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Judging The Judges: Who are the Supreme Court Justices?

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If there is a jurisdiction that the Justices of the Supreme Court of Kenya curse is the court’s exclusive original jurisdiction to hear and determine presidential election petitions. It is both legal and political but politics reign supreme.

In a highly divided country, the court will be doomed whichever way it rules. Former Chief Justice Dr. Willy Mutunga, conscious of the impact of “political jurisdiction” on the courts, expressed his frustrations in a public forum that courts ought not handle election disputes but instead politicians should “deal with their own shit” elsewhere.

In his dissenting opinion in Bush v. Gore, Justice Stevens, underscoring CJ Mutunga’s thinking sympathized with the Supreme Court of the United States and indeed the judiciary following the highly disputed 2001 election dispute between George Bush and Al Gore opining as follows:

Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

Although SCOTUS does not have exclusive jurisdiction on presidential election dispute as Kenya’s, Bush v. Gore has been the court’s sore thumb that is thought to have led to a “court generated president”. Erwin Chemerinsky in his book The Case Against the Supreme Court notes:

Bush v. Gore obviously cost the Supreme Court in terms of credibility. More than forty-nine million people who voted for Al Gore, and likely almost all of them regard the Court’s decision as a partisan ruling by a Republican majority [judges] in favour of the Republican candidate. Few cases, if any, in American history have been more widely perceived as partisan than Bush v. Gore.

Raila Odinga took President Uhuru Kenyatta and the Independent Electoral and Boundaries Commission to the Supreme Court claiming that he did not fairly lose the 8 August 2017 presidential election to the incumbent. Raila Odinga had similarly petitioned the court following 2013 presidential election and the court dismissed his case. He had no kind words for the court following the infamous 2013 decision and in fact he had indicated that he would not challenge this year’s election outcome in the Court. However, in an interesting about turn, he has filed a petition which, in his own words, gives the Court a chance to “redeem itself”.

In May 2015, the Judicial Service Commission concluded that the three were guilty of conduct unbecoming of them as Judges of the Supreme Court which amounted to misconduct. However, JSC decided that the misconduct did not warrant a recommendation to President Kenyatta to appoint a Tribunal for their removal as prescribed by the Constitution.

The crux of Raila Odinga’s petition is that the election was just but a fraud. He argues that the election was incapable of being verified, the technology was interfered with to give a constant lead to President Uhuru Kenyatta from the onset, the election results do not tally and the Uhuru Kenyatta used the forceful hand of state to steal victory. The Petition also asked the court to depart from its 2013 decision, more particularly on the issue of rejected votes; that the rejected votes, which in this election amount to over 2% of the total votes cast ought to be included in computation of whether the winning candidate attained the 50% plus one vote threshold. The petition was vigorously opposed by the IEBC and President Kenyatta.

The court’s composition has not significantly changed since 2013 election petition- four out of the seven justices and therefore the majority, sat in the 2013 election petition which rendered unanimous decision validating the election of President Uhuru Kenyatta. On 9th October 2015 I lodged a petition with the JSC accusing three of these judges -Honourable Justice Mohammed Ibrahim, Honourable Justice Jackton B. Ojwang and Honourable Justice Njoki Susanna Ndungu- of misconduct by withdrawing their services to the people of Kenya by imposing a moratorium on all the judicial operations seemingly in protest over decision of JSC to retire Justice Kalpana Rawal (Deputy Chief Justice) and Justice Philip Tunoi. In May 2015, the Judicial Service Commission concluded that the three were guilty of conduct unbecoming of them as Judges of the Supreme Court which amounted to misconduct. However, JSC decided that the misconduct did not warrant a recommendation to President Kenyatta to appoint a Tribunal for their removal as prescribed by the Constitution. The JSC only resolved to admonish them, which decision is currently being challenged in the courts over whether the JSC has powers to admonish a judge in such circumstances.

Following the Presidential Elections conducted on 8th August 2017, Hon. Raila Odinga and the National Super Alliance (NASA) Coalition lodged a petition against the declaration by Indepenedent and Boundaries Commission (IEBC) declaration of Uhuru Kenyatta as the duly elected president. The hearing of the Petition was concluded on Tuesday, 29th August 2017 well after 9.00 p.m. The Judges thereafter retreated to deliberate on the following issues for determination as crafted by the court:

  • Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections.
  • Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.
  • If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election?
  • What consequential orders, declarations and reliefs, if any, should be granted by the court?

In a majority decision of the six-judge bench delivered on 1st September 2017, with two Judges (Ojwang and Ndung’u) dissenting, the court ruled in favor of the petition as follows:

  • As to whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections, upon considering inter alia Articles 10, 38, 81 and 86 of the Constitution as well as, Sections 39(1C), 44, 44A and 83 of the Elections Act, the decision of the court is that the IEBC failed, neglected or refused to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and inter alia the Elections Act, Chapter 7 of the Laws of Kenya.
  • As to whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election, the court was satisfied that the IEBC committed irregularities and illegalities inter alia, in the transmission of results, particulars and the substance of which will be given in the detailed and reasoned Judgment of the court. The court however found no evidence of misconduct on the part of Uhuru Kenyatta.
  • As to whether the irregularities and illegalities affected the integrity of the election, the court was satisfied that they did and thereby impugning the integrity of the entire Presidential Election.

Consequent upon the above findings, the Court, pursuant to Article 140(2) and (3) of the Constitution and Rule 22 of the Supreme Court (Presidential Election) Rules , issued Declarations and the Orders as follows:

  • that the Presidential Election held on 8th August 2017 was not conducted in accordance with the Constitution and the applicable law rendering the declared result invalid, null and void;
  • that Uhuru Kenyatta was not validly declared as the President elect and that the declaration is invalid, null and void;
  • That IEBC to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of this determination under Article 140(3) of the Constitution.
  • That each party to bear their own costs of the petition.

The Court also indicated that detailed Judgment containing the reasons for its decision and the dissents will be issued within 21 days of the decision in conformity with Rule 23(1) of the Supreme Court (Presidential Elections) Rules, 2017 as it was impossible with the limited time the court has, to do so.

Over the course of the next few weeks, much ink will be poured to try and understand this decision. And while facts, evidence and law are what judges are trained to pay attention to, a particular judge’s prejudices, biases, jurisprudential leanings, political associations and philosophy and even religious or cultural convictions will also influence their decisions. The Court is, however, fairly young and hasn’t rendered enough decisions to enable a keen follower to meaningful discern each particular judge’s reasoning or the general court’s leaning. Below I will attempt to analyze each of the seven justices in the hope of contributing to the understanding of this decision and what it portends for the future.

