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FORMS AND SUBSTANCE: Comparing Predictions and Results From Kenya’s General Election

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This was due to be the last in a series of four articles on the Kenyan general elections of 2017. The first three looked at the campaign, the state of play between the main alliances and the capabilities and activities of the Independent Elections and Boundaries Commission and made a series of predictions about the likely results of the 8 August poll at presidential, gubernatorial and parliamentary levels. This article looks at what happened next: the results, where those predictions were right and wrong, what we can deduce about the conduct of the electoral process in the light of the Supreme Court’s invalidation of the presidential poll on 1 September and what lessons there may be in the first presidential poll for the second.

The Presidential Results

In the Presidency, as predicted in all three articles, according to the Form 34Bs which record the 290 constituency results, Uhuru Kenyatta won a clear victory; winning 54% of the vote to 45% for his main challenger Raila Odinga. This was the result of an electoral process which initially pleased almost everyone. The procedures on polling day worked well, the electronic voter identification and tallying systems mostly functioned as intended (or at least as predicted), there was no military intervention, no mass failure of the electronic voter verification system and counting at the polling stations was mostly uneventful. The presidential results were (mostly) logical and consistent with previous elections and with the parallel elections taking place and there were no excesses of votes in the Presidency compared to the other polls. The overall process was given the support both of domestic and international observers (with qualifications as the results had not yet been declared at that point).

For now, this analysis is based on the opinion – which I hope to explain – that while there were material administrative issues sufficient in the minds of the Supreme Court to invalidate the election, the evidence strongly suggests that the presidential results announced by IEBC were not “cooked” or “computer generated”.

That is not the view of a large number of Kenyans who supported the NASA coalition however, nor of the Supreme Court, and we will look in more detail at their concerns later. For now, this analysis is based on the opinion – which I hope to explain – that while there were material administrative issues sufficient in the minds of the Supreme Court to invalidate the election, the evidence strongly suggests that the presidential results announced by IEBC were not “cooked” or “computer generated”. Many of the complaints raised relate to the IEBC’s partial migration to an electronic tallying system, which as predicted was a key source of confusion.

Overall, the IEBC results showed that Kenyatta and William Ruto had won a decisive victory, by a greater margin than most had predicted. They won 26 counties to Odinga’s 21. Uhuru won three counties I thought he would lose – Garissa, Narok and Nyamira – and lost one, Tana River.

Kenya’s 47 Counties by the Winning Presidential Candidate (Anulled)

I got closest in my article in June, which predicted a 55-45% victory, In fact, the closer to the election we got and the more information I acquired, the less accurate my predictions were. In fact, I had begun to doubt my own numbers and modified my eve-of-poll prediction from 53-47% (which the spreadsheet suggested) to 52% to 48%. I left however the predicted votes for each candidate the same, and there I was pretty close: the official constituency Form 34Bs show that Kenyatta beat Odinga by 8.2 million to 6.8 million votes, compared to which I had predicted 8 million to 7 million.

Regionally, Kenyatta and Odinga (and their respective Vice Presidential candidates William Ruto and Kalonzo Musyoka) won all their Kikuyu, Kalenjin, Luo and Kamba “heartlands” as expected, and by huge margins. The two internal “insurgencies” in Bomet (Isaac Ruto for NASA) and Machakos (Alfred Mutua for Jubilee) both had little impact on the presidential votes. I had expected Ruto to bring more voters to Odinga than he in fact did. Little will change here in a rerun. As predicted, Kenyatta won most of the north and North east, Odinga most of the Coast and Western. Nairobi (on the far left of the chart below) was narrowly pro-Odinga (51% to 48%), much closer that opinion polls had predicted, a source of some surprise. Ipsos for example had run a survey in Nairobi just pre-poll which predicted a 56% Odinga vote with a margin of error of +-2.7%. The Kisii and Nyamira result (on the far right) were also a surprise, as most commentators, myself included, had given the region to NASA as in 2013. Explanations given afterwards included the heavy investment Jubilee had made in the region, the defection of virtually all ODM MPs to Jubilee and the influence of Fred Matiang’i as cabinet secretary.

Image 2

Note: Orange throughout is NASA or Odinga; Blue throughout is Jubilee or Kenyatta. I use blue rather than red, the “Jubilee colour”, because red and orange look similar in some display formats, and because blue is a more “conservative” colour in most political systems than red, which tends to be associated with socialism and communism, and Jubilee is definitely a more conservative alliance.

As expected, all the other candidates were irrelevant, except for Joseph Nyagah (small spread votes) and Mohammed Dida (in green above), who polled creditably in the north and north east. Rejected and otherwise inadmissible votes were reasonable, down on 2013 at 0.5% overall (based on the Form 34Bs).

When I summed them manually, the 34Bs added up to almost exactly the same results as IEBC had announced around 8pm on 11 August (which they had done with a couple of seats still missing, as they were entitled to do).

These Presidential results are taken directly myself from the 34Bs, when they were published in a repository by IEBC, which were the only formal and legal basis for announcing a result. When I summed them manually, the 34Bs added up to almost exactly the same results as IEBC had announced around 8pm on 11 August (which they had done with a couple of seats still missing, as they were entitled to do). There were three Form 34Bs missing from the Forms repository (a different result had been uploaded instead), so I used the 34C national summary for them. The results in the IEBC real time portal (initially fed by the KIEMS system and then corrected and topped up later manually with missing results) were similar, though not identical, with the main difference being the spoilt votes, where – as in 2013 – there appeared to be an glitch which led the number of rejected, disputed and objected votes to be far larger electronically than in fact it turned out to be (something the IEBC has never explained).

Comparing the now invalidated presidential results against those for 2013 (easy with the same constituencies and candidates) we can see clear trends. Kenyatta did better in most areas, picking up votes especially in the north and North East, the Coast, Western and Kisii/Nyamira. Odinga did better in Bomet, some northern Kalenjin seats, most of Western (where he took the majority of Mudavadi’s 2013 vote) and Meru.

Image 3

Change in Vote for the Main Candidates 2013-2017

Turnout was substantially down on 2013. This was as predicted: the 2013 election had been fought on a new register, which had been only incrementally and partially updated since then, leaving at least a million dead voters still registered, so turnouts were inevitably going to be lower. In addition, the electronic voter identification system, with id cards, photographs and fingerprints combined, and (uneditable) tallies of voters maintained electronically by the KIEMS systems, deterred or prevented some “top up voting“ (officials voting for missing voters at the end of the day) which occurred in 2013.

In summary, if the Presidential result was substantively rigged or the result otherwise affected by the issues found, it is near certain that all the other elections must have been rigged or affected in the same way, as they involved the same voters, method for voting, technology for voter identification and results transmission (KIEMS), the same real-time results display portal, the same voting and counting processes, the same election officials and almost the same end results.

The turnout pattern (in black below) matched very closely that of previous polls, highest in the Luo and Kikuyu homelands, lowest on the coast. Turnouts exceeded 85% in 35 mostly Kikuyu, Luo and Kalenjin constituencies, a sign of some forced voting, top ups or stuffing, but exceeded 90% nowhere, and nationwide were a very reasonable 78% (compared to the 76% that a long-term weighted average of the last five elections suggested). The change in turnout on 2013 (in green below) was mostly consistent, as would be expected if dead voters were the main reason. Turnouts rose slightly in a couple of Kilifi seats where they had been depressed by the Mombasa Republican Council violence in 2013, and in Tharaka in Tharaka-Nithi (unexplained so far).

Presidential Turnout

Presidential Turnout 2017 and Change vs. 2013

The Governorships

In the 47 gubernatorial races, the results followed a similar pattern to those for the Presidency. Again, Jubilee won decisively, by a greater margin than predicted. Here too, I underestimated the scale of Jubilee’s victory (though I got the winner right in 40 of 47). I predicted that Jubilee and their KANU, MCC, FAP, PNU, DP, NARC-Kenya and independent allies would win 21-28 Governorships, but they ended up with 29. As expected, they won their homelands, and Mike Sonko won Nairobi. Jubilee also won four counties where I had them as marginals (Narok, Kwale, Lamu and Wajir) and four (Garissa, Kajiado, Bomet and Machakos) which I had given to NASA. Across the nation, only 21 of the 47 incumbent governors returned to office.

Kenya’s 47 Governors by Winning Alliance

Kenya’s 47 Governors by Winning Alliance

New Governors included three Kenyatta first-term cabinet secretaries, all dropped from their posts for various alleged misdeeds: Anne Waiguru in Kirinyaga, Joseph ole Lenku in Kajiado and Charity Ngilu in Kitui – plus retired Kibaki-era Secretary to the Cabinet Francis Kimemia. This reaffirmed the illusory nature of the distinction between senior non-partisan state officials and politicians. If they were not in active politics when they entered office, they certainly were by the time they left.

For many Kenyans, the local races for MP and MCA were just as important as those for the President and Governor. There too, the same pattern was seen – Jubilee successes across the board.

NASA did not petition the governorship elections collectively, though they made allegations that some results were “computer generated” and initially, nor did most losing gubernatorial candidates. There seemed a general assumption that the non-presidential polls were not systematically rigged until the Supreme Court’s judgement, which immediately opened the floodgates for petitions by defeated candidates, including losing gubernatorial candidates, in Embu, Siaya, Kirinyaga and Machakos, with more to come.

