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SEE NO EVIL: How international election observers lost credibility during the August elections

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The peeping game

The August 8, 2017 Kenyan presidential election, which was invalidated and nullified by the Supreme Court of Kenya on September 1, 2017, not only led to a flurry of hastily cobbled up contrite statements by international observer missions and some Western-based media houses, but also opened up a Pandora’s box that critically questioned the role of international observer missions.

The election, which pitted for the second-time President Uhuru Muigai Kenyatta against Raila Amolo Odinga, was declared “null and void” by Chief Justice David Maraga on account of electronic and technological malpractices. A fresh election is slated for October 17, 2017.

Just two days after the voting had ended, the international observer missions that had come to monitor the elections had already written their preliminary reports certifying the general election as largely free, fair and peaceful. About 400 international observers had been deployed to watch the polls.

The missions included, among others, the African Union (AU), led by former South African President Thabo Mbeki, the Carter Center, whose chief election observer was John Kerry, the former US secretary of state who lost the 2004 US presidential election to George W. Bush, and the European Commission (EU), under the leadership of the Dutch politician Marietje Schaake.

While the EU observer mission, in its preliminary report, did cite problems to do with the lack of preparedness within the electoral process, the lack of applicable campaign finance legislation and unreliable transmission, it was only after the Supreme Court ruling that the EU and other missions realised that they had completely missed the mark – they were forced to concede that there were massive electoral malpractices in the electronic transmission of the results.

Kerry, who had certified the elections as “free, fair and credible” despite “little aberrations here and there”, even felt the need to expiate his “sins of omission” in a New York Times op-ed article on September 14, 2017. The long and short of his opinion was to shift the blame to the media – local and international – by subtly accusing them of misquoting what the international observers had meant by “free, fair and credible elections.”

Schaake, the EU’s chief election observer was later quoted saying: “At times, expectations of us observers are greater than our mandate allows us to do. Kenya’s electoral process relied heavily on technology and observers did not have access to the backend of the system.”

Caught completely unaware by the Supreme Court judgement, Schaake beat a hasty retreat by justifying and mitigating the ineptitude of the international observers. So did the Carter Center, which said that it would reevaluate its observer mission to Kenya and find out from Kerry exactly what had transpired within the team that he had led.

Characteristically, the AU mission has kept a studious silence: It has not said anything about the nullification of the presidential election, nor has it explained the rationale behind the mission’s certification of the election as successful.

It used to be said that the precursor to the AU, the Organisation of African Unity (OAU), was a presidents’ club, where one of the unwritten rules was never to interfere with the “internal affairs” of a brother president’s country. It seems to me that that rule has never been done away with, even after the OAU was baptised the AU, insofar as election observation by the AU is concerned.

Removing “egg on the face”

After more soul-searching and hoping to erase “egg on the face”, on September 14, 2017 Schaake seemingly talked tough and called for “thorough investigations of alleged electoral offences in order to promote representations where warranted, including of IEBC [Independent Electoral and Boundaries Commission] staff. There have to date not been any investigations against senior public officers who have reportedly breached the law.”

Harping on the theme of accountability and thorough investigations, Schaake said that “fast, comprehensive and effective investigations are needed so that there is individual accountability for actions taken.” Seemingly striking an impartial balance, she mildly criticised both the Jubilee and Nasa coalitions for their “apparent insubordination” of the IEBC and the Judiciary after the Supreme Court ruling. “Since the elections, Nasa and Jubilee have at times been undermining the IEBC and the Judiciary respectively.”

After the Supreme Court judgement, the New York Times was forced to reconsider its earlier position. An editorial published on September 3, 2017 stated: “The ruling was a rebuke to international monitors and diplomats – and this page – who were too quick to dismiss charges of irregularities, largely out of relief that the August 8 voting had been mainly peaceful and in the hope that disappointment with the results would not lead to the sort of violence that had erupted after the disputed 2007 election, in which hundreds of people were killed.”

Kerry, who had certified the elections as “free, fair and credible” despite “little aberrations here and there”, even felt the need to expiate his “sins of omission” in a New York Times op-ed article on September 14, 2017. The long and short of his opinion was to shift the blame to the media – local and international – by subtly accusing them of misquoting what the international observers had meant by “free, fair and credible elections.”

“Multiple media reports suggested inaccurately that we and other international observers had declared the election free and fair,” wrote Kerry. “Although our observers had noted isolated instances of procedural irregularities in voting and counting, these did not appear to affect the integrity of those processes which had functioned smoothly.”

Kerry, like every politician, had no qualms about speaking from both sides of his mouth. He shifted blame and made sure he was not “caught with his pants down”. So he unabashedly wrote, “The court ruling didn’t contradict the reports of the Carter Center, whose team we led, or those of other observer missions, including the European Union and the African Union, whose findings were broadly similar.”

Not to be left out during confession time was the United States embassy in Nairobi. US ambassador Robert F. Godec and the heads of other diplomatic missions issued a statement on September 7, 2017 clarifying their unconsidered judgement on the August 8, 2017 elections. “The court’s decision was a strong call to everyone, including the international community, to reflect on how to make each election better than the last,” said Godec. “As partners, we are doing so and we are ready to assist again.” Sounding somewhat apologetic, Godec, on behalf of other Western countries’ diplomats accredited to Nairobi, hoped to justify their hasty verdict on the election by saying, “Some of our missions have been the subject of fake stories and false attacks in this election period.”

Godec made the point that “our electoral assistance was requested by the government of Kenya and conformed at all times with the Kenyan law.” The US ambassador issued the statement on behalf of 12 diplomatic missions: Australia, Canada, Denmark, Finland, France, Germany, Norway, Sweden, Switzerland, the Netherlands, the United Kingdom, and the United States.

The New York Times, one of the most influential newspapers in the world, equally reconsidered its earlier endorsement of Uhuru Kenyatta as the winner of the election after the Supreme Court ordered a fresh presidential poll. In an editorial praising the 8 August election, the New York Times had stated: “Raila Odinga, a perennial loser, began crying foul long before the election commission declared that President Uhuru Kenyatta was elected with 54 percent of the vote to Mr. Odinga’s 45. International monitors from the African Union, the United States and Europe said they witnessed no foul play; former United States secretary of state John Kerry, co-leader of the Carter Center’s mission of election observers, praised Kenya’s election commission for its transparency and diligence.”

After the Supreme Court judgement, the New York Times was forced to reconsider its earlier position. An editorial published on September 3, 2017 stated: “The ruling was a rebuke to international monitors and diplomats – and this page – who were too quick to dismiss charges of irregularities, largely out of relief that the August 8 voting had been mainly peaceful and in the hope that disappointment with the results would not lead to the sort of violence that had erupted after the disputed 2007 election, in which hundreds of people were killed.”

Journalist Sarah Jerving, writing on September 8, 2017 for Devex.Com argued, “The perceived mismatch between the court ruling and international observers’ initial observations has sparked a debate about how such missions operate and what role they play in codifying elections. In Kenya, that discussion is complicated by a history of election violence linked to irregularities.”

The newspaper, realising the folly of its earlier hasty editorial endorsing the electoral process, added, “The fears were real, but the rush to judgment overlooked, among other things, that the supervisor of a new electronic voting system, Christopher Chege Msando, had been murdered and apparently tortured days before the election.”

The Financial Times, like the New York Times, seized the moment to comment on the Supreme Court’s unprecedented judgement, proclaiming the ruling as “the first of its kind in Africa.” Moralising on African dictatorial regimes, the paper declared on September 3, 2017: “The many regimes across the continent who exploit incumbency to perpetuate their rule through patronage, oppression and manipulation of the vote have been put on notice. So too have those international election observers whose formulaic rubber stamping of the results has become increasingly insidious – notably in undermining their own credibility, but also spreading cynicism among the electorate.”

Revisiting the violence that visited Kenya after the bungled election of December 2007, the Financial Times called out the international election observers who seem to be more obsessed with “peace” and “stability” rather than accountability and credibility. “Since 2007, when Kenya went to the brink of civil war in the wake of polls marred by fraud, there has been a tendency among such observers to brush aside all manner of irregularities in the interest of preserving peace.”

