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KENYA ON TRIAL: Truth, Justice and the Supreme Court

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Waiting to exhale

Confronted on his excesses, abuses and disregard of rights of the people of France, Louis XVI responded, “L etat c’est moi”, “I am the State”. That was in 1715. Louis was tried by the people and executed. Four centuries later, Zaire’s Mobutu Seseko repeated Louis’ “royal liturgy” to a French journalist. Mobutu went further; he pronounced himself God. Mobutu fled and died in exile.

Entitlement is a malaise that afflicts absolute rulers. It thrives where law is what the ruler decrees it is; not the people, through their Courts. Where the peoples’ sovereign franchise prevails, and truth, justice and the rule of law governs the affairs of man, there is tranquility.

World attention today focuses on the Supreme Court of Kenya. The Court will, for the second time in a row, hear and rule on whether President Uhuru Kenyatta was validly elected for a second term. Just as in 2013, the suitor is former Prime Minister Raila Amolo Odinga. Raila says he has “given the Court a second chance to redeem itself.”

On 13th August, Raila protested the declaration of Uhuru as winner, accusing the Independent Electoral and Boundaries Commission (IEBC) of subverting the will of the people, not once, but for the third consecutive time and substituting it with the dictate of a minority ruling elite.

Having initially vowed not to contest it in Court, but rather through other means, he claims that a crackdown on human rights organizations expected to do that necessitated the change of tact.

What is Raila’s case? How did Kenya end up here? Is there cause for concern or alarm on the Court? Will the Court decide otherwise than before and with what consequences?

Case summary

The petition claims that “the Presidential Election was so badly conducted and marred with irregularities that it does not matter who won or was declared as the winner of the Presidential Election…Instead of giving effect to the sovereign will of the Kenyan people, the IEBC delivered preconceived and predetermined computer generated leaders.”

The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).

Whereas people voted, the IEBC did not count and tally the results. It adopted Joseph Stalin’s principle, “It is enough that the people know there was an election. The people who cast the votes decide nothing. The people who count the votes decide everything.”

Evidence in support of the case is contained in a voluminous record of over 25,000 pages. The evidence supports 12 main issues.

The IEBC is accused of interfering with the Kenya Integrated Elections Management System (KIEMS) and unilaterally disbanding the Elections Technology Advisory Committee (ETAC).

KIEMS is a single unit electronic platform. It was intended to ensure that voters are biometrically identified, and polling results transmitted and declared in a simple, accurate, verifiable, secure, accountable and transparent manner. These tenets of a free and fair election are anchored in the Constitution and the 2017 amendments to the Elections Act.

It is alleged that the IEBC had, through a proxy, sought to declare unconstitutional the law that requires biometric voter identification and electronic transmission of results from polling stations to the Constituency Tallying Center and the National Tallying Center. The case was filed by a third party against the IEBC but through a lawyer who is on the advisory panel of the IEBC.

Though not determined at the time of the elections, Raila believes that the case was filed with the connivance of the IEBC to sabotage the integrated, electronic electoral management system. He claims that the manipulation of the system resulted in a permanent pre-set 11% margin between him and Uhuru. It is Raila’s position that the outcome of the case would, as did the manipulation of the system, countermand the requirement for finality of results declared at 290 Constituencies established under the Constitution.

The finality of Constituency results was affirmed by the Court of Appeal. It would remove the risk of rigging at the National Tallying Center as recommended by Judge Johann Kriegler in his report following the disputed 2007 elections.

The ETAC’s function was to advise on adoption and implementation of election technology. It entailed the participation of stakeholders, in this case, candidates and political parties in the elections. In a Judgement made on 15th June, 2017, the High Court held that the requirement for a professional audit of the voter register 6 months before the election was overtaken by events. The Court further declared unconstitutional, the law establishing ETAC.

It is Raila’s complaint that being a stakeholder he ought to have been notified of the proceedings leading to the disbandment of the ETAC and that the IEBC intentionally failed to defend the case properly. As a result, the disbandment compromised the transparency of IEBC’s preparation for the elections. The IEBC then monopolized the management of the electronic voter system to the exclusion of other players. This, it is claimed, enabled manipulation in the transmission of results that could not be independently verified.

The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation.

Raila claims that 2 days to the elections, the IEBC designated 11,000 polling stations outside 3-4 G network coverage. There was not sufficient notice or time for Raila to appoint his agents in those stations. Results from those stations account for over 7.7 million votes and cannot be verified in the manner prescribed by law and intended by KIEMS.

The IEBC is also accused of intentionally supplementing its server on a private cloud. The decision was made contrary to advice from the Communications Authority of Kenya. KIEMS became vulnerable to intrusion and manipulation. The murder of IEBC’s ICT Manager Chris Msando a few days to the election is claimed to have been planned. His password or information obtained from him were used to infiltrate KIEMS, create and relay computer generated results.

Uhuru is accused of unduly influencing and inducing voters with 2007/2008 post-election reparation payments, hurriedly launched projects and advertisement of his administration’s achievements. He is said to have intimidated voters in his campaigns with military deployments and outright threats on public servants. A widely publicized incident in Makueni where Chiefs were threatened is cited. Uhuru is alleged to have used state resources and State Officers, in particular Cabinet Secretaries, to actively solicit for votes contrary to law.

Raila’s agents are also said to have been ejected from polling stations in Central Kenya and Rift Valley. It is claimed that they were replaced by those procured by Uhuru’s Jubilee Party. Massive manipulation of results is claimed to have ensued as a result.

KIEMS was designed to transmit results from polling stations to the Constituency and the National Tallying Centers simultaneously with electronic images of Forms 34As. It would also enable electronic transmission of final results from the Constituency level to the National Tallying Center. Form 34A is the official declaration at the polling stations whilst Form 34B is for the Constituency declaration.

However, provisional results are alleged to have been transmitted from polling stations to the National Tallying Center, bypassing the Constituency Tallying Centers. The results were not accompanied by Forms 34A and 34B. The results were said to be provisional, again, in disregard of the Court of Appeal decision. 10,000 stations with 5 million votes were affected. The complaint by Raila is that this was a precursor to the rigging of the election in favour of Uhuru.

Further, the petition claims that scrutiny of spoilt and rejected votes would reveal that nearly 400,000 votes were deducted from Raila and added to Uhuru. It is alleged that the manipulation and doctoring of Forms 34A and 34B means another 7 million votes cannot be authenticated.

Raila states that the declaration of a winner was made prematurely in the absence of 11,883 supporting Forms 34A and 187 Forms 34B. 3.5 million votes are affected. He also wants the Supreme Court to go against the precedent it set in 2013 and have rejected votes, this time numbering 477,196 or 2.6% of votes cast, considered when ascertaining whether the Constitutional threshold of 50% plus 1 has been crossed.

The great trek

Kenya gained internal self-rule and political independence from the then British Empire 5 decades ago. The Union Jack quickly came down. The Kenyan flag was hoisted. Jomo Kenyatta was appointed Prime Minister by the colonial Governor-General and one year later declared President by parliament. The Lancaster Constitution did not provide a term limit for the Presidency. The leader of the dominant political party was appointed President by acclamation in periodic parliamentary elections, whose occurrence he controlled. Kenyatta being the leader of the Kenya National African National Union (KANU) party would rule for life, for 15 years. Kenyatta was succeeded by Daniel Arap Moi. Moi ruled for 24 years; 14 for life and 10 on a 5 year term.

In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda.

The British had an elaborate law for periodic election of their Prime Minister back at home. They saw no need for the same in Kenya, or any of their former colonies which did not have established political systems in place. With the exception of India, which embraced democratic rule at inception, former British colonies suffered absolute leadership until after the collapse of the Soviet Union and the second liberation in the 1990s.

In the intervening period, a change in government in the Commonwealth was effected in two ways only; a coup or the natural or unnatural death of the President. Determinations by Courts on the legitimacy of the regimes were unheard of.