However, it is also to be hoped that, unlike in 2013, each judge -or at least most of them, given Justice Ibrahim’s illness- will write their own separate opinions. That would help to enrich our election law jurisprudence and enable scrutiny of particular judge’s jurisprudential bias.

Chief Justice David Maraga

David Maraga is the Chief Justice and President of the Supreme Court, he will preside over the petition. He comes with solid understanding of and experience in the law both in the bar and the bench. His most remarkable election petition decision is the often cited Joho vs. Nyange. He also chaired the Judiciary Committee on Elections immediately before his appointment as Chief Justice. His knowledge on electoral disputes is therefore undoubted.

Maraga CJ is therefore the quintessential High Priest of the Court. He can be equated to Pontius Pilate and he wouldn’t convict without sufficient and cogent evidence.

Maraga an ultra-conservative in his persuasion and leaning. Raila will have tabled cogent evidence to convince him to overturn the presidential election. He is a new vote and voice in the court having taken over from Honourable Justice Dr. Willy Mutunga who presided over the 2013 petition.

He is also unapologetic Adventist. In his interview for the position of Chief Justice, he said that if a presidential election petition runs into Saturday, he will excuse himself and attend to his religious obligation. Even in his judgments, he doesn’t shy away from showing his pious side. For example, in a troubling 2007/2008 Post Election Violence murder case of Republic v. Stephen Kiprotich Lelei & 3 Others (2009) where he was a trial judge, he invoked his responsibility as a judge of evidence, facts and law even though he sympathized with the victims of the case given that the prosecution mismanaged the case. He proceeded to declare that “it is a responsibility that my family and I have prayed over for divine guidance”. Before the Judges and Magistrates’ Vetting Board where he had been accused of nepotism and corruption, he dramatically swore by the bible that he had never taken and would never take a bribe.

Maraga is therefore the quintessential High Priest of the Court. He can be equated to Pontius Pilate and he wouldn’t convict without sufficient and cogent evidence.

Deputy Chief Justice Philomena Mwilu

Like Maraga CJ, Justice Philomena Mwilu is a new vote to the Court having been elevated to the apex court at the same time. She has risen through the ranks from High Court judge through the Court of Appeal although her rise to the Supreme Court almost hit a snag when Kandara legislator Hon. Alice Wahome made scandalous but unfounded corruption allegation against her in an election petition where she, Hon. Alice Wahome was a party with Justice Mwilu presiding.

Because of her position and little known history, Justice Mwilu can safely be said to be a centrist who was always likely to vote with the majority the Court.

As the Deputy Chief Justice, she is the de facto leader in the judiciary. She is also a diplomat and operates efficiently within the ranks. Justice Mwilu is also young and able to succeed Justice Maraga who is due to retire in less than four years.

While she is a good case manager, she has not authored a zinger of an opinion that can make one attribute her inclinations in jurisprudence. Because of her position and little known history, Justice Mwilu can safely be said to be a centrist who was always likely to vote with the majority the Court.

Justice Mohammed Ibrahim

Justice Mohammed Ibrahim is the third-ranking member of the Supreme Court being the senior most jurist. Before joining the bench, Judge Ibrahim was a successful practitioner and he suffered in the second liberation struggle when he was detained for activism. His comrades in arms include his former law partner Paul Muite SC, Gibson Kamau Kuria SC, Dr. John Khaminwa and Raila Odinga.

His most famous decision was the anti-piracy case while serving in the High Court at Mombasa when he declared that the state had no powers to charge pirates who had been arrested beyond Kenya’s terrirorial waters. The case would later be overturned in the Court of Appeal where interestingly Justice Maraga wrote the lead judgment.

In the Supreme Court, he has authored progressive opinions, both concurring and dissenting. For example, in the case of Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai Estate & 4 Others (2013) where the Court was invited to depart from or review its earlier decision in S.K. Macharia & Another v. Kenya Commercial Bank Limited & 2 Others on the constitutionality of section 14 of the Supreme Court Act, Justice Ibrahim was the sole dissenting voice of the court who thought that the court should depart from its earlier decision. Though he was taken ill during the Raila Odinga petition, the request for the Court to depart from its 2013 decision on the issue of rejected votes may have found favor with him.

In the same case, he wrote an illuminating concurring opinion on the issue of recusal of Hon. Justice Tunoi from the matter on account of bias and conflict of interest. Justice Ibrahim profoundly wrote about the doctrine of necessity, that due to the numerical limitation of the Supreme Court, it would not be appropriate for a judge to recuse himself. He however flipped when confronted with the same issue in Lady Justice Kalpana H. Rawal & 2 others v Judicial Service Commission & 6 others [2016] eKLR, the retirement age case, a self-preservation decision.

When there was a crisis in the post Mutunga hand over, Justice Ibrahim temporarily acted as the Chief Justice. Although he sat in 2013 petition, Justice Ibrahim is a liberal. If onvinced with sufficient evidence to overturn a presidential election, he would have had little difficulty doing so.

Justice Prof. J.B Ojwang

Justice J.B Ojwang is the fourth-ranking member of the Supreme Court, with possibly the highest ranking academic title in laws. He earned the accolades on merit and was consequently awarded with the title Doctor of Laws.

Justice Prof. Ojwang has authored a book titled Constitutional Development in Kenya: Institutional Adaptation and Social Change. In the book, he developed an argument that constitutional development in Kenya should adapt to “development needs and its practice should be flexible enough to allow for appropriate institutional innovations to take root”. Such innovations would include “charisma” by the presidency as legitimate source of extra-legal legitimacy. While the good professor of law had freedom of intellectual and scholarly expression, this work did not sit well with his colleagues in the academia such as Prof. Kivutha Kibwana, the current Governor of Makueni County and others. He was seen as an apologist to the state excesses and he has not proved otherwise.

Outside the text of the law, Justice Prof. Ojwang has been accused of a bad temperament not befitting a judge.

Although he began his career in the bench as a progressive, Justice Prof. J.B. Ojwang is now an entrenched conservative. He sat in the infamous 2013 petition and that he was one of the dissenting judges in the 2017 petition comes as no surprise. He would not have been expected to depart from his earlier opinion unless a legal miracle happened.

Outside the text of the law, Justice Prof. Ojwang has been accused of a bad temperament not befitting a judge. This was evident during the retirement age case and his interview before the Judicial Service Commission for the position of Chief Justice. The good judge is unapologetic about his views, he regards himself highly and rightfully so just like the lizard that jumped from the high Iroko tree in Chinua Achebe’s Things Fall Apart.