Amidst the international election observers “falling over each other” to quickly correct the impression that they had declared the August 8, 2017 elections as credible, one local observer organisation has stood its ground – insisting that the general election was “free and fair”, the Supreme Court’s ruling notwithstanding. The Elections Observation Group (ELOG) has maintained that Uhuru Kenyatta won the election fair and square. On September 4, 2017, Regina Opondo, the chairperson of ELOG’s steering committee (which includes Bishop Alfred Rotich of the Catholic Church) reiterated that Uhuru had won the presidential vote even though Supreme Court had found the process wanting. She said that the observer mission had deployed about 1,700 monitors and more than 5,000 (stationary) observers whose major responsibility was to focus on the results transmission. Her point of departure was that different observer missions had different methodologies which they used to ascertain whether the election had been conducted properly or not.

Journalist Sarah Jerving, writing on September 8, 2017 for Devex.Com, argued, “The perceived mismatch between the court ruling and international observers’ initial observations has sparked a debate about how such missions operate and what role they play in codifying elections. In Kenya, that discussion is complicated by a history of election violence linked to irregularities.” She particularly noted, “Clashes erupted after international observers highlighted irregularities in the 2007 elections, leaving more than 1,300 people dead and 600,000 displaced. Yet, the question now is whether observers have swung too far in the other direction, holding the bar for election too low, examining the wrong components on the side of caution to avoid unrest.”

Jerving poses the question of “whether election monitoring needs a rethink worldwide, particularly as electoral processes digitise, adding that “international observers focused too heavily on the voting process, overlooking critical next steps such as the transmission of the results, which in Kenya’s case was done digitally and with little transparency.”

A short history of election observer missions in Kenya

Election observer missions first became a major feature in Kenyan elections in 1992 after the country returned to multiparty politics in 1991, when former President Daniel arap Moi reluctantly repealed section 2A of the old Lancaster House Constitution. Western countries, led by the United States, spearheaded the multiparty wave in Africa and were particularly keen to witness political change in Kenya.

When Moi called the elections on December 29, 1992, they instantly flew in about 200 international observers These poll watchers were augmented by between 7,000 and 10,000 local monitors who organised themselves under the auspices of the National Election Monitoring Unit (NEMU). NEMU consisted of, among others, the International Federation of Women Lawyers (FIDA-Kenya), Professional Committee for Democratic Change (PCDC), the International Commission of Jurists (ICJ-Kenya), the National Ecumenical Civic Education Programme (NECEP), the National Council of Women of Kenya (NCWK) and the Kenya Human Rights Commission (KHRC).

With the prospect of facing a sustained serious opposition for the first time, President Moi’s Kanu ancien regime provoked ethnic clashes in the vast Rift Valley Province, especially in the North Rift, where many migrant Kikuyus had lived for many years. These clashes, ostensibly instigated by Kalenjin Kanu party mandarins, led to the death of 1,500 Kenyans and the displacement of 300,000 others, many of whom were Kikuyus living in the Uasin Gishu and Trans Nzoia districts.

Nobert Braakhuis, a political scientist way back in 1997 would write that oftentimes election observation is usually confined to elections themselves and perhaps a few days just before elections. In his essay “International Election Observation During the 1997 Kenya Elections” published in Out for the Count: The 1997 General Elections and the Prospects for Democracy in Kenya, and edited by Marcel Rutten, Alamin Mazrui and Francois Grignon, Braakhuis noted that “election observation ignores the broader political context and long-term process of which elections form part.”

The international observers accredited to monitor the 1992 general elections, according to Braakhuis, “came on the eve of the elections and once the election was over flew out the same day.” These international monitors were largely drawn from the Commonwealth, the Washington-based International Republican Institute (IRI), Denmark, Egypt, Germany, Japan and Switzerland.

Out of the 7,000 polling stations, the international observers visited only a few stations, and because they came on the eve of polling day, they could not capture any of the irregularities that obviously biased the election results. NEMU, which was funded by Western donor agencies, including the US Agency for International Development (USAID), the National Democratic Institute (NDI) and the Royal Netherlands Embassy, may have captured many of these irregularities, but did not have the international gravitas to broadcast Moi’s underhand tactics.

The then electoral malpractices included Moi’s regime ordering the police to disrupt opposition rallies and meetings, which made it extremely difficult for opposition politicians to register as candidates. Other malpractices included the use of state instruments of violence, namely, the police, the paramilitary General Service Unit (GSU) and even organised militia, to brutalise opposition figures.

Moi had a whole load of tricks up his sleeve, which ensured that the fledgling opposition was disorganised and scattered. He exclusively “zoned off” certain areas that he claimed were Kanu areas, and the opposition was refused access to these areas. In short, the opposition went to the 1992 general election on a very uneven field.

With the prospect of facing a sustained serious opposition for the first time, President Moi’s Kanu ancien regime provoked ethnic clashes in the vast Rift Valley Province, especially in the North Rift, where many migrant Kikuyus had lived for many years. These clashes, ostensibly instigated by Kalenjin Kanu party mandarins, led to the death of 1,500 Kenyans and the displacement of 300,000 others, many of whom were Kikuyus living in the Uasin Gishu and Trans Nzoia districts.

Apart from these “tribal clashes”, Moi’s government also harassed the media so much that news organisations were afraid of reporting Kanu’s political excesses. In the lead-up to the 1992 elections, there was only one national radio broadcasting station, the state-owned Kenya Broadcasting Corporation (KBC), which could not broadcast news about the opposition’, let alone reports about the orchestrated killings of one ethnic community in the Rift Valley.

With all these disadvantages poised against a fragile and nascent opposition, “national and international observers, embassies and the like, were simply not prepared to oppose the salami tactics that increasingly reduced the chances of the opposition to win the elections by introducing uneven electoral conditions,” wrote Braakhuis.

Many keen observers of the 1992 multiparty general election noted that the international observers had been to Kenya on “election tourism”, suggesting that they were in the country to have a good time rather than to monitor an election. The “election tourism” tag also alluded to the fact that the various international observer missions’ reports were done in haste and without collating the different missions’ assessments.

Given the way that local and international observers had handled the elections – ignoring talk about the clashes and Moi’s gagging of the press – “the international observers came in for serious criticism,” said Braakhuis. The result of this “see no evil, hear no evil and speak no evil” attitude of the international observers was aptly captured by Africa Confidential magazine in 1993 when it wrote: “Neither the foreign nor the local observer groups had the capacity and resources to comprehensively investigate rigging allegations. Consequently, they reported the most blatant and easily verifiable irregularities.”

Many keen observers of the 1992 multiparty general election noted that the international observers had been to Kenya on “election tourism”, suggesting that they were in the country to have a good time rather than to monitor an election. The “election tourism” tag also alluded to the fact that the various international observer missions’ reports were done in haste and without collating the different missions’ assessments.

When the post-election evaluation was done, it was evident that the international observation had been an exercise in futility and that the observer missions had lost their credibility. The missions had totally failed to capture electoral malpractices. This fiasco put the Western world on the spotlight. So, by early 1997, during the second cycle of the multiparty elections, they were already thinking of crafting a new model.

The new model that the international observers envisaged was one that would allow for a comprehensive and in-depth observation of the electoral process that was not limited to a one-day affair. The new model would also enable the observers to stay in the country a while longer, gaining experience and long-term perspective. This would equally allow them to understand the political terrain, including identifying possible tricky manipulations of the electoral process.

Western countries, through their respective embassies, formed the Donor for Development and Democracy Group (DDDG) in 1997 (which was re-named the Democracy Development Group (DDG) the following year). One of the first things DDDG did was to form the Election Observation Centre (EOC), whose members were drawn from diplomatic missions and international experts recommended by DDDG.

The DDDG consisted of 22 diplomatic missions with representation at the European Commission. They were: Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France Germany, Greece, Hungary, Italy, Japan, The Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, United Kingdom and the United States.

