About a month ago, I bumped into an old friend by sheer chance on the streets of Nairobi. Night Atieno and I grew up together in the same city estate and, although we hardly met thereafter, every encounter was an opportunity to catch up and laugh about the good old estate days.
After the usual exchange of pleasantries, Night straightaway asked me what my thoughts on the impending August general election were. “We are planning to vote very early in the morning, after which we must leave town by latest 9am,” she said. “We will then drive all the way to Mwanza. By nightfall, Inshallah, we shall be taking supper with my in-laws.” Mwanza, the second largest city, after Dar es Salaam, is the lakeshore town in the northwestern region of Tanzania.
THIS TIME, THERE’S NO GOING TO THE SUPREME COURT
Looking at me right in the eyes, she whispered: “Listen, this time, there’s no going to the Supreme Court.” She was referring to the first ever Presidential Election Petition case No. 5 taken to the inaugural Supreme Court of Kenya in March 2013 by the Coalition for Reform and Democracy (CORD), the opposition coalition led by Raila Amolo Odinga, seeking to overturn the election victory of the Jubilee coalition led by Uhuru Muigai Kenyatta, today the fourth president of Kenya.
On March 9, five days after the general election that was held on March 4, 2013, Independent Electoral and Boundaries Commission (IEBC), through its then chairman Issack Hassan, announced the election results thus: Uhuru Kenyatta — 6,173,433 votes which constituted 50.07 percent of the total votes cast, beating Raila’s 5,340,546, which comprised 43.31 percent.
Suing the IEBC on March 16, 2013, Raila sought to stop the swearing in of Uhuru as a president. It never came to pass. Uhuru was sworn in as the president on April 9, 2013 at Kasarani Stadium.
The Supreme Court judges led by then Chief Justice Willy Mutunga, in arriving at their verdict, said: “In summary, the evidence in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public.”
The judges further said: “It is not evident, on the facts of this case, that the candidate declared as the president-elect had not obtained the basic vote-threshold justifying his being declared as such. We will therefore disallow the petition, and uphold the presidential election results as declared by IEBC on March 9, 2013.”
That Supreme Court judgment read under less than 10 minutes cast a shadow of devastation and disquiet over the opposition’s core supporters. The promulgation of the new Constitution in August 27, 2010, had created the hitherto new Supreme Court and heralded a new confidence in a much-maligned justice system among Kenyans in all walks of life.
So, when Raila went to the Supreme Court to seek electoral justice, his loyal supporters who had just fervently voted for him, believed in the benign promise of a new court that had promised to dispense justice without fear or favour. It is not hyperbole to state that ever since the reading of that very short judgment by former Chief Justice Willy Mutunga, a majority of Raila’s supporters have yet to overcome the spirit of deflation that engulfed them.
When Raila went to the Supreme Court to seek electoral justice, his loyal supporters who had just voted for him, believed in the benign promise of a new court that had promised to dispense justice without fear or favour
To date, the subject of one of the shortest judgements ever passed by a Supreme Court, has become a taboo narrative among opposition supporters and even among some of the leading lawyers across the country. “Let’s just put it this way,” a prominent Nairobi lawyer who did not want his name disclosed, told me, “The Supreme Court failed in its maiden moment to inspire confidence among Kenyans. It made this worse by its mode of presentation of the verdict.” The lawyer said even among themselves as senior counsels, the conversation around the Supreme Court judgement leaves “a sour taste in the mouth.”
In a parting shot, Night, who is a businesswoman, told me “Kama mbaya, mbaya…wacha wanaume waonane.” If the worst comes to the worst…so be it. Let men face each other!
Night’s scheduled temporary migration in August is part of a silent movement that has been taking place since December among the people of Nyanza and the larger western Kenya who live in Nairobi city, Eldoret and Naivasha towns.
“In the guise of travelling upcountry for Christmas holiday 2016, many family men from the ghettos of Nairobi transported their wives and children to their rural homesteads in Nyanza and Western Kenya,” said my source who spoke to me in confidence. “The month of December was just the right time because the children were on holiday, were relocating to their rural homes and so there was ample time to transit to new schools.”