In Uganda, Judges declared unconstitutional the government of Idi Amin upon the overthrow of Milton Obote. They were killed on the same day. Whitehall often supported similar governments in the entire Commonwealth. Without periodic elections, there was no precedent for a Presidential Election Petition.

The clamor for change saw to the re-introduction of multi-party politics in 1992. Moi won the Presidential Election despite a determined opposition wave. A Petition by Kenneth Matiba was dismissed by the High Court and Court of Appeal without a hearing. The requirement for personal service upon Moi and signature of the Petition by Matiba, who could not because he was ill, were technical considerations relied upon by the Courts. A petition by Mwai Kibaki upon Moi’s re-election in 1997 suffered the same fate. The Courts had no semblance of independence. The President controlled the Courts. A Petition against his election was doomed to fail.

The 2003 election of Kibaki was not challenged in Court; it was not even disputed. Kibaki had defeated Uhuru with a landslide victory. Uhuru had largely been viewed as Moi’s project. The people had resolved to overrule Moi’s prophesy that the independence party, KANU, would rule Kenya for 100 years.

Kibaki’s re-election in 2007 was highly disputed. It is widely believed to have been stolen from Raila. Raila did not go to the Courts as they were controlled by the President. The post-election violence that ensued resulted in the unhappy marriage between Kibaki and Raila. One outstanding achievement of the Grand Coalition Government was the promulgation of the 2010 Constitution. An elaborate process for the period election of the President and determination of a dispute arising from the election was put in place. The Supreme Court was created specifically for this function, with a minimum of 5 and maximum of 7 Judges as quorum.

In the aftermath, radical changes in the Judiciary sent packing Court of Appeal Judges who presided over the Petitions by Matiba and Kibaki. This was a pointer to the Supreme Court that the issue of election of the President was not that simplistic and legalistic. It is one that must be considered on the wider public interest, to uphold the popular will of the people and the Constitution.

In 2013, Raila challenged the election of Uhuru. The Supreme Court jettisoned all evidence before it. It then proceeded to dismiss the Petition, in reliance upon decisions from Nigeria, Gabon and Uganda. These countries, unlike Kenya, had experienced the full brunt of authoritarian military rule. Their Courts could not be objective. In fact, this was the first time a Kenyan Court took refuge in decisions from such countries.

The 2013 decision set an unreasonably high standard and burden of proof. It was not different from Matiba and Kibaki earlier decisions. The legal fraternity in Kenya and worldwide has condemned, trashed and shelved it as bad law. The Supreme Court could be forgiven for arriving at the decision since the Constitution was nascent and barely 2 years old. The Court itself was only a year old. Though composed of highly learned minds, three of the Judges, including the President of the Court, were in their novitiate, having been appointed from outside of the Judiciary and with limited or no courtroom experience at all. This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.

This was their first election petition they were handling and were confounded by the magnitude of the exercise and perhaps scared of the consequences of their decision. They may have played safe and sacrificed truth, justice and the law.

The Supreme Court’s image has since then been dented by credibility concerns. Unconcluded investigations for bribery involving one of the Supreme Court Judges demonstrated that the Court was susceptible to manipulation and compromise. It does not better the case when two Senior Counsel who accused the Judge, as well as an Advocate who was alleged to have conveyed the bribe as well as the Judge’s Advocate, a senior counsel, will act together for some of the parties in the current Petition.

That thwarted attempts by President Kenyatta to have a final say in the appointment of the Chief Justice, who is the President of the Court, publicly played out during the retirement case for two of its Judges, both matters again involving the three Senior Counsel cannot be overlooked. In his election campaigns in Kisii, Uhuru recently stated that he had appointed their son the Chief Justice. The Judicial Service Commission quickly refuted this claim and reiterated its independence from the Presidency. It was too little too late. The damage had already been done and aspersions cast. There is therefore, profound merit in Raila’s call for redemption.

Collective success or failure of the Court

The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them. Several Judges of the High Court and Court of Appeal recused themselves from pre-election cases. They did so out of fear or to escape the badge of bias.

A bench to hear the case by Raila’s coalition, seeking that the election be conducted solely on an electronic basis, the IEBC having failed to make regulations for a manual back was constituted of Judges outside the Constitutional Division of the High Court. The Presiding Judge, Odunga had been accused by Jubilee Party of being compromised to rule in favour of the opposition. The Judge and his other two colleagues in the Division would not feature in subsequent benches set up by the Chief Justice. At the Court of Appeal, three Judges recused themselves on account of their handling of previous electoral cases, real or perceived relations with some of the Advocates or the parties. The outcome is the same. It is an indicator that Courts could still be subject to accusations of manipulation from litigants.

The Supreme Court suffers a numerical disadvantage. It has 7 Judges, all of whom may sit, going by the precedent of 2013. Whereas 5 Judges constitute quorum, it is unlikely that the earlier precedent will be departed from. None can be recused on account of bias, compromise, relations or affiliations with the parties or their advocates. It is, however, troubling that most of these Judges share Advocates with the parties appearing in the petition. It is very untidy. Suspicions of possible bias and compromise cannot be dismissed. This calls for extra caution and vigilance.

There is a popular view that the Judges should declare their interests if any and possible conflict. The Judges should write their individual decisions. Indeed, that is the practice in the Commonwealth. It was the practice adopted by the Court of Appeal until recently, when it appears to have been abandoned. The only way to ensure judicial fidelity and interrogate judges’ Jurisprudential Quotient, is to test their individual decision-making abilities. They should not hide in the cocoon of collective success or failure. This conduct amounts to judicial laziness.

Repeat performance or improvement?

Approval and dismissal of merits of the petition is as varied as is the public support for Raila and Uhuru. Raila’s side perceive a strong case, better than the first one. Uhuru’s team consider the case much weaker. Viewed objectively, it is a case of desire for justice on the part of Raila and one of a sure win on the part of Uhuru. This is likely to play out in Court.

The 2017 Petition will be decided in a polarized setting. Both parties are on record, attacking the judiciary whenever a decision goes against them.

The only difference between a Presidential Election Petition and a National Assembly Election Petition is the volume. A Presidential Election is held in all 290 Constituencies. Intriguingly, the Petition must be heard and determined in 14 days. The other Petitions are heard and determined within 6 months.

The Supreme Court does not have the luxury of the High Court. It cannot recount, scrutinize and audit results from all 290 Constituencies. A decision must be based on pillars of “a free and a fair election”. International and national public policy must play a role also. The Supreme Court is empowered to depart from its previous decisions depending on the circumstances of the case or change in public policy. It is a delicate balance, but one that can be attained with a National Assembly Election Petition as a simulator.

Interference with KIEMS to transmit and project provisional results or to generate results contravened the Constitution. Such action would have gone against the decision of the Court of Appeal, in respect to the finality of results declared at the Constituency Tally Center. Publication of achievements, use of state resources and threats by a party to an election are election offences. Some of the State Officers are being investigated for possible prosecution. Uhuru’s election could be nullified on account of the election offences by his administration.

Massive inconsistencies and discrepancies of results in Forms 34A and 34B and in the IEBC portal could be indicative of manipulation towards a flawed electoral process. The 5 to 7 million votes claimed to have been affected is such a huge number that cannot be ignored. This limb of the case may be very strong on the fidelity of the electoral process. The demanded forensic examination of IEBC’s server and portal would establish whether there is a case. It remains to be seen how the Court will undertake a detailed examination of evidence within 14 days and order scrutiny and recount of votes to verify the numbers. If it does, the truth or falsity of Raila’s claim will unfold. The hasty announcement of the winner without the benefit of Forms 34B and before the completion of the tally, affecting over 3.5 million votes is a grave violation. The case seems to be strong on this limb.

The Supreme Court is not handicapped on precedent in the decision to be made. Resort to decisions from other countries alone is unnecessary. There are many locally decided cases that may be of guidance to the Court. Being a Court of law as well as public policy, numerous cases, not necessarily in respect to Presidential Election Petitions are available internationally and locally.