The EOC was composed of four coordinators – Dr Judith Geist, (USAID), Prof. Palle Svensson (Denmark – Aarhus University), Dr. David Throup (British Foreign Office) and Dr. Marcel Rutten (The Netherlands).Nonetheless, there was a caveat as to what precisely the EOU would engage in. The EOU was supposed to refrain from making public or press statements and from having any external contacts, except through its president. Canada was in charge of the presidency.

The EOU’s mandate was basically divided into six clear-cut operations:

  1. Registration of voters (which was conducted between May 19 and June 30, 1997)
  2. Designation of candidates within the political parties’ nominations (which took place between late November and early December, 1997)
  3. Official nominations (presidential: December 2–3, councillors and parliamentary: December 8–9, 1997)
  4. Campaign period
  5. Election day, including vote counting (December 29)
  6. Election aftermath

To be better prepared this time, DDDG began having its own meetings as early as May 1997. The move was certainly encouraged by the hastily convened Inter-Parties Parliamentary Group (IPPG) reforms, which somewhat hoped to level the playing field as the country geared towards the December elections. IPPG had been necessitated by the events of the Saba Saba Day (July 7, 1997) and Nane Nane Day (August 8, 1997), during which the police had unleashed unmitigated violence on opposition supporters. With the support of Western countries, they too had pressurised the Kanu government to implement minimalist reforms.

The local observer group for 1997 elections included the Institute for Education in Democracy (IED), Catholic, Justice and Peace Commission (CJPC) and the National Council of Churches of Kenya (NCCK). Together, they deployed about 27,000 poll watchers. This meant that there were at least two observers per polling station.

Two weeks prior to the election, the EOU got into top gear and distributed the Diplomatic Election Observers Field Guide – a self-prepared documentation containing guidelines for observers. Still, the ever cunning and unpredictable Moi jolted the EOU’s preparedness by suddenly transferring the Electoral Commission of Kenya (ECK)’s chairman Justice Zacchaeus Chesoni to the High Court. This move alone caught the international observers unawares; they did not know what the move portended.

There were glaring irregularities during the 1997 elections that the international observers took note of. “The opening and closing hours of the polling stations varied erratically with voting extending in some places to more than 48 hours,” wrote Braakhuis. “The counting process was equally erratic, sometimes taking a whole week.” There were also many irregularities in the ballot distribution. All these irregularities seemingly happening at the same time confused the observers. In fact, many of the international observers left even before all the voting had been concluded.

The international observers had to deal with a crafty Kanu party machinery that intimidated its opponents using brutal force, stuffing ballot boxes, spoiling ballot papers, introducing unsealed ballot boxes, kidnapping returning officers and handling ballot papers improperly. Yet, with all these irregularities, “the election of Daniel arap Moi as president was accepted,” observed Braakhuis.

According to Kenya’s Hobbled Democracy Revisited: The 1997 General Elections in Retrospect and Prospect by Arne Tostensen, Bard-Anders Andreassen and Kjetil Tronvoll, as far as election observation was concerned, the international element was smaller in 1997 than in 1992. “The international observers under the auspices of the Donors’ Democratic Development Group (DDDG) also assumed a more reticent attitude with respect to passing a judgement over the conduct of the election.”

“The technical limitations are exacerbated by political realities. Clearly, the idea that international observers are a neutral, independent force is a myth. In reality, they are every bit as subject to political pressure as the parties they observe.”

On the third cycle of multiparty elections that took place on December 27, 2002, the international observers would remark that “the 2002 elections mark(ed) an important step forward in the process of democratic development in Kenya.” In particular, the EU Election Observation Mission (EOM), which had been in the country from November 19, 2002 till January 17, 2003, stated that “the overall conduct of the elections constituted an example for other countries in the region, also because the electoral process resulted in the first transfer of power from one political group to another since independence.” The EU EOM waxed lyrical that the transfer of power from the Kanu regime to Mwai Kibaki’s government showed that Kenya had “truly become a multiparty democracy.”

The EU EOM also noted that “the level of violence and intimidation during the pre-election period was significantly below that predicted and below the level of the 1992 and 1997 elections.” In summary, the EU EOM said it was “impressed by the conduct of the 2002 elections.”

What exactly is the role of international observer missions?

What is it that gets an international observer team to get impressed about an election? And what exactly is the primary role of an election observer mission team?

In an article they wrote for Foreign Policy in April 2016, Gabrielle Lynch, Justus Willis and Nic Cheeseman argued that “international election observation missions – when small teams of foreign nationals are sent to watch over elections under the auspices of groups, such as the European Union, the African Union and the Carter Center – are intended to deter foul play and ensure free and fair polls. The trio noted that, “across Africa, international observers have frequently refused to give elections the evaluations they deserve for fear of offending incumbent governments and triggering political instability – and, also, it would seem because they apply lower standards on the continent.”

Are these the “lower standards” that the Financial Times alluded to as “the soft bigotry of low expectations” insofar as elections’ monitoring in Africa by international observers are concerned? The newspaper, in reference to Kerry’s praising of the IEBC beforehand for a “job well done”, said that the former US secretary of state “appeared guilty of the ‘soft bigotry of low expectations’, to borrow from a phrase coined by his own nemesis George W. Bush.”

“The challenges facing election monitors are both political and technical,” stated the Foreign Policy article. “The technical limitations are exacerbated by political realities. Clearly, the idea that international observers are a neutral, independent force is a myth. In reality, they are every bit as subject to political pressure as the parties they observe.” Citing Kenya specifically, the three writers of the article, who have been observing the political situation in the country for some time, noted that “in the 1990s, observers turned a blind eye to deeply flawed elections in Kenya because they were worried that speaking out would trigger civil war and regional instability.”

But it is Judith Kelly of Duke University in the United States who seems to have captured the true essence of international election observers: “[International] monitors are more likely to endorse elections in countries that are major foreign aid recipients. Kenya, one of the US’s closest allies on the [African] continent received more than $500 million in USAID funding last year.”

As if to bolster Kelly’s argument, on September 18, 2017, the US government’s Bureau of African Affairs made it publicly clear that they were keenly monitoring the trajectory leading to the fresh presidential elections slated for October, 17, 2017. “We [the US government] are not going to take our eyes way from Kenya: Kenya matters. If our largest embassy is in Nairobi, Kenya, that means we have a stake in that country, and Africa has a stake, and this government is looking at where the trend will go after October 17,” said the Bureau’s principal deputy assistant secretary Donald Yamamoto.

This sentiment is echoed by Emma Gordon, a senior East African risk analyst based in London, who observes that “for several years, election observers’ main audience has been the international community rather that the population whose election they monitor.”

However, by looking the other way as electoral malpractices are perpetrated by various governments, the international election observers have become, “complicit in the attempts of a brutal authoritarian regime to hold onto power and [in the process] undermined their own reputation.”

The August election in Kenya was a classic case of how international election observers undermined their reputations and credibility by whitewashing or ignoring electoral malpractices in the name of stability and to protect their own national interests.

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ALL THE PRESIDENT’S MEN: Uhuru Kenyatta’s proposed Cabinet raises serious constitutional and legal questions

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ALL THE PRESIDENT’S MEN: Uhuru Kenyatta’s proposed Cabinet raises serious constitutional and legal questions

On January 5, 2017 President Uhuru Kenyatta started the process of constituting his second-term Cabinet by naming some of his nominees. The President’s announcement is unusual in two significant respects. First, it was a partial list; he only announced nine nominees even though the Constitution demands a minimum of 14 and allows him to name up to 22 Cabinet Secretaries (his last Cabinet had 18).

Second, the President said he was “retaining” some Cabinet Secretaries and as such he would not be sending the names of all his Cabinet nominees to the National Assembly for vetting. His statement implied an existing Cabinet whose term continued uninterrupted through the 2017 general elections even though a December 2015 High Court decision held that the tenure of all appointed members of Cabinet ended on August 8, 2017. In attempting to retain some members of the previous Cabinet and exempting them from National Assembly approval, President Kenyatta is acting in contravention of the High Court judgment and the law. (It is also interesting to note that all the Cabinet Secretaries that the President “retained” are men, which also raises the issue of gender parity, which the Constitution explicitly encourages.)