Justice Suzanna Njoki Ndungu

Justice Njoki Susanna Ndungu is the fifth member of the Supreme Court and the other judge to pen a dissent. She has served in all the three branches of government. Before joining the court, she had served a term as a nominated Member of Parliament through former President Mwai Kibaki’s led NARC after a stint of activism. While in Parliament, she sponsored the acclaimed Sexual Offences Bill which was subsequently supported by government and later became law. This is her signature legislative achievement.

Justice Ndungu was also a member of Committee of Experts which crafted the Constitution of Kenya 2010. In the Supreme Court, she has distinguished herself as a patron saint of dissenting opinions having authored the highest number of persuasive dissenting decisions thus far including Advisory Opinion No. 2 of 2013,Speaker of the Senate & another v. Hon. Attorney General & Others (2013) eKLR on the role of senate and Evans Odhiambo Kidero v. Ferdinand Waititu & Others (2014) eKLR on timelines on filing an appeal on an election dispute from the High Court to the Court of Appeal. Her dissenting credentials were on show there.

Justice Ndungu stayed a decision of Court of Appeal on retirement of former Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi which highly divided the Mutunga Court. Together with Justice Prof. J.B Ojwang, she dissented in the retirement age case. Despite her activism background and young age, she is widely perceived as loyal to the system. She sat in the 2013 petition and would not have been expected to easily overturn a presidential election.

Justice Dr. Smokin Wanjala

Justice Dr. Smokin Wanjala is the sixth member of the Supreme Court. He joined the court after his stint as a director of the defunct Kenya Anti Corruption Authority, the predecessor of Ethics and Anti-Corruption Commission. He was also active in civil society and had a distinguished academic career.

In examining Justice Dr. Wanjala against high achievements in the academia, civil society and government, we apply the biblical doctrine of “for those that much is given, much is expected.” Justice Dr. Wanjala sat in the Mutunga Court’s 2013 petition where he did not pen his own opinion. He should therefore be judged with the others in that case and other decisions of the Court including the Munya case which recreated the constitutional doctrine of jurisdiction in the name of “normative derivative” and opened wide the Supreme Court door to limitless jurisdiction to preside in all electoral disputes.

In his last interview for the position of Chief Justice, Justice Dr. Wanjala stated that he does not wish to sit in another presidential petition and yet found himself in the same spot. Justice Dr. Wanjala is young and has possibly three more presidential petitions ahead of him. He is an over-cautious liberal and would have been a significant vote on the outcome of the petition.

Justice Isaac Lenaola

Justice Isaac Lenaola is the youngest member of the Court and has at least another twenty years ahead in the Court, should he be granted long life and choose not to retire early. He is likeable and he may be the Chief Justice someday.

He comes with solid credentials and is a first among equals. Justice Lenaola has been a judge in the High court where he made his mark, the East African Court of Justice and the Sierra Leone Special Tribunal. There are numerous bold decisions that he has delivered and worthy of note is the judgment delivered by the East African Court of Justice which barred the Tanzanian government from constructing a road through the Serengeti national park and therefore interfering with the East African ecosystem. He recently ruled against the state in the case of Hon. Kenneth Matiba as an indictment against torture and awarded his family the sum of Kshs. 504 Million.

In his interview for the position, he says he is a pragmatic liberal. Justice Lenaola can be persuaded depending on the evidence presented by either side.

He is therefore a true jurist in the form of Justice Warren Burger. He is a practical liberal with a pinch of common sense. In his interview for the position, he says he is a pragmatic liberal. Justice Lenaola can be persuaded depending on the evidence presented by either side.

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Apollo Mboya is an Advocate of the High Court of Kenya.

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Beyond Political Freedom to Inclusive Wealth Creation and Self-Reliance

Malawi can alleviate poverty and become a model for development and democracy by investing in and improving the quality of human capital, the quality of infrastructure, and the quality of institutions.

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Beyond Political Freedom to Inclusive Wealth Creation and Self-Reliance
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The Tonse Alliance that made history in June by winning the rerun of the presidential election, the first time this has happened in Africa. It represented a triumph of Malawian democracy, undergirded, on the one hand, by the independence of the judiciary, and on the other, by the unrelenting political resilience and struggles of the Malawian people for democratic governance. In short, we can all be proud of Malawi’s enviable record of political freedom. However, our democratic assets are yet to overcome huge developmental deficits. Our record of economic development and poverty eradication remains dismal, uneven, and erratic.

Malawi’s persistent underdevelopment does not, of course, emanate from lack of planning. In 1962, Dunduzu Chisiza convened “what was perhaps the first international symposium on African Economic Development to be held on the continent”. It brought renowned economists from around the world and Africa. In attendance was a young journalist, Thandika Mkandawire, who was inspired to study economics, and rose to become one of the world’s greatest development economists. I make reference to Chisiza and Mkandawire to underscore a simple point: Malawi has produced renowned and influential development thinkers and policy analysts, whose works need to be better known in this country. If we are to own our development, instead of importing ready-made and ill-suited models from the vast development industry that has not brought us much in terms of inclusive and sustainable development, we have to own the generation of development ideas and implementation.

I begin, first, by giving some background on the county’s development trajectory; and second, by identifying the three key engines of development – the quality of human capital, the quality of infrastructure, and the quality of institutions – without which development is virtually impossible.

Malawi’s development trajectory and challenges

Malawi’s patterns of economic growth since independence have been low and volatile, which has translated into uneven development and persistent poverty. A 2018 World Bank report identifies five periods. First, 1964-1979, during which the country registered its fastest growth at 8.79%. Second, 1980-1994, the era of draconian structural adjustment programmes when growth fell to 0.90%. Third, 1995-2002 when growth rose slightly to 2.85%. Fourth, 2003-2010, when growth bounced to 6.25%. Finally, 2011-2015, when growth declined to 3.82%. Another World Bank report, published in July 2020, notes that the economy grew at 3.2% in 2017, 3.0% in 2018, an estimated 4.4% in 2019, and will likely grow at 2.0% in 2020 and 3.5% in 2021.

Clearly, Malawi has not managed to sustain consistently high growth rates above the rates of population growth. Consequently, growth in per capita income has remained sluggish and poverty reduction has been painfully slow. In fact, while up to 1979 per capita GDP grew at an impressive 3.7%, outperforming sub-Saharan Africa, it shrunk below the regional average after 1980. It rose by a measly 1.5% between 1995 and 2015, well below the 2.7% for non-resource-rich African economies. Currently, Malawi is the sixth poorest country in the world.