For example, the election of the Member of Parliament for Juja Constituency was challenged in the disputed 2007 General Election. The declared winner was the Chief Government whip for Kibaki’s wing in the Grand Coalition Government. Malpractices in the election mirrored those leveled against the election of Kibaki. The then Electoral Commission of Kenya was accused of subverting the popular will of the people and replacing it with a pre-determined choice of the ruling elite. The inconsistencies and manipulation of the declaration of results was so monumental that the election could not be sanitized by either a scrutiny or recount of the votes. The entire process was flawed. The election was therefore annulled.

The High Court pronounced itself thus; “One may ask why courts should hold an electoral body to a high standard in the performance of its duties. I think if there is any statutory body whose actions should be considered to be above the board and which should perform its duties to the required standard of integrity and probity, it should be the electoral commission. The electoral commission has a duty to inculcate and imbue confidence in the electorate that its process is transparent, free and fair.” Raila’s claim of manipulation of the entire electoral process would be based on principles set out in this decision. If the process is flawed, numbers or margin of difference between two candidates does not matter. The election may be invalidated without the need for scrutiny or recount of the votes.

 Of the election petitions subsequent to the 2013 elections that of Mathare Constituency attained distinction, in electoral law. The winner was from Raila’s Orange Democratic Movement. The loser, from Uhuru’s The National Alliance had been awarded the certificate. The High Court dismissed the petition. It held that results declared at the Constituency are not final and may be altered by the Chairman of the IEBC.

When called upon to review the issue, the Court of Appeal affirmed the finality of the declaration at the Constituency as the will of the people. The Court of Appeal held that it could not declare the claimant winner and directed that fresh election be held.

The dispute found its way to the Supreme Court. The decision by the Court came fast, crisp and sharp; “Apart from the priority attaching to the political and constitutional scheme for the election of representatives in governance agencies, the weight of the people’s franchise-interest is far too substantial to permit one official, or a couple of them, including the Returning Officer, unilaterally to undo the voters’ verdict, without having the matter resolved according to law, by the judicial organ of State.” The case supports Raila’s plea on finality of results declared at the Constituency level and fidelity of the process attendant to the declaration. It also buttresses the position in law that the IEBC cannot subvert the popular will of the people and replace it with that of a ruling elite.

That the petitioners in the two cases referred to won the by-elections that followed goes a long way to demonstrate how the electoral process can be subverted to defeat justice.

The complaint of use of State Officers and resources for campaign is one that Uhuru will be hard put to defend. It is well documented and publicly known. There is evidence in the Petition that the entire Government machinery from top bottom was deployed to campaign for Uhuru with threats to those perceived to rally behind the opposition. These events were concentrated within the campaign period and cannot be said to have been part and parcel of normal Government administrative duties.

The Public Officer Ethics Act and the Election Offences Act prohibit State Officers from engaging in politics, yet these Officers actively campaigned for Uhuru and defended their actions as part of Government business. Prohibited also is the advertisement of achievements for political gain. Raila has a strong case on this ground, supported by precedent.

The election of Moses Wetang’ula as Senator for Bungoma in 2013 was invalidated by the High Court. The decision was upheld by the Court of Appeal and the Supreme Court. The Courts found that the offences of bribery and voter treating had been proved and were sufficient to warrant the annulment of the election. In the words of the Supreme Court, “Moreover, we take judicial notice of the centrality of elections in the functioning of established governance bodies, as signaled by the Constitution in both general and specific terms. On that principle alone, a party found on fact to have befouled the electoral process, cannot maintain an argument that his or her offence may not be declared, save alongside that of other parties.” If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.

If Raila convinces the Court that Uhuru breached the law on the campaign trail, the Court could invalidate the election on the basis of this decision.

The case by Raila will have to be examined on the basis of these principles. If established, the Supreme Court would order a fresh election. The case could be dismissed if the evidence does not support the complaints before the Court.

The Austrian Court overturned results of election in which Alexander Van der Bellen narrowly beat far-right candidate Norbert Hofer for electoral malpractice. A South Korean court removed the President from office for abuse of office. The Brazilian senate impeached Brazilian President Dilma Rousseff for illegally manipulating government accounts. The Pakistan Supreme Court stripped the Prime Minister of his office, for corruption. Here in Kenya, former Deputy Chief Justice Nancy Baraza was removed from office for misbehaviour for merely pinching the nose of a security guard. The bar on integrity has been set high locally and internationally. The Court may be persuaded to use these out of court processes in arriving at a decision.

A majority of Kenyans feel that a minority ruling elite has since independence, acting through unlawful means, denied other regional and ethnic communities the legitimate opportunity to rule. That feeling may prevail, irrespective of whatever legally acceptable or meritorious outcome is to be made by the Court. It may be high time that a rotational presidency, on the basis of the 8 main regions or provinces Kenya was demarcated and administered from independence, is considered, if the law of winner takes it all will forever be used or abused.

The Supreme Court has many references for direction in determining whether the popular will of the people of Kenya was ousted. Its decision must be based, not only upon evidence and the law, but international and national public policy. “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws”, said Plato. The Court must ensure that leaders act responsibly, without circumventing the law.

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LOST AND NOT FOUND: What happens when people go missing in Kenya

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LOST AND NOT FOUND: What happens when people go missing in Kenya

It could be an empty bed or an untouched room. An automated horoscope on their Twitter account or a dormant Facebook profile. All that remains are memories. A family photo no one talks about anymore. Things left unsaid. Spaces left unfilled. Some choose to keep them that way in the hope that their loved one will walk back through the door.

But they don’t always do.

Mohammed Abdulkarim, popularly known as Czars, has been missing since October 2006. The teen heartthrob was barely a week away from his final high school exams and on the verge of what looked like it would be a wildly successful music career. The skinny, light-skinned 17-year-old was a national sensation for his song “Amka Ukatike.” Yet that day in 2006, he took a walk from their family home and never came back. Last year, on the tenth anniversary of his disappearance, his father voiced that undying hope that he will find his way back, wherever he is. He’d kept his son’s room intact for a decade.

For Abdullahi Boru, those constant reminders are embedded in his career after his best friend and former housemate, Bogonko Bosire, went missing in September 2013. Bogonko was a pioneer blogger who ran a popular and controversial tabloid. He went missing at the height of the International Criminal Court cases against President Uhuru Kenyatta and his Deputy, William Ruto, and from the little we know so far, probably because of them. “I’ve known Bogonko Bosire since 2000 when we joined journalism school. Then after we were done we shared a house as we fit into our first jobs” Boru says. For him, Bosire is still in the present tense, an unsolved disappearance that will one day have a solution. That same year, in December, a senior State House advisor called Albert Muriuki also disappeared. His case too, remains unsolved.

Last year, on the tenth anniversary of his disappearance, his father voiced that undying hope that he will find his way back, wherever he is. He’d kept his son’s room intact for a decade

For the family of independence hero Kung’u Karumba, one of the Kapenguria Six, that has been a 43-year-long wait. The freedom fighter disappeared in 1974 while on a business trip to Uganda and was most likely caught up in political upheaval. But there has never been any proof of his death, so his family has kept hope alive. In 2004, 30 years after he went missing, his youngest wife Esther Wanjiru told The Standard “I am still waiting for him to show up in his pickup van, KPD 304.”

Without a Trace

“The reasons why people go missing are almost as varied as the people themselves,” a tracing investigator who requested anonymity tells me. Outside of extrajudicial killings and conflict, other reasons why people disappear include kidnappings, accidents and suicide. Someone can leave intentionally because they decided to, or drifted away. Someone can be forced to go missing because of disease or an accident. Mental health conditions rank highly here.

A close friend’s family once lost her 80-year-old grandmother, who suffered from dementia, for three weeks. She turned up in Dodoma, Tanzania with no memory of how she got there. In an email conversation, a lady called Sharon Johnston who lives in New Zealand told me about the fruitless search for her father, Dr. Tony Johnston who had lived and worked in Kenya for three decades. She eventually found him in a home for the elderly, living with dementia. His property seemed to have changed hands, and visitation rights were controlled by the same tight knit circle.

