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Judging The Judges: Who are the Supreme Court Justices?

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The Supreme Court

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.

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

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DEBT AND TAXES: Kenya is living large on borrowed money

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DEBT AND TAXES: Kenya is living large on borrowed money

Kenya’s fiscal policy – the means by which the government adjusts its spending levels, revenue generation and collection, and debt to monitor and influence the economy- has been a defining feature of the current administration. The three have been characterised by almost consistent features and trends.

Some background information is useful. Kenya has had an annual growth rate of about 5.46 percent from 2004 until 2016. Initially, the economy was slated to grow at around 6 percent in 2017 but this has since been revised to 5 percent. According to Genghis Capital, it will actually be between 4.25- 4.75 percent due to the drought-induced contraction in agriculture, the negative effects of the interest rate cap on the financial sector and the prolonged electioneering period. The Government thinks the economy will grow by over 6 percent next year though the World Bank projects a lower rebound to 5.8 percent in 2018 and 6.1 percent in 2019.

Kenya’s economy is primarily services driven and according to the Kenya National Bureau of Statistics (KNBS), under the Kenyatta administration, growth has largely been on the back of government spending on infrastructure projects such as the Standard Gauge Railway (SGR), the expansion of the road network as well as electricity generation and transmission projects. Other significant contributors to growth include a resurgent tourism industry and growth in information and communication, real estate and transport and storage.

Over the past 6 years, government spending has grown at an average of 14.7 percent, yet revenue growth has only increased by 12.7 percent. Under the current administration, spending has gone up by two-thirds, from Sh1.6 trillion in 2013/14 to Sh2.64 trillion in 2017/18.

Back to fiscal policy, we will address each component separately: expenditure, revenue generation and collection, and borrowing.

EXPENDITURE

Over the past 6 years, government spending has grown at an average of 14.7 percent, yet revenue growth has only increased by 12.7 percent. Under the current administration, spending has gone up by two-thirds, from Sh1.6 trillion in 2013/14 to Sh2.64 trillion in 2017/18. While some of this can be explained by inflation reducing the value of money, there is a consistent trend of notable increases in government spending.

Public spending as a % of GDP

(Source: Institute of Economic Affairs)

 

A fundamental problem in analysing fiscal policy at both national and county levels is determining the intended recurrent vs development budgets and comparing these to the actual expenditure pattern. The image below from the Institute of Economic Affairs Kenya (IEA) details this for the National Government:

Share of Recurrent and Development Budgets in Total MDA Budget.
(Source: Institute of Economic Affairs)

Overall, two key trends are clear, the first of which is that the national budget is still geared towards recurrent spending. Indeed, as the Treasury itself has admitted in the past, recurrent expenditure is reaching unsustainable levels.

There are several factors behind this aggressive growth in expenditure, the first of which is devolution. In 2010 Kenyans enacted a new constitution, which established a bicameral Parliament and 47 county governments. At the beginning of the implementation of devolution, a parliamentary report indicated that it would cost at least Sh36 billion to set up. Prior to devolution, it cost Sh6.6 billion per year to run Parliament, but that figure is expected to rise to Sh14.3 billion. The Parliamentary Budget Office has also stated that it will cost Sh21.75 billion annually to run the 47 county assemblies. Thus, while welcome, the reality is that devolution is expensive.

At the beginning of the implementation of devolution, a parliamentary report indicated that it would cost at least Sh36 billion to set up. Prior to devolution it cost Sh6.6 billion per year to run Parliament, but that figure is expected to rise to Sh14.3 billion. The Parliamentary Budget Office has also stated that it will cost Sh21.75 billion annually to run the 47 county assemblies. Thus while welcome, the reality is that devolution is expensive.

Linked to the point above is the public wage bill which, according to the Salaries and Remuneration Commission (SRC), has ballooned from Sh465 billion when the Kenyatta administration took over to Sh627 billion in the 2015/2016 financial year, an annual average growth of 9 per cent. SRC’s projections show that it will be Sh676 billion in 2016/2017. Earlier this year, the International Monetary Fund (IMF) raised concerns, stating that Kenya is among countries that exhibit large increases in the wage bill, particularly in the run-up to elections. IMF is of the view that given Kenya’s rising debt levels (more on this later) the decision to increase spending on public sector wages is a concern as less funds are left over for economically productive development expenditure. The SRC pooh-poohed the IMF’s concerns, stating that wages were actually falling as a proportion of GDP: from 10.3 per cent in 2012/2013 to 9.5 per cent in 2015/2016.

A second factor behind the growth in expenditure, which the government has been eager to finger as the primary reason, has been the investment in infrastructure. According to the Capital Markets Authority (CMA), Kenya’s current estimated infrastructure funding gap is USD 2-3 billion per year over the next 10 years. To address this, government has allocated nearly a third of total budget expenditure to infrastructure between the 2016/17 and 2019/20 financial years.

The World Bank makes the point that the infrastructure investment drive in Kenya needs to be done in a way that is both efficient and sustainable. With such a robust commitment, key questions must be asked. For example, is Kenya investing in the right infrastructure? The Brookings Institution makes the point that a push for more infrastructure only raises economic growth and people’s well-being if the focus is on quality and impact, rather than quantity and volume. Has Kenya fallen short here? Has the government conducted an audit of infrastructure investment and the development it has engendered thus far? Has there been an audit of its quality? How efficient is our investment? Without an answer to these questions, the country risks wasting resources on aggressive infrastructure expenditure that generates no real benefits for its people.

Indeed, the link between infrastructure and economic growth is more tenuous than previously assumed. According to the London School of Economics, most recent studies on infrastructure’s contribution to growth tend to find smaller effects than those reported in earlier studies; this is linked to improvements in methodological approaches. Kenya, therefore, shouldn’t assume that infrastructure investment and development will automatically lead to significant improvements in economic growth. It is time for a fundamental rethink of the scale, nature and efficiency of the government’s spending on infrastructure.

Kenya, therefore, shouldn’t assume that infrastructure investment and development will automatically lead to significant improvements in economic growth. It is time for a fundamental rethink of the scale, nature and efficiency of the government’s spending on infrastructure.