Nominating Cabinet Secretaries and constituting a Cabinet is a constitutional obligation of the President contained in Articles 129, 130, 131 and 132. Article 152(1) defines the Cabinet as the President, the Deputy President, the Attorney General and not fewer than fourteen and not more than twenty-two Cabinet Secretaries. Note also that Article 152(1) provides that there shall be a “minimum” number of Cabinet Secretaries, indicating that the President has no discretion to have zero or no Cabinet Secretaries. The constituting of a Cabinet is, therefore, a mandatory function of the President, which must be performed as required by the Constitution.

In attempting to retain some members of the previous Cabinet and exempting them from National Assembly approval, President Kenyatta is acting in contravention of the High Court judgment and the law.

Article 129 of the Constitution provides that all “executive authority is derived from the people of Kenya and shall be exercised only in accordance with this Constitution.” This provision reminds the executive that executive power is delegated and has limited authority: it is delegated by the people and may not be legally exercised outside of the limits set by Constitution.

Article 130 defines the national executive as including the President, the Deputy President and “the rest of the Cabinet”, thereby emphasising that the Cabinet is integral to the national executive. Article 131 provides that the president exercises executive authority “with the assistance of the Deputy President and Cabinet Secretaries”, emphasising the necessity of the Cabinet as an instrument for the exercise of executive authority. Additionally, Articles 131(2a) and 131(2e) obligate the President to respect and uphold the Constitution and ensure the “rule of law”.

Furthermore, Article 132(2) explicitly vests powers to appoint the Cabinet in the President, providing that s/he “shall nominate, and with the approval of the National Assembly, appoint” Cabinet Secretaries in accordance with Article 152.

So, while the President has the power to nominate he cannot, without the approval of the National Assembly, appoint anyone to the Cabinet. In establishing the Cabinet, the President must follow the process in the Constitution and in law, which includes relevant judicial decisions.

Judicial decisions regarding the process of constituting a Cabinet would, therefore, apply to the President as he undertakes this function. On December 20, 2016, the Constitutional and Human Rights Division of the High Court in Petition 566 of 2015[1] held that the Cabinet was unconstitutional, as its composition violated Article 27(8) of the Constitution that says that “the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender”.

The High Court was asked to address two issues: the constitutionality of the process of constituting Cabinet and of the composition of Cabinet. In addition to finding the Cabinet unconstitutional, the High Court found that “the actions of the President and the National Assembly…in nominating, approving and appointing the Cabinet” were unconstitutional. As such, the process of establishing the Cabinet and the resulting Cabinet were both declared unconstitutional.

Nothing precludes the President from naming all, some or none of the members of the previous Cabinet; however, all proposed members of the Cabinet, other than the Deputy President, must be nominated again and their names must be submitted to the National Assembly for approval prior to their appointment.

However, the High Court, citing public interest, suspended the judgement for “a period of eight months or until such a time a new Cabinet will be constituted either by the present government or by the new government to be elected into office in August 2017.” The effect of this judgement was that it provided temporary legal permission for the Cabinet’s continued existence, with such permission set to automatically expire if the President named a new Cabinet or if a general election was held.

Therefore, the term for all appointive members of the Cabinet ended on August 8, 2017 by judicial order. As such, the President must, by law, name all appointive members of his proposed Cabinet afresh (a minimum of 15 and a maximum of 26, including the Attorney General). Nothing precludes the President from naming all, some or none of the members of the previous Cabinet; however, all proposed members of the Cabinet, other than the Deputy President, must be nominated again and their names must be submitted to the National Assembly for approval prior to their appointment.

The decision of the High Court in Petition 566 of 2015 found that both the President and National Assembly had violated their obligations in the process of constituting a Cabinet (nominating, approving and appointing the last Cabinet). The High Court, in holding that the National Assembly had failed to perform its role in approving Cabinet nominees, found that the National Assembly must “…apply a strict scrutiny in approving of any action of the executive and where the action involves appointment to public posts a most searching examination in all aspects must be invoked by the National Assembly.” Therefore, the National Assembly cannot be a rubber stamp of Presidential nominees but must exercise the highest legal standard in the vetting and approval, or rejection, of executive nominees.

The President hasn’t violated the law by providing only a partial list of nominees. However, by failing to submit the names of all proposed Cabinet nominees to the National Assembly for approval, and asserting the existence of a valid Cabinet after August 8, 2017, the President is acting in deliberate contravention of the Constitution and the law.

The High Court was explicit that in some cases it is the role of the National Assembly to correct the President: “The National Assembly must exercise that perfect overseer role and tap the President on the shoulder where he is about to slip.” The National Assembly, therefore, has a constitutional obligation to remind the President that all proposed nominees must undergo the entire process of nomination, vetting and approval by the National Assembly prior to their appointment. In addition, the High Court clarified that the National Assembly must reject a proposed Cabinet whose composition would violate the law.

The President hasn’t violated the law by providing only a partial list of nominees. However, by failing to submit the names of all proposed Cabinet nominees to the National Assembly for approval, and asserting the existence of a valid Cabinet after August 8, 2017, the President is acting in deliberate contravention of the Constitution and the law. These actions are especially worrisome considering the opposition’s refusal to recognise the President as legitimately elected. By his actions, the President is providing additional reasons for challenging his legitimacy.

With his announcement, the President has sent important political and legal messages about his second term. It is surprising he is trying to evade the National Assembly given the Jubilee Party enjoys a majority in both houses of Parliament. It would appear that, despite a parliamentary majority, the President is not confident that his nominees will be confirmed by the National Assembly. This anxiety may stem from Jubilee party politics, including the jostling for the 2022 succession, and betrays fears that these intra-party conflicts would play out in the National Assembly approval process. It is also possible that the President may be concerned about the opposition’s ability to utilise parliamentary processes to delay, block or undermine the eventual approval of his Cabinet nominees.

It would appear that, despite a parliamentary majority, the President is not confident that his nominees will be confirmed by the National Assembly.

For an administration whose legitimacy ultimately rests on a judicial decision, the President’s wilful disregard of a court order is also evidence that the battle with the Judiciary continues. It is an assertion of executive exceptionalism saying that the decisions and actions of the President and executive are effectively beyond judicial review. It is troubling that the President isn’t averse to confrontation with the judicial branch, and courting constitutional crises, given the just concluded experiences of the electoral period and the ongoing political uncertainty.[2]

The message is clear: This is not business as usual. If successful, the attempt by the President to bypass Parliament and nominate and appoint a Cabinet in contravention of the Constitution would result in the imposition of an unconstitutional and illegitimate national executive.

An unconstitutional national executive would create unprecedented uncertainty as to the legality of its national and international actions. It would also exacerbate existing political conflicts while signalling to other parties that it is acceptable to resort to extra-constitutional means to resolve political and other conflicts.

By wilfully weakening so many institutions – the Judiciary, the Cabinet, the National Assembly and the Constitution – in a single swoop, the executive is potentially triggering a cycle of political conflict and social instability.

Unchecked, the failure by the President and the National Assembly to accept the constitutional limitations of their authority will lay the foundation for a systematic breakdown in the rule of law. By wilfully weakening so many institutions – the Judiciary, the Cabinet, the National Assembly and the Constitution – in a single swoop, the executive is potentially triggering a cycle of political conflict and social instability. The President and the National Assembly would be best advised to reverse the current course and ensure strict compliance with the Constitution in the process of establishing a new Cabinet.

 

[1] Marilyn Muthoni Kamuru & 2 others v Attorney General & another [2016] eKLR http://kenyalaw.org/caselaw/cases/view/129670/

[2] The August 8, 2017 presidential election was nullified by the Supreme Court on September 1, 2017. Uhuru Kenyatta won the subsequent election on October 26, 2017. This election was also challenged but this time the Supreme Court, on November 14, 2017, upheld his election paving the way for his assumption of office on November 28, 2017.