In the course of a week, I counted at least nine missing persons’ posters placed in different digital spaces, including several news alerts. Eight were kids below twelve years of age, and the ninth involving a teen, was deemed resolved after she was found at a friend’s house. I also scoured through a Facebook page called Kenya Missing & Unidentified Persons, which was set up to help families find their loved ones. Although it has not been updated since 2015, the page gives a small sample size of the people who go missing in Kenya. Of about 30 cases posted in a period of six months, most of them were relatively young (17-30 years old) and from a cursory glance, from the middle and lower socioeconomic classes. Almost all the cases involving older people, above 60 years of age, mentioned some form of mental illness.

She eventually found him in a home for the elderly, living with dementia. His property seemed to have changed hands, and visitation rights were controlled by the same tight-knit circle.

While Sharon was lucky in a way, most aren’t. Law enforcement agencies do not give priority to missing persons’ cases, and in some of them, are actually complicit. In one recent example, a human rights lawyer called Willie Kimani, his client, and a taxi driver were kidnapped and then killed by police officers. Such extrajudicial killings are at times followed by attempts to hide the bodies, or disfigure them beyond recognition.

Such police brutality and state violence have a long history in Kenya, even before the genocidal ‘50s. In precolonial Kenya, it was not unusual for people to leave and simply never come back. Some died in skirmishes, while others fell sick along the way. Others simply moved and made new homes elsewhere, sometimes leaving even their spouses behind. In the social dynamics of the time, this was not as serious as it is today, but the heartbreak was no less real.

But in that decade of the Mau Mau rebellion, disappearances especially of men from around Mount Kenya became commonplace. This would happen again, in the 2000s as Interior Security Minister John Michuki led a murderous effort to kill off the Mungiki, literally in this case. From hearing one of my grandmothers’ stories about how her dad left to pick rent from a residential building in Nairobi in 1954 and never came back, I moved to listening to one of my neighbors describe the last time she saw her son in 2008. He was a young, skinny lad with shaggy hair, and most likely got caught up in the extrajudicial war on the Mungiki.

What Follows

If someone you know goes missing today, the process goes something like this. You make a report to a police station where a bored police officer records your complaint. Then forwards it to a police station with an investigator from the Criminal Investigations Department (CID). If it’s a high profile case then it might get priority, and the digital and physical search will begin immediately. If you are absolutely lucky, and this is rare, then you will never get to hear those debilitating words “investigations are still ongoing” and “the file is still open.”

But more often than not, you will be unlucky. There is no national data on missing persons, or any related database to speak of. Everyone is, at the base of it, groping in the dark. Access to a telecom company’s data may provide some answers as to the last place a phone was on, as well as the last people the person talked to. A find such as a car or clothes, as was the case with IEBC manager Chris Msando, may hint at a few things, but mostly say nothing. Add to this the fact that the investigation process is so opaque and complicated that it often feels like law enforcement agencies are not doing enough.

Most families supplement this with either searching for the person themselves or even hiring private investigators. A search of morgues is a common go-to solution, but it is often based on the hope that if the person is dead, they would be in the specific morgues the search party is looking into. The same goes for hospitals and hospices, and the search is grueling. At least one independent missing persons’ investigator was described to me as “…someone who walks into morgues the way he would a coffee shop.”

From hearing one of my grandmothers’ stories about how her dad left to pick rent from a residential building in Nairobi in 1954 and never came back, I moved to listening to one of my neighbors describe the last time she saw her son in 2008.

There are other avenues. The Red Cross has a tracing department in its offices across the world, including Kenya. The project, called “Restoring Family Links” is designed to help people look for their family members or restore contact with them. Their focus though, is on people who’ve gone missing due to conflict, disaster or migration. Without enough resources to expand this to cover all missing persons cases, even their assistance is limited.

Public appeals for information sometimes work. They can yield information about a sighting or identification of places where the family can start looking. But more often than not, each appeal for information is followed by many false leads. In the search for the teenage heartthrob Czars, for example, one of the earliest seemingly credible leads came from an entertainment journalist. He had gotten it from a source he trusted, and it looked promising at the time. Czars, the intel suggested, was living in Eastleigh, likely in the company of an older fling. That singular statement led to a wild-goose chase with journalists and the musician’s father scouring Eastleigh in vain.

Another infamous false lead example is in the days after Nyandarua MP JM Kariuki was killed. After he disappeared in early March 1975, then Vice President Daniel Arap Moi confidently said he had left the country for Zambia. It took a newspaper report to dispute this, and for five whole days, no one knew what had happened to the charismatic MP. His body was eventually found on March 12, 1975, mutilated.

Two decades before, another missing persons case had stood out in a decade of conflict. Mau Mau leader Stanley Mathenge disappeared one night in 1956, and for years the official story was that he had gone to Ethiopia to seek assistance for the cause. It stopped there, never explaining why the freedom army’s most formidable military mind chose to abandon the cause. Years later, in 2003, a stranger from Ethiopia was feted in his place, not only costing taxpayers’ money but also leaving the government embarrassed.

Like JM, its more likely Matheng’e never left Kenya. The most likely scenario was that his compatriot and power rival, Dedan Kimathi, had him killed and then weaved the Ethiopia story to avoid internal strife. Kimathi was himself shot and arrested later that year.

Some leads seem purely coincidental and others outright suspicious. In the case of Bogonko Bosire, that happened to be a terror attack. The last time anyone ever saw the journalist was on 18th September 2013, three days before the Westgate terror attack. Although his family had already been searching for him at that point, the leads suggesting he could have perished there kept coming. So they looked, through the rows upon rows of dead bodies from the mall, to no avail. A few times since, there has been some activity on his social media profiles. The last, at 5:30pm on August 10th 2016, was a new profile picture and name on his Facebook profile. “From time to time I check his Twitter handle to see if he’s back,” Boru tells me as we discuss his hope that his friend is still out there somewhere.

Where do We Go from Here?

Many cases remain unsolved because there is no coordinated effort to actually find them. Even well-meaning investigators are hampered by one thing, the lack of dependable data. While some patterns are easy to see, most of them aren’t. A child who disappears from home while in the care of her nanny has most likely been kidnapped, but not always. An aging man with a mental condition who goes missing on his way home probably got lost, but not always. A young man who disappears on his way home could have been shot by the police, but not always.

There is no national data on missing persons, or any related database to speak of. Everyone is, at the base of it, groping in the dark.

What Kenya needs is an integrated system that not only improves information flow between agencies and families, but also provides a support network for both. Part of this could be a searchable DNA and personal profile database for missing persons and unidentified remains. In countries like Scotland, for example, the standard operating procedures of policing give priority and resources to missing persons’ investigations.

There is some hope though. Earlier this year, the National Crime Research Center released a report on kidnappings in Kenya. In it, researchers found that you are most likely to be kidnapped if you are female, under 35 (and especially below 18) by men of around the same age. The report also ranked Kenya number 17 out of 19 in prevalence of kidnappings. It also looked into interventions and found that at least 12 different bodies, most of them government units such as the police and the Office of the Director of Public Prosecutions, are involved in addressing kidnapping cases. Some private organisations include Missing Child Kenya, which provides free resources to search for and rescue missing kids.

Still, there is a long way to go in improving our interventions in finding missing people. In 2008, the US state of New Jersey passed “Patricia’s Law”, a landmark law that describes the investigative process when looking for missing persons. Named after Patricia Viola, a 42-year-old wife and mother who disappeared in February 2001 (her remains were identified via DNA a decade later), the 2008 law was part of a combined effort beginning in 2004 to facilitate communication between agencies to ease the process of finding missing persons. The law not only dictates who should (and must) accept missing persons reports, but also describes stages in the investigation. For example, after 30 days missing, the law enforcement agency is required to take a DNA reference sample from the family. The DNA is run through the Combined DNA Index System for Missing Persons.