While the rates of extreme poverty declined from 24.5% in 2010/11 to 20.1% in 2016/17, moderate poverty rates increased from 50.7% to 51.5% during the same period. Predictably, poverty has a gender and spatial dimension. Women and female-headed households tend to be poorer than men and male-headed households. Most of the poor live in the rural areas because they tend to have lower levels of access to education and assets, and high dependency ratios compared to urban dwellers, who constitute only 15% of the population. Rural poverty is exacerbated by excessive reliance on rain-fed agriculture and vulnerability to climate change because of poor resilience and planning. In the urban areas, poverty is concentrated in the informal sector that employs the majority of urban dwellers and suffers from low productivity and incomes, and poor access to capital and skills.

While the rates of extreme poverty declined from 24.5% in 2010/11 to 20.1% in 2016/17, moderate poverty rates increased from 50.7% to 51.5% during the same period. Predictably, poverty has a gender and spatial dimension.

The causes and characteristics of Malawi’s underdevelopment are well-known. The performance of the key sectors – agriculture, industry, and services – is not optimal. While agriculture accounts for two-thirds of employment and three-quarters of exports, it provides only 30% of GDP, a clear sign of low levels of productivity in the sector. Apparently, only 1.7% of total expenditure on agriculture and food goes to extension, and one extension agent in Malawi covers between 1,800 and 2,500 farmers, compared to 950 in Kenya and 480 in Ethiopia. As for irrigation, the amount of irrigated land stands at less than 4%.

Therefore, raising agricultural productivity is imperative. This includes greater crop diversification away from the supremacy of maize, improving rural markets and transport infrastructure, provision of agricultural credit, use of inputs and better farming techniques, and expansion of irrigation and extension services. Commercialisation of agriculture, land reform to strengthen land tenure security, and strengthening the sector’s climate resilience are also critical.

In terms of industry, the pace of job creation has been slow, from 4% of the labour force in 1998 to 7% in 2013. In the meantime, the share of manufacturing’s contribution to the country’s GDP has remained relatively small and stagnant, at 10%. The sector is locked in the logic of import substitution, which African countries embarked on after independence and is geared for the domestic market.

Export production needs to be vigorously fostered as well. It is reported that manufacturing firms operate on average at just 68 per cent capacity utilisation. This suggests that, with the right policy framework, Malawi’s private sector could produce as much as a third more than current levels without needing to undertake new investment.

After independence, Malawi, like many other countries, created policies and parastatals, and sought to nurture a domestic capitalist class and attract foreign capital in pursuit of industrialisation. The structural adjustment programmes during Africa’s “lost decades” of the 1980s and 1990s aborted the industrialisation drive of the 1960s and 1970s, and led to de-industrialisation in many countries, including Malawi. The revival and growth of industrialisation require raising the country’s competitiveness and improving access to finance, the state of the infrastructure, the quality of human capital, and levels of macroeconomic stability.

Over the last two decades, Malawi has improved its global competitiveness indicators, but it needs to and can do more. According to the World Bank’s Ease of Doing Business, which covers 12 areas of business regulation, Malawi improved its ranking from 132 out of 183 countries in 2010 to 109 out of 190 countries in 2020; in 2020 Malawi ranked 12th in Africa. In the World Economic Forum’s Global Competitiveness Index, a four-pronged framework that looks at the enabling environment – markets, human capital, and the innovation ecosystem – Malawi ranked 119 out of 132 countries in 2009 and 128 out of 141 countries in 2019.

Access to finance poses significant challenges to the private sector, especially among small and medium enterprises that are often the backbone of any economy. The banking sector is relatively small, and borrowing is constrained by high interest rates, stringent collateral requirements, and complex application procedures. In addition, levels of financial inclusion and literacy could be greatly improved. The introduction of the financial cash transfer programme and mobile money have done much to advance both.

Corruption is another financial bottleneck, a huge and horrendous tax against development. The accumulation of corruption scandals – Cashgate in 2013, Maizegate in 2018, Cementgate and other egregious corruption scandals in 2020 – is staggering in its mendacity and robbery of the county’s development and future by corrupt officials that needs to be uncompromisingly uprooted.

Malawi’s infrastructure deficits are daunting. Access to clean water and energy remains low, at 10%, and frequent electricity outages are costly for manufacturing firms that report losing 5.1% in annual sales; 40.9% of the firms have been forced to have generators as backup. The country’s generating capacity needs massive expansion to close the growing gap between demand and supply. Equally critical is investment in transport and its resilience to contain the high costs of domestic and international trade that undermine private sector development and poverty reduction.

Digital technologies and services are indispensable for 21st century economies, an area in which Malawi lags awfully behind. According to the ICT Development Index by the International Telecommunications Union, in 2017 Malawi ranked 167 out of 176 countries. There are significant opportunities to overcome the infrastructure deficits in terms of strengthening the country’s transport systems through regional integration, developing renewable energy sources, and improving the regulatory environment. Developing a digitally-enabled economy requires enhancing digital infrastructure, connectivity, affordability, availability, literacy, and innovation.

Malawi’s infrastructure deficits are daunting. Access to clean water and energy remains low, at 10%, and frequent electricity outages are costly for manufacturing firms that report losing 5.1% in annual sales.

The services sector has grown rapidly, accounting for 29% of the labor force in 2013 up from 12% in 1998. It is dominated by the informal sector which is characterized by low productivity, labor underutilization, and dismal incomes. The challenge is how to improve these conditions and facilitate transition from informality to formality.

Enablers and drivers of development

The challenges of promoting Malawi’s socio-economic growth and development are not new. In fact, they are so familiar that they induce fatalism among some people as if the country is doomed to eternal poverty. Therefore, it is necessary to go back to basics, to ask basic questions and become uncomfortable with the county’s problems, with low expectations about our fate and future.

From the vast literature on development, to which Thandika made a seminal contribution, there are many dynamics and dimensions of development. Three are particularly critical, namely, the quality of human capital, the quality of infrastructure, and the quality of institutions. In turn, these enablers require the drivers embodied in the nature of leadership, the national social contract, and mobilisation and cohesiveness of various capitals.

The quality of human capital encompasses the levels of health and education. Since 2000, Malawi has made notable strides in improving healthcare and education, which has translated into rising life expectancy and literacy rates. For the health sector, it is essential to enhance the coverage, access and quality of health services, especially in terms of reproductive, maternal, neonatal, and early child development, and public health services, as well as food security and nutrition services.

The introduction of free primary education in 1994 was a game changer. Enrollment ratios for primary school rose dramatically, reaching 146% in 2013 and 142% in 2018, and for secondary school from 44% in 2013 to 40% in 2018. The literacy rate reached 62%. But serious challenges remain. Only 19% of students’ progress to Standard Eight without repeating and dropout rates are still high; only 76% of primary school teachers and 57% of secondary school teachers are professionally trained. Despite increased government expenditure, resources and access to education remain inadequate.

