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OCTOBER 26th ELECTION: Can the sovereign will of the people prevail in an environment of state terror and intimidation?

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“Elections are the surest way through which the people express their sovereignty. Our Constitution is founded upon the immutable principle of the sovereign will of the people. Therefore, whether it be about numbers, whether it be about laws, whether it be about processes, an election must at the end of the day, be a true reflection of the will of the people, as decreed by the Constitution, through its hallowed principles of transparency, credibility, verifiability, accountability, accuracy and efficiency.” – Supreme Court of the Republic of Kenya, 20th September 2017

The concept of sovereignty derives from the historical political relations between rulers, often in the form of states/governments and citizens. The concept of sovereignty became the central idea of modern political science. The word sovereignty is derived from the Latin word superanus, which connotes supremacy. Sovereignty is in essence about the power to make laws and the ability to rule effectively.

Initially, sovereignty was construed as the supreme power of the state over citizens and subjects, unrestrained by law.[1] Following the doctrine of the Social Contract introduced to the realm of political philosophy by Thomas Hobbes, John Locke and others, the theory evolved to mean that in order to avoid the brutal nature of rule by man, citizens and subjects must delegate their power to a legitimate higher authority, referred to as the ‘Leviathan’ by Thomas Hobbes, to exercise that power on their behalf for the benefit of all.

The sovereign is, therefore, the legitimate supreme body that exercises the monopoly of power on behalf of and for the benefit of all its subjects. As such, sovereign power should be exercised in a responsible manner that considers the well-being of all citizens. This naturally presupposes limits to the excesses of state power through the rule of law, equity and justice. For the sovereign authority to retain its legitimacy, as granted to it by citizens, it must exercise this authority with equanimity.

The first Article of the Constitution of Kenya states that sovereign power belongs to the people of Kenya and demands that such sovereignty be exercised by the constitution. It further states that people may exercise their sovereign power either directly or through their democratically elected representatives. Sovereign power is then donated by the people of Kenya to state organs and institutions, such as Parliament, the Executive, the Judiciary, and County Governments and Assemblies, among others.

Contemporary political scholars depart from the absolutist view of sovereignty, which is unconditional and unrestrained by law, as expressed by Jean Bodin, to a holistic approach that views sovereignty as having to be legitimate and derive its authority from the acquiescence of citizens through political processes like elections, policies and public opinion.[2] Hence, the legal sovereign has to act according to the will of the electorate, which is a body of citizens who have the right to vote. Political sovereignty, therefore, implies suffrage, with each individual having one vote, and control of the legislature by the representatives of the people.

The first Article of the Constitution of Kenya states that sovereign power belongs to the people of Kenya and demands that such sovereignty be exercised by the constitution. It further states that people may exercise their sovereign power either directly or through their democratically elected representatives. Sovereign power is then donated by the people of Kenya to state organs and institutions, such as Parliament, the Executive, the Judiciary, and County Governments and Assemblies, among others. Consequently:

“The basis for Sovereignty of the People lies in honouring the precept that when people surrender to the state their right to exclusively govern themselves, in exchange for proper representation in that respect, the government becomes the citizenry’s agent for such purposes. For instance, this right called universal suffrage (one’s right to vote) is exercised by the Kenyan people every five years as per their constitutional entitlement protected by law. The government’s power as a result is not absolute; but more accurately, it is to be executed, as a matter of fact, in such manner as would lead to the necessary accountability of government to the people since it is they that established the state as well as its constituent organs in the first place.”[3]

Kenya’s political and electoral history

Given that sovereignty is exercised through universal suffrage, it follows that the right to suffrage must be respected and elections need to be legitimate. Kenya’s political history is replete with instances of electoral malpractices that served to bastardise regimes that were propagated by electoral processes that were grossly skewed in favour of incumbency. Illegitimate electoral processes were the hallmark of the one-party state under President Daniel arap Moi’s KANU[4] dictatorship.

Despite the fact that future elections in 1992 and 1997 were held by secret ballot, the legacy of Mlolongo entrenched a political culture of electoral fraud and malpractices, including voter bribery and intimidation, alteration of votes in transit and state-sponsored violence in areas that were perceived as hostile to the executive.

The most notorious desecration of electoral democracy during this era was the queue-voting system of 1988 known as ‘Mlolongo’. The decision to conduct primaries by having voters queue behind the image of their favoured candidates set the stage for massive rigging. Voting malpractices had been witnessed in other elections but this decision made it possible to cheat on a scale never witnessed before, given the opportunity it presented for open voter bribery and intimidation to queue behind state-sponsored or regime-friendly candidates.[5]

Despite the fact that future elections in 1992 and 1997 were held by secret ballot, the legacy of Mlolongo entrenched a political culture of electoral fraud and malpractices, including voter bribery and intimidation, alteration of votes in transit and state-sponsored violence in areas that were perceived as hostile to the executive. The violence was often designed to displace ‘hostile’ communities in order to curb voter turnout. Given the broad-based nature of the National Rainbow Coalition that ushered in the regime of President Mwai Kibaki in an anti-KANU/Moi wave that produced a landslide victory for the then opposition, the country was spared large scale electoral fraud and malpractices in 2002.

The 2002 General Election was held in the context of the expiry of Moi’s two-term limit following pre-1992 constitutional amendments that introduced multiparty democracy through the repeal of Section 2 (A) of the independence Constitution, which in turn had been amended in 1982 to render Kenya a de jure one-party state. The political reforms of that era introduced a two-term limit, meaning Moi could only serve a maximum of two terms post-1992. Moi, however, vigorously campaigned for his protégé Uhuru Kenyatta, who faced a united opposition that rallied behind Mwai Kibaki.

In 2007, the ghost of electoral fraud and malpractices returned to haunt the country. Pitting the incumbent Mwai Kibaki, now under the Party of National Unity (PNU), against Raila Odinga of the Orange Democratic Movement (ODM), the election results, which appeared to reverse an unassailable lead by Raila Odinga, led the country to widespread violence pitting supporters of the two factions against one another and police killing of civilians. The use of private militia to inflict violence was among other factors that led to the functionaries of the two parties and the Commissioner of Police being charged with crimes against humanity before the International Criminal Court (ICC).

The Independent Electoral Review Commission (IREC), chaired by the South African Judge Johann Kriegler, conducted an in-depth investigation into the 2007 Election, and concluded that:

“There was generalised abuse of polling, characterised by widespread bribery, vote buying, intimidation and ballot-stuffing. This was followed by grossly defective data collation, transmission and tallying, and ultimately the electoral process failed for lack of adequate planning, staff selection/training, public relations and dispute resolution. The integrity of the process and the credibility of the results were so gravely impaired by these manifold irregularities and defects that it is irrelevant whether or not there was actual rigging at the national tally centre. The results are irretrievably polluted.”[6]

The Kreigler Commission report informed reforms to the Elections Act and the provisions of the Constitution of Kenya 2010 relating to elections. The Commission of Inquiry into Post- Election Violence (CIPEV), together with the Kriegler Commission, agreed that the flawed electoral process contributed significantly to the 2007-2008 post-election violence. The legal and policy framework governing future elections was an effort to boost credibility and legitimacy of elections in Kenya and to prevent the recurrence of violence. Given Kenya’s chequered political history with regard to elections, specific reforms were made following the recommendations of the Kriegler Commission and other processes to cure particular mischiefs, including the alteration of votes in transit. As such, electronic transmission of results was introduced, with accompanying forms signed and verified by competing political party agents in order to curb electoral irregularities and illegalities.

In this regard, the language of the Constitution of Kenya 2010 and the various amendments to the Elections Act is elaborate, with the words credibility, accountability, verifiability and others qualifying the standards required of elections in Kenya with specific regard to vote tallying, transmission and declaration.

The phraseology of Article 23 of the Constitution of Kenya is a deliberate endeavour to cure the mischiefs identified by the Kriegler Report. It demands that whatever voting method that is used, the system is simple, accurate, verifiable, secure, accountable and transparent.