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(D)EVOLVED HEALTHCARE: Makueni’s trailblazing experiment in providing universal health coverage

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(D)EVOLVED HEALTHCARE: Makueni’s trailblazing experiment in providing universal health coverage

Universal health coverage is by many measures considered to be the Holy Grail of delivering quality healthcare. In fact, achieving universal health coverage by 2030 – ensuring that all people have access to the health services they need without the risk of financial hardship – was included as part of the Sustainable Development Goals (SDGs) adopted by the United Nations in 2015. Writing a year later, Marie-Paule Kieny, Assistant Director-General at the World Health Organization (WHO), described it as “the linchpin of the health-related SDGs; the one target that, if achieved, will help deliver all the others by providing both population- and person-centred high-quality services that are free at the point of delivery and designed to meet the realities of different people’s lives.” WHO estimates that about 150 million people around the world suffer financial catastrophe annually from out-of-pocket expenditure on health services, while 100 million people are pushed below the poverty line.

According to the 2013 Kenya Household Health Expenditure and Utilisation Survey, medical expenses account for more than 40 per cent of non-food bills in over half the counties in the country.

In Kenya, though access to quality healthcare is a constitutional right, the scarcity of quality public and private health facilities, as well as the high cost of care even when it is available, means that universal health coverage remains little more than words on paper for much of the population. President Uhuru Kenyatta has made achieving universal health coverage by 2022 a major part of his second term agenda and indicated in his inauguration speech that this would be achieved by expanding coverage under the National Health Insurance Fund (NHIF). The president said that half a century after it was established in 1966, the Fund has only attracted 6.8 million beneficiaries. The World Bank estimates that only a fifth of Kenyans have any sort of medical cover, which means that as many as 35 million Kenyans are vulnerable to the financial devastation occasioned by a medical emergency.

When illness eventually strikes, it takes a huge financial toll. According to the 2013 Kenya Household Health Expenditure and Utilisation Survey, medical expenses account for more than 40 per cent of non-food bills in over half the counties in the country. In fact, direct payments by citizens accounted for a third of the country’s total health expenditure in the same year, according to Dr. Izaaq Odongo, the head of the Department of Curative and Rehabilitative Health Services at the Ministry of Health, with the balance being made up by government (36 per cent), donors (20 perc ent) and employers (10 per cent). As a result, many Kenyans are forced to resort to selling off property, relying on networks of relatives and friends, or even making desperate appeals on social media to raise the necessary funds. Hence the large, and seemingly never-ending appeals all Kenyans make when clearing medical bills. Despite this, according World Bank Country Director, Diarietou Gaye, the number of those thrust into poverty by medical expenses is close to one million.

Kenya’s network of public healthcare facilities has traditionally been hierarchically organised into 6 levels, with the lowest unit being community health workers embedded within communities. At level 2, dispensaries and clinics provide the link between community-based healthcare and the formal health system. Together with level 3 facilities – health centres, maternity clinics and nursing homes – these make up the primary healthcare units. Levels 4-6 are sub-county, county and national referral hospitals. It is at the lower levels that the majority of people interact with the healthcare system and it especially at the primary healthcare facilities that national government interventions with regard to cost have been most consequential.

Since independence, Kenya has blown hot and cold on the abolition of user fees and decentralisation, both of which, given the economic circumstances of most Kenyans as well as the devolution introduced by the 2010 constitution, are prerequisites for universal health coverage. In 1965, according to the paper “Reforming health systems: The role of NGOs in decentralization – lessons from Kenya and Ethiopia by Richard G. Wamai of the Harvard School of Public Health, “a free access policy abolished the KSh5 co-payment operative in the colonial healthcare system… [and] proposed expanding coverage through centralizing the delivery responsibilities from the counties and municipalities to the Ministry of Health”. Eighteen years later, the provision of health services was again decentralised as part of the District Focus for Rural Development programme and in December 1989, user fees were reintroduced in an effort to inject money into crumbling health facilities. The “cost-sharing” programme was part of a comprehensive health financing strategy that also included social insurance, efficiency measures and private sector development. The fees would, the argument went, generate additional revenue, incentivise use of low-cost primary healthcare services rather than the more expensive referral facilities and improve targeting of resources by reducing unnecessary demand.

Still, implementation problems led to the suspension of the policy less than a year later though it was gradually reintroduced in 1991. A 1996 study found that despite revenue increases and facilities being allowed to budget for three-quarters of the money they remitted to the districts, this did not necessarily result in improved quality of care because the funds were used to offset a fall in government funding for basic care. As evidence mounted that despite a waiver policy to protect the poor and children under five, user fees were proving to be a significant barrier to access, the government – in what came to be known as the 10/20 policy – again reversed course and in 2004 eliminated all fees in dispensaries and health centres, save for a minimum registration fee of KSh10 and KSh20, respectively. By 2007, it had instituted a maternity waiver allowing for free deliveries in public health facilities and introduced the Health Sector Service Fund (HSSF) to compensate these facilities for lost revenue.

Since October 2014, Makueni has been offering its one million residents free healthcare across all its public facilities, including county and sub-county hospitals.

However, as a study published in 2015 showed, this was largely ignored by health facilities for whom user fees represented almost all the cash income they used to cover basic operating costs. As a result, most patients ended up being charged for more than the specified amount while very few received waivers. In 2013, the government abolished all user fees in public dispensaries and health centres and allocated KSh 700 million to the HSSF.

The picture was further complicated by the fact that health is one of the services devolved by the 2010 constitution. This means that while the national government is still responsible for policy and managing two Level 5 referral facilities, namely, the Kenyatta National Hospital and the Moi Teaching and Referral Hospital, the bulk of public healthcare in Kenya is delivered in facilities run by county governments. A history of skewed investment that marginalised some counties, as well as the lack of policy coordination between the various counties and between the counties and the national government, have left a rather confused picture of access to healthcare across the country.

There have, however, been some wins. For the first time since independence, residents of historically marginalised counties, such as Lamu and Mandera, now have access to Caesarean section procedures within their county. There have been problems too: from the controversy arising from the national government forcing counties to lease equipment they neither wanted nor had the resources to use, to ambulance purchases that seemed more about burnishing a governors’ image than delivering care to constituents, to the First Lady’s much trumpeted Beyond Zero initiative that today is in shambles, with many of the facilities either abandoned or turning patients away.

The Makueni model

Nonetheless, an ambitious experiment in the provision of universal health coverage is underway in Makueni, a county that borders Kajiado, Machakos, Kitui and Taita-Taveta counties. Since October 2014, Makueni has been offering its one million residents free healthcare across all its public facilities, including county and sub-county hospitals. It is a model well worth examining if President Kenyatta is serious about expanding access to medical care across the country.

“When we took over in 2013, we realised that 40 per cent of the people of Makueni would sell land and exhaust family income to pay medical bills for relatives,” says Makueni’s Governor, Prof. Kivutha Kibwana. Given that medical services in dispensaries and health centres were already free and paid for by the national government, the county government figured that if it doubled the 100 million that its Level 4 sub-county hospitals were collecting in user fees, it could offer free, across the board healthcare to its residents.

Thus MakueniCare, as the county government has labelled it, was conceived. It piggybacks on the national government’s free primary healthcare policy and the national coverage provided by NHIF to plug the gap in between with the aim of providing seamless cover across all public health services.

Thus, for an annual subscription of KSh500 per household, which covers parents and all their children under the age of 18 years (or up to 24 years in case of students), Makueni residents can access free primary healthcare at dispensaries and health centres courtesy of the national government, free treatment, including inpatient care and ambulatory services, at the 13 level 4 hospitals within the county paid for by the county government, and, if they’re subscribed to NHIF, free care at referral facilities outside the county. The Level 4 hospitals provide free care and bill the county government, which also supplies them as well as the primary healthcare facilities with drugs, equipment and medical staff.

LISTENBehind the Makueni Healthcare Revolution

However, universal health coverage is more than eliminating out-of-pocket expenditure; it is also about ensuring access to healthcare. According to Dr. Cyrus Matheka, the head of the county’s Health Promotion Services, MakueniCare took two years to plan and was preceded and piloted by a programme offering free care to those over the age of 65 without a requirement for registration. Within that time, the county government invested in expanding facilities, from dispensaries and health centres to sub-county hospitals, and has continued to do so. In under five years, it has more than doubled the number of health facilities built by the colonial and national governments over the last 50 years. Apart from an additional 113 dispensaries and health centers, the county now boasts 13 Level 4 hospitals and has employed 160 doctors, compared to just 38 doctors and 3 hospitals in 2013. At KSh2.3 billion, health is the county’s single largest budget item.