Beyond such a legislative backbone, law enforcement agencies also need dedicated resources and personnel. These can form the core structure to coordinate the effort with other agencies as well as stakeholders such as telecom companies. It would also ease communication with the families and friends, and even ease the pressure on morgues, hospitals and hospices.

The last time anyone ever saw the journalist was on 18th September 2013, three days before the Westgate terror attack. Although his family had already been searching for him at that point, the leads suggesting he could have perished there kept coming.

Dependable data will also help researchers identify patterns, and give law enforcement agencies to investigate. As is, beyond their current training and help from telecom agencies and the public, there is little else to go on. No one knows for sure how many people are currently missing, and without that, it is impossible to actually to solve open cases, and even mitigate future ones. Such patterns can be age, gender, risk, and even location. Disappearances of young women in one specific location, or area, could point towards a serial killer, for example. A string of disappearances of kids could point to a human trafficking ring, or even something more sinister.

Hopelessness

Anyone can disappear without a trace. Even people in the limelight like Czars, Bogonko Bosire, and Albert Muriuki. All these cases remain unsolved, but their families and friends maintain the hope that that won’t be the case forever. They are only three in an ever-growing list of people who have gone missing without a trace, leaving behind nothing but memories and a never ending worry. The worry that someone is in trouble, or is somewhere lost, is not easy on anyone. Some families simply seek closure, a body to bury even, or just answers. But they are few and far between, and mostly obtained through sheer luck and at times effective policing.

For some those answers never come. As days become months, and then years, and memories fade, the lingering need to find those we love doesn’t dissipate. The worst, Sharon wrote, is in the not knowing.

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A NIGERIAN STORY: How Healthcare is the Offspring of Imperialism and Corruption

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Pourous Institutions

As a Nigerian, the greatest scorn often finds you when you argue for Nigeria. Other Nigerians will mock you, denounce you as impractical or a dreamer, when you say that Nigeria is where your future lies. But why?

Nigeria as a heritage that separates the Nigerian from the Black American is awarded a loud (though false) superiority. The Nigeria that is evoked in jollof rice debates is praised. Even the Nigeria that must beat Ghana in the football match is supported. Yet, it remains that the Nigeria that will gain a Nigerian’s abuse is the real Nigeria – with its abusive civil servants, its police haggling for bribes and its megachurches auctioning salvation. This real Nigeria is the child of a mean parent called corruption. It’s useful to trace the family tree of this corruption but also useful to think about the way corruption earns Nigeria scorn to the degree that anyone who argues for that Nigeria is unworthy in some way—or should we say, she who argues for Nigeria is worthy of its corruption?

The Nigeria-corruption association has been repeated so often that it has long since become the small talk of world leaders; David Cameron’s aside to Queen Elizabeth II about “fantastically corrupt” Nigeria is but one example. That corruption touches every facet of life in Nigeria is a banality. As Michael Ogbeidi, a history professor at the University of Lagos, put it so accurately in his article, Political Leadership and the Corruption in Nigeria Since 1960, “Indeed, it is difficult to think of any social ill in [Nigeria] that is not traceable to the embezzlement and misappropriation of public funds, particularly as a direct or indirect consequence of the corruption perpetrated by the callous political leadership class since independence”.

Bureaucratic corruption affects healthcare and this is a very old problem both in Nigeria and throughout the formerly colonized world. When Nigeria was incorporated by Imperial Britain, it was conceived of as a repository of natural minerals and riches that could be exported for the benefit of the master race and country. The profits of colonial exploitation are so large they inspire disbelief. For instance, the British Ministry of Food made profits of 11 million pounds sterling in some years, according to Walter Rodney. As Rodney’s seminal text, How Europe Underdeveloped Africa, so clearly explains: this obscene figure of 11 million pounds sterling per annum was the result of artificially low prices set by private capitalist investors in Britain. The British government allowed dummy organizations, like the West African Cocoa Control Board (est. 1938) to lie to and bully African farmers, while pretending to advocate for them. Moreover, farmers were mandated to sell their crops no matter what price they were given. The farmers did not have the might to stand up against the military and political power of the British government. They did not have a choice. They were not economic players in the game, just chess pieces to be thrown around the board. At any rate, 11 million pounds accounts for the profits of just one body, the British Ministry of Food, so we can only imagine the cumulative profits enjoyed by the British Empire.

When Nigeria was incorporated by Imperial Britain, it was conceived of as a repository of natural minerals and riches that could be exported for the benefit of the master race and country.

Whatever the final profits, the people of Nigeria didn’t share in the wealth generated from such exports. The people were simply the machinery of the capitalist endeavor. They were machinery in the sense that the colonial political and economic government had absolutely no consideration for their physical well-being. Instead, by allowing missionaries to overrun the landmass, they rid the country of traditional doctors and what is now referred to as homeopathic medicines. For all the superstition and abuse that occasionally accompanied it, traditional medicine functioned as a rudimentary healthcare infrastructure across the African continent. Aspects of these so-called primitive practices have real and proven benefits.

For instance, West African medical practice is the foundation for inoculation and vaccination. In fact, when inoculation was introduced in colonial Boston during the 1721 smallpox epidemic, the origins of inoculation were so widely known that it was derided as “African” medicine and “Negroish thinking” in the press. Cotton Mather, who is credited with introducing inoculation into North America, wrote extensively about how a West African born slave, Onesimus, told him about inoculation practices. After learning from Onesimus, Mather began interviewing other enslaved Africans who backed up Onesimus’ testimony of being inoculated as children. Mather then tested inoculation on slaves born outside of Africa and when it proved successful, he introduced it to the white population. But as the practice of inoculation became widespread throughout colonial America, and the rest of the West, its origins were conveniently forgotten.

Once the traditional healer was undermined by new religious concepts, Imperial Britain continued to loot the land and exploit the people. Never was there any real investment in an alternative healthcare infrastructure. There are those who quote the 19th century European lie: they brought us civilization; they brought us religion and railways and doctors! But the numbers don’t bear that out. Rodney notes that in the 1930s, the British colonial government maintained a 34-bed hospital for Ibadan when the city had a population of 500,000 people! The colonial government later expanded their medical facilities, but this was only after pressure from nationalist movements set up by people tired of economic and political exploitation.

For instance, West African medical practice is the foundation for inoculation and vaccination. In fact, when inoculation was introduced in colonial Boston during the 1721 smallpox epidemic, the origins of inoculation were so widely known that it was derided as “African” medicine and “Negroish thinking” in the press.

It’s obvious that the dearth of medical and healthcare infrastructure was inherited by the national government in the 1960s. Understanding this history, it can be easy to excuse Nigeria and the Nigerian elite. In fact, this is precisely the hope of the Nigerian political and economic elite.

But we can’t let this excuse win the day since the post-1960 era hasn’t seen a marked continual commitment to the healthcare infrastructure system. The initial investment in healthcare wasn’t bad. In fact, as AO Malu, of Benue State Teaching Hospital, points out, when the Ashby Commission on Higher Education recommended the expansion of educational facilities in 1960, the year of Nigeria’s independence, Medical Faculty at the London College of Ibadan (now known as the University of Ibadan) was expanded and new medical schools were established in Lagos and in Northern Nigeria. The newly independent government continued to found and support teaching hospitals, particularly in the southwestern and northwestern region of Nigeria (Malu).

These teaching hospitals were instrumental in educating the vast majority of licensed nurses and doctors in Nigeria. Up until the late 1980s, they were known for professional teaching quality, their rigor, cleanliness and commitment to medically-appropriate technology. There is many a “middle class” Nigerian that can testify to their own birth or treatment in a Nigerian teaching hospital. Graduates in this 25-year span, from 1960 to 1985, also willingly testify to the maintenance of the facilities, which is no small thing since it both reflects and demands pride from the facilities’ users. It also reflects real material investment and demands it as well. But all of these testimonies are historical. The testimonies are about what the teaching hospitals used to be. Neglected by federal and state governments, the hospitals are today decrepit artifacts that are stuck with the technology of the last decade. I know one doctor who cried when she visited her alma mater in Rivers State, such was the state of the place with debris and rats. Another physician I know refused to discuss her medical school; she stammered, shook her head in anger and walked away. When she returned to the subject, she said only, “It was never, never like that before. The standard has really fallen.”