“I’m a board member of a school in Siaya County,” my confidant told me. “When we sat in January 2017, to admit fresh pupils and pupils seeking transfers, we dwelt mainly with parents from Nairobi and Eldoret.” Investigating further on where the parents from Nairobi were from, he found out they largely came from Kariobangi North, Mathare North, Mathare 4A, Ngei/Huruma and Ngomongo.
It is not for nothing that the parents from some of the toughest slums of Nairobi are sending their children and extended family back home. These slums, today divided between Embakasi North, Mathare and Ruaraka constituencies, were the sites of bloodletting following the bungled December, 2007 general election that led to at least 1,400 people getting killed and 600,000 Kenyans displaced countrywide, especially in the Rift Valley region.
These ghettos, which are inhabited largely by the two “antagonist” ethnic communities — the Kikuyus and Luos — exploded into violence on December 30, 2007, when young men from the two communities faced off with weapons such as daggers, hunting knives and, pangas.
NOBODY IS TAKING ANY CHANCES, ESPECIALLY IN THE NAIROBI SLUMS
Regardless of whatever outcome is anticipated a month from now, given the heightened tensions, “Nobody is taking any chances, least of all the people living in the slums, who bore the greatest brunt of the violence,” said my informant.
If the slums are witnessing a vertical exodus, that of families moving from the urban to the rural, the men who have remained behind have been also moving, but horizontally. In Ngei and Huruma slums, which are in Mathare constituency, and are adjacent to each other, Luo and Luhya men have been changing houses, moving closer to their kinsmen within the same area. In the sprawling Mathare slum. for example, there are areas that are predominantly populated by Kikuyus, while others are populated by Luos. This “cross-border” movement — of shifting rented accommodation to beef up and secure their respective ethnic group safety— has been going on since January.
If the slums are witnessing a vertical exodus, that of families moving from the urban to the rural, the men who have remained behind have been also moving, but horizontally
In the peri-urban areas bordering the city on the south, a similar movement has been also taking place. Non-Kikuyus, mostly Luos living in the Riruta Satellite area, too have been sending their family back to their ancestral homes in western Kenya. Riruta Satellite is a quasi-rural, quasi-ghetto,village bordering the Waithaka area, mainly populated by Kikuyus.
Riruta and Waithaka areas are in Dagoretti South constituency, which in Kenyan political parlance “belongs” to the Jubilee Party coalition. A friend — a veteran journalist who worked for the defunct Kenya Times in the 1980s and is from the Luo community and who has lived in Riruta Satellite for close to three decades — confided to me that his kinsmen have been shipping their families back home during the December and Easter holidays.
To the north of Riruta is Kawangware, a sprawling ghetto today populated equally by Kikuyus and Luhyas. Many Luhya families were settled in Kawangware and Kangemi areas, which are in Dagoretti North and Westlands constituencies respectively, during the time of Fred Gumo when he was appointed as a City Council commissioner by former president Daniel Arap Moi in 1989. Gumo was later to serve as a three-term MP for Westlands.
GET THE AWAY FROM SODOM
The Luhya families, like their counterparts from the Nyanza region, have relocated their wives and children — “Wacha wao waende nyumbani tubaki tukilinda mji (Let the women and children be sent away so that we men can remain to guard the homes),” a Luhya man from Sodom told me. Sodom is a sprawling slum in Kangemi that stretches down to the valley that borders the leafy suburb of Lavington.
During the 2007-2008 post-election violence, Sodom, especially the area around Kihumbu-ini Primary School and Kangemi gichagi (village), became a site of violence pitting the Luhya community against the Kikuyu, who consider themselves indigenous to the area.
The slumlords who had built the timber shacks rented by the Luhyas quickly changed sides and, as the violence spiralled into us vs them, meaning the Kikuyus versus anybody else, whoever was deemed not to have voted for president Mwai Kibaki was harassed and even killed.