All this means that the county can offer a wide array of free services to residents, from hospital admission, surgical procedures, X-ray imaging, laboratory testing, to dental and counselling services. Even in death, patients benefit from 10 days of free mortuary services. However, the cover does not apply to specialised care and equipment that are not available at the hospitals, including dialysis for patients suffering from kidney failure, intensive care units, implants, as well as auxiliary devices, such as wheelchairs.

Insurance schemes are essentially funds where people pay into a pool when they are healthy – in this case through both taxes and direct contributions – which they can draw on when sick. The Makueni recruitment model reversed this, thus courting adverse selection, or the tendency of people to get insurance only when they are seriously sick, which can consume huge resources.

Dr. Andrew Mutava Mulwa, the County Minister of Health, estimates that MakueniCare covers at least 93 per cent of the county’s healthcare needs. He says it is built on a platform of ensuring adequate provision of primary care by increasing facilities, improving services and ensuring that medicines are available. “Someone who is sorted at the dispensary will not find their way to the hospital,” he says, adding that only 35 per cent of patients in Makueni need to seek care in the secondary institutions covered by MakueniCare or in tertiary referral facilities outside the county.

Challenges

However, the programme has had its share of challenges. The first, rather surprisingly, was low uptake. In March last year, when The Elephant visited Makueni, less than 10,000 households had signed up for the programme out of a potential 200,000. The scheme had a mere 30,000 beneficiaries. Part of the reason for this was the decisions taken to make the coverage voluntary, to register subscribers at county hospitals when they sought care and to make the cover active immediately upon registration and payment. Initially there did not seem to be much of a public campaign to get residents to register: there were no posters announcing the programme in all the hospitals The Elephant visited and, despite officials claiming to advertise on vernacular radio, most residents we spoke to had not heard about MakueniCare.

Julia Musau of Kaselia village, who we met at the Tawa Sub-County Hospital, is a typical case. She had been unaware of the scheme until a month prior to our visit. She found out about it after she took a patient to the Makueni General Hospital in Wote, and had difficulty settling the bill. It was another woman whose child had been admitted there who told her about MakueniCare. That was when she enrolled her family immediately.

However, even those who know about it opt to wait till they or their dependents get ill to register since there is no penalty as the cover is activated immediately and registration is done at the hospitals, anyway. This made registration vulnerable to industrial action by medical personnel. For example, during the nationwide strikes, first by doctors and then nurses, fewer people went to the hospitals as there was little expectation of receiving care. In any case, According to Dr. Matheka, less than 5 per cent of the county’s population seeks medical care at any one time, and many of these are over the age of 65, a group that already enjoys free care. This means registration will inevitably be slow unless there is a serious epidemic.

The Makueni model also faces other challenges. Insurance schemes are essentially funds where people pay into a pool when they are healthy – in this case through both taxes and direct contributions – which they can draw on when sick. The Makueni recruitment model reversed this, thus courting adverse selection, or the tendency of people to get insurance only when they are seriously sick, which can consume huge resources. This brings into question the sustainability of the programme. However, in more recent times, according to Wambua Kawive, a former Makueni County Minister, the county government has ramped up its recruitment efforts and has now launched a mass registration exercise targeting 100,000 registrations by the end of the year.

Another challenge the system needed to cope with was an initial influx of patients into hospitals once the policy was implemented. Tawa Sub-County Hospital Administrator, Justus Kilonzo, told The Elephant that the workload at the hospital had increased, which necessitated the recruitment of more staff. Further, there has been an influx of people from neighbouring counties who sought to take advantage of the system. Geoffrey Kirui, the Health Administrative Officer at Makindu Hospital next to the busy Nairobi-Mombasa highway, spoke about having to filter out patients from other counties, especially Taita Taveta, Kajiado and Kitui. Still, trying to determine someone’s place of residence using identification cards, birth certificates and a ward administrator’s or chief’s letter is an inexact science and one gets the sense that this too was not well thought through.

MakueniCare also faces a hazard where, having paid the subscription, patients will head to the hospital for even minor complaints that can be addressed at lower levels, adding stresses to the system.   They may also engage in risky behaviour knowing that there is the safety net of free care. Such behaviour may be inadvertently complemented by a shift in focus from preventative to curative care by hospitals seeking to generate more revenue and county officials seeking to make political hay from the scheme.

The latter is particularly important. It is crucial to note that MakueniCare is undergirded by an administrative structure that was created to deliver a different type of healthcare where users contributed directly. Suddenly eliminating such fees can have unintended deleterious effects on both the facilities and their ability to deliver quality services. One study on the effect of the removal of user fees found that although the revenue generated was generally low, it served to ensure that facilities met the costs of services and salaries for support staff not directly funded through the government’s budget.

There is also a legitimate fear that the political priority placed on MakueniCare may be diverting resources from primary and preventative care at the health centre and dispensary levels.

In Makueni, a doctor-turned-administrator who did not want to be named told The Elephant that MakueniCare had created a mismatch of skills, with doctors having to do administrative tasks rather than attend to patients. When MakueniCare was first proposed, the doctor told us, there was much resistance from hospitals, which were concerned about the lack of a clear system as well as lack of necessary training and preparation. “Why the rush to launch in October 2016?” asked the doctor, concluding that the timing had largely been influenced by the interests of county politicians vying in the August general election.

MakueniCare essentially transfers control over funds and decision-making away from hospitals to bureaucrats at county headquarters in Wote town. Hospitals not only have to worry about delays in receiving reimbursements for resources spent in providing care – which can happen if, for example, the national government delays disbursements to the county governments – but also about losing their largely autonomous decision-making power on the equipment they need to procure and the staff they need to recruit. Similarly, where and when new facilities are built may reflect more the political priorities of those running the county government rather than the genuine health needs of the populace. Lastly, as with all government-driven procurement decisions, the spectre of corruption is never far away.

There is also a legitimate fear that the political priority placed on MakueniCare may be diverting resources from primary and preventative care at the health centre and dispensary levels. Ilatu dispensary, which was built by the Kenya Pipeline Company and opened in March 2014, may be a case in point. In September 2015, the facility was handed over to the county government that provided staff and equipment. Adjacent to a settlement scheme, it is the busiest facility in Kibwezi West and offers outpatient, maternal and child health, family planning as well as HIV testing and counselling services. The staff of two nurses and one laboratory technologist attend to between 70 and 100 patients every day. The county government is upgrading it to a health centre and building a 40-bed inpatient facility.

Jacinta Mbula is the nurse in-charge. She says staffing and resources are big challenges. When The Elephant visited the facility, her fellow nurse was on maternity leave and she was running the facility on her own. She said that there is only enough accommodation for one nurse to stay at the facility and take care of overnight maternity cases, and that nurse still has to report to work the next day. Although they receive adequate supplies of essential medicines from the county government, they do sometimes run out of non-essential drugs.

Further, she only gets KSh60,000 – “peanuts” – every quarter from the county government to pay casual labourers and purchase essential supplies. She currently employs one casual worker and one watchman but says she actually needs – but cannot afford – two casuals and a groundsman to manage the 10-acre facility. And because it was not built by the national government, the dispensary is not entitled to access the HSSF, despite its workload, though other less busy facilities do. Ilatu does, however receive, as all facilities do, reimbursement from the national government for maternal deliveries –KSh2,500 each.

Dr. Matheka says the average distance to a health facility has been nearly halved, from 9km to 5km in the last 4 years. However, having more facilities will not necessarily improve health outcomes for the people of Makueni if the quality of care they provide begins to decline as a result of underinvestment.

So as the county keeps building more dispensaries and health centres, questions must be asked about whether underfunded facilities can truly serve as the bedrock for universal health coverage even though access has been improved. Dr. Matheka says the average distance to a health facility has been nearly halved, from 9km to 5km in the last 4 years. However, having more facilities will not necessarily improve health outcomes for the people of Makueni if the quality of care they provide begins to decline as a result of underinvestment. Further, especially as the county expands the number of Level 4 hospitals, one must wonder whether this is being done at the expense of funding primary healthcare.