The Parliamentary Races

For many Kenyans, the local races for MP and MCA were just as important as those for the President and Governor. There too, the same pattern was seen – Jubilee successes across the board. In the National Assembly, for the 290 constituency MPs my prediction of a 54% pro-Jubilee to 46% pro-NASA win turned out again to be a slight underestimate of the size of Jubilee’s victory. In fact, Jubilee and allies won roughly 60% to just under 40% for NASA. Jubilee did well in Bungoma and Kakamega (where ex-New FORD Kenya members formed the core of their victors), Kisii and Maasailand, and even won a couple of seats in Kitui and Machakos. ODM swept Luo areas and most of the Coast and Wiper most of Ukambani, while Mudavadi’s ANC, FORD-Kenya and ODM competed for the non-Jubilee western seats. Nairobi split 9 seats to Jubilee to 8 to NASA. The majority of MPs were newcomers, with voters clearly demanding change at the local level, particularly in the Kikuyu and Luo homelands, where few incumbents were re-elected.

The pattern was similar amongst the elected county Women’s MPs (with 31 for Jubilee and its allies versus 16 NASA and one independent) and in the Senate, where Jubilee and allies won 27 elected seats to NASAs 20). Overall, Jubilee won (initially) the presidency, the National Assembly, the Senate and most of the Governorships, the most decisive victory since the NARC wave of 2002.

Contrasting Perspectives and NASA’s Concerns

In general, the elections appeared to have been smoothly run, the results consistent, the electronic portal reporting convincing and the IEBC appeared comfortable in delivering its mandate. Observers commended the process as “peaceful, fair, and transparent”. Believing it had lost its ability to validate and correct constituency errors after the Maina Kiai et al case, IEBC headquarters limited itself – for the presidential election victory announcement – to a process of extraction, verification and entry of the 290 constituency Form 34B returns, the summing of these results and the announcement of the winner. As there remains dispute on this, the key decision summary is reproduced here from the Kiai judgement (http://kenyalaw.org/caselaw/cases/view/133874/):

image 6

The results Chebukati announced from the 34Bs (acknowledged by all to be without a complete set of 40,000 matching polling station Form 34As) matched closely with the parallel returns coming from the polling stations via the electronic KIEMS system in real-time to Bomas. From close of poll on the 8th, the parallel result stream from KIEMS soon showed a lead for Kenyatta and that lead grew over the next 48 hours as more and more of the electronic kits reported in.

The independent Parallel Vote Tabulation conducted by the ELOG domestic observer network and announced on 12 August validated the results almost precisely (its sample-based prediction gave 54% for Kenyatta to 45% to Odinga with a 1.9% margin of error). This was crucial because it provided independent verification to observers and the media that their perception of a well-run election was matched by independent assessment. Of course, this could have been faked, but there is no evidence yet offered that it was.

A macro-level comparison of voters cast and results between elections in fact shows that Odinga did better presidentially than his candidates in general. A re-tallying of the 15.3 million gubernatorial votes by constituency gives 5.7 million votes to ODM, Wiper, CCM, ANC, FORD–Kenya and allied candidates, far less than Odinga’s 6.8 million (in red). Thus Odinga did better in the cancelled presidential elections than did his gubernatorial candidates. The same pattern is seen in Parliament – again, Jubilee candidates polled more than 2 million more than NASA, though results are incomplete become 18 seats still don’t have full results on the Portal (https://public.rts.iebc.or.ke).

alliances

Jubilee = Jubilee + KANU + FAP + MCC + EFP + DP + PNU + NARC-Kenya plus defectors from the above after losing primaries, where known

NASA = ODM + Wiper + CCM +ANC + FORD-K + CCU + NARC plus defectors from the above after losing primaries, where known

Jubilee’s victories in the annulled presidency matched well with its victories in parliament and the Governorships. Comparing the Presidential, Gubernatorial, Senate and Women’s Representative results against each other by winner, in only nine counties did voters switch tickets: Nairobi, Machakos, Lamu, Tana River, Kwale, Taita-Taveta, Turkana, Narok, Trans-Nzoia and Nyamira.

image 8

Of those, Odinga won every one except Nyamira. In summary, if the Presidential result was substantively rigged or the result otherwise affected by the issues found, it is near certain that all the other elections must have been rigged or affected in the same way, as they involved the same voters, method for voting, technology for voter identification and results transmission (KIEMS), the same real-time results display portal, the same voting and counting processes, the same election officials and almost the same end results.

Rather than conceding once the trend was clear, Odinga rejected the presidential results outright (though not the other results) and accused the IEBC of a “complete fraud”. NASA’s impassioned follow up allegations were more specific, claiming form substitution, un-gazetted polling stations and administrative chaos in the IEBC and castigating the IEBC for releasing the presidential results without all the Form 34As. The sometimes-contradictory and implausible hacking claims made by senior politicians including Odinga, James Orengo and Mudavadi on 9-10 August raised the political temperature sharply, as intended, but also distracted attention for a while from real issues which were emerging relating to the IEBCs handing of the Form 34As. Despite widespread scepticism and challenge from the international observers, who had all judged the polls so far (before results had been announced) to be free and fair, NASA’s leaders refused to accept the results, claiming they were “cooked” or “faked” and demanded – even before all form 34B were in – that IEBC declare Raila as President (at one point using a faked NASA parallel count document as supporting evidence).

(Musalia Mudavadi Press Conference, 10 August 2017)

(Musalia Mudavadi Press Conference, 10 August 2017)

Unexpectedly abandoned by the international observers, who they had previously seen as allies, they lashed out at them as well. A few NGOs including the Kenya Human Rights Commission backed up NASA’s allegations to varying degrees, which then raised further fears of state repression (and generated further bad press internationally) when the state briefly tried to shut them down immediately the result was announced.

However, Odinga and the other NASA principles came under intense domestic and international pressure to take the constitutional path, as their ambivalent, partial move to “the streets” to protest during Wednesday 9th – Sunday 13th August was escalating and several people (probably at least 28) had been killed, mostly by the security forces.

NASA followed up their allegations with a petition against the presidential election, filed just within the one-week deadline on 18 August. Until the 16th, they had told Kenyans that “filing a petition at the Supreme Court to challenge the results was out of the question” because of CORD’s difficult experience in 2013 in crafting a case in one week, and the high burden of proof then demanded. However, Odinga and the other NASA principles came under intense domestic and international pressure to take the constitutional path, as their ambivalent, partial move to “the streets” to protest during Wednesday 9th – Sunday 13th August was escalating and several people (probably at least 28) had been killed, mostly by the security forces. Fears of broader communal violence in Nairobi were growing, fuelled by a series of fake media photographs, pretending to be current and of Kenya, designed to incite hatred. The decision to petition offered a temporary release for that tension.

For just one week (extraordinarily brief because of the two-week end to end deadline for concluding presidential cases, which the judiciary had already asked unsuccessfully to be extended) the Supreme Court heard the NASA case and responses from the IEBCs lawyers and other interested parties, with the verdict announced 1 September. NASA’s case focussed on five main areas – the electronic vote transmission system and its potential hacking (with the extraordinary claim that the portal results were a mathematical calculation unrelated to the actual votes cast); the missing form 34As and whether some were invalid or had been faked or substituted and errors in the KIEMS data entry which sent some of the results to the tallying centres; whether the IEBC Chairman should have declared without all the form 34As in his possession; examples of tallying errors between form 34As and Bs and possible malpractice in particular constituencies; and the pre-poll electoral environment including campaigning by Cabinet Secretaries for the ruling alliance.

The two dissenting judges’ Ndung’u and Ojwang’s opinions on the case were brutal – that the petition was without merit, devoid of evidence and that any transmission irregularities did not and could not have affected the outcome of the actual election at the polling stations or the count at constituency tallying centres.

To some surprise, by a 4-2 majority verdict the Supreme Court led by Chief Justice Maraga nullified Kenyatta’s re-election, because the poll was “not conducted in accordance with the Constitution”, and specifically the IEBC had “committed irregularities and illegalities inter alia, in the transmission of results”. The detailed grounds for that decision are not yet known, as the formally argued verdict will only be issued in 21 days (as it was “not humanly possible” in the words of the CJ to prepare the report in the time available). The court found no evidence of misconduct by Kenyatta (which had been one of Odinga’s petition grounds), though again we do not yet know their reasoning. It ordered another “fresh” presidential poll to be held in 60 days.

The two dissenting judges’ Ndung’u and Ojwang’s opinions on the case were brutal – that the petition was without merit, devoid of evidence and that any transmission irregularities did not and could not have affected the outcome of the actual election at the polling stations or the count at constituency tallying centres. Justice Ojwang argued that “there is not an iota of merit in invalidating the clear expression of the Kenyan people”. Kenyatta’s lawyers were furious, with one calling it “a political decision that is absolutely devoid of an iota of legal reasoning”, but the Supreme Court is Kenya’s final court and there is no further appeal.

Where were the Real Issues?