Mungiki, whose peripheral meaning is translated as the multitude, is a Kikuyu youth movement that began in the plains of Ng’arua and Sopili in Nyahururu around 1987. Over the years, it mutated into a militia for hire by the political elite.
Thiong’o, who is a landlord in Kangemi, told me there is a silent face-off between the Kikuyus and Luhyas: “Right now, we are not talking to each other [meaning no discussions that may lead to politics] until August 8. But we are ready for them. If they think they will be voting Raila so they can be paying reduced rent… they are in for a rude shock. We landlords have agreed that in the very unlikely event Raila is sworn in as president, we would rather burn the houses than see these western people dictate to us the rents we charge.”
Still, with all his bravado and ethnic machismo, Thiong’o nevertheless whispered to me that once he has voted, he will be gone to his rural home in Murang’a to follow the vote count among his relatives.
“Kikuyu tenants too have been changing houses and moving closer to their fellow kith and kin,” said a tenant I interviewed recently. “If you may recall, there used to be a village called Kijiji cha Chawa (the louse village), sandwiched between Huruma and Mathare 4A, that was largely inhabited by Kikuyus. Many of them were killed [during the 2008 post-election violence]; those who were able to escape, ran away, and whatever was left was destroyed youth from the Luo community.” Today, what used to be a slum dwelling is a playing field connected to Huruma by a footbridge.
“The Kikuyu landlords are aware of these movements, but they will not talk about them openly,” said a landlord from Huruma, who spoke on condition of anonymity. “In fact, some of them are abetting these movements, as they also prepare to secure and safeguard their property.” Once bitten, twice shy. Landlords who burnt their fingers in the violence following the 2007/8 general election have come up with ingenious ways of ensuring their steady income is not interrupted and their property not destroyed.
“Kikuyu landlords, the majority of whose tenants are Luos, have evolved a symbiotic relationship with them. The tenants have been given the freedom to pick one of their own as the buildings’ caretakers, collecting rent on the landlords’ behalf, as they also ensure that the buildings are well maintained.”
In the Kibera slum, quiet movements have been taking place. For instance, Kikuyu families living in Gatwekera village, which is largely composed of Luos, have been relocating to Laini Saba village, nearer to their fellow Kikuyus
The horizontal movements have not only been taking place in the northeastern slums of Nairobi. In the infamous Kibera slum, quiet movements have been taking place as the country hurtles towards elections. For instance, Kikuyu families living in Gatwekera village, which is largely composed of Luos, have been relocating to Laini Saba village, nearer to their fellow Kikuyus.
The regrouping of the menfolk along ethnic lines in the major ghettos and peri-urban areas of Nairobi is to create buffer zones, just in case the violence of 2007/8 is repeated. “It is as if you were watching a pantomime: There are a lot of rhythmic motions by silent men, who very well know what they are plotting against each other, but nobody has the guts to stop and say; ‘But why are we doing this to one another?’,” observed my confidant.
Barely 100km northwest of Nairobi, Naivasha, one of the towns in the Rift valley region that was badly affected by the 2007-2008 post-election violence, is witnessing its own vertical and horizontal migrations. Presiding over a memorial service in the town in mid-June, Nakuru Catholic Diocese head Bishop Maurice Muhata observed, “Some families are transporting their children to their rural homes ahead of the election and this is very wrong.”
A cosmopolitan town mainly populated by Kikuyus, Naivasha nonetheless has a minority migrant labour force mostly drawn from Nyanza and western Kenya, who are employed as casual labourers in the large mechanised flower farms in Karagita, Kawere and Kongoni on the Moi South Road. Ten years ago, as the violence spread into the inner towns, Naivasha and Nakuru’s migrant workers bore the brunt of revenge violence by marauding Mungiki youth imported into the towns to murder and pillage the Luo people and their property.
Since the trashing of the presidential petition on March 30, 2013, the silent narrative out there among the opposition’s legion of supporters has been that there is no turning to the (Supreme) Court and there is no crying foul in case their party is (at least to their minds) unfairly defeated yet again. Beginning in 2016, this resolve has been gaining currency, telling opposition supporters that they should be prepared for any eventuality.
