During a transition into a new presidential tenure such as Kenya is going through at this point in 2017, it is expected that people – certainly government and governance scholars – will review the outgoing tenure so as to highlight the needs of the incoming tenure. If such reviews become a habit, then the next logical step is to review the comparative performances of presidents and/or presidencies over the years, with a view to assessing aspirants for suitability.
The mutations to the independence gave much power to the Executive relative to the Legislature and Judiciary: all public servants were employed “during the pleasure of the President”, which bred extensive impunity in the upper echelons of the Executive. That the reformist 2010 Constitution, designed to put paid to such potential Executive excess, has failed to do so reflects, inter alia, the depths to which the roots of impunity had sunk during the initial 47 years of independence. That impunity is alive and well in and around the presidency, is elaborately manifest even in the persisting illegalities and irregularities surrounding the transition to a new presidential tenure. This is an indicator of the nature of disposition to constitutionalism.
The global literature illustrates varied approaches to evaluating presidents and/or presidencies, such as through the analyses of speech content, performance of the economy, and opinion poll ratings, amongst others. These listed approaches are more amenable to the evaluation of developed country contexts where such data is habitually gathered; but this is not the case for developing country contexts, such as Kenya. For the latter countries, presidential speeches are based on opportunistic political expediency rather than on the individual’s beliefs; economies are disproportionately driven by exogenous rather than endogenous factors; and opinion polls are excessively subjective. However, a useful yardstick with which to compare president or presidencies is fidelity to the constitution of the day, which is supposed to be the social contract with the citizens of the country. Given the respective contexts within which Kenya’s independence and 2010 constitutions were made, it is reasonable to expect greater fidelity to the latter which arguably carries greater legitimacy.
However, a useful yardstick with which to compare president or presidencies is fidelity to the constitution of the day, which is supposed to be the social contract with the citizens of the country.
The making of Kenya’s independence constitution was chaperoned by the British, with delegates from the colony abiding by the tradition of attending talks at Lancaster House in London. Despite the British government’s declared ‘wind of change’ sweeping in independence for its colonies, its kith in Kenya, the White settlers, briefly contemplated a ‘unilateral declaration of independence’, which would have perpetuated the relative voiceless-ness of the majority African population. But the Africans at the constitutional talks did not also speak with one voice: the self-serving settlers had successfully heightened the fears of the Africans from the smaller ethnic groups under the Kenya African Democratic Union (KADU) party, of domination by those from the two largest groups, the Kikuyu and Luo, who were grouped in the Kenya African National Union (KANU) party. Thus, broadly speaking, the independence constitution was the product of compromise among four delegations, rather than one between a united African front and the colonizer, Britain. In contrast, the making of the 2010 Constitution was a ‘people-driven’ comprehensive review process commenced in 1999, with a large number of delegates, 629 in total, attending the National Constitutional Conference at the Bomas of Kenya venue.
A dominant feature of Kenya’s 27 constitutional changes between 1963 and 2008 was the centralization of power in the Executive, specifically on the President. Founding Prime Minister Jomo Kenyatta – hereafter Kenyatta I – begun the cannibalization of the independence constitution as early as 1964, when he declared himself the President of the Republic of Kenya. The other 1964 changes also watered down the independence of regional governments, which were consequently killed in the next year. The 1966 changes ushered in dictatorship, amalgamating the Senate and National Assembly, derogating rights and freedoms while also introducing detention without trial. Furthermore, 1966 saw the constitutional stifling of the Kenya People’s Union (KPU) opposition party launched in 1965 and gave the President power to hire and fire all in the public service, while 1968 saw the abolition of independent candidates and provided for the President to be elected through a General Election, as opposed to election by the National Assembly, which made him politically independent of the latter. By 1969, the President had acquired the right to appoint the Electoral Commission of Kenya; but the need to rationalize these multiple amendments led to ‘rebasing’ the constitution on that year. Among the last of Kenyatta’s 15-odd amendments would be one to allow him to pardon ex-Kapenguria detainee, Paul Ngei, and allow him to return to politics after he was convicted of an electoral offence.
Thus, broadly speaking, the independence constitution was the product of compromise among four delegations, rather than one between a united African front and the colonizer, Britain.
