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UNHOLY TRINITY: Church, Tribe and Politics in Kenya

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Kenya 2017 coming soon

On 31 July 2017, the day that Chris Msando’s body was found at the city mortuary, I was on the eighth floor of the Cardinal Otunga Plaza in the middle of Nairobi’s central business district. The floor houses the office of Cardinal John Njue, the head of the Catholic Church in Kenya. I was there to discuss peace and justice issues that the church had been conveying to the country in the lead-up to the 8 August 2017 general election.

I had squeezed in a meeting with his personal secretary, Fr. Calistus Nyangilo, who informed me that the body of the Independent Electoral and Boundaries Commission (IEBC)’s acting ICT manager had been located. “Actually I was with his eminence when the report came through,” Fr. Nyangilo told me. “This is bad for peaceful elections,” Cardinal Njue had told him.

First, a word about Chris Msando. I had met Msando about two months ago at a workshop that had sought his audience to explain the IEBC’s election preparedness to a group of journalists, election specialists and observers. He spoke last. For 45 minutes, Msando took us through what he considered to be a water-tight technological schedule to curb electoral malpractices.

Throughout his stay at the workshop, he took notes, but when he stood to speak, he spoke off the cuff, without a script. He was confident, eloquent and knew his subject matter very well. He had his facts on his fingertips. Another 30 minutes was spent answering inquisitive and tough questions from the participants. At the end of our engagement, many of us gave the IEBC the benefit of the doubt. Initially, we were sceptical about the IEBC’s prep work, but Msando reassured us.

“I want to debunk the myth that the Catholic Church has not been preaching about both peace and justice,” said Fr. Nyangilo. “Maybe the messaging could be wrongly worded, but the church has been adamant that peace and justice are a prerequisite for a credible and just election.” Shooting from the hip, I had begun by asking the Cardinal’s personal secretary why the church seemed to be concerned more about peace, as opposed to justice, or even a credible election.

Sometime in June 2017, lawyer Charles Kanjama, addressed the Catholic church’s top clergy and told them that the church had been sourly “divided in half” during the 2007 general election ethnic flare-up. The one-on-one discussion took place at the Queens of Apostle Seminary in Nairobi, situated off Langata Road. Because of this division, the church could not speak in one voice. It had been deflated and had lost its legitimacy, and could, therefore, not be trusted by its laity or even by the rest of Kenyans.

On 27 July 2017, the Kenya Conference of Catholic Bishops (KCCB) had issued a pastoral letter titled “Seeking Peace and Prosperity” that quoted from the Book of Jeremiah 29:7. Said the letter in part: “The clarion call has been to have Just, Fair, Peaceful and Credible Elections.”

But the pastoral letter was a far cry from the homily and punchy letters that the Catholic church had issued in the past. The letter, just a two-page affair and signed by Rt. Rev Philip Anyolo, the Bishop of Homa Bay and the chairman of KCCB, is nothing more than an exhortation by the Catholic church’s top clergy to the Kenyan people: “We are calling upon all Kenyans to seize this opportunity to exercise our constitutional right and give us leaders of integrity.” The letter ends by “beseeching God to take charge of the whole process of elections.” Then the letter signs off by calling for peace…peace…peace.

That the Catholic church – the biggest and most influential and powerful of the Christian denominations in Kenya – has lost its legitimacy and trust among Kenyans has been a public secret since the botched general election of 2007. Indeed Fr. Nyangilo himself told me as much. “The church has been trying to reclaim its trust – and it takes a long time. That election divided the clergy and it was one of the lowest moments of the church and it has not been easy.”

Since the post-election violence of 2007–2008 that almost tore the fabric that had held the country together since independence in 1963, the Catholic church has been hoping to exorcise the ghost of disunity and division that threw the church off balance. “I will be honest with you, it has been both an individual and collective struggle to reclaim the unity of the church,” said Fr. Nyangilo. He told me that the Archdiocese Justice and Peace Committee had deployed some of its members to talk about justice and peace around the country among the Catholic laity, albeit away from the limelight of the mass media.