WE ARE NOT GOING TO TAKE THIS LYING DOWN
The National Super Alliance (NASA) presidential flagbearer Raila Odinga seemed to feed into this urgency when in an exclusive press interview at his home in Nairobi’s Karen suburb, he told the interviewer on January 28: “I have said clearly, we are democrats. We would like to have a fair game. If we lose unfairly, we will not accept… We are saying we are not going to take it lying down this time round.”
“Roundi hii kutawaka nare” (this time round, there will be real fire), a fiercely loyal supporter of the opposition told me last year. “Ile gwoko ya 2007, itakuwa chai ya saa nne,” (The violence that erupted in 2007 will be likened to ten o’clock tea). Middle-aged and going by the moniker Roger Millah, the Luo man declared, matter-of-factly: “Electoral theft cannot be allowed to continue unchecked; this thing has to be sorted out once and for all.”
For Florence Kanyua, a vocal Bunge la Mwananchi (people’s parliament) activist from Nairobi, there is no mincing of words: “Every Kenyan is hoping for a peaceful election, but a peaceful election does not mean we should not demand justice and when that justice is taken away, we are expected ‘to move on’, just because, apparently, Kenyans love their peace. This time, Kenyans will say no monkey business. The governing coalition has been warned that it cannot steal the election once again and hope to get away with it.”
Kanyua was addressing her fellow Bunge members, who have created their own space at the cross-section of Mama Ngina Street and City Hall Way, right in the CBD centre. Here, the members congregate in the evenings from 6.pm-8.30pm to dissect the day’s political happenings. When we met, she had a special topic she wanted to lecture them on.
“The church does not know what it’s talking about, because it has been overtaken by events. Its peace message is tired and useless — what we need is justice, not peace,” her tenor voice boomed, reverberating beyond the ethnically diverse group of men who surrounded her. “In 2007, when the peace message would have made sense, the church was nowhere to be found or heard; it had compromised itself by taking sides in the politics of the day.”
The result, Kanyua told her crowd, was that the church lost its credibility because it had become partisan. “Kenyans were killed in a church in Burnt Forest in Eldoret — where was the voice of the church when Kenyans needed that voice most? It was nowhere. Why? Because the church became part of the post-election violence. The church ought to know Kenyans are a peaceful people: what they are craving for is justice. The church should not douse us with its peace rhetoric.”
The truth of the matter is Kanyua was not saying anything new. Months after a peace agreement had been ironed out between President Mwai Kibaki and opposition leader Raila Odinga in February 2008, with the help of former United Nations secretary general Kofi Annan, I had a long chat with a Diocesan Catholic priest from the Archdiocese of Nairobi.
Every Kenyan is hoping for a peaceful election, but a peaceful election does not mean we should not demand justice and when that justice is taken away, we are expected ‘to move on’, just because, apparently, Kenyans love their peace. This time, Kenyans will say no monkey business
“Why did the Catholic Church — the largest, most influential and powerful church in the country — fail Kenyans in the 2007-2008 post-election violence?” I asked him. “The church did not fail Kenyans in 2007/8,” said the priest, who spoke to me on condition that what we were discussing was strictly between a parishioner and his confessor. “The post-election violence was the culmination of a church that had ceded its moral authority to the state five years earlier. The church was reaping the fruits of its lack of moral indignation and its overt indulgence of a state that had come to regard the Catholic Church as its ruling partner.”
In the 1990s, the Catholic Church had thrown it weight behind a fledging opposition that was continually harassed by former president Daniel arap Moi. When, in 2003, Mwai Kibaki, the compromise opposition candidate, floored Moi’s protégé Uhuru Kenyatta, the Church celebrated with the new President.
After all, he was a Catholic, “But fundamentally, the then head of the Catholic Church in Kenya, retired Archbishop Ndingi Mwana ’Nzeki, was a friend of Kibaki,” the priest reminded me. “The Church literally went to bed with the state. A criticism of the government was considered to be a criticism of the president himself.”
