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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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LOST AND NOT FOUND: What happens when people go missing in Kenya

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LOST AND NOT FOUND: What happens when people go missing in Kenya

It could be an empty bed or an untouched room. An automated horoscope on their Twitter account or a dormant Facebook profile. All that remains are memories. A family photo no one talks about anymore. Things left unsaid. Spaces left unfilled. Some choose to keep them that way in the hope that their loved one will walk back through the door.

But they don’t always do.

Mohammed Abdulkarim, popularly known as Czars, has been missing since October 2006. The teen heartthrob was barely a week away from his final high school exams and on the verge of what looked like it would be a wildly successful music career. The skinny, light-skinned 17-year-old was a national sensation for his song “Amka Ukatike.” Yet that day in 2006, he took a walk from their family home and never came back. Last year, on the tenth anniversary of his disappearance, his father voiced that undying hope that he will find his way back, wherever he is. He’d kept his son’s room intact for a decade.

For Abdullahi Boru, those constant reminders are embedded in his career after his best friend and former housemate, Bogonko Bosire, went missing in September 2013. Bogonko was a pioneer blogger who ran a popular and controversial tabloid. He went missing at the height of the International Criminal Court cases against President Uhuru Kenyatta and his Deputy, William Ruto, and from the little we know so far, probably because of them. “I’ve known Bogonko Bosire since 2000 when we joined journalism school. Then after we were done we shared a house as we fit into our first jobs” Boru says. For him, Bosire is still in the present tense, an unsolved disappearance that will one day have a solution. That same year, in December, a senior State House advisor called Albert Muriuki also disappeared. His case too, remains unsolved.

Last year, on the tenth anniversary of his disappearance, his father voiced that undying hope that he will find his way back, wherever he is. He’d kept his son’s room intact for a decade

For the family of independence hero Kung’u Karumba, one of the Kapenguria Six, that has been a 43-year-long wait. The freedom fighter disappeared in 1974 while on a business trip to Uganda and was most likely caught up in political upheaval. But there has never been any proof of his death, so his family has kept hope alive. In 2004, 30 years after he went missing, his youngest wife Esther Wanjiru told The Standard “I am still waiting for him to show up in his pickup van, KPD 304.”

Without a Trace

“The reasons why people go missing are almost as varied as the people themselves,” a tracing investigator who requested anonymity tells me. Outside of extrajudicial killings and conflict, other reasons why people disappear include kidnappings, accidents and suicide. Someone can leave intentionally because they decided to, or drifted away. Someone can be forced to go missing because of disease or an accident. Mental health conditions rank highly here.

A close friend’s family once lost her 80-year-old grandmother, who suffered from dementia, for three weeks. She turned up in Dodoma, Tanzania with no memory of how she got there. In an email conversation, a lady called Sharon Johnston who lives in New Zealand told me about the fruitless search for her father, Dr. Tony Johnston who had lived and worked in Kenya for three decades. She eventually found him in a home for the elderly, living with dementia. His property seemed to have changed hands, and visitation rights were controlled by the same tight knit circle.

In the course of a week, I counted at least nine missing persons’ posters placed in different digital spaces, including several news alerts. Eight were kids below twelve years of age, and the ninth involving a teen, was deemed resolved after she was found at a friend’s house. I also scoured through a Facebook page called Kenya Missing & Unidentified Persons, which was set up to help families find their loved ones. Although it has not been updated since 2015, the page gives a small sample size of the people who go missing in Kenya. Of about 30 cases posted in a period of six months, most of them were relatively young (17-30 years old) and from a cursory glance, from the middle and lower socioeconomic classes. Almost all the cases involving older people, above 60 years of age, mentioned some form of mental illness.

She eventually found him in a home for the elderly, living with dementia. His property seemed to have changed hands, and visitation rights were controlled by the same tight-knit circle.

While Sharon was lucky in a way, most aren’t. Law enforcement agencies do not give priority to missing persons’ cases, and in some of them, are actually complicit. In one recent example, a human rights lawyer called Willie Kimani, his client, and a taxi driver were kidnapped and then killed by police officers. Such extrajudicial killings are at times followed by attempts to hide the bodies, or disfigure them beyond recognition.

Such police brutality and state violence have a long history in Kenya, even before the genocidal ‘50s. In precolonial Kenya, it was not unusual for people to leave and simply never come back. Some died in skirmishes, while others fell sick along the way. Others simply moved and made new homes elsewhere, sometimes leaving even their spouses behind. In the social dynamics of the time, this was not as serious as it is today, but the heartbreak was no less real.

But in that decade of the Mau Mau rebellion, disappearances especially of men from around Mount Kenya became commonplace. This would happen again, in the 2000s as Interior Security Minister John Michuki led a murderous effort to kill off the Mungiki, literally in this case. From hearing one of my grandmothers’ stories about how her dad left to pick rent from a residential building in Nairobi in 1954 and never came back, I moved to listening to one of my neighbors describe the last time she saw her son in 2008. He was a young, skinny lad with shaggy hair, and most likely got caught up in the extrajudicial war on the Mungiki.

What Follows

If someone you know goes missing today, the process goes something like this. You make a report to a police station where a bored police officer records your complaint. Then forwards it to a police station with an investigator from the Criminal Investigations Department (CID). If it’s a high profile case then it might get priority, and the digital and physical search will begin immediately. If you are absolutely lucky, and this is rare, then you will never get to hear those debilitating words “investigations are still ongoing” and “the file is still open.”