The final issue regarding expenditure is linked to the mismanagement of public funds at both national and county levels. At the national level, allegations of corruption and financial mismanagement are legion and include: the National Youth Service (NYS) affair where the Auditor General stated a loss of Sh1.9 billion; Sh5.2 billion misappropriated at the Ministry of health according to an in-house audit report; mobile clinics valued at Sh1.4 million each being sold to the government at more than 7 times the price then abandoned in an NYS yard; inflated rig charges at the Geothermal Development Company (GDC) in which the Ethics and Anti-Corruption Commission (EACC) found the tender committee culpable and six managers were sent on compulsory leave.

At county level, there are rising concerns with expenditure considering that the national government has sent to the counties more than Sh1 trillion since their establishment in 2013. Research by the International Budget Partnership Kenya (IBPK) reveals that county governments are not making available fiscal documents required by the Public Financial Management Act (PFMA). Only about 20 percent of key budget documents, including fiscal expenditure documents, meant to be online had been uploaded. Indeed, IBPK reports that in some cases, budget allocations are based on lists of projects drawn up by Members of County Assemblies (MCAs). There is no clarity on the criteria governing such allocations, and even less clarity on how county funds are actually spent. There is a distinct air of mischief informing this laxity. It is not a secret that the first iteration of devolution revealed how much autonomy county governments have in the planning and use of funds they receive and generate. This lack of transparency seems to be aimed at facilitating a culture of financial mismanagement and corruption at the county level in an environment where, frankly, no one is holding them accountable.

Further, county governments see themselves as expenditure units, not development units. This needs to change. Rather than concentrating on how much they have to spend, they ought to focus on the development dividends they are responsible for generating. Without this fundamental shift in thinking, county governments will continue to be like spoilt children, forever crying over what they are owed, but with nothing to show for the development they ought to deliver.

For example, 16 firms listed on the Nairobi Stock Exchange issued profit warnings in 2016, which meant less corporation tax could be collected. Additionally, the 7000 jobs lost to downsizing and shuttering of firms, mainly in the banking sector, reduced Pay As You Earn receipts.

The greatest concern beyond the moral question of the financial mismanagement of the public funds of a poor African country, is the issue of how corruption affects spending efficiency. As will be explained later, Kenya is getting into significant debt, particularly to finance development expenditure. If such debt is not being used as efficiently as possible and instead funds are stolen or dubiously spent, the country will be saddled with onerous debt without he means – the improvements in economic performance that were to come from debt financed development projects – to pay it.

Given the factors detailed above, there are several broad changes that ought to be made. At national level, the first recommendation is for government to commit more money to development expenditure and put more effort into actually absorbing the allocations given to the docket.

Secondly, the national government ought to be more consistent in the manner in which it presents data and should make it easier to track planned versus actual expenditure, particularly across the recurrent and development dockets.

Thirdly, large allocations to infrastructure projects need to be audited and a determination made on the effectiveness of the allocations, how funds can be better spent and recommendations on how to improve efficiency.

Finally, national government has to clamp down on financial mismanagement and prosecute and punish culpable officials. Without this, the government’s commitment to ending corruption will be seen as insincere and ineffective.

At county level, there are several issues that ought to be addressed the first of which is that there needs to be a very clear hierarchy of accountability for county expenditure. Governors and the County Ministers of Finance must be held accountable for their spending and individuals need to be punished if found guilty of corruption.

Secondly, counties must comply with the PFMA and provide breakdowns of their expenditure which includes a delineation between recurrent and development expenditure.

Thirdly, the principle of fiscal discipline should carry considerable weight when national government makes county allocations such that responsible use of resources is rewarded and poor performers are punished.

Finally, a citizen-led effort to create a ranking of county governments according to fiscal transparency with a focus on expenditure would likely create pressure on county governments to adhere to their legal obligations. Included in the ranking should be how well they comply with PFMA stipulations, with the top and bottom performers widely publicised.

REVENUE GENERATION AND COLLECTION

Kenya Revenue Authority (KRA) has been falling short of its revenue targets for some time. For example, in 2016/17 total collection stood at Sh1.365 trillion representing a performance rate of 95.4 percent, and a shortfall of Sh66.64 billion- a significant number. In the first four months of this fiscal year, KRA has already fallen behind by Sh40 billion. There are questions as to why revenue collection consistently underperforms. I am of the view that KRA is given unrealistic targets, more informed by aggressive increases in government expenditure and oblivious to the serious constraints that mute tax collection.

Without this fundamental shift in thinking, county governments will continue to be like spoilt children, forever crying over what they are owed, but with nothing to show for the development they ought to deliver.

Revenue generation targets tend to be revised upwards over the course of the year. KRA’s original revenue target for the 2016/17 was Sh1.415 trillion which was later revised to Sh1.431 trillion, an increase of KES 16.24 billion. This is a concern because motivations behind the increases in targets are not clear. Do they perhaps stem from a realisation in Treasury that it cannot raise as much as anticipated in borrowing?

The second constraint is that the macroeconomic environment informs the extent to which revenues deviate from targets. For example, it is estimated that a 1 percent reduction in GDP growth reduces revenue by Sh13.4 billion and as noted earlier, this has been something of a tough year. A similar increase in inflation also requires that revenue targets be raised by Sh13 billion.

This is linked to sectoral issues which can affect the ability of KRA to collect tax. For example, 16 firms listed on the Nairobi Stock Exchange issued profit warnings in 2016 –a rising trend since 2013– which meant less corporation tax could be collected. Additionally, the 7000 jobs lost to downsizing and shuttering of firms, mainly in the banking sector, reduced Pay As You Earn receipts.

Third, government policy decisions, particularly those related to tax policy, affect the ability to generate revenue. For example, the non-implementation of changes to specific excise rates in 2016/17 reduced revenues by nearly Sh5 billion. Additionally, the duty-free importation of essential foods (maize, milk, sugar) led to a revenue loss of over Sh4 billion in the fourth quarter of the same financial year. Indeed, it is estimated that government policy decisions cost it Sh13 billion in lost revenue that entire year. The government tends to shoot itself in the foot in other ways too. For example, delays in remitting income tax from public institutions costs it Sh823 million.

Finally, revenue generation and collection in Kenya like the rest of Africa is negatively affected by illicit financial flows from the country. According to the UN, Africa loses more than US$50 billion through illicit financial outflows per year. Companies evade and avoid tax by shifting profits to low tax locations, claiming large allowable deductions, carrying losses forward indefinitely, and using transfer pricing.