Makueni officials say some of the potential pitfalls are ameliorated by enhancing public participation. Governor Kibwana says local committees of citizens participate in co-supervision of projects and must, along with technical people and administrators, give approval. This, Kawive asserts, removes politics from the equation and makes bureaucrats and hospital administrators directly accountable to citizens. While it is definitely a good idea to involve local communities, true accountability must be accompanied by real access to information as well as consequences for those who are implicated in wrongdoing.

Though MakueniCare faces its share of challenges, everyone The Elephant spoke with in Makueni who was aware of the programme was full of praise for its ambition, including those who were critical of its implementation. The fact is, as Kenya ponders the way to achieve universal health coverage, the country would do well to pay attention to the lessons from Makueni. The expansion of NHIF cover by itself will not suffice; the national government must work with county governments to outline a plan that creates a seamless spectrum of cover at every level of care and provides the necessary resources at the appropriate time.

Further, there should be horizontal cooperation among counties in providing healthcare and any plan must strive for equity but without punishing the counties that have taken serious strides. Criteria for eligibility for county programmes should be clearly spelt out and counties should be encouraged to collaborate in designing their schemes within the framework of the national plan.

Thirdly, the system should primarily invest in and direct resources towards building the capacities of the public health sector, not in creating opportunities to generate private profits. It should embrace a rights-based approach that seeks to deal with health as a human right rather than an industry. That shifts the focus away from the needs of “investors” to those of citizens. As Ann Wanyoike notes, “an expanded role for the private sector became a health sector reform theme of the 1990s” but this resulted in “a dichotomous health structure that was characterised by the rich opting for high-cost private healthcare providers, with a majority of the populace who had no such means relying on the publicly run health institutions”. This means that those who can contribute the most to a national universal health coverage scheme have little incentive to do so, especially if such contributions are voluntary. More on that later.

In addition, it does no good to simply superimpose universal health coverage on a system designed for hospitals to generate revenue. The latter must be fundamentally retooled to suit the former and this will take both time and resources.

Fourth, the plan must prioritise prevention and care at the lower levels. In 2013, according to the Kenya Service Availability and Readiness Assessment Mapping report, less than 6 out of 10 health facilities in the country have the capacity to provide the Kenya Essential Package for Health (KEPH) – a standardised comprehensive package of health services – and less than half have the basic amenities to provide healthcare services. And while two-thirds have half the basic equipment required, 59 per cent do not have essential medicines. Only 2 per cent of facilities are providing all KEPH services required to eliminate communicable diseases. Providing universal healthcare on such a foundation would be building on sand.

Universal healthcare requires a substantial increase in the resources both levels of government commit to health. The point is not that both levels of government should spend more on health at the expense of other social services; rather they should increase spending on the full range of human rights and social determinants of health. For example, Kenya’s Health Policy identifies reducing the burden of violence and injuries as one of the top objectives and notes that this will require addressing causes. Given that road crashes account for between 45 and 60 per cent of all admissions to surgical wards, comprehensively addressing the problems on our roads would free up considerable resources in the health sector.

According to Djesika Amendah, an associate research scientist at the African Population and Health Research Centre, Kenya spends most of its health budget on salaries, allowances, drug supplies and other recurrent costs; only 7 per cent of the budget goes towards capital expenditure to improve the quality of healthcare by building new facilities or purchasing equipment to care for more people in the future.

How the money that is allocated to the health sector and how it is spent should also change. According to Djesika Amendah, an associate research scientist at the African Population and Health Research Centre, Kenya spends most of its health budget on salaries, allowances, drug supplies and other recurrent costs; only 7 per cent of the budget goes towards capital expenditure to improve the quality of healthcare by building new facilities or purchasing equipment to care for more people in the future.

In addition, the country spends nearly four times as much on curative care as it does on disease prevention and “we devote a higher share of our health shillings (20 per cent) on governance, health system and financing administration; in other words, paying people in the ministries of health who actually do not see any patients rather than spending money on preventing diseases or promoting health.” Further, although most Kenyans live in rural areas, government health expenditure has in the past tended to favour urban areas. Given the country’s limited resources, more prudence will need to be exercised if universal access to care is to be guaranteed to all.

Along the same lines, there should be an emphasis on getting Kenyans to pay into the system when they are healthy and not to wait till they get sick to get the cover. This also means making it easier for people to register and pay. For example, one can currently download a registration from the NHIF website but one then has to deliver it physically to their offices. There appears to be no way to pay via mobile money or credit/debit card. With nearly all Kenyans able to access the internet though their mobile phones, allowing online registrations and payments would be an easy way to bring in more registrations.

Further, whether the scheme should be voluntary or compulsory is a matter for serious debate. While Makueni’s system is completely voluntary, the NHIF is compulsory only for those in formal employment. Yet the WHO’s 2010 World Health Report titled “The Path to Universal Coverage” says that “there is strong evidence that raising funds through compulsory prepayment provides the most efficient and equitable path towards universal coverage. In the countries that have come closest to achieving universal health coverage, prepayment is the norm, organised though general taxation and/or compulsory contributions to health insurance.”

Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it.

There is also the question of whether, like in Makueni, everyone pays the same amount regardless of income, and whether wealthier people are asked to pay a little bit more in order to lighten the load on the poor. As the WHO notes, “financial risk protection is determined by how funds are raised and whether and how they are pooled to spread risks across population groups” and “rais[ing] funds equitably … usually implies a degree of progressivity (where the rich contribute a higher proportion of their income than the poor)”. The NHIF, rather strangely, only has a graduated scale for contributions from those in formal employment; others who join pay a flat monthly fee regardless of income. This is curious for a country where, according to the United Nations’ Economic Commission for Africa, only a quarter of workers are in the formal sector.

Fifth, accountability must permeate the entire system. Implementation of the scheme should not become, as we have seen with the free primary education reintroduced in 2003 and the Standard Gauge Railway, hostage to political priorities. Kenyans must accept that if it is to be done well, it will not be done overnight. Public participation at every stage should be encouraged and resources, especially human resources, should be utilised in the most appropriate and effective manner. Effective public participation as well as transparency will be indispensable if the country is to avoid universal health coverage becoming another avenue for looting by the state.

While universal health coverage focuses on reducing the financial burdens of patients, more will be required if access to the healthcare system is to be expanded. As the World Health Report notes, “eliminating direct payments will not necessarily guarantee financial access to health services, while eliminating direct payments only in government facilities may do little to improve access or reduce financial catastrophe in some countries. Transport and accommodation costs also prevent poor people using services, as do non-financial barriers, such as restrictions on women travelling alone, the stigma attached to some medical conditions and language barriers.”

Finally, Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it. All that is needed is a belief that Kenya should be run for the benefit of all Kenyans and that Kenyans are just as capable as any other people of imagining and creating better worlds and better futures. This may be the greatest lesson we can learn from Makueni County.

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POT CALLING THE KETTLE BLACK? France’s shady deals in Africa

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POT CALLING THE KETTLE BLACK? France’s shady deals in Africa

“I think the corruption of Africa is taken totally out of context, Africa is no more corrupt than any other place around us. For every African leader who is corrupt, we have a 1000 European, American, Chinese business people who are corrupt, where are those guys? Why only talk about African corruption? What about the Chinese corruption, American corruption and European corruption? We need to be really fair in looking at this issue of corruption. What about companies not paying taxes in Africa? What about profit shifting, mispricing? There is a whole lot of corruption around us. What about anonymous companies? Companies whose official ownership is not known, where people hide their stolen money. All that are issues of corruption, so that is all that needs to be discussed and let’s get away from the scenario that only African leaders have a monopoly on corruption which is not true”.

These words came from the mouth of Mo Ibrahim, the Sudanese-British businessman who in 1998 founded the telecommunications company Celtel International and is now the chairman and founder of the Mo Ibrahim Foundation, established in 2006 to support good governance and exceptional leadership on the African continent. Since 2013, Mo Ibrahim has been measuring and monitoring governance performance in African countries through the Ibrahim Index of African Governance (IIAG). He is an iconic figure: he represents African efficiency and good entrepreneurship.

