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KENYA ON TRIAL: Truth, Justice and the Supreme Court

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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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Congo-Brazzaville Strongman Buys Secret Weapons Haul from Azerbaijan

Congo-Brazzaville’s repressive government has quietly bought an arsenal from Azerbaijan. Opponents of President Denis Sassou-Nguesso say one recent cache is designed to tighten his grip on the nation.

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Congo-Brazzaville Strongman Buys Secret Weapons Haul from Azerbaijan
Photo: Marco Longari/AFP
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First published by our partner OCCRP and Mail & Guardian (South Africa, in English).

In January 2020, at the Turkish port of Derince on the eastern shores of the Sea of Marmara, a huge cache of weapons was loaded onto the MV Storm. Registered in the tax haven of Vanuatu, the ship set sail with an arsenal of mortar shells, multiple launch rockets, and explosives, en route from Azerbaijan to the Republic of the Congo, better known as Congo-Brazzaville.

In total, more than 100 tons of weaponry wound its way to a building that appears to be the headquarters of Congo-Brazzaville’s elite Republican Guard, according to a confidential cargo manifest obtained by OCCRP. The cargo, estimated to be worth tens of millions of dollars, was just the latest in a series of at least 17 arms shipments sent by Azerbaijan’s Ministry of Defense to the regime of President Denis Sassou-Nguesso since 2015, according to flight plans, cargo manifests, and weapons inventories obtained by OCCRP.

Saudi Arabia was listed as the “sponsoring party” on several of the cargo manifests reviewed by reporters. It’s unclear what that sponsorship entailed, but it could mean that Riyadh paid for the weapons or the cargo deliveries.

Credit: Edin Pasovic/OCCRP Key sites for arms deals between the Republic of the Congo and Azerbaijan.

Key sites for arms deals between the Republic of the Congo and Azerbaijan. Credit: Edin Pasovic/OCCRP

There are no public records of Azerbaijan exporting these weapons, and no similar records of Congo-Brazzaville importing them. The latest transfer has sparked opposition concerns that Sassou-Nguesso is prepared to use force if necessary to maintain power as the country’s March 21 election nears.

His well-armed security services are a key reason he has ruled the Central African country for 36 years, split between two separate terms, making him one of the world’s longest-serving leaders. His party looms large over parliament, which recently changed the constitution to allow Sassou-Nguesso to run for office again, sparking local and international condemnation. The move means the 77-year-old could, in theory, run in every election for the rest of his life.

OCCRP has obtained confidential documents showing that in the eight months preceding the March 2016 election, and for over a year after it, Sassou-Nguesso’s security services bought more than 500 tons of arms from Azerbaijan in 16 separate shipments. Just weeks after the vote, the government began a brutal campaign against a militia from an opposition stronghold that lasted for more than a year.

President Denis Sassou-Nguesso is seen in 2014. Credit: Wikimedia Commons/Amanda Lucidon/White House

President Denis Sassou-Nguesso is seen in 2014. Credit: Wikimedia Commons/Amanda Lucidon/White House

Opposition leaders claim the Republican Guard used the Azerbaijani weapons in that post-election conflict, spurring a humanitarian emergency which the United Nations said affected around 140,000 people in the region of Pool, in the country’s south. Satellite imagery obtained by international media outlet The New Humanitarian appears to show widespread destruction caused by weapons like rocket launchers and explosives. (There is no way to be certain that these weapons were from Azerbaijan, since Congo-Brazzaville does not declare its arms imports.)

Since 2015, Congo-Brazzaville has bought a huge weapons stockpile from Azerbaijan, with over 500 tons of weapons delivered to the country in multiple shipments.

Sassou-Nguesso’s regime is facing one of Africa’s most severe debt crises, raising questions about how these arms shipments have been financed. Documents show that at least two consignments delivered between 2016 and 2017 were sponsored by Saudi Arabia, at a time when Riyadh was vetting Congo-Brazzaville’s application to join the Organization of the Petroleum Exporting Countries (OPEC). Given Congo-Brazzaville’s significant oil reserves, the kingdom had an incentive to have a compliant Sassou-Nguesso government in the Saudi-dominated club, according to leading arms expert Andrew Feinstein, author of The Shadow World: Inside the Global Arms Trade.

The world’s biggest arms importer, Saudi Arabia is also an unremorseful supplier of weapons to global conflict zones including Yemen, where it is fighting Iranian-backed Houthi rebels.

Flight manifests list Saudi Arabia as a “sponsoring party” on multiple arms shipments to Congo-Brazzaville, dispatched in 2016 and 2017, as Congo-Brazzaville was on the verge of OPEC membership.

