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THE SUPREME COURT VERSUS THE COURT OF PUBLIC OPINION: Why Raila Odinga’s second petition matters

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Raila Wins

For the second time in as many elections, presidential candidate Raila Odinga has taken his case to Kenya’s highest court, the Supreme Court, alleging that he was robbed of victory. Four-and-a-half years ago, he grudgingly accepted the verdict of the six judges who ruled on his petition and who dismissed every issue he raised. Their written judgement has been excoriated across the globe for its shaky reasoning and privileging of procedure over substance. So, can Raila expect the court to be any more inclined to give him a better hearing this time?

There are significant differences between the current and the 2013 Supreme Court. By 2013, the court had already lost its Deputy Chief Justice, Nancy Baraza, to an ill-advised public altercation with a security guard reportedly involving nose-grabbing and admonitions to “know people”. The obvious effect of this was the risk of a hung court, with three justices voting each way, a situation that appears unforeseen and unaddressed by our constitution. Thus this may have been a significant consideration for the relatively young court and may have contributed to the absolute unanimity of the 2013 decision.

The 2013 judgement was a kick in the teeth, not just for the Raila campaign, but for the 2010 constitution and many of the progressive principles underlying it. And, as lawyer Wachira Maina described it, the judgement was “both detailed and important, but the parts that are detailed are not important and those that are important are not detailed.”

This time, however, the full complement of seven judges is available. However, it not the same bench. Two of the judges who heard the first petition have since left the court, some of them kicking and screaming and at least one under a cloud of suspicion. Kalpana Rawal, who replaced Baraza as the Deputy Chief Justice, promptly sued her employer, the Judicial Service Commission (JSC), to try and avoid being forced to retire at the age of 70, as specified in the constitution. It became an unseemly, farcical case that made its way to the Supreme Court, where she sat as a judge and which was riddled with conflicts of interest – some of the judges were themselves due to retire; others, such as the Chief Justice Willy Mutunga, were members of the JSC.

At the same time, Justice Philip Tunoi, who was among the Supreme Court judges fighting to forestall retirement, found himself embroiled in accusations of having taken a Sh200-million bribe in a petition against the election of Nairobi Governor Evans Kidero. A tribunal appointed by President Uhuru Kenyatta (following the JSC’s recommendation) to look into Tunoi’s suitability for office, however, had to wrap up its investigations prematurely after he was compulsorily retired by the recusal of Mutunga and Justice Smokin Wanjala from the Rawal case, which left no quorum.

Further, the court’s privileging of procedural rules rather than the substance of the dispute, as when it threw out Odinga’s 800-page affidavit that contained the meat of his case, as well as its reliance on questionable precedents from Nigeria (not exactly a bastion of democracy), also represented a huge step backwards.

Although only four veterans of the 2013 petition remain, it is unclear whether the court has recovered from the largely self-inflicted wounds to its credibility. Further, there is one sense in which the Supreme Court is itself constitutionally illegitimate. And that is because its composition falls afoul of the constitutional principle that “not more than two-thirds of the members of elective or appointive bodies shall be of the same gender”. As it stands today, five of its seven judges are men, which is more than two-thirds. This, therefore, raises the question whether the court can enforce a constitution it so blatantly violates.

Another example of unconstitutional conduct by the court is the fee it has imposed for the filing of a petition. The Constitution is clear that “the State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.” Yet the Supreme Court requires that anyone exercising the right to challenge the presidential election pay a fee of Sh500,000 and deposit a further Sh1 million with the court as security for costs. Although this may not be much of an inconvenience to the super-wealthy NASA principals, in a country with an average annual per capita income of Sh100,000, it clearly “impede[s] access to justice” for the vast majority of the population.

However, there is another legacy of the first court that the current one still has to overcome, and that is the legacy of the 2013 judgement itself. In many ways, if it is to deliver a credible judgement, the court will have to confront and correct the deficiencies of that judgement. As Odinga said, it is an opportunity for redemption.

The 2013 judgement was a kick in the teeth, not just for the Raila campaign, but for the 2010 constitution and many of the progressive principles underlying it. And, as lawyer Wachira Maina described it, the judgement was “both detailed and important, but the parts that are detailed are not important and those that are important are not detailed.”

Importantly, the court subverted the idea of accountability by placing onerous burdens on the petitioners, rather than on the state, to prove what went wrong. This cannot be how the constitution conceptualised citizens’ relationship to the government. It generally should be enough for citizens to show that there is good cause for them to be suspicious of the state and up to the latter to demonstrate that what it did was both legal and proper.

The constitution was the culmination of a decades-long struggle to, in the words of John Harrington and Ambreena Manji, “tame the Kenyan Leviathan”, the authoritarian colonial state that had survived independence and nearly every attempt since to reform it. Throughout, the courts had been a central pillar in protecting the state from the people, almost always deferring to the wishes of the executive. “This deference was manifest, sometimes in outright bias, more often in a resort to procedural rules, denying citizens standing to hold the authorities to account.” The 2010 constitution was meant to reverse the concentration of power in the national executive and to make it more accountable. However, “rather than taming Leviathan the tendency of the [2013] decision has been to restore several of its key features.”

For example, the standard of proof established in the decision was onerously high. As Manji and Harrington stated, “All told, the Court has presented petitioners in presidential cases with almost insuperable obstacles of proof. The judgment casts them in the role, not of concerned citizens pursuing good governance, but as hostile prosecutors, charging the executive with culpable incompetence or serious criminal conduct and required to prove all elements of their case to the highest standard more or less… The effect of Court’s ruling in the immediate context is to insulate both the IEBC [Independent Electoral and Boundaries Commission] and the candidate which it declares to have won on the first round from effective challenge in almost all cases.”

The court also appeared to require that Odinga and his fellow petitioners not only prove that there were irregularities in the election, but also that, beyond reasonable doubt, without these irregularities, he would have won. As Maina notes, “The law as borrowed from Nigeria, combined with the new standard of proof, leads to this absurd result: Mr. Odinga could show that the irregularities were so gross that everything about the election is in doubt [but that] would not necessarily be to his benefit.” If the election was so impugned that one could not prove beyond reasonable doubt who won, “the result announced by IEBC would stand. This, surely, cannot be good law.”

Importantly, the court subverted the idea of accountability by placing onerous burdens on the petitioners, rather than on the state, to prove what went wrong. This cannot be how the constitution conceptualised citizens’ relationship to the government. It generally should be enough for citizens to show that there is good cause for them to be suspicious of the state and up to the latter to demonstrate that what it did was both legal and proper.

Odinga will be taking his case to the people, whose judgement will matter much more than that of the judges. There, burdens will be reversed. It will be the IEBC and Kenyatta on trial; they will have to demonstrate the propriety of their actions and, thus, of their claim to legitimacy.

Further, the court’s privileging of procedural rules rather than the substance of the dispute, as when it threw out Odinga’s 800-page affidavit that contained the meat of his case, as well as its reliance on questionable precedents from Nigeria (not exactly a bastion of democracy), also represented a huge step backwards.

Even the delivery of the judgement itself was wanting, with Chief Justice Mutunga opting not to read all of it in open court but rather delivering the verdict with a promise to avail the reasoning behind it within a fortnight. It thus seemed like either the judgement was too embarrassing to read out in its entirety or that the verdict came first and the reasoning later. The seeming privileging of unanimity also meant that the judges did not contribute individual judgements and thus we were unable to interrogate their individual reasons for coming to the conclusions that they did.

The rub of it is that, if followed, the precedent set by the 2013 decision virtually guarantees that the court will never reverse the IEBC’s declaration of a winner in the presidential election, especially not if that declaration is made in the first round. It is thus exceedingly unlikely, though obviously not impossible, that the second Odinga petition will fare any better than the first. However, that does not mean it is an exercise in futility. For there is another, much more important court he will be presenting his evidence to.

If the last time is anything to go by, every word of the proceedings will be broadcast to an attentive audience of millions of Kenyans. Odinga will thus be laying out his evidence not just for the benefit of judges in the sanitised environment of a court room but also to the fervent, anxious, speculative and intensely polarised country beyond. Odinga will be taking his case to the people, whose judgement will matter much more than that of the judges. There, burdens will be reversed. It will be the IEBC and Kenyatta on trial; they will have to demonstrate the propriety of their actions and, thus, of their claim to legitimacy.

He will not only dispense with the easy and thoughtless monikers, such as “perennial loser”, but will in the process fatally undermine Kenyatta’s authority. His petition will thus provide the necessary oxygen for any campaign of civil disobedience and peaceful protest that he may be inclined to pursue in a bid to either recover his rights or to push for further reform.