The single most vexed element of the whole election proved to be the electronic vote tallying and reporting, which had been introduced in the 2016 and 2017 Elections Act amendments. The unsolved murder of the IEBC expert responsible for KIEMS just before polling day (the reasons for which have still not been explained, though at least one person is still in custody) added fear and uncertainty to an already confusing situation. Most of this was unnecessary, as the election results used to calculate the Presidential winner should always and only have been those from the form 34Bs. The electronic results which came direct from the 40,833 polling stations to the portal were unofficial, incomplete (because they would and could never get 100% electronic results in a country so large and diverse economically as Kenya) and would inevitably differ (as they in fact did) from the 34Bs prepared at constituency level (mostly due to data entry errors into KIEMS by officials when transcribing manually from the completed forms). Repeated NASA allegations of hacking of the central IEBC server did not make great sense once it was clear that the central IEBC system was only being used for parallel presentation of polling station results from KIEMS. The actual presidential result came from the 290 constituency Form 34Bs. And the allegedly hacked portal had almost exactly the same result (8.2 m to 6.8 m) as that produced by adding the Form 34Bs.

The second significant concern was the delays in obtaining and then displaying the form 34As in IEBC headquarters. These were not (in the IEBC’s view) required for the central presidential announcement, but were still essential in order to determine whether the overall election was free and fair. No constituency RO should have announced their winners without all their form 34As, yet a week after they had finished, thousands were missing. The IEBC originally promised that “The results for the presidential election will be transmitted together with an image of the polling station tally sheet”. Then two days before polling, they announced what had already been widely suspected – that 11,000 polling stations did not have sufficient wireless network coverage – so the results from KIEMS would either come later or minus the scanned Form 34A copy. The whereabouts of these 11,000 forms became a huge problem. The IEBC was ambivalent and even misleading at times in its reporting. It seems they had not initially realised that the ‘one-time use’ model for KIEMS devices meant that for the polling stations where the system could not send the image but could send the results online, the scan of the form 34A would have to be provided much later by other means. These trickled in over the next 1-2 weeks, electronically or by hand. The IECB’s ambiguity over the 34As and the portal cost them dearly in perceptions of their competence and credibility.

Their failure to provide a display portal for the Form 34As and Bs was a mistake which was rectified, quickly for the Form 34As, and then grudgingly, a week after the vote, for the 34Bs. However, once done, it exposed gap between image and reality, when huge swathes of form 34As were found to be missing and some to be illegible. Those which were in the system matched well with the results in the online portal, but some were unsigned, unstamped or in a different format, and no-one knew what had happened to those which were missing. Some reports suggested the gaps were politically material (e.g. disproportionately from Odinga’s homelands).

It now appears that some media houses were ordered not to report on constituency contests, which might lead to suspicion that something deeper was amiss.

This linked to a more systemic concern – the back office operation of IEBC headquarters. While on the face of it, Wafula Chebukati, Ezra Chiloba and other commissioners maintained a relaxed face, and the portal and forms systems worked well, exactly where the portal results were coming from and why so few Form 34As were available has never been fully explained. It seems that administratively things were far from smooth in the back office. Basic security controls were lax, with IEBC staff frantically updating systems with whatever data they could get using various userids, some of their much vaunted document security features were invalid, key constituency documents were duplicated or unsigned and some officials were not even gazetted. There are still no published results apart from those on the portal for any of the other elections – no Form 35,36 ,37 and 38 for the parliamentary, gubernatorial, women representative or senatorial results have been published anywhere. The IEBC portal has results, but they are still incomplete nearly a month after the election, and differ from the (fragmentary) official results gazetted by IEBC on 18 August. In general, the results reporting and display process was unclear and IEBC did not always follow the procedures it had promised pre-election to ensure transparency and build confidence. The evidence from NASA’s petition showed numerous data and quality integrities, which while they were modest in individual impact and probably affected all candidates (and therefore would have limited material effect on the election result) certainly led many to question what was happening behind the scenes.

Another concern (less widely known) is the way in which the Kenyan media focused entirely on the electronic portal for their results, making no effort to report the actual constituency results. No independent tally was maintained and for the first time ever the press did not report any Constituency presidential, parliamentary or other results as announced. Initially I has thought that was simply practical laziness – since the portal was available and online – but it seemed inexplicable that the media were not reporting any of the announcements at all. It now appears that some media houses were ordered not to report on constituency contests, which might lead to suspicion that something deeper was amiss.

Still more concerns existed as to how individual presiding and returning officers behaved during their counting and tallying. Some Presiding Officers (for example in Mandera) were replaced the night before polling for unclear reasons. In some stations in pro-Jubilee homelands, NASA agents were not admitted and there was evidence in some stations of “top up” marking of unused ballots after polls closed. Many of the Form 34As had arithmetical issues or were not appropriately signed. It seems from NASA’s petition that some 34As may have been substituted with new (fake) documents or amended after counts finished (though KIEMS should prevent that, KEIMS didn’t work everywhere). In 13 per cent of polling stations, ELOG reported that Form 34A results were not displayed publicly as required by law. Some Form 34Bs show basic mathematical errors. There is also statistical evidence that (as in previous polls) presidential tallies were somehow inflated in the homelands (though there were few public protests at the time). For example, work in progress by Raiya Huru looking at the statistical distribution of Form 34A numbers suggests that in Murang’a, Nyeri, Nyandarua, Siaya, Kisumu and Homa Bay, the polling station results had been tampered with by someone (http://raiyahuru.com/Analysis.pdf). This matched well the NASA petition analyst’s view that something was amiss statistically with many of the results. The IEBC admitted that there were errors in the forms, but claimed they were not substantial enough to affect the outcome of the election.

The Presidential Election Part II

As the petition proceeded, life had begun to return to normal. The new MPs had been sworn in, governors had mostly completed their handovers, and for most Kenyans, the lengthy, expensive, diverting election was becoming a thing of the past. However, with the Court’s announcement we are now in uncharted waters, with the IEBC required to rerun the presidential poll within 60 days, for reasons which are not yet clear.

The IEBC should have been prepared for a runoff, so in theory all should be ready for a rerun. However, whether the IEBC can put together the temporary staff, the KIEMS devices, the logistics and the ballot papers in time for 17 October we do not yet know, especially as the IEBC itself is now under threat. So far Chebukati is staying put rather than resigning, but Chiloba has been side-lined entirely, as have several other officials (putting further stress on those who remain). But NASA is already objecting to the Supreme Court’s order that IEBC conduct a fresh poll in 60 days (because IEBC must be reconstituted), and IEBC has already decided not to conduct a full presidential poll anyway but only a second round runoff, based on the judgement in the 2013 petition [para 291] that “If the petitioner was only one of the candidates, and who had taken the second position in vote-tally to the President-elect, then the “fresh election” will, in law, be confined to the petitioner and the President-elect.”. And the precedent set in the Presidential petition would appear to allow every loser in the other five elections to annul every winner’s election on the same basis, if they can file a petition in time. So, more court cases loom while time runs out.

How effectively the two alliances will respond – without much time to raise money – to the need to do it all again no-one knows, but Jubilee are now grim, angry and spoiling for a rematch, which may well be dirtier than the first. My first guess would be that the result of the second election, if actually held, will be similar to that in the last, and in all the other “down ballot” elections, but until we know the real reasons why the Court annulled the vote, we do not know how much impact the irregularities they found may have had on the first presidential result. Victory in the courts may give the NASA camp fresh impetus and mitigate the pro-Jubilee bandwagon effect of incumbency, but Jubilee have a huge regional advantage (as they always did), more money and no intention of losing.

I had thought this would be my last piece, but perhaps we will need one more.

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Charles Hornsby is the author of Kenya; A History since Independence and lives in Ireland.

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Arror & Kimwarer Dams Saga: Fighting Corruption or Realpolitik?

The cases at the Milimani Anticorruption Court provide few concrete answers amid claims that the investigations into the Arror and Kimwarer Dams projects are politically motivated to weaken Deputy President William Ruto who is running for the presidency.

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Arror & Kimwarer Dams Saga: Fighting Corruption or Realpolitik?
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A joint investigation by IrpiMedia and The Elephant

Soon after Uhuru Kenyatta and his deputy William Ruto secured a controversial second term in November 2017, investigations begun into the procurement and financing arrangements surrounding the Arror and Kimwarer dams in the Rift Valley county of Elgeyo Marakwet.

The dams had been commissioned years earlier, and billions had been paid out but there was nothing on the ground to show for either dam. The Kimwarer project has since been cancelled, the Arror one scaled down, and eight defendants today face charges of conspiring to defraud the government of nearly Sh60 billion. However, there have been claims that the investigations and prosecutions are politically motivated and aimed at weakening Deputy President William Ruto who is running to becoming Kenya’s fifth president. Just this week, during the presidential debate, Ruto essentially said the dams were casualties of the 2018 fallout with his boss. This has been many times denied by the Director of Public Prosecutions.