These teaching hospitals were instrumental in educating the vast majority of licensed nurses and doctors in Nigeria. Up until the late 1980s, they were known for professional teaching quality, their rigor, cleanliness and commitment to medically-appropriate technology.

But these “historical” hospitals are still hospitals. They still admit patients and attempt to treat them; they still admit students and attempt to educate them. Their treatment is curtailed by the lack of technological investment, the deteriorating facilities and the stagnated curriculum that Nigerian medical students are afforded. This is not the doing of some late 19th century Briton. It is the result of the rampant and insidious corruption executed by the political elite and their counterparts in the financial sector. As Professor Ogbeidi, notes in his article, citing this 2004 Reuters interview with then anti-graft chief Nuhu Ribadu, “Incontrovertibly, corruption became endemic in the 1990s during the military regimes of Babangida and Abacha, but a culture of impunity spread throughout the political class when democracy returned to Nigeria in 1999. In fact, corruption took over as an engine of the Nigerian society and replaced the rule of law”. In other words, the neglect of healthcare infrastructure is a product of recent and present-day choices that continually disregard the health of the people who are the machinery of the nation.

The teaching hospital model was never capable of nor adequate in caring for Africa’s most populous nation. It was a step in the correct direction, but a step that has been halted. As Professor Ogbeidi puts it: “As a consequence of unparalleled and unrivalled corruption in Nigeria, the healthcare delivery system… [has]become comatose and [is] nearing total collapse.”

So what are Nigerians left with? The vast majority of Nigerians who were never able to access teaching hospitals must rely on book doctors and unlicensed and unregulated pharmacies. A book doctor is a person who has learned about the practice of Western medicine solely from books. This book doctor never attended medical school, never sat for a medical certification or license exam and never completed a residency or rotation under the supervision of more experienced medical practitioner. Book doctors are common in areas outside of the major Nigerian cities. Having been to one myself, I can attest to the fact that they are not clandestine operations, but clearly marked persons with public enterprises. Neither the federal nor state governments make any attempt to investigate them in the interest of the people.

My experience with the book doctor was fine. He was affable. All the materials I observed were clean and unused. His nurses were well-trained and products of nursing schools. Yet the facility did not have electricity from the Nigerian energy grid, running water, nor a toilet. (Outside of major Nigerian cities, it is not rare to go 2 or more months without electricity from the Nigerian energy grid, this is despite the fact that Nigeria sells energy to Togo, Benin, and Niger.) The book doctor instead powered his facility with a generator and bathroom functions were undertaken in a darkened room at the back of the property. The patients brought their own water.

Book doctors are common in areas outside of the major Nigerian cities. Having been to one myself, I can attest to the fact that they are not clandestine operations, but clearly marked persons with public enterprises.

Despite my benign experience, Nigerians die daily from inadequate care from book doctors, just as they die from the inadequate healthcare system throughout Nigeria. Death is the fruit of corruption.

The other fruit of corruption is the bankruptcy of Nigeria’s national wealth.

In making adequate healthcare difficult or impossible to access, the political class is making it an absolute necessity for people to seek medical help outside of Nigeria’s borders. This drives those people who can afford it, to go to African countries like Ghana and South Africa, or ever further to Europe, India, the Middle East or the Americas for medical care. This is an insane situation for a citizen of an oil-rich country.

The Nigerian government acknowledges that sending medical tourists abroad is a real problem that has cost the country at least 1₦ billion –the equivalent of 690 million pounds sterling. This is money that was made in Nigeria but spent elsewhere; money that should be circulating in the Nigerian economy. Bu a real investment of capital into the construction and maintenance of medical infrastructure would not only stem this but also enrich the country, especially if the construction materials were purchased from Nigerian companies and Nigerians were employed in the labor.

But the same government that is legislating against “medical tourism” is led by President Mohammed Buhari who has become the “face of medical tourism.” President Buhari spent 7 weeks, from January to March, in London before offering up a vague explanation about his health. The lack of specificity was an allusion that was meant to be understood in the mind of the Nigerian citizen as you know we no get oyibo (white man) medicine na. Buhari left Nigeria for London again in May. When the Nigerian populace, aided by journalists, demanded that the President return and govern after an absence of more than 3 months, the president reluctantly returned. He has refused to say how much money the Nigerian government spent on his almost 5-month stay in London. No matter. The failing Nigerian healthcare system is implicit in the president’s long stay in high-priced London and the unstated, exorbitant price tag is yet another example of political corruption.

The Nigerian government acknowledges that sending medical tourists abroad is a real problem that has cost the country at least 1₦ billion –the equivalent of 690 million pounds sterling.

This drama, of course, comes after the 2010 death of President Umaru Musa Yar’adua whose 3-month medical stay in Saudi Arabia ended when the Nigerian government sent a delegation to “check on his health.” Yar’adua’s absence was explained to the Nigerian people as medical treatment, but during those 3 months, he was not seen in public and this fueled both rumor and a real leadership crisis in the federal government.

The travels of Yar’adua and Buhari demonstrate in a practical, evidentiary manner that the Nigerian healthcare system has been abandoned by its political elites. They seek their health and medical care elsewhere and as a result, they have left the funding and maintenance of the healthcare infrastructure to the birds.

Yet, still the middle class, takes the political and financial elite as “leaders” and follows them abroad. They are not leaders; they are elites by virtue of being on top of the capitalistic structure and because they are elitist, believing that only those at the top should have access to what are now called “basic human necessities,” including electricity and running water. If they were not elitist, they wouldn’t rob the country to the detriment of the health and very life of the people.

In going abroad, middle-class Nigerians are increasingly identifying service sectors and medical acumen with the West. This is dangerous because such identification alleviates the pressure to improve the facilities within Nigeria. The determination to go abroad should instead be replaced by the determination to improve the healthcare infrastructure at home.

The travels of Yar’adua and Buhari demonstrate in a practical, evidentiary manner that the Nigerian healthcare system has been abandoned by its political elites. They seek their health and medical care elsewhere and as a result, they have left the funding and maintenance of the healthcare infrastructure to the birds.

The portion of the Nigerian middle-class that does utilize the healthcare system have little encouragement. Added to the corruption that robs the system is the dearth of physicians who might otherwise provide superior care and demand attention from the political and financial elites. It is not that Nigerian isn’t training medics, but the problems already noted drive them to ply their trade abroad.

A 2013 article by the Foundation for the Advancement of International Medical Education and Research (FAIMER) is titled “Nigerian Medical School Graduates and the US Physician Workforce” and the title says it all. Despite the corruption and deteriorating conditions, Nigerian-educated medical professionals are skilled physicians who are able to practice throughout the world. This is good for them but bad for Nigeria.

According the statistics of the Educational Commission for Foreign Medical Graduates, at least 4300 Nigerian medical graduates were certified to practice in the United States between 1980 and 2012. That is 4,300 doctors who are not practicing in Nigeria. What would Nigeria be like with 4,300 more doctors? Before answering, consider that this is only one type of certification program doctors in the United States and Canada; it does not account for the medical graduates who have emigrated to mainland Europe, the UK, Australia, the Caribbean nations, India, or the increasingly, alluring South American republic of Brazil. Now consider that President of the Healthcare Federation of Nigeria, thinks that the correct estimate of Nigerian doctors practicing abroad is closer to 37,000. This is a real exodus with dangerous ramifications.

With the flight of medical graduates, Nigeria must educate another person to become part of the healthcare infrastructure. With the flight of medical graduates, Nigeria loses another bloc of people capable of putting pressure on the political class to fix the healthcare infrastructure. With the flight of medical graduates, Nigeria loses people who might create real national wealth by buying Nigerian made goods and supporting local industry, rather than the cheaply made, imports – the shine shine – that litter the market stalls of the subsistence worker and the Instagram pages of the so-called middle class. With the flight of the medical graduate, Nigeria is left stagnant.