The main reason why consistent subpar revenue collection is worrying is because the national treasury continues to construct budgets based on the unrealistic targets. For example, revenue generated was meant to play a bigger role in the current budget, financing 60.7 percent of the overall deficit and 58.7 percent of the development expenditure. Since it appears as though targets will again not be met, government will have to borrow more than anticipated.

 

There ought to be fundamental rethink of revenue generation and collection in order to effect a sustained increase. There are several factors to address, the first of which is improvements in the business environment that increase profits and thus taxable revenue. A key component that is often ignored here is the environment for the informal economy. Current assessments largely ignore the sector in which 90 percent of employed Kenyans earn a living. More ought to be done to make informal businesses more profitable.

At the same time, the government ought to seek to expand the revenue base by encouraging the formalisation of these businesses. Concerted efforts must be undertaken to pilot schemes that remove barriers to – and create incentives for – formalisation, particularly of larger businesses that easily evade tax yet are robust enough to consistently pay.

As recommended by the Africa Progress Report 2013, alongside demanding the highest standards of propriety and disclosure from their government, Kenyans should push citizens of the developed world to demand similar standards from their governments and companies.

Finally, Kenya needs to work on curbing illicit financial outflows. The UN makes the point that G8 leaders have committed to the 2013 Lough Erne Declaration, a 10-point statement calling for an overhaul of corporate transparency rules. Among other things, the declaration urges tax authorities to automatically share information to fight evasion. It states that poor countries should have the information and capacity to collect the taxes owed to them. Kenya should join other African countries in lobbying rich countries to enact stricter laws against tax evasion. As recommended by the Africa Progress Report 2013, alongside demanding the highest standards of propriety and disclosure from their government, Kenyans should push citizens of the developed world to demand similar standards from their governments and companies.

BORROWING AND DEBT

In 2013, the Jubilee administration inherited a debt of Sh1.7 trillion after a decade of the Kibaki government. Less than 5 years later, that has ballooned by nearly 250 percent to Sh4.4 trillion. This year’s borrowing has been particularly aggressive. The Central Bank of Kenya (CBK) says that the government is borrowing an average of Sh86 billion per month, the highest level since the bank started listing public debt in 1999, and over Sh30 billion more than the monthly averages of 2015 and 2016.

Despite this, it seems the government’s debt appetite won’t wane any time soon. The Treasury recently announced that it is seeking to issue another Eurobond, which could be used to repay the outstanding US$750 million syndicated loan the government raised in 2015 and which came due in October. What seems to be clear is that given expanding expenditure and subpar revenue collection, borrowing from both foreign and domestic sources will continue to grow. Further, as a Bloomberg analyst points out, Kenya has among the highest debt levels in sub-Saharan Africa, partly a result of having neither the commodity revenue sources of Nigeria and Angola nor the budget support from donor countries enjoyed by neighbouring Tanzania and Uganda.

Before looking at the specific features of Kenya’s debt, it is important to state that debt itself is not necessarily a problem. If used wisely, it can fund investment into activities and projects that catalyse economic development, GDP growth and growth in per capita incomes. Concerns only start being raised when the pattern of debt accrual and servicing seems headed in an unsustainable direction. If expenditure is growing in the context of muted revenue generation, that creates momentum for more debt than cannot be sustainably serviced. Further, if debt is not used efficiently and linked to increases in productivity and GDP growth, it also saddles countries with burdensome repayments. At the moment, Kenya is on the cusp where the government can either take decisive action to put the country on a better debt path, or continue with current trends that are edging the country closer to an unsustainable position.

 

The IEA points out that as of June 2012, total public debt was composed of 52.9 percent domestic debt and 47.1 percent external debt. However, the share of external debt has been steadily growing and recent statistics show that today the situation is reversed, with external debt taking up more than half (52.3 percent) of total debt.

The National Treasury Report 2015 indicates that the external debt stock for Kenya is composed of multilateral debt (54.7 percent), bilateral debt (27.1 percent), export credits (1.5 percent), commercial banks (0.6 percent) and International Sovereign Bonds (16.1 percent). As the IEA points out, a large part of the external debt remains concessional (i.e. on terms substantially more generous than market loans) and mainly from multilateral creditors; however, the share of concessional loans has been falling over the last three years which means external debt is becoming ever more expensive for the country.

There are several factors affecting the composition of debt, the first of which is Treasury’s desire to reduce domestic borrowing in order to release domestic credit for the private sector. This was a major reason given for issuing the Eurobond. As shown by the statistics above, he government has stayed true to this intent in some ways. However, the cap on interest rates introduced last year, has perversely facilitated government’ ability to raise domestic debt as banks, reluctant to lend to the general public due to profit margin and risk concerns, have more aggressively pursued government securities. The attractiveness of government debt is thus pushing the domestic private sector out of the domestic debt market, which contradicts government’s original intent.

The Central Bank of Kenya (CBK) notes that the government is borrowing an average of Sh86 billion per month, the highest level since the bank started listing public debt in 1999, and over Sh30 billion more than the monthly averages of 2015 and 2016.

It is important to note that, as reported in The Standard, World Bank data indicates that the average grace period on repaying new external debt has shrunk by half in the last four years. On average, in 2013, the country was given 8.2 years before starting to repay loans. This had reduced to 4.6 years by 2016. Shorter grace periods reduce the government’s room for flexibility and could be an indicator of jittery lenders keen on getting their money back as soon as possible. Indeed, Bank of America Merrill Lynch notes that Kenyan debt underperforms its peers as evidenced by the fact that yield premiums over U.S. debt have not narrowed as much as those of other sub-Saharan debt. In short, Kenya is seen as riskier to lend to than other African countries.

Informed by the expansion in borrowing, Kenya’s fiscal deficit has also grown. Its ratio to GDP has widened significantly from 6.4 percent in 2013/14 to 10.4 percent in 2016/17. The IEA points out that the large increase in deficit partly reflected the financing of the first phase of Standard Gauge Railway (SGR) project.