Among the more outstanding constitutional amendments of successor president Daniel Moi (1978-2002), was the infamous Article 2A of 1982, transforming the country into a de jure – by law – single party state that made KANU the Baba na Mama of all Kenyans. Another outstanding amendment was the 1991 repeal of the same Article 2A, which returned the country to multipartyism. In between, 1986 witnessed the mischievous removal of security of tenure for the Attorney General and the Auditor and Controller General (CAG), and the increase of parliamentary constituencies to 188. Torture was allowed in 1987, while security of tenure for constitutional offices was removed in 1988. Security of tenure returned in 1990 amidst pressure for the opening up of democratic space for Kenyans; and in 1991 constituencies increased to 210.
While these constitutional gymnastics suggested regimes that were keen to be on the right side of the ‘mother law’, there was extensive repression in other realms, such as the 1980s onslaught against real or imagined Mwakenya and Pambana activists. The treatment of suspects, with several prosecutors and magistrates acting as the system’s hatchet men, was in violation of the well-known and internationally accepted rights of people in such circumstances. And of course, there were several assassinations, among the better known ones being Pio Gama Pinto, Tom Mboya, J.M.Kariuki and Robert Ouko. The era saw many unexplained accidents, disappearances and extra-judicial killings. Additionally, individuals were ‘dealt with’ through various other means, such as a vocal Assistant Minister being imprisoned for violating foreign exchange regulations by inadvertently keeping some loose change after foreign trips.
The independence development blueprint, Sessional Paper No. 10 of 1965 on African Socialism, had provided that scarce investment resources would be focused on “areas of greatest absorptive capacity”, with surpluses being redistributed to the lower absorption parts of the country. Growth occurred in fits and starts, but there was little redistribution to the low absorption regions and communities previously overlooked by colonialism. Instead, there was expropriation through harambee fund-raising for social sector investments even as the government extensively biased budget resource allocations. Thus, for example, public health care resources went disproportionately to the parts of the country that had a harambee capacity to build health facilities, rather than to those parts that had comparatively greater disease burdens, such as the malaria endemic regions. The net effect of such inequitable resource allocation have been the inequalities in health status, such as are reflected in the child mortality rates of Figure 1.
Figure 1: Under-5 Mortality Rates by background characteristics, 2014
Source: KDHS, 2014
The illustration above of disregard for comparative development needs was given further impetus by both regimes’ resort to parochialism – and indeed, nepotism – in key public appointments. Notwithstanding public employment being “during the pleasure of the President”, it is difficult to imagine that any tenant of State House believed that the national interest was best served through excessively parochial public appointments. Table 1 shows that belonging to the president’s ethnic group was significant for the distribution of cabinet positions, with ethnic shares fluctuating markedly depending on the president’s ethnicity. And beyond merely having a cabinet position, ethnicity also determined which lucrative dockets went to whom. Such exalted positions enabled the illegal but unpunished diversion of Parliament-sanctioned development resources away from areas perceived hostile to the government to ‘politically-correct’ areas. The context also enabled self-aggrandisement with impunity since such individuals’ closeness to the president protected against prosecution. In any case, the annual CAG reports that would highlight such criminal misconduct would be several years behind schedule, complicating remedial action.
|Ethnic group||Kenyatta (Kikuyu)||Moi (Kalenjin)||Kibaki (Kikuyu)||Share of population|
The ad hoc reviews of the constitution led to internal contradictions; but weak fidelity to the letter of the document also opened up further opportunities for impunity. For example, the dividing line between KANU and the Executive increasingly became blurred over policy-making and implementation; and the context increasingly dictated the agendas of the Judiciary and Parliament. As reflected in the 1988 queue voting – mlolongo – exercise, democratic electioneering lost meaning: in instances, the shortest queue of supporters would be declared victorious. These contradictions led to extensive demands for a comprehensive review of the constitution in the run-up to the 1997 general elections. The brutal response of the government was most vividly captured in the police invasion of the inner sanctum of the All Saints Cathedral into which they lobbed tear gas against demonstrators. The stand-off was eventually resolved through the Inter-Parties Parliamentary Group (IPPG) process, which was able to extract modest reforms from the government, such as the inclusion of opposition in nominating members of the electoral commission hitherto appointed exclusively by the President. While Moi retained power at the election, the seed of change had been sown; sustained internal and external pressure for a comprehensive constitutional review led to the Bomas of Kenya conference launched in 2003.
While these constitutional gymnastics suggested regimes that were keen to be on the right side of the ‘mother law’, there was extensive repression in other realms, such as the 1980s onslaught against real or imagined Mwakenya and Pambana activists.