Now consider that President of the Healthcare Federation of Nigeria, thinks that the correct estimate of Nigerian doctors practicing abroad is closer to 37,000. This is a real exodus with dangerous ramifications.

It is this stagnant Nigeria that earns a Nigerian the ridicule of his countrymen. At home, everyone (or so it seems) wants to travel abroad. Abroad, home is just a green-and-white outfit, a party theme on October 1st. Healthcare in Nigeria is a fatal casualty of continued political corruption. Medical tourism will cease only after the government has demonstrated sustained and responsible investment and maintenance of healthcare schools and facilities. Until then, the middle class will follow its political and economic elites in seeking medical treatment abroad; they will spend their hard-earned money in other countries and continue to wonder why death and bankruptcy follow them home to Nigeria.

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THE BLACK SPOT: Why The Kenyan Road System Is Designed To Kill

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Two road crashes in the first two weeks of November have robbed Kenya of six lives including that of Nyeri Governor, Wahome Gakuru, and once again brought to the fore the crisis of safety on the country’s roads and highways.

As of November 8, according to statistics released by the National Transport and Safety Authority, 2,387 people had lost their lives on our roads. In its 2015 Global Status Report on Road Safety, the World Health Organisation shows Kenya’s roads are amongst the most dangerous in the world claiming an average of 29.1 lives per 100,000 people. By comparison, Norway, which has significantly more cars on its roads had just a tenth of Kenya’s average fatalities per 100,000. Road crashes are among the top ten killers of Kenyans, account for between 45 and 60 percent of all admissions to surgical wards and cost the country up to 5 percent of GDP.

It’s not all doom and gloom though. While the number of registered vehicles on the roads nearly doubled between 2008 and 2012, from just over 1 million to just under 1.8 million according to the Kenya National Bureau of Statistics, the total number of both accidents and victims actually fell by about half says the 2015 study Analysis of Causes & Response Strategies of Road Traffic Accidents in Kenya. However, what should set off alarm bells is that despite this, the number of deaths barely budged. It may only make the news when crashes either involve large numbers of people or a prominent person is killed, but on average, Kenya has lost a Nissan matatu-load of people every two days for at least the last decade and a half.

In the face of such appalling statistics, it is nothing short of outrageous that the NTSA considers a reduction of 4 percent in the number of pedestrians who have lost their lives on the roads as “drastic”. Though overall deaths were down by a slightly higher 5.8 percent, it speaks to the low expectations the Authority has of itself that the numbers it is celebrating do not even come close its own rather modest target of reducing traffic fatalities by 12 percent.

By comparison, Norway, which has significantly more cars on its roads had just a tenth of Kenya’s average fatalities per 100,000.

The widely trumpeted but almost always short-lived measures that have been taken by the government to address the issue over the last ten years -such the famous “Michuki rules”, the banning of night buses, enforcement of speed limits, introduction of random breathalyzer tests- have barely budged the average annual number of deaths which still hovers stubbornly around the 3000 mark. By contrast Sweden, which has the world’s safest roads managed to slash in half the number of traffic deaths between 2000 and 2014.

What are the Swedes doing right?

Unlike Kenya’s knee-jerk approach, where reactionary legal measures are quickly announced in the aftermath of a particularly horrific crash, with little research, forethought or long-term planning, and just as quickly forgotten, the Swedes have adopted a more systemic, evidence-based method. Unlike their Kenyan counterparts, the Swedish Transport Administration does not believe that deaths and injuries on roads are an inevitable cost of having a functional road network. “We simply do not accept any deaths or injuries on our roads,” says Hans Berg told The Economist in 2014. Matts-Åke Belin, a traffic safety strategist with the same agency in an interview with CityLab calls it a “civil rights thing”, saying that rather than trying to get people to adapt to the traffic system, the Swedes are trying to “create a system for the humans”.

It may only make the news when crashes either involve large numbers of people or a prominent person is killed, but on average, Kenya has lost a Nissan matatu-load of people every two days for at least the last decade and a half.

This focus on building “a system for the humans” is the central pillar of Vision Zero, the radical policy that since 1997, has governed the nation’s approach to transportation. It is even written into their laws. In the same year, the Swedish Parliament passed the Road Traffic Safety Bill which declared that, “the responsibility for every death or loss of health in the road transport system rests with the person responsible for the design of that system”.

Think about that for a minute. Road accidents are not the fault of drunk or crazy drivers, of careless pedestrians or stupid cyclists. Instead, as Dinesh Mohan notes, the Swedes put the blame on “the engineers who build and maintain the road and the police department that manages traffic on that road. Not primarily on the people who use the road because it has been demonstrated that road user behaviour is conditioned by the system design and how it is managed.”

Vision Zero seeks to not just reduce, but to completely eliminate deaths and serious injuries on the roads. But it does so, not primarily on the back of enforcement of punitive legislation as is the preferred approach in Kenya. “We are going much more for engineering than enforcement,” says Belin. “If we can create a system where people are safe, why shouldn’t we? Why should we put the whole responsibility on the individual road user, when we know they will talk on their phones, they will do lots of things that we might not be happy about? So let’s try to build a more human-friendly system instead. And we have the knowledge to do that.”

Enforcement of traffic rules is an important element but rather than merely bullying road users into compliance, the Swedes are building their system around the road users. Safety is not something that is added to the road system; it is an essential component of the system itself. As one analysis of the policy puts it: “Road users are responsible for following the rules for using the system set by the designers. If the users fail to obey the rules … or they obey and injuries occur nonetheless, the system designers must take steps to avoid people being killed or seriously injured.” The road system is thus built in the knowledge that people will break the rules and is structured to both minimize the opportunity for wrongdoing and to mitigate the harm that can result.

Matts-Åke Belin, a traffic safety strategist with the same agency in an interview with CityLab calls it a “civil rights thing”, saying that rather than trying to get people to adapt to the traffic system, the Swedes are trying to “create a system for the humans”.

In Kenya, the approach is diametrically opposite. While the NTSA acknowledges that 80 percent of road crashes are caused by human error, and blames everything from drunk drivers to jaywalking pedestrians, it rarely discusses the design of our road transport systems, the behaviour it incentivizes and how such errors are mitigated beyond arresting people and increasing fines.

Take the two crashes referenced at the beginning of this tale. Both happened at notorious “black spots”, one at Salgaa and the other at Kabati. Murang’a County Commissioner John Elung’ata says of Kabati, where the Governor died, that “motorists lose control whenever it rains”. The 14-kilometre stretch between Salgaa and Sachangwan along the Nakuru-Eldoret highway has been the scene of multiple horrific accidents involving trucks. Yet in 2015, then NTSA Chairman, Lee Kinyanjui, whose agency blamed the crashes on “ignorant drivers” could only promise that “over and above fining those freewheeling, we will be recommending an immediate revocation of their licences and this should go to all the drivers. Reckless driving on our roads will no longer be there.” In these cases, administrators seem to have either resigned themselves to the inevitability of crashes or limited their responses to punishment. There was not talk of redesigning the road to eliminate the “black spot”. Instead Kinyanjui promised to “construct lorry park with a capacity of 200 vehicles where the NTSA officers will be checking lorries”.

But one could perhaps cut Kinyanjui a little slack. While the NTSA can only advise the national government on such design changes and mostly appears to confine itself to patrolling roads to catch errant drivers or chasing down jay-walking pedestrians, STA actually owns, constructs, operates and maintains all state roads in Sweden.

Obviously, a road system is more than just the state of the road and transport authorities have to coordinate with a wide array of government agencies, non-governmental organizations and road users. That system includes all factors that have a bearing on behaviour on the road. As such, the commitment to safety cannot be simply a matter for one body, but rather a national, even cultural commitment. As Belin says, “Sweden has a long tradition of working with safety. So Vision Zero is also based on a historical context.” It is, after all, the home of Volvo. Kenya, on the other hand, has historically had a rather tenuous relationship with safety and a huge appetite for risk. From our politics to security to our hospitals, being Kenyan is like a constant dicing with death. A national obsession with safety is definitely a bonus. However, even without one, Kenya can make better infrastructural decisions that would reduce the risk of injury and death.