The two cases dealing with the dams at the Anti-Corruption Court in Milimani, Nairobi, focus on alleged irregularities in the tendering and contracting of the dams as well as alleged illegal payments made to two Italian companies. The crux of the ODPP’s case is that officials of Kerio Valley Development Authority and the national government colluded to grant CMC di Ravenna and its joint venture partner, Itinera S.P.A, a contract for the construction of the two dams for which they had not won the tender and that differed fundamentally from the terms advertised in December 2014, which called for proposals for the “funding, design, build and transfer” of the dams. The eight Kenyan officials in case No. 20 of 2019 and the 18 Italian companies and individuals in case No. 21 of 2019, are accused of executing a sleight of hand, initially pretending that the contractors would mobilize money from the Italian government to build the dams and then switching it to a commercial loan with the government as the borrower. Furthermore, instead of the borrowed money being deposited into the Consolidated Fund as the constitution prescribes, on the contrary, it was sent directly to the contractor. In the ODPP’s view, this is where the fraud arose.

The initial contracting model selected was Engineering, Procurement, Construction and Financing where the contractor also arranges financing for the project through tie-ups with financing institutions. They can be useful when contractors have better access to low-cost financing, including state-provided export-import financing. However, the Parliamentary Service Commission has noted that these contracts are vulnerable to abuse and in 2019 parliament suspended 20 dam projects, including Arror and Kimwarer, saying “Kenyans [were] not getting value for money in this model”.

According to the ODPP, the tendering process for the two dams was riddled with irregularities. In an affidavit sworn in February 2020 on behalf of the DPP, Police Constable Thomas Tanui states that, unlike the Arror dam, the Kimwarer project had not been approved by the Cabinet, as required by the 2013 Public Private Partnership Act (PPA). Further, in the course of the process, the tender documents for CMC di Ravenna were illegally altered at least twice to switch CMC’s joint venture partners from South Africa’s AECOM to a company only known as MWH, and then again to Itinera S.P.A. And while it was Italy-based CMC di Ravenna that made the bid, the tender was awarded to South Africa-based CMC di Ravenna, a different legal entity with whom KVDA signed Memoranda of Understanding regarding the two dams in December 2015 and February 2016 that were meant to end with the signing of concessional contracts within 8 months.

However, the MOUs expired without the concessional contracts being signed and instead, on 5 April 2017, the KVDA signed commercial contracts for the construction of both dams with the Italian CMC di Ravenna and its joint venture partner Itinera S.P.A. for a total combined amount of US$501.8 million, including 10 per cent contingencies that had not been negotiated for under the concessional agreements.

In his affidavit, PC Tanui avers that the dam projects were conceived as concessionary projects under the PPA but were surreptitiously converted into a commercial instead of a concessional contract. However, what the ODPP means by “concessional contract” and how that differs from a commercial contract is not clear. There’s no mention of a “concessional contract” in the PPA which defines a concession as “a contractual licence . . . entitling a person who is granted the licence to make use of the specified infrastructure or undertake a project and to charge user fees, receive availability payments or both”. While the law allows government agencies to “enter into a project agreement with any qualified private party for the financing, construction, operation, equipping or maintenance” of infrastructure, none of the 15 types of public private partnership arrangements it lists in its second schedule seem to fit what KVDA had initially advertised.

However, perhaps what the ODPP refers to as a “concessional contract” is a reference to the way the project was to be funded. According to press reports and Richard Malebe’s petition, the initial charges alleged that  the national government and KVDA officials as well as the Italian companies conspired to “entered into a commercial loan facility agreement disguising it as a government-to-government loan guaranteed by the Italian Government . . . ‘while knowing the tender document contained in the request for proposals for the development of the dams project was a concessional agreement where the intended concessionaire was to be the borrower and financier and not the Government of Kenya’”. In essence, by substituting the commercial contract for the concessional one, rather than an arrangement where Government only paid once the dams were delivered, with the contractor and financiers assuming all the risk, it was the public that was left holding the baby when things went wrong. If anything, the Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.

A Treasury press statement dated 28 February 2019, signed by one of the accused, former Cabinet Secretary Henry Rotich claims that the financing agreement for the two dams was “government-to-government” with the Italian government—represented by the 100 per cent owned Servizi Assicurativi Del Commercio Estero (SACE)—providing “insurance cover and financial support” amounting to close to 88 per cent of the total loan amount, with a consortium of four banks led by Intesa Sanpaolo said to provide the rest. The statement details “the Conditions Precedent”, which were payments apparently required before funds could be released to the government and the contractor. These include €7.83 million (Sh951 million) in fees and commissions and €94.2 million (Sh11.4 billion) in credit insurance to cover lenders for both dams. In addition, another US$75.2 million (Sh9 billion), or 15 per cent of the total contract sum for both dams was paid out to the contractor.

The Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.

The Treasury claims these fees and advances were provided for and paid from the loan from SACE and the banks, not Exchequer funds. This aligns with a November 2019 note by SACE to the Italian foreign ministry which states that the agreement required the “payment of the sums due by the Contracting Authority to the CMC-Itinera joint venture through direct disbursement by the lenders on a current account of the contractor opened outside the State of Kenya” —a violation of the Kenyan constitution which requires all sums borrowed by the government to be deposited in the Consolidated Fund. However, according to both CMC-Itinera and a confidential analysis by the ODPP seen by The Elephant, the advance payment was for a total of €66.6 million (Sh8.09 billion), a discrepancy of nearly Sh1 billion. (It should be noted that the National Treasury appears to have entered into a facility contract with lenders in Euros, and payments appear to have been made in the same currency, even though the commercial contracts were in US dollars, which exposed taxpayers to losses through changes in the exchange rates. In this article, we have used the current exchange rates to reflect the amounts in Kenya Shillings.)

Further, according to business journalist Jaindi Kisero, SACE does not appear in the external debt register which raises doubts as to whether they were indeed the main lender. Also, the November 2019 note by SACE to the Italian foreign ministry says the insurance guarantee was “in favor of the Lenders for the entire amount financed”, which seems to say that all the money came from the banks. The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them. It argues that the insurance premium was fraudulent because if the funds came from SACE, as the agreements suggest, it would have been a government-to-government loan which would require no insurance. It concludes that “payments made by GoK were made with the intention to siphon money from the country in the disguise of advance payment, insurance premium and commitment fees”.

Deputy President Ruto has claimed that only Sh7 billion was in question and that the government had a bank guarantee that protected every penny. The Treasury statement seems to back him up, at least as far as the guarantee is concerned, claiming the advance payment was backed by “a bank/insurance guarantee” which would be called “if the contractor is unable to deliver the service to the Government or runs bankrupt”. And in February 2022 Regional Development Principal Secretary Belio Kipsang told Parliament that Heritage Insurance and Standard Chartered Bank had respectively issued insurance guarantees for the advances paid to the CMC Ravenna-Itinera joint venture for Arror (Sh4.1 billion) and Kimwarer (Sh3.6 billion). He said the government had already recalled the Arror guarantee and was planning to do the same regarding Kimwarer, whose guarantee expires in June 2023. However, it is again unclear from his statement what currency the guarantees are in: dollars, euros or shillings. If in shillings, then it seems that up to Sh1.3 billion may not be covered.

The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them.

It is unclear exactly how much Kenya stands to lose given the discrepancies in the currencies used. In total, according to the ODPP, €168.5 million (Sh20.5 billion) was paid between 4 May 2017 and 7 November 2018 to cover the insurance premium, various fees as well as the advance payments. The statement from the Treasury, as noted above, puts this figure at €102 million and US$75.2 million for a total of Sh23.5 billion at current rates. In addition, the external debt register lists Kenyans as being on the hook for the entire loan amount of €578.4 million (Sh70.3 billion) which stands to be repaid until November 2035. Yet it does not seem that any further disbursements have been made by the banks to the companies beyond the insurance premium, fees and commissions and the advance payment. Why the full loan amount would be reflected as drawn down in the debt register is a mystery. It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.

The cases at the Milimani Anticorruption Court provide few concrete answers. There are currently two cases, consolidated from the initial four—two cases for each dam dealing separately with charges of financial and procedural irregularities. Each of the four initial cases had numerous defendants including directors of companies based in Italy who refused to come to Kenya to take plea, occasioning long delays. Eventually, all the cases were consolidated into two, with Case 20 of 2019 having 8 accused persons based in Kenya, and Case 21 of 2019 dealing with the alleged crimes of 18 Italian individuals and companies. This arrangement has allowed the Kenyan cases to proceed with the first witness out of 57 taking the stand in November last year.

One strange thing about the cases filed by the ODPP is that while they allege a conspiracy to defraud the government through the commercial agreements, there is little indication of the other side of that coin: how did the individuals involved benefit from the scheme? No one is charged with paying or receiving a bribe and there has been little evidence produced so far to warrant the many press allegations of corruption and kickbacks. According to a report in the East African Standard, Sh450 million was “wired by the Treasury to Italian firm CMC di Ravenna . . . was sent to an account in London then Dubai and later to Nairobi”. One of the report’s writers, Roselyne Obala, would later add that the same Sh450 million was part of a larger payment of over Sh600 million and that it was paid to an account in Barclays Bank in Nairobi. However, none of this is in the charges preferred at the Anti-Corruption Court. Further, it is unclear whether “over KSh600 million” refers to the much larger advance payments which, in any case, was (illegally) transferred directly by the banks in London to the companies. Further, the absence of prosecutions within Italy, which has a law criminalizing Italian companies paying bribes to public officials abroad in return for contracts, suggests that there is no evidence that a bribe was paid in this case.