The shenanigans around the constitution review process are well documented: suffice it to say that it took 10 years of back and forth, and critically, over 1,300-odd deaths and half-a-million internal displacements during the 2007/08 post-election violence, to focus the government on the delivery of a new constitution.
IPPG had not convinced Moi of the need for comprehensive change; so he had set about co-opting perceived ethnic chiefs into KANU to diffuse the growing clamour for an end to Nyayoism. In a perverse way, that Moi strategy probably made a major contribution to liberating Kenya from his clutches, even if his empire would later strike back. Moi’s strategy culminated in the Kasarani Stadium conference at which he declared a comparative political nonentity, Uhuru Kenyatta, to be his heir. That action sparked a revolt that passed through various political outfits to coalesce in the exceedingly ethnically broad-based and popular National Alliance Rainbow Coalition (NARC) party. This was the party that brought Kibaki to the presidency in 2003, with a promise of a new constitution in 100 days.
Yet if the promised NARC revolution had got rid of Moi and his preferred heir, Kenyans would soon realise that Moi-ism – the disregard for constitutional, policy and legal frameworks – had merely acquired a new face; and there were hints of a reinvention of the autocracy of Kenyatta I. Of the ‘new constitution within a 100 days’, a leading Kibaki ally would declare that there had been nothing wrong with the existing constitution, and that changes to it had only been desired as a means of getting rid of Moi. The growing indiscretions of the Kibaki faction in NARC meant that the party soon imploded, even as that faction set about manipulating the Bomas Draft Constitution to perpetuate the status quo. These divisions set the stage for the 2005 national referendum defeat of Kibaki’s preferred version of the proposed constitution, which in turn set Kenya on the road to the disputed 2007 presidential elections, and the violence the followed in its wake.
As reflected in the 1988 queue voting – mlolongo – exercise, democratic electioneering lost meaning: in instances, the shortest queue of supporters would be declared victorious.
Notwithstanding the unprecedented horror surrounding it, the 2007-08 post-election violence had a silver lining: its resolution by the Kofi Anna-led African Union’s Panel of Eminent Personalities led to, amongst other things, the institution of Agenda Item 4 of 2008 – the basis of long term governance reforms in the country. A newly independent African country’s primary ambition must surely be the transformation of the state (constitution), boundaries and peoples into a nation-state. One might try to explain Kenyatta I’s failures in this respect on his old age and his being overwhelmed by the very idea of ‘independence’ (self-rule); and Moi’s failure on his narrow world view that limited exposure to ideas, such as nation-hood. But neither explanation could hold for the much younger, more educated, and indeed cosmopolitan Kibaki’s failure to realise the dreams of the NARC revolution. And Kibaki’s failure to grasp the remedial opportunity provided by Agenda 4 underscored his lack of fortitude and his ethnic insularity. A president offered great opportunities proved entirely ineffectual.
So ineffectual was Kibaki that he largely seemed to have slept through the International Criminal Court (ICC) indictments of Kenyans adjudged to have had the greatest responsibility for the 2007/08 post-election violence. But Kibaki did have reason to let sleeping dogs lie, even as Moreno Ocampo muddled his way through the early ICC processes: the National Intelligence Service’s (NIS) evidence to the Waki Commission was that Kibaki’s National Security Council (NSC) had been regularly briefed on people arming themselves for violence after the elections. If NSI’s evidence was true – and nobody denied it – then the NSC chair should have been first on the plane to ICC: he knew of impending violence, and failed to contain the threat despite having both the constitutional obligation and the means with which to do so.
Yet if the promised NARC revolution had got rid of Moi and his preferred heir, Kenyans would soon realise that Moi-ism – the disregard for constitutional, policy and legal frameworks – had merely acquired a new face; and there were hints of a reinvention of the autocracy of Kenyatta I.
Among the distinguishing acts of the Kibaki presidency was his rampant creation of unconstitutional administrative districts. In 1997, Kibaki’s Democratic Party had won a High Court action against President Moi for creating some 30-odd “unconstitutional districts”, which the judge did not dissolve because it was the eve of a general election premised on those very districts. Yet during his presidency, right up to the 2010 promulgation of the new constitution, Kibaki created over 200 new, similarly unconstitutional districts, which the new Constitution duly abolished by transforming the constitutional 47 into counties.