Legal declarations can bequeath power, but only the people can offer legitimacy. And it cannot be coerced out of them, whether through beatings, intimidation or even murder. It can only be given voluntarily. The election is just a way of attempting to entice it out of them. But for too long, the state has violated the bargain and tried to subvert the will of the people by stealing elections. In his testimony before the Senate last year, Samuel Macharia, the owner of Royal Media Services, the country’s largest TV and radio network, said he had evidence that every presidential election in the multiparty era, except the 2002 one, had been stolen.

So, while winning the election has some value, the legitimacy it is said to confer is dubious at best. By appealing directly to the people, Odinga will be seeking their endorsement to erode Kenyatta’s. If he succeeds, regardless of whether the Supreme Court still rules against him, his legacy will be secure as “The People’s President”. He will not only dispense with the easy and thoughtless monikers, such as “perennial loser”, but will in the process fatally undermine Kenyatta’s authority. His petition will thus provide the necessary oxygen for any campaign of civil disobedience and peaceful protest that he may be inclined to pursue in a bid to either recover his rights or to push for further reform.

And even though, like his father, Odinga never got to govern the neocolonial Kenyan state, his struggle in the Supreme Court will further undermine the state’s legitimacy and bring Kenya closer to the day when it is eventually overthrown.

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Mr. Gathara is a social and political commentator and cartoonist based in Nairobi.

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DIVIDENDS, DEFICITS, AND DEVELOPMENT: Can Kenyan Millennials Ride the Demographic Wave?

Falling fertility and mortality rates have put Kenya in line to reap the same demographic dividend that powered the rise of the Asian Tigers – but only if it gets its social and economic policies right. By PAUL GOLDSMITH

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DIVIDENDS, DEFICITS, AND DEVELOPMENT: Can Kenyan Millennials Ride The Demographic Wave?

The population surge now taking place across sub-Saharan Africa is this continent’s equivalent of the Western post-war Baby Boom. The congruence with demographic transitions elsewhere suggests that in theory, Africa’s “Baby Boomer” millennials are well positioned to affect a radical transformation. The case for a generational social movement intersects Kenya’s potential for a demographic dividend similar to the one underpinning the rapid rise of the Asian Tigers.

Two thousand years ago, Africans comprised an estimated 12 to 15 per cent of the world’s population. Africa’s share had dropped to 9 per cent by 1500 AD. By the end of the 19th century, the export of African slaves to the Americas and environmental calamities contributed to its decline to 6 per cent. Initial conditions, including the continent’s low population densities, physical and spatial barriers to communication, and historical isolation from other world regions, made it vulnerable to European exploitation.

Africa’s population began catching up during the decades of colonial rule, and spiked after independence. The continent’s share of the world’s population reached 17 per cent in 2017, and Africa is projected to host over a quarter of the world’s people by 2050. Naturally, the exceptionally high growth rates of the past several decades pose some formidable developmental challenges for Kenya and for the many other African nations with similar demographics.

Fewer births each year results in a country’s young dependent population decreasing relative to the working-age population. With fewer people to support, a country has a window of opportunity for rapid economic growth, but only if it gets its social and economic policies right. The decline in fertility, albeit slower than was the case in Asia, should exert a similar effect on African countries.

Kenya’s population has been surging since independence, growing from 8 million in 1960 to 13 million in 1975, and doubling to 26 million in 1995. These numbers confirm the fact that all the generations of Kenyans alive today were “Baby Boomers” when they came of age. The result is a population pyramid that over time has more in common with Mt. Kenya than with Mt. Kilimanjaro.

Since the colonial era, Kenya’s lopsided population distribution, where over 80 per cent of the population is concentrated in the 23 per cent of high potential land, has combined with the threat of environmental degradation to provoke Malthusian predictions of impending calamity. During the 1990s, urbanisation and the numbers of new university graduates entering the economy provoked a new set of concerns.

Kenya’s population has been surging since independence, growing from 8 million in 1960 to 13 million in 1975, and doubling to 26 million in 1995. These numbers confirm the fact that all the generations of Kenyans alive today were “Baby Boomers” when they came of age. The result is a population pyramid that over time has more in common with Mt. Kenya than with Mt. Kilimanjaro.

In 1998, I reviewed an internal US State Department analysis of the problem that outlined three future scenarios for Kenya: economic take-off; collapse; and muddling through. Where the document highlighted the prospects for political instability in the future if the then Moi regime of public mismanagement and political corruption were to persist, I opined that Kenyans were a resilient people who would somehow manage as long as the rains were okay.

This proved to be true. The rise in annual GDP growth during the following years may have partially offset the spreading rot, but the large numbers of educated youth entering the work force exposed the unsatisfactory state of affairs, as the accounts of urban millennials published in The Elephant over the last two months have shown.

Demographic dividends and deficits

Population growth in the form of natural increase and mass migration is one of the primary forces of historical change. However, demographic structure is acknowledged to be the more important indicator for developmental policy. The latest population numbers for Kenya provide the quantitative parameters of the country’s shifting generational balance.

Kenya Population Structure, 2017

Kenya Population Structure, 2017

Source:  CIA World Factbook

The backlash against the elders highlighted in many of the Elephant’s Millennial Edition is tempered by their relative scarcity. The elderly – people over the age of 65 – now comprise only three per cent of Kenya’s 48 million population. The 25-54 age group’s current share of the population is now one-third larger than it was in 1975.

One notices the difference conveyed by these statistics as soon as you step off the plane almost anywhere in the northern hemisphere. America’s retiring Baby Boomers, for example, are 16 per cent of the U.S. population. In South Korea, so often cited to underscore the two countries’ diverging economic pathways over the past several decades, the figure is 13.5 per cent. The world’s estimated average is edging towards 10 per cent and growing; the trend will translate into a global reduction in household savings and returns on financial assets. This will reduce the growth of household wealth from the historical mean of 4.5 per cent to 1.3 per cent over the next two decades, according to research on global demographic trends.

These numbers qualify the demographic dividend David Ndii referred to in his contribution to the discourse. Formally defined, the demographic dividend is the accelerated economic growth assisted by a decline in a country’s mortality and fertility and the shift in the age structure of the population. This dividend can be activated when pro-human capital policies combined with a large working-age population create virtuous cycles of wealth creation.

The dividend accounted for an estimated two-fifths of the Asian economic miracle. Now it may be Africa’s turn. Population numbers are moving in this direction, but there are basic prerequisites that must be in place for it to happen. Flexible labour markets, quality education systems and health services, and outward-looking economic policies are conventional elements of the formula.

Kenya’s formal policy framework meets most of the criteria. Despite the slower than expected fertility rate decline, Kenya’s dependency ratio is hovering between 76 per cent and 80 per cent. This means one working individual currently supports up to four dependents, but the ratio will decline, bringing Kenya in the rank of countries expected to reap the dividend. But there is no guarantee that this will happen, as the dividend is time-bound. The equation has real and potential implications for millennials, especially considering that important economic indicators, such as investments and savings, are trending in the opposite direction.

The demographic surge raises the stakes for getting policy right. In the case of Latin America, weak governments and closed economies saw large areas forfeit their dividend during the years between 1965 and 1985. Comparative analysis indicates the interactive effect of policy and demography accounts for 50 per cent of the growth gap between Latin America and East Asia. The corresponding observations about demographic deficits, or the failure to maintain living standards due to population decline or other systemic inefficiencies, underscore the imperative of getting the long-term policy equation right.

The demographic surge raises the stakes for getting policy right. In the case of Latin America, weak governments and closed economies saw large areas forfeit their dividend during the years between 1965 and 1985.

Japan and Europe are now going through the decline phase of their demographic transition. Socio-economic change diminishing the role of extended families and other social mechanisms exacerbates the problem, requiring that the state enact effective social policies to bridge the gap. Although post-war Japan maximised its dividend, it is still having problems coping with a population that is shrinking and aging at the same time. Despite its sustained economic growth, almost half of South Korea’s citizens aged over 65 now live in relative poverty, defined in this case as earning 50 per cent or less of median household income. High levels of isolation and depression have led to a dramatic rise in suicide among the elderly, from 34 per 100,000 people in 2000 to 72 per 100,000 people in 2010.

The United States, in contrast, has traditionally relied on immigration to maintain its working-age population. This has countered the aging variable while sustaining a major source of socio-economic revitalisation in the form of new blood and cultural diversity. The noise from President Donald Trump and his base conflicts with the fact that the 75 per cent of Americans support immigration, and they report that the diversity of immigrants makes the country a better place. The country has systematically capitalised on this multicultural dividend to rejuvenate the population and refresh its economy throughout its history. Present controversies over uncontrolled immigration and refugee influxes camouflage the fact that Europe has lately been following a similar – though undeclared – policy pathway.