THE CATHOLIC CHURCH LOOKED THE OTHER WAY
The Catholic Church is very hierarchical, just like the military – you must obey your superiors without question. “Individually, a priest is a mere cog in the institutional, powerful wheel that is the Church. You do not want to mess with it — you can be easily crushed.” The priest told me president Kibaki indulged the Church and did its bidding. In return, the Church unquestioningly looked the other way, as his government took the Church’s support for granted, and engaged in wanton corruption.
“I knew the Church had completely lost its moral compass, when in the lead up to the 2007 general election, our brother priests in Central Kenya openly canvassed for president Kibaki from the pulpit.” The priest told me that some of his fellow priests went beyond their call of duty to invite politicians to politick from the pulpit itself. “The Church had become the state and the state had become the Church.
“Should it shock anyone that when political violence threatened to blanket the country, the Catholic Church did not stand up to be counted?” asked the priest. “The post-election violence aftermath divided the Episcopal Conference of Bishops so much that they never could agree on anything for a long time. The violence had divided the bishops on ethnic fault lines with great bitterness and so too the legion of priests working in the thousands of parishes spread all over Kenya.”
The priest nostalgically told me how he longed for the days when the Church was led by the late Michael Cardinal Maurice Otunga. “Yes, he was conservative, yes, he was pro-establishment — but pro-establishment with checks and balances.” The priest told me even president Moi knew his limits with Cardinal Otunga. “In his reign, as cardinal, he never allowed the Church to be divided along ethnic lines and would never have allowed any politician —including president Moi — anywhere near the Catholic Church pulpit.
“How we miss the pastoral letters penned by the Episcopal Conference of Bishops then: They were direct, powerful and spoke to the heart of the nation. After addressing the nation and the government through the letter, Cardinal Otunga would direct the letter be read and communicated to the Catholics parishes all over the country.”
Two days before Raila and his NASA team went to campaign in Tharaka Nithi County in Meru on June 16, 2017, I visited a printing press on River Road in downtown Nairobi. The press, owned by a Tharaka man, was incidentally printing flags and posters to be used in NASA’s rally. Out of the blue, he said: “Hawa watu wamezoea kuiba kura za Raila, wajaribu tena… kutawaka moto. (These people who are used to stealing Raila’s votes, we dare them to try again….they will be starting a fire).”
THE SPECTRE OF VIOLENCE HAUNTS KENYA
Although I have been conducting my interviews in formal English and Kiswahili and very often in Sheng, not even that lyrical “rebel” language spoken in the ghettos and county council estates of the Eastlands area aptly captures what Kenyan writer Yvonne Owuor calls the third official language of Kenya — the language of silence (after English and Kiswahili). As these “political” realignments in the ghettos of Nairobi take place silently, but openly, in anticipation of an ominous “uncertainty” a spectre could be haunting Kenya — the spectre of violence.
“Uncertainty is not a good experience,” a Kenyan university don told me recently. “Since 2007, uncertainty in the Kenyan political terrain has come to mean a foreboding of violence.” We were having a sumptuous lunch in an exclusive Nairobi club, where the nouveau riche pontificate on the shifting sands of Kenyan politics far from the madding crowd.
The Kikuyus living in the North Rift would be well advised to take leave before August 8. They live there at the mercy of the Kalenjins. They should not wait to be collateral damage
“Let us not us not kid ourselves,” said the professor, who asked that I should not reveal her designation. “After the post-election violence of 2007-2008, our national politics has never been the same again.” The don, a Kikuyu, teaches at Kabianga University in Kericho County. “I timed my 2017 annual leave to fall in the month of August. I am not taking any chances.”
She observed how her boss, a Kalenjin professor, had, with a light touch, teased her about being timid. “I thought now we are on the same side?” She said she laughed about it, but still presented him with her leave form. “It is better to be safe than sorry.”