But more often than not, you will be unlucky. There is no national data on missing persons, or any related database to speak of. Everyone is, at the base of it, groping in the dark. Access to a telecom company’s data may provide some answers as to the last place a phone was on, as well as the last people the person talked to. A find such as a car or clothes, as was the case with IEBC manager Chris Msando, may hint at a few things, but mostly say nothing. Add to this the fact that the investigation process is so opaque and complicated that it often feels like law enforcement agencies are not doing enough.

Most families supplement this with either searching for the person themselves or even hiring private investigators. A search of morgues is a common go-to solution, but it is often based on the hope that if the person is dead, they would be in the specific morgues the search party is looking into. The same goes for hospitals and hospices, and the search is grueling. At least one independent missing persons’ investigator was described to me as “…someone who walks into morgues the way he would a coffee shop.”

From hearing one of my grandmothers’ stories about how her dad left to pick rent from a residential building in Nairobi in 1954 and never came back, I moved to listening to one of my neighbors describe the last time she saw her son in 2008.

There are other avenues. The Red Cross has a tracing department in its offices across the world, including Kenya. The project, called “Restoring Family Links” is designed to help people look for their family members or restore contact with them. Their focus though, is on people who’ve gone missing due to conflict, disaster or migration. Without enough resources to expand this to cover all missing persons cases, even their assistance is limited.

Public appeals for information sometimes work. They can yield information about a sighting or identification of places where the family can start looking. But more often than not, each appeal for information is followed by many false leads. In the search for the teenage heartthrob Czars, for example, one of the earliest seemingly credible leads came from an entertainment journalist. He had gotten it from a source he trusted, and it looked promising at the time. Czars, the intel suggested, was living in Eastleigh, likely in the company of an older fling. That singular statement led to a wild-goose chase with journalists and the musician’s father scouring Eastleigh in vain.

Another infamous false lead example is in the days after Nyandarua MP JM Kariuki was killed. After he disappeared in early March 1975, then Vice President Daniel Arap Moi confidently said he had left the country for Zambia. It took a newspaper report to dispute this, and for five whole days, no one knew what had happened to the charismatic MP. His body was eventually found on March 12, 1975, mutilated.

Two decades before, another missing persons case had stood out in a decade of conflict. Mau Mau leader Stanley Mathenge disappeared one night in 1956, and for years the official story was that he had gone to Ethiopia to seek assistance for the cause. It stopped there, never explaining why the freedom army’s most formidable military mind chose to abandon the cause. Years later, in 2003, a stranger from Ethiopia was feted in his place, not only costing taxpayers’ money but also leaving the government embarrassed.

Like JM, its more likely Matheng’e never left Kenya. The most likely scenario was that his compatriot and power rival, Dedan Kimathi, had him killed and then weaved the Ethiopia story to avoid internal strife. Kimathi was himself shot and arrested later that year.

Some leads seem purely coincidental and others outright suspicious. In the case of Bogonko Bosire, that happened to be a terror attack. The last time anyone ever saw the journalist was on 18th September 2013, three days before the Westgate terror attack. Although his family had already been searching for him at that point, the leads suggesting he could have perished there kept coming. So they looked, through the rows upon rows of dead bodies from the mall, to no avail. A few times since, there has been some activity on his social media profiles. The last, at 5:30pm on August 10th 2016, was a new profile picture and name on his Facebook profile. “From time to time I check his Twitter handle to see if he’s back,” Boru tells me as we discuss his hope that his friend is still out there somewhere.

Where do We Go from Here?

Many cases remain unsolved because there is no coordinated effort to actually find them. Even well-meaning investigators are hampered by one thing, the lack of dependable data. While some patterns are easy to see, most of them aren’t. A child who disappears from home while in the care of her nanny has most likely been kidnapped, but not always. An aging man with a mental condition who goes missing on his way home probably got lost, but not always. A young man who disappears on his way home could have been shot by the police, but not always.

There is no national data on missing persons, or any related database to speak of. Everyone is, at the base of it, groping in the dark.

What Kenya needs is an integrated system that not only improves information flow between agencies and families, but also provides a support network for both. Part of this could be a searchable DNA and personal profile database for missing persons and unidentified remains. In countries like Scotland, for example, the standard operating procedures of policing give priority and resources to missing persons’ investigations.

There is some hope though. Earlier this year, the National Crime Research Center released a report on kidnappings in Kenya. In it, researchers found that you are most likely to be kidnapped if you are female, under 35 (and especially below 18) by men of around the same age. The report also ranked Kenya number 17 out of 19 in prevalence of kidnappings. It also looked into interventions and found that at least 12 different bodies, most of them government units such as the police and the Office of the Director of Public Prosecutions, are involved in addressing kidnapping cases. Some private organisations include Missing Child Kenya, which provides free resources to search for and rescue missing kids.

Still, there is a long way to go in improving our interventions in finding missing people. In 2008, the US state of New Jersey passed “Patricia’s Law”, a landmark law that describes the investigative process when looking for missing persons. Named after Patricia Viola, a 42-year-old wife and mother who disappeared in February 2001 (her remains were identified via DNA a decade later), the 2008 law was part of a combined effort beginning in 2004 to facilitate communication between agencies to ease the process of finding missing persons. The law not only dictates who should (and must) accept missing persons reports, but also describes stages in the investigation. For example, after 30 days missing, the law enforcement agency is required to take a DNA reference sample from the family. The DNA is run through the Combined DNA Index System for Missing Persons.