Demographic transitions typically involve a large jump in population followed by a steady decline as investment in fewer children replaces the risk-spreading and agricultural labour function of large families. In Kenya, where the fertility rate remained in the mid-3 per cent range until the last decade, perhaps the prolonged transition to “adulating” lamented in some of the millennials’ accounts may hasten the fertility rate to drop to the replacement level of 2.1 children per woman from the 2.7 of the past decade.

The employment numbers indicate that the process of reaping the dividend here is less linear and subject to the distinctive features of Kenya’s geography and domestic politically economy. The median age in Kenya is now 19, and Kenya’s 39 per cent overall unemployment rate translates into 22 per cent for youth. The numbers for neighbouring countries are much lower: 4.1 per cent for Uganda; 5.2 per cent for Tanzania; and 3.1 per cent for Rwanda. Even Nigeria, Africa’s most populous country, has a significantly-below-Kenya youth unemployment rate of 13 per cent.

Even though we should not accept all these economic numbers at face value (the less visible parallel economy that doesn’t show up in official statistics is an important source of informal sector livelihoods in Kenya), we may be facing the politically explosive demographic overload scenario that was detailed in the State Department study twenty years ago.

The median age in Kenya is now 19, and Kenya’s 39 per cent overall unemployment rate translates into 22 per cent for youth. The numbers for neighbouring countries are much lower: 4.1 per cent for Uganda; 5.2 per cent for Tanzania; and 3.1 per cent for Rwanda. Even Nigeria, Africa’s most populous country, has a significantly-below-Kenya youth unemployment rate of 13 per cent.

The demographic dividend has a finite window; it does not occur automatically. Both the policies and their timing are critical, which is why Kenya’s millennials are facing a two-pronged dilemma: unemployment is high yet some 47 per cent of the Kenyans sampled in a 2014 Pew Research Survey reported that aging is a major problem. The figures for populous Nigeria, crowded Egypt, and middle-income South Africa came in at 28 per cent, 23 per cent, and 39 per cent in comparison, respectively.

These factors raise the stakes for Kenya getting things right now. But there is more at the crux of the debate than economic policy and warm bodies. Technological innovation works with population increase to drive human adaptation, and developments are moving rapidly on this front.

The fast-moving advance of the fourth technological revolution suggests that Kenya and its neighbours in Rwanda and Ethiopia have the potential to jump the queue if they position themselves properly for the longer run. Negative implications of artificial intelligence for the future of work should not distract us from the benefits on the horizon. The technology sector and building the industrial Internet may serve the same role that manufacturing did in Asia, although the potential for the same demo-techno double dividend cannot be taken for granted.

Assessments of African economic trends now argue that Africa is not likely to transit through the phase of manufacturing and carbon-driven energy generation that powered the post-World War II rise of East Asia and other world regions. Fourth generation technologies, in contrast, can generate an equivalent rise in prosperity and economic growth. This will come about through their contribution to everyday economic domains like health care, resource management and precision agriculture. Digital platforms are already creating a new small-scale ecosystem for commodity marketing, financial inclusion, and women’s empowerment according to one Kenyan expert.

The potential for tech-driven growth will require more than the tech hubs being established in Africa’s tech-friendly countries. It requires the kind of unorthodox and often irreverent problem-solving mindset that the country’s education system is adept at quashing.

The dynamic relationships linking scientific research, applied technology, and venture capital are critical to contemporary processes of innovation. This requires an enabling cultural environment, as demonstrated by the rise of American tech hotspots in the San Francisco Bay area, North Carolina’s research triangle, and the northeastern corridor. These hotspots were not planned; rather, the presence of top research universities and a culture of critical thinking and entrepreneurial risk-taking enabled their rise to prominence over the past three decades.

Kenya’s economy was building towards a transformational tipping point before events saw the country drift into a nebulous purgatory of ethnic polarities and failed constitutionalism. Now deficit financing of infrastructural projects and massive corruption are continuing to remove from circulation critical resources that could be energising the younger generations’ pent-up human capital.

The future availability of such investment capital cannot be taken for granted. It may decline apace with the industrial world’s demographic deficit over coming decades. Then again, demographic trends and the historian John Illife’s treatise on The Emergence of African Capitalism suggest that the continent just may step into the gap. (This was in 1981.) The importance of this synergetic union of capital and labour happening now extend beyond the African continent due to the significance of Africa’s expanding share of the world’s economically active population for the world economy.

Kenya’s economy was building towards a transformational tipping point before events saw the country drift into a nebulous purgatory of ethnic polarities and failed constitutionalism. Now deficit financing of infrastructural projects and massive corruption are continuing to remove from circulation critical resources that could be energising the younger generations’ pent-up human capital.

Beyond demography and economic policy

The first thing that strikes me when I get off the plane back in Kenya is the high level of activity almost everywhere one looks. The country is bursting with energy, but some of it is misdirected and much of it is generating low per capita returns.

The former World Bank head for Kenya, Apurva Sanghi, attributes the mismatch between job requirements and the shortfall of skilled labour due to the poor quality of education. This mismatch clashes with the millennials’ claims about their high level of education. The dramatic growth in universities in Kenya saw quantity replacing quality and the acquisition of paper qualifications displacing the search for knowledge. The commercialisation of higher education has in effect been another drain on the economy that has deprived a large segment of the millennial generation of the skills commensurate with their degrees and diplomas.

The more one studies the data, the more muddled the already uncertain big picture becomes. Even so, the long-term fundamentals, including the country’s 5 per cent per annum growth rates, are at best just okay.

As the latest World Bank overview for Kenya states, Kenya has the potential to be one of Africa’s success stories. All the country has to do is address “the challenges of poverty, inequality, governance, the skills gap between market requirements and the education curriculum, climate change, low investment and low firm productivity in order to achieve rapid, sustained growth rates that will transform lives of ordinary citizens.”

This is a very tall order and until this happens the country will continue to face the risk of stagnation and a creeping demographic deficit. The clock is ticking. In any event, the country needs more than the population-based dividend to drive its transformation. Assuming that demographic growth and the right policies do account for up to 40 cent of the Asian economic miracle, where did the other 60 per cent come from?

Japan and the Asian Tiger nations achieved their reputation through rapid growth compacted within the space of several decades. The demographic dividend is the central component in the developmental mantra explaining East Asia’s remarkable transition. The dividend was activated by policies that combined agricultural commercialisation, liberalisation and the relaxing of state controls, fostering a combination of domestic industry and export-led growth with favourable international economic conditions.

South Korea, the most popular exemplar for other developing countries, implemented deliberate population policies and pragmatic economic guidelines that helped create an age structure facilitating its rapid transition from an agrarian to an industrial society during the short interval between 1960 and 1990. The mutually reinforcing economic and population policies resulted in a basic shift at the household level, with changes in women’s roles and the rise of a middle class in place of the formerly dominant land-owning aristocracy.

The Asian exemplars counteracted the influence of Malthusian assumptions on post-independence developmental thinking, and now the Chinese model figures prominently in the calculations of many African political decision-makers. The Lamu Port, South Sudan, Ethiopia Transport Corridor (LAPSSET) project is emblematic of the focus on large infrastructure projects, natural resource exports, and extractive industries. The proposed Konza Technology City is another worthy but flawed project representative of the central command approach. The coders, investors, nerds, and hackers are not thrilled about moving to a corporate complex in the hinterland in the tradition of sparsely inhabited cityscapes like Brasilia, Morogoro, and China’s Xiongan megacity.

Asia’s big blueprint approaches were consistent with the central planning tradition and Confucian ideologies of social harmony that justified past South Korean and present Chinese and North Korean dictatorships. But there was nothing particularly harmonious about the Asian developmental processes that grew out of the region’s intense internal and territorial struggles, all of which reflected the zero-sum stakes of the era’s ideological conflicts. The triumph of capitalism in that region was anointed with blood, napalm, and genocidal pogroms. The success of the Asian Tigers was the culmination of a long fight that began with imperialism and led to new policies midwifed by fierce competition within old societies sharing similar environmental settings and socio-economic constraints.

Africa’s distinctive features, however, contrast with the conditions underpinning the Asian developmental orthodoxy. In the case of Kenya, competition between communities and opposition to the state prevail whereas in Asia competition and conflict were over ideology and economic models. Growing local opposition to centrally-planned projects in places like Turkana, Isiolo, and Lamu is indicative of the kind of political and social obstacles now complicating the next phase of the proverbial way forward.