Consequently, in 2018 Malawi’s adult literacy was still lower than the averages for sub-Saharan countries (65%) and the least developed countries (63%). This means the skill base in the country is low and needs to be raised significantly through increased, smart and strategic investments in all levels of education. Certainly, special intervention is needed for universities if the country, with its tertiary education enrollment ratio of less than 1%, the lowest in the world, is to catch up with the enrollment ratios for sub-SaharanAfrica and the world as a whole that in 2018 averaged 9% and 38%, respectively.

Human capital development is essential for turning Malawi’s youth bulge into a demographic dividend rather than a demographic disaster. Policies and programmes to skill the youth and make them more productive are vital to harnessing the demographic dividend. Critical also is accelerating the country’s demographic transition by reducing the total fertility rate.

As for infrastructure, while the government is primarily responsible for building and maintaining it, the private sector has an important role to play, and public-private-partnerships are increasingly critical in many countries. It is necessary to prioritise and avoid wish lists that seek to cater to every ministry or constituency; to concentrate on a few areas that have multiplier effects on various sectors; and ensure the priorities are well-understood and measurable at the end of the government’s five-year term. Often, the development budget doesn’t cover real investment in physical infrastructure and is raided to cover over-expenditure in the recurrent budget.

The quality of institutions entails the state of institutional arrangements, which UNDP defines as “the policies, systems, and processes that organizations use to legislate, plan and manage their activities efficiently and to effectively coordinate with others in order to fulfill their mandate”. Thus, institutional arrangements refer to the organisation, cohesion and synergy of formal structures and networks encompassing the state, the private sector, and civil society, as well as informal norms for collective buy-in and implementation of national development strategies. But setting up institutions is not enough; they must function. They must be monitored and evaluated.

Human capital development is essential for turning Malawi’s youth bulge into a demographic dividend rather than a demographic disaster. Policies and programmes to skill the youth and make them more productive are vital to harnessing the demographic dividend.

The three enablers of development require the drivers of strong leadership and good governance. Malawi has not reaped much from its peace and stability because of a political culture characterised by patron-clientelism, corruption, ethnic and regional mobilisation, and crass populism that eschews policy consistency and coherence, and undermines fiscal discipline. Malawi’s once highly regarded civil service became increasingly politicised and demoralised. Public servants and leaders at every level and in every institutional context have to restore and model integrity, enforce rules and procedures, embody professionalism and a high work ethic, and be accountable. Impunity must be severely punished to de-institutionalise corruption, whose staggering scale shows that domestic resources for development are indeed available. To quote the popular saying by Arthur Drucker, “organisational culture eats strategy”.

Also critical is the need to forge social capital, which refers to the development of a shared sense of identity, understanding, norms, values, common purpose, reciprocity, and trust. There is abundant research that shows a positive correlation between the social capital of trust and various aspects of national and institutional development and capabilities to manage crises. Weak or negative social capital has many deleterious consequences. The COVID-19 pandemic has made this devastatingly clear – countries in which the citizenry is polarised and lacks trust in the leadership have paid a heavy price in terms of the rates of infection and deaths.

Impunity must be severely punished to de-institutionalise corruption, whose staggering scale shows that domestic resources for development are indeed available. To quote the popular saying by Arthur Drucker, “organisational culture eats strategy”.

The question of social capital underscores the fact that there are many different types of capital in society and for development. Often in development discourse the focus is on economic capital, including financial and physical resources. Sustainable development requires the preservation of natural capital. Malawi’s development has partly depended on the unsustainable exploitation of environmental resources that has resulted in corrosive soil erosion and deforestation. Development planning must encompass the mobilisation of other forms of capital, principally social and cultural capital. The diaspora is a major source of economic, social and cultural capital. In fact, it is Africa’s largest donor, which remitted an estimated $84.3 billion in 2019.

In conclusion, Malawi’s development trajectory has been marked by progress, volatility, setbacks, and challenges. For a long time, Malawi’s problem has not been a lack of planning, but rather a lack of implementation, focus and abandoning the very basics of required integrity in all day-to-day work. Also, the plans are often dictated by donors and lack local ownership so they gather the proverbial bureaucratic dust.

Let us strive to cultivate the systems, cultures, and mindsets of inclusion and innovation so essential for the construction of developmental and democratic states, as defined by Thandika and many illustrious African thinkers and political leaders.

This article is the author’s keynote address at the official opening of the 1st National Development Conference presided by the State President of Malawi, His Excellency Dr. Lazarus Chakwera, at the Bingu International Convention Centre, Lilongwe, on 27 August, 2020.

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Kenya’s Gulag: The Dehumanisation and Exploitation of Inmates in State Prisons

Kenyan prisons today carry the DNA of their forebears – the colonial prisons and Mau Mau detention camps. They are about brutalising prisoners into submission and scaring the rest of society into compliance with the state. And like their colonial predecessors, they are also sites of forced labour.

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The influx of the Mau Mau transformed the prison population in Kenya from one predominantly made up of recidivist petty criminals and tax defaulters to one composed largely of political prisoners, many of whom had no experience of prison life and who brought with them new forms of organisation.

Prison life was harsh, with its share of brutalities and fatalities. Between 1928 and 1930, about 200 prisoners in Kenya died. According to British historian David Anderson, “Kenya’s prisons were already notably violent before 1952 [when the Mau Mau uprising began], more violent than other British colonies.”

However, the incorporation of prisons and detention camps into the “Pipeline” (the system developed by the colonial state to deal with the Mau Mau insurgents and to try and break them using terror and torture) inevitably led to the institutionalisation of the methods of humiliation and torture.

As Anderson notes, “Most of the staff in both the Prison Service and in the [Mau Mau] detention camps were Africans. Some were even Kikuyu. They certainly ‘learned’ these methods during their periods of early employment.” He goes on to say that “those who ran the service by the 1960s and early 1970s were all men who had been recruited and trained during the Mau Mau period”. He thinks it “very likely that these individuals practiced what they had learned as cadets and trainees in the 1950s…I think the Mau Mau experience certainly hardened Kenya’s prison system and introduced a greater range of punishments and harsher treatment for prisoners as a consequence of the conditions off the Emergency”.

Compare, for example, this account of the treatment of Mau Mau detainees in the 1950s published in Caroline Elkins’ book, Britain’s Gulag: The Brutal End of Empire in Kenya:

Regardless of where they were in the Pipeline (the system of camps established for deradicalizing Mau Mau detainees and prisoners), roll call meant squatting in groups of five with their hands clasped over their heads. The European commandants would then walk through the lines, counting and beating the detainees. “The whole thing was just so ridiculous,” recalled one former detainee from Lodwar. “Whitehouse [the European in charge] would just count us over and over again.”