The phraseology of Article 23 of the Constitution of Kenya is a deliberate endeavour to cure the mischiefs identified by the Kriegler Report. It demands that whatever voting method that is used, the system is simple, accurate, verifiable, secure, accountable and transparent. The framers of the constitution inserted these words to govern elections in Kenya, given the country’s peculiar context and political history with regard to the legitimacy of elections, which are in turn the way in which the people of Kenya exercise their sovereignty. Electoral legitimacy therefore becomes a prerequisite for the genuine exercise of sovereignty. In order for the People of Kenya to exercise their sovereign will through elections, they must be carried out in a manner that is free, fair, credible, transparent, secure, accountable and verifiable. They must be carried out in accordance with the provisions on elections in the Elections Act and the Constitution of Kenya 2010.

Sovereign legitimacy

Political and legal scholars have deliberated upon the doctrine of legitimacy as a prerequisite to the exercise of sovereignty. The following passage from Hugo Grotius’ On the Law of War and Peace expresses the modern perspective of legitimacy in the context of political authority and sovereignty:

“But as there are several Ways of Living, some better than others, and every one may choose which he pleases of all those Sorts; so a People may choose what Form of Government they please: Neither is the Right which the Sovereign has over his Subjects to be measured by this or that Form, of which diverse Men have different Opinions, but by the Extent of the Will of those who conferred it upon him”.[7]

John Locke’s version of social contract theory elevated consent to the main source of the legitimacy of political authority. Legitimacy as a prerequisite to the exercise of sovereignty is captured in the doctrine of popular sovereignty:

“Popular sovereignty, or the sovereignty of the people’s rule, is the principle that the authority of a state and its government is created and sustained by the consent of its people, through their elected representatives (Rule by the People), who are the source of all political power. It is closely associated with social contract philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Popular sovereignty expresses a concept and does not necessarily reflect or describe a political reality. The people have the final say in government decisions.”[8]

Benjamin Franklin expressed the concept when he wrote: “In free governments, the rulers are the servants and the people their superiors and sovereigns[9]. Popular sovereignty, in its modern sense, is an idea that dates to the social contracts school (mid-17th to mid-18th centuries), represented by Thomas Hobbes (1588–1679), John Locke (1632–1704), and Jean-Jacques Rousseau (1712–1778), author of The Social Contract, a prominent political work that clearly highlighted the ideals of “general will” and further matured the idea of popular sovereignty. The central tenet is that legitimacy of rule or of law is based on the consent of the governed. Popular sovereignty implies the exercise of power with the consent of the governed. It is a basic tenet of most republics and some monarchies.[10]

Hobbes, Locke and Rousseau were the most influential thinkers of this school, all postulating that individuals choose to enter into a social contract with one another, thus voluntarily giving up some of their natural freedom in return for protection from dangers derived from the freedom of others. Whether men were seen as naturally more prone to violence and rapine (Hobbes) or to cooperation and kindness (Rousseau), the idea that a legitimate social order emerges only when the liberties and duties are equal among citizens binds the social contract thinkers to the concept of popular sovereignty.[11]

Legitimacy and legality of elections in Kenya

Within the ambit of political theory, one can locate ideas of sovereignty having to be legitimate and based on the rule of law in order to compel citizens to obey the sovereign to which they have donated their individual power for the benefit of all. If sovereign power is exercised with disregard for the rule of law, its legitimacy may cease. As such, the sovereign power derives its authority from those governed and exercises its power legitimately, in accordance with the rule of law and not arbitrarily. In the Kenyan context, where the framers of the constitution saw it fit for sovereignty to reside in the People of Kenya, they alluded to a form of popular sovereignty that requires legitimacy, rule of law, public participation and constitutionalism as a central components of state authority.

Form 34 (A) was deliberately provided for in the law to arrest the mischief of votes disappearing in transit through the verification process of agents. Further, there is a context in which the two Houses of Parliament jointly prepared a technological roadmap for conduct of elections and inserted a clear and simple technological process in Section 39(1) (C) of the Elections Act, with the sole aim of ensuring a verifiable transmission and declaration of results system. In the presence of these illegalities and irregularities, it is difficult to establish whether the sovereign will of the People of Kenya was exercised through the ballot on August 8th 2017.

Without the tenets of constitutionalism, rule of law and public participation, the exercise of sovereignty would be illegitimate. Given the current political environment in which the Supreme Court of the Republic of Kenya nullified the August 8th presidential election citing substantial irregularities of such a magnitude as to impugn the integrity of the electoral process and, given that the Independent Electoral and Boundaries Commission (IEBC), as recently stated by its Chairman Wafula Chebukati, has not made any changes that would render a fresh election credible, will the sovereign will of the people be legitimately exercised through a fresh election on October 26th or any date thereafter without the changes and reforms sought in compliance with the Supreme Court decision?

The Supreme Court impugned the August 8th presidential elections on the basis that they were fraught with so many illegalities and irregularities that so negatively impacted the integrity of the elections that no reasonable tribunal could uphold the election. The most critical and persistent non-compliance with the law was that the IEBC-announced results on the basis of Forms 34B before receiving all Forms 34A.

It was also alleged that the results announced in Forms 34B were different from those displayed on the 1st respondents’ public web portal, contrary to section 39 (1) & (C ) of the Elections Act. The results were not transmitted in the prescribed form, given that results began to stream into the national tallying centre without the mandatory forms 34 (A). Form 34 (A) is the primary document that captures all results from polling station or streams. It is signed by both the presiding officer and agents at the polling station for purposes of verifiability. In the context of Kenya’s electoral history, where votes were often altered in transit, the primacy of this document is critical and not merely a mode of transmission.

Form 34 (A) was deliberately provided for in the law to arrest the mischief of votes disappearing in transit through the verification process of agents. Further, there is a context in which the two Houses of Parliament jointly prepared a technological roadmap for conduct of elections and inserted a clear and simple technological process in Section 39(1) (C) of the Elections Act, with the sole aim of ensuring a verifiable transmission and declaration of results system. In the presence of these illegalities and irregularities, it is difficult to establish whether the sovereign will of the People of Kenya was exercised through the ballot on August 8th 2017.

This is exacerbated by the fact that the Supreme Court drew an adverse inference on the part of the IEBC for failing to provide access to logs and servers to the petitioner (Raila Odinga), concluding that this was a golden opportunity for the IEBC to disprove the allegations of Mr. Odinga with regard to infiltration of the servers and alteration of forms and votes. The Court made an adverse inference on the IEBC, stating that for it to spurn such an opportunity to disprove the petitioners claim of hacking and alteration, IEBC officials themselves interfered with the data or simply refused to accept that it had bungled the whole transmission system and were unable to verify the data.

The Chairman of the IEBC, in a statement on 18th October 2017, less than 10 days before the proposed 26th October election, admitted that under the current conditions, ‘it is difficult to guarantee free, fair and credible elections’. He added that: ‘without critical changes in the Secretariat staff, free, fair and credible elections will surely be compromised[12] while referring to a deeply divided IEBC.

A day before this statement by Mr. Chebukati, a Commissioner of the IEBC, Roselyne Akombe, fled the country citing fears for her life, stating that the IEBC was under political siege and that: “the commission in its current state can surely not guarantee a credible election[13]. According to former Commissioner Akombe:

“We need the Commission to be courageous and speak out, that this election as planned cannot meet the basic expectations of a CREDIBLE election. Not when the staff are getting last minute instructions on changes in technology and electronic transmission of results. Not when in parts of the country, the training of presiding officers is being rushed for fear of attacks from protestors. Not when Commissioners and staff are intimidated by political actors and protestors and fear for their lives. Not when senior Secretariat staff and Commissioners are serving partisan political interests. Not when the Commission is saddled with endless legal cases in the courts, and losing most of them. Not when legal advice is skewed to fit partisan political interests. The Commission in its current state can surely not guarantee a credible election on 26 October 2017. I do not want to be party to such a mockery to electoral integrity.”[14]

These revelations from both the Chairman of the IEBC and a senior Commissioner cast doubt on the Commission’s ability to carry out a legitimate election on October 26th or any other date before making necessary changes to correct the reasons for nullification identified by the Supreme Court on 1st September 2017. Any election without these changes and under the prevailing political circumstances would not meet the test of credibility, transparency, accuracy and verifiability. Such an election would not legitimately reflect the sovereign will of the People of Kenya.