“I was there when the March 2016 Kericho Senator seat by-election took place,” she explained. “Although it was strictly a family feud, there was an eerie feeling that if matters were to get out of hand, violence would erupt.” Seemingly thinking aloud, she added: “The Kikuyus living in the North Rift would be well advised to take leave before August 8. They live there at the mercy of the Kalenjins, They should not wait to be collateral damage. I mean if things were to go wrong…”
The crux of the matter is that the relationship between the Kikuyus and Kalenjins in the Rift Valley region has always been fragile and frosty. Since the orgy of violence that visited the North Rift after the 2007 general election, the area has remained a powder keg of bottled up emotions.
The International Crisis Group addresses the professor’s fears in its latest report, Kenya’s Rift Valley: Old Wounds, Devolution’s New Anxieties. It quotes a governance expert saying: “The alliance between the Kikuyu and Kalenjin following Jubilee’s 2013 election victory lulled many into believing historical foes were on an ‘irreversible’ course to overcoming animosities. Yet Rift Valley reconciliation remains superficial. What we have is negative peace … calm.”
This false calm seems to have reared its ugly head once again in Eldoret town and its environs. After the shambolic and bruising Jubilee Party nominations in April, the battle for the Uasin Gishu County governor’s seat has boiled down to a fight between the incumbent Jackson Mandago and Zedekiah Bundotich Kiprop alias Buzeki, a middle-aged, lean, bespectacled nouveau riche, who is running on an independent ticket and looks poised to snatch the seat from Mandago.
Feeling the heat from Buzeki, the exiting governor has resorted to the time-tested politics of us versus them in his bid to fend off the younger contestant, invoking the lingo of “aliens amid our people.” Mandago and his allies have been sending a menacing warning to outsiders who must know their place or else… vacate the county forthwith.
The aliens being referred to here are the Kikuyus, who are mostly to be found in Eldoret town itself and in its satellite towns such as Turbo. In Turbo, most Kikuyus are concentrated in Huruma ward, the most populous ward, so much so that the Member of the County Assembly is also a Kikuyu. Ditto Market ward in Eldoret town. It is populated by Kikuyu people, most of whom are traders. Market ward’s MCA is also a Kikuyu.
Why do the Kikuyus in the North Rift find themselves, once again, in the shadow of the valley of death — even though “they are on the same side with the Kalenjins?”
When the violence of 2007/8 erupted in the North Rift, Huruma and Market wards were the most affected. No prizes for guessing why.
In 2014, I travelled to Karatina, a market town about 100 km north of Nairobi, on the Nairobi-Nyeri highway, to meet one Njeri from Nyeri town. Njeri had been one the biggest mitumba (secondhand clothes) traders in Eldoret town. She had lived in the town — to be precise, in Market ward — for 15 years. “I had built my business from scratch. Every Eldoret resident knew me as ‘Njeri wa Mitumba.’ I was successful, I had made it. But then the 2007 general election came and everything all of a sudden went topsy-turvy.”
Between sips of cold White Cap beer at Star Bucks Hotel, Njeri narrated to me how on December 30, 2007, her world came crashing down. “The arsonists specifically went looking for my godown. They bayed for my blood. But before they got me, they torched the godown and my Ksh5 million stock went up in flames.”
What saved her life, she told me, was that her Kalenjin friend called her in the dead of the night and asked her to leave the town immediately. “Don’t take anything — just go.”
How has this old man ever wronged us? If Raila led this country, what would happen? Let him now lead so that there can be fireworks. We the Kipsigis people are tired of the chicanery shown to us by these two thugs , Uhuru and Ruto
“I went back to my folks’ place in Nyeri town, where I grew up, with nothing but the clothes I had on.” Seven years later, she was yet to rebuild her life — not so much in terms of capital to start a new life, but that she had yet to adjust to Nyeri life. “Eldoret had been my home. I went there as a determined young girl ready to sacrifice and work my arse off.”
Njeri told me that when, in 2013 Uhuru Kenyatta and William Ruto teamed up to run for the presidency, she was devastated. “My fellow Kikuyus from Nyeri could not understand me, but then how could they, I had spent my adulthood in the Rift Valley diaspora and that is when it dawned on me that there is a huge difference in how ancestral Kikuyus and diaspora Kikuyus view national politics.”