It bears stark similarities to this account published in the Daily Nation about conditions in Kenyan prisons 65 years later:

Omar Ismael, 64, a former Manyani inmate who served nine years till his exoneration in 2017, says he woke up at 5am, despite his advanced aged. They then squat in groups of five to be counted and checked by guards. “My knees are still hurting to date. I have a joint problem too as a result,” he says. He says they had at least six head counts per day. The first one at 5am, followed by 10am, noon, 4pm, 6pm and 7pm.

Kenyan prisons today carry the DNA of their forebears – the colonial prisons and Mau Mau detention camps. They are about brutalising prisoners into submission and, along with the police and military, scaring the rest of society into compliance with the state. They are places of dehumanisation, abandonment and retribution. And like their colonial parents, they prefer to employ the least educated. (At present, out of a staff complement of 22,000, the Kenya Prison Service only has about 700 graduate officers.) As of 2015, according to the World Prison Population List prepared by the Institute for Criminal Policy Research, Kenya has incarcerated more of its citizens per 100,000 population than any other country in Eastern Africa with the exception of Rwanda and Ethiopia.

Notably, about 50 per cent of Kenya’s 54,000 prisoners are pre-trial detainees or those held in remand as they await trial – people legally considered innocent. By comparison, the median proportion of pre-trial prisoners in Africa is 40 per cent and nearly 30 per cent globally. In Eastern Africa, only Uganda and Ethiopia have a higher proportion of pre-trial detainees than Kenya. As in colonial times, pre-trial detention is driven by two factors – the need to extract resources from the populace and the subjugation of the native through criminalisation of ordinary life.

In 1933, submissions to the Bushe Commission provided some flavour of how the threat of arrest and imprisonment was ever-present among the natives.

Relates one Ishmael Ithongo:

Once I was arrested by a District Officer on account of my hat because I did not see him approaching. He came from behind and threw it down. I asked him why because I did not know him. He called an askari and asked for my name. It was in a district outside. He asked me, “Don’t you know the law here that you should take off your hat when you see a white man?” Then he asked me, “Have you got your kipandi?’ I said “No, Sir.” So I was sent to prison… When an askari thinks that you look smart he asks if you have your kipandi. I have seen natives who are going to church in the morning who have changed their coat and forgotten their kipandi. They meet an askari. “Have you got your kipandi?” “No.” “Ah right” and they are marched off to prison.

This will sound familiar to many Kenyans today whose encounters with the police often begin with demands for the production of the kipande (ID card) and end with a stint in overcrowded police cells. However, there are some differences. An audit of pre-trial detention by the National Council on the Administration of Justice found that police generally arrested and charged people for petty offences, with close to half of those arrests occurring over weekends. Most releases from police custody also happened over the weekend with no reason recorded for two-thirds of those releases. Further, only 30 percent of all arrests actually elicited a charge, the vast majority for petty offences. This implies that most police detentions today are something of a catch-and-release programme designed to create opportunities to extract bribes rather than labour.

However, for those who get incarcerated, matters are somewhat different. The exploitation of prisoners’ labour continues. Like the Mau Mau detainees, they are required to work for a token amount determined by the government, which, unlike its colonial ancestor, does not even pretend that the 30 Kenyan cents per day is meant as a wage, with the Attorney-General declaring in court that “prison labour is an integral component of the sentence”. The courts have held that it is entirely compatible with the protection of fundamental rights for the Prison Service to do this as well as to deny convicts basic supplies such as soap, toothpaste, toothbrushes, and toilet paper. Apparently, the conditions the convicts are experiencing cannot be called forced labour and servitude because, the strange reasoning goes, “the Constitution and the Prisons Act do not permit forced labour or servitude”.

Notably, about 50 per cent of Kenya’s 54,000 prisoners are pre-trial detainees or those held in remand as they await trial – people legally considered innocent…In Eastern Africa, only Uganda and Ethiopia have a higher proportion of pre-trial detainees.

Like in colonial times, the beneficiaries of this prison industrial complex are the state and those who control it. Remandees and convicts are liable to be put to work cleaning officials’ compounds and there have been persistent rumours of them being compelled to provide free labour for the private benefit of prison officers and other well-connected government officials, as is the case in Uganda.

While in 1930 earnings from convicts’ labour accounted for a fifth of the total cost of the Prisons Department, the official goal today, as declared by the Ministry of Interior, is for the Department to transform into a “financially self-sustaining entity”. To achieve this, President Uhuru Kenyatta has created the Kenya Prisons Enterprise Corporation with the aim of “unlocking the revenue potential of the prisons industry” and to “foster ease of entry into partnership with the private sector”.

This basically entails deeper exploitation of prisoners’ labour. And even though Kenyatta speaks of improving remuneration, it is notable that this is not a free exchange. Whatever the courts might say, it is clear that the state and its owners feel entitled to the labour of those they have incarcerated, much like their predecessors (the colonial regime and the European settlers) once felt entitled to African labour.

This will sound familiar to many Kenyans today whose encounters with the police often begin with demands for the production of the kipande (ID card) and end with a stint in overcrowded police cells. However, there are some differences. An audit of pre-trial detention…found that police generally arrested and charged people for petty offences, with close to half of those arrests occurring over weekends.

In this regard, the attitude is very like that of the white settler in Kiambu, Henry Tarlton, who told the 1912 Native Labour Commission regarding desertion by African workers that “this is my busiest season and my work is entirely upset, and it is hardly surprising if I am in a red-hot state bordering on a desire to murder everyone with a black skin who comes within sight”. Another white settler, Frank Watkins, in a letter to the East African Standard in 1927 boasted of his “methods of handling and working labour”, which included “thrash[ing] my boys if they deserve it”.

This brutality, especially directed towards African males, was paired with forced labour from the very onset of the colonial experience. (Brett Shadle, Professor and Chair of the Department of History at Virginia Tech, notes that the settlers were much more reticent about their violence on African women, which tended to be sexual in nature.) These settlers were already pushing the colonial state to institute unpaid forced labour on public works projects in the reserves (which it eventually did) as a means of driving Africans to wage employment for Europeans.

But it was within the prison system and Mau Mau detention camps that the practice of forced labour found its full expression. According to Christian G. De Vito and Alex Lichtenstein, “Conditions inside the detention camps created in Kenya in the 1910s and 1920s and in the prison camps opened in 1933 depended on the assumption that forced labour, together with corporal punishment, could actually serve as the only effective forms of penal discipline.” The influx of Mau Mau detainees, they explained, overwhelmed the system “since police repression by far exceeded the capacity of the already overcrowded prisons, and the colonial government decided to establish a network of camps, collectively called the ‘Pipeline’, characterized by violence, torture, and forced labour.”