Milk, as the pastoralists’ blockade of the road to Lodwar indicates, is still thicker than oil in the Horn of Africa.

It is interesting that the Marxist planners of the superpower era in Eastern Europe saw artificial intelligence as the natural ally of socialist development. AI may still prove to be an antidote to the inequities promoted by neoliberal capitalism. Where Western advisors stressed population control, their socialist counterparts in Africa saw population growth as integral to the continent reclaiming its position on the world stage. The prospects of this happening over the next several decades reminds us that Marx was one of the few analysts to critique the natural laws of Malthus when he postulated that each society at each point in history has its own laws that determine the consequences of population growth.

In traditional African systems, these laws often reflected the dynamics of generational succession. The cultural emphasis on the wisdom of the elders supported their embedded cross-generational influence on decision-making. I witnessed negative examples of this tradition in my children’s schools, where on more than one occasion, I lost arguments with fellow parents over issues like setting up computer labs and Internet connections. Kenya’s fossilised education system is one of the culprits responsible for the under-35ers’ angst, and this is corroborated by another recent essay on the multidimensional crisis plaguing higher education, published in The Elephant.

Has the generational model of African development hit a wall? The unproductive transfer of generational assets that formerly sustained capital formation is undermining productivity in the highland areas that fueled Kenya’s post-independence prosperity. When parents die they bequeath their wealth to their children, and this powered economic growth and diversification in the past. This vector is now turning family farms into dead capital as the owners age and their children working outside the sector block the sale of family land. The widespread leasing of small acreages and the break-up of large farms into parcels for rent is one symptom of a malaise that impacts beyond the agricultural sector.

 

The economic planners that once fostered Kenya’s economic growth have morphed into bureaucrats trapped in the development administration contradiction Bernard Schaffer identified in 1969. Schaffer argued that the first imperative of state administrators is to conserve and protect their bureaucracies while “development” is essentially an entrepreneurial activity. Kenya’s cartels and tenderpreneurs offer proof of the term’s oxymoronic logic.

 

Everywhere the millennials look they see dead ends, or so it seems from the urban point of view. Ndii’s “Hustler Nation essay argues that multiple productivity enhancing interventions in rural areas will generate far more to youth employment and productivity than the mega project revenue vampires they have conjured up. The resources allocated to building a tech city, for example, would be better invested in interdisciplinary IT programmes hosted by universities across the country, and other nodes dedicated to addressing economic activities ripe for innovation.

Everywhere the millennials look they see dead ends, or so it seems from the urban point of view. Ndii’s “Hustler Nation” essay argues that multiple productivity enhancing interventions in rural areas will generate far more to youth employment and productivity than the mega project revenue vampires they have conjured up.

These are the kind of issues that the millennial generation intellectuals and activists would do well to explore and debate. Their future, if not present welfare, will likely depend on developing creative developmental formulae consistent with the region’s historical trajectory and distinctive socio-cultural variation. A shift in this direction is beginning to gather speed on the county level, where the stakeholders are much better situated to generate the adaptive policies needed to maximise the demographic dividend.

In any event, we now know that progress is more a function of trial and error than the strategic planning processes and interventions managed by actors who remain insulated from their failures and unintended consequences. Devolution generates local initiatives, like the Makueni County public health revolution, which can be replicated and tweaked to fit the conditions in other settings.

Considering the obsession with branding of almost every Kenyan enterprise, with its vision and mission statements, more expansive thinking on these issues is one area where The Elephant’s Millennial Edition articles came up short. But they are not, as David Ndii contended, “on their own”. In addition to their rural age-mates, there is a growing transnational movement out there that is beginning to coalesce into a mass generational movement.

I hope it happens. Africa does need to regain its rightful place in the world, and someone needs to rescue the species from the Trumpian values of late capitalism.

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THE ROAD TO HELL: The Kibera evictions and what they portend for human rights and ‘development’

The demolition of structures in Kibera to pave way for “development” has left in its wake shattered lives, broken dreams and a bitter distaste for Kenya’s politicians and institutions. By DAUTI KAHURA

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THE ROAD TO HELL: The Kibera evictions and what they portend for human rights and ‘development’

A responsible government takes care of its poor people until they are strong. Mwalimu Julius Nyerere: 1922–1999.

On the fifth day after the surprise dawn evictions at the infamous Kibera slums that lay in the path of a new road that is being constructed, I visited the area to witness first-hand the scorched earth policy that the government had employed to rout out the hapless slum dwellers. It was a bright sunny mid-morning with a clear blue skyline above but the area was eerily silent: From the District Officer (DC)’s offices, one could look yonder, as far as the eye could see, where once upon a time, there were structures and those structures housed human beings and their pets – cats, dogs, chicken, doves and rabbits, but now, all one could see was flattened land. The only movement was that of the Caterpillar bulldozer rumbling along like a military tank detecting land mines.

Kibera shares a border with the Nairobi Royal Golf Club, which is near former President Daniel arap Moi’s home, Kabarnet Gardens, and runs all the way down towards the Langata area. I met three elderly women who were watching the earthmover as it levelled the land where once stood their structures.

“I have lived here since 1969, and in my close to 50 years, I’ve never seen such a brutal, cold and calculated demolition from such a cruel government,” Mary Gikunda, a landlady whose structures (she declined to say how many she had) were flattened in a matter of seconds. “Those structures were my income, as well as my financial support for my children,” reiterated Ms Gikunda, who told me that all her (many) children were born in Kibera. Now in her mid-60s, the landlady seethed with fury against politicians, against state bureaucrats, against the security apparatus, against journalists, against anybody associated with the Jubilee government.

“Why would the government do this to us? I woke up very early to vote for Uhuru Kenyatta, believing and trusting that he would not allow this kind of demolition to occur, but obviously we were duped; we are always duped by these politicians,” posed Ms Gikunda. “Trust me, I will never vote again, I’m done. I’ve ran the course of my voting life. These people should leave me alone now. A road is a good thing – nobody in his right senses would oppose such a development. But is a road worth the wanton destruction you’ve just witnessed? Is it more important than people’s lives?”

“Why would the government do this to us? I woke up very early to vote for Uhuru Kenyatta, believing and trusting that he would not allow this kind of demolition to occur, but obviously we were duped; we are always duped by these politicians”

She and the two women were eating dry githeri (boiled maize and beans). “I was born here in Kibera,” said Josephine Munee. “I’ve spent all my life in Kibera, I know no other home. In all of my 65 years, we grew up being threatened by demolitions and evictions, but we fought back and we survived. Somehow, the past governments would perhaps think twice and have mercy on us, but this Jubilee government is something else.” Ms Munee observed that as the “wretched of the earth”, slum dwellers anywhere in Nairobi city were not the “owners of the land”, and so, the powerful and the mighty could do whatever they deemed fit, “but at 65-years-old, where would they expect me to go?”, she wondered aloud.

Rhoda Muthei, 87, was the oldest among the women: Because of her advanced age, her colleagues had looked for a plastic chair for her to prop up her back and rest on. In her Kikamba mother tongue, she asked them who I was and what is it that I wanted.

“I’m not in a mood to speak to anyone,” she told them. Persuaded to talk to me because I was not a state officer, she came to life and said, she came to Kibera via Langata in 1963, settling in her current abode proper in 1972. But now, it was no more and she did not know what to do and where to go. “I witnessed Jomo Kenyatta (the first President of the Republic of Kenya and the father of the current and fourth President Uhuru Kenyatta) being sworn in as the country’s first black leader in Langata and we ululated throughout the night, ecstatic in the knowledge that we could now henceforth self-govern ourselves. In the sunset of my years, I have no place to call home because the government does not have time for poor, old and dying women like me.”

However, even in the worst of adversity, people can have something to smile and live for. I walked 20 metres from where the three women were, navigating huge boulders to where Rachel Kerubo was, and found her preparing lunch on an open makeshift three-stone hearth. Charming and welcoming, she heartily invited me to lunch: ugali and omena (sardines) with kunde (indigenous bittersweet greens leaves). A delicious and nutritious dish, eaten mostly in low-income households, the meal is a mouth-watering combination that fills the stomach and is very pocket-friendly.

“I came to Kibera a decade ago after I was displaced by the 2007/2008 post-election violence in the Rift Valley,” said Kerubo. “There’s no respite for the poor and the weak in this country. Now it looks like I’m on the run again.” Her house in Kibera had been flattened, but she counted herself lucky: She was just in time to rescue her wooden chicken coop, part of her income-generating project when she came to Kibera. Her three-week-old chicks were scrounging the rubble for food with the help of the mother hen. In her mid-50s, Kerubo is as enterprising as they come.