Described by critics as an oil cartel whose members must be compliant with Saudi output demands, OPEC helps the kingdom dominate global oil supply. The effect this has on oil prices, in turn, can boost petroleum revenues in member states.

OPEC’s 13 members include Africa’s biggest producers, Nigeria, Angola, and Algeria. Congo-Brazzaville, which eventually joined OPEC in 2018, would have been seen as a coveted member because it is one of the continent’s top oil producers, which gives OPEC even more heft.

Azerbaijan is not a full OPEC member but it is a significant oil producer.

Feinstein added that the latest Azerbaijan shipment could have been intended to give Sassou-Nguesso the arms to enforce his political will.

“The timing of this shipment is extremely suspicious, given Sassou-Nguesso’s previous crackdowns around elections,” he said. “The government is likely preparing to quash any dissent around the polls.”

A spokesman for Congo-Brazzaville’s government did not respond to multiple requests for comment. Azerbaijan’s Ministry of Defence did not respond to a reporter’s email seeking comment, and neither did a ministry representative listed on multiple documents. Saudi Arabia’s Ministry of Defense did not respond to questions about the nature of their sponsorship of the arms deals.

Boulevard Denis Sassou-Nguesso

The most recent weapons load, addressed to the Republican Guard at 1 Boulevard Denis Sassou-Nguesso in Brazzaville in January 2020, included 775 mortar shells and over 400 cases of rockets designed to be launched out of Soviet-era trucks, the confidential cargo manifest shows. The consignment from Azerbaijan was loaded onto the MV Storm at Derince, about 1,000 kilometers southeast of Istanbul.

The exact price paid by the Congolese regime for the arms shipment could not be verified, although an expert who examined the cargo manifests said it would be worth tens of millions of dollars. A former senior diplomat with access to information about arms inventories, who asked to remain anonymous for fear of reprisal from authorities, confirmed the authenticity of the cargo manifest and other documents and noted the sale price for the arms was likely well below market value.

The port of Derince in Turkey, where the most recent arms shipment set off for Brazzaville. Credit: Wikimedia Commons

The port of Derince in Turkey, where the most recent arms shipment set off for Brazzaville. Credit: Wikimedia Commons

The documents included end-user certificates, which are issued by the country importing the arms to certify the recipient does not plan to sell them onward.

In January 2020, more than 100 tons of weaponry was sent from Azerbaijan to Congo-Brazzaville’s Republican Guard, including 775 mortar shells and over 400 cases of rockets designed to be launched out of trucks.

Pieter Wezeman, a senior researcher at the Stockholm International Peace Research Institute, said arms received at a discount are often either surplus weapons or those produced in Bulgaria or Serbia, which are both known for their cheap ordnance.

“It would be less likely that Congo-Brazzaville would be able to buy some of this equipment from … other European countries which have more restrictive arms export policies,” he said.

The Pool Offensive

The 100-ton shipment from Derince was significant, but separate documents reveal another arsenal sent from Azerbaijan between 2015 and 2017 that dwarfed it — and may have had terrifying consequences.

In total, over 500 tons of weapons, including hand grenades, mortar systems, and millions of bullets, were sent to Congo-Brazzaville in 16 shipments during those years, according to documents including inventories, end-user certificates, and cargo manifests obtained by reporters.

One end-user certificate shows five thousand grenades imported for the purposes of “training, anti-terrorism, security and stability operations.” It was signed by a special adviser to President Sassou-Nguesso on March 3, 2016, just days before the election.

After the vote, the opposition claimed the government had rigged the election in favor of Sassou-Nguesso, and unrest broke out in the capital, Brazzaville. The government blamed the unrest on a militia known as the Ninjas, made up of people mainly from the Lari ethnic group and based in the Pool region, which partially surrounds Brazzaville.

A burnt-out vehicle is seen on the road from Brazzaville to Kinkala. Credit: Philip Kleinfeld/IRIN, via The New Humanitarian

A burnt-out vehicle is seen on the road from Brazzaville to Kinkala. Credit: Philip Kleinfeld/IRIN, via The New Humanitarian

 

The weapons from Azerbaijan were then used, an opposition leader claims, to help fuel a prolonged armed conflict in Pool targeting the Ninjas. Amnesty International condemned the offensive as “an unlawful use of lethal force by the country’s security forces.” As the government pursued the Ninjas, witnesses to the carnage told Amnesty that dozens of bombs were dropped from helicopters, hitting a residential area and even a school.