These are the footsteps in which the Kenyan state is walking. Nelson Mandela once said that a nation should not be judged by how it treats its highest citizens but by how it treats its lowest ones. By that measure, the current Kenyan state is no different from its colonial predecessor.

“It is also worth thinking about what happens to the prison at the end of colonialism,” says Prof Anderson. “There is no movement for prison reform in Kenya after 1963 – rather the opposite: the prison regime becomes harsher and is even less well funded than it was in colonial times. By the end of the 1960s, Kenya is being heavily criticised by international groups for the declining state of its prison system and the tendency to violence and abuse of human rights within the system.”

Prof Daniel Branch stresses that “post-colonial prisons urgently need a history. The Mau Mau period rightly gets lots of attention, but there’s very little by scholars on the post-colonial period”.

It is critical, as Kenya marks a decade since the promulgation of the 2010 constitution, that we keep in mind Mandela’s words and ask whether, if at all, it has changed how those condemned by society – “our lowest ones” – are treated. That will, in the end, be the true measure of our transformation.

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The Myth of Unconditionality in Development Aid

Based on interviews and ethnographic fieldwork in Western Kenya, Mario Schmidt argues that local interpretations of Give Directly’s unconditional cash transfer program unmask how the NGO’s ‘myth of unconditionality’ obscures structural inequalities of the development aid sector. Schmidt argues that in order to tackle these structural inequalities, cash transfers should be ‘ungifted’ and viewed as debts repaid and not as gifts offered.

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The New York Times praises the US-American NGO GiveDirectly (GD), a GiveWell top charity, for offering a ‘glimpse into the future of not working’ and journalists from the UK to Kenya discuss GD’s unconditional cash transfer program as a revolutionary alternative in the field of development aid. German podcasts as well as international bestsellers such as Rutger Bregman’s Utopia for Realists portray grateful beneficiaries whose lives have truly changed for the better since they received GD’s unconditional cash and started to invest it like the business people they were always meant to be. At first glance, GD indeed has an impressive CV.

Since 2009, the NGO has distributed over US$160 million of unconditional cash transfers to over tens of thousands of poor people in Kenya, Rwanda, Uganda, the USA and Liberia in an allegedly unbureaucratic, corrupt-free and transparent way. Recipients are ‘sensitized’ in communal meetings (baraza), the cash transfers are evaluated by teams of internationally renowned behavioral economists conducting rigorous randomized controlled trials (RCTs) and the money arrives in the recipients’ mobile money wallets such as the ones from Mpesa, Kenya’s celebrated FinTech miracle, without passing through the hands of local politicians.

In 2015 and after finalizing a pilot program in the Western Kenyan constituency Rarieda (Siaya County), GD decided to penetrate my ethnographic field site, Homa Bay County. On the one hand, they thereby hoped to enlarge their pool of potential beneficiaries. On the other hand, they had planned to conduct further large-scale RCTs (one RCT implemented in the area, studied the effects of motivational videos on recipients’ spending behavior). To the surprise of GD, almost 50% of the households considered eligible for the program in Homa Bay County refused to participate. As a result, the household heads waived GD’s cash transfer which would have consisted of three transfers amounting to a total of 110,000 Kenyan Shillings (roughly US$1,000).

In order to understand what had happened in Homa Bay County and why so many households had refused to participate, I teamed up with Samson Okech, a former field officer of Innovations for Poverty Action (IPA) who had conducted surveys for GD in Siaya. Samson had been an IPA employee for over ten years and belongs to the extended family I work with most closely during fieldwork. During our long qualitative interviews with recipients of GD’s cash transfer and former field officers as well as Western Kenyans who refused to be enrolled in the program, the celebratory reports by journalists and scholars were replaced by a bleaker picture of an intervention riddled with misunderstandings and problems.

Before I offer a glimpse into what happened on the ground, I want to emphasize that I am neither politically nor economically against unconditional cash transfers which, without a doubt, have helped many individuals in Western Kenya and elsewhere. It is not the what, but the how against which I direct my critique. The following two sections illustrate that a substantial part of Homa Bay County’s population did not consider GD’s intervention as a one-time affair between themselves and GD. In contrast, they interpreted GD’s program either as an invitation into a long-term relationship of patronage or as a one-time transfer with obscured actors.

These interpretations should make us aware of ethical problems entailed in conducting social experiments (see Kvangraven’s piece on Impoverished Economics, Chelwa’s and Muller’s The Poverty of Poor Economics or Ouma’s reflection upon GD’s randomisation process in Western Kenya). They can also crucially encourage us to think about ways of radically reconfiguring the political economy of development aid in Africa and elsewhere.

Instead of framing relations between the West and the Rest as relations between charitable donors and obedient recipients, in my conclusion I propose to ‘ungift’ unconditional cash transfers as well as development aid as a whole. Taking inspiration from rumors claiming that Barack Obama, whose father came from Western Kenya, has created GD in order to rectify historical injustices, I suggest rethinking cash transfers as reparations or debts repaid. Consequently, recipients should no longer be used as ‘guinea pigs’ but appreciated as equal partners and autonomous subjects entitled to reap a substantial portion of the value produced in a global capitalist economy that, historically as well as structurally, depends on exploiting them.

Why money needs to be spent on ‘visible things’

Those were guidelines on how to use the money. It was important that what you did with the money was visible and could be evaluated’, William Owino explained to us after we had asked him about a ‘brochure’ several other respondents had mentioned. One of the studies on the impact of GD’s activities in Siaya also mentions these brochures. In order to ‘emphasize the unconditional nature of the transfer, households were provided with a brochure that listed a large number of potential uses of the transfer.’ 

When being asked which type of photographs and suggestions were included in these brochures, respondents mentioned photographs of newly constructed houses with iron sheets, clothes, food and other gik manenore (‘visible things’). When we inquired further if the depicted uses included drinking alcohol, betting, dancing or other morally ambiguous goods and services, the majority of our respondents dismissed that question by laughing or by adding that field officers had also advised them against using the money for other morally dubious services such as paying prostitutes or bride wealth for a second or third wife.

One of our respondents in Homa Bay took the issue of gik manenore to its extreme by expressing the opinion that GD’s money must be used to build a house with a fixed amount of iron sheets and according to a preassigned architectural plan so that GD, in their evaluation, would be able to identify the houses whose owners had benefited from their program quickly and without much effort. Such practices of ‘anticipatory obedience’ are also implicitly at work in the rationalizations of another respondent. He expected that GD’s field officers who had asked him questions about what he intended to do with the money during the initial survey – questions whose answers had, in his opinion, qualified him to receive the cash transfer – would one day return to see if he had really used the money according to his initially stated intention. The logic employed is clear: The ‘unconditional’ cash transfers needed to be spent on useful and, if possible, visible and countable things so that GD would return with further funds after a positive evaluation.