Why is the Catholic Church not broadcasting its powerful message loud and clear?

Sometime in June 2017, lawyer Charles Kanjama, addressed the Catholic church’s top clergy and told them that the church had been sourly “divided in half” during the 2007 general election ethnic flare-up. The one-on-one discussion took place at the Queens of Apostle Seminary in Nairobi, situated off Langata Road. Because of this division, the church could not speak in one voice. It had been deflated and had lost its legitimacy, and could, therefore, not be trusted by its laity or even by the rest of Kenyans.

The antagonism between some of the bishops has been palpable. So bad has been the ethnic and political division among the Catholic clergy that an Archdiocese of Nairobi priest, who asked me not to reveal his name for fear of retribution, told me point blank, “I do not recognise Cardinal Njue as my spiritual head.”

The apex of the Catholic church’s ethnic division peaked when a Catholic priest was killed during the 2007-2008 post-election flare up. Fr. Michael Kamau was a priest who hailed from Nakuru diocese but taught at Tindinyo Seminary in Bungoma. On 30 December 2007 or thereabouts, he drove from Tindinyo heading to Nairobi. He was coming to pick a fellow priest who had been seconded to teach at the same seminary. He was excited and happy since the priest he was going to pick was to teach the same subject he was teaching.

On reaching Nakuru, Fr. Kamau, aware that taking the Nairobi-Nakuru highway was risky, took the Kabarnet-Mogotio road leading to Mogotio town. Mogotio was an area that he was familiar with because he had worked there as a parish priest. He, therefore, knew the residents well. But little did he know what lay ahead of him. He was stopped by marauding youth, who, upon realising that he was a Kikuyu, killed him on the spot.

“Father Kamau was killed in the area he had worked as a priest,” a priest from Mitume parish in Kitale, who knew him well, would later tell me. “The people who killed him knew him and they killed him because he was a Kikuyu,” said the priest when we met in Nairobi. Consumed with anger and bitterness, my priest friend told me: “We must avenge the death of Father Kamau…the Kalenjins killed one of our own. We must get our justice.”

Justice has been a difficult subject for the Catholic church’s clergy since 2008. Itself wrought by ethnic division, the church could not purport to talk about justice, even among its laity, when in 2008 its clergy lost all pretense of being united by the Catholic creed.

Otieno Ombok, a staunch Catholic and a peace expert who sits on the board of the Archdiocese of Nairobi Justice and Peace Committee, admitted to me that the Catholic Church completely lost it in 2008. “For a long time after the 2007–2008 debacle, brother priests from warring ethnic communities could not talk to each other,” said Ombok. “The conference of bishops was worse: it was a diametrically divided house.” He added that the senior bishops – “and you know who I am talking about” – could not even sit and share a meal for the longest time.

The antagonism between some of the bishops has been palpable. So bad has been the ethnic and political division among the Catholic clergy that an Archdiocese of Nairobi priest, who asked me not to reveal his name for fear of retribution, told me point blank, “I do not recognise Cardinal Njue as my spiritual head.” The Cardinal, he said, ruined the church when he openly sided with Party of National Unity (PNU). (PNU is the vehicle that former President Mwai Kibaki used to seek re-election in 2007.) “As the head of the Catholic Church, his titular role is to steer clear from partisan politics,” he added. “Yes, the Cardinal is entitled to his personal political opinion, but he should not make it public, or be seen to openly associate with a political figurehead or a political party for that matter.”

The truth of the matter is that ethnic division is not only a preserve of the Catholic church; all the mainstream churches in Kenya today are a reflection of political/ethnic division. During former President Moi’s time, the African Inland Church (AIC) was openly identified as both a “Kanu and Kalenjin church”, so much so that its then head, Bishop Silas Yego, openly associated with Moi, and occasionally even attended some Kanu meetings.