Besides rearing chicken, she grew tomatoes on a 20X10 plot that she had rented next to where she lived. The tomato plants too had been flattened. With a group of other seven residents – five women and two men – Kerubo and her group had fund-raised to buy 10,000- and 5,000-litre plastic water tanks, where they stored water which they would sell to their fellow slum dwellers for a marginal profit. She also used part of the water to grow her tomatoes. “We were given two alternatives – we pour all the water and therefore save our tanks – or the bulldozers crush them,” Kerubo narrated to me. I found the water tanks lying on their belly on their raised wooden support, proof indeed that their contents had been rendered to the ground.

Across the field, on the other side of the wall, about 60 metres away, I found Halima Burhan cleaning dishes. Her ageing great aunty and daughter sat close by on the ground crossed-legged, their backs leaning on a semi-demolished mud wall. Tall and ebony black, Halima, at 63-years-old, is as energetic and as active as ever. Looking a little rugged, perhaps because of the vicissitudes of slum life, she still retains a trace of the impossible beauty that Nubian women are known for. “The Monday [July 23, 2018] morning demolition took us by complete surprise,” said Halima in proper Kiswahili sanifu (formal Kiswahili language).

“On July 16, government officials [these were Kenya Urban Roads Authority (KURA) personnel] descended on our homes, marked them with a red X sign, and told us that all the people who would be affected by the impending evictions would be paid a consolidated three-month payment to move away,” said Halima. “We asked them when the eviction notice was due, but they dodged the matter. They assured us nothing untoward would be done without our prior knowledge. Little did we know they had come for a last reconnaissance tour to confirm that all the intended houses and buildings to be demolished were clearly marked, as they duped us that nothing sinister was in the offing.” In hindsight, said Halima, it was the calm before the storm.

On July 16, government officials [these were Kenya Urban Roads Authority (KURA) personnel] descended on our homes, marked them with a red X sign, and told us that all the people who would be affected by the impending evictions would be paid a consolidated three-month payment to move away,” said Halima. “We asked them when the eviction notice was due, but they dodged the matter.”

The KURA officials had gone down to the three affected villages of Kichinjio, Mashimoni and Lindi that would be razed down on Monday to pave way for the link road between Langata Police Station and Karanja Road in Kibera, ostensibly to enumerate and take the slum dwellers’ particulars for what the dwellers were made to believe would result in restitution. Four days later, KURA sent out a WhatsApp message and copied both Amnesty Kenya and the Kenya National Commission on Human Rights (KNCHR). The message read as follows: “A multi agency team has successfully completed the Kibera enumeration process on 20th July 2018. The team is now analysing the data collected and once the process is complete, the Resettlement Action Plan (RAP) report will be availed to the public.”

Yet, perhaps, unlike many of her slum mates, Halima should have been aware of the demolitions, “if only I had not brushed away my grandchild’s naggings.” On Sunday [July 22] evening, her grandson Masud Talib was playing football near the DC’s offices, when he saw the bulldozers being parked at the compound. Eleven-year-old Masud, acting on a child’s instincts, ran back home and called out his grandma: “Bibi, bibi, tutavunjiwa, nimeziona matrekta zikipaki pale kwa DC. Nimewasikia wakisema watabomoa manyumba.” (Grandma, grandma, they will demolish, I’ve just seen the bulldozers being parked at the DC’s compound and I overheard them saying they will demolish our houses. “We Masud nawe acha hayo,” (Please Masud stop that) Halima responded. There was nothing usual about the presence of bulldozers at the DC’s place – the road (Karanja Rd) connecting to Ngong Road was still under construction.

About 12 hours later, at around 6.00am, Halima was woken up by earth tremors beneath her house and wondered what possibly that could be. The demolitions had began and people were scampering from their houses. Because her house is 500 metres from the DC’s offices, the bulldozers’ earthshaking movements were audible from far, and her house was among the first ones to fall under the hammer. “Alhamudillahi my grandson is alive,” said Halima in supplication. Inside her house was her 90-year-old great aunty, grandson Masud and her daughter and her 12-week-old newborn baby. “Since demolitions, we have been sleeping outside, Allahu Akbar [God is great], the elements have so far not affected the baby.”

“I was raised on my paternal grandfather’s land – this land that they have just evicted me from,” recalled Halima. She had now stopped doing the dishes and we were standing next to the ramshackle ruins – a crude reminder of what she once called home for more than half a century. Her grandfather, Marjan Sakar, a soldier of the British army, was among the first Nubians to be settled at Kibera.

Nubian origins

Kibera, which for the longest time has been synonymous with the Luo people, owes its existence to Nubians’ bravery and diction. Kibera is a corruption of Kibra, Ki-Nubi for forest or a bushy area. The Nubians came from Sudan, around the Nuba Mountains. They were identified first by the Egyptian ruler Emin Pasha and later by the British imperial government as brave soldiers. At different times, they were enlisted by both Pasha and the British to wage wars on their behalf.

Modern Nubian history records them as having been settled in Kibera around 1897, just before Kenya become a British protectorate. Those that were settled in Kibera were part of the 3rd Battalion of the King’s African Rifles who formed the bulk of the soldiers who had been deployed to fight for the British Empire. By 1900, Kibera was already a military reserve. This designated area, next to the railway, was surveyed in 1917 and was gazetted the following year. The land was estimated to be 4197.9 acres. From 1912 to 1928, Kibera was administered as a military area under the direct control of the army authorities. Anybody who wanted to settle in the area needed a special pass and one of the requirements was to have served in the army for at least 12 years.

In 1933, the colonial government appointed The Carter Land Commission to study and report on the land problems in Kenya. In reference to Kibera, the commission wrote: “It appears that this area was assigned to the King’s African Rifles in 1904, although not gazetted until many years later. There is nothing in the gazette to show for what reasons so large an area was required, but it is common knowledge that one of the objectives was to provide home for the Sudanese ex-askaris.”

In 1963, Kibera was fully incorporated into the city boundaries of Nairobi. By 1970, the original area of 4197.9 acres had been reduced to just 500 acres. Today that land is just under 300 acres. Large portions of Kibera were swallowed by middle-class estates, like Ayany, Jamhuri, Langata and Ngei, along Ngong Road, leaving the Nubians to be concentrated at Lindi, Kambi Aluru, Kambi-Lendu, Kambi Muru and Makina and along Karanja Road. In the fullness of time other ethnic communities, such as the Kikuyu, Kamba, Kisii, Luo and Luhya, settled in Kibera.

In 1933, the colonial government appointed The Carter Land Commission to study and report on the land problems in Kenya. In reference to Kibera, the commission wrote: “It appears that this area was assigned to the King’s African Rifles in 1904, although not gazetted until many years later. There is nothing in the Gazette to show for what reasons so large an area was required, but it is common knowledge that one of the objectives was to provide home for the Sudanese ex-askaris.”

“In 2016, Nubian elders took the government to court,” Halima told me. “They were seeking to stop the road passing through our land and the intended demolitions and evictions.” On August 5, 2016, the “Abdulmajid Ramadhan & 3 Others V Kenya Urban Roads Authority (KURA) & 4 Others” case was filed at the Environment and Land Court in Nairobi (Petition N0.974).

The court ruling

On April 28, 2017, Justice S. Okong’o ruled on the matter and directed KURA as follows: “In the interest of justice and in order to avoid human suffering, I order that the petitioners herein be included in the Langata/Kibera Roads Committee and be actively involved in the Relocation Action Plan (RAP) for the Project of the Affected Persons (PAP). I order further that the 1st, 2nd, and 5th respondents shall not evict or demolish the houses belonging to the petitioners until the agreed resettlement plan for the persons affected by the road project in question is put in place.”

In essence, what Justice Okong’o had done in his ruling was to order the Attorney-General, KURA and the road contractors, H.YOUNG, to enter into a preparation of the relocation action plan. From the time of the ruling in April 2017 to July 16, 2018, when KURA showed up with the eviction notice, they did not do anything to obey the court orders: they did not involve the Nubian elders or its committee; they did not come up with a discernable relocation action plan; and, in truth, they did nothing to show that they respected the law of the land.

Then, suddenly, KURA got caught up in a flurry of activities: On July 13, 2018, it requested a meeting with Nubian elders, KNCHR and the Mohammad Swazuri-led National Lands Commission (NLC) at its offices located at the Ministry of Roads offices ostensibly to convince these bodies to come up with the relocation action plan as per Justice Okong’o ruling. An official who attended that meeting told me, “The July 16 enumerations was a way of showing that KURA was keen on honouring the court’s ruling with the ‘false’ promise of giving something small to the people as compensation.”