Recipients understood the relation with GD not as a one-off affair, but as an entrance into a long-term relation of fruitful dependency. In contrast to GD which, like most neoliberal capitalists, understands unconditional cash as a context-independent techno-fix, the inhabitants of Homa Bay framed money as an entity embedded in and crystallizing social power relations.

From such a perspective, free money is not really free, but like Marcel Mauss’ famous gifts, an invitation into a ‘contract by trial’ which has the potential to turn into a long-term relationship benefitting both partners if recipients pass the test and reciprocate with obedience. While some actors framed the offer of unconditional cash as a test that could lead into an ongoing patron-client relationship between charitable donors and obedient recipients, others, the majority who refused to accept GD’s offer, interpreted it as a direct exchange relation with unseen actors.

Why money is never free

‘People in the market and those I met going home told me it is blood money’, Mary, a 40-year old mother remembered. After she had been sampled, Mary had never received money from GD but failed to understand why and believed the village elder had ‘eaten’ her money. She further told us that rumors about ‘blood money’ circulated in church services and funeral festivities. ‘Blood money’ refers to widespread beliefs that accepting GD’s cash implied entering into a debt relation with unknown actors such as a local group sacrificing children or the devil.

Comparable rumors playing with the well-known anthropological trope of money’s (anti)-reproductive potential circulate widely in Homa Bay: Husbands who wake up only to see their wives squatting in a corner of the room laying eggs, a huge snake that lives in Lake Victoria and vomits out all the money GD uses, mobile phones that can be charged under the armpit or find their way into the recipient’s bed if lost or thrown away (many people allegedly threw their phones away in order to cut the link to GD), money that replenishes automatically or a devilish cult of Norwegians that abducts Kenyan babies and transports them to Scandinavia where they are adopted into infertile marriages.

All of these rumors, which are epitomized in a phrase some recipients considered to be GD’s slogan, Idak maber, to idak matin – (‘You live well, but you live short’) – revolve around the same paradox: Money initially offered with no strings attached, but whose reproductive potential will soon demand blood sacrifice or lead to a fundamental change in one’s own reproductive capacities.

Local attempts to ‘conditionalize’ GD’s unconditional cash as well as rumors about tit-for-tat exchanges with the devil undermine GD’s assumption that their cash transfers are perceived by recipients as unconditional. This has two consequences. On the one hand, it questions the validity of studies trying to prove that the program was successful as an unconditional cash transfer program. On the other hand, it urges us to focus on the unintended consequences caused by GD’s intervention. While Western Kenyans who have given consent to participate in the intervention invested their hopes in an ongoing charitable relation with GD, those who have refused to participate – as well as some who did – have been haunted by fear and anxiety triggered by situating GD’s activities in a hidden sphere.

All this raises ethical and political questions about GD’s intervention in Homa Bay County. Did GD, an actor that is neither democratically elected nor constitutionally backed up, have the right to intervene in an area where almost 50 % of the population refused to participate? Did the program really reach the poorest members of society if accepting the offer depended on understanding the complex networks of NGOs that constitute the aid landscape? Should it not be considered problematic that a US-American NGO uses whole counties of an independent country as laboratories where they experimentally test the feasibility of unconditional cash transfers in order to assure their donors that recipients of unconditional cash ‘really’ do not spend donations on alcohol and prostitutes?

Apart from raising these and other ethical and political questions, the reactions of the inhabitants of Homa Bay County can be understood as mirrors reflecting a distorted but illuminating image of the development aid sector. Narratives about women laying eggs and satanic cults sacrificing children exemplify an awareness of the fact that, on a structural level, the development aid sector is shot through with inequalities and obscure hierarchical power relations between donating and receiving actors. At the same time, recipients’ anticipatory obedience to use the cash on ‘visible things’ unmasks a system that appears overwhelmed by the necessity to constantly evaluate projects in order to secure further funding.

By ‘conditionalizing’ cash transfers as long-term patronage relations or tit-for-tat exchanges with the devil, inhabitants of Homa Bay unmask GD’s ‘myth of unconditionality’ and thereby relocate GD into the wider development aid world in which they have never been equal partners.

Why we must ‘ungift’ development aid

‘I think it was because of Obama’, a former colleague of Samson who had administered the surveys of GD in Siaya County told me while we enjoyed a meal in a restaurant along Nairobi’s Moi Avenue after I had asked him why the rejection rates of GD’s program in Siaya had been so low. According to rumors that circulated widely during GD’s first years in Siaya, Barack Obama, whose father came from a village in Siaya County, had teamed up with Raila Odinga, an almost mythical Luo politician, in order to channel US-American funds ‘directly’ to Western Kenya, i.e. without passing through the Central Kenyan political elite who had – in 2007 as well as 2013 – ‘stolen’ the elections from Raila.

As a consequence, at least some recipients did not agree with interpretations of the cash transfers as market exchanges with shadowy actors or invitations into long-term relationships of patronage. Rather, they conceptualized the transfers as reparations originating in Obama’s attempt to recoup losses accumulated by the Luo community due to political injustices provoked by the actions of what many consider to be a corrupt Kikuyu elite. This conjuring of a primordial ethnic alliance between Obama and Western Kenyans might strike many as chimerical.

Be that as it may, we should acknowledge that the rumor of Obama’s intervention situates the cash transfers in a social relation between two equals who accept their mutual indebtedness and act accordingly by putting things straight. By reinterpreting GD as a clandestine operation invented by their political leaders, Barack Obama and Raila Odinga, inhabitants of Siaya portray themselves as belonging to a community of interdependent equals whose members are entitled to what the anthropologist James Ferguson has called their ‘rightful share’.

How would development aid look like if we dared to transfer this idea of a community whose members acknowledge their equality and mutual indebtedness to our global economic system? One way to redeem the fact that we all live in a highly connected capitalist economic system spanning the whole globe and depending on exploiting a huge portion of the global community would be to follow in the footsteps of the inhabitants of Siaya and rebrand cash transfers as reparations being paid for historical and structural injustices.

By way of conclusion, I want to suggest the idea of ‘ungifting’ development aid, i.e. to reframe it as a duty and to accept that recipients of cash transfers have the right to receive their share of the value produced by the global capitalist economic system. Consequently, cash transfers should be considered as debts repaid and not as gifts offered.


Names of individuals in this article have been anonymized.

This article was first published in the Review of African Political Economy.

Names of individuals in this article have been anonymized.

 

 

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