“During the violence in Pool, the regime deployed a scorched earth strategy,” said Andréa Ngombet Malewa, leader of the Incarner l’Espoir political party. “The weapons that they bought from Azerbaijan went straight to that operation.”

The Baku-Brazzaville Connection

Azerbaijan has emerged as a key foreign ally of Congo-Brazzaville, providing its regime with discount arms and, perhaps more importantly, secrecy.

Azerbaijan’s Ilham Aliyev, right, is seen with Turkish leader Recep Tayyip Erdogan at a 2018 parade in Baku. Credit: Wikimedia Commons/Government of Azerbaijan

Azerbaijan’s Ilham Aliyev, right, is seen with Turkish leader Recep Tayyip Erdogan at a 2018 parade in Baku. Credit: Wikimedia Commons/Government of Azerbaijan

Buying from Ilham Aliyev, strongman of the notoriously opaque South Caucasus nation, Congo-Brazzaville could do so in the knowledge that the sales wouldn’t be reported.

Congo-Brazzaville has not reported any arms imports for more than three decades, and since there’s no arms embargo in place against the country, it isn’t required to do so. Nonetheless, a trail exists, with disclosures by other countries showing Sassou-Nguesso has been active in the arms market. In 2017, Serbia reported exporting 600 assault rifles to Congo-Brazzaville. Bulgaria sent 250 grenade launchers.

Opposition figures claim that previous shipments of weapons from Azerbaijan were used to fuel a brutal post-election offensive in 2016 that led to a humanitarian crisis.

But the Azeri weapons shipments have never been publicly reported, even though documentation seen by OCCRP shows Azerbaijan has been exporting lethal weapons to Sassou-Nguesso since at least as far back as September 2015. Some of the weapons were sourced from Transmobile, a Bulgarian company authorized to trade weapons for Azerbaijan, while others were bought from Yugoimport, a Serbian manufacturer. Neither company responded to requests for comment.

The first shipments of arms arrived in Brazzaville on Azerbaijani Air Force planes, but starting in 2017 a private carrier, Silk Way Airlines, began flying the weapons in instead. As a private carrier, Silk Way would have likely received less scrutiny than its military counterpart.

A Silk Way Airlines Boeing-737 leaves Hong Kong in 1999. Credit: Wilco

A Silk Way Airlines Boeing-737 leaves Hong Kong in 1999. Credit: Wilco

Silk Way is registered in the British Virgin Islands, a tax haven, and was previously linked to the Aliyev family. As well as previously winning lucrative contracts with the U.S. government to move ammunition and other non-lethal materials, Silk Way was found, in leaked correspondence reported by Bulgarian newspaper Trud, to have used flights with diplomatic clearance to secretly move hundreds of tons of weapons around the world, including to global conflict zones, between 2014 and 2017. The airline did not respond to a request for comment.

Braced for a Crackdown

As his regime heads to the polls on March 21, strongarm tactics mean Sassou-Nguesso is expected to win. He will reportedly face Mathias Dzon, his former finance minister from 1997 to 2002, and Guy-Brice Parfait Kolélas, who finished second in the 2016 presidential election, among others.

Saudi Arabia was listed as a “sponsoring party” in at least two arms consignments sent in 2016 and 2017, around the same time Congo-Brazzaville’s admittance to OPEC was being negotiated.

In 2016 he claimed 60 percent of the vote, with Kolélas securing just 15 percent. The U.S. slammed the government for “widespread irregularities and the arrests of opposition supporters.”

Then-U.S. Secretary of State John Kerry greets Denis Sassou Nguesso at a U.S.-Africa Summit in Washington, D.C., on August 6, 2014. Credit: U.S. Department of State/Flickr

Then-U.S. Secretary of State John Kerry greets Denis Sassou Nguesso at a U.S.-Africa Summit in Washington, D.C., on August 6, 2014. Credit: U.S. Department of State/Flickr

Experts don’t believe the opposition will fare any better this time around. Abdoulaye Diarra, a Central Africa Researcher for Amnesty International, said the government is carrying out a pre-election campaign of intimidation, harassment and arbitrary detention against its political opponents.

Fears that press freedom could be under threat ahead of the polls have risen after Raymond Malonga, a cartoonist known for satirical criticism of the authorities, was dragged from his hospital bed by plainclothes police at the beginning of February.

And now, the weapons haul from Azerbaijan has the opposition concerned about the prospect of violence around the polls.

“We are worried that the weapons that Sassou-Nguesso’s regime bought from Azerbaijan could be used to crack down on the opposition during the upcoming election,” said opposition leader Ngombet.