There have been allegations raised that the prosecution of the dam cases was politicised, targeting allies of Deputy President William Ruto. In October last year, Rotich instituted a petition at the Milimani High Courts questioning why the DPP left out key personalities involved in the tendering process such as the former Attorney General Githu Muigai, solicitor general Njee Muturi and former Environment CS Judi Wakhungu. Rotich has also argued that he was not responsible for procurement of the tenders and was not the accounting officer at Treasury. “It is absurd that the respondents chose to charge me while the Attorney General is not charged in this respect. This is an indication of selective prosecution that cannot stand the test of objectivity and fair administration of action,” he argued in the petition. Others have pointed to the dropping of charges against members of the KVDA Tender Committee as well as some of Rotich’s co-accused, former Treasury PS Kamau Thugge and Dr Susan Koech, a former PS in the Environment Ministry, as proof of malicious prosecution.

It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.

Regarding the latter accusation, it is notable that many of the former accused have actually become witnesses so it may just be a case of the DPP using the small fry to net the “big fish”. However, when it comes to why the former AG, the solicitor-general, and the various ministers who oversaw KVDA between 2014 and 2019 are not in the dock, the answers are not so convincing.

A bigger source of discontent is the lack of similar prosecutions over similar projects. For example, the contract over the Itare Dam in Nakuru, also in the Rift Valley, features the same set of characters—SACE, CMC di Ravenna, Intesa San Paolo, BNP Paribas—and was the first dam awarded to the Italians in 2014. After advance payments of Sh4.3 billion were paid out, the project appears to have collapsed. As Nakuru Senator Susan Kihika noted in February 2019, “It . . . seems as if there is no equal treatment of all the projects across the country.”

In 2013, CMC had signed a consultancy contract with Stansha Limited, owned by Stanley Muthama, the MP for Lamu West, in which Stansha pledged to help CMC in its bid for tenders for the construction of Itare Dam, which is under the Rift Valley Water Services Board, and Ruiru II Dam under the Athi Water Service Board, for a fee of 3 per cent of the contract value. For Itare, it came to Sh330 million. According to the ODPP analysis, on 25 November 2015, a Stanley Muthama identified as “Staff CMC Kenya office” participated in a high-level “clarification meeting” with KVDA officials regarding the tender for the Arror dam, one of the decisive meetings for the award of the contract. Among those at the meeting were Paolo Porcelli and Gianni Ponta, two CMC officials the ODPP has charged, among others, for having “conspired to unlawfully have the services of CMC di Ravenna-ITINERA JV procured by KVDA for the development of Arror and Kimwarer multipurpose dams”. There is however no Stanley Muthama being prosecuted by the ODPP in the Kenyan case and no suggestion of any wrongdoing with regard to the contracts.

There, however, seems to be a pattern emerging where CMC di Ravenna—which has been in economic turmoil for four years; in 2018 it owed creditors €1.5 billion euros—receives advance payments for projects it does not thereafter complete. In Nepal, a US$550 million contract for the construction of a hydroelectric plant was terminated in 2019 and the company ordered by an Italian court to return €15 million to a bank in Nepal that had financed the project. CMC had not warned the Nepalese bank of its financial problems and had not even begun the work.

In Kenya, though, the two Italian firms have also claimed the cases were politicised and lacked grounds. In December 2020, they filed a suit at the International Court of Arbitration at the International Chamber of Commerce claiming they were victims of power politics between President Uhuru and his deputy William Ruto. They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations and are demanding US$115 million (KSh13.7 billion) in compensation for the cancellation of the contracts.

A bigger source of discontent is the lack of similar prosecutions over similar projects.

“It seems hardly coincidental that the highest ranking official to be investigated and charged in the criminal proceeding is Kenya’s Treasury CS Mr Henry Rotich, an ally of Mr Ruto,” stated the court document as reported in Business Daily. They claim that allegations of impropriety did not surface until two years after the contracts were signed and that KVDA had admitted that the projects had been politicised with an intention of terminating them.

In notes sent to the Italian Foreign Ministry, the joint venture complains of “delays in the payment of fees [by Kenya] to the Agent Bank with the risk of blocking future disbursements”. The companies blame the failure of the project to get off the ground on the failure by KVDA to deliver the necessary land, a claim repeated by Deputy President Ruto during the presidential debate in July. They also claim that import permit exemptions had not yet been issued.

President Kenyatta has also reportedly tasked AG Paul Kihara and Head of Public Service Joseph Kinyua to negotiate with the joint venture to seek an amicable settlement although it is curious that Kenya would seek to pay off the very companies it accuses of conspiring to defraud it. The country has, however, trodden this route before. In 2014, President Kenyatta ordered payment of Sh1.4 billion to briefcase companies for termination of contracts to supply telecommunication equipment and bandwidth spectrum, part of the Anglo Leasing scam where billions were paid to fictitious companies for security-related contracts.

Further, in May last year, SACE wrote to the AG, the Treasury and the Ministry of Foreign Affairs saying that Kenya could get a partial refund of its insurance premium but only if it committed to paying off the banks on whose behalf the country had taken out the policy. And the letter included a not-so-subtle hint that Kenya’s relationship with Italy was on the line.

They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations.

In brief, it seems clear that there were serious irregularities during the tendering and contracting for the two dams. KVDA tendered the projects under the PPA for a concessional arrangement but awarded a commercial contract under the Public Procurement and Disposal Act to a legally different entity from that which had won the tender without beginning the process afresh. Further, the arrangements to transfer money directly from commercial banks to the contractor seem clearly illegal and the shift from a concessional arrangement to a commercial one probably means Kenyans ended up paying more—including for unnecessary insurance. However, no money appears to have been paid out directly from the Exchequer, although the fees, commissions and advance payments have accrued a debt of up to Sh23.5 billion (at current exchange rates), less than a third of which may be covered by bank/insurance guarantees. Assuming the debt register is mistaken when it lists the entire loan amount, and that the guarantees by Standard Chartered Bank and Heritage Insurance are eventually honoured, Kenyans would still be, when we eventually get round to paying it, out of pocket by around Sh13.5 billion, the sum of the insurance premium (part of which we may get back), the various fees and commissions, and the exchange rate costs. As noted, no one has been accused of actually pocketing bribes. It also does not seem like either Kenya or the banks are pursuing a refund of the money paid to the joint venture in the Italian courts.

The biggest obstacle to a clearer understanding of what is happening with regard to the Arror and Kimwarer dams is the political whirlwind around it. Adding to the confusion is the language employed—terms like scam and kickbacks—suggesting that the officials involved pocketed bribes, whereas they are not actually accused of any of that. Further, journalists have tended to report the story much like the proverbial blind men of Hindustan—each accurately describing a part of the elephant’s anatomy, but not able to grasp the entire animal., It is to be expected that, even after the general election, the controversy surrounding the Arror and Kimwarer dams will continue to generate more political heat while shedding very little light.

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Election 2022: Will the Incoming Leaders Deliver the Promises of Devolution to the People of North-Eastern Kenya?

The leadership is simply not investing in priority areas. The livestock sector, the main source of livelihood and the economic mainstay of the region remains highly underinvested.

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Election 2022: Will the Incoming Leaders Deliver the Promises of Devolution to the People of North-Eastern Kenya?
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Kenyans will go to the polls on 9 August to elect their representatives at the national and county levels. The upcoming elections are the third in Kenya under the 2010 constitution that introduced devolution. Instituted in 2013, devolution sought to bring government closer to the people by devolving political and economic resources to Kenya’s 47 county governments, to better address the local needs of Kenyans. 

Just like the rest of Kenya, the residents of the three north-eastern counties of Garissa, Wajir, and Mandera where I was born and brought up, will once again go to the polls to elect their representatives: governors, members of county assembly, women representatives, members of the national assembly, and senators. Those who will be elected will be in charge of managing devolved resources at the county level for the next five years.

In the last decade, devolution could potentially have transformed the lives of the people of north-eastern Kenya but, unfortunately, this has not happened, despite the accrual of substantial funds and political power; the billions of Kenya shillings that have gone into the region have not brought improvements. On the contrary, some sectors such as healthcare and water service provision, have seen a decline or remained the same despite billions of Kenya shillings being pumped into these sectors in the last 10 years. Northeastern Kenya remains one of the most underdeveloped regions in Kenya, lagging behind the rest of Kenya in almost all development indicators, and the people are among the poorest in the country. The majority lack access to basic services and infrastructure such as water and healthcare, good roads and electricity.

The lack of progress in the last ten years is largely attributed to poor governance and the massive theft and misappropriation of public resources by elected leaders, the region’s elites and public officials. All indications are that massive graft, corruption, and misallocation of political and economic resources have stunt the region’s ability to take advantage of devolution and catch up with the rest of Kenya. Resources meant for the population are being misappropriated and the leadership has nothing to show for the ten years after devolution existence; blatant theft and embezzlement of public funds and misgovernance have been its defining characteristic in the last ten years.

This article is a review of devolution in north-eastern Kenya ten years after its inception. It focuses on the three north-eastern counties of Garissa, Wajir and Mandera and is a reflection of the writer’s assessment of devolution in north-eastern Kenya over the last ten years. The situation described above is similar elsewhere in the larger northern Kenya in the counties of Marsabit, Isiolo, Tana River, Samburu, Turkana, and West Pokot, but this piece focuses exclusively on the three north-eastern counties.