Environment of fear and intimidation

Following the annulment of the August 8th presidential election by the Supreme Court, state security agencies clamped down heavily on citizens demanding credible elections through peaceful protests. In Nairobi, the police brutalised citizens in Mathare, Kibera, Baba Dogo, Dandora, Korogocho, Karoabangi and Kawangware. In Kisumu, the use of live bullets against civilians has been documented following protests against the declaration of Uhuru Kenyatta as the duly elected President by the IEBC on August 9th, a declaration that was later nullified by the Supreme Court. According to Kisumu County Governor Anyang’ Nyong’o: “171 cases of police brutality were reported, six of them rape; seven deaths were confirmed while several people were reported missing.”[15]

The prevailing climate of civil protest and excessive retaliation by state security agencies, including use of live bullets, does not provide an enabling environment for elections free of violence and intimidation. Public participation, freedom of assembly, association and the right to picket and to demonstrate are enshrined in the constitution. An environment in which fundamental political rights are suppressed in the conduct of an electoral process, which is supposed to express the sovereign will of the people, renders that process illegitimate.

Amnesty International and Human Rights Watch published a report on 16th October 2017 titled Kill Those Criminals: Security Forces’ Violations in Kenya’s August 2017 Elections documenting excessive use of force by the police, and in some cases other security agents, against protesters and residents in some of Nairobi’s opposition strongholds after the elections. According to the report:

“At least 23 people appear to have been shot dead by police, three beaten to death, and three died of asphyxiation from tear gas and pepper spray, two trampled to death, and two of physical and psychological trauma. Residents and human rights activists told researchers of another 17 cases of deaths resulting from police actions in informal settlements in Nairobi. Witnesses and human rights activists told researchers of at least four bodies that they said they saw being removed by police in Kibera,; the identities of the victims and where they are currently located are unknown. Dozens of others suffered gunshot wounds and severe injuries due to police beatings.”[16]

Further:

Police used excessive force against protesters, firing teargas in residential areas or inside houses, shooting in the air but also directly into the crowd and carrying out violent and abusive house to house operations, beating and shooting residents.”[17]

This environment of police brutality and intimidation by state security agencies persists and looms large over the proposed date for the fresh election, October 26th 2017. There is heavy and menacing police presence in opposition strongholds seemingly deployed to supress peaceful protestors on, before and after October 26th. Given the trend witnessed in the aftermath of August 8th election, repeated police brutality is likely to follow on, before and after October 26th. The Inspector General of Police issued a statement on 20th October 2017, warning of stern consequences for protestors in the course of the fresh election date. This comes in the wake of the arrests and detention of County Assembly Members in Mombasa and Kisumu for their alleged role in mobilising protestors ahead of October 26th.

Is this environment of fear, brutality and intimidation conducive to the conducting of a free, fair, transparent and credible election? Can the People of Kenya exercise their sovereign will through elections in such an environment? The framers of the Constitution envisaged that citizens should be able to take part in free and fair elections without fear of violence and intimidation. Indeed, violence and intimidation are key elements in Kenya’s electoral jurisprudence as grounds for invalidation of parliamentary and civic elections. In George Gitiba Njenga v Mutunga Mutungi & another [2017] eKLR, the Political Parties Dispute Tribunal restated the requirement for free and fair elections in the context of absence of violence and intimidation as one of the general principles undergirding Kenya’s electoral processes:

“For an election exercise to be said to have been free and fair, according to Article 81 of the Constitution of Kenya, 2010, the following conditions must be met. They include allowing voting through secret balloting, freedom from violence, intimidation and improper influence or corruption, elections being conducted transparently by an independent body and administered in an impartial, neutral, efficient, accurate and accountable manner.”[18]

The prevailing climate of civil protest and excessive retaliation by state security agencies, including use of live bullets, does not provide an enabling environment for elections free of violence and intimidation. Public participation, freedom of assembly, association and the right to picket and to demonstrate are enshrined in the constitution. An environment in which fundamental political rights are suppressed in the conduct of an electoral process, which is supposed to express the sovereign will of the people, renders that process illegitimate.

Conclusion

It is the author’s view that the sovereign will of the people cannot be legitimately expressed in an environment of state terror against civilians. Further, the imposition of an electoral process without the acquiescence of a broad cross-section of the electorate, including the candidate in whose favour the Supreme Court ruled in nullifying the August 8th 2017 election, negates the doctrine of popular sovereignty as it imposes coercive power without consent.

Without this participation, consent to the date and significant remedies for the illegalities and irregularities of the electoral process of August 8th and the proposed election to be carried out on October 26th provide no remedy for the lack of electoral accountability which the Supreme Court sought to enforce in its full decision read on 20th September 2017. Any election in the prevailing political environment, including where the Chairperson of the constitutionally-mandated electoral body, together with a Commissioner, have publicly expressed their reservations about the October 26th poll, cannot be credible and would not legitimately convey the sovereign will of the People of Kenya.

By James Gondi LL.M
The author is a rule of law analyst. His research areas include human rights law, international humanitarian law and transitional justice.

 

[1] Dunning, A ‘Jean Bodin on Sovereignty’ Political Science Quarterly Vol 11 No 1 1986

[2] Patil, Jaiwantaro Mahesh ‘ Sovereignty’ Nayanvar Chavan Law College, Nanded (Mahashatra), India

[3] Ojwang J.B “Constitutional Reform In Kenya: Basic Constitutional Issues and Concepts” 2001 quoted in Kaindo & Maina “Sovereignty of the People and Parliamentary Supremacy” 2014

[4] Kenya Africa National Union, independence political party.

[5] Mugo, Waweru “How the ‘Mlolongo’ System Doomed Polls” The Standard Newspaper 20th November 2013

[6] Report of the Independent Review Commission on the General Elections held in Kenya on 27th December 2007, Page X of the Executive Summary available at: http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-the-Independent-Review-Commission-on-the-General-Elections-held-in-Kenya-on-27th-December-2007.pdf

[7] Grotius, Hugo On the Law of War and Peace in Political Legitimacy Stanford Encyclopaedia of Philosophy April 2017

[8] Duke, George Strong Popular Sovereignty and Constitutional Legitimacy European Journal of Political Theory 2017

[9] Popular Sovereignty and the Consent of the Governed Published by the Bill of Rights Institute, Documents of Freedom- History, Government and Economics through Primary Sources

[10] Ibid

 

[11] Ibid

[12] Wafula Chebukati: I Can’t Guarantee Credible Poll on October 26 Daily Nation 18th October 2017 available at http://www.nation.co.ke/news/Wafula-Chebukati-on-repeat-presidential-election/1056-4145232-oyj67sz/index.html

[13] Resignation Statement of IEBC Commissioner Dr Roselyne Akombe published in Business Today available at https://businesstoday.co.ke/dr-roselyn-akombe-resigns-heres-full-statement/

[14] Ibid

[15] Standard Newspaper ‘Kisumu, the Lakeside City Bears Scars of Constant Police Brutality

Read more at: https://www.standardmedia.co.ke/article/2001254087/kisumu-the-lakeside-city-bears-scars-of-constant-police-brutality 10th September 2017

[16] “Kill Those Criminals” Security Forces Violations in Kenya’s August 2017 Elections. Amnesty International Report at Page 14, 16 October 2017, Index number: AFR 32/7249/201 Available at https://www.amnesty.org/en/documents/afr32/7249/2017/en/

[17] Ibid

[18] Republic of Kenya Political Parties Dispute Tribunal Complaint Number 234 of 2017

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THE 21st CENTURY ECONOMY: In God We Trust, Everyone Else Bring Data

Blockchain technology has the necessary framework to address the challenge of accounting for human capital and allowing for democracy and the creation of knowledge in order to grow the economy. Argues BETTY WAITHERERO

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THE 21st CENTURY ECONOMY: In God We Trust, Everyone Else Bring Data

In a well-written article, economist David Ndii finally went on record with a counter-proposal to the Jubilee economic platform: “If knowledge and human capital are the engines of economic growth, what is the role of the foreign investment and infrastructure edifices that our governments are obsessed with?” he asked.