The Cardinal’s predecessor, Cardinal Maurice Otunga, said the priest, was pro-establishment, no doubt, but the one thing he never did was to openly and tacitly side with President Moi and his Kanu party. “Today, every Catholic, every Kenyan knows Cardinal Njue is pro-establishment, he is pro-Jubilee. His role in the lead-up to the 2007 elections was obvious for everybody to witness.”

The renegade priest reminded me that the reason why the Catholic church is limping in this electioneering period is simply because it cannot pretend to moralise to anyone; its leadership is punctured and there is little trust among the college of bishops. “The feeble peace messages sugar-coated with weak justice expressions is simply because the church’s head is interested in maintaining the current political status quo. When the conference of bishops comes together to issue a pastoral letter – like they did on 27 July 2017 – it was to give the impression that they are united and are speaking in one voice, but all that is a PR stunt.”

Yet, while the church that has been struggling to reclaim its power and glory, it has also been readying itself for any post-8 August 2017 election eventuality. In the last month, the conference of bishops has been inviting “election experts” at its Waumini House offices in Nairobi to help it think through the probable scenarios in the lead-up to and after the elections.

In one of these sessions, a facilitator presented the following four possible scenarios:

Scenario 1: Good elections – that will be credible and peaceful. The victor and the loser will both accept the results. Therefore, the transition of power will be smooth.

Scenario 2: Good elections – that will be credible, but that will result in violence because the loser – even after losing fairly – will not concede defeat, hence will not agree to hand over power.

Scenario 3: Bad elections – but “peaceful” because the might of the security apparatus that will be deployed massively will force a false peace. The people will be coerced to accept bad results – leading to a “negative peace”. (Otherwise called the Ugandan peace scenario.)

Scenario 4: Bad elections – that will result in an explosion of violence, even with the presence of the mighty security apparatus. Anarchy will reign supreme.

The in-house discourses that the KCCB has been holding with various experts are ostensibly to help it craft appropriate messages to Kenyans, as well as to prepare itself for the best of times and the worst times. “That notwithstanding, the Catholic church clergy can craft a theology of justice – if it wanted to,” said Ombok. “It doesn’t have to wait for experts to tell it what to do.” Ombok said a larger part of the problem is that the church’s leadership sits comfortably with the state, therefore implicitly, it is pro-establishment.

The truth of the matter is that ethnic division is not only a preserve of the Catholic church; all the mainstream churches in Kenya today are a reflection of political/ethnic division. During former President Moi’s time, the African Inland Church (AIC) was openly identified as both a “Kanu and Kalenjin church”, so much so that its then head, Bishop Silas Yego, openly associated with Moi, and occasionally even attended some Kanu meetings. Yego even helped Moi fend off criticism from the National Council of Churches of Kenya (NCCK), the umbrella body that brings all the Protestant churches together. After the introduction of political pluralism in 1991, Yego instigated a breakaway group of evangelical churches that accused NCCK of being a political outfit. (NCCK had been on the frontline of exposing Moi’s excesses and in urging him to open up the political space for multiparty politics to thrive.)

Interestingly, NCCK today is a pale shadow of what it was in the 1980s and 1990s when it openly challenged the Moi regime. Today, under the leadership of Rev. Peter Karanja, it has all but gone quiet. Rev. Karanja, although an eloquent church minister, is apparently a victim of the 2007–2008 post-election violence that saw a large section of the non-Kikuyu Anglican laity view him as an apologist for a “Kikuyu state”.

In 2007, the PCEA church leadership openly took sides in the politics of the day. It drummed up support for President Mwai Kibaki and the PNU party. Its adherents, many of them from the ethnic Kikuyu community, tended to conflate their church creed with Kikuyu political leadership.