The lack of progress in the last ten years is largely attributed to poor governance and the massive theft and misappropriation of public resources by elected leaders, the region’s elites and public officials

Disclaimer: By highlighting the failures of devolution and how it has not delivered for the people of north-eastern Kenya, the writer is by no means advocating for the previous Nairobi-based centralised governance system where resources were shared only by a few at the centre (1963-2013), a system that had neglected and marginalized the region for far too long, denying it investments, the cause of the current predicament the region faces today.

The current failure of devolution in northern Kenya is partly tied to the failure at the centre; the ills of the centre have been replicated at the periphery. Under the Jubilee government, the national government has since 2013 experienced astronomical levels of corruption and theft of public funds affecting public sector institutions than any other time in Kenya’s history. National state oversight institutions mandated to fight corruption at both levels of government have been unable or unwilling to effectively carry out their oversight duties. Also, of importance to note is that, the widespread allegations of corruption and misappropriation of public funds are not unique to the counties of north-eastern Kenya but are also reported across most of the country’s 47 counties and this has greatly demoralized Kenyans.

Blatant theft of public resources

In north-eastern, county officials and leadership, including governors, executives and other public officials are stealing from the people. Over the years, the office of the Auditor General has exposed massive misappropriation of resources and irregular procurement rules. General public perception in the region is that the leaders are not serving the people’s interests, but are only enriching themselves with the resources they have been entrusted with, with impunity and zero accountability. As a consequence, the electorates have given up and resigned themselves to their fate, leaving it to God to will punish the thieving elites in the hereafter.

Over the last decade, and during the tenure of the last two county administrations, the elected governors have turned the north-eastern counties into family “fiefdoms” and “small monarchies” similar to Middle East monarchies where those who benefit most are the immediate family members, close friends and cronies. Nepotism and favouritism have become widespread, and governors and their appointed county executives use relatives, including extended family members and close friends as proxies to siphon off public resources meant to benefit citizens. Across the three counties, the governors and other senior county public officials have put close family members and relatives on the county payroll as ghost workers who have no job descriptions, actual portfolios or offices. Individuals who have previously never worked in any major capacity and have little experience are given high paying public jobs only because they belong to the right families or know the right people.

Governors, county executives and elected local leaders also use proxies and companies owned by friends and close family members to obtain lucrative multimillion contracts. For the five years the governor and the county executives are in charge, they and their proxies remain inaccessible and out of reach of the ordinary mwananchi.

A small portion of the loot is laundered in the region.  Much of the looted money is laundered in major cities such as Nairobi and Mombasa, where the county leadership uses the ill-gotten wealth to invest in residential properties and shopping malls. County governors and their executives have bought houses, apartments and palatial homes worth hundreds of thousands of US dollars in Nairobi’s upscale residential areas such as Kilimani, Kileleshwa, Lavington, Parklands, Karen, Spring Valley and others.  One favourite estate among senior Somali county officials from northeastern is the South C neighbourhood, where a high number of county executives live and operate from, instead of their respective county headquarters. They either pay high monthly rents or have bought expensive apartments and houses. The Eastleigh neighbourhood the looted public money is “reinvested” in businesses in the form of shopping malls. Some use the looted public resources to marry second and third wives or to purchase vehicles worth many times their annual salaries as county officials, while others have used the plundered money to go to Mecca on pilgrimage and “contribute” to religious causes such as building mosques and Islamic madarasa schools. Governors, specifically, have moved some of their ill-gotten wealth abroad, especially to the Middle East and Turkey. Other favourite destinations include Dubai and Turkey where the governors have bought palatial holiday homes and apartments in cities such as Ankara, Dubai, Abu Dhabi, and elsewhere.

All north-eastern governors have offices in Nairobi where they spend a ood part of their time instead of operating from their county headquarters. Governors and county executive members also hold county executive meetings in Nairobi instead of the county headquarters. You will also find that many county officials such as executive members, chief officers and members of county assemblies are ever present in Nairobi, operating from the city instead of operating from their respective county headquarters.

The current failure of devolution in northern Kenya is partly tied to the failure at the centre; the ills of the centre have been replicated at the periphery. Under the Jubilee government, the national government has since 2013 experienced astronomical levels of corruption and theft of public funds affecting public sector institutions than any other time in Kenya’s history.

Why is this the case? How are elites able to steal with impunity? The stealing that happens in the counties mostly happens through the flouting of public procurement rules, inflating the price of projects and at times even budgeting for non-existent projects. Kenya has been plagued by corruption since independence, but corruption and blatant theft of public resources has become commonplace since 2013 when the Jubilee Party led by Uhuru Kenyatta came to power. Under the Jubilee government, corruption cases involving the blatant theft of billions of shillings of taxpayers’ money have become the norm since 2013. Pervasive institutional corruption at the centre has spread to the periphery through devolution and, therefore, political and economic devolution to Kenya’s 47 counties has only enabled the creation of another cadre of corrupt elites with the ability, through elections, to capture institutions and resources. What used to happen at the centre has been replicated at the county levels through devolution; county leaders plunder everything from nationally devolved county funds to donor contributions. They take for themselves and their proxies the most lucrative contracts. Development projects in the region have become contractor- and vendor-driven with the governors, deputy governors, county executives and elected members of county assemblies being the biggest beneficiaries.

The looting of public resources has largely been successful and continues unbated due to weak government oversight institutions such as the anti-corruption agency, the Ethics and Anti-Corruption Commission (EACC), the Department of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (DPP). The lack of effective anti-corruption mechanisms and political will at the national level to fight graft plays a major role in fuelling graft and theft at all levels of government. Inessen ce, there is little to no risk of being held accountable and this explains why the leaders are unafraid. Not a single culprit who has stolen from the people in the last ten years is behind bars because of what he or she has done, despite large-scale corruption and mismanagement.

Poor service delivery 

The mismanagement, graft and elite capture of county resources has resulted in poor service delivery to the people of north-eastern counties.  A major challenge is that the leadership is unable to prioritize development that would transform and improve service delivery. Despite the billions in investment – cumulatively, the three counties received close to Shs100 billion in devolved funds over the last ten years – there is nothing much to show for it. Also, the leadership is simply unwilling to prioritize and invest in areas of public need where the impact would be greatest. Instead, funds are spent as they come in poorly thought-out contractor-driven “development” projects. As a consequence, crucial sectors such as livestock and water, healthcare, and education provision, where the needs of the population lie, have been ignored and, in some instances, the quality of services has deteriorated compared to the period before devolution.

In the counties, the easiest way to steal public funds is through infrastructure projects that are of no benefit to people, such as repairing a rural road that does not actually require refurbishment. Millions in resources have been poured into the construction of structures that now lie idle. For instance, it is quite common to build a structure in a certain village and label it “a health centre” or “a market” even as it remains unoccupied and abandoned. No health workers, equipment and drugs are deployed to the structure to make it an operational health facility. Office blocks are also be built which then remain unoccupied.

To symbolize misplaced priorities, the leadership has invested millions in ultra-modern office blocks, and residences for the leadership, instead of fighting poverty and investing in critical infrastructure such as water, healthcare and fodder for livestock at this time of severe drought.

The leadership is simply not investing in priority areas. The livestock sector, the main source of livelihood and the economic mainstay of the region remains highly underinvested. The recent response to the drought emergency is a testament to the ineffectiveness of the county leadership in responding to emergencies and assisting people at a time of need. Last year alone, millions of head of livestock died after water pans and grasslands dried up following a severe drought season. The drought is even now ongoing. Had the county and national governments intervened and provided needed water and fodder for the livestock, the deaths of millions of head of livestock, which are people’s livelihoods, could have been prevented. The pastoralists had no one to turn to as the response from both counties and the national government was lacklustre; the pastoralists had to fend for themselves, buying water for their livestock from private water vendors at an exorbitant cost. On average, one water truck cost between KSh10,000 and Sh50,000 depending on the distance from water sources, which in many cases are at the county headquarters. I witnessed residents of Wajir County who live far from the county headquarters having to wait for “their turn” to receive water supplied by trucks contracted by the county government. In one village less than 50 kilometres from Wajir town, residents had to wait more than 14 days for their turn to receive water. And when the one truck arrived at the village of 300-plus residents, it could only provide water for the people but not their livestock. In many of the less accessible villages  in Wajir, help from the county government never arrived.

To symbolize misplaced priorities, the leadership has invested millions in ultra-modern office blocks, and residences for the leadership, instead of fighting poverty and investing in critical infrastructure such as water, healthcare and fodder for livestock at this time of severe drought.

North-eastern is most water-stressed region in Kenya, the number one hurdle that the people of the north-eastern face. Obtaining drinking water for both people and their livestock is a major challenge. Unfortunately, the region’s leadership has not been willing to find a sustainable solution to the perennial water shortage, the most common response to “alleviate” the water problem in the last decade being the construction of expensive water pans and boreholes. The big ugly holes dotting the landscape serve as temporary rain water reservoirs, but do nothing to solve the perennial water problem in the region. The leadership prefers them because they are easy to implement as they do not involve much technical skill and are normally constructed at inflated cost. Water pans are not a sustainable long-term solution as they dry up almost immediately at the onset of the dry season.