The official told me that it was very odd that KURA would summon, among others, an independent body such as KNCHR to its offices and “KNCHR, unashamedly would troop to another body’s offices to scheme on how to bend and obstruct the constitution, while disobeying a court’s ruling. I had along chat with KNCHR commission members and I did not mince my words,” the official said to me.

“In respect to the brutal evictions in Kibera, the commission punched below its weight. The 2010 Constitution and the KNCHR Act of 2011 grant the commission immense powers to summon state officers, the power to sue for injunction, through the courts, for such violations of human rights, and the power to investigate and prescribe remedies. So far the commission has deployed only a fraction of these powers,” added the official. The official explained to me how KNCHR is entrusted with quasi-judicial powers to summon the minister in charge of roads to explain eviction notices. He said the commission can equally go to court to secure an injunction on behalf of an aggrieved party and exercise powers to collect data, and even enforce corrective action.

Forced evictions: A violation of human rights

On my second day in Kibera, I met up with 61-year-old Joseph Omondi. Born and bred in Kibera’s Katwekera village, he is tall and sturdy and is always up and about and laughter is his second nature. When elated, he breaks into uproarious laughter and can crack your ribs with his practical jokes. “But on the day they demolished Kichinjio, Mashimoni and Lindi, I broke down and wept,” said a reflective Omondi. We were at the backyard of Kabarnet Gardens. At the Administration Police (AP) camp inside the stately home, there is a makeshift food kiosk, where food affordable to the security officers and their retinue is sold.

“In respect to the brutal evictions in Kibera, the commission punched below its weight. The 2010 Constitution and the KNCHR Act of 2011 grant the commission immense powers to summon state officers, the power to sue for injunction, through the courts, for such violations of human rights, and the power to investigate and prescribe remedies. So far the commission has deployed only a fraction of these powers,” added the official.

In between a meal of ugali and matumbo (fried intestines), Omondi told me he had witnessed forced slum demolitions over time in Nairobi – in Soweto (next to Spring Valley suburbs), in Kibagare (next to posh Loresho), in Muoroto (that used to be next to Country Bus Station) and in Mathare 4A. However, according to him, “This Kibera one ranks among the most horrendous, perhaps only to be rivalled by the brutal Muoroto slum eviction which took place at 3.00am and which resulted in some people losing their lives. How can a government be so brutal, merciless and conniving against its own people like this? In a post 2010 new constitution?”

“The state had come prepared to mow down the people in case they resisted or became violent,” pointed out Omondi. “But on this day the people did not resist. They watched, dazed, as their structures went down with their earthy belongings, with no time to salvage anything. With a 1000-strong force of regular police, AP, the brutal and inhuman paramilitary GSU (General Service Unit), it was going to be a futile resistance. So the people stood aside, the earthmovers roaring, flattening anything and everything on site, much like a military operation.”

I found Oscar Indula and David Lwili, both in their late-20, seated on a bench and pensively looking over the horizon beyond the site that they had once called home as residents of Kichinjio slum. “The state had come fully armed and it was a stealth operation. They had taken us by surprise, there was no time to mobilise. They came at dawn and many people were just waking up. Confused by the attendant commotion and seeing the encroaching excavators, the people panicked. Then, they became lost and bewildered. But even if we could have mobilised, we would have been completely pulverised. It was a full army battalion, we stood no chance. We were gazing down at a massacre.”

Omondi told me he could only liken the Kibera evictions to the brutal demolitions that had razed down people’s homes and businesses in Zimbabwean cities and towns a dozen years ago. On May 19, 2005, the then Zimbabwe President Robert Mugabe’s ZANU-PF government security forces rolled down on the capital city Harare’s informal settlements and flattened homes and businesses. It was a violent affair, overseen by the police and army, and soon spread to other major cities and towns.

Operation Murambatsvina (Operation Restore Order) was dubbed “Operation Tsunami” because of the speed and ferociousness with which it attacked the settlements. According to the “Report of the Fact-Finding Mission to Zimbabwe to assess the Scope and Impact of Operation Murambatsvina by the UN Special Envoy on Human Settlements Issues in Zimbabwe”, an assessment carried out by Anna Kajumulo Tibaijuka between June 26 and July 8, 2005, about 700,000 people across cities in Zimbabwe lost homes, sources of income and sometimes both.

“The Kibera demolition affected between 30,000 and 35,000 families in the three villages,” George Odhiambo told me. “The exact figures are not known, but for those talking about 30,000, they should know that that is a very conservative estimate.”

Odhiambo is the founder of Adventure Pride Centre, a school that catered for pupils from pre-school to Class VIII and which was located in Kichinjio village. He took me to the precise place where the school had stood. It is difficult to believe that a stone building with a cemented floor once stood erect at Kibera’s ground zero. The only sign that learning used to take place here were the scattered text books and some completely new and unused exercise books. Nothing was spared in the wake of the demolitions.

“Adventure, alongside two other schools – Egesa Children’s Centre and Makina Self-Help Primary School – rested on Nairobi Royal Golf Club’s private land, contrary to the popular belief that everything that was demolished was on government land,” said Odhiambo. “The management of the Club had had an understanding with the schools’ owners to operate on its land, as long as they used the premises as learning institutions.”

I asked Odhiambo what would happen to the Class VIII pupils who will be sitting for the Kenya Certificate of Primary Education (KCPE) this year. “The pupils are very confused, distraught, disturbed and will need counselling,” observed Odhiambo. “Currently, all the pupils are at home, as we think of what to do next. For the Class VIII, we have to quickly find alternative centres where they will sit for their exam. Already, as it is, they learn under some of the harshest conditions that one can possibly imagine and yet have to compete in the same exams, with kids going to exquisite schools, laden with textbooks, learning materials and whose teacher-student ratio is at most 1:15 and where teachers are always present.” In total, there were eight schools in the three villages that were brought down: Adventure Pride Centre, Egesa Children’s Centre, Love Africa Primary School, Mashimoni Primary School, which had been there since the 1970s, Makina Self-Help, Mashimoni Squatters, Mashimoni SDA and Saviour King School.

Josiah Omotto, of the Umande Trust, an NGO that works in the water sector in Kibera, said that between 2008 and 2009, the ministry responsible for housing led a team of experts to scout for best practices on eviction guidelines. The team borrowed from the United Nations and best practices from visits to Brazil, Rwanda, South Africa, Tanzania, Uganda and Zimbabwe.” The result was the compilation of the government’s document: “Towards Fair and Justifiable Management of Evictions and Resettlement: Land Reform Transformation Unit (LRTU) secretariat.” Chief among its recommendations were:

  1. Evictions should be carried out when appropriate procedural protection are in place
  2. These protections are identified by the UN Commission as Economic and Social and Cultural Rights
  3. An opportunity for genuine consultation with those affected
  4. Adequate and reasonable notice for affected people prior to the eviction
  5. Information on the proposed evictions must be fully provided
  6. Government officials and/or representatives to be present during the evictions
  7. Evictions are not to take place in adverse weather or at night.
  8. Government to ensure that no one is rendered homeless or vulnerable to the violation of other human rights as a consequence of evictions
  9. Adequate alternative housing and compensation for all losses must be made available to those affected prior to eviction, regardless of whether they rent, own, occupy or lease the land in question.

“The saga of the Kibera-Langata link road is very puzzling. There are too many shortcuts, too many loose ends and illegalities,” observed Omotto. “And they are being let to pass, while in fact, we have a precedent to follow.” He reminded me of the Kwa Jomvu evictions in 2015 and how the Kenya National Highway Authority (KeNHA) redeemed itself by owning up to orchestrating forceful eviction of the Jomvu houses and business premises without following the due process of the laid out stipulations.

Josiah Omotto, of the Umande Trust, an NGO that works in the water sector in Kibera, said that between 2008 and 2009, the ministry responsible for housing led a team of experts to scout for best practices on eviction guidelines. The team borrowed from the United Nations and best practices from visits to Brazil, Rwanda, South Africa, Tanzania, Uganda and Zimbabwe.” The result was the compilation of the government’s document: “Towards Fair and Justifiable Management of Evictions and Resettlement: Land Reform Transformation Unit (LRTU) secretariat.”