The Presbyterian Church of East Africa (PCEA), from its inception in Kenya in the early 20th century, when the missionaries first set foot in the central Kenya areas of Tumu Tumu in Nyeri and Thogoto in Kiambu, has always been associated with Kikuyu nationalist apologists. A Maasai evangelical pastor once told me that after the Scottish PCEA missionaries had gone, the Kikuyu church leadership that was left behind sought to Kikuyu-ise the church. “When the PCEA church came to evangelise in Maasailand, for example, many of the Maasai children’s names would be turned into Kikuyu-sounding names; others would be given outright Kikuyu names – all in the name of receiving baptismal names.”

In 2007, the PCEA church leadership openly took sides in the politics of the day. It drummed up support for President Mwai Kibaki and the PNU party. Its adherents, many of them from the ethnic Kikuyu community, tended to conflate their church creed with Kikuyu political leadership. When violence erupted in the North Rift, where the church has a great following among the Kikuyus, the church leadership allegedly funded retaliatory attacks.

This is not to say individual PCEA ministers have not opposed the church’s apparent contradictions and paradoxes. Timothy Njoya, now a retired PCEA reverend – though he still preaches at his favourite PCEA church in Kinoo in Kiambu County – fought epic battles within the church and with the state. These battles are acknowledged nationally and globally.

The recent death of Reverend John Gatu in May 2017, a one-time moderator of the PCEA church in Kenya and a good friend of Rev. Njoya, reminds us of the battles he also waged against the state during Jomo Kenyatta’s time. In his biography Fan the Flame, he chronicles how he opposed the 1969 Gatundu oathings and the threats that were levied against him. Njoya remembers Gatu as a church minister, who like himself, fought for justice everywhere and for everyone.

“To the various church establishments, the preaching of peace, and not justice, means that they are only interested in maintaining their own status quo and that of the government of the day,” says Ombok. “It is the way the church has been socialised, since the missionaries’ activities coincided with those of the colonial masters.”

“The peace narrative in the slums is a euphemism for veiled threats and subtle intimidation, coupled with scriptural menacing carefully selected by the quasi-messianic and self-styled pastors, who are just out to eke a living.” Faced with the daily vicissitudes of slum life, the social worker told me, the peace message, when constantly drummed, can easily influence those who are constantly being reminded that “a demand for justice is tantamount to a demand for violence.” The implicit message being passed on is: between peace and “violence” what would you rather have?

Six months to the 2007 general election, a motley group of evangelical/revivalist churches’ leadership came together under the auspices of the House of Bishops. They agreed to speak publicly on the critical issues that would ensure a smooth election that year. The issues included accountability, credibility, fairness, justice, transparency and, well, of course, a peaceful election, among other things.

But unbeknownst to some of the bishops, a splinter group went to the State House and reportedly met President Kibaki. “After the ‘clandestine’ State House meeting, our friends’ demeanour and all the issues we had said we would champion and vocalise changed overnight,” a bishop who was part of the House of Bishops coming together confided in me.

Apparently, the group that had been left behind came to learn that there had been greasing of palms, but more fundamentally, the group that had gone to eat ugali (eating ugali in Kenyan political parlance has come to mean going to State House to be bribed) all belonged to one ethnic community. “There are no prizes for guessing from which community the group of bishops who had gone to see the president came from,” the bishop, who sought anonymity, told me. That is the same group that insisted that the important thing was the country to remain peaceful.

“In the slums of Nairobi and its environs, it is these evangelical/Pentecostal/revivalist churches that are now being used to spread this false message of peace,” said a social worker with a community-based organisation in Kibera, an informal settlement that was the site of much violence in 2007-2008. “My hunch is that they have been given money by the Jubilee Party to cause ‘fear and despondency’, even as they claim to advocate for peace,” said the social worker, who because of the nature of his work, asked that his identity be concealed.

“Life in the slums is always tenuous, people live on the edge all the time – but in peace. When you begin talking about keeping the peace and being peaceful, you inadvertently create doubt in people and the ‘peace’ that is being preached acquires a different meaning,” said the social worker. “The peace narrative in the slums is a euphemism for veiled threats and subtle intimidation, coupled with scriptural menacing carefully selected by the quasi-messianic and self-styled pastors, who are just out to eke a living.”