The road system is thus built in the knowledge that people will break the rules and is structured to both minimize the opportunity for wrongdoing and to mitigate the harm that can result.

Take the Thika Superhighway, on which Governor Gakuru died, as an example. The road which rumbles through populated areas is Kenya’s most dangerous road for pedestrians. In 2014, the Senate committee on transport and infrastructure found that over 200 pedestrians had died since the road was inaugurated two years prior. Nearly 300 had been injured. That works out to about 5 people killed or injured every week. The difference between Thika Superhighway and, say, the UK’s M40 is not that Kenyans are congenitally poor drivers and law breakers and the British are not. In fact, the M40 does have its fair share of pile ups. But the reason you do not find pedestrians dashing across it and buses stopping on it is mostly that such problems have been engineered out. People don’t run across it because it is not located where they would need to. We obviously cannot physically move our Superhighway but we can ask questions about how and where our roads are built and about the systems governing the behaviour on them.

We can also ask about emergency responses, or rather, the lack of them. And about the safety of guard rails and whether there are better alternatives. Road accidents, even when they do happen, need not result in grievous injury or death. Why weren’t systems for rescuing trapped people and getting them emergency care factored into the design of the road? How can Kenya fix this? And what rules for other existing and future highways?

Perhaps nowhere would such approach be beneficial than in addressing the safety problems posed by Kenya’s public transport system. According to the WHO, in Kenya “buses and matatus are the vehicles most frequently involved in fatal crashes and passenger in these vehicles account for 38 percent of total road deaths.” Although the 2015 study found that matatus only caused about a third as many accidents as cars and utility vehicles considering that matatus make up only about 5 percent of the about 2 million vehicles on our roads, the fact that they cause around 15 percent of accidents indicates a big problem.

The study found that “Kenyan drivers cause crashes largely because of behavioural and attitudinal problems” and that these problems were more acute in drivers of Public Service Vehicles. “While matatu drivers are viewed as crooks, they regard other drivers as amateurs and always try to show them that they have superior driving skills.”

However, adopting the Swedish approach, one would not just settle for blaming the drivers, as the study, the NTSA and pretty much all of Kenya does. Considering the ecosystem they operate in, the ridiculous and seemingly suicidal behaviour of matatu drivers seems rational, reasonable even.

Kenya, on the other hand, has historically had a rather tenuous relationship with safety and a huge appetite for risk. From our politics to security to our hospitals, being Kenyan is like a constant dicing with death.

The late Donella Meadows, in Thinking in Systems – A Primer described a system as “a set of things—people, cells, molecules, or whatever—interconnected in such a way that they produce their own pattern of behavior over time,” and invited us to consider the implications of the idea that any system, to a large extent, causes its own behavior. Consider the Kenyan public transport system, which is privately owned and dominated by matatus.

Most matatu crews are not salaried. They basically have a deal with the matatu owner where they deliver an agreed sum every day and get to share what is left over. This means that their daily income is directly tied to how many people they carry and how many trips they make. At the same time, as this Africa Uncensored investigation reveals, most traffic policemen on the road are there, not to enforce the rules, but to extort bribes, matatus being a favourite target. In fact, during vetting by the National Police Service Commission last year, many traffic officers were unable to explain the source of their wealth and the many mobile transactions they seemed to be making. Given that it has been reported that most actually pay their superiors for the privilege of being deployed on the roads, it does not take a rocket scientist to figure out where they were sending the money.

The rub of this is that matatu drivers have big incentives to stop anywhere to pick up passengers and to make as many trips as possible, even when this means driving like madmen. The police, on the other hand, have little incentive to enforce the law. And given that many powerful government officials and senior police officers own matatus, there is little incentive to fix the problem.

Looked at from this perspective, it is clear that the problem is less incompetent drivers with an attitude problem, but rather the perverse system of incentives which generates the behaviour. Thus the solutions proposed, such as retraining and recertifying drivers, will have little effect. As US philosopher Robert Pirsig, wrote in his book Zen and the Art of Motorcycle Maintenance, “if a factory is torn down but the rationality which produced it is left standing, then that rationality will simply produce another factory.” Similarly, retraining drivers without changing the underlying system will resolve nothing.

Considering the ecosystem they operate in, the ridiculous and seemingly suicidal behaviour of matatu drivers seems rational, reasonable even.

Changing the system would require the NTSA to confront more powerful forces than lowly matatu crews, but is the true measure of the government’s commitment to dealing with the carnage matatu’s wreak on the road. However, it is not just where matatus are concerned that Kenya could benefit from a serious retooling. Rather than shooting from the hip when confronted with speeding or drinking drivers, the country would do well to adopt a research and evidence-based approach which looks at the problem in all its facets. For example, if, as one study found, “mandatory seat belt use laws and beer taxes may be more effective at reducing drunk driving fatalities than policies aimed at general deterrence,” should Kenya be focusing on those?

An important aspect of ensuring roads are safe is ensuring the road system caters for the needs of all its users, not just a few of them. That requires understanding how the roads are actually used. According to the World Bank’s Kenya State of the Cities Baseline Survey released in March 2014, half the labour force and three-quarters of students walk to work or to school. Another 43 percent and 19 percent respectively use matatus. Only 3 percent actually drive to work. Yet Kenyan roads treat pedestrian traffic as an afterthought and, as detailed above, the public transport system is in a shambles. This inevitably creates conflicts and, as statistics show, it is passengers and pedestrians who bear the brunt of the violence on our roads. Similarly, as the use of motorcycle-taxis, or bodaboda, has increased, so has the number of fatalities and injuries associated with them.

Concepts such as the Dutch-inspired “shared space”, which does not privilege cars and other motorized transport but rather treats the road as a community asset for the use of all traffic, motorized or otherwise, could help reduce the carnage. Well thought-out policies, including pedestrianizing the CBD, have been successfully adopted in cities like Pontevedra in Spain, which eliminated 53 percent of traffic in the city as a whole and 97 percent at its historical centre. “We inverted the pyramid,” its long serving Mayor, Miguel Lores, says, “leaving the pedestrians above, followed by bicycles and public transport, and with the private car at the bottom.” As a result, the city has not had a single traffic fatality in 6 years.

Understanding behaviour on the roads does not require condoning its unsavoury aspects. Rather, it means Kenya can get to grips with the systemic reasons such behaviour is prevalent and why it is destructive. It means, beyond demonizing road users, the NTSA and other stakeholders within and outside the government consider how they contribute to the problem, and what needs to change in order to either eliminate the incentives for that behaviour or to mitigate its effects.

Concepts such as the Dutch-inspired “shared space”, which does not privilege cars and other motorized transport but rather treats the road as a community asset for the use of all traffic, motorized or otherwise, could help reduce the carnage.

In fact, Kenyan roads are a microcosm of the colonially-inspired hierarchies at work in Kenya and the relative values they place on the time, lives as well as the fortunes of the various classes of Kenyans. At the very top is the political class and those riding on their coat tails, from government officials to the wannabe county potentates for whom nothing is allowed to get in the way of their dash to riches. The tiny middle class is next in line and at the very bottom of the pile are the poor, whose presence on the Kenyan road is barely tolerated despite their vastly superior numbers. When, periodically, their anger spills over in riots and “mass action” they can take over the streets entirely. Like the traffic police, the institutions of accountability simply serve to keep everybody in their proper place. They are there to police the citizens, to clear a path for their betters.

Eliminating traffic deaths and injuries is an achievable goal. But to do it, Kenya must change, not just its roads and its drivers, but itself. The country must revolutionize its approach to the problem and start seeing people as the reason the road system, and indeed the entire rubric of government, exists. In short, like Sweden, it must “create a system for the humans”.

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