“They don’t want the world to see how much the Congolese people are eager for political change.”

Simon Allison, Sasha Wales-Smith, and Juliet Atellah contributed reporting.

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A Class That Dare Not Speak Its Name: BBI and the Tyranny of the New Kenyan Middle Class

Even as they exert coercive power in Kenya, members of this class remain largely unrecognised as a class with its own economic interests and one that holds contemptuous and racist views of Africans despite being made up of Africans.

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A Class That Dare Not Speak Its Name: BBI and the Tyranny of the New Kenyan Middle Class
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Despite many Kenyans’ opposition to the Building Bridges Initiative there is a sense that politicians are moving with the project full steam ahead and there is nothing the people can do about it. More perplexing is the fact that with elections just over a year away, the fear of what supporting BBI could do to their political careers does not seem to faze the politicians. What explains this powerful force against democracy?

I argue here that the aspect of the BBI — and its charade of public participation — that most passes under silence is the role of the civil service and the intelligentsia. Behind the spectacle of car grants to members of the County Assemblies is an elite that is growing in influence and power, and is pulling the puppet strings of the political class. The bribery of MCAs would have been impossible without the civil service remitting public funds into their accounts. The president would not succeed in intimidating politicians if there were no civil servants — in the form of the police and prosecutors — to arrest politicians and charge them with corruption.

The academy’s contribution to the BBI has been in controlling the social discourse. The mere fact that it was written by PhD holders brought to the BBI an aura of technical expertise with its implied neutrality. Using this aspect of BBI, the media and academics tried to tone down the political agenda of the document. They demanded that discussion of the BBI remain within the parameters of academic discourse, bombarding opponents with demands of proof that they had read the document and exact quotations, refusing to accept arguments that went beyond the text to the politics and actors surrounding the initiative. Discussing the politics of BBI was dismissed as “irrelevant”.

Two cases, both pitting male academics against women citizens, illustrate this tyranny of technocracy and academics. In both cases, the professors implicitly appealed to sexist stereotypes by suggesting that the women were irrational or uninformed. In one debate in February last year, political science professor and vice-chair of the BBI task force, Adams Oloo, singled out Jerotich Seii as one of the many Kenyans who had “fallen into a trap” of restricting her reading of the document to only the two pages discussing the proposed prime minister’s post, while leaving out all the goodies promised in the rest of the document. Jerotich was compelled to reply, “I have actually read the entire document, 156 pages.”

Likewise, earlier this month, Ben Sihanya sat at a desk strewn with paper (to suggest an erudite demeanour) and spoke in condescending tones about Linda Katiba, which was being represented by Daisy Amdany. He harangued Linda Katiba as “cry babies”, demanded discussions based on constitutional sociology and political economy, and declared that no research and no citation of authorities meant “no right to speak”. He flaunted his credentials as a constitutional lawyer with twenty years’ teaching experience and often made gestures like turning pages, writing or flipping through papers as Amdany spoke.

The conversation deteriorated at different moments when the professor accused Linda Katiba of presenting “rumors, rhetoric and propaganda”. When Amdany protested, Sihanya called for the submission of citations rather than “marketplace altercations”. The professor referred to the marketplace more than once, which was quite insensitive, given that the market is the quintessential African democratic space. That’s where ordinary Africans meet, trade and discuss. And women are often active citizens and traders at the market.

Meanwhile, anchor Waihiga Mwaura did too little too late to reign in the professor’s tantrums, having already taken the position that the media is promoting, which is that every opposition to BBI is a “No” campaign, essentially removing the opposition from the picture on the principle of a referendum taking precedence.

Both cases reveal a condescending and elitist attitude towards ordinary Kenyans expressing opinions that run counter to the status quo. The media and academy have joined forces in squeezing out ordinary voices from the public sphere through demands for academic-style discussions of BBI. When discussions of BBI first began in 2020, these two institutions bullied opponents of the process by imposing conditions for speaking. For instance, in the days before the document was released, opponents were told that it was premature to speak without the document in hand. In the days following the release of the document, demands were made of Kenyans to read the document, followed by comments that Kenyans generally do not read. The contradiction literally sounded like the media did not want Kenyans to read the BBI proposals. Now it has become typical practice for anchors and the supporters of BBI to challenge BBI opponents with obnoxious questions such as “You have talked of the problems with BBI, but what are its positive aspects?” essentially denying the political nature of BBI, and reducing the process to the cliché classroom discussion along the lines of “advantages and disadvantages of …”

Basically, what we are witnessing is autocracy by the media, the academy and the bureaucracy, where media and the academy exert symbolic power by denying alternative voices access to public speech, while the civil service intervenes in the material lives of politicians and ordinary people to coerce or bribe them into supporting BBI. Other forms of material coercion that have been reported include chiefs forcing people to give their signatures in support of the BBI.