Beyond such a legislative backbone, law enforcement agencies also need dedicated resources and personnel. These can form the core structure to coordinate the effort with other agencies as well as stakeholders such as telecom companies. It would also ease communication with the families and friends, and even ease the pressure on morgues, hospitals and hospices.

The last time anyone ever saw the journalist was on 18th September 2013, three days before the Westgate terror attack. Although his family had already been searching for him at that point, the leads suggesting he could have perished there kept coming.

Dependable data will also help researchers identify patterns, and give law enforcement agencies to investigate. As is, beyond their current training and help from telecom agencies and the public, there is little else to go on. No one knows for sure how many people are currently missing, and without that, it is impossible to actually to solve open cases, and even mitigate future ones. Such patterns can be age, gender, risk, and even location. Disappearances of young women in one specific location, or area, could point towards a serial killer, for example. A string of disappearances of kids could point to a human trafficking ring, or even something more sinister.

Hopelessness

Anyone can disappear without a trace. Even people in the limelight like Czars, Bogonko Bosire, and Albert Muriuki. All these cases remain unsolved, but their families and friends maintain the hope that that won’t be the case forever. They are only three in an ever-growing list of people who have gone missing without a trace, leaving behind nothing but memories and a never ending worry. The worry that someone is in trouble, or is somewhere lost, is not easy on anyone. Some families simply seek closure, a body to bury even, or just answers. But they are few and far between, and mostly obtained through sheer luck and at times effective policing.

For some those answers never come. As days become months, and then years, and memories fade, the lingering need to find those we love doesn’t dissipate. The worst, Sharon wrote, is in the not knowing.

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A NIGERIAN STORY: How Healthcare is the Offspring of Imperialism and Corruption

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Pourous Institutions

As a Nigerian, the greatest scorn often finds you when you argue for Nigeria. Other Nigerians will mock you, denounce you as impractical or a dreamer, when you say that Nigeria is where your future lies. But why?

Nigeria as a heritage that separates the Nigerian from the Black American is awarded a loud (though false) superiority. The Nigeria that is evoked in jollof rice debates is praised. Even the Nigeria that must beat Ghana in the football match is supported. Yet, it remains that the Nigeria that will gain a Nigerian’s abuse is the real Nigeria – with its abusive civil servants, its police haggling for bribes and its megachurches auctioning salvation. This real Nigeria is the child of a mean parent called corruption. It’s useful to trace the family tree of this corruption but also useful to think about the way corruption earns Nigeria scorn to the degree that anyone who argues for that Nigeria is unworthy in some way—or should we say, she who argues for Nigeria is worthy of its corruption?

The Nigeria-corruption association has been repeated so often that it has long since become the small talk of world leaders; David Cameron’s aside to Queen Elizabeth II about “fantastically corrupt” Nigeria is but one example. That corruption touches every facet of life in Nigeria is a banality. As Michael Ogbeidi, a history professor at the University of Lagos, put it so accurately in his article, Political Leadership and the Corruption in Nigeria Since 1960, “Indeed, it is difficult to think of any social ill in [Nigeria] that is not traceable to the embezzlement and misappropriation of public funds, particularly as a direct or indirect consequence of the corruption perpetrated by the callous political leadership class since independence”.

Bureaucratic corruption affects healthcare and this is a very old problem both in Nigeria and throughout the formerly colonized world. When Nigeria was incorporated by Imperial Britain, it was conceived of as a repository of natural minerals and riches that could be exported for the benefit of the master race and country. The profits of colonial exploitation are so large they inspire disbelief. For instance, the British Ministry of Food made profits of 11 million pounds sterling in some years, according to Walter Rodney. As Rodney’s seminal text, How Europe Underdeveloped Africa, so clearly explains: this obscene figure of 11 million pounds sterling per annum was the result of artificially low prices set by private capitalist investors in Britain. The British government allowed dummy organizations, like the West African Cocoa Control Board (est. 1938) to lie to and bully African farmers, while pretending to advocate for them. Moreover, farmers were mandated to sell their crops no matter what price they were given. The farmers did not have the might to stand up against the military and political power of the British government. They did not have a choice. They were not economic players in the game, just chess pieces to be thrown around the board. At any rate, 11 million pounds accounts for the profits of just one body, the British Ministry of Food, so we can only imagine the cumulative profits enjoyed by the British Empire.

When Nigeria was incorporated by Imperial Britain, it was conceived of as a repository of natural minerals and riches that could be exported for the benefit of the master race and country.

Whatever the final profits, the people of Nigeria didn’t share in the wealth generated from such exports. The people were simply the machinery of the capitalist endeavor. They were machinery in the sense that the colonial political and economic government had absolutely no consideration for their physical well-being. Instead, by allowing missionaries to overrun the landmass, they rid the country of traditional doctors and what is now referred to as homeopathic medicines. For all the superstition and abuse that occasionally accompanied it, traditional medicine functioned as a rudimentary healthcare infrastructure across the African continent. Aspects of these so-called primitive practices have real and proven benefits.