Faced with the daily vicissitudes of slum life, the social worker told me, the peace message, when constantly drummed, can easily influence people who are constantly being reminded that “a demand for justice is tantamount to a demand for violence.” The implicit message being passed on is: between peace and “violence” what would you rather have?

I found this to be true when I spoke to a middle-aged father of three in Lakisama estate, which neighbours Mathare North, another low-income area in Nairobi. “What we want is peaceful elections – not violence.” Violence here is interpreted to mean disruption of the daily and natural order of life. “Elections will always be stolen. So long as they let us (voters) be, there’s no problem. In any case, leaders are chosen by God not man – that is what the Bible says.”

A more nuanced message that the peace narrative is not talking about – yet that is being hinted covertly – is the notion that a nation’s leader is picked by God. It does not matter whether the leader in question coerces, kills, maims, rigs or steals to remain in power.

Thus, the peace narrative’s other purpose is the normalisation of electoral malpractices, which people should just “accept and move on.”

A more nuanced message that the peace narrative is not talking about – yet that is being hinted covertly – is the notion that a nation’s leader is picked by God. It does not matter whether the leader in question coerces, kills, maims, rigs or steals to remain in power. For the religionists and Christian Right, the end justifies the means. And that is why the peace narrative is largely being drummed by evangelicals – quasi “criminal” men and women – who themselves were “chosen” by God to preach to the people. These kind of pastors litter the slums, where they have converted semi-permanent iron sheets structures into Christ’s tabernacles.

A self-respecting mother of two from Kiamunyi estate in Nakuru told me that a country’s president is ordained by God. “The language of justice, which translates into violence and opposition politics, cannot be equated to the language of peace – which is all embracing and Godly. God is telling us to be peaceful and he is the one who will give us a president.”

Nobody captured the contradictions of the Kenyan church better than my friend Fr. Carole Houle, an American Maryknoll priest and an anthropologist by training who is now resident in the United States. Before retiring, he was the Superior General of the Maryknoll Fathers in East and Central Africa. I got to know Fr. Houle after he came to Kenya from Tanzania, where his congregation had headed the Musoma diocese for close to 25 years, and where he had also forged close ties with the late Tanzanian president, Mwalimu Julius Nyerere.

“When I came to Kenya,” recalled Fr. Houle, “I found a Catholic church that was highly ethnicised. The priests coalesced around their ethnic identities and so did the laity.” Even in those early days of the 1990s, he could foresee that this was a recipe for disaster, especially for a fragile nation-state like Kenya. “Depending on the occasion, my Catholic friends and priests alike were Catholic first, Kenyan second, and their ethnic identities third.”

This would be the order of their identity priority when in the church precincts, but immediately after the parishioners stepped out of the church, the order would be re-organised. “They would assume their ethnicity identity as their first priority, they would be Catholics second and Kenyans third.” These identities, he observed, could shift effortlessly.

A self-respecting mother of two from Kiamunyi estate in Nakuru told me that a country’s president is ordained by God. “The language of justice, which translates into violence and opposition politics, cannot be equated to the language of peace – which is all embracing and Godly. God is telling us to be peaceful and he is the one who will give us a president.”

“Peace is an important ingredient of the electioneering process,” says Ombok, “but not at the expense of justice. Kenyans are a peaceful lot – it is an oxymoron to ask Kenyans to keep the peace. What Kenyans are demanding for is justice.”

Ombok has been working with Ghetto Radio to spread the message of peace during this electioneering period. His programme is supported by the International Republican Institute (IRI), which also supported peace caravans around Nairobi County in 2013. “Our peace messages are an exhortation to the youth – many of whom listen to Ghetto Radio – not to allow themselves to be (mis)used by politicians from across the political divide to cause mayhem in the campaign period.”

It is not only the church has that been struggling to peddle a peace message that Kenyans are interpreting as lullabies to lull them into “accept and move on” once more. A captain of the insurance industry who is also a member of the Kenya Private Sector Alliance (KEPSA) recently told me, “All what KEPSA is doing – pretending to preach peace – is to hope the status quo can remain and to pray for the best.”