Dr. Ndii proposes a more realistic approach for a developing nation such as Kenya: Grow the economy by investing in both knowledge and human capital, rather than by mimicking growth seen in already developed nations that focus investments on infrastructure.

In developing countries like Kenya, the returns on government investments in infrastructure and inventory to create capital will always lag behind the initial amount invested i.e. there will be diminishing returns to scale. Ultimately, it will take Kenya a long time to recoup its investment in the standard gauge railway (SGR), for instance. As we can see currently with this particular infrastructural investment, the level of profits or benefits gained through the building of the SGR is significantly lower than the amount of money invested and will remain so for a long time. This is unhealthy growth, but expedient in the short term, in that it is convenient for the government to make such investments even when it is not necessarily wise or morally right to do so.

However, forming capital in an economy by investing in innovation and acquiring human capital – getting people to be productive and to work – will always lead or be at par in proportion to the initial amount of money or resources invested, creating constant returns to scale. Basically, an increase in investments in knowledge and human capital will cause an increase in economic productivity. This is healthy growth because knowledge is wealth, economic growth is learning, and the individual in conditions of economic and political liberty is the resource. These are uncomfortable notions that governments and people must accept before investing in knowledge; democracy must become an enabling means to ones’ productivity and livelihood, going beyond mere politics and electoral cycles.

Dr. Ndii’s explanatory narrative of how both Robert Lucas’s and Paul Romer’s models work together to generate endogenous growth allows us to understand that economic growth, for developing nations especially, is rooted in being able to account for human capital and innovation. In a nutshell, Paul Romer’s endogenous growth theory holds that it is the creation and investment in knowledge, human capital and innovation that is the more substantial contributor to economic growth.

Investing in people

For emerging economies like Kenya, endogenous growth theory and its possible application allows us to correct nearly 150 years of chasing the consequences of other nations’ economic decisions and interests. Put simply, Kenya, just like many other previously colonised African nations, has an economy that is designed to primarily serve the interests of its former coloniser. And despite the intentions of successive governments, a lack of human capital accounting (identifying, reporting and measuring the value of human resources in a country) has ensured that this economic model works to the detriment of the majority of the population.

Of all the devices created by human beings, the government is the most formidable and consequential. The government is responsible for all the best and all the worst happenings in humanity’s history, as well as for everything in between. This device has evolved over generations, taking on different forms and purposes consistent with the prevailing paradigms and needs of its wielders.

The aspirations of the Jubilee government, as expressed in its Big 4 agenda, are to spur and ignite Kenya’s economic growth by ensuring food security and universal healthcare, building affordable housing and increasing manufacturing. However, motivating an entire nation of more than 40 million people to achieve these goals demands a paradigm shift. Investing in human potential, knowledge, skills and creativity ought to be the drivers of economic growth, rather than the seemingly strict investment in state and capital assets, as is the current government’s approach.

Investing in people is not restricted to education; it includes funding for research and innovation, and also investing in information platforms, healthcare and provision of sustenance. In other words, if indeed the Jubilee government wishes to create one million jobs every year, it ought to invest in the people who will do these jobs.

The aspirations of the Jubilee government, as expressed in its Big 4 agenda, are to spur and ignite Kenya’s economic growth by ensuring food security and universal healthcare, building affordable housing and increasing manufacturing. However, motivating an entire nation of more than 40 million people to achieve these goals demands a paradigm shift.

Automation and the productivity gap

The reality is that technology and automation are putting people out of jobs already. In August this year, the Daily Nation reported that 2,792 banking staff had been laid off due to increasing automation and declining profitability – the effect of unintended consequences of the move to mobile financial applications to reach the unbanked, eliminating the need for intermediaries in the banking hall, coupled with the effects of government policies seeking to cap interest rates. This is an ironic outcome given the government’s goal of financial inclusion and greater employment.

Automation in other economies is creating a productivity gap. Increasingly, jobs that were previously done by people are being taken over by more efficient and more accurate machines and robots. This cuts across industries ranging from manufacturing to food production, leaving behind a population of people who do not have the requisite skills for jobs outside their industries. These people fall through the gaps, and remain unemployable for months or even years.

In an article published in Fortune,This is the Future of Artificial Intelligence”,

the wealthy entrepreneur and Xerion CEO, Daniel Arbess, highlighted the profound manner in which Artificial Intelligence (AI) algorithms are eating up human jobs. “Our political leaders don’t seem up to the policy challenges of job displacement — at least not yet, but the application of Big Data software algorithms is elevating decision-making precision to a whole new level, creating efficiencies, saving costs or delivering new solutions to important problems.” he wrote. “The Bank of England estimates that 48% of human workers will eventually be replaced by robotics and software automation.”

Kenya’s unemployment rate is estimated to be 11.4 per cent. This unemployment rate translates to a further 30 per cent of the population living in extreme poverty. There are many harmful social and psychological effects of short- and long-term unemployment, including alcoholism, homelessness, and rising crime, especially crimes that target more vulnerable people such as women and children.

The situation is compounded by nearly three decades of missed growth opportunities brought about by the fact that there was a lack of human capital accounting. Even at its most prosperous, Kenya’s economic policies simply assumed that jobs would be created via investment in infrastructure rather than in people. Consequently, we have a debt culture that affects the entire nation.

Furthermore, having nearly 83 per cent of the working population in the informal sector means that capital is not accessible through tax revenues – a situation that the government opted to address through new taxation aimed at mobile transactions and data. Emerging economies like Kenya need small business to thrive, but work is not forthcoming. Business opportunities are declining, incomes are diminishing and purchasing power is diminishing.

The situation is compounded by nearly three decades of missed growth opportunities brought about by the fact that there was a lack of human capital accounting. Even at its most prosperous, Kenya’s economic policies simply assumed that jobs would be created via investment in infrastructure rather than in people. Consequently, we have a debt culture that affects the entire nation.

And because the government is hoarding tenders (in July, Uhuru Kenyatta ordered a freeze on new government projects), business is hoarding opportunities and banks are hoarding finance. As productivity is constrained, banks and non-bank financial institutions (NBFIs) are distributing through debt the purchasing power that businesses are not distributing through salaries.

China is doing the same on an international scale by distributing purchasing power through debt as a substitute for national economic growth. It is building infrastructure, such as highways and railways, using loans that are then spent on Chinese companies that serve China’s interests, even though the infrastructure will, hopefully, eventually benefit the debtor nation.

Human capital accounting

A lack of accounting for human capital exacerbates the situation. An economic model that seeks great investment in infrastructure in order to boost the economy but does not account for people engaging in economic activity will result in a mismatch, most graphically seen in an absence of skilled and qualified professionals adept at doing the new jobs that are created. So, without the necessary skills, the locals fall through the employment gaps, and unfortunately, foreigners, with the requisite skills, are hired.

Governments advance the welfare of citizens by establishing and executing public policy for net positive outcomes. This is conventionally done through the creation of rules and regulations, and enforcing their compliance. If viewed in technology terms, the government can be described as a protocol stack (a set of rules) that responds to any input in a prescribed manner consistent with underlying statutes. Indeed, failures in government can be spectacularly linked to the ignoring, circumvention or subversion of the procedures set forth to guide healthy operability among various constituencies and concerns among the citizenry.

