilee could and would in fact cheat to win if necessary – in a way the IEBC could either not prevent or in which it was complicit – is a hypothetical question with strong judgemental implications. Both sides cheated last time, to varying degrees (local stuffing, forced voting and voting dead voters in their homelands). There is a strong suspicion that Kenyatta’s presidential numbers were topped up at some point in the counting process to push him over the 50%+1 threshold, which probably didn’t change the final result but finished it on the first round rather than in a runoff. The recent court case (strongly backed by NASA) to ensure that the results announced by constituency returning officers are final and cannot be corrected at the IEBC-controlled national tallying centre, even if obviously arithmetically incorrect, is designed to address this most contentious part of the whole election: the critical and semi-opaque presidential count at the national tallying centre. But whatever the outcome of that case, the presidential count will be a key flashpoint after polling day.
The recent focus on electronic transmission of the results – which so spectacularly failed in 2013 – as safer and more reliable than stamped and attested paper forms, is a potentially dangerous misunderstanding. In truth, the speed, independence and impartiality of an electronic system relies entirely on the competence, neutrality and independence of the small number of technical staff managing the IEBC’s databases and servers (who could be personally subjected to very strong pressures to “lose” passwords or make adjustments themselves to numbers) and on the ability of those teams to protect their IT systems from external hacking attempts, which the IEBC now admits happened in 2013. In fact, subtle manipulation is easier to carry out and much harder to spot electronically than with paper forms.
Will NASA and its leadership cry foul if they lose or if they think they are losing? Yes, of course they will, as they and their predecessors did in 2007 (with good reason) and 2013 (less certainly). Whether there will be any basis for this is, of course, unknowable in advance, but what is clear from 2013 is that the presidential election petition rules are so restrictive and time-bound that a successful presidential petition remains extremely unlikely under those rules. Will there be post-election violence? Personally, I believe the experience of 2007-8 was so appalling and salutary for Kenyans that any trouble will be localised, unless the electoral abuses are gross. But that still depends on how things work out over the next eight weeks. And some observers are predicting more serious trouble in specific counties.
But whatever the final outcome, it is clear that Kenya remains polarised and dangerously divided, almost down the middle, and that there is little trust or goodwill between the two major parties to work with each other in whatever political settlement that will follow the August elections.
So, the champion’s and the challenger’s players are on the pitch, the game is under way and the substitute referee’s whistle has blown. Inevitably, things will change and these predictions will need updating. I hope to do that periodically during the campaign and to “call” the result on election night. On 3 March 2013, I predicted a 50% vote for Uhuru, 42% for Odinga, with all others getting 8%. Excluding spoilt ballots, the actuals were 50.5% Kenyatta, 43.8% Odinga and 6% for the others. I’m unlikely to get it so close again.
But whatever the final outcome, it is clear that Kenya remains polarised and dangerously divided, almost down the middle, and that there is little trust or goodwill between the two major parties to work with each other in whatever political settlement follows the August elections.
Editors Comment: This article was written on the 16th of June 2017
Charles Hornsby is the author of Kenya: A History since Independence.
He lives in Ireland.
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.
Related stories: Behind the Makueni Healthcare Revolution
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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