AN ARMISTICE WRITTEN ON QUICKSAND
As I headed back to Nairobi and she to Nyeri, she stated that political violence will always stalk the Kikuyus in the North Rift. “Have the people who perpetrated the violence ever been punished? The artificial armistice between the Kikuyus and Kalenjins is written on quicksand.”
The rumour in the town is that Buzeki, whose wife is allegedly Kikuyu, will attract the Kikuyu votes – which, if that happens, could be the game changer. The intra-Jubilee Party political squabbles are nowhere near safer for the Kikuyu community in the tumultuous North Rift than they were in the lead up to the December 2007 general election. “We will count the votes Buzeki gets and if he gets 100 votes, then a certain community will have to move out of Eldoret,” Mandago is quoted to have said.
Yet something more sinister allegedly took place in Eldoret that went unannounced. Early in February 2017, when the IEBC opened voter registration centres countrywide, Mungiki youth were purportedly shipped from towns such as Nairobi and Nakuru to register in Eldoret North constituency, Deputy President Ruto’s former constituency. It did not take long for the local community to realise there were “strangers” among them. According to reports, the young men were thrown out of town and the story did not reverberate beyond Eldoret.
All this despite the fact that Deputy President William Ruto, whose International Criminal Court case once threatened to tear up the manuscript on which the Kikuyu-Kalenjin truce was written, has stayed united with President Uhuru Kenyatta.
The International Crisis Group report notes that the “dismissal of Ruto’s case [in April 2016] brought particular relief in Rift Valley, where uncertainty over his fate was beginning to sow division within the governing coalition. Claims Kenyatta was not doing enough to get his Deputy President off the hook fed Kalenjin mistrust, heightening fears of renewal of inter-communal tension.”
Yet, with a section of the Kalenjin nation seemingly throwing its support behind the opposition coalition NASA, it is likely that were violence to start, it would consume Bomet County and the adjoining towns of Kericho and Sotik, says Ali Abkula. Abkula was The National Alliance (TNA) political director in the lead-up to the 2013 general election. TNA is the political vehicle that President Uhuru used to ascend to power.
Bomet County Governor Isaac Ruto in April 2017 joined the NASA Four — Raila Odinga, Stephen Kalonzo Musyoka, Musalia Mudavadi and Moses Wetangula — to form the Pentagon. Ruto is a Kipsigis, the largest and the most populous of the nine Kalenjin sub-tribes. They mostly inhabit the South Rift and for the better part of Jubilee rule, have been complaining of how they have been receiving the short end of the stick from the Jubilee government, even after voting for the coalition en masse in 2013.
On the weekend of June 17-18, Ruto addressed a rally in Nakuru town and hit out at both President Uhuru and his Deputy William Ruto (no relation). Reminding them that the country does not belong to two tribes — the Kalenjins and Kikuyus — he accused them of sending the country down the drain. He told the crowd what the electorate wanted was justice and not war. “Sisi hatutaki vita….tunataka kupiga kura kwa amani ndio tupate haki… wasitutishe. (We do not want war…what we want is to vote peacefully and get justice…we will not be threatened).”
Among the Kikuyu speakers, an eight-minute video clip has been making the rounds through the social media, warning them of relinquishing power to the opposition
The community’s beef with the senior Ruto, the Deputy President, who himself is a Kipsigis, but grew up among the Nandis of Eldoret after his parents migrated north in the late 1960s, is that he dished out all the plum state jobs to the Nandis and neglected to fulfil the development promises he lured them with.
An elderly Kipsigis man, having tea in a kibanda (roadside shack) in Kericho town in early June, got into an argument with fellow tea customers about the forthcoming elections. In a fit of anger and fury, he stood up and said: “Saa yote huyu mzee…. Saa yote huyu mzee… Huyu mzee ametukosea nini? Kwani Raila akiongoza itakuwa nini? Wacha sasa aongoze moto iwake. Sisi Kipsigis tumechoka na uongo wa hawa majambazi wawili (Every time this old man….Every time this old man. How has this old man ever wronged us? If Raila led this country, what would happen? Let him now lead so that there can be fireworks. We the Kipsigis people are tired of the chicanery shown to us by these two thugs (Uhuru and Ruto).”
