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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.

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

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NO LONGER AT EASE: Uthamaki, Uhuru and a Dream Deferred

In moments when an ethnic community finds itself in a crisis, its spontaneous response is to blame everyone but itself: introspection becomes anathema – it searches for scapegoats and scarecrows to explain away its internal contradictions and confusion. By DAUTI KAHURA

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NO LONGER AT EASE: Uthamaki, Uhuru and a Dream Deferred

I returned to Kirimukuyu village, in Tumu Tumu sub-location, which is seven kilometres from Karatina town in Mathira constituency, Nyeri County, exactly twelve months after I had first travelled there to see an old lady by the name of Felistus Waguthi.

In the twelve months that had passed, Waguthi, who will be 76 years old this year, had lost her only brother, and in the last three months, she had been marooned in her house after breaking her leg. “I tripped on a slippery slope one morning as I went to the shamba, fracturing my leg bone and twisting my ankle,” she said to me, her left leg heavily bandaged and in a cast lifted up to rest on the bed. She was also hard of hearing, but “everything else considered, I have been okay, you’ve found me alive.”

When I met Waguthi in January 2018, President Uhuru Kenyatta and former Prime Minister Raila Odinga, political rivals in the controversial 2017 general elections, had not “greeted” each other. The “handshake” between them that took place on 9 March, 2018, gave birth to the Building Bridges Initiative (BBI), which is supposed to unite the country and ease political tensions.

Waguthi is not so convinced that BBI will work. “The fate of the country as currently constituted does not augur well for the future,” surmised the old lady, pointing out that the only thing the “greeting” had succeeded in doing was to forestall the mounting tension that cast a cloud of political uncertainty soon after the controversial 8 August presidential elections of and the repeat elections on 26 October.

“The political trajectory the country is taking is perilous and doubly uncertain because not only have things gone from bad to worse economically, but politically, the country’s leadership is groping around as President Uhuru and his cohorts seem clueless and rudderless as they steer the ship in the yet unsettled stormy waters, apparently from day to day.”

I had gone back to see Waguthi to help me reflect on the leadership of the Jubilee Party, a leadership that after retaking presidential powers in 2017 had left its base – the Kikuyu voter – seemingly confused and discombobulated. At 76 and having lived in a rural area for the better part of her adult life, Waguthi’s contemporary political analysis and sensibilities were sophisticated and on point.

“Uhuru has mortgaged the country to the Chinese…the debt now is in trillions, isn’t it?” mused the old lady, waving her fingers at me. “How much money is that? Those are mindboggling figures, yet all that money has been stolen by his friends and relatives. His government has been the most corrupt to date since I came of age and got to know what politics was all about. It is riddled with thieves and robbers and all he does is curse, threaten and talk big. I’ve never seen a president with no backbone like Uhuru. The current Kenyan leadership is in a crisis and this greeting between Uhuru and Raila, whose agenda is neither known nor understood by Kenyans, is just a gimmick to confuse the people even further,” analysed the old lady. “This is Uhuru’s last term, it is incumbent he vacates power and lets the constitution guide the next elections. Any attempt to tamper with the constitution so that he and Raila can create new centres of powers can only plunge this country into turmoil,” said Waguthi.

“Uhuru has mortgaged the country to the Chinese…the debt now is in trillions, isn’t it?” mused the old lady, waving her fingers at me. “How much money is that? Those are mindboggling figures, yet all that money has been stolen by his friends and relatives. His government has been the most corrupt to date since I came of age and got to know what politics was all about. It is riddled with thieves and robbers and all he does is curse, threaten and talk big…”

Waguthi told me that Uthamaki – the notion that only Kikuyus are entitled to political leadership in the country – had become a mirage, a dream deferred, a paradise lost that had left a bitter taste in the mouths of the Kikuyu people. “President Uhuru seems still hell bent in his political schemes to misuse the Kikuyus in abusing state power…That’s why there is this talk of changing the constitution…this will be disastrous, and if this is a harbinger of things to come, woe unto Kenyans. Don’t these African leaders ever learn?” Africa, she said, had been plagued with bad leadership, with leaders never wanting to leave office, which had led to many deaths and wanton destruction. Kenya, she added, was on its way to joining the league of failed state nations.

The old lady said that the move to change the 2010 constitution so that President Uhuru and Raila can presumably upstage Deputy President William Ruto in his bid to succeed Uhuru was devious and would jeopardise the security of Kikuyus in the greater Rift Valley diaspora and elsewhere in Kenya. “There has never been a time when the security of the Kikuyu people in the country has been as precarious and threatened as now…there is seemingly a truce in the country today, no doubt, brought about by the ten-month-old greeting, but one stupid move by the Uhuru leadership could see the Kikuyu peoples’ lives wrought in mortal danger.

“If it were not for the young Kalenjin man [Ruto], Uhuru would not be president, and our people would probably not live comfortably in the Rift Valley. That is a disturbing fact and, however much a section of the Kikuyu people and their political leaders will now pretend that this is not so, they owe it to Ruto,” said Waguthi matter-of-factly. “Many Kikuyus are now remembering to say many things about Ruto…that’s very interesting and those things could as well be true…but be knowing this, if you choose to welcome an ogre into your house, don’t complain afterwards that it is overfeeding and has taken over the whole house.”

“Uhuru was never a man worth being a president,” observed Waguthi. “The presidency was forced on him and six years later, he has made a total mess of it. He has never been in control, much less concerned with the destiny and plight of the people. Now that he has realised that he will be leaving the powerful position, fear and despondency have gripped his presidency – he’s been creating commotions and distractions to appear like he’s on top of things.”

Dusk was setting in and the lady who had been taking care of her was on her way back from Tumu Tumu trading centre where she had gone to recharge Waguthi’s mobile phone. Waguthi summed up her prognosis: “The president led a life of privilege. He has never done anything for himself. He is laid back. Everything has always been done for him, and even in politics that has been the case. That’s how a prince behaves…it isn’t his fault, because that’s how he was socialised. The fault has been the people who entrusted their political fortunes to a man, not because he was fit for the job, but because he came from a big political family, and therefore presumed that political power was his right.” The old lady said Uhuru pales in comparison to Ruto, who is tough, hardworking and does not come off as having been pampered in his early life.

Waguthi had given me some political food for thought, surprising and unpalatable as it may have been, coming especially from an old lady. But her analysis had been echoed by a much- travelled man, who was as educated and professional as they come. Three weeks before going to meet Waguthi, I had spent some time with a former World Bank financial consultant in Ngegu on the outskirts of Kiambu town in Kiambu County.

A teetotaler and staunch Protestant Christian, the soft-spoken 68-year-old Gikandi strikes you as a man of really few words – until he is provoked to give his prevailing political views. “The handshake had calmed down the palpable tension that had been building up in the country soon after the two elections…the county is much less tense now, but that was not a license for Uhuru and Raila to introduce a hideous agenda through the formation of the Building the Bridges Initiative,” posited Gikandi. “Let us be clear about one thing: were it not for William Ruto, Uhuru would not be president of Kenya. Have you forgotten how the two campaigned together in folded white shirts? We’ll not be drawn into distractions. The prevailing talk about political debts or the lack thereof, state corruption, revived past sins are all unhelpful and unnecessary.”