In both these domains of speech and interactions in daily life, it is those with institutional power who are employing micro-aggression to coerce Kenyans to support BBI. This “low quality oppression”, which contrasts with the use of overt force, leaves Kenyans feeling helpless because, as Christine Mungai and Dan Aceda observe, low-quality oppression “clouds your mind and robs you of language, precision and analytical power. And it keeps you busy dealing with it so that you cannot even properly engage with more systemic problems.” In the end, despite the fact that there is no gun held to their heads, Kenyans face BBI with literally no voice.

But beyond the silencing of Kenyans, this convergence of the media, the academy and the civil service suggests that there is a class of Kenyans who are not only interested in BBI, but are also driven by a belief in white supremacy and an anti-democratic spirit against the people. I want to suggest that this group is symptomatic of “a new middle class”, or what Barbara Ehrenreich and John Ehrenreich have referred to as the “professional managerial class”, which is emerging in Kenya.

For the purposes of this article, I would define this class as one composed of people whose managerial positions within institutions give them low-grade coercive power to impose the will of the hegemony on citizens. The ideology of this class sees its members as having risen to their positions through merit (even when they are appointed through familial connections), and holds that the best way to address problems is through efficient adherence to law and technology, which are necessarily neutral and apolitical. This class also believes that its actions are necessary because citizens do not know better, and that by virtue of their appointment or their training, the members of this class have the right to direct the behaviour of ordinary citizens. Basically, this class is anti-political.

The worst part about this class is that it is a group of people who cannot recognise themselves as such. As Amber A’Lee Frost puts it, it is “a class that dare not speak its name.” This means that even as they exert coercive power in Kenya, members of this class remain largely unrecognised or discussed as a class with its own economic interests.

Even worse, this is a class that holds contemptuous – and ultimately racist – views of Africans despite being made up of Africans. For example, Mohammed Hersi, chair of the Kenya Tourism Federation, has been at the forefront of proposing the obnoxious idea that Kenya should export her labour abroad, the history of the Middle Passage notwithstanding. Despite a history of resistance to the idea that Africans should not receive any education beyond technical training, from the days of WEB Dubois to those of Harry Thuku, the Ministry of Education has introduced the Competency Based Curriculum (CBC), a new education system affirming that ideology. A few months ago, Fred Matiang’i waxed lyrical about the importance of prisons with these words which I must repeat here:

“To Mandela, prison was a school; to Malcolm X, a place of meditation; and to Kenya’s founding fathers, a place where visions of this country were crystallised. We’re reforming our prisons to be places people re-engineer their future regardless of the circumstances they come in.”

How is it possible for educated Africans to talk in public like this?

One factor is historical legacy. The civil service and institutions such as the mainstream media houses were established during colonial rule and were later Africanised with no change in institutional logic. This factor is very disturbing given that the media and the civil service in Kenya opposed nationalist struggles. During colonialism, it was the civil service, its African employees in the tribal police and the local administrations (such as chiefs and home guards), who crushed African revolt against oppression. This means that the Africans who were in the civil service were necessarily pro-colonial reactionaries with no interest in the people’s freedom.

Essentially, Kenyan independence started with a state staffed with people with no economic or political allegiance to the freedom and autonomy of Africans in Kenya. The better-known evidence of this dynamic is the independence government’s suppression of nationalist memories through, for instance, the assassination of General Baimungi Marete in 1965. What remains unspoken is the fact that the colonial institutions and ideologies remained intact after independence. Indeed, certain laws still refer to Kenya as a colony to this day.

It is also important to note that colonial era civil servants were not even European settlers, but British nationals sent in from London. This meant that the primary goal of the civil service was to protect not the settlers’ interests both those of London. Upon the handover of the state to Africans, therefore, this focus on London’s interests remained paramount, and remains so to this day,  as we can see from the involvement of the British government in education reforms, from TPAD (Teacher Performance Appraisal and Development) to the curriculum itself. This dynamic is most overt in the tourism and conservation sector, where tourism is marketed by the government using openly racist and colonial tropes, including promises to tourists that in Kenya, “the colonial legacy lives on”.