Among Agenda 4’s objectives was the time-bound promulgation of a new constitution, which Kibaki hardly campaigned for ahead of the national referendum on it. That the Constitution (2010) is transformative is indisputable: while Chapter 1 of the 2008 version of the independence constitution says nothing about the people of Kenya before launching into the greatness of the President, Article 1 of Constitution (2010) conditions the presidency on the will of the people in declaring as follows:
“(1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution5)
(2) The people may exercise their sovereign power either directly or through their democratically elected representatives.”
Having declared as such, the Constitution (2010) further takes power away from the President in three important respects: (i) it underscores the separation of powers between the Executive, Judiciary and Legislature (Article 1(3)); (ii) instead of all public servants being employed “during the pleasure of the President”, key public offices are filled through people-driven processes as well as protected against external interference (Articles 160, 228, 229, and Chapter 13, etc); and (iii) it creates the national and county levels of government which “are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation (Articles 6 and 189).”
Kibaki’s failure to grasp the remedial opportunity provided by Agenda 4 underscored his lack of fortitude and his ethnic insularity. A president offered great opportunities proved entirely ineffectual.
A further driver of impunity and parochialism under the independence constitution had been the central control of government resources began by Kenyatta I’s 1964 constitutional amendments that took service delivery and revenue generation functions away from the regions. However, the Constitution (2010) proved true to the principles of effective fiscal decentralization: its Fourth Schedule divided functions between the National and County Governments; and Chapter 12 on Public Finance ensures that money (resources) follows the Fourth Schedule’s division of labour.
As noted above, the Kibaki regime was not overly pleased with the governance changes occasioned by the new constitution, especially devolution which would take “at least 15 percent of national revenue” out of Treasury’s control (Articles 203 (2), 207 (1) and 209). This displeasure was most graphically illustrated in the stand-off over the draft Public Finance Management Bill, between devolution’s then mother ministry, Local Government, and the Finance ministry. While Treasury insisted on retaining control of monies devolved by Parliament to county governments, the Local Government prevailed with its position aligned to the recommendations of the Task Force on Devolved Government and the spirit of the Constitution, that Treasury must not touch such monies. Additionally, and critically for effective transition to devolution, the Kibaki government delayed the establishment and adequate resourcing of the Transition Authority, the statutory midwife of the process. This meant that devolution was launched in April 2013, before the Authority could complete many of the preparatory measures envisaged by the Task Force on devolution, and reflected in the Authority’s founding statute.
These goings-on confirm Kenyatta’s place among his predecessors’ ‘constitutionalism for convenience’: if it hampers, ditch it!
Kibaki’s 2013 succession was a somewhat messy affair. His regime had a perception that a Kikuyu could not – or at least should not – succeed him; and so it searched for an ‘acceptable’ non-Kikuyu to oppose Raila Odinga and subsequently manage the ICC burden favourably, with Finance minister Kenyatta, arguably the strongest Kikuyu presidential candidate, indicted there for the 2007/08 post-election violence. Meanwhile, Kalonzo Musyoka’s 2008 backing of Kibaki had enabled the latter to form a government despite a numerically stronger opposition; and Musyoka had reason to expect the favour to be returned. Elsewhere, Kenyatta considered a candidacy for fellow Deputy Prime Minister and former Vice President, Musalia Mudavadi, who had the additional advantage of family ties to former president Moi. In the event, Kenyatta abandoned Mudavadi, declaring “the devil” to have caused him to even think of that option, broke loose of Kibaki handlers, and joined forces with fellow ICC suspect, William Ruto, to milk their tribulations for political gain. These developments pushed Musyoka into an alliance with Odinga.
However, a summary of Kenyatta’s attitude to constitutionalism is best illustrated by his conduct during the 2017 presidential elections. Even as he laments constitutional obstacles to fighting corruption, Kenyatta consistently used state resources to curry favour among individual politicians and voters.
These goings-on confirm Kenyatta’s place among his predecessors’ ‘constitutionalism for convenience’: if it hampers, ditch it! For example, while the full implementation of the Constitution (2010) is viewed as a plausible instrument against corruption, Kenyatta has wished for the independence constitution’s imperial presidency. Secondly, Kenyatta is among the Kiambu-ians who came to terms with ‘the snake crossing the River Chania’ into Nyeri, but cannot countenance the snake leaving the ‘House of Mumbi’, an underlying issue in the post-2007 election agenda. Additionally, after losing the 2002 presidential election, Kenyatta had become the Leader of the Opposition in Parliament, and eventual chair of the KANU party; but he would lead the party into Kibaki’s Party of National Unity coalition in the run up to the 2007 election, and eventually abandon it for his own presidential run with an eye on ensuring a House of Mumbi victory in the 2013 elections. The Supreme Court upheld Kenyatta’s victory in that election; but the court’s decision was derided by numerous legal scholars.