Fiscal deficit as a percentage of GDP

Fiscal deficit as a percentage of GDP
(source: IEA)

The government is targeting a fiscal deficit of 5.9 percent of GDP, in the 2018/19 fiscal year, down from an estimated 7.3 percent this fiscal year. Others however do not expect this will be met. Genghis Capital thinks Kenya’s budget deficit for this fiscal year will likely reach 8 percent of GDP. Further, the government doesn’t always hit its fiscal deficit projections. Indeed, according to Cytonn Investments, in the 2016/2017 fiscal year, the government’s deficit actually widened to 8.3 percent of GDP, some way above its revised target of 6.9 percent. In any case, despite the efforts it may be making to reduce the deficit, current government targets and performance are still higher than its own preferred ceiling of 5 percent.

 

The IEA points out that as the amount of debt held increased, the cost of debt has also gone up with debt servicing increasing from about Sh19 billion in 1990 to Sh400 billion by the end of 2015. A larger component of debt servicing emanates from servicing of domestic debt, but since the proportion of domestic and external debt to GDP are almost at par, it may indicate that it is costlier to service the former.

Debt service 1980 – 2016, KES billions

Debt service 1980 – 2016, KES billions
(Source: IEA)

There are growing concerns as to how much revenue is being committed to servicing debt. In the first nine months of the 2015/16 financial year, the government spent four out of every 10 shillings it collected as tax to settle debts. In April, the IMF estimated Kenya’s debt-service to revenue-ratio at 34.7 percent against a threshold of 30 percent, and a report in the Business Daily pointed out that in the last fiscal year, the country spent more money to settle debt (Sh435.7 billion) than it did to finance development (Sh394.2 billion). If more and more revenue has to be locked into servicing debt, government will either have to ramp down spending on development (given the relatively fixed burden of recurrent expenditure) or borrow even more, none of which is good.

The IEA also notes that the ratio of debt to GDP rose from 40.7 percent in 2012 to 56.4 percent in June, which merited a ranking of 78 out of 138 countries on the World Economic Forum’s Global Competitiveness Index.

Government Budget and Public Debt as % of GDP

Government Budget and Public Debt as % of GDP
(Source: IEA); GDP is for full year (FY) and measured in thousands; * Provisional estimates

As borrowing continues to grow aggressively, it will lead to higher imbalances that will raise concerns about sustainability.

Views differ on whether Kenya’s debt is sustainable. Some are of the view that given the massive gaps in key sectors such as energy and transport infrastructure, the country must continue to do everything possible to finance and address the gaps and that debt accrued now will pay off in the long term. Kenya remains below the World Bank’s debt-to-GDP ratio ceiling (or tipping point) of 64 percent. The IMF, in its review of Kenya a year ago, said Kenya’s risk of external debt distress remains low but notes there is need for reduction in the deficit over the medium term. While the IMF has raised concerns about Kenya’s public debt, it is below what they view as the applicable ceiling for Kenya – 74 percent of GDP.

The IEA points out that as the amount of debt held increased, the cost of debt has also gone up with debt servicing increasing from about Sh19 billion in 1990 to Sh400 billion by the end of 2015.

Others, however, are of the view that a debt-to-GDP ratio beyond 40 percent for developing and emerging economies is dangerous. The IMF itself envisages fiscal consolidation that targets a 3.7 percent of GDP deficit by 2018/19 (compared to the government’s own target of 5.9 percent) which it says is critical to maintaining a low risk of debt distress while preserving fiscal space for development priorities.

I disagree with the Treasury’s assertions that the national debt is manageable and that there is headroom for more. Kenya’s debt is only manageable if decisive action is taken to reduce expenditure, boost revenue collection and reduce borrowing. If this does not happen within the next three years, the country will start feeling the effects of debt distress.

The credit rating agency Moody’s has already raised concerns about the country’s accumulating debt. Indeed, the agency is currently assessing whether it needs to downgrade the country’s credit rating from the current B1 status on grounds of its weakening ability to repay debt. Moody argues that unless a decisive policy response is introduced, the upward trajectory in government debt will see the debt-to-GDP ratio surpass the 60 percent mark by June 2018, pushing financing costs for the private sector even higher. Its assessment points to the fact that in the latest fiscal year, the government spent 19 percent of its revenues on interest payments alone, up from 10.7 percent five years ago. It notes that persistent, large, primary deficits and high borrowing costs continue to drive government indebtedness ever higher. Further, government liquidity pressures risk, the danger that the government may not have enough readily available cash to settle its immediate and short-term obligations, is rising in the face of increasingly large financing needs.

Another credit rating agency, Fitch, has also indicated that it could downgrade Kenya’s rating due to its debt position. Fitch noted that the country was spending a larger proportion of its revenue on paying debt compared to its economic peers such as Uganda, Rwanda and Ghana.

Fitch gave Kenya a B+ rating, with a negative outlook. These credit ratings are important as a fall in rating will mean any new foreign debt taken on by the country will be more expensive.

 

There are several broad strategies Kenya can use to better manage its debt the first of which is to aggressively reduce expenditure. Government must implement austerity budgets and limit unnecessary expenditure. I also think here should be a fundamental downward review of salaries of those in government. While those of technocrats such as Cabinet and Permanent Secretaries as well as professionals such teachers and doctors should remain attractive, there are far too many people in elected office on overly generous terms, and the related wage bill is not sustainable for a relatively poor African country.

Secondly, government needs to improve its recurrent vs development expenditure allocations. As elucidated before, year after year, more money is allocated to recurrent expenditure which is not economically productive. A reduction in recurrent expenditure is crucial and this can be partially addressed by a downward review in wages as explained above. The IEA points out that although in relative terms the proportion of recurrent expenditure to GDP has slightly declined while that of development expenditure has nearly doubled from 5.7 percent of GDP in 2007/8 to 11.0 percent in 2016/17, recurrent expenditure still remains comparatively high.

In April this year, the IMF estimated Kenya’s debt-service to revenue-ratio at 34.7 percent against a threshold of 30 percent, and a report in the Business Daily pointed out that in the 2016/17 fiscal year, the country spent more money to settle debt (Sh435.7 billion) than it did to finance development (Sh394.2 billion).

Development expenditure should be prioritised by considering projects which bring immediate returns to the economy. More money must be committed to spurring the growth required to pay debts, if Kenya is to avoid a repayment crisis.