Smart-law is the idea that a legal statute can be implemented as a digital computational protocol to which users can connect, execute and return results exactly according to the purpose and design of the underlying legal architecture. There are benefits to a smart-law paradigm, including the fact that it can be censorship-resistant, in that transactions cannot be altered and anyone, without restriction, can enter into those transactions; it is trustless, meaning that trust (knowing and trusting the other party to fulfil their obligations) is not necessary or required, and it does not discriminate in the manner or order of its operations.

The Kenyan government has taken action to advance citizen-centred public service delivery through a variety of channels, including deploying digital technology and establishing citizen service centres across the country. Smart-laws that can provide compliant, straightforward and predictable interactions between citizens and the bureaucracy would have a big and important role to play in this endeavour.

The world in the 21st century is one of advancement through technology. Everything has made a leap forward in one way or another through the impact of technology. It is also true that among all entities, the government remains the most obstinately slow in embracing technology and innovation.

The Kenyan government has taken action to advance citizen-centred public service delivery through a variety of channels, including deploying digital technology and establishing citizen service centres across the country. Smart-laws that can provide compliant, straightforward and predictable interactions between citizens and the bureaucracy would have a big and important role to play in this endeavour.

The time is right for the government to undergo a technology-driven transformation that it so yearns and that will bring it up to par with the industries and sectors it intends to effect. By doing so, it can unleash the potential of the 21st-century citizen.

Blockchain technology

Kenya’s recognition of blockchain technology via its Blockchain Task Force headed by Dr. Bitange Ndemo allows for a little optimism. I will provide a simple explanation for this technology. Blockchain is very often conflated with bitcoin and cryptocurrency trading. However, blockchain is an incorruptible digital ledger where transactions are recorded and cannot be altered. In securing these transactions, computer processors complete complex mathematical equations which when solved are rewarded with a token. The token can bitcoin, or ethereum, all depending on which blockchain platform is being utilised.

The trading and investing of these coins by laypeople in Kenya (sometimes leading to loss of funds) is what leads both Dr. Patrick Njoroge and Dr. David Ndii to call cryptocurrency a scam. I am inclined to agree with them on the matter of how the trading is conducted in Kenya – some traders entice investors with a multi-level marketing or Ponzi-style scheme. But I disagree with a blanket declaration writing off this technology and its potential utilisation in governance and its products, the cryptocurrencies. I recently had a robust discussion with Dr. Ndii on twitter on the same matter.

It is my firm belief that blockchain technology has the necessary framework to address the challenge of accounting for human capital and allowing for democracy and the creation of knowledge in order to grow the economy.

Together with two of my colleagues, Andrew Amadi, who is a sustainable energy engineer, and Chris Daniels, who is an economist and programmer, we created the Freework Society in 2017 with the aim of achieving this particular goal through a programmable economic model built on ethereum blockchain. (Ethereum is an open-source, public, blockchain-based and distributed computing platform and operating system featuring smart contract functionality.)

It is my firm belief that blockchain technology has the necessary framework to address the challenge of accounting for human capital and allowing for democracy and the creation of knowledge in order to grow the economy.

In developing a public computing infrastructure that can implement smart-laws, and which can also account for anyone’s work and effort, and can allow for investment in innovation, we were compelled to improve the very platform we would utilise by creating a standard. This standard is called an Ethereum Improvement Proposal (EIP), which describes core protocol specifications, client application programming interface (API) and contract standards. In a nutshell, an EIP describes how the platform will function if the proposal is implemented.

In developing countries like Kenya, the returns on government investments in infrastructure and inventory to create capital will always lag behind the initial amount invested i.e. there will be diminishing returns to scale.

Our proposal is to utilise the opportunities presented on ethereum blockchain technology by creating a human capital accounting framework that provides a merit-based system of indexing human resources, knowledge and talent, and subsequently reducing market search costs and challenges to price discovery and increasing the desirability to share value, work, and assets within the economy. This proposal has been accepted and assigned Ethereum Improvement Proposal EIP1491.

EIP1491 is a proposal that intends to contribute to the development of a human capital accounting standard on blockchain. EIP1491 allows for the implementation of standard APIs for human cost accounting tokens within smart contracts. This standard provides basic functionality to discover, track and transfer the motivational hierarchy of human resources.

Whereas blockchain architecture has succeeded in the financialising of integrity by way of transparency, correspondingly real-world outcomes will be proportional to the degree of individualisation of capital by way of knowledge.

What this means in an entrepreneurial economy is that where you have employers and workers looking to exchange value (work for money) there is now a proposed standard of how to go about this, and these standard assigns unit value to the labour/work that is done, and creates a meritocracy for those who will do the work i.e. a standard unit of labour with a coefficient that assigns value via points to education, years of experience, talent, and interests.

Suppose there is an employer who wishes to have job X done by a university graduate with three years’ experience, for which he is willing to pay Y amount of money. Utilising our standard API, the employer is able to compute how many labour hours he will be required to pay for, and what exact merit the employee will have, meeting the challenge of price discovery. The employer will also reduce his market search cost because he is able to track and locate the right candidate for the job. Both employer and employee are happy with the work because both are correctly directed to the right smart contract.

For millions of people in emerging economies around the world, the potential of EIP1491 will allow for individualised agency, rather than that agency being rooted in government. As we can all agree, despite the best of intentions, governments cannot be trusted to act in the interest of citizens. The best example for this is the debt-based culture that currently runs economies.

This means that an individual’s human resource, talent, interest and work has a value that can be exchanged at will because the individual has control over his agency. He is able to turn his different trades into capital that can be exchanged directly for purchasing power.

The ability to factor in growth in a knowledge-based economy ultimately should mean that not only is unemployment impeded, but that with increased utilisation, time becomes money, waste is reduced and the incidences of unrealised potential and missed opportunities are eliminated. Total factor productivity can be achieved in a shared agency ecosystem where millions engage willingly in exchanging value propositions using their own human capital.

We invite robust engagement and discussion on this standard and its applicability, and comments on the same.

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DEPOLITICISING DEVELOPMENT: Jubilee and the Politics of Spin

The tissue that connects the depoliticisation of development, the blind deployment of technology, and the professionalisation of the cabinet is Jubilee’s shamelessness. No political party is without faults and foibles, but in Jubileeland, shamelessness has taken an insidious form. By ABDULLAHI BORU HALAKHE

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DEPOLITICISING DEVELOPMENT: Jubilee and the Politics of Spin

In the Jubilee universe, it is almost an article of faith that politics is “bad” and development is “good”. It’s not uncommon to hear President Uhuru Kenyatta, Deputy President William Ruto, and high-level administration officials and their supporters’ constant put-downs directed at their opponents: “We don’t have time for politics, we are only interested in development.” They believe that the depoliticisation of development is necessary in order for them to deliver on their campaign promises.

While such a rhetorical sleight of hand is occasionally designed to silence opponents – who are supposedly opposed to development – in practice, it also reveals the Jubilee government’s limited understanding of politics. For them development is a cold, apolitical, technical exercise that is not only immune to politics, but transcends it.

More broadly, Jubilee’s politics-development dichotomy is an insidious attempt at redefining politics as criticising Jubilee, whether fairly or unfairly, and development as praising the administration, whether they are delivering or not. The net aim is to induce self-censorship among critical voices.

Techno-fallacy

Building a rhetorical firewall between development and politics is not a new idea; President Daniel arap Moi’s favourite retort when placed under pressure was “Siasa mbaya, maisha mbaya” (bad politics, bad life), never mind that under him, Kenya was firmly in mbaya zone. Maisha was so mbaya under Moi that economy growth was a mere 0.6 per cent when his successor Mwai Kibaki took over in 2002. Dissent was penalised and the country felt like a band that was dedicated to singing his praises. It is rather ironic that Jubilee, which would like to be remembered for good economic stewardship, would look to Moi for inspiration.