“But I will tell you this, the KEPSA leadership is living in a bubble,” said the insurance guru, who asked me to conceal his name so as not to antagonise his company and the KEPSA fraternity. “It is disingenuous for the KEPSA leadership to purport to preach peace instead of calling for credible elections.” The private sector, the captain confided, is undergoing its greatest test ever, “all because of the Jubilee coalition’s ineptitude and grand looting.”

“I think there is going to be violence,’ he predicted. “Nobody is buying this false narrative of peace and remaining calm.” He said his Asian colleagues were closing shop a week before the elections, travelling abroad, from where they will monitor the unfolding events. “If all turns out well, we will be back in business by 15 August,” his colleagues had told him.

“As the country is being inundated with peace messages, drums of war are being beaten in certain sections of the country,” said a lawyer friend who has been doing litigation work in Eldoret. “I have been in the North Rift for the better part of July and I can tell you the voters there are being militarised as if being prepped for battle.”

The lawyer, whose clients include both Jubilee Party and NASA coalition candidates, said he had also been in Baringo County for two weeks and what he witnessed there left him with no doubt that the clarion calls for peace was a diversionary tactic of the Jubilee Party. “Songs of war, talk of defending our birthright, people being asked to protect their leaders – by all means, by any means necessary. This is what is happening in William Ruto’s key fanatical support zones,” said the lawyer.

Drinking copious mugs of tea in a Nairobi restaurant, the lawyer said he had an eerie feeling of the calm before a storm when he was up in Eldoret and Baringo County. “I was on my tenterhooks all the time I was in Kabartonjo and Kabarnet…the Kalenjins have sworn not to let power slip through their hands. I am not sure about anything anymore.” He said that when he was in Bomet and Kericho he felt more relaxed.

In spite of the peace messages ostensibly being broadcast all over Nairobi and central Kenya, many of President Uhuru Kenyatta’s fanatical supporters are speaking a different language: a combative language of not ceding ground. “If we are not going to have ‘peaceful’ (read going our way by hook or crook) elections, then let Uhuru unleash the military might on these people (these people being anybody opposed to the leadership of the Kikuyu hegemonists),” said an Uhuru supporter from Kiambu County.

In the opposition turfs, the peace messages are being interpreted to mean: this time around, we are not falling for your (President Uhuru’s) ruse – of accept and move on. “If President Uhuru tampers with the election results, we are not going to court, we will burn the country,” my ghetto friends from Huruma have vowed. “We are ready…for any possible eventuality.”

A couple of day ago, a gangland youth leader from Kariobangi North was addressing his gang members of about a hundred young men. “This time ni kufa kupona, Jakom anawahi uprezo na lazima tumwapishe.” (This time round, it will be a matter of life and death, the chairman – Raila Odinga – will win the presidency and we are going to swear him in). “Ounye anataka kumwaga amiero, lakini pia yeye ajua tuko chonjo.” (Uhuru is planning to unleash the army on us, but he should know even us we are prepared).

The gangland youth was congregating a stone’s throw away from the Holy Trinity Catholic Church. The peace narrative, it seems, may just turn out (this time around) to be just that: a once-upon-a-time narrative.

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ALL THE PRESIDENT’S MEN: Uhuru Kenyatta’s proposed Cabinet raises serious constitutional and legal questions

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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[1] 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.[2]

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.

 

[1] Marilyn Muthoni Kamuru & 2 others v Attorney General & another [2016] eKLR http://kenyalaw.org/caselaw/cases/view/129670/

[2] 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.

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(D)EVOLVED HEALTHCARE: Makueni’s trailblazing experiment in providing universal health coverage

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(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.

LISTENBehind the Makueni Healthcare Revolution

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.

Challenges

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.

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POT CALLING THE KETTLE BLACK? France’s shady deals in Africa

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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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