There was also a practical aspect to the dominance of these kinds of Africans in the civil service. As Gideon Mutiso tells us in his book Kenya: Politics, Policy and Society, the Africans who were appointed to the civil service had more education than the politicians, because as other Africans were engaged in the nationalist struggles, these people advanced in their studies. Upon independence, Mutiso says, the educated Kenyans began to lord it over politicians as being less educated than they were.

Mutiso’s analysis also points us to the fact that colonial control remained in Kenya through the management of the state by people whose credentials and appointments were based on western education. The insidious role of western education became that of hiding the ideology of white supremacy behind the mask of “qualifications”. As such, Africans who had a western education considered themselves superior to fellow Africans, and worse, British nationals remained civil servants in major positions even a decade into independence, under the pretext that they were technically more qualified.

Less known, and even less talked about, is the virulent anti-African dispensation in the post-independence government. The new government not only had within its ranks Africans who had fought against African self-determination during colonial rule, but also British nationals who remained in charge of key sectors after independence, among them the first minister of Agriculture Bruce McKenzie. Similarly, the only university in Kenya was staffed mainly by foreigners, a situation which students complained about during a protest in 1972.

The continuity of colonial control meant that civil servants were committed to limiting the space for democratic participation. Veteran politicians like Martin Shikuku and Jean-Marie Seroney complained that the civil service was muzzling the voice of the people which was, ideally, supposed to have an impact through their elected representatives. In 1971, for instance, Shikuku complained that the government was no longer a political organ, because “Administrative officers from PCs have assumed the role of party officials [and] civil servants have interfered so much with the party work.” Shikuku Inevitably arrived at the conclusion that “the foremost enemies of the wananchi are the country’s senior civil servants.” For his part, Seroney lamented that parliament had become toothless, because “the government has silently taken the powers of the National Assembly and given them to the civil service,” reducing parliament to “a mere rubber stamp of some unseen authority.” Both men where eventually detained without trial by Jomo Kenyatta.

However, the scenario was no different in the education sector. As Mwenda Kithinji notes, major decisions in education were made by bureaucrats rather than by academics. It was for this reason, for example, that Dr Josephat Karanja was recalled from his post as the High Commissioner to the United Kingdom to succeed Prof.  Arthur Porter as the first principal of the University of Nairobi, going over the head of Prof. Porter’s deputy, Prof. Bethwell Ogot, who was the most seasoned academic in Kenya with a more visionary idea of education.

Unfortunately, because the appointment went to a fellow Kikuyu, reactions were directed at Dr Karanja’s ethnicity, rather than his social status as a bureaucrat. Ethnicity was a convenient card with which to downplay the reality that decisions about education were being removed from the hands of academics and experts and placed in the hands of bureaucrats.

And so began the long road towards an increasingly stifling, extremely controlled administrative education system whose struggles we witness today in the CBC. As Kithinji observes, government bureaucrats regularly interfered in the academic and management affairs of the university, to the point of demanding that the introduction of new programmes receive approval from the Ministry of Education. Other measures for coercing academics to do the bidding of civil servants included imposing bonding policies and reducing budgetary allocations.

In the neoliberal era, however, this ideology of bureaucracy expanded and coopted professionals through managerial and administrative appointments. For instance, the practice of controlling academic life was now extended to academics themselves. Academics appointed as university managers began to behave like CEOs, complete with public relations officers, personal assistants and bodyguards. The role of regulating academic life in Kenya has now been turned over to the Commission for University Education whose headquarters are in the plush residential suburb of Gigiri. CUE regularly contracts its inspection work to academics who then exercise power over curriculum and accreditation under the banner of the commission.

With neoliberalism, therefore, bureaucrats and technocrats enjoy an increase in coercive power, hiding behind the anonymity provided by technology, the audit culture and its reliance on numbers, and concepts such as “quality” to justify their power as neutral, necessary and legitimate. However, the one space they now need to crack is the political space, and by coincidence, Kenya is cursed with an incompetent and incoherent political class. Life could not get better for this class than with the BBI handshake.

BBI therefore provided an ideal opportunity for an onslaught of the managerial class against the Kenyan people. The document under debate was written by PhD-holders, and initial attempts by professors and bureaucrats to defend the document in townhall debates hosted by the mainstream media backfired spectacularly. These technocrats were not convincing because they adamantly refused to answer the political questions raised around BBI, so they have taken a back seat and sent politicians off to the public to give BBI an air of legitimacy. Behind the scenes, however, support for BBI brings together the bureaucrats and the foot soldiers who are behind Uhuru, and the educated intelligentsia that is behind Raila.