For instance, West African medical practice is the foundation for inoculation and vaccination. In fact, when inoculation was introduced in colonial Boston during the 1721 smallpox epidemic, the origins of inoculation were so widely known that it was derided as “African” medicine and “Negroish thinking” in the press. Cotton Mather, who is credited with introducing inoculation into North America, wrote extensively about how a West African born slave, Onesimus, told him about inoculation practices. After learning from Onesimus, Mather began interviewing other enslaved Africans who backed up Onesimus’ testimony of being inoculated as children. Mather then tested inoculation on slaves born outside of Africa and when it proved successful, he introduced it to the white population. But as the practice of inoculation became widespread throughout colonial America, and the rest of the West, its origins were conveniently forgotten.

Once the traditional healer was undermined by new religious concepts, Imperial Britain continued to loot the land and exploit the people. Never was there any real investment in an alternative healthcare infrastructure. There are those who quote the 19th century European lie: they brought us civilization; they brought us religion and railways and doctors! But the numbers don’t bear that out. Rodney notes that in the 1930s, the British colonial government maintained a 34-bed hospital for Ibadan when the city had a population of 500,000 people! The colonial government later expanded their medical facilities, but this was only after pressure from nationalist movements set up by people tired of economic and political exploitation.

For instance, West African medical practice is the foundation for inoculation and vaccination. In fact, when inoculation was introduced in colonial Boston during the 1721 smallpox epidemic, the origins of inoculation were so widely known that it was derided as “African” medicine and “Negroish thinking” in the press.

It’s obvious that the dearth of medical and healthcare infrastructure was inherited by the national government in the 1960s. Understanding this history, it can be easy to excuse Nigeria and the Nigerian elite. In fact, this is precisely the hope of the Nigerian political and economic elite.

But we can’t let this excuse win the day since the post-1960 era hasn’t seen a marked continual commitment to the healthcare infrastructure system. The initial investment in healthcare wasn’t bad. In fact, as AO Malu, of Benue State Teaching Hospital, points out, when the Ashby Commission on Higher Education recommended the expansion of educational facilities in 1960, the year of Nigeria’s independence, Medical Faculty at the London College of Ibadan (now known as the University of Ibadan) was expanded and new medical schools were established in Lagos and in Northern Nigeria. The newly independent government continued to found and support teaching hospitals, particularly in the southwestern and northwestern region of Nigeria (Malu).

These teaching hospitals were instrumental in educating the vast majority of licensed nurses and doctors in Nigeria. Up until the late 1980s, they were known for professional teaching quality, their rigor, cleanliness and commitment to medically-appropriate technology. There is many a “middle class” Nigerian that can testify to their own birth or treatment in a Nigerian teaching hospital. Graduates in this 25-year span, from 1960 to 1985, also willingly testify to the maintenance of the facilities, which is no small thing since it both reflects and demands pride from the facilities’ users. It also reflects real material investment and demands it as well. But all of these testimonies are historical. The testimonies are about what the teaching hospitals used to be. Neglected by federal and state governments, the hospitals are today decrepit artifacts that are stuck with the technology of the last decade. I know one doctor who cried when she visited her alma mater in Rivers State, such was the state of the place with debris and rats. Another physician I know refused to discuss her medical school; she stammered, shook her head in anger and walked away. When she returned to the subject, she said only, “It was never, never like that before. The standard has really fallen.”

These teaching hospitals were instrumental in educating the vast majority of licensed nurses and doctors in Nigeria. Up until the late 1980s, they were known for professional teaching quality, their rigor, cleanliness and commitment to medically-appropriate technology.

But these “historical” hospitals are still hospitals. They still admit patients and attempt to treat them; they still admit students and attempt to educate them. Their treatment is curtailed by the lack of technological investment, the deteriorating facilities and the stagnated curriculum that Nigerian medical students are afforded. This is not the doing of some late 19th century Briton. It is the result of the rampant and insidious corruption executed by the political elite and their counterparts in the financial sector. As Professor Ogbeidi, notes in his article, citing this 2004 Reuters interview with then anti-graft chief Nuhu Ribadu, “Incontrovertibly, corruption became endemic in the 1990s during the military regimes of Babangida and Abacha, but a culture of impunity spread throughout the political class when democracy returned to Nigeria in 1999. In fact, corruption took over as an engine of the Nigerian society and replaced the rule of law”. In other words, the neglect of healthcare infrastructure is a product of recent and present-day choices that continually disregard the health of the people who are the machinery of the nation.

The teaching hospital model was never capable of nor adequate in caring for Africa’s most populous nation. It was a step in the correct direction, but a step that has been halted. As Professor Ogbeidi puts it: “As a consequence of unparalleled and unrivalled corruption in Nigeria, the healthcare delivery system… [has]become comatose and [is] nearing total collapse.”

So what are Nigerians left with? The vast majority of Nigerians who were never able to access teaching hospitals must rely on book doctors and unlicensed and unregulated pharmacies. A book doctor is a person who has learned about the practice of Western medicine solely from books. This book doctor never attended medical school, never sat for a medical certification or license exam and never completed a residency or rotation under the supervision of more experienced medical practitioner. Book doctors are common in areas outside of the major Nigerian cities. Having been to one myself, I can attest to the fact that they are not clandestine operations, but clearly marked persons with public enterprises. Neither the federal nor state governments make any attempt to investigate them in the interest of the people.