On May 17, 2015, more than 100 inhabitants of the Kwa Jomvu informal settlement along the Mombasa-Mariakani Highway were woken up by a bulldozer trampling on their structures at night, between 11.00pm and past midnight. The bulldozer, escorted by armed police, flattened their houses and business premises. “Driven Out For Development: Forced Evictions in Mombasa”, a report by Amnesty International, says the people complained that they had not been consulted beyond being given a January 2015 eviction notice. They had not received any information on eviction process, resettlement, or compensation.

On August 13, 2015, KeNHA organised a public sensitization meeting and owned up to carrying out the forced demolitions. The roads authority asked the people to form a committee to tabulate their losses and present the same to KeNHA. It also educated the people about the Environment and Social Impact Assessment (ESIA) and Resettlement Action Plan (RAP) for the project. In September 2015, KeNHA took responsibility for the evictions and agreed to pay compensation till the end of 2015.

Then last month, once again, one of the most famous slum colonies in Africa was in the international news: On the days I was there, the slum had attracted its usual voyeuristic suspects – local and international news corps, “development” workers and NGO crusaders, all hoping to share a piece of the slum’s soul.

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FROM BIRTHER TO MORE OF THE SAME: American foreign policy in the Age of Trump and its impact on Kenya

US policy to Kenya has been remarkably consistent for the last quarter century, across both Republican and Democratic administrations. Despite Donald Trump’s roiling of politics at home, that is not about to change. By KEN FLOTMANN

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FROM BIRTHER TO MORE OF THE SAME: American foreign policy in the Age of Trump and its impact on Kenya

Ten years after the 2008 election campaign, the “Birthers” have won for now in the United States, but Barack Obama remains a positive symbol with time for another act. The former US president stopped in Kenya on his way to South Africa, his third visit to his father’s birthplace since arriving on the national political scene in 2004 as an Illinois state legislator through a speech at the Democratic Convention that nominated John Kerry to challenge the re-election of George W. Bush.

It is now ten years since I returned to the United States with my family from our year-long East Africa democracy assistance sojourn in Nairobi in the wake of the failed 2007 election, the post-election violence, and February 28 “peace deal”. The day we flew out of Jomo Kenyatta International Airport for Amsterdam en route to Atlanta on the way home to Mississippi, I was first exposed to the “birther” conspiracy theory through a front-page story in the Daily Nation.

Many may not remember fully now but recognise that, in its inception, the “birther” conspiracy theory was not just the idea that then Senator Obama was born in Kenya, and secretly smuggled into the US as an infant, and was thus not technically eligible to be elected President of the United States; it also fit into the context of the claims that Obama was involved, as a US Senator from Illinois in 2007, in a conspiracy with Raila Odinga to steal Kenya’s election on behalf of Muslims. These bizarre claims embellished from there into a narrative that rather than being a loyal American, Obama was essentially on the side of al-Qaeda and the global jihadists to establish a Sharia-enforcing caliphate and that Obama was, in essence, on the other side of the war being fought by Americans in the “surge” led by Bush and General Petraeus in Iraq to defend the fundamental underlying values of our democratic republic and Western democracy in general.

Many may not remember fully now but recognise that, in its inception, the “birther” conspiracy theory was not just the idea the that then Senator Obama was born in Kenya, and secretly smuggled into the US as an infant, and was thus not technically eligible to be elected President of the United States; it also fit into the context of the claims that Obama was involved, as a US Senator from Illinois in 2007, in a conspiracy with Raila Odinga to steal Kenya’s election on behalf of Muslims.

The conspiracy theories about the 2007 Kenyan election faded somewhat over time, partly because of the peace deal that put Odinga in Mwai Kibaki’s government as Prime Minister, where he continued to be friendly to the West, and partly because it became clearer that the election was stolen by Kibaki’s side, which controlled the Electoral Commission of Kenya (and not by the opposition which didn’t). Reports at the time from the American right at the Heritage Foundation think tank and National Review magazine, noting the theft of the election, helped American conservatives who cared about facts avoid getting sucked into nonsense about a Luo jihad involving “tribesman” Obama and “cousin” Raila.

While there remain a few holdouts who claim that “we can’t know” who won Kenya’s 2007 election, they seem to be pretty well limited to personally interested parties at this point, with the release of the State Department cables showing that US ambassador Michael Ranneberger himself saw tallies being changed at the ECK and claimed to have encouraged the late ECK Chairman, Samuel Kivuitu, to withstand the pressure to declare Kibaki the winner anyway, even though Ranneberger knew that the chairman had no way of controlling the Commission, which was thoroughly stacked by Kibaki in the weeks and months before the election.

Once it is recognised that the vote tallies were actually changed at the ECK, Americans (most especially rock-ribbed traditional stalwarts attracted to “the Tea Party” and/or Donald Trump’s “neopatriotism”) will understand that Kenyans had a duty, not just a right, to protest the 2007 election. Americans would not trust biometric voter registration (or tolerate secret voter lists) but most certainly, the traditional American narrative would demand that we march on our country’s court houses if our votes were simply changed by our election officials. Ranneberger’s pre-election cables to Washington made clear that as of that time, the Kenyan courts were not independent and would provide no recourse so that voters would be forced to go to the streets if there was fraud that became known.

Once you legitimise protesting the actions of the ECK, and recognise that the largest category of deaths (35%) during the post-election violence, as per the Waki Commission, were the result of violence inflicted by Kibaki’s security forces, and that a large number that were identifiable by tribe were Luo, then the whole notion of some extraneous evil conspiracy somehow involving Obama and the global jihad as the reason for the post-election violence becomes that much more irrational.

According to the Waki Commission’s report, the largest number of casualties (744) were in the Rift Valley. A portion of violence that then Assistant Secretary of State, Jendayi Frazer, insisted on calling “ethnic cleansing” in a January 2008 visit (a label not adopted in Washington) was conducted by Kalenjin militia in the pattern employed by KANU in 1992 and 1997. KANU was a religiously diverse secular party that sought to maintain single-party hegemony through compliant cadres among all major tribes and religious groupings in accordance with its political needs. No suggestion that Moi, who personally identified as a Protestant Christian, was a secret Muslim jihadi, even though the victims may have been mostly Christians.

The International Republican Institute/University of California, San Diego exit poll funded by USAID (the one showing an Odinga presidential win by roughly six points that was embargoed for six months) gave more evidence in the details that the 2007 election contest was driven, as is normal in Kenya, by tribal rather than religious alignment, with Odinga shown as winning a majority of self-identified Christians and of Muslims (although the margin was greater among Muslims). On the other hand, there was a “gender gap” with women favouring Kibaki and men Odinga.

It may also seem hard to remember now but by January 2009, Obama was sworn in to a wave of good feeling with high approval numbers. He had campaigned as a pragmatic moderate Democrat who was against dumb wars and only for smart ones; a Christian who grew up with limited religion and who was popular with the irreligious left and the Christian left and who made some real inroads courting what we call “Evangelicals” who were not part of the more politicised, harder, “Religious Right”.

It may also seem hard to remember now but by January 2009, Obama was sworn in to a wave of good feeling with high approval numbers. He had campaigned as a pragmatic moderate Democrat who was against dumb wars and only for smart ones

The inaugural celebrations seemed to suggest some real healing from the cultural rifts of “the Sixties” and “Vietnam” that featured so prominently in presidential campaigns throughout my lifetime, as well as a milestone to show that we had come so far in overcoming racial prejudice in the post-Civil Rights era that black/white racial issues were no longer a part of those cultural rifts. Maybe we had more in common than our political leaders had been telling us since the rise of Fox News and the Bill Clinton impeachment saga; maybe this president could be a “uniter not a divider”. In part the failure of his predecessors was because the Bush political operation ended up pulling a “bait-and-switch” by mobilising gullible church networks to support the invasion of Iraq for regime change using a claimed causus belli of active chemical/biological and nuclear weapons programmes, then firing up the culture wars further to drive turnout to get re-elected over John Kerry. This was a bad error of moral judgment that has continued to reverberate through American politics.

Kerry was certainly a Yankee patrician from “central casting” — as Kenyans well know from the 2017 election — but he was unquestionably accurate in pointing out in debate with Bush that we had gotten “stuck in Iraq”. Of course, Kerry was too polite, patrician and/or patriotic to go for the jugular and trash Bush for Iraq the way Donald Trump did in his 2016 campaign.

For saying that we were “stuck in Iraq”, Kerry got pilloried as “unpatriotic” aside from the “Swift Boat” sliming he got over his military service in Vietnam – conveniently not a problem for Clinton, Bush, Cheney or Trump, who all managed in various ways not to get sent, unlike Kerry who actually volunteered to go to Vietnam. Nonetheless, the unhealed cultural wounds were such that almost 30 years after the fall of Saigon, Vietnam was still a winner for Bush over Kerry, in spite of Iraq.