The point made by Mo Ibrahim is clear: corruption is a global issue that is making the world sick. Targeting the sickness should be a priority of the whole planet. There is no moral superiority here: each country should blame itself for something. There are countries that behave like strong boxes protecting the financial secrecy of the rich world; others are still trying to colonise the poor while some allow a tiny elite to control the rest of the population.

There is a tendency to view Africa as corrupt. No doubt lack of ethical leadership and economic and political neocolonialism are key factors in the high levels of corruption on the continent. However, treating the corruption issue as an African peculiarity is unfair. Especially if the one complaining is a European country.

Related stories: Special Reports from Reuters journalists around the world

European companies are part and parcel of corruption in African countries. The most recent example concerns Eni SpA, the partially-national Italian oil company and the partially-national Dutch Royal Dutch Shell PLC. On December 20 this year, the Court of Milan indicted Royal Dutch Shell PLC, the chief executive of the Italian oil and gas company Eni SpA and other industry executives on corruption charges connected to a 2011 deal to acquire drilling rights off the coast of Nigeria. “Prosecutors say in court documents that Eni CEO Claudio Descalzi and the other executives at both Shell and Eni knew that most of the $1.3 billion Eni and Shell paid to the Nigerian government to acquire the drilling rights would be distributed as bribes. Prosecutors will argue that Goodluck Jonathan, the Nigerian president at the time of the deal, received part of the kickbacks, according to court documents”, FoxBusiness reported.

There is a tendency to view Africa as corrupt. No doubt lack of ethical leadership and economic and political neocolonialism are key factors in the high levels of corruption on the continent. However, treating the corruption issue as an African peculiarity is unfair. Especially if the one complaining is a European country.

Nigeria is ranked among the most corrupt countries in the world. Corruption has remained rampant in Nigeria, and became worse under the rule of Goodluck Jonathan. In the 2011 case connected to Eni and Shell, there are also several prominent Nigerian figures mentioned in the alleged bribing scheme.

In the European mindset, corruption is a vicious circle: nobody seems to be interested in breaking the bribe rule because it is considered “normal” and it secures success, especially in countries where impunity is the norm. Yet Western countries that have invested in Africa always claim moral superiority: they have better governance, accountable and efficient systems, and they bring jobs. But this supposed superiority is just a veneer that allows these countries to be corrupt and opaque abroad.

France is globally recognised as among the most corruption-free countries. However, there are questions being raised in Kenya concerning whether the France-based company OT-Morpho paid bribes to officials of the Independent Electoral and Boundaries Commission (IEBC) in order to be granted the contract for the electronic voting system used in the 2017 election.

The French government has also in the past been accused of being infiltrated by mafia-like groups that use bribery as a tool to influence politics. Recently, the strongest criticism of France’s dealings abroad came from the broadcaster Arte, which aired a documentary called “Mafia et Republique”.

The French government has also in the past been accused of being infiltrated by mafia-like groups that use bribery as a tool to influence politics. Recently, the strongest criticism of France’s dealings abroad came from the broadcaster Arte, which aired a documentary called “Mafia et Republique”. The historical investigation started in 1929, when in Marseille, Southern France, two friends, Carbone and Spirito, started a criminal group: the very first group of Corsican mafia. In the beginning, this was a gang dedicated to drug trafficking, but the next generation of mobsters in the ‘60s found some politicians who were closer to their interests. The most prominent one was Charles Pasqua, the former interior minister (‘86-’88 and ‘93-‘95) and congressman for almost 35 years. When he died in 2015, he was called the Godfather of Francafrique – the term coined by the former Ivorian president Félix Houphouët-Boigny to define the colonial-style influence that France has in some former French colonies in West Africa. Tchad, Cameroun, Centrafrican Republic, Gabon, Angola – these are some of the African kleptocracies, some still in power, that began their rule in these years. The other important Godfather of Francafrique was Robert Feliciaggi, the middleman between politicians and mafia gangs. He ran casinos with Michel Tomi in Western Africa and died in uncertain circumstances in Ajaccio, Corsica, in 2006.

From 1980 to 1994, France was shaken by the Elf affair, probably the biggest political and corporate sleaze scandal to hit a Western democracy since the Second World War that exposed bribes paid by the national oil company all over the world. In Africa, the intermediaries for the illicit payments were Feliciaggi and Tomi. “Elf’s former chairman, Loik Le Floch-Prigent, 60, was sentenced to five years in jail and fined €375,000 (£260,724); his principal bag-man, the former director Alfred Sirven, was given the same prison term and ordered to pay €1m. The company’s ‘Mr Africa’, André Tarallo, was jailed for four years and fined €2m”, reported the Guardian in 2003. After an eight-year investigation and four-month trial, 30 out of 37 defendants were jailed for embezzling €305 million. This case is a concrete example of an organised, hierarchical mafia-like syndicate that is able to penetrate the so-called grey zone where criminals, politicians and businesses merge together.

According to Reuters’ findings, “Areva’s mines pay no export duties on uranium, no taxes on materials and equipment used in mining operations, and pay a royalty of just 5.5 percent on the uranium they produce. A spokesman for Areva declined to confirm the authenticity of the documents and did not comment on their contents”.

Sometimes corruption is simply a matter of money and power, without criminals or gangs involved. These cases are harder to prosecute because often finding the money is impossible. One such case was reported by Reuters in 2014. The main character was Areva, the mining company that is the global leader in uranium extraction. Areva-Niger’s agreements had never made public and in 2014 they expired. According to Reuters’ findings, “Areva’s mines pay no export duties on uranium, no taxes on materials and equipment used in mining operations, and pay a royalty of just 5.5 percent on the uranium they produce. A spokesman for Areva declined to confirm the authenticity of the documents and did not comment on their contents”. Profits without expenses.

Reuters reported that Areva said that a higher royalty rate would have made the business unprofitable. “Mining Minister Omar Hamidou Tchiana, leading the negotiations for Niger, told Reuters the government wants to increase uranium revenues to at least 20 percent of the budget, from just 5 percent at present…‘For 40 years, Niger has been one of the world’s largest uranium producers, but it’s still one of the poorest countries on the planet,’ he said. ‘At the same time, Areva has grown to be one of the world’s largest companies. You see the contrast?’”.

On his last trip to Burkina Faso, the French president Emmanuel Macron said he wanted to reset French-African relations and get rid of Francafrique-style dealings. “I haven’t come here to tell you what is France’s African policy because there no longer is one, there is only a continent that we need to look straight in the face”, he said in his November 2017 speech in Ouagadougou.

How did Areva obtain these privileges? The answer has never been found.

In 2017 Oxfam France’s report called “La transaprence à l’état brut” exposed the lack of transparency in Areva’s taxes paid in Niger. The same report also mentioned some questionable tax payments by Total in Angola.

On his last trip to Burkina Faso, the French president Emmanuel Macron said he wanted to reset French-African relations and get rid of Francafrique-style dealings. “I haven’t come here to tell you what is France’s African policy because there no longer is one, there is only a continent that we need to look straight in the face”, he said in his November 2017 speech in Ouagadougou. He added: “The crimes of European colonisation are unquestionable . . . It’s a past that needs to pass.”

Despite this new approach, there are still enormous biases that divide France from its former colonies. The first one is the colonial approach of the French multinational corporations, as listed above. The second is more symbolic and maybe more important. France is still hiding secrets from its former colonies. There are strong suspicions about a French role in the conspiracy to kill Thomas Sankara, Burkina Faso’s Che Guevara, in 1987. The French government has also been accused of being involved in the Rwandan genocide in 1994. (However, the military documents that can prove that France supplied some militias with arms are still classified.) People protesting in Togo blame the French authorities of supporting President Faure Gnassigbé, the kleptocrat who has refused to follow the constitution, according to his opponents. The same situation applies to other West African ruling families who are heavily criticised at home, but who have good allies in Paris.

Corruption is criminal and immoral. While European countries benefit from this vice, African countries are left to deal with its devastating consequences.

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