Ten years after devolution, and after receiving billions of shillings annually including in allocations for the water sector, residents of Mandera County headquarters do not have access to running water in their homesteads.  The Mandera leadership has been unable to tap the waters of River Daawa, which flows through the county headquarters for most of the year. The county residents rely largely on commercial water vendors.

The World Bank-funded Water and Sanitation Project meant to connect households to piped water, provide community water points, and improve sanitation services in Wajir Town, the Wajir County headquarters, is failing largely because of lack of county leadership, and elite competition for contracts related to the project.

Half of the homesteads in Garissa Town do not have access to running water. Those that do have access to water benefited from a water project that was undertaken in the town during President Mwai Kibaki’s 2003-2007 administration. This means that from 2013 to 2022 the Garissa County leadership has not done much to expand water provision. This is despite River Tana flowing right through Garissa Town to drain into the Indian Ocean.

The health sector is an area that has seen a deterioration in services during devolution. Hospitals and health centres have been incapacitated from lack of staff, lack of adequate medical equipment and essential supplies such as drugs and laboratory reagents.

The three main referral hospitals in the region are run down. Public health facilities have collapsed to the extent that they do not offer basic services such as CT Scans; citizens are forced to seek such services in private facilities at exorbitant prices. When medical equipment such as MRI machines and CT Scans break down, the authorities take months to have them fixed. As an example, when the MRI machine at Garissa’s main referral hospital broke down, it took the administration months to have it repaired. On a visit to Wajir Referral Hospital in Wajir town, I found that the hospital did not have staplers to pin papers together, staff in the maternity ward were using bandages to tie papers together, a situation that persisted throughout the period of one week that I visited a sick relative in the hospital’s maternity wing. Upon enquiry, I was informed by the staff that this had been the situation for weeks. They also told me that it was common for them to run out of other basic essentials such as cotton wool.

A call to the people of north-eastern counties

This is a wakeup call and a public appeal to the people of north-eastern Kenya to elect people of integrity in the upcoming election on 9 August. It is only the electorate who can stand up to and liberate their counties and resources from the thieving “leaders” who have captured and appropriated the county resources. The electorates should give priority to electing leaders of integrity who have a good track record. It is time to reverse the misgovernance and misappropriation of public resources of the last ten years.

Statutory government oversight institutions such as the EACC, DCI and the DPP have spectacularly failed to rescue the counties from the thieving elites. Despite the wanton theft and loss of billions, the corrupt are walking free and are not held accountability. On the contrary, they flaunt their ill-acquired wealth in front of the poor citizenry they have stolen from.

No single public official has been apprehended and convicted for stealing and misappropriating public resources in the last ten years. However, we should not lose hope. Hopefully, the next national government that will be elected in Nairobi in August will prioritize the fight against corruption and theft of public resources, and reform and empower anti-corruption agencies.

In the meantime, the citizens of north-eastern should not give up and resign themselves to their fate, but rather, use the power of the ballot to vote in good leaders who will serve them.

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Kenya’s Internally Displaced: An Enduring Colonial Legacy

Whoever between Raila Odinga and William Ruto takes the presidency of this country after 9/8 must find the moral courage to finally break with a colonial legacy that has relegated thousands of our co-citizens to a life of unending misery and despair.

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Kenya’s Internally Displaced: An Enduring Colonial Legacy
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The long-awaited rains are finally here and yesterday’s dry, cracked black cotton soil that we here call kagenyo has turned into a gluey, slippery mess that sticks three inches thick to the soles of your shoes. I am struggling to keep my sneakers on as I make my way up the path to Wanjĩra’s* homestead.

Wanjĩra greets me at her gate and stands there, not showing any signs of inviting me in. Her handshake is firm and her manner brisk, a big woman in a body fed mainly on stodge. Clearly, Wanjĩra is waiting for me to get to the point of my visit so, in the manner of country people, and to break the ice, I begin by observing that, thank God, the rains are finally here. Wanjĩra turns her head, points her chin at the field behind her wooden cottage and says that she’s wondering whether she should bother to start over again. She had planted the early-maturing Pioneer variety of maize seed in anticipation of the long rains but nothing had come of that and the shoots had died in the ground, beaten down by the unyielding sun. Will the rains be sufficient this time round? There follows an awkward silence; where does one begin when one is intruding on the already difficult lives of those displaced by politically instigated violence?

I had learnt only recently that there were internally displaced people living not five kilometres down the road from me, further inland, and I determined to find out their circumstances, concerned that there could be desperate cases—like those I had found at Shalom—living within my community. That is how I ended up at Wanjĩra’s gate, led there by her orphaned niece, a twenty-something young woman with an infant strapped to her back.

Wanjĩra was born and raised in Londiani, Kericho County. Like many Kikuyus of his generation, Mũreithi, Wanjĩra’s father, had been uprooted from his home in Mũrang’a and moved to a colonial village under the colonial government’s villagisation programme that, by the end of 1955, had “relocated some one million Kikuyu into 804 fortified, policed and concentrated villages from their scattered homesteads that were in turn demolished”. From here, having been fingerprinted and with a mbugi around his neck, “no longer a shepherd but one of the flock”,  Mũreithi was removed from the kiugũ, the cattle pen, as Wanjĩra sardonically described the village, shoved onto the back of a lorry and transported to Londiani on the other side of the country, never again to return to Mũrang’a. Mũreithi’s final destination was a settler’s farm where he earned a monthly wage of two shillings and fifty cents as a farm labourer. He married and brought up Wanjĩra and her siblings on that pittance but was never able to find the wherewithal to buy land of his own when independence came. A son had done well enough to purchase a quarter-acre in Karamton, Nyandarua County, and this is where Mũreithi was buried when he died.

Born in 1958 and now with a family of her own, Wanjĩra worked in the Londiani Forest planting trees in exchange for permission to grow crops in the clearings, while also slowly building up a herd of 38 cattle that she would graze in the forest. But the violence that broke out following the 2007 general election would prove to be the final straw for Wanjĩra and her family; she and her husband gathered up their eight children and fled Londiani. When the couple married, Wanjĩra’s father-in-law had made room on his one-acre piece of land for the couple to establish a home and raise a family. But beginning in early 1992, the family’s hold on life became increasingly tenuous as the clashes that broke out in late 1991 in Tinderet in Nandi District spread like wild fire to Londiani and other parts of the Rift Valley. The family hunkered down and survived the onslaught but found their lives once again threatened by the politically motivated ethnic violence that followed in the wake of the December 1997 elections. They survived that spate of violence too and carried on with their lives.

But a decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death. Living under constant threat of violence took its toll on Wanjĩra’s parents-in-law and both died within months of each other. Hardly were they buried on their one acre but Wanjĩra and her Kikuyu neighbours were surrounded by hostile youths blowing cow horns and wielding bows and arrows. The herd she had so painstakingly built over time was driven away before her very eyes and her home was razed to the ground. Wanjĩra and her family fled without a backward glance, her husband with three arrow wounds in his side.

A decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death.

Unlike the many displaced who ended up at the Nakuru Show Ground where disease was rife and the hardship beyond endurance, Wanjĩra and her husband took their family to Gatundu North. Someone had told them that they could live and grow their food inside Kieni Forest in exchange for providing labour to plant trees. From 2008 to 2013, the family joined those who had moved into the forest following the 1992 clashes, living under plastic sheeting in a river valley inside the forest, co-existing with marauding elephants as best they could until the government sent in the General Service Unit to evict them. Following a stand-off, the 805 families squatting in the forest were eventually paid 400,000 shillings each by the government in lieu of land, and it is this payment that enabled Wanjĩra and her husband, together with four other families that had also taken refuge in Kieni Forest, to buy land in Ndaragwa in Nyandarua County.

Like much of the land in this part of Nyandarua County that borders Laikipia East, the land on which Wanjĩra and her family finally settled had been occupied by a British settler in colonial times. The 3,400-acre ranch was eventually sold in 1964 to a group of Kenyans who ran it commercially for almost two decades, growing wheat and keeping livestock, before they subdivided the land among themselves. Over time, some of the owners have further subdivided their farms, bequeathing the parcels to their offspring or selling them to those like Wanjĩra’s family looking for land on which to (re)settle.

Just a kilometre or so down the road from Wanjĩra’s homestead, one such landowner sold some 30 acres of his land to the government to be subdivided amongst victims of the 2007/2008 post-election violence, each family receiving two and a quarter acres. Waithiageni does not know exactly how old she is. Ndiathomire, she tells me, I did not go to school. But she thinks she was about eight years old when her father moved the family from Mũrang’a to what was then Kisumu District. Waithiageni’s father had left his family behind and moved to Nakuru to work on a settler’s farm. Come independence, he applied to be resettled on the Koru Settlement Scheme and moved his family there.

Waithiageni now lives by herself in a corrugated iron shack by the side of a dusty track, having been chased off her father’s 20 acres at Koru and losing her only son in the 2007/2008 post-election chaos. To survive, the now elderly Waithiageni depends on casual work, when it can be found, and on the kindness of her neighbour Nyagũthiĩ, a mother of two grown-up daughters who escaped the violence at Londiani in late 2007.