My experience with the book doctor was fine. He was affable. All the materials I observed were clean and unused. His nurses were well-trained and products of nursing schools. Yet the facility did not have electricity from the Nigerian energy grid, running water, nor a toilet. (Outside of major Nigerian cities, it is not rare to go 2 or more months without electricity from the Nigerian energy grid, this is despite the fact that Nigeria sells energy to Togo, Benin, and Niger.) The book doctor instead powered his facility with a generator and bathroom functions were undertaken in a darkened room at the back of the property. The patients brought their own water.

Book doctors are common in areas outside of the major Nigerian cities. Having been to one myself, I can attest to the fact that they are not clandestine operations, but clearly marked persons with public enterprises.

Despite my benign experience, Nigerians die daily from inadequate care from book doctors, just as they die from the inadequate healthcare system throughout Nigeria. Death is the fruit of corruption.

The other fruit of corruption is the bankruptcy of Nigeria’s national wealth.

In making adequate healthcare difficult or impossible to access, the political class is making it an absolute necessity for people to seek medical help outside of Nigeria’s borders. This drives those people who can afford it, to go to African countries like Ghana and South Africa, or ever further to Europe, India, the Middle East or the Americas for medical care. This is an insane situation for a citizen of an oil-rich country.

The Nigerian government acknowledges that sending medical tourists abroad is a real problem that has cost the country at least 1₦ billion –the equivalent of 690 million pounds sterling. This is money that was made in Nigeria but spent elsewhere; money that should be circulating in the Nigerian economy. Bu a real investment of capital into the construction and maintenance of medical infrastructure would not only stem this but also enrich the country, especially if the construction materials were purchased from Nigerian companies and Nigerians were employed in the labor.

But the same government that is legislating against “medical tourism” is led by President Mohammed Buhari who has become the “face of medical tourism.” President Buhari spent 7 weeks, from January to March, in London before offering up a vague explanation about his health. The lack of specificity was an allusion that was meant to be understood in the mind of the Nigerian citizen as you know we no get oyibo (white man) medicine na. Buhari left Nigeria for London again in May. When the Nigerian populace, aided by journalists, demanded that the President return and govern after an absence of more than 3 months, the president reluctantly returned. He has refused to say how much money the Nigerian government spent on his almost 5-month stay in London. No matter. The failing Nigerian healthcare system is implicit in the president’s long stay in high-priced London and the unstated, exorbitant price tag is yet another example of political corruption.

The Nigerian government acknowledges that sending medical tourists abroad is a real problem that has cost the country at least 1₦ billion –the equivalent of 690 million pounds sterling.

This drama, of course, comes after the 2010 death of President Umaru Musa Yar’adua whose 3-month medical stay in Saudi Arabia ended when the Nigerian government sent a delegation to “check on his health.” Yar’adua’s absence was explained to the Nigerian people as medical treatment, but during those 3 months, he was not seen in public and this fueled both rumor and a real leadership crisis in the federal government.

The travels of Yar’adua and Buhari demonstrate in a practical, evidentiary manner that the Nigerian healthcare system has been abandoned by its political elites. They seek their health and medical care elsewhere and as a result, they have left the funding and maintenance of the healthcare infrastructure to the birds.

Yet, still the middle class, takes the political and financial elite as “leaders” and follows them abroad. They are not leaders; they are elites by virtue of being on top of the capitalistic structure and because they are elitist, believing that only those at the top should have access to what are now called “basic human necessities,” including electricity and running water. If they were not elitist, they wouldn’t rob the country to the detriment of the health and very life of the people.

In going abroad, middle-class Nigerians are increasingly identifying service sectors and medical acumen with the West. This is dangerous because such identification alleviates the pressure to improve the facilities within Nigeria. The determination to go abroad should instead be replaced by the determination to improve the healthcare infrastructure at home.

The travels of Yar’adua and Buhari demonstrate in a practical, evidentiary manner that the Nigerian healthcare system has been abandoned by its political elites. They seek their health and medical care elsewhere and as a result, they have left the funding and maintenance of the healthcare infrastructure to the birds.

The portion of the Nigerian middle-class that does utilize the healthcare system have little encouragement. Added to the corruption that robs the system is the dearth of physicians who might otherwise provide superior care and demand attention from the political and financial elites. It is not that Nigerian isn’t training medics, but the problems already noted drive them to ply their trade abroad.

A 2013 article by the Foundation for the Advancement of International Medical Education and Research (FAIMER) is titled “Nigerian Medical School Graduates and the US Physician Workforce” and the title says it all. Despite the corruption and deteriorating conditions, Nigerian-educated medical professionals are skilled physicians who are able to practice throughout the world. This is good for them but bad for Nigeria.

According the statistics of the Educational Commission for Foreign Medical Graduates, at least 4300 Nigerian medical graduates were certified to practice in the United States between 1980 and 2012. That is 4,300 doctors who are not practicing in Nigeria. What would Nigeria be like with 4,300 more doctors? Before answering, consider that this is only one type of certification program doctors in the United States and Canada; it does not account for the medical graduates who have emigrated to mainland Europe, the UK, Australia, the Caribbean nations, India, or the increasingly, alluring South American republic of Brazil. Now consider that President of the Healthcare Federation of Nigeria, thinks that the correct estimate of Nigerian doctors practicing abroad is closer to 37,000. This is a real exodus with dangerous ramifications.

With the flight of medical graduates, Nigeria must educate another person to become part of the healthcare infrastructure. With the flight of medical graduates, Nigeria loses another bloc of people capable of putting pressure on the political class to fix the healthcare infrastructure. With the flight of medical graduates, Nigeria loses people who might create real national wealth by buying Nigerian made goods and supporting local industry, rather than the cheaply made, imports – the shine shine – that litter the market stalls of the subsistence worker and the Instagram pages of the so-called middle class. With the flight of the medical graduate, Nigeria is left stagnant.