Building a rhetorical firewall between development and politics is not a new idea; President Daniel arap Moi’s favourite retort when placed under pressure was “Siasa mbaya, maisha mbaya”

The Jubilee government has also coupled the depoliticisation of development with a similar rhetoric on technology, in the process completely eviscerating nuances, complexities or grey areas when discussing public policy. You are either part of the cult of technology or you are not interested in progress.

In his book, To Save Everything, Click Here: The Folly of Technological Solutionism, Evgeny Morozov captures Jubilee’s approach to development: “Recasting all complex social situations either as neat problems with definite, computable solutions or as transparent and self-evident processes that can be easily optimised — if only the right algorithms are in place! — this quest is likely to have unexpected consequences that could eventually cause more damage than the problems they seek to address.”

For instance, one of Jubilee’s bright ideas of fixing the education system is to provide every child with a laptop, in line with their emphasis on learning science, technology, engineering, and mathematics as opposed to the humanities, which they see as not “marketable”. Never mind that only slightly over half of Kenya has access to electricity, that the teachers have not yet been trained or hired for the switch to using laptops, and most schools do not have computer labs. Jubilee is, after all, led by the dynamic digital duo that needs everyone to be wired.

Along with a blind faith in technology, Jubilee also regards corporate experience as a most prized asset in public appointments – as exemplified by the Harvard-educated former Barclays CEO, Adan Mohamed, who is the Cabinet Secretary for Industrialisation. For Kenyatta and his ilk, corporate experience, when coupled with technology, will fix pesky inefficiency and sloth in the public service.

This is not new; under pressure domestically from opposition groups, and externally from the Bretton Woods institutions, Moi appointed a “Dream Team” to key public offices. The officials were drawn from the private sector, international finance and development organisations. The group was led by Richard Leakey (the famous paleoanthropologist and former head of the Kenya Wildlife Service who had even formed a political party to oppose Moi in 1990s), who was appointed as the Secretary to the Cabinet and Head of the Civil Service. Martin Oduor-Otieno, a former director of finance and planning at Barclays Bank, was appointed as the Permanent Secretary in the Ministry of Finance and Planning and Mwangazi Mwachofi, the resident representative of the South Africa-based International Finance Corporation, became the Finance Secretary.

Along with a blind faith in technology, Jubilee also regards corporate experience as a most prized asset in public appointments – as exemplified by the Harvard-educated former Barclays CEO, Adan Mohamed, who is the Cabinet Secretary for Industrialisation. For Kenyatta and his ilk, corporate experience, when coupled with technology, will fix pesky inefficiency and sloth in the public service.

While Moi was boxed into a corner and had no option but to cater to donors’ wishes, Jubilee’s appointment of well-credentialed public officials from the private sector is an attempt to demonstrate that the government is using corporate best practice principles to manage the public sector. However, the appointment of individuals with private sector or international expertise is rooted in a lack of appreciation for received bureaucratic wisdom; it is a system of faceless, unelected officials keeping the state’s institutions humming along and ensuring continuity from one administration to another.

For Jubilee, bureaucracy is a dirty word. Both under Moi and under Jubilee, the credentialed senior public officials failed to deliver, although on balance, Moi’s cabinet, which had more court poets than individuals with diplomas from good schools abroad, did better.

Grievances and greed

Jubilee’s weaponisation of optics and breathless spin was honed when Uhuru Kenyatta and William Ruto – the two principals in the Jubilee coalition – were indicted by the International Criminal Court (ICC) for their alleged role in 2007-2008 violence.

Ruto and Kenyatta make an unlikely political team. The latter is a prince of Kenya’s politics and the former is a self-declared “hustler”. Even when considering Kenya’s shape-shifting political landscape and allegiances, the two couldn’t be more different.

But they were brought together by grievance and greed. They regarded their prosecution at the International Criminal Court as a witch-hunt; they argued that the two top presidential candidates during the 2007 election that led to violence and displacement were former President Mwai Kibaki and former Prime Minister Raila Odinga.

During the course of their indictments, the duo skillfully used social media and established themselves as bona fide underdogs. As a result, they refined their enduring ability to generate sometimes pugnacious, if not altogether needless, spin, which had tremendous traction with their base. Ruto and Kenyatta cast the ICC as an imperial project bent on getting them, effectively framing themselves – not those killed, maimed or displaced – as the victims of the post-election violence. Their spin was so effective that even some of the victims of the violence held “prayer rallies” for them.

In fairness, some of the reputational damage experienced by the ICC was self-inflicted. When I visited a IDP camp in Nakuru in 2011, one of the IDPs told me that the ICC’s Chief Prosecutor, Moreno Ocampo, had no time to visit them, and was busy doing safaris in Nairobi National Park.

During the course of their indictments, the duo skillfully used social media and established themselves as bona fide underdogs. As a result, they refined their enduring ability to generate sometimes pugnacious, if not altogether needless, spin, which had tremendous traction with their base. Ruto and Kenyatta cast the ICC as an imperial project bent on getting them, effectively framing themselves – not those killed, maimed or displaced – as the victims of the post-election violence.

The ICC was not the only victim of Jubilee’s rage; Raila Odinga, the cottage industry of upstart politicians, felt the full weight of Jubilee’s relentless propaganda blitzkrieg, part of it also emanating from his support for the ICC process, which Ruto, his lieutenant in 2007, interpreted as throwing him under the bus. (Ruto was a leading member of Odinga’s team during the 2007 election.)

After claiming some big domestic and foreign scalps, Jubilee started believing is own hype. While many dismissed Jubilee’s breathless social media campaigns during the elections as a passing fad once the cold reality of governing sets in, for Jubilee social media was the system. Beyond the hype, any critical assessment of Jubilee’s grand ideas, such as a 24-hour economy, 9 international standard stadia, and 21st century public transport, would show that they are all sizzle and no steak. The large-scale infrastructure projects were mostly designed as a gravy train, as the Standard Gauge Railway amply demonstrated.

Politics of shamelessness

The tissue that connects the depoliticisation of development, the blind deployment of technology, and the professionalisation of the cabinet is Jubilee’s shamelessness. No political party is without faults and foibles, but in Jubileeland, shamelessness has taken an insidious form. The shamelessness here is not the kind citizens have come to almost expect from the politicians; in Jubilee’s case, it is its modus operandi, a blunt object to hit opponents with. The lack of shame has not only been adopted by Kenyatta and Ruto, but also by their close lieutenants.

When the presidential results were announced two days after the annulled August 8, 2017 election, demonstrators and the police engaged in a running a battle in the Mathare slum in Nairobi. Police used live bullets and killed both demonstrators and bystanders. I spoke to some of the families of the victims and corroborated their stories with medical records and family witnesses.

The tissue that connects the depoliticisation of development, the blind deployment of technology, and the professionalisation of the cabinet is Jubilee’s shamelessness. No political party is without faults and foibles, but in Jubileeland, shamelessness has taken an insidious form.

But on August 12, at a press conference, the then Acting Internal Affairs Cabinet Secretary, Fred Matiangi’ denied that police had shot and killed people. He stated, “I am not aware of anyone who has been killed by live bullets in this country. Those are rumours. People who loot, break into people’s homes, burn buses are not peaceful protesters.” Yet it is not that Matiangi’ did not have access to the details of the people killed, some of whose deaths have been recorded in government hospitals and by the media and human rights groups.

Jubilee learnt some of this shameless spin from Moi’s Kanu party. In 2000, when drought was ravaging parts of Northern Kenya, the then government minister, Shariff Nassir, denied there was drought when pressed in Parliament by one of the area MPs. A few days later, the government declared a famine in Kenya.