A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves. The closest source of water is a trek downhill to the Pesi River, the nearest school miles away and the health centre further beyond. No matatu comes this way and a boda boda ride to the trading centre along the Nyeri-Nyahururu road will set you back 300 shillings, a day’s wage in these parts. The 25,000 shillings they had each received to build a home and the 10,000 shillings start-up capital did not stretch far enough and eight of the twelve families left within the year to find a more hopeful livelihood elsewhere.

Kenya is a state party to the Great Lakes Pact, one of the few international agreements that address displacement in a comprehensive and holistic manner. Kenya domesticated the Pact’s Protocol on the Protection and Assistance to Internally Displaced Persons through an act of parliament on 31 December 2012. It establishes a legal framework for the protection of IDPs through the incorporation of the United Nations Guiding Principles on Internal Displacement into domestic law.

A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves.

Specifically, Section 9 of the IDP Act foresees that “The Government shall create the conditions for and provide internally displaced persons with a durable and sustainable solution in safety and dignity. . .” and that, among others, the following conditions for durable solutions shall apply: long-term safety and security; enjoyment of an adequate standard of living without discrimination; access to employment and livelihoods; and access to effective mechanisms that restore housing, land and property.

In November 2013, Nelson Ributhi Gaichuhie, then Chairperson of the Departmental Committee on Administration and National Security, made a statement in parliament to the effect that the government had fully complied with Section 9 (3) of the IDP Act, saying that those affected had been provided with relief food and decent housing. However, to put it in Kenyan parlance, things on the ground are different. Eight years after they were dumped by the government in their new “home”, Wathiageni and her neighbours still live in what can only be described as hovels lacking even the most basic of amenities. Eight long years on, the government has yet to undertake the necessary surveying to allow for subdivision of the land into individual parcels and so, unable to work their land, and without title, they live huddled together on a bare patch by the roadside, walking miles each day in search of casual labour on other people’s farms.

As for Wanjĩra’s family, the 400,000 shillings that it finally received in compensation was just about enough money to buy two acres of land and put up a small wooden structure to house the family of ten. After years of ill health compounded by the hellish living conditions in Kieni Forest, Wanjĩra’s husband died in 2016 and was buried on his land. Her first-born son followed soon after. Her seven surviving children are now grown and two have established their homes on the family’s land. Wanjĩra says that, having lost everything in Londiani, rebuilding what the family lost without resources seems like an insurmountable challenge. On a neighbouring farm is a neatly tended field with onions planted in zai pits. Wanjĩra tells me the land is leased by a farmer with the means to bring water up from the Pesi River about a kilometre away. Wanjĩra hasn’t those means; she must wait for the rains.

The second of the Great Lakes Pact’s ten protocols that is particularly relevant to the internally displaced is the Protocol on the Property Rights of Returning Persons that requires member states to provide legal protection for the property of the displaced and establish legal principles on the basis of which they are able to recover their property. But while the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government appears to have thrown in the towel even before it has started. The following statement from Gaichuhie to parliament makes clear that the government has no plans to ensure that those who lost land and property recover them or are adequately compensated:

“Some of them have title deeds. Very few of them have not been able to go back to where they were living. But I can tell you that most of the IDPs were business people in major towns. That is why the Government has decided that rather than wait to buy land and give it to somebody who had a big supermarket in town, it would give such individuals Kshs400,000 to start businesses. So, not all the IDPs had land. Some of them were businessmen. Some had land for which they did not have title deeds”

The IDP Act became operational in 2013 but the constitution of the National Consultative Co-ordination Committee (NCCC), the body tasked with implementing the Act, was only gazetted in October 2014 and the Chair of the committee appointed in November 2014. Patrick Githinji, who had been appointed to the committee as one of the two IDP representatives foreseen in Section 12 (3)(i) of the Act, and with whom I spoke at length on the 3rd of August 2022, explains that the committee commenced its work in April 2015, and its first task was to vet the internally displaced still living in 65 camps across the country with a view to compensating them and shutting down the camps. This task was accomplished by mid-2016 and—with the exception of Muhu Camp in Nyandarua County and Donga Farm in Subukia in Nakuru County, because the land bought by the government for the resettlement of these IDPs is in dispute—all the camps were closed and 11,000 households were paid 200,000 shillings each, the government having argued that it could no longer afford the 400,000 shillings it had paid to Wanjĩra’s family and others in 2014.

While the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government seems to have thrown in the towel even before it has started.

The next task of the committee was to ensure the compensation of the so-called Integrated IDPs (that is, those living dispersed among communities, whether with relatives or friends or in rented accommodation in urban or peri-urban areas) who numbered 193,000 households according to government records. They were offered a paltry 10,000 shillings in compensation which they turned down. Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households. Of these, 30,000 households were never paid, the government having recalled the funds from the disbursing banks. As it turns out, Wanjĩra and Waithiageni are the lucky ones.

According to an undated confidential report of the Refugee Consortium of Kenya available online, the NCCC is no longer operational. This is confirmed by Githinji who says that although the term of the first NCCC was to end in December 2017, by September of that year the NCCC secretariat had been shut down and seconded staff recalled to their respective ministries.

Together with other members of the National IDPs Network-Kenya, Githinji eventually petitioned the Senate in October 2020, alleging that there were attempts to repeal the IDP Act. In their petition, the group also claimed that land bought by the government to resettle IDPs had been illegally allocated to non-IDPs or grabbed by individuals, and that many IDPs continue to languish in makeshift tents. They also accused the government of refusing to release the funds due to Integrated IDPs because of identification errors introduced into the records by the government’s own officials, and lamented that there was no government authority at whose door they could lay these claims.

Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households.

Upon receipt of the petition, the Senate invited the group to appear before the Senate Committee on Lands, Environment and Natural Resources chaired by Sen. Mwangi Githiomi in November 2020, where, following a two-hour meeting, they were advised to table a fresh petition using the Senate’s guidelines. This they did and it was agreed that the group would again meet with the Senate Committee after the Christmas recess, in February 2021. They have no news since.

By the time the IDP Act was enacted in December 2012, another 112,000 people had joined the ranks of the internally displaced, followed by a further 55,000 in 2013, over 220,000 in 2014 and over 216,000 by mid-2015 (even as the NCCC was finally sitting down to its task), most of them victims of inter-communal violence. Meanwhile, as recently as October 2021, members of the National IDPs Network-Kenya were appealing to President Uhuru Kenyatta to finalise the resettlement and compensation process for those IDPs that were forced to flee their homes in 2007/2008 before the end of his term. Both President Kenyatta and his Deputy William Ruto had made numerous promises on the campaign trail in the run-up to the March 2013 general election—while facing charges of crimes against humanity at the International Criminal Court in the Hague—that all the displaced would be resettled within the first 100 days of their administration if they were elected.

In the face of government inaction, some of the Integrated IDPs who were denied compensation in 2017 have converged on Kianjogu, in Laikipia County, occupying land that was purchased by the government for IDP resettlement but never subdivided. They arrived in March/April of this year from Nyeri, Nairobi, Uasin Gishu and other counties across the country and are living in Kianjogu much as they did when they were first forced to flee their homes, massed together in unsanitary conditions and refusing to yield to threats from the government.

It would appear that the IDP Act was cynically enacted for the sole purpose of creating a vehicle—the NCCC—to facilitate the closure of the tens of camps strewn across the country and disband their residents; out of sight out of mind. If that is the case, then the government has circumvented its duty not only to address the plight of generations of IDPs, but to also provide assistance and protection to the newly displaced, and to put in place structures and measures to prevent further internal displacement. The outgoing government of Uhuru Kenyatta and his deputy William Ruto has instead chosen to perpetuate the generational suffering of Kenyans who were first forcibly evicted or were caused to leave their homes by the brutal and inhumane rule of the British colonial government.

Over the century since the Maasai were forcibly removed from their lands in the central Rift Valley in 1904/1905 to make way for white settlers, successive regimes have overseen the destitution of hundreds of thousands of Kenyan families. In the post-independence era, many have been forced to leave their homes by politically instigated violence where community is set against community, or by drought, famine, man-made disasters such as the Solai Dam tragedy and development-induced displacement. These hundreds of thousands of our co-citizens exist in the shadow of our lives and many lie in unmarked graves awaiting increasingly illusive justice.

The new government must, therefore, and with great urgency, operationalize the IDP Act and revive and properly reconstitute the NCCC so that it can continue with the arduous task of ensuring that durable and sustainable solutions are found for all the internally displaced. In finally beginning to properly address the plight of the internally displaced, the incoming government will not be without resources: in particular, a policy paper drawn up by the Internal Displacement Monitoring Centre dissects the IDP Act and makes concrete recommendations that, if applied, will equip the nation with an internal displacement response system that is fully operational.

It is unacceptable that over the almost sixty years of Kenya’s independence, successive leaders have built on the colonial legacy of dispossession and destitution of Kenyans. Whoever takes the helm after the 9 August general election must find the moral courage to put an end to the suffering of these Kenyans who, as much as anyone else in this country, have a right to expect a life lived in safety and in dignity.

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