Determined to slice off a chunk of the huge Kalenjin consolidated vote, Governor Ruto has stoked real fear in the heart of the Jubilee coalition. “Sometime early this year, the Kipsigis elders met and gave the Governor the go-ahead to form an alliance with the opposition NASA,” an elder from the community said to me.
On June 17, Emurua Dikirr outgoing MP Jonathan Ng’eno was in Narok North attending a funeral service. Looking visibly agitated he asked the congregation: “Kwani tukipigia Raila kura tutakufa? (If we choose to vote for Raila, are we going to die?)”
“The intransigency and the digging in by both Jubilee Party and NASA is ominous,” says Ali. “It does not augur well for the country. Like in the 2007 general election, the August 8 election involves the unseating of an incumbent.” Such a scenario, he says, is always fraught with overtones of political violence.
On the same day Ng’eno was telling his constituency they could vote for the opposition leader Raila Odinga, Raila himself was telling the Maasai people in Kajiado County to not dispose of their land hastily. The comment was quickly hijacked by Jubilee Party aficionados who used this remark to paint Raila as a warmonger. No sooner had Raila finished uttering those words than leaflets were already in circulation in the county.
“We woke up the following day to find leaflets strewn everywhere and pinned on electricity poles saying that ‘foreigners’ such as Kikuyus and Kisiis should vacate Kajiado,” said Mzee Kanjory who lives in Corner Baridi. Mzee Kanjory said that many of the leaflets were dropped off in the Pipeline area. Pipeline is the stretch between Isinya and Kiserian towns.
“This area is really cosmopolitan; Kikuyus, Kisiis, Luhyas, Luos, Maasais all have invested in this area,” said Mzee Kanjory. “It would be a good starting place to foment ethnic tension in Kajiado County.” If violence were to occur in Kajiado, the Mzee assured me, it would be brutal and genocidal.
“This is a county that has been harbouring festering wounds for a long time among the local Maasai people, who, even though they sold their land on a willing-buyer willing-seller basis, still feel they were cheated. It would only take a small trigger to ignite an inferno.”
The forthcoming general election, which is already showing signs of being the hottest contested ever, has put Kenyans on edge. Among the Kikuyu speakers, an eight-minute video clip has been making the rounds through the social media, warning them of relinquishing power to the opposition. Entitled Mt Kenya Group — Ngai Emwena Witu — “God is on our side,” the video is a montage of Kikuyu popular songs carefully selected to evoke ethnic passions, as well as to create a siege mentality among the larger Kikuyu community.
The lyrics disguised as a clarion credo to rally The House of Mumbi — a catchphrase used by ethnic bigots to evoke a sense of emotional oneness among the Kikuyu nation — are a subtle call to arms if the opposition NASA coalition were to wrest power from the Kikuyu.
CALING ALL KIKUYUS
Calling all Kikuyus, wherever they are, to vote for President Uhuru Kenyatta, the jingoism expressed in the amateur production is frighteningly unabashed and unapologetic in its war cry: “We must protect Uthamaki (political king) at all costs. We must stop the opposition from capturing power by all means. We will not accept to be defeated, because defeat does not exist in our lexicon. Therefore, the House of Mumbi cannot be defeated.”
In a bizarre request to the Inspector General of Police Joseph Boinnet, the Kiambu County governor seat candidate and Kabete MP Ferdinand Waititu asked him to deploy only Kikuyu police officers to the county. “The deployment is the only way our people will effectively communicate to the police and therefore boost security,” said Waititu on June 29.
With a fidgety ruling coalition seemingly under siege from a resurgent opposition, determined to snatch power from a faltering coalition — but one with immense powers of incumbency — we could be headed for a civil war if the election is not properly conducted.
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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