Now consider that President of the Healthcare Federation of Nigeria, thinks that the correct estimate of Nigerian doctors practicing abroad is closer to 37,000. This is a real exodus with dangerous ramifications.

It is this stagnant Nigeria that earns a Nigerian the ridicule of his countrymen. At home, everyone (or so it seems) wants to travel abroad. Abroad, home is just a green-and-white outfit, a party theme on October 1st. Healthcare in Nigeria is a fatal casualty of continued political corruption. Medical tourism will cease only after the government has demonstrated sustained and responsible investment and maintenance of healthcare schools and facilities. Until then, the middle class will follow its political and economic elites in seeking medical treatment abroad; they will spend their hard-earned money in other countries and continue to wonder why death and bankruptcy follow them home to Nigeria.

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THE BLACK SPOT: Why The Kenyan Road System Is Designed To Kill

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Two road crashes in the first two weeks of November have robbed Kenya of six lives including that of Nyeri Governor, Wahome Gakuru, and once again brought to the fore the crisis of safety on the country’s roads and highways.

As of November 8, according to statistics released by the National Transport and Safety Authority, 2,387 people had lost their lives on our roads. In its 2015 Global Status Report on Road Safety, the World Health Organisation shows Kenya’s roads are amongst the most dangerous in the world claiming an average of 29.1 lives per 100,000 people. By comparison, Norway, which has significantly more cars on its roads had just a tenth of Kenya’s average fatalities per 100,000. Road crashes are among the top ten killers of Kenyans, account for between 45 and 60 percent of all admissions to surgical wards and cost the country up to 5 percent of GDP.

It’s not all doom and gloom though. While the number of registered vehicles on the roads nearly doubled between 2008 and 2012, from just over 1 million to just under 1.8 million according to the Kenya National Bureau of Statistics, the total number of both accidents and victims actually fell by about half says the 2015 study Analysis of Causes & Response Strategies of Road Traffic Accidents in Kenya. However, what should set off alarm bells is that despite this, the number of deaths barely budged. It may only make the news when crashes either involve large numbers of people or a prominent person is killed, but on average, Kenya has lost a Nissan matatu-load of people every two days for at least the last decade and a half.

In the face of such appalling statistics, it is nothing short of outrageous that the NTSA considers a reduction of 4 percent in the number of pedestrians who have lost their lives on the roads as “drastic”. Though overall deaths were down by a slightly higher 5.8 percent, it speaks to the low expectations the Authority has of itself that the numbers it is celebrating do not even come close its own rather modest target of reducing traffic fatalities by 12 percent.

By comparison, Norway, which has significantly more cars on its roads had just a tenth of Kenya’s average fatalities per 100,000.

The widely trumpeted but almost always short-lived measures that have been taken by the government to address the issue over the last ten years -such the famous “Michuki rules”, the banning of night buses, enforcement of speed limits, introduction of random breathalyzer tests- have barely budged the average annual number of deaths which still hovers stubbornly around the 3000 mark. By contrast Sweden, which has the world’s safest roads managed to slash in half the number of traffic deaths between 2000 and 2014.

What are the Swedes doing right?

Unlike Kenya’s knee-jerk approach, where reactionary legal measures are quickly announced in the aftermath of a particularly horrific crash, with little research, forethought or long-term planning, and just as quickly forgotten, the Swedes have adopted a more systemic, evidence-based method. Unlike their Kenyan counterparts, the Swedish Transport Administration does not believe that deaths and injuries on roads are an inevitable cost of having a functional road network. “We simply do not accept any deaths or injuries on our roads,” says Hans Berg told The Economist in 2014. Matts-Åke Belin, a traffic safety strategist with the same agency in an interview with CityLab calls it a “civil rights thing”, saying that rather than trying to get people to adapt to the traffic system, the Swedes are trying to “create a system for the humans”.

It may only make the news when crashes either involve large numbers of people or a prominent person is killed, but on average, Kenya has lost a Nissan matatu-load of people every two days for at least the last decade and a half.

This focus on building “a system for the humans” is the central pillar of Vision Zero, the radical policy that since 1997, has governed the nation’s approach to transportation. It is even written into their laws. In the same year, the Swedish Parliament passed the Road Traffic Safety Bill which declared that, “the responsibility for every death or loss of health in the road transport system rests with the person responsible for the design of that system”.

Think about that for a minute. Road accidents are not the fault of drunk or crazy drivers, of careless pedestrians or stupid cyclists. Instead, as Dinesh Mohan notes, the Swedes put the blame on “the engineers who build and maintain the road and the police department that manages traffic on that road. Not primarily on the people who use the road because it has been demonstrated that road user behaviour is conditioned by the system design and how it is managed.”

Vision Zero seeks to not just reduce, but to completely eliminate deaths and serious injuries on the roads. But it does so, not primarily on the back of enforcement of punitive legislation as is the preferred approach in Kenya. “We are going much more for engineering than enforcement,” says Belin. “If we can create a system where people are safe, why shouldn’t we? Why should we put the whole responsibility on the individual road user, when we know they will talk on their phones, they will do lots of things that we might not be happy about? So let’s try to build a more human-friendly system instead. And we have the knowledge to do that.”