Thirdly, government has to create strategies to ensure more development expenditure is absorbed. A November 2017 report by Controller of Budget showed the use of development funds for the financial year ending in June was at 70 percent, the highest since 2013. While this is good news and higher than the 66 per cent rate recorded in the previous year, it is not good enough. Indeed, the organisation Development Initiatives notes that the 2017/18 fiscal year actually saw a decline in total allocations to development spending by 12.3 percent, as a result of lower absorption of development spending by ministries in 2016/17. The problem is at both national and county levels. As Price Waterhouse Coopers points out, if the entire amount allocated is not being absorbed, it defeats the purpose of the budget especially around development expenditure. Given that the country is getting into a great deal of debt for development expenditure, it is crucial that absorption rates in this docket increase in order to spur economic growth.

Fourthly, government needs to better track how the debt which is financing the development docket, is being used. Given concerns with financial mismanagement of public funds at both national and county levels, it is crucial that the debt spending is meticulously tracked. This is because financial mismanagement of debt funds poses the dangerous risk of pushing the country into debt unsustainability as money is pocketed rather spent to generate growth.

 

CONCLUSION

This article has elucidated Kenya’s fiscal policy and position in terms of expenditure, revenue generation and debt accrual. It is important that the country reduces expenditure, increases revenue generation and better manages debt spending to put the country on a more sustainable fiscal path. We are in a position where Kenya’s fiscal health can be dramatically improved by taking decisive action as per the recommendations herein. It is my hope that the government takes the required action to improve the country’s fiscal path so that fiscal policy plays the positive and important role it can in driving the country’s development.

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MIND YOUR LANGUAGE: Roots of the crisis in Cameroon

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MIND YOUR LANGUAGE: Roots of the crisis in Cameroon

Since October 2016, Cameroon – one of the most stable states in a volatile subregion – has been making international headlines. A political crisis – the Anglophone Crisis – is shaking the country to the core. It started as a sectoral crisis – with lawyers and teachers demanding for English to remain the primary language of the education and judiciary systems of the English-speaking part of the country – but later turned into a political crisis after the protests were met with military violence, mass arrests and torture.

A country in turmoil

In November 2016, hundreds of people took to the streets in Bamenda after violence was inflicted on lawyers asking for Common Law and English to remain the basis of the judiciary subsystem and on teachers asking for the non-Francophonisation of the Anglophone education subsystem. At first, many people from the northwest and southwest regions were not for separation or violence; people were peacefully protesting for change. However, denial in official statements and the continuous violent responses from the government led to the emergence of small secessionist groups that are taking advantage of the situation to radicalise local activists and non-activist citizens.

Local groups and parts of the Anglophone diaspora have revived the separatist agenda: some demand federalism, others secession.

On October 1st, thousands of people in the English-speaking regions of Cameroon took part in a peaceful march to symbolically proclaim the independence of Ambazonia, the name of an independent country that would be located in the northwest and southwest regions.

According to an International Crisis Group report, security in Cameroon has deteriorated in the Anglophone regions of the northwest and southwest. To protest against the government’s marginalisation of Anglophones, protestors set fire to seven schools and several shops and, for the first time in Cameroon’s post-independence history, homemade bombs were detonated in mid-September 2017. Between 14th and 20th September, two bombs exploded in the northwest region; there were no casualties. On 21st September, another bomb was detonated at a police station in Bambenda, injuring three police officers. A fourth bob nearly exploded in Douala.

After the explosion, the governors of the northwest and southwest regions imposed a de facto curfew, cutting off the Internet for 24 hours, barring movement between Anglophone divisions, and banning gatherings and demonstrations until 3rd October. Despite these measures, around 50,000 people took to the streets in tens of towns and communities in the northwest and southwest regions on September 22nd, demanding the departure of President Paul Biya, the release of Anglophone political leaders and separation. The date chosen coincided with the president’s speech at the United Nations General Assembly. However, what was supposed to be a peaceful march turned violent in some areas. According to local newspapers, some protesters in Buea vandalised the home of the town’s mayor, who is Anglophone but against the protesters. In Mamfe, a police station was set on fire. Four protesters were shot to death by police forces and several more were injured.

On October 1st, thousands of people in the English-speaking regions of Cameroon took part in a peaceful march to symbolically proclaim the independence of Ambazonia, the name of an independent country that would be located in the northwest and southwest regions. This also coincided with the anniversary of the reunification of Cameroon under French mandate and British Southern Cameroon in 1961.

The response of military forces to the march was the most repressive to date. According to Amnesty International, 17 people were reported dead and more than 200 people were arrested during demonstration. The government put the figure at around 10 deaths, but according to locals, the army killed about 100 people on that day. In total, since the beginning of the crisis in October 2016, at least 55 people have officially been reported dead.

These repressive measures led to retaliation by the populace. People burnt vehicles belonging to the sub-prefect and prefect in Boyo and Fundong (in the northwest), snatched weapons from gendarmes in Kumba (in the southwest), ransacked police stations in Ikiliwindi, Mabanda Teke and Kongle, and threw stones at police and military officers in Buea and Bamenda. Since the beginning of November, four military men have been killed in conditions that are still not clear. Cho Ayaba, a leading member of the political wing of the separatist movement who lives abroad, told Reuters, “Cameroon soldiers are enforcing an occupation. The only thing that will make us stop these attacks is if the regime withdraws. If they stop using the military to impose political exclusion and systematic terror on our people.”

The so-called Anglophone Crisis is not something new, as the international media suggest; it has its roots in the decolonisation era.

Currently, the English-speaking regions of Cameroon have become ghost towns due to general strikes – an initiative taken by the Cameroon Anglophone Civil Society Consortium as part of their long-term protest against a government they deem biased towards French speakers. For a year now, schools have not been fully operational, a lost year for students. In September, the so-called Ghost Town operations continued for three days each week. Several stores and seven schools were burnt down to protest against them opening despite the ban. Paul Biya agreed to release some Anglophone leaders and activists to stop the operations and to prevent the school year from being jeopardised for the second year in a row. However, the releases had little or no effect; enrolment rates remain very low and the ghost town operations are still ongoing.

The root of the crisis

The so-called Anglophone Crisis is not something new, as the international media suggest; it has its roots in the decolonisation era. Despite the fact that the current crisis started as a language issue between Anglophones and Francophones, the problem is not really about language; it is about people fighting for respect, integration and identity.