“I have lived long enough to know who has been stealing money from state coffers,” said Gikandi. “Kikuyus have stolen more money from successive governments than anybody cares to know or investigate. That I can tell you for a fact: Money was stolen in Kenyatta (I), during Daniel arap Moi’s tenure, during Mwai Kibaki’s rule and now, more than ever before, in Kenyatta (II).”

Jomo Kenyatta, father to Uhuru, was the founding president who ruled as an imperial president for 15 years, from 1963 to 1978. His Vice President, Moi, took over from 1978 till 2003, when his second term ended and his “project” Uhuru Kenyatta, the Kanu flagbearer who he had primed and propped up to take over from him, was defeated by Kibaki on a National Rainbow Coalition (Narc) party ticket.

“What we want post-2022 is security and stability for all,” said the former World Bank auditor. “President Uhuru must be very careful how he fashions his politics now as we head to 2022. It would be extremely devious of him to not think of the security of our people in the Rift Valley. I do not want to belabour that fact, but you and I know that a political misstep or mishap could easily trigger mayhem in that part of the country. We do not want a repeat of 2008. Some Kikuyus are now remembering Ruto’s past sins. They should have remembered them in 2012, not now.”

“I believe Ruto will get things done,” said Gikandi, “because he is focused, hardworking and he is always on top of things. All the President’s men, past and present, have stolen. I am not persuaded that it is the DP and his men that have allegedly siphoned all the money from the state. We cannot have double standards if we want to curb corruption and, by the way, why has President Uhuru chosen to ‘fight’ corruption now?”

“What we want post-2022 is security and stability for all,” said the former World Bank auditor. “President Uhuru must be very careful how he fashions his politics now as we head to 2022. It would be extremely devious of him to not think of the security of our people in the Rift Valley. I do not want to belabour that fact, but you and I know that a political misstep or mishap could easily trigger mayhem in that part of the country. We do not want a repeat of 2008…”

The financial risk management consultant, who is also a revered church elder of a big Anglican church in Mt Kenya South diocese, said that if BBI lives up to its demand of holding a referendum so that the constitution is changed, he will robustly oppose it. “Uhuru should just honour the constitution and peacefully leave office. More importantly, he should honour the promise to his deputy. We can still remember it very well, made in the lead-up to 2013 general election.”

While in Nyeri County, I also spoke to millennials. Their political views were equally surprising. I met Mureithi from Skuta, a trading town six kilometres from Nyeri town. Mureithi, who is in his mid-30s, runs an electronics shop at Thunguma centre, which is separated from Skuta by two kilometres.

“We do not want to hear anything about President Uhuru,” said an embittered Mureithi. “He has wasted us, he fought so hard to reclaim the presidency only to plunge us further into deep poverty and political uncertainty. I am struggling to stay afloat. In the past one year, Uthamaki rulership has turned into ultimatums and angry outbursts from the president when confronted with issues of Central Kenya development issues. We, the young people of Nyeri County, have made up our minds. We have nothing to do with Uhuru, his projects, or his political schemes.”

In retrospect, Mureithi told me, President Uhuru’s six years at the helm was for self-aggrandisement and enriching his friends and relatives. “Tell me what one thing the Kikuyu youth anywhere can be proud of after his unswerving support for Uthamaki? Nothing. Instead, we have been served with disappointment, disillusionment and dispossession. And these 3Ds have given way to a great sense of betrayal. I made a mistake in voting for him twice last year. I will never do that mistake again,” said Mureithi.

Nigute. This Kikuyu word has in the last year become the political catchword for the disaffected Kikuyus whose views of Uthamaki presidential rule in the run-up to the first presidential elections was clouded by a vista of imagined economic Shangri-La and paradise revisited. Literally, the word means to throw away. Figuratively, it means to be wasted, to be misused, to be of no value after use, to be dumped.

“I threw my vote away,” said Mureithi, “So is the feeling of many Kikuyus. They are stuck in a rut, angry, bamboozled and embittered. They were deceived…the truth is, they have always been cheated, but this particular deceit could not have come at a worse time: Uhuru’s government has plundered the economy and destroyed Kikuyu businesses. The people have no money and they have no one and nowhere to turn to.”

Mureithi told me that BBI will come a cropper, spearheaded as it is by political dynastic powers that believe it is they who must always rule Kenya and nobody else. “It is headed for defeat because we shall fight it. We know what they are up to. Here in Nyeri, the youth have decreed that they will not support the referendum that is being pushed by Building the Bridges Initiative. We shall vigorously oppose it. We are tired of Uthamaki and its appendages.”

“There are some Central Kenya leaders who have been moving around the region telling us it is Ruto who is the source of all corruption and theft in government and that corruption must be fought by all means,” said Mureithi. “Those leaders include our own MP here for Nyeri town constituency, Ngunjiri Wambugu. We’ve already warned Ngunjiri that, like Uhuru, it was a mistake to have voted for him. We should not have abandoned Esther Murugi, [the former MP].” Ngunjiri is looking at his only one term in parliament, Mureithi promised me.

“The greatest theft in government has been orchestrated by President Uhuru’s close friends, who have stashed away billions of shillings,” observed Mureithi. “How is it that now it is Ruto who has stolen all the money and that it is he who is the source of all our economic and political problems? By allegedly trying to antagonise the deputy president, President Uhuru and BBI are stoking future political violence and insecurity for Kikuyus resident outside Central Kenya. I have relatives in Rift Valley. I know how nervous the Kikuyus of that region are with all this careless talk about rethinking Ruto’s Kikuyu support in 2022.”

“Corrupt or not corrupt, I will be supporting William Ruto,” said Mureithi. “What has our own Uhuru done for us? Born in riches, Uhuru has been overindulged throughout his life. That’s why he couldn’t care less whether the Kikuyus eat grass or sleep hungry, as long as he can get them to die for his dangerous political ventures. President Uhuru has been saying this is his legacy term for Kenya. We know what that means: ‘This is my legacy for the Kenyatta Family, not Kenya, the country.’”

I wound up my Nyeri County visit by engaging Lilian Wambui from Gikondi village in Mukurwe-ini. Barely a year ago, Wambui would have killed for President Uhuru Kenyatta. “I was so indoctrinated by the Uthamaki logic and the person of Uhuru Muigai Kenyatta that I’d brazenly taunt my Luo friends to go fishing in Lake Victoria and catch thamaki (fish) because we the Kikuyus had Uthamaki.”