Enforcement of traffic rules is an important element but rather than merely bullying road users into compliance, the Swedes are building their system around the road users. Safety is not something that is added to the road system; it is an essential component of the system itself. As one analysis of the policy puts it: “Road users are responsible for following the rules for using the system set by the designers. If the users fail to obey the rules … or they obey and injuries occur nonetheless, the system designers must take steps to avoid people being killed or seriously injured.” The road system is thus built in the knowledge that people will break the rules and is structured to both minimize the opportunity for wrongdoing and to mitigate the harm that can result.

Matts-Åke Belin, a traffic safety strategist with the same agency in an interview with CityLab calls it a “civil rights thing”, saying that rather than trying to get people to adapt to the traffic system, the Swedes are trying to “create a system for the humans”.

In Kenya, the approach is diametrically opposite. While the NTSA acknowledges that 80 percent of road crashes are caused by human error, and blames everything from drunk drivers to jaywalking pedestrians, it rarely discusses the design of our road transport systems, the behaviour it incentivizes and how such errors are mitigated beyond arresting people and increasing fines.

Take the two crashes referenced at the beginning of this tale. Both happened at notorious “black spots”, one at Salgaa and the other at Kabati. Murang’a County Commissioner John Elung’ata says of Kabati, where the Governor died, that “motorists lose control whenever it rains”. The 14-kilometre stretch between Salgaa and Sachangwan along the Nakuru-Eldoret highway has been the scene of multiple horrific accidents involving trucks. Yet in 2015, then NTSA Chairman, Lee Kinyanjui, whose agency blamed the crashes on “ignorant drivers” could only promise that “over and above fining those freewheeling, we will be recommending an immediate revocation of their licences and this should go to all the drivers. Reckless driving on our roads will no longer be there.” In these cases, administrators seem to have either resigned themselves to the inevitability of crashes or limited their responses to punishment. There was not talk of redesigning the road to eliminate the “black spot”. Instead Kinyanjui promised to “construct lorry park with a capacity of 200 vehicles where the NTSA officers will be checking lorries”.

But one could perhaps cut Kinyanjui a little slack. While the NTSA can only advise the national government on such design changes and mostly appears to confine itself to patrolling roads to catch errant drivers or chasing down jay-walking pedestrians, STA actually owns, constructs, operates and maintains all state roads in Sweden.

Obviously, a road system is more than just the state of the road and transport authorities have to coordinate with a wide array of government agencies, non-governmental organizations and road users. That system includes all factors that have a bearing on behaviour on the road. As such, the commitment to safety cannot be simply a matter for one body, but rather a national, even cultural commitment. As Belin says, “Sweden has a long tradition of working with safety. So Vision Zero is also based on a historical context.” It is, after all, the home of Volvo. Kenya, on the other hand, has historically had a rather tenuous relationship with safety and a huge appetite for risk. From our politics to security to our hospitals, being Kenyan is like a constant dicing with death. A national obsession with safety is definitely a bonus. However, even without one, Kenya can make better infrastructural decisions that would reduce the risk of injury and death.

The road system is thus built in the knowledge that people will break the rules and is structured to both minimize the opportunity for wrongdoing and to mitigate the harm that can result.

Take the Thika Superhighway, on which Governor Gakuru died, as an example. The road which rumbles through populated areas is Kenya’s most dangerous road for pedestrians. In 2014, the Senate committee on transport and infrastructure found that over 200 pedestrians had died since the road was inaugurated two years prior. Nearly 300 had been injured. That works out to about 5 people killed or injured every week. The difference between Thika Superhighway and, say, the UK’s M40 is not that Kenyans are congenitally poor drivers and law breakers and the British are not. In fact, the M40 does have its fair share of pile ups. But the reason you do not find pedestrians dashing across it and buses stopping on it is mostly that such problems have been engineered out. People don’t run across it because it is not located where they would need to. We obviously cannot physically move our Superhighway but we can ask questions about how and where our roads are built and about the systems governing the behaviour on them.

We can also ask about emergency responses, or rather, the lack of them. And about the safety of guard rails and whether there are better alternatives. Road accidents, even when they do happen, need not result in grievous injury or death. Why weren’t systems for rescuing trapped people and getting them emergency care factored into the design of the road? How can Kenya fix this? And what rules for other existing and future highways?

Perhaps nowhere would such approach be beneficial than in addressing the safety problems posed by Kenya’s public transport system. According to the WHO, in Kenya “buses and matatus are the vehicles most frequently involved in fatal crashes and passenger in these vehicles account for 38 percent of total road deaths.” Although the 2015 study found that matatus only caused about a third as many accidents as cars and utility vehicles considering that matatus make up only about 5 percent of the about 2 million vehicles on our roads, the fact that they cause around 15 percent of accidents indicates a big problem.

The study found that “Kenyan drivers cause crashes largely because of behavioural and attitudinal problems” and that these problems were more acute in drivers of Public Service Vehicles. “While matatu drivers are viewed as crooks, they regard other drivers as amateurs and always try to show them that they have superior driving skills.”

However, adopting the Swedish approach, one would not just settle for blaming the drivers, as the study, the NTSA and pretty much all of Kenya does. Considering the ecosystem they operate in, the ridiculous and seemingly suicidal behaviour of matatu drivers seems rational, reasonable even.