President Kenyatta says that fighting corruption will be a key pillar of his legacy. The Auditor General’s Office has done more than any other state organ to reveal the level of corruption in government agencies through audit reports. In an ideal world, you’d think that the president would consider the Auditor General’s Office as a key ally. But the president scoffed at the Auditor General’s plan to investigate the activities of the Federal Reserve Bank of New York in relation to the alleged misuse of $2 billion Eurobond cash that Kenya raised in 2014. The president was quoted telling the Auditor General, “When you say that the Eurobond money was stolen and stashed in the Federal Reserve Bank of New York, are you telling me that the Kenyan government and United States have colluded?” The president then insinuated that the Auditor General, Edward Ouko, was stupid. Never mind that the president’s remarks came during a State House anti-corruption summit. It is also likely that the story of the missing Eurobond money will be the story of Jubilee’s corruption.

Lack of shame is dangerous when it comes from a place of entitlement – the #Mtado? phenomenon. Which naturally breads impunity.

David Ndii wrote, “Jomo Kenyatta’s regime was corrupt, illiberal and competent. Moi’s was corrupt, illiberal and mediocre. Kibaki’s was corrupt, liberal and competent. So, Moi scores zero out of three. Jomo scores one out of three. Kibaki scores two out of three.”

The original sin after 2010 constitution was promulgated was when a court ruled that Kenyatta and Ruto could contest the 2013 elections despite being indicted by the ICC. This officially killed Chapter Six on leadership and integrity of the Katiba, which effectively set Kenya down the path of “anything goes”.

Lack of shame is dangerous when it comes from a place of entitlement – the #Mtado? phenomenon. Which naturally breads impunity.

Kanu and Jubilee have ruled Kenya longer than any other party, and in the process have created the Kenyatta and Moi family and business dynasties. When under pressure, it is not uncommon to see Kenyatta and Jubilee seek Moi’s eternal wisdom. The visits to Moi’s home are done at the exclusion of William Ruto, which sets up 2022 neatly as the battle between the princes and the hustler.

Raila was a key player in the 2002 elections, and in 2013, Ruto was a key player in defeating Raila. In 2022, Ruto could face Raila’s fate. While Ruto’s defeat could delight many, the techno-dignified political opportunism that is Jubilee, which is illiberal, incompetent and corrupt, will endure.

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TERRORISM: Officialdom’s baffling silence in the wake of Sylvia Romano’s abduction

The potential significance of the abduction of Ms Sylvia Romano has already been pushed into the background but will this be yet another wake-up call to be ignored by the Government of Kenya. By ANDREW FRANKLIN

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TERRORISM: Officialdom’s baffling silence in the wake of Sylvia Romano’s abduction

Ms Sylvia Constanca Romano, a twenty-three year-old Italian NGO worker, was abducted on Tuesday, November 20, 2018 at 8 pm from her lodging in the remote trading centre of Chakama, located 80 km west of the Kenyan Indian Ocean resort town of Malindi in Kilifi County. Ms Romano was managing a children’s home for the Italian NGO, African Milele Onlus, and the armed men who took her were identified as being of Somali origin.

Weeks later, this Italian woman is still missing and while not immediately dismissing the involvement of Al Shabaab, the Government of Kenya is still resisting suggestions that the kidnappers were terrorists rather than ordinary thugs carrying AK-47s. Although initial reports in the Italian media were quick to blame Al Shabaab, the Italian Government just as rapidly asserted that the kidnappers were “armed herders” although, as quoted in the local media, fears were expressed that Ms Romano might have been sold on to Al Shabaab elements inside Somalia.

Italy was the preeminent colonial power in the Horn of Africa, especially in what is today effectively the Federal Government of Somalia (FGS) territory, which is currently being contested by jihadists. Italy contributes paramilitary police advisors to the nine-nation European Union Mission to FGS and has trained the Somalia Government police at its base in Djibouti; Italian Navy elements have participated in anti-piracy patrols off Somalia since 2008.

In October 2018, Al Shabaab in Mogadishu targeted a convoy of Italian security personnel returning to their base with a vehicle-borne improvised explosive device (IED). Although there were no Italian casualties, this attack on foreigners is not Shabaab’s modus operandi; the main targets of the terrorist organisation’s operations within Somalia have mainly been Somalis, although neighbouring Kenya has been a target since Operation Linda Nchi – the Kenyan Defence Forces (KDF) incursion into Somalia in October 2011. Some of the most deadly Al Shabaab attacks on Kenyan soil include the Westgate mall attack in Nairobi in September 2013 in which 67 people lost their lives and the Garissa University College massacre in April 2015, in which 147 students were brutally gunned down.

Elsewhere in the region, the Kenya Police recently took delivery of four Italian-made utility helicopters for use in its operations domestically against terrorists. Italy’s continuing role in the war on terror within the region remains low key and its government prefers to keep it that way.

It has been confirmed that at least three of the attackers had arrived in Chakama several days earlier and had rented lodgings and apparently observed village routines, including Ms Romano’s activities. Initial reports were that five heavily armed assailants had shot wildly during the Tuesday evening attack, wounding five Kenyans before seizing the Italian; there has yet to be an explanation for the origin of AK-47s or when they were smuggled into the trading centre. According to the police, the attackers fled with their hostage using two subsequently abandoned motorbikes before crossing a major river and disappearing into a rather thick bush.

It has been confirmed that at least three of the attackers had arrived in Chakama several days earlier and had rented lodgings and apparently observed village routines, including Ms Romano’s activities. Initial reports were that five heavily armed assailants had shot wildly during the Tuesday evening attack, wounding five Kenyans before seizing the Italian…

There is no permanent police presence in Chakama, which is located in a remote area of Kilifi County. It seems that there was no organised security forces’ response during the first 24 hours following the abduction. The security forces’ operating capabilities during the hours of darkness cannot be evaluated except for certain elite units (i.e. General Service Unit [GSU] Recon and KDF Rangers and Special Forces). Regular police and Administration Police (AP) units, regardless of designation, are not trained, organised or equipped for extensive patrolling. Although police helicopters were deployed to the area, it’s unlikely that the hastily cobbled together rescue force, comprising Kenya Wildlife Service (KWS) Game Rangers, KDF troops, GSU, APs and regular police, had the ability to coordinate ground forces with air support.

In fact, in the event that this was an Al Shabaab operation, the seeming reticence on the part of the security forces is understandable as it would be expected that Al Shabaab would plant IEDs and organise ambushes to slow down pursuit and inflict maximum damage on the rescuers. This is standard procedure and characteristic of all guerrillas fighting road-bound conventional forces; since 2016 Al Shabaab has been regularly ambushing KDF and/or police patrols across all five frontline counties in Kenya. Another foreseeable risk is that Al Shabaab will attempt to shoot down a police helicopter, as was reported on 2 September in the vicinity of Boni Forest in Lamu County.

Although remaining somewhat tight-lipped about the actual affiliation of the attackers, the expansion of search activities outside Kilifi County into neighbouring Lamu, specifically into Boni Forest, which straddles the Kenya-Somalia border, and the issuance of “WANTED” posters for three men of ethnic Somali origin – albeit without specific background details – point to officials believing this to have been an Al Shabaab terrorist operation. Since the kidnapping, the Kenya Police have taken more than twenty civilians in and around Chakamba into custody for questioning; the wife and brother-in-law of one of the three named suspects were arrested in Garsen in Tana River County when a telephone call was intercepted and traced back. As with the previously noted lack of explanation regarding the presence of AK-47s in Chakamba, there was no information provided as to whether the security forces were able to trace the GPS signatures of the suspects; Al Shabaab operatives would no doubt discard their phones to avoid detection. Perhaps these men are part-time insurgents or even freelancers?

Although remaining somewhat tight-lipped about the actual affiliation of the attackers, the expansion of search activities outside Kilifi County into neighbouring Lamu, specifically into Boni Forest, which straddles the Kenya-Somalia border, and the issuance of “WANTED” posters for three men of ethnic Somali origin – albeit without specific background details – point to officials believing this to have been an Al Shabaab terrorist operation.