Wambui is a businesswoman: she once rented a quarry in Njiru that borders Mwiki to the north and Ruai to the southeast in Nairobi County, where her employees were all Luo men who broke and carved stones that would be picked in truckloads at the site. Wambui has also engaged in the mitumba business, where she specialised in camera (as-good-as-new) children’s designer clothes. Lately, she has been dealing in wholesale fruits and vegetables. In three and half years, all the three businesses have collapsed. In December last year, she escaped to her rural home to run away from the hustle and bustle of Nairobi and to rethink her future.

“Corrupt or not corrupt, I will be supporting William Ruto,” said Mureithi. “What has our own Uhuru done for us? Born in riches, Uhuru has been overindulged throughout his life. That’s why he couldn’t care less whether the Kikuyus eat grass or sleep hungry, as long as he can get them to die for his dangerous political ventures. President Uhuru has been saying this is his legacy term for Kenya. We know what he means: ‘This is my legacy for the Kenyatta Family, not Kenya, the country.’”

“President Uhuru is a total failure: all the money from the government has been stolen while he stood by and watched. Now he is fighting Ruto, pretending to combat corruption. He should give us a break. I never believed he would waste us [Kikuyus] after all the support we lent him. I think we Kikuyus have been bewitched. It is not possible for one family to bestrode an entire community so easily and take advantage of their political foolishness for so long,” she commented.

Wambui told me that she vividly remembers President Uhuru specifically campaigning among the Kikuyus in downtown Nairobi in 2017. “On 9 February, 2017, taking time off from his State House duties, the president joined the Jubilee Party’s Nairobi governorship aspirants to galvanise the people into registering as voters. The then contestants were Peter Kenneth and the ‘Gang of Four’ – Mike Sonko, Denis Waweru, Margaret Wanjiru and Johnstone Sakaja.”

The businesswoman recalled that everyone, including the president, congregated at Wakulima Market on Haile Selassie Avenue, famously known as Marigiti. “It is not for want of a better place to mobilise the Nairobi voter that the Jubilee Party cabal chose the marketplace. Because when the president spoke, it become rather obvious why Marigiti was a good starting point. “Wooooi andu aitu muiga nyinuke….wooooi mutikandekererie…..mutikareke nyinuke,” (Oh my people, are you sending me home….please don’t abandon me…don’t let me go home) urged the President.

“Two months earlier, campaigning in Ruaka and its environs which are in his home county Kiambu, President Uhuru at one stop addressed the people thus: ‘I have information that some people are saying they will not vote on the 8th of August. I appeal to you, particularly the youth, not to let me down. I know what we are defending. What did President Kenyatta mean by I know what we are defending?’” posed Wambui. “The Kenyatta Family legacy. Period. President Uhuru has let down every Kikuyu voter, other than his tenderpreneur friends and relatives, who came out to vote for him. And the Kikuyu youth, abused during the campaigns and ignored after power had been recaptured, have received the short end of the stick. They are now called thieves. Nigute.”

I spent half of 2017 and the better part of 2018 talking and oftentimes animatedly holding court with Uthamaki ardent followers who, just before the August 8 general elections, had immersed themselves in Uthamaki’s noxious rhetoric of political perpetuity. All of them – from market women to matatu drivers, conductors, freelance touts, hawkers, street vendors, street prowlers, petty traders, seasoned businessmen and women, college students, university dons, professionals and state bureaucrats – were seemingly hypnotised by the Uthamaki political conquest: “Seek ye first the political kingdom and all the rest shall be added unto you,” one born-again lawyer had reminded me, “but we are still humble about it.” (It was Kwame Nkrumah, the first president of independent Ghana, who famously coined the maxim, which would soon become a clarion call for many an African country seeking political independence in the 1960s.)

I spent half of 2017 and the better part of 2018 talking and oftentimes animatedly holding court with Uthamaki ardent followers who, just before the August 8 general elections, had immersed themselves in Uthamaki’s noxious rhetoric of political perpetuity. All of them…were seemingly hypnotised by the Uthamaki political conquest: “Seek ye first the political kingdom and all the rest shall be added unto you,” one born-again lawyer had reminded me…”

Yet, nothing has captured for me the hypnotic, trance-like behaviour of an Uthamaki fundamentalist who revels in sporadic moments of lunacy than the story as told to me by my friend Baba Otis.

On 1 June, 2018, Madaraka Day, Baba Otis was drying obamboo (dissected tilapia fish that is smoked and oftentimes dried for storage and which is eaten over a long period). Known by its variant name, obambla, its tasty soup is very delicious and nutritious, especially for children. In the evening, On that day, Baba Otis heard a knock on his door in the estate plot where he lives with other tenants in Nairobi. It was Mama Shiru. “Sasa Baba Otis, aki watoto wangu hawajakula siku tatu, nisaidia tu na piece moja ya samaki niwatengenezee.” (Hi Otis’s father, I swear my children have not eaten for three days. Please just give me one piece of the smoked fish. I will prepare it for my children.)

The evening visit by Mama Shiru was interesting, given that on 29 October, 2017, a Sunday and three days after the repeat presidential elections in which the Jubilee Party largely competed against itself, Mama Shiru, a mother of two, had broken into a frenzied dance of jubilation and had yelled for all to hear: “Uthamaki ni witu….thamaki ni ciao….mekuigwa uguo”. (The rulership is ours (Kikuyus)….fish is theirs (Luos)…they can go hang.)

Baba Otis was there to witness the hippy dance of a woman who, for all intents and purposes, behaved as if she had been possessed by Lucifer himself. She was sporting a wristband and bandana fashioned along the colours of the Kenyan flag that have come to be associated with chauvinistic Kikuyu men and women. That night, Mama Shiru must have slept like a king in the knowledge that her tribesman had once again settled in the hallowed sanctuary of the mighty State House. Uthamaki ni witu…thamaki ni ciao.

Barely seven months later, when Mama Shiru stood outside Baba Otis’s door, she had discarded her wristband and tossed away her bandanna. The uthamaki ni witu, thamaki ni ciao alliterative singsong had long been expunged from her now pursed lips. The bravado that had accompanied the wearing of the Jubilee Party paraphernalia and totems had gone. Crude reality had by then sunk in…perhaps…perhaps not.

One fact was clear though from Mama Shiru’s predicament – you cannot feed your children on a tribal ideology, much less if your tribesman is the country’s president. “But Kikuyus can also be impervious and shameless,” commented Baba Otis.

In moments when an ethnic community finds itself in a crisis, its spontaneous response is to blame everyone but itself: introspection becomes anathema – it searches for scapegoats and scarecrows to explain away its internal contradictions and confusion. “It is the handshake.” “This problem we are in now is one for all of us.” “It is William Ruto who is engaged in all these state thefts”. “Ni mang’auro marea marigiciiria munene.” (It is the scoundrels that encircle (our) leader.) “Muthamaki ndakararagio na ti wa garari,” (The tribal chieftain should not be criticized or contradicted.)