Kenya, on the other hand, has historically had a rather tenuous relationship with safety and a huge appetite for risk. From our politics to security to our hospitals, being Kenyan is like a constant dicing with death.

The late Donella Meadows, in Thinking in Systems – A Primer described a system as “a set of things—people, cells, molecules, or whatever—interconnected in such a way that they produce their own pattern of behavior over time,” and invited us to consider the implications of the idea that any system, to a large extent, causes its own behavior. Consider the Kenyan public transport system, which is privately owned and dominated by matatus.

Most matatu crews are not salaried. They basically have a deal with the matatu owner where they deliver an agreed sum every day and get to share what is left over. This means that their daily income is directly tied to how many people they carry and how many trips they make. At the same time, as this Africa Uncensored investigation reveals, most traffic policemen on the road are there, not to enforce the rules, but to extort bribes, matatus being a favourite target. In fact, during vetting by the National Police Service Commission last year, many traffic officers were unable to explain the source of their wealth and the many mobile transactions they seemed to be making. Given that it has been reported that most actually pay their superiors for the privilege of being deployed on the roads, it does not take a rocket scientist to figure out where they were sending the money.

The rub of this is that matatu drivers have big incentives to stop anywhere to pick up passengers and to make as many trips as possible, even when this means driving like madmen. The police, on the other hand, have little incentive to enforce the law. And given that many powerful government officials and senior police officers own matatus, there is little incentive to fix the problem.

Looked at from this perspective, it is clear that the problem is less incompetent drivers with an attitude problem, but rather the perverse system of incentives which generates the behaviour. Thus the solutions proposed, such as retraining and recertifying drivers, will have little effect. As US philosopher Robert Pirsig, wrote in his book Zen and the Art of Motorcycle Maintenance, “if a factory is torn down but the rationality which produced it is left standing, then that rationality will simply produce another factory.” Similarly, retraining drivers without changing the underlying system will resolve nothing.

Considering the ecosystem they operate in, the ridiculous and seemingly suicidal behaviour of matatu drivers seems rational, reasonable even.

Changing the system would require the NTSA to confront more powerful forces than lowly matatu crews, but is the true measure of the government’s commitment to dealing with the carnage matatu’s wreak on the road. However, it is not just where matatus are concerned that Kenya could benefit from a serious retooling. Rather than shooting from the hip when confronted with speeding or drinking drivers, the country would do well to adopt a research and evidence-based approach which looks at the problem in all its facets. For example, if, as one study found, “mandatory seat belt use laws and beer taxes may be more effective at reducing drunk driving fatalities than policies aimed at general deterrence,” should Kenya be focusing on those?

An important aspect of ensuring roads are safe is ensuring the road system caters for the needs of all its users, not just a few of them. That requires understanding how the roads are actually used. According to the World Bank’s Kenya State of the Cities Baseline Survey released in March 2014, half the labour force and three-quarters of students walk to work or to school. Another 43 percent and 19 percent respectively use matatus. Only 3 percent actually drive to work. Yet Kenyan roads treat pedestrian traffic as an afterthought and, as detailed above, the public transport system is in a shambles. This inevitably creates conflicts and, as statistics show, it is passengers and pedestrians who bear the brunt of the violence on our roads. Similarly, as the use of motorcycle-taxis, or bodaboda, has increased, so has the number of fatalities and injuries associated with them.

Concepts such as the Dutch-inspired “shared space”, which does not privilege cars and other motorized transport but rather treats the road as a community asset for the use of all traffic, motorized or otherwise, could help reduce the carnage. Well thought-out policies, including pedestrianizing the CBD, have been successfully adopted in cities like Pontevedra in Spain, which eliminated 53 percent of traffic in the city as a whole and 97 percent at its historical centre. “We inverted the pyramid,” its long serving Mayor, Miguel Lores, says, “leaving the pedestrians above, followed by bicycles and public transport, and with the private car at the bottom.” As a result, the city has not had a single traffic fatality in 6 years.

Understanding behaviour on the roads does not require condoning its unsavoury aspects. Rather, it means Kenya can get to grips with the systemic reasons such behaviour is prevalent and why it is destructive. It means, beyond demonizing road users, the NTSA and other stakeholders within and outside the government consider how they contribute to the problem, and what needs to change in order to either eliminate the incentives for that behaviour or to mitigate its effects.

Concepts such as the Dutch-inspired “shared space”, which does not privilege cars and other motorized transport but rather treats the road as a community asset for the use of all traffic, motorized or otherwise, could help reduce the carnage.

In fact, Kenyan roads are a microcosm of the colonially-inspired hierarchies at work in Kenya and the relative values they place on the time, lives as well as the fortunes of the various classes of Kenyans. At the very top is the political class and those riding on their coat tails, from government officials to the wannabe county potentates for whom nothing is allowed to get in the way of their dash to riches. The tiny middle class is next in line and at the very bottom of the pile are the poor, whose presence on the Kenyan road is barely tolerated despite their vastly superior numbers. When, periodically, their anger spills over in riots and “mass action” they can take over the streets entirely. Like the traffic police, the institutions of accountability simply serve to keep everybody in their proper place. They are there to police the citizens, to clear a path for their betters.

Eliminating traffic deaths and injuries is an achievable goal. But to do it, Kenya must change, not just its roads and its drivers, but itself. The country must revolutionize its approach to the problem and start seeing people as the reason the road system, and indeed the entire rubric of government, exists. In short, like Sweden, it must “create a system for the humans”.

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