And as if things could not get more stifling, Kenyans are looking favourably at the declared candidacies of Kivutha Kibwana, a former law academic, and Mukhisa Kituyi, a former United Nations bureaucrat, in the next presidential election. The point here is not their winning prospects, but the belief that maybe people with better paper credentials and institutional careers might do better than the rambling politicians. However, this idea is dangerous, because it places inordinate faith in western-educated Africans who have not articulated their political positions about African self-determination in an age when black people worldwide are engaged in decolonisation and the Black Lives Matter movement.

Basically, BBI is camouflaging the attack on politics and democracy in Kenya by a new managerial class. We are paying a heavy price for not decolonising our institutions at independence. Since independence, bureaucrats have whittled away at our cultural and institutional independence through police harassment, underfunding, the tyranny of inspections and regulatory control, and through constriction of the Kenyan public and cultural space. Even the arts and culture are tightly regulated these days, with the Ministry of Education providing themes for schools’ drama festivals and the government censoring artists in the name of morality. Worse, this new managerial class collaborates with foreign interests in a shared contempt for African self-determination.

Kenyans must be wary of academics and bureaucrats who use their credentials, acquired in colonial institutions, to bully Kenyans into silence. We must not allow bureaucrats and technocrats to make decisions that affect our lives without subjecting those decisions to public debate. We must recognise and reproach the media for legitimising the bullying from this new managerial class. And we must continue to recognise the Kenyan government as fundamentally colonial in its logic and practice and pick up the failed promise of the NASA manifesto to replace the master-slave logic of the Kenyan civil service. Most of all, we must learn to demystify education, credentials and institutional positions. Kenya is for everybody, and we all have a right to discuss and participate in what happens in our country.

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For J.M’s Ten Million Beggars, the Hustler vs Dynasty Narrative is a Red Herring

Hon. William Ruto’s hustler vs dynasty narrative is a shrewd way of redefining Kenyan identity politics in order to avoid playing the tribal card in his quest for the presidency.

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For J.M’s Ten Million Beggars, the Hustler vs Dynasty Narrative is a Red Herring
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Stifling the “hustler” vs “dynasty” debate will not save us from the imminent implosion resulting from Kenya’s obscene inequalities. While the debate is a welcome distraction from our frequent divisive tribal politics, leaders in government and society are frightened that it might lead to class wars. Our sustained subtle, yet brazen, war against the poor has made class conflict inevitable. If only we had listened to Hon. J. M. Kariuki, the assassinated former Member of Parliament for Nyandarua (1969-1975), and provided the poor with the means to develop themselves, perhaps the prospect of revolt would now be remote.

Could this be the angry ghost of J.M. Kariuki coming back to haunt us? Listen to his voice still crying from the grave, as did his supporters at a rally in 1974: “We do not want a Kenya of ten millionaires and ten million beggars. Our people who died in the forests died with a handful of soil in their right hands, believing they had fallen in a noble struggle to regain our land . . . But we are being carried away by selfishness and greed. Unless something is done now, the land question will be answered by bloodshed” (quoted by Prof. Simiyu Wandibba in his book J.M. Kariuki). Fired by this speech, his followers set ablaze 700 acres of wheat on Mzee Jomo Kenyatta’s farm in Rongai and slaughtered cattle with malice. Thus did J.M. invite his death.

What Hon. William Ruto propounds in his hustler vs dynasty debate is a shrewd way of redefining Kenyan identity politics. Ruto is re-directing the political narrative from the “us” vs “them” of tribalism, to one characterised by the poor and desperate (hustlers) who have seen subsequent governments betray their hopes for a better life, pitted against “them”, Ruto’s rivals, the offspring of politicians born to unfair and unearned privilege.

Wycliffe Muga, the Star newspaper columnist, has eloquently described them as the “sons of a hereditary political elite who absorbed all the benefits that came with independence, leaving ‘the rest of us’ destitute and having no choice but to beg for the crumbs under their table.” By opting for an alternative approach, Ruto hopes to avoid playing the tribal card to attain the presidency. For, besides his own, he would need the support of at least one other of the five big tribes who often reserve support for their own sons unless there is a brokered alliance. But even then, the underlying logic of Kenyan politics remains that of identity politics, which creates a binary narrative of “us” against “them”.

Meanwhile, Ruto has not only radicalised the poor, but he has also hastened the country’s hour of reckoning — judgement for the years of neglect of the poor — and this may ignite the tinder sooner we imagine.