Part of the reason that Obama took office with a wave of good feeling and better numbers than he had during the election was that John McCain declined to play along with the trashing of Obama in darker ways and treated him as a legitimate political adversary. It was good for the country and gave Obama a fair start in office.

“Birtherism,” though, in spite of McCain’s choice, became an enduring American movement that has had a profound effect on our politics and transformed the Republican Party with which I had been involved for much of my life. Ultimately, the Birther Movement became a tool for Donald Trump as an outsider to gain “free media” attention and admiration from those who were otherwise profoundly afraid of or opposed to the Obama presidency.

People like John McCain and George W. Bush or his family members in politics, whatever their faults and mistakes on policy choices (even the really big one, invading Iraq, which McCain acknowledges in his latest book, The Restless Wave) were too experienced, too educated, and too well advised to believe the craziness about Obama being secretly smuggled into the US as a Kenyan child (although the McCain campaign did check it out to make sure as did the McClatchy newspaper chain) and were morally constrained, in my judgment at least, from deliberately lying about it to hurt Obama. If you cannot buy that it was morals, at least we can agree that they were restrained by a judgment that it was better politics to stay out of that gutter. Hillary Clinton also stayed away (even if one credits the report that her adviser Sidney Blumenthal triggered the McClatchy review to make sure there was nothing to it).

Donald Trump was not similarly constrained and his hectoring of Obama put him in the front row of politics in America. He shared headlines with Obama even as Osama bin-Laden was being killed by Navy Seals under Obama’s command. Not one to accept defeat in an argument by being proven factually wrong, in this case by the release of Obama’s long form Hawaii birth certificate, Trump bided his time and cranked the Movement back up for his presidential campaign in 2015 and 2016, discarding it once he had seized the agenda and the Republican Party since the specific “birther” claim was no longer useful to him.

It has been a bit surreal for me to see this happen. Educated middle-class Americans of my generation (Obama’s, essentially) have a lot to answer for in our complacency. Our democratic republic requires more attention and effort than we have delivered in recent years – whatever our party or policy preferences.

Not one to accept defeat in an argument by being proven factually wrong, in this case by the release of Obama’s long form Hawaii birth certificate, Trump bided his time and cranked the Movement back up for his presidential campaign in 2015 and 2016, discarding it once he had seized the agenda and the Republican Party since the specific “birther” claim was no longer useful to him.

Fortunately, just as Obama himself has, we hope, time for other acts in his public life as an American after elective politics, the Trump presidency too shall pass and the Birther Movement will be a strange chapter in political history books. It will leave scars and I expect that Trump will be willing to use other lies for domestic advantage that will manipulate gullible people and torque emotions on difficult and divisive social matters. But in the longer term, I think we will rise to the occasion and get to a better range of equilibrium. We have significant long- term challenges on poverty, education, healthcare, economic mobility, and government debt that have been building up during our protracted wartime, but I think Americans are getting more engaged and are rolling up their sleeves to work on solutions.

Trump as an individual is something of a fluke. Most of the people who voted for him have little in common with him really. I know this because they are my peers, my extended family and friends to a great extent. He lost the national popular vote in a low turnout election. Trump won in large part because neither Obama nor the Clintons succeeded in building a Democratic Party that was seriously competitive in much of the country.

The big difference as of now is that Trump as president in our system still has far less power than the president in any of the East African countries. He will leave office by the end of his lawful first term or his second, if re-elected.

On balance, I think that we will see American policy in its relations with Kenya in the Trump years to continue to be largely a continuation of that under Obama, as reflected in the American approach to supporting both the 2013 election with John Kerry as Secretary of State and 2017 with Kerry as chief election observer and Rex Tillerson as Secretary of State, with Bob Godec as “our man in Kenya” throughout – just as Obama’s relationship with Kenya in its policy aspects was primarily a continuation of the approach under George W. Bush.

There have been a few major inflection points in the American/Kenyan relationship in the last twenty years, but most have not been specific to whoever was president in either Washington or Nairobi.

On balance, I think that we will see American policy in its relations with Kenya in the Trump years to continue to be largely a continuation of that under Obama, as reflected in the American approach to supporting both the 2013 election with John Kerry as Secretary of State and 2017 with Kerry as chief election observer and Rex Tillerson as Secretary of State, with Bob Godec as “our man in Kenya”

The first, of course, was the al-Qaeda Embassy bombings in Kenya and Tanzania in 1998, kicking off the ongoing conflict between the US and Kenya, on the one side, and various Islamist “violent extremists”, on the other. As reflected in the Mombasa rocket attack, the USS Cole bombing, the bombing in Kampala, the various attacks in Kenya, most notoriously the Westgate Mall and Garissa University killings, terrorist incidents have been a regional “fact of life” ever since.

For most Kenyans, terrorism is not quite so central a concern as it is to Americans, but it has still inevitably shaped both sides of the relationship over the last two decades. And in this context, after 9/11 and our ensuing land wars in South Asia, with the establishment of the Combined Joint Task Force-Horn of Africa base in Djibouti, Kenya resumed its regional security role along the lines established in the 1970s and ‘80s when the United States was fighting the Cold War and Kenyatta and Moi wanted protection from Idi Amin and Siad Barre, as well as the kind of relationship that would be useful to them in avoiding disruption to their domestic rule.

The next inflection point, albeit of lesser magnitude from an American standpoint, was the retirement of Moi and the transition to NARC and Kibaki.

Next was the demise of NARC and the failure of constitutional reform with the 2005 referendum. Related this was the Anglo Leasing scandal that showed that security and counterterrorism were for sale at high levels, along with the baseline of corruption in the police and security services that let terrorists move about and in and out of the country. The Artur Brothers and the Standard flamboyantly highlighted the rot.

Next, and finally, was the start of the war in Somalia to save and reinstate the Transitional Federal Government and oust the Islamic Courts Union in December 2006. Since that time the United States Government has continued to have and support all our other existing priorities in Kenya, such as lifesaving humanitarian health support through PEPFAR and other lower profile programmes, food assistance and small farm agricultural support, along with supporting all sorts of philanthropic-type programmes and the somewhat more controversial “big development” initiatives like Power Africa, frequently in cooperation with other donors.

In recent years we also started devoting more governmental focus to promoting international private financial investment, such as the 2015 U.S. Overseas Private Investment Corporation investment in the Dubai-based Abraaj Growth Markets Health Fund, L.P., that has been active in the Nairobi private healthcare market prior to recently entering liquidation under circumstances being investigated.

Nonetheless, in the meantime we have been at war in a country with a huge border with Kenya – a country during much of these last eleven-and-a-half years that has been too dangerous to support with a full diplomatic and aid presence and which has thus had those parts of the effort supported from Kenya. And from reading the newspapers back in the day and a few books, it is apparent that Kenya provided some military support for the invasion by the Ethiopian military at the time to contain the potential spread of terrorism.

In 2011, during Kibaki’s second term, with the support of Prime Minister Odinga, Kenya entered the war directly and formally in its own right. Roughly nine months later, the Kenya Defense Forces were admitted into the AMISOM peacekeeping collaboration, allowing for financial reimbursement through Western donors, and eventually driving al-Shabaab, now formally asserting affiliation with al Queda, out of their previous position of direct control of the port at Kismaayo (not to say that al Shabaab did not continue to apparently benefit from the illicit charcoal and sugar trade through the port).

Nonetheless, in the meantime we have been at war in a country with a huge border with Kenya – a country during much of these last eleven-and-a-half years that has been too dangerous to support with a full diplomatic and aid presence and which has thus had those parts of the effort supported from Kenya.

In June 2006, a few months before the Ethiopians were invited to install the Transitional Federal Government in Mogadishu, Ambassador Bellamy finished his service in Nairobi and Ambassador Ranneberger was appointed by President Bush from the Foreign Service. Within a few months of the start of the war, Ranneberger sent a cable to Washington explaining that his approach for “achieving U.S. objectives in Kenya’s elections” was to stay quiet on the debates on constitutional reform and election reform and “build capital” with the incumbent. With the perturbation of the 2008 crisis and the intervention for constitutional reform up through 2010, this has remained the baseline beat of our relationship over the years.

Will the recent moves by Kenya’s dominant new Jubilee Party to align with Communist Party of China structures and philosophy to accompany its huge borrowings from the Chinese state cause any serious rethink in Washington? I have no idea, but it certainly does not seem to have captured any particular place in the priorities of either the retired President Obama or current President Trump.

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