While Kibaki seemed ambivalent during the 2010 debates on the Proposed Constitution, Kenyatta publicly supported it. However, as Finance Minister, his attitude towards the document was evident in his disregard of it over the management of devolved funds. Additional events further illustrate Kenyatta’s less than complete support for the constitution he swore to defend, such as his predilection is well known for grandiose, resource-consuming projects that have pushed the national debt burden beyond the East African Community sustainability levels. Such infrastructure priorities have paid scant attention to Chapter 4 of the Constitution’s guarantee of the right to food, clothing and shelter.
Yet, it is Kenyatta II’s failure to fully implement the transformative Constitution (2010) that stands him out as a great enemy of constitutionalism.
However, a summary of Kenyatta’s attitude to constitutionalism is best illustrated by his conduct during the 2017 presidential elections. Even as he laments constitutional obstacles to fighting corruption, Kenyatta consistently used state resources to curry favour among individual politicians and voters. Public servants and other resources were deployed to the regions to curry favour for his Jubilee party. The regime has also been notorious for its persistent arm-twisting of constitutional commissions and independent offices, most notably the Auditor General and the Controller of Budget. Disdain for the independence of such institutions was most vividly illustrated in Kenyatta’s recurrent outbursts against the Supreme Court which had nullified the August 8 elections for being fraught with “illegalities and irregularities”. Yet two of the judges Kenyatta dismissed as wakora – crooks – had upheld his 2013 election despite big questions and all would uphold his victory in the October 26 repeat election. In spite of their recruitment on constitutionally determined merit, Kenyatta would ask the same judges rhetorically: “Who even elected you?”, and would promise to ‘revisit’ and ‘fix the court ‘problem’. Since then, the law has been changed to complicate the nullification of a presidential election.
This note has presented a broad-brush review of the relationships between Kenya’s four presidents to date and their regimes, and the constitution. The broad finding is that all the presidents have not been sticklers for the either the letter or spirit of the constitution, applying it when convenient, and amending it or even violating it when the need has arisen. Kenyatta I’s apologists might point to the context of his tenure – an autocrat in euphoria over the new independence status; and Moi’s apologists will emphasize his restricted world view. It is however, difficult to go beyond ethnic insularity find explanations for Kibaki’s failure to embed constitutionalism more deeply in governance and his misadventure which led to many lost and wasted lives and livelihoods, is an indictment he will never escape. Kenyatta II is an extension of the Kibaki heritage in many respects, having been an alleged hatchet man in the horrors of 2007/08. Yet, it is Kenyatta II’s failure to fully implement the transformative Constitution (2010) that stands him out as a great enemy of constitutionalism. Based on these experiences, the outlook for Kenyan constitutionalism looks bleak.
Bigsten, Arne (1977), Regional Inequality in Kenya. Nairobi, Kenya: Institute for Development Studies, University of Nairobi
Kanyinga K, Okello D. Tension and Reversals in Democratic Transitions: The Kenya 2007 General Elections. Nairobi: Society for International Development and Institute for Development Studies (IDS), University of Nairobi; 2010.
Kenya National Bureau of Statistics et al. (2014), The Kenya Demographic and Health Survey 2014. Nairobi, KNBS. Available at https://dhsprogram.com/pubs/pdf/fr308/fr308.pdf
Kenya National Commission on Human Rights (2008), On the Brink of the Precipice: A Human Rights Account of Kenya’s Post‐2007 Election Violence. Nairobi: KNCHR. Available at https://kenyastockholm.files.wordpress.com/2008/08/pev-report-as-adopted-by-the-commission-for-release-on-7-august-20081.pdf
Kipkorir, Benjamin (2016), Descent from Cherang’any Hills: Memoirs of a Reluctant Academic. Moran (E.A.) Publishers Ltd.
Kivuva, Joshua M. (2011), Restructuring the Kenyan State. Constitution Working Paper Series No.1. Nairobi: Society for International Development.
Ministry of Local Government (2012), Interim Report of the Task Force on Devolved Government: A report on the implementation of Devolved Government in Kenya. Nairobi: Local Government.
Murunga, Godwin and Sharack Nasong’o (Eds