In July 1884, the German government and the traditional Douala chiefs signed a treaty that established a protectorate called Kamerun. After Germany lost in World War I, the victorious powers imposed punitive territorial, military and economic provisions that led to Germany losing her colonies. Kamerun, which was a former German colony, was partitioned between Britain and France under a League of Nations mandate, which appointed France and Britain as joint trustees of Kamerun. France gained the larger share and ruled its territory Cameroun from Yaoundé. Britain’s territory, Northern and Southern Cameroon – a strip bordering Nigeria from the sea to Lake Chad – was ruled from Lagos. During the period of the mandate and the trusteeship, each colonial power shaped their territories in their own image.

 

A report from International Crisis Group describes the situation clearly:

This resulted in major differences in political culture. English was the official language in the territory under British administration. The justice system (Common Law), the education system, the currency and social norms followed the British model. The system of indirect rule allowed traditional chiefdoms to remain in place and promoted the emergence of a form of self-government to the extent that freedom of the press, political pluralism and democratic change in power existed in Anglophone Cameroon prior to independence. The territory was administered as though it was part of Nigeria and several members of British Cameroon’s Anglophone elite were ministers in the Nigerian government in the 1950s.

 In contrast, the Francophone territory was directly administered by France following the assimilationist model, although colonisers and the traditional elites also practised a form of indirect government, especially in the north of the country. French was spoken and France’s social, legal and political norms shaped the centralist political system of successive regimes. Bogged down in a total war against the nationalist movement (Union des populations du Cameroun – UPC), which challenged French presence, the Francophone territory was less democratic.

Being used to self-administration, Southern and Northern Cameroon were in many ways more developed than French Cameroun, with several industries and a sense of democracy. French Cameroun accessed independence before English-speaking Cameroon on January 1, 1961. British Cameroon was aspiring to independence as an autonomous state, but former colonial powers believed that it would not be economically viable and advocated for not creating microstates. So a referendum took place on February 11, 1961: British Cameroon was supposed to choose between joining Nigeria or the new Republic of Cameroon. Northern Cameroon chose to join Nigeria and Southern Cameroon chose to join the Republic of Cameroon. This led to the independence of Southern Cameroon in October 1961 and the creation of a federal state with a flag with two stars symbolising the two territories coming together – West Cameroon being the former Southern Cameroon and East Cameroon being the former Republic of Cameroon. Both territories were now one under the name United Republic of Cameroon.

Problems started when, despite the constitutional provision stating that English and French were both official languages, French became the language of administration.

A federal constitution approved by the National Assembly of the Republic of Cameroon in August 1961 and promulgated by the then president Amadou Ahidjo in September 1961 was imposed when negotiating the terms of reunification. (Southern Cameroon was then still under the trusteeship of Britain since as it obtained independence on October 1, 1961.)

Centralisation was the governing mode of the former French territory, and the federated state was administrated from Yaoundé, where political leaders held all powers in their hands to the detriment of traditional chiefs whose authority was recognised and respected during the trusteeship. The assimilationist model the former French territory experienced under French trusteeship became its way of governance. In line with the constitutional provision stating that the vice president must be from West Cameroon if the federal president comes from East Cameroon and vice versa, John Ngu Foncha became vice president of the country and prime minister of West Cameroon.

Problems started when, despite the constitutional provision stating that English and French were both official languages, French became the language of administration. Then Amadou Ahidjo divided the country into six administrative regions and appointed federal inspectors in each region. English- speaking Cameroonians were not happy because West Cameroon could not at the same time be a federated state according to the constitution and be an administrative region by decree. The appointed federal inspector had more powers over the region than its prime minister. At the economic level, Ahidjo imposed an exchange rate of £1 to FCFA692 instead of the normal FCFA800, which reduced the purchasing power of the region that still had strong ties with Britain. Then he demanded for West Cameroon to cut ties with Britain, which made the region lose export duty advantages.

Though the southwest and northwest regions play an important role in the economy, especially when it comes to agriculture and trade, and though most of Cameroon’s oil, which accounts for one-twelfth of the country’s gross domestic product (GDP), is located off the coast of the Anglophone region, these regions are still lagging behind.

The economic decline of West Cameroon became evident. Reunification came with the dismantlement of the federal state/region’s economic structures, such as the West Cameroon Marketing Board, the Cameroon Bank and Powercam, as well as abandonment of several projects (the port of Limbé, and airports at Bamenda and Tiko), with investments in the Francophone part of the country having more advantages. The problem still persists to date.

Though the southwest and northwest regions play an important role in the economy, especially when it comes to agriculture and trade, and though most of Cameroon’s oil, which accounts for one- twelfth of the country’s gross domestic product (GDP), is located off the coast of the Anglophone region, these regions are still lagging behind.   As Amindeh Blaise Atabong declared on Quartz, “In Cameroon’s 2017 public investment budget, home region of president Paul Biya, in the south, was allocated far more resources than the northwest and southwest regions put together. Going by the country’s government project logbook for the year, the south region was accorded over 570 projects at a total sum of over $225 million (FCFA 126 billion). For its part, the northwest region had no more than 500 projects to be executed with over $76 million (FCFA 42 billion), while the southwest region had slightly over $77 million (FCFA 43 billion) for over 500 projects.”

When Paul Biya succeeded Amadou Ahidjo in November 1982, he further centralised power. On August 22, 1983, he divided the Anglophone region into two provinces: North-West and South-West provinces. The following year, he changed the country’s official name to the Republic of Cameroon and removed the second star representing the English-speaking part of the country from the flag. (The Republic of Cameroon was the name of the former Francophone territory.) These decisions symbolically killed West Cameroon and assimilated it within the Republic of Cameroon.

The separatist agenda and the way forward

As previously mentioned, the separatist agenda is not a new one. In 1993, English-speaking Cameroonians organised the All Anglophone Conference (AAC) and called for a return to federalism. During this period, Anglophone political leaders Muna and John Ngu Foncha went to the United Nations to demand independence for former Southern Cameroon. The position of the Social Democratic Front (the main opposition party then and now with a strong contingent of English-speaking Cameroonians) was judged to be ambiguous since it was against secession, which led to the creation in 1995 of the Southern Cameroons National Council (SCNC). Since 1996, the SCNC has been demanding secession and has taken its case to the UN, the African Court of Banjul, the Commonwealth and national embassies.

Cameroon cannot afford another armed conflict. The country is already engaged in the fight against Boko Haram in the far north and militias from the Central African Republic in the east. The president has to take drastic and lasting measures to solve the crisis.

Despite the situation being a stalemate, measures have been taken to solve the crisis: there have been several attempts to dialogue; about a thousand English-speaking teachers across the southwest and northwest have been appointed; a Commission for the Promotion of Bilingualism and Multiculturalism has been created; and leaders of the separatist movement have been released. In reality, however, these measures were doomed to fail from the start. Dialogue was actually the government trying to impose its conditions on the English-speaking leaders at the table. And the Commission is nothing but the recycling of former members of government or people with close ties to it.

Cameroon cannot afford another armed conflict. The country is already engaged in the fight against Boko Haram in the far north and militias from the Central African Republic in the east. The president has to take drastic and lasting measures to solve the crisis.

Firstly, the president should act as if he cares about the situation and spend more time on national soil instead of abroad. Secondly, a mediator should be appointed to negotiate high-level talks between the government and the separatists, be they on national soil or from the diaspora, since the diaspora is playing a major part in the movement. Thirdly, each official who has ever been publicly disrespectful when addressing or talking about English-speaking Cameroonians should apologise and resign.

The law on decentralisation promulgated in 2004 should be enforced, not for regions to operate autonomously, but for each of them to be in charge of social and financial development of the region for the sake of the region and of the country as a whole. English-speaking regions of the country are not the only ones suffering from bad governance, so this will be an opportunity for the government to solve the crisis and improve the desperate situation of the country as a whole. The best way to go about this is to work on these issues before the next presidential election that is supposed to take place in 2018.

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CHANGING FACES: How Zimbabwe’s Liberation Movement is Re-Inventing Itself to Hold on to Power

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Changing Faces: How Zimbabwe’s Liberation Movement Re-Inventing Itself to Hold on to Power

Zimbabwe has a new president thanks to what its military chiefs called an “intervention” to “weed out criminals” that were negatively affecting the work of the President.  The actions of the army generals ended up leading to a popularly, if not emotionally, supported removal of President Mugabe, the man they had initially pledged to be acting to protect.

The new president, Emmerson Mnangagwa was sworn in on Friday 24 November 2017.  The state media glowingly called it an inauguration at Harare’s National Sports Stadium at a ceremony attended by at least 60,000 people, including serving presidents from the Southern African Development Community (SADC) member states, Ian Khama, Edgar Lungu and Filipe Nyusi of Botswana, Zambia and Mozambique respectively.

There are multiple reasons why the army and those sympathetic to the ruling party within SADC would not out rightly call the tumultuous political events in Zimbabwe over the last two weeks a coup.  Or why the commander of the Zimbabwe Defence Forces (ZDF) General Constantino Chiwenga and his subordinates would reach such alarming levels of national popularity.

The most obvious reason is that a lot of people in Zimbabwe, the region and the continent were genuinely tired or annoyed by Mugabe’s long stay in power.  His wife most certainly did not help matters in a patriarchal society by insulting those who were long time loyalists (including Mnangagwa) in public. The move by the military, well-choreographed as it was, invariably had a popular veneer to gloss over what it really was, a decision by the military to defy their commander in chief and hold him in captivity. Also generally known in political science studies as a military coup d’etat.

There are multiple reasons why the army and those sympathetic to the ruling party within SADC would not out rightly call the tumultuous political events in Zimbabwe over the last two weeks a coup. Or why the commander of the Zimbabwe Defence Forces (ZDF) General Constantino Chiwenga and his subordinates would reach such alarming levels of national popularity.

The other more significant motivation for the military intervention is that the ruling ZANU-PF party had failed to deal with its succession politics via the clearer political route.  And that the veterans of Zimbabwe’s liberation guerilla war which run from the late 1960s to 1979 and who are recognized in the national as well as the ruling party constitutions, were beginning to stake a claim on who they thought should succeed Mugabe. Initially, and this is to their credit, the Zimbabwe National Liberation War Veterans Association (ZNLWVA) sought the political route to resolving this issue. They were the only members of the ruling ZANU-PF party that consistently asked Mugabe to appoint his successor, much to the latter’s chagrin. Mugabe would insist that his successor would come from the people via congress and that it was only the people who would tell him to go.

The decisive factor to consider, therefore, is how the war veterans eventually got to the stage where their preferred successor, Emmerson Mnangagwa, got fired and made what is with hindsight a startlingly prescient claim as he left for exile in South Africa that he would be back to lead Zimbabwe.  He would also cheekily refuse to meet Mugabe before the latter resigned because the ‘people have said so’.

The war veterans are not only former guerrillas in Zimbabwe’s liberation war. They are also still serving in key command positions in all sections of the National Army, the Police Service, the Airforce and the Prisons Services.  The commander of the ZDF, General Chiwenga is himself a war veteran, and so are all of his subordinates.

In the corridors of the ZNLWVA, it is an open secret that the veterans felt it was the turn of one of their own, or at least one who had undergone military training during the war to take over. This, it was argued by some of the war veterans leaders, was because the nationalists (such as Mugabe, Joshua Nkomo and others) had had their turn at the head of the liberation movement and, more significantly in Mugabe’s case, as head of state and government.

Their consistent argument was that as a liberation movement, due recognition should be given to those that went to war but are still alive and still capable of playing a leadership role in the post-independence ruling ZANU-PF party and its government.  And quite literally, this role meant having ‘one of their own’ being the first secretary and president of the ruling ZANU-PF party. (Mnangagwa is viewed as exactly that by the war veterans.)

And that the veterans of Zimbabwe’s liberation guerilla war which run from the late 1960s to 1979 and who are recognized in the national as well as the ruling party constitutions, were beginning to stake a claim on who they thought should succeed Mugabe.

Zimbabwe’s military is therefore led by those that were and are part of ZANU-PF in two specific respects.  First as a liberation movement and secondly as a contemporary ruling party.   It is also important to note that unless they have been unwell, all service chiefs, including the commander of the ZDF, have religiously attended, the ruling ZANU-PF party’s annual conferences and periodic congresses.

Though they will claim neutrality in politics, their actions clearly indicate that the military top brass is embedded in the liberation struggle claim of being the military wing of what once was a revolutionary movement prior to independence.