Operation Linda Nchi and its after-effects

Operation Linda Nchi, a cross-border punitive expedition by 1,800 KDF troops, was launched on 15 October 2011 ostensibly in retaliation for alleged Al Shabaab kidnappings of Spanish MSF workers from the Dadaab refugee camp and tourists from Manda Island in Lamu, The latter attacks were eventually found to be the work of common criminals based in Ras Kamboni where pro-FGS forces hold sway. Al Shabaab’s involvement in the kidnapping of the Spanish volunteers was neither confirmed nor denied. Anecdotal evidence, however, indicates that the kidnappings within Somalia of locals has been used to raise funds not only by criminals but also by Al Shabaab, which has long made money from participating in transnational organised criminal activities, including charcoal smuggling, arms dealing, human trafficking and trade in illicit narcotics.

Al Shabaab attacks have taken place fairly regularly across the five Kenyan counties bordering Somalia, whose populations are overwhelmingly Muslim and predominately of ethnic Somali origin. Although Al Shabaab has eschewed headline-grabbing terror attacks, such as that on the Westgate mall in September 2013, its fighters regularly target police and KDF patrols, permanent security force bases, mobile telephone masts and power stations. Occasionally they also take control of villages and harangue inhabitants at night with little or no government interference. In June 2016, for instance, Al Shabaab took control of the villages of Mpeketoni and Poromoko in Lamu County and killed 60 men. The security response to this attack was dismal; there were stories of police stations in Mpeketoni being abandoned prior to the attack and villagers being left to their own devices to deal with the terrorists.

Since 2016, most professional security analysts agree that the Al Shabaab attacks have derailed devolution in the frontline counties of Mandera, Wajir, Garissa, Lamu and Tana River by severing the people from administrative functions. The attacks have throttled formal economic activities and disrupted delivery of education and social and health services. Civil servants, teachers, traders and students from outside these counties fear returning there after an attack. Most of the students who survived the Garissa University College attack, for example, were relocated to campuses in other parts of the country. Many teachers have also refused to be sent to these counties for fear of being attacked by Al Shabaab. These attacks have effectively normalised a state of endemic insecurity within which police elements and KDF units are alienated from the local citizens, many of whom are not convinced that they are truly citizens of the Republic of Kenya as their regions have been systematically marginalised and neglected since independence in 1963.

Despite attempts by all parties in Nairobi to portray events in Garissa, Tana River, Mandera, Wajir and Lamu counties as merely episodic terrorism that can happen anywhere in the world, the reality is that Al Shabaab insurgents are conducting a reasonably successful, low-intensity conflict that complements its operations to defeat the Western-backed FGS based in Mogadishu. In fact, the KDF invasion of Somalia and its subsequent incorporation into the African Union Mission in Somalia (AMISOM) inadvertently provided Al Shabaab opportunities to subvert the Kenyan government’s influences across the restive predominantly ethnic Somali counties, to expand recruitment, to increase revenue from transnational crime and to undermine the morale of a major troop-contributing country. Kenya, out of all the states adjacent to Somalia or involved in AMISOM, has been shown to have the most fragile domestic security architecture amidst a fractious political environment in which little or no attention is paid to matters of national insecurity.

Despite attempts by all parties in Nairobi to portray events in Garissa, Tana River, Mandera, Wajir and Lamu counties as merely episodic terrorism that can happen anywhere in the world, the reality is that Al Shabaab insurgents are conducting a reasonably successful, low-intensity conflict that complements its operations to defeat the Western-backed FGS based in Mogadishu.

The abduction of an Italian NGO worker from a remote market centre in Kilifi County, which is outside of Al Shabaab’s normal area of operations, had to have been well-researched and carefully planned. Nearly all Western states have prohibited their officials from working within the five frontline counties and tourists have been actively discouraged from visiting even popular resorts on Lamu Island. Travel advisories issued since 2012 have crippled Kenya’s tourism sectors, especially along the Coast in Malindi, Watamu, Kilifi and the beaches north of Mombasa; however foreigners like Sylvia Romano would not really have been warned off by their governments and are now the best targets available to Al Shabaab and/or disparate armed groups, including livestock raiders and poachers.

Western governments have pretty much placed most of the five frontline counties off limits to their employees and strongly discouraged their citizens from visiting them for any purposes. Al Shabaab has been very active in mainland Lamu County, which resulted in foreigners being discouraged from visiting popular locations on Lamu Island and adjoining islands. Although the UK lifted its travel advisory in May 2017, the position of the US Government and others remains oddly ambiguous.

However, Al Shabaab is considered one of the most dangerous of Al Qaeda’s global franchises; Al Qaeda cells blew up US Embassies in Nairobi and Dar es Salaam on 7 August 1998 and the terrorist organisation launched a suicide bomber against the Israeli owned Paradise Hotel in Kikambala in 2002. Simultaneously, Al Qaeda operatives unsuccessfully attempted to shoot down an El Al charter flight taking off from Mombasa. Al Qaeda has never backed away from threats to retaliate against citizens of enemy nations wherever they are located and it seems likely that Al Shabaab will expand activities wherever targets can be found.

The Italian connection

There are nearly 15,000 Italian citizens living in Malindi, Watamu and elsewhere on the Kenyan coast. The Italian government operates an official satellite tracking/space research facility just north of Malindi. During the pending festive season, hundreds more Italians will descend on an otherwise depressed holiday destination. In my view, Al Shabaab is implicitly threatening the safety of these people in order to leverage the Italian government to reduce its footprint in Mogadishu.

As with the kidnappings of foreigners in 2011, whether Al Shabaab fails to take responsibility or is ultimately found not to be culpable is less important than popular perception. The longer Sylvia Constanca Romano remains unfound, the greater the possibility that media attention, particularly in Italy, will speculate on whether Al Shabaab is involved and whether there is a link between the Italian government’s counterterrorism activities against Al Qaeda/Al Shabaab and her abduction.

Although the Chakamba market centre is several kilometres away from major Indian Ocean tourist towns, it is located in an area traversed by foreigners visiting Kenya for luxury safaris – the very same bush into which the Italian woman’s abductors fled. Whether this incident is the start of a high season offensive intended by Al Shabaab to further undermine the economy of Kilifi County cannot be ruled out. Doing so would further undermine support by the Kenyan public, especially at the coast, for KDF’s continued deployment to AMISOM, particularly if Italian security assistance to FGS is seen to falter.

So far, Nairobi’s Western allies have not extended stringent travel advisories outside of the five frontline counties but it can be expected that an unhappy outcome of yet another botched Government of Kenya anti-terrorist operation will impact negatively on economies of already shell-shocked coastal counties where there are strong undercurrents of opinion favouring self-determination and even secession.

Regardless of how this unfortunate incident plays out, the fact of its occurrence indicates that expert advice concerning best practices to respond to cross-border and even domestic attacks of this type have been ignored for more than seven years. The initial reaction to the news of the kidnapping followed the same old script in which personnel from different security forces were thrown together without appropriate training and organisation to track a small gang through unfamiliar terrain during the hours of darkness. Reports that police were detaining witnesses may mask employment by security personnel of heavy-handed and counterproductive methods, which have been the trademark of government forces since before independence in 1963.

It is notable, however, that the Kenyan government has successfully controlled the flow of information although it has to date set the narrative by avoiding any narrative. In this, the authorities have been aided by a seemingly disinterested and largely uninformed domestic media. Kenya’s mainstream press has avoided anything suggesting that the government’s war on terror, whether at home or in the near abroad, is less than a reasonable success under the circumstances. Local and international media have excluded security professionals who can document how officialdom has perversely ignored practical, common sense solutions to the myriad security issues that have evolved into a comprehensive existential threat to national security.

It is notable, however, that the Kenyan government has successfully controlled the flow of information although it has to date set the narrative by avoiding any narrative. In this the authorities have been aided by a seemingly disinterested and largely uninformed domestic media.

The potential significance of this kidnapping has already been pushed into the background; will this be yet another wake-up call to be ignored?

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