In their article in The Elephant, Dauti Kahura and Akoko Akech observe that, “Ruto might have belatedly discovered the great socio-economic divide between the walala-hoi and the walala-hai in Kenya”. Ruto has galvanised the poor and their plight around the banner of the “hustler nation”, a nation aspiring to erase the tribal or geographical lines that have kept Kenyans apart. As a result the poor are restless as they compare their state with the ease of the lives of the affluent. But Ruto is not organising to awaken class-consciousness among the exploited.  ‘As Thandika Mkandawire, citing Karl Marx, observed, “The existence of class may portend class struggles, but it does not automatically trigger them. It is not enough that classes exist in themselves, they must also be for themselves”’, Kahura and Akech further reiterate.

The problem kicks in immediately he points to the “dynasty”. In juxtaposing the hustlers and dynasty, the poor find a target of hate, an object of their wrath. This situation can easily slide into violence, the violence emerging only when the “us” see themselves as all good and the “them” as all evil.

I worry this controversy has led us to that radicalisation stage where the poor see themselves as the good children of light fighting evil forces of darkness. In our case, the so-called hustler nation believe they are against the deep-state which doesn’t care about them but wants to give to the dynasty that which is due to them. They believe that this collusion between deep-state and dynasty is preventing them from reaching prosperity and so they blame their situation on those who they perceive to be the cause of their wretchedness. Interestingly, the colonial state always feared the day when the masses would rise up and topple it. Unfortunately, Ruto is using the crisis of the underclass created by the colonial state and perpetuated by the political class for political expediency and for his own self-advancement.

By declaring himself the saviour of the hustlers from the dynasties, Ruto — who is devoid of any pro-democracy and pro-suffering citizens political credentials — is perceived to be antagonising the Kenyatta family’s political and financial interests. He has with precision stoked the anger of the poor against particular political elites he calls dynasties and the Odingas, the Kenyattas, the Mois and their associates have become the hustler nation’s enemy. So, one understands why President Uhuru Kenyatta considers Ruto’s dynasty vs hustler debate “a divisive and a major threat to the country’s security”, which he fears may degenerate into class warfare.

Hon. Paul Koinange, Chairman of the Parliamentary Administration and Security Committee errs in his call to criminalise the hustler vs dynasty narrative. If this is hate speech, as Koinange wants it classified, then neglect of the poor by their government is a worse form of hate speech. The application of policies favouring tender-preneurs at the expense of the majority poor, landless and unemployed will incite Kenyans against each other faster than the hustler vs dynasty narrative. The failure to provide public services for the poor and the spiralling wealth of the political class must be confronted.

We have been speeding down this slippery slope for years. According to the Kenya National Bureau of Statistics (KNBS) data released in December 2020, only 2.92 million Kenyans work in the formal sector, of which 1.34 million or 45.9 per cent earn less than Sh30,000. If we accept that the informal sector employs another 15 million Kenyans, an overwhelming majority (71 per cent) would be in micro-scale enterprises or in small-scale enterprises (which make up 26 per cent). This implies that 97 per cent of our enterprises are micro or small, and these are easily wound up. The situation is exasperated by the opulence at the top. The UK-based New World Wealth survey (2014) conducted over 5 years paints a grim picture of wealth distribution in Kenya. Of the country’s 43.1 million people then, 46 per cent lived below the poverty line, surviving on less than Sh172 ($2) a day.

The report shows that nearly two-thirds of Kenya’s Sh4.3 trillion ($50 billion) economy is controlled by a tiny clique of 8,300 super-wealthy individuals, highlighting the huge inequality between the rich and the poor. Without a clear understanding of these disparities, it is difficult to evaluate the currents that are conducive to the widening of this gap not to mention those that would bridge it. Hon. Koinange should be addressing these inequalities that the masses are awakening to rather than combatting the hustler narrative. Our government must be intentional in levelling the playing field, or live in perpetual fear like the British colonials who feared mass revolt across imaginary ethnic lines.

In Kenya, past injustices have yielded gross inequalities. In Reading on inequality in Kenya: Sectoral Dynamics and Perceptions, Okello and Gitau illustrate how state power is still being used to perpetuate differences in the sharing of political and economic welfare. Okello further observes that: “In a country where for a long time economic and political power was/has been heavily partisan, where the state appropriated for itself the role of being the agency for development, and where politics is highly ethnicised, the hypothesis of unequal treatment has been so easy to build.”

This, and not the euphoria of the hustler nation, is the pressure cooker that is about to explode. The horizontal manifestation of inequality stemming from the failure of state institutions and policies that have continued to allow inequalities to fester is what should be of concern to the state. How can the government not see the risk such extreme economic disparities within the population pose for the nation’s stability?

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