When Mugabe used to claim that his party had committed itself to the Maoist dictum that it is ‘politics that always leads the gun’, he probably assumed that those holding the gun had no vested interests.  Nor thought that they could carry out an internally (to the party) and externally (nationally) popular coup.

They did this using a combination of understanding national constitutional and internal ruling party processes and procedures, knowing the then first lady Grace Mugabe’s lack of popularity, and reaching out through cultural events/music to younger Zimbabweans.  (There is a popular musical outfit called Military Touch Movement that, as its name suggests, is rumoured to have close ties to the military establishment).

On the national party processes and procedures, they knew that SADC would never accept anything that they referred to as a coup.  Their carefully choreographed public statements – referring to Mugabe as being confined to his home, and as still being in charge of the country while allowing him to appear at a graduation ceremony and undertake a “State of the Nation” address where he conceded that their actions had his permission – were testament to that. Allowing and urging Zimbabweans, through the ZNLWVA to march on the capital’s streets and closely controlling the domestic media narrative, the veterans managed to get the American and British governments to support their cause through issuing positive statements even as SADC dithered.

The subsequent roping in of the ZANU-PF Central committee to dismiss Mugabe and recommend Mnangagwa to succeed him until not only their extraordinary congress scheduled for early December 2017 but also the harmonized general elections for 2018, entrenched a civilian dimension in what was a military-led deposing of the party leader.

After it turned out Mugabe was ‘refusing’ to resign, a process of parliamentary impeachment that ZANU-PF embarked upon, ironically with the support of the mainstream opposition Movement for Democratic Change-Tsvangirai (MDC-T), sanitized the military change of ZANU-PF leadership.

The generals had however not stopped trying to persuade Mugabe to resign and through a mediation process facilitated by a Catholic priest, eventually got the letter they wanted on 21 November 2017 as parliament sat to impeach their Commander in chief.

When Mugabe used to claim that his party had committed itself to the Maoist dictum that it is ‘politics that always leads the gun’, he probably assumed that those holding the gun had no vested interests. Nor thought that they could carry out an internally (to the party) and externally (nationally) popular coup.

Emmerson Mnangagwa upon his return was well aware of this and made it apparent in his first remarks to his supporters at a rally held at the ZANU-PF headquarters.  He however indicated that he had all along had a hand in this ‘intervention’ by staying in ‘constant touch’ with the generals even though he was in exile.

He also made it clear in his first address as president of Zimbabwe, that he owed his ascendancy to the ruling party.  This is a point that the generals would have no problem with, as they were acting, in the final analysis, in tandem with their role as what General Chiwenga has referred to in previous interviews with the state media as ‘stockholders’ of the liberation struggle and therefore the country. All via the party.

SADC could do little else.  Not least because of the fact that apart from Malawi, Zambia, Seychelles and Mauritius, all of the current governments in the region are led by former liberation movements (Kabila’s in the DRC claims Lumumbist origins to his government).   And they tolerated this military action on a serving president so long there was deference to the ruling party and a modicum of constitutionalism could be salvaged from the process.

For now, with Mnangagwa sworn in as a president to finish off Mugabe’s term as outlined in the sixth schedule of Zimbabwe’s constitution, this would appear to be the case. I am certain that SADC will probably follow up with the new president on the holding of free and fair elections in 2018 as scheduled, which Mnangagwa confirmed in his first speech as president and when he will pursue a full five-year term.

This is not to say ZANU-PF’s military-political complex does not understand the need for ‘performance legitimacy’ despite having the capacity to deploy force for a political outcome. They understand this entirely hence Mnangagwa’s new focus is on the national economy.

SADC will definitively seek a greater role in supervising these elections and closely monitor the role of the military in how they are conducted.  But the ruling party will not worry too much about this as it is already riding on a peculiar wave of popularity that while it is surprised by, it is still very keen to consolidate, not only to renew its stay in power, but also to make it unthinkable for the opposition MDC-T, or any new opposition parties for that matter, to realistically hope to wrestle away power. Also, because the war veterans actively serving in the defence forces have become the guarantors of the ruling party’s succession politics and its ability to stay in power at a time of political crisis.

This is not to say ZANU-PF’s military-political complex does not understand the need for ‘performance legitimacy’ despite having the capacity to deploy force for a political outcome. They understand this entirely hence Mnangagwa’s new focus is on the national economy.  His government intends to introduce free market economic policies and probably do so within the ambit of Chinese-style ‘state capitalism’ which will court foreign direct investment and introduce property rights to the controversial issue of the Fast Track Land Reform Programme (FTLRP).

One of the first acts of his government will be to ease the liquidity crisis and seek the effecting of what Mugabe had referred to as ‘mega deals’ with the Russians and the Chinese in order to create a massive influx of jobs. The American and British governments will be courted to invest in the economy in return for the removal of sanctions and the re-integration of Zimbabwe into Western investor circles. And the Australian government will get promises to protect its mining interests again in return for support in other areas of the national economy.

What is apparent is that in the aftermath of this military intervention, there is limited scope for a value based politics in Zimbabwe. The now very popular actions of the ZDF in tandem with the political endorsements of ZANU-PF have left a void that the opposition cannot fill.

While this temporary and highly politicized economic shift is underway, the opposition will be courted with carrots such as support for the livelihoods of some of its leaders along with deferential treatment.  But essentially, they will be a divided lot that will be unable, barring a miracle, to defeat Mnangagwa’s militarized but popular version of ZANU-PF in what the latter will be at pains to prove to SADC, the African union and the world, is a free and fair 2018 election.

What is apparent is that in the aftermath of this military intervention, there is limited scope for a value based politics in Zimbabwe. The now very popular actions of the ZDF in tandem with the political endorsements of ZANU-PF have left a void that the opposition cannot fill. That void is the inability to articulate what would have been a democratic alternative to ZANU-PF rule, especially given the backing of war veterans in the military and the neo-liberal global west and east in their pursuit of markets, minerals and military dominance.

As it is Zimbabweans must brace themselves to be governed by a military–political complex that claims legitimacy on the basis of national liberation and assumes it can re-create itself in subsequent generations of not only civilians, but also those that would serve in the defence forces.  All in aid of an intended perpetuation of ZANU-PF’s hold on political power and the cosmetic maintenance of a hapless and long suffering political opposition.

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