John Njoroge Michuki is on record after Narc came to power in 2003 for proclaiming that Kenyans (read: Kikuyus) had been agitating for constitutional reforms to remove Daniel T. arap Moi: Moi was the problem – not the almighty powerful presidency that the 1960, 1962 and 1963 Lancaster House constitution conferences had bestowed on Kenyans. But hey, as long as that individual was a Kikuyu, it was business as usual. Many Kikuyus conflate Kikuyu nationalism with Kenyan statehood. And they care less for this contradiction.

The grandstanding of kumira kumira (a clarion call that means to get out in large numbers), thuraku (safari ants) and all that toxic talk about Uthamaki and “ni ithui twathanaga guku,” (it is we (Kikuyus) who call the political shots) has melted away barely a year into the Jubilee Party’s second term.

After my interviews and interactions with Uthamaki believers, I could not help but ponder over what could be a priority in their minds as they struggle to contextualise their economic hardships and situate their political path come 2022.

Post-2022, the Kikuyus are thinking very hard about their security and survival in ways that they have never thought before. The presidency has become a burden to them: Like a millstone around their necks, it is weighing them down. But they made their bed and must lie on it. In a real sense, the president has stopped being a factor in their yet undecided political trajectory.

For the very first time, Kikuyus do not have a bankable political leader. Ten months into BBI, not all Kikuyus are persuaded that it augurs well for their political insurance. So far, they do not know what to make of it. Suspicion abounds.

Painfully, the Kikuyus are learning to internalise their political suffering, trapped as they are like a caged bird, its only freedom being to pitter-patter around the cage. Hence, their desire to extricate themselves from the clutches of political serfdom, and hopefully, from the pain of the (late) realisation that they have been duped and dumped.

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ALWAYS BEHIND: Kenya’s Languishing Creative Industry

Recent case studies have revealed that the creative industry can be a significant earner to an economy. However, as ALEX ROBERTS argues, Kenya’s languishing creative industry can be attributed to lack of support from the Government.

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ALWAYS BEHIND: Kenya’s Languishing Creative Industry

What was South Korea in the late 1970s? Say around 1979, during the first year of Daniel arap Moi’s presidency? It was a military state, run by a soon-to-be-assassinated autocratic leader, General Park Chung-hee, and still eight years away from becoming a presidential republic. It was a state in flux: the killing of Gen Chung-hee left a power vacuum, with political factions vying for superiority amongst the ruins of his toppled dictatorship. By any stretch of the word, South Korea entering the 1980s, and for much of that decade, could be described as a nation in turmoil, politically, economically and developmentally. It was a state at risk of falling back into chaos and becoming a cautionary tale.

Kenya, on the other hand, had new leadership. At the beginning of the 1980s, it was viewed by the international community as a shining example of a post-independence African state that looked set to be an economic powerhouse of the future. At that time, Nigeria was still under a military junta and South Africa was regressing into the bloodiest period of anti-apartheid action.

Yet, by the tail end of the decade, Seoul was hosting the 1988 Olympics, and less than four decades on, in 2016, South Korea had the 11th highest GDP on earth, behind Canada and ahead of Australia. According to the United Nations, in the same year Kenya was ranked 75th, just behind Uzbekistan and ahead of Guatemala.

What happened? A major factor is South Korea’s investment in the creative economy versus the Kenyan government’s approach of letting the entire sector be deprioritised and left to flounder alone.

In the case of South Korea’s film industry, one major shift occurred in 1994. At the time Hollywood films controlled most of the market while locally produced films controlled less than one-fifth. The government took a decision to invest in and emphasise locally-made films. Since then, the South Korean film industry, when coupled with K-Pop, has seen the rise of the “Korean wave”, a globally influential and massively profitable enterprise. It remains the modern model of the need for government support for the local creative industries.

With regards to K-pop (the Korean brand of bubble gum-style pop songs), the Government of South Korea played a direct hand in sustaining the momentum of this global musical force. A Ministry of Culture was formed in 1998, including a specified department exclusively overseeing the development of the nation’s music, with millions of dollars pouring in. Where the difference is further highlighted was the government’s targeting of music as a potential cash cow for the languishing economy. Much of Asia had been sucked into a whirlwind of economic turmoil in the late 90s, and the government needed alternatives for employment, taxable revenue and global influence. The government also ensured protection through effective policies and engaging with music industry members. Fast-forward two decades, and K-Pop is a US$ 5 billion industry.

In the case of South Korea’s film industry, one major shift occurred in 1994. At the time Hollywood films controlled most of the market while locally produced films controlled less than one-fifth. The government took a decision to invest in and emphasise locally-made films. Since then, the South Korean film industry, when coupled with K-Pop, has seen the rise of the “Korean wave”, a globally influential and massively profitable enterprise.

The creative economy has been defined as the ultimate economic resource within a nation. It’s the umbrella under which art, architecture, film, television, music, poetry, sculpture and writing exist. Kenya’s creative sector is a vibrant one, brimming with talent and possibility, especially when looked at through the opportunities it affords to the youth of the country.

Such opportunities are not exclusive to the Kenyan economy as the world is becoming modernised, and the creative sector is often an accompanying industry to modernity. In fact, the United Nations Educational, Scientific and Cultural Organization (UNESCO) has stated that the economic potential of the global creative sector was worth more than US$ 2.2 trillion in 2015. The creative industry has undeniably massive impact upon a nation’s potential GDP and can offer a built-in solution to lingering questions of “development”. A 2013 report from UNESCO outlines that the cultural sector is a vital aspect of the sustainable development of a nation, as the creative sector is not only one of the fastest growing sectors in the world, but also can be highly transformative in terms of income generation, job creation and a nation’s earnings through export. A 2010 policy statement released by the United Cities and Local Governments (UCLG) further reflects this, stating that culture is the fourth pillar of sustainable development for any nation.

So with all of this potential, why does the creative sector in Kenya languish? Why has Kenya not taken the leap into the void of the sector, that same leap that has produced billions for other nations, including within Africa?

The state of Kenya’s creative industry

An all too common complaint among artists within Kenya is that the creative industry is simply not a “serious” entity to be pursued as a path to a successful and lucrative career. This “lack of seriousness” has resulted in one of the worst policy frameworks for the arts in the developing world. Concerts go unattended, books are not bought (if they can be published at all), grants are not delivered, artistic facilities remain unfinished and draconian regulations are imposed on the content that can be produced. Radio stations play music from abroad and theatres show foreign films. As Nairobi-based singer-songwriter, Tetu Shani says of the current situation, “The day that Kenyan artists start living like politicians is the day you’ll see a shift in public perception and consumption.”

This issue is exemplified by the lack of policy and effective implementation of regulations surrounding the creative industry. When examining the music industry, the crux of the issue comes down to copyright. Most casual fans of Kenyan music are familiar with the story of the band Elani, which had a smash album and multiple hits in 2013 and 2014 after the release of their record Barua ya Dunia. The airplay was steady and the singles very successful. In 2016, Elani criticised the Music Copyright Society of Kenya (MCSK), stating that the organisation had only paid them royalties totaling Sh31,000. MCSK has been embroiled in constant legal and legislative turmoils, and had its capacity to collect, track and distribute royalties to Kenyan artists revoked due to a court order in 2018. MCSK has since been replaced by the Music Publishers Association of Kenya (MPAKE) in the role, yet the headlines and legal issues remain.

The ones who seem to get lost in the shuffle are the artists. The example of Elani is at the core of the problems that face the creative industries in Kenya; while there might be growth of the sector on paper, the artists or creators themselves don’t see the benefits materialising within their wallets. At an even more micro level, take the example of the National Environment Management Authority of Kenya (NEMA) enforcing noise pollution regulations against DJs in Kenya; security forces routinely go into clubs, arrest DJs for exceeding “noise restrictions”, even as they spin on the decks, and haul them off to jail. Such enforcements were not communicated effectively to the members of the music industry.

Again, the issues surrounding the enforcement of regulations continue when examining the burgeoning film industry in Kenya. Some estimates contend that over 90 per cent of films in Kenya are pirated, with the heavy-handed punishments outlined by legislation being rarely enforced.

On top of this, the head of the Kenya Film Classification Board (KFCB), Dr. Ezekiel Mutua, has made free expression through film and television markedly more difficult. Beyond his public criticisms of “gay lions” and cutting the release timeframe of Rafiki, the highest profile Kenyan film since 2011’s Nairobi Half-Life, down to less than a week (just enough time to qualify for the Academy Awards), Dr. Mutua has enacted steep license fees that have reduced the industry’s ability to operate independently, including the hoop-like requirement of filmmakers needing multiple licenses to film in multiple counties. It has become common for Kenya-based films and content to be filmed in South Africa. Indeed, Mutua’s attempts to enforce his dictates on theatre as well as the film industry have led content creators to further eschew any connection with the government.

On top of this, the head of the Kenya Film Classification Board (KFCB), Dr. Ezekiel Mutua, has made free expression through film and television markedly more difficult. Beyond his public criticisms of “gay lions” and cutting the release timeframe of Rafiki, the highest profile Kenyan film since 2011’s Nairobi Half-Life, down to less than a week…Dr. Mutua has enacted steep license fees that have reduced the industry’s ability to operate independently, including the hoop-like requirement of filmmakers needing multiple licenses to film in multiple counties.

Kenya had a booming fashion industry in the 1980s, which contributed 30 per cent to the manufacturing sector. Since the 1980s, the continual influx of mitumba (second-hand clothes) has cut this employment severely. The change was brought about by the government cutting regulations and import tariffs in the late 1980s, cutting down on the cotton and garment sectors. This led to an increase in the jua kali nature of the sector, with members of the garment industry having to find their own work after the majority of the cotton production mills shut down. In turn, this contributed to much of the textile industry being a separate entity from that of the clothing production industry – an issue exacerbated by the lack of a unified industry body to advocate for the fashion sector.

This last point regarding the fashion industry of Kenya is truly a key issue that swirls around the creative sector in Kenya. Much of the industry remains fragmented, splintered and run by independent individuals and micro-organisations operating unofficially outside of government taxation or influence. The lack of a structured unified body is reflected in other creative industries, which lessens the sector’s ability to engage in any sort of meaningful dialogue with the government. These issues of associational divide were echoed by HIVOS in 2016, which stated that “the current state of associations in East Africa is that they are fragmented, disunited and lack a consistent agenda on how to engage the government and different industries to ensure the standards of the industry consistently improve”.

So what does all of this amount to? There is one commonality: the utter lack of possible taxable revenue as a result of obtuse and inadequate policy. According to PricewaterhouseCoopers, the entertainment industries are growing across the board; revenues are up, as is Internet access and the number of viewers within the Kenyan market. However, Kenya is trailing far behind other nations that have capitalised on the bolstering of income from the creative sector.

Kenya vs other major African markets

The stagnant creative sector in Kenyan becomes apparent when examining the state of other African creative sectors. When looking through the lens of the two other leading sub-Saharan African markets (Nigeria and South Africa) the differences and gaps becomes stark.

Both South Africa and Nigeria have music industry infrastructure that focuses on the regulations of the industy. This includes promoting local artists while protecting their ability to garner revenue from their work and punishing those who take advantage. Within Nigeria, artists are promoted, DJs play the latest local tracks and help to encourage grassroots growth of new musical artists.

The most glaring example of a creative economy’s potential is the constant streaming of Nollywood movies on Kenyan televisions. How exactly did the Nigerian film industry become so massive in recent decades, dominating the African market and influencing global media beyond the continent? It is a remarkable story of growth, with Nollywood’s early roots tracing back to the colonial era of the early 20th century.

The independence of Nigeria from British rule in 1960 resulted in further expansion of the film industry. The key moment came in 1972, when the Indigenization Decree was issued by Yakubu Gowon, the Head of the Federal Military Government. The original intent of the decree was to reduce foreign influence and pour wealth back into the hands of Nigerian citizens. The international business community publicly complained, threatened to pull out, and in some cases reduced their investment. The Indigenization Decree led to hundreds of theatres having ownership transferred from foreign hands to Nigerian ownership.

In the years that followed, widespread graft was discovered in multiple industries (much due to foreigners paying for corporate “fronts” while secretly maintaining control). Gowon was deposed while abroad in 1975 and the film industry continued to grow. New theatre owners started to show more and more local productions, with the result being Nollywood experiencing a further expansion across the next decade as Nigerian citizens were suddenly directly involved in not only the control of the theatres, but also in what Nigerian audiences were more likely to buy a ticket to see, buy a VHS of, and later buy a DVD or stream: local content. Out of the ashes of colonialism, a bloody civil war and a military junta rule, Nollywood grew organically, hand over fist, year after year.

By the mid-1980s, Nigeria was producing massively profitable blockbusters and revenues grew to over US$11 billion (Sh1.1 trillion) by 2013. The industry also employs an eye-popping one million people, estimated to be second only to agriculture in terms of number of employees within Nigeria.

In the 21st century, the Government of Nigeria has taken further notice, mostly through the recognition of the massive benefits to the nation that the local film industry provides. Currently the government is working in conjunction with the National Television Authority of Nigeria to expand the industry, offering grants, expanding infrastructure and constructing a production facility. Perhaps most notable was the 2010 signing by former President Goodluck Jonathan of a US$200 millionCreative and Entertainment Industry Intervention Fund” in order to encourage the growth of Nollywood and other creative industries. Put another way, Kenya’s GDP is approximately one-fifth that of Nigeria’s, but there has been no US$40 million fund signed by the government towards the nation’s creative sector.

By the mid-1980s, Nigeria was producing massively profitable blockbusters and revenues grew to over US$11 billion (Sh1.1 trillion) by 2013. The industry also employs an eye-popping one million people, estimated to be second only to agriculture in terms of number of employees within Nigeria.

This is the point where naysayers to the potential of the creative economy will argue that corruption is endemic in Kenya, and therefore, reaching the heights of Nollywood is inherently impossible. This is a fallacy: Transparency International in 2017 ranked Kenya 143 out of 180 in terms of corruption and Nigeria came in at 148. Despite obvious governmental and corruption shortcomings in Nigeria, when it comes to the film industry, one thing has certainly been recognised: that money talks.

South Africa took a different route towards becoming a creative sector powerhouse on an international scale. This is best exemplified when examining the music industry of the country. Once again, the roots of the explosion of South African musical influence can be traced back to a government development programme – the Bantu Radio initiative, which, it must be stated, was put into place in 1960 by the apartheid government in what can best be described as a campaign to further segregate the country. The aim of the programme was to promote tribal music in the hopes that it would reinforce pre-colonial cultural barriers between different communities. It also had the not-so-subtle goal of establishing what black South Africans enjoyed in order to aid the apartheid government in further profiting off of them. The regime believed that the radio stations would play exclusively folk music, but the result was somewhat different. Bantu Radio began broadcasting more than a dozen different genres of music, among them Afro-jazz, kwela and isicathamiya. These genres exploded in popularity, bringing fame, recognition and influence to many South African music industry figures.

The South African Broadcasting Corporation was soon brought in to monitor and regulate the music being produced to ensure that the messages of the music didn’t criticise the apartheid regime or its policies of systemic racism. Further regulatory bodies were established to control the music being played. They did so effectively on the Bantu Radio network, but had also inadvertently “let the cat out of the bag”. There had been a long history of rebellious action through music in South Africa, but now there was an audience of millions who had several genres in mind on what to pursue. Popular artists who were censored on the radio took their messages directly to their audiences. There was an exodus of musicians who left South Africa in order to make music against the apartheid regime without censorship or reprisal. In 1982, the Botswana Festival of Culture and Resistance was held with much of the attendance made up of South African exiled musicians. At the conference, it was decided that the primary weapon of the struggle against apartheid would be culture.

Accidentally, through an attempt to further exploit and divide, the regime had laid the groundwork for both widely popular musical genres with a captive local audience. By 1994, when the last remnants of apartheid were finally thrown aside, the music industry grew massively and continues to be a dominant presence into the 21st century.

Anti-apartheid films, rising from South African independent cinema experiencing a boom in the early-80s – the same period when there was a proliferation of video cassette recorders – allowed the viewing of “subversive” productions. Some of these same anti-apartheid films (banned by the regime), such as 1984’s Place for Weeping, gained international traction and helped to establish South Africa’s film industries as influential outside of the borders of the apartheid regime.

What the creative industry has done for other nations

A UNESCO convention in 2005 stated that there is still a need for governmental frameworks that focus on “emphasizing the need to incorporate culture as a strategic element in national and international development policies, as well as in international development cooperation”. By this standard, the example of South Korea once again stands out. Just how did South Korea springboard its culture into a massive entertainment and creative sector in such a short period of time? The answer is fairly straightforward: the progress of South Korea’s entertainment sectors centres around heavy governmental support, funding and infrastructural management. The government designed and implemented a multi-stage plan towards increasing the profile, impact and economic viability of its entertainment industries.

With the example set, it becomes all the more glaring that the Government of Kenya has turned its back on its own creative industry. The Korean problem of foreign influence is a Kenyan one; foreign acts are flown in and given top billing, foreign media houses dominate the telling of Kenyan stories, and the latest Marvel films always find themselves on movie-house posters. Ask yourself, when is the last time you saw a Kenyan-made film on an IMAX screen playing to a packed audience? The lines are there, but who are there to see?

The state of regulation and progress within the creative sector in Kenya reflects an acute failure of the state to implement the very policies it has outlined. One needs to look no further than the Kenyan Constitution of 2010 and the Vision 2030 Development Goals to find evidence of this.

With the example set, it becomes all the more glaring that the Government of Kenya has turned its back on its own creative industry. The Korean problem of foreign influence is a Kenyan one; foreign acts are flown in and given top billing, foreign media houses dominate the telling of Kenyan stories, and the latest Marvel films always find themselves on movie-house posters.

In Kenya, a nation that jailed poets and playwrights only two decades ago, the promotion of the creative arts is evolving too slowly. While the Constitution included the mandatory promotion of the arts and cultural sectors, it has taken close to a decade to pass legislation regarding these industries. The government itself has acknowledged these disconnects: the National Music Policy of 2015 states that the Government of Kenya has not adequately enacted policy relating to the creative sector, which in turn has promoted a disconnect in communication and stymied the potential for growth within the industry.

Addressing the state of the creative industries in Kenya, UNESCO contends that there is no facilitative policy framework regarding the creative sector. Or, more bluntly: talk is cheap. The Government of Kenya is definitely aware of the potential impact of growing these specialised industries; it just avoids enacting any meaningful regulation surrounding them. Take the film industry for example. While the talk has been big, there has been no sign of the promised public investment.

The creative sector has long been associated been with the employment of youth. The United Nations has released a series of reports contending that a key path towards combating youth unemployment is through the promotion of the creative industries. Unfortunately, it seems that the Government of Kenya is yet to take heed of creative-driven solutions. The country is currently mired with massive youth unemployment, with rates of over 20 per cent, dwarfing the levels of unemployed young people elsewhere in the East African region. It is clear that from an economic standpoint, the policies of industrialisation have long since proven themselves to be insufficient in terms of impacting the youth of Kenya in any sort of meaningful way.

One reason why the government is reluctant to promote the arts is because of its delicate sensibilities: it fears supporting creative minds that may turn out to be critical of it. This is evident across the archaic policies of the KFCB, the exodus of locally produced textiles for fashion, the lack of funding for the National Theatre, the government stake in Safaricom, which is currently facing a backlash for the low rates of compensation given to musicians streamed on its ring-back tunes application, Skiza.

On the basis of the examples given, the lessons to be learned from South Africa can only be to lean harder into criticism of the government. While this seems to be an oft-visited theme throughout the creative sectors in Kenya, the apartheid era of South Africa’s music industry remains a solid reminder: that there’s no point backing off if the government refuses to change.

This rings doubly true in cases such as that of Ezekiel Mutua, who seems hell-bent on smothering the Kenyan film, theatre and television industries to death through self-claimed piety. His crusade against homosexuality and what he describes as “immorality” must be viewed as a neocolonial one; its aim is to kill off grassroots Kenyan enterprising creative expression. The efforts against him should focus on his willful draining of the Kenyan economy’s untold economic and cultural potential.

The best long-term solution in Kenya’s case is a sort of middle-ground between the policies of localised emphasis of the 1970s and the government of South Korea in the 1980s and 1990s. Ideally, the Ministry of Sports, Culture and the Arts would be divided towards being specialized; the government would either put in or find real public and private funding for the arts and then actually implement and regulate the policies, such as the National Music Policy of 2015, which outlines a mandated quota for Kenyan-made content to make up 60 per cent of the music aired by the media within the country. They would enforce the regulations but let artists do their own thing as a private enterprise, as they know the ins and outs of the industry. When grievances arise, representatives from the creative sector would have a meaningful seat at the table to dialogue with the government. Unfortunately, none of these solutions are being sought.

This rings doubly true in cases such as that of Ezekiel Mutua, who seems hell-bent on smothering the Kenyan film, theatre and television industries to death through self-claimed piety. His crusade against homosexuality and what he describes as “immorality” must be viewed as a neocolonial one; its aim is to kill off grassroots Kenyan enterprising creative expression. The efforts against him should focus on his willful draining of the Kenyan economy’s untold economic and cultural potential.

The issue remains that while Kenya’s creative industry is at par with nearly any other in the region, the continent or the developing world in terms of potential, it is being systemically held back from reaching the heights of its peers. Both South Africa and Nigeria’s situations can be viewed as the regimes having stumbled into a goldmine of creative industry potential during brutal regimes, but in both cases there was at least an initial search for the vein (racist though South Africa’s was). In the case of South Korea, there was almost a resolute desperation to never return from whence they came. They were willing to try outside-the-box solutions to get there and to put their money where their mouth was. All three situations in 1979 stood on a precipice, and all three could have easily changed course into further crackdown or lack of interest and being left devoid of a cultural sector. Kenya’s creative sector situation is dire. This constraining of creativity must be viewed in the light that it is impeding Kenya’s progress in the opening decades of the new millennium.

The artistic industries in Kenya are currently at a crossroads. Though ideas, products and creativity coming from the country are only growing in terms of influence and quality, without support, all potential is destined to languish in obscurity. Seventeen years since the transition out of the Moi regime, there has been no golden age of the arts, no explosion of international influence and possibility. The talent is there; the infrastructure of community radio, self-starter production houses and subversive literary talent is pervasive in Kenya. However, the government is simply too afraid or too obtuse to put anything behind these efforts.

What will the economy of Kenya 40 years on into the future look like? As things stand, without the government at least trying something different, South Africa, Nigeria and South Korea will continue to lap Kenya, toasting to their home-grown billions of dollars and expanded economic influence. Will Kenya’s government officials continue to pretend to scratch their heads in search of “new solutions” when the answer is literally painting the picture before them?

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AFRICA’S YOUTH RISING: Inspirational stories from Ghana, South Africa and Uganda

At no point in its history did Africa have a more educated youth population than today. But at no point in its history did so many young people compete for so few formal jobs. Some seek greener pastures in Europe; others build a future at home. ANJA BENGELSTORFF talked to young people in South Africa, Ghana and Uganda who create opportunities for themselves – and to the benefit of others. Their lesson: Think outside the box.

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AFRICA’S YOUTH RISING: Inspirational stories from Ghana, South Africa and Uganda

There is neither a tarmac road nor an electricity wire leading to the village of Boti in Southern Ghana. But Google found the village anyway. The search machine located a waterfall that gives the village its name. Apart from that, the area is a blank spot in the digital world.

We don’t know how Google found Boti, which is four bumpy bus ride-hours away from the capital Accra. The fact that Boti is on Google or Youtube, or any other site on the Internet, must be attributed to Josephine Godwyll, a 29-year-old geomatic engineer. Her organisation, “Young at Heart”, teaches primary school pupils in rural areas of Ghana holistic digital literacy that goes beyond just how to operate a computer. “We guide them to discover how they can use the skills they’ve acquired to solve problems in their community through design thinking,” Josephine says. “It translates to improving households and improving livelihoods.”

Josephine Godwyll’s father, who is computer illiterate, took her to her first computer class when she was seven. Computers have been practical tools for her ever since. “I don’t think people should be left at a disadvantage just because of where they are born. They should be able to choose from a wide spectrum of opportunities, and this, I believe, is made possible through tech.”

The fact is that the continent continues to gets younger: In 2015, 226 million Africans were between the ages of 15 and 24. By 2050, this number could more than double. Africans’ average age is 19; that of Europeans is 42.6. Is the continent’s youth bulge a blessing or a curse? As it is, millions of young Africans struggle to make a living, their level of education notwithstanding. Solid empirical data on youth unemployment in African countries are hard to come by and difficult to compare as the criteria used to generate data are not harmonised (different countries define the age bracket for youth differently) or are not transparent. Hence statistics given by different sources vary significantly.

The fact is that the continent continues to gets younger: In 2015, 226 million Africans were between the ages of 15 and 24. By 2050, this number could more than double. Africans’ average age is 19; that of Europeans is 42.6.

Josephine Godwyll, like many young people in Ghana, believes in the opportunities technology presents. “I dream of a Ghana in which digital tools make our lives easier“, she says, surrounded by Boti’s primary school students who push each other for a better look at Josephine’s computer screen. “A digital revolution, this is what I am fighting for.” Statistically, every third person in Ghana has access to the Internet, but in reality, this access is mostly limited to urban areas.

In the past four years, Josephine Godwyll and her 30 volunteers have coached more than 200 children. As a result, one graduate of their programme designed a website for his mother’s hair salon, alongside a flyer advertising its services. “The students touch a computer, and a new world opens its door to them,” Godwyll observed.

She strongly believes that there is one huge challenge young people face today: To connect the skills and knowledge they acquire with their daily lives, and to translate them directly into job opportunities. Oftentimes they don’t learn what they need to secure a livelihood.

William Senyo agrees. “The ones in charge of educating people must bring an open mind to what it takes in this kind of global economic dynamics and then the young people must also be willing to do extra,” the 31-year-old Ghanaian says. In his opinion, the parents raising the young generation are fairly conservative. Thirty years ago, a university degree almost guaranteed a job for life. Today, many parents don’t even understand how their children make an income as they sit at home all day, laptops on their knees. “The state has a contract with these young people,” Senyo says. “But there is a disconnect and it almost feels like a lie: Why did the government make me go through [formal education] just so in the end you tell me you don’t have the resources to put my skill set to use?“

In Ghana, 90 per cent of its 30 million citizens can read and write. About a third of Ghanaians are between the ages of 15 and 35. Ghana’s government defines this age bracket as youth, though it does not provide statistics on employment for this group. While the Ghanaian economy has grown on average by an impressive 8.1 per cent annually between 2007 and 2013, this growth did not translate into increased employment opportunities for an ever-growing labour force, which has impacted the youth in particular who, given their age, have less or no work experience in comparison to other workers. Therefore, they tend to engage in informal or underpaid jobs.

The lanky agribusiness graduate digs a mine of ideas in Accra. Five years ago, he founded Impact Hub, a social experiment that gathers restless, inquisitive young people with alternative ideas. The “innovation cluster“, as Senyo likes to call it, supports starting businesses with a social approach. Currently, the team focuses on health, education, agriculture, sustainable energy and financial inclusion. They invented and produced drain covers: “We take all the plastic waste we generate at the Hub to a recycling plant. They recycle it into 3D thread for us and we print out the 3D drain covers. People don’t see it’s possible until you show them,” he grins.

With his Impact Hub, William Senyo does not focus on job seekers but job creators. “Those with initiative that are the rare ones you have to work with and grow and slowly hope that their work will translate into jobs for the mass of unemployed people. They cannot all be entrepreneurs.”

Senyo has given up on the Government of Ghana to solve the country’s youth unemployment crisis. He believes in the effects of a political consciousness: “Exposed, socially aware individuals are always a win compared to people who just walk around like robots and do the work. An empowered group of young people is a threat to any government if they don’t have opportunities.”

For the time being, his best bets are on African entrepreneurs. “Political leadership has failed us consistently. The entrepreneurs have actually shown more capacity to lift us up than our political leaders. They have created opportunities.” Senyo does not question how these entrepreneurs made their fortunes, whether they pay their workers fairly or what motivates them to support creative young people. Not yet. For now, they are useful.

Senyo has given up on the Government of Ghana to solve the country’s youth unemployment crisis. He believes in the effects of a political consciousness: “Exposed, socially aware individuals are always a win compared to people who just walk around like robots and do the work. An empowered group of young people is a threat to any government if they don’t have opportunities.”

Zest for action and the energy of his generation are what tax expert Mabutho Mthembo from South Africa’s metropolis Johannesburg counts on. His country’s population is almost twice the size of Ghana’s, but with 36 per cent of the total population, the proportion of South Africa’s youth is similar to that of the West African nation.

Alarming though is the fact that 53 per cent of young South Africans are jobless, as the International Labour Organisation (ILO) estimates. This is despite the fact that the literacy rate in South Africa is at 99 per cent, and almost 70 per cent of South Africans attend or have attended a secondary school. “In a society where jobs are rare, it takes young people with courage and a sense of innovation,” the 32-year old Mthembo says.

His statement can be read as criticism of South Africa’s education system: Mthembu grew up with his grandmother in rural Kwazulu Natal where primary school students were taught in Zulu, the local language. “Nothing much happens in the countryside,” he remembers. “Nobody ever told us what opportunities are available in South Africa in regard to education and jobs. Learning English was neglected. So getting to university was a shocker as English was the language of instruction. It was very trying at that time.”

Based on his experience that a lack of information, education and social networks prevent young people from seizing opportunities, Mabutho Mthembo started the Youth Managers Foundation about ten years ago. About 2,000 students between the ages of 14 and 18 from 37 high schools in townships and rural areas of South Africa have since received career guidance, have been mentored by professionals from the industry and were introduced to managerial and leadership functions. “The energy that exists in these young people, it’s massive,” exclaims Mthembo. “We try to channel this energy in the right direction: We need leaders who are responsible, generative and constructive.” He believes that the only way South Africa and Africa can thrive is by developing their own visions for the future.

Mabutho Mthembo’s struggle for education and eventually better job opportunities is typical for many young black South Africans. In fact, had it happened years earlier, he might have been among them when in October 2015, students at the University of Witwatersrand in Johannesburg started what would eventually turn into a country-wide political protest: The university management had announced it would raise tuition fees by 10.5 per cent the following year. Before long, the students’ demonstrations had spread to other institutions of higher learning throughout South Africa, famously known under the hashtag #FeesMustFall.

The raising of fees at one university was just the spark that lit the fire that had been nurtured for years by wider and deeper issues that the Rainbow Nation had been struggling with: the inaccessibility of higher education for poor black South Africans due to high costs; inadequate government funding for public universities; rampant corruption within the government administration that was channelling urgently- needed funds away from the public service; and the inability of the government to provide opportunities for its young black citizens to make a decent living and to have a promising future.

The same year, after increasing protests that followed decade-long calls to do so, the University of Cape Town removed a statue commemorating Cecil Rhodes from its campus: For the protestors, the late politician and colonialist symbolised white supremacy and suppression of the black population. The protests, which quickly spread to other universities under the hashtag #RhodesMustFall, called for action against institutionalised racism, for better chances for black academics to become faculty members, but most importantly, for the decolonisation of the education system in South Africa that still had not addressed policies in which racism and inequality were deeply entrenched. Since then, the South African government has come up with a bursary scheme to fund free higher education for poor and working-class students. And the wider calls by South African students for inclusion, anti-colonialism and equality have resonated with students all over the world.

The raising of fees at one university was just the spark that lit the fire that had been nurtured for years by wider and deeper issues that the Rainbow Nation had been struggling with: the inaccessibility of higher education for poor black South Africans due to high costs; inadequate government funding for public universities; rampant corruption within the government administration; and the inability of the government to provide opportunities for its young black citizens to make a decent living and to have a promising future.

Wartson Atukwatse, a Ugandan, studied Environmental Science at Kyambogo University, but getting a job was never on his agenda. During his studies, he quickly discovered that reading was meant only for passing exams. “But I would read a lot of different books for my own benefit, something that was not even taught in class,” the 26-year-old remembers. “I was reading a lot of historical books, about social and artistic work.” He became an activist, a member of several book clubs and was the chairman of the university environmental association. “At that point I was looking at finishing my education and then a job would come. It’s all about getting the necessary skills and then strategising how you can create your future.”

Necessary skills and knowledge, to Wartson, come with reading widely and engaging oneself with matters that develop society. “A job would come but it would find me when I would be doing my own activities,” he remembers. Today, Wartson runs the library at the Uganda Museum in Kampala that he revived a few years ago, and is a sought-after research assistant for academics from abroad coming to Uganda.

He is passionate about creating a reading culture in Uganda. “If we have a population that is literate, that is exposed, that is empowered to create and innovate, then all the problems we have on the continent can be solved. It pains me that most of our governments don’t see that and don’t invest in the creative industry.”

Maybe the government doesn’t, but singer-turned-social-activist-turned-member-of parliament Bobi Wine certainly uses his skills and popularity he had garnered as an artist to challenge Ugandan president Yoweri Museveni and the system he represents: that of a “Big Man” who concentrates most state power in his hands.

Bobi Wine’s appeal as a young person from a poor Kampala neighbourhood and his calls for “people power” resonate particularly with Uganda’s overwhelmingly youthful population, the fastest growing and among the most youthful populations in the world. About 77 per cent of Ugandans are younger than 30 years and 52 per cent are under the age of 15. The majority of them were not born when President Museveni became the head of state in 1986 and do not feel represented by his government.

He is passionate about creating a reading culture in Uganda. “If we have a population that is literate, that is exposed, that is empowered to create and innovate, then all the problems we have on the continent can be solved. It pains me that most of our governments don’t see that and don’t invest in the creative industry.”

Despite remaining rather elusive about his concrete political plans for Uganda’s future, Bobi Wine is emerging as a long-awaited beacon of hope for those who were looking for a leader representing the majority of the Ugandan population who are looking for solutions to corruption and injustice. As he expresses in his song “Situka“ from 2016: When our leaders have become misleaders and mentors have become tormentors. When freedom of expression becomes the target of oppression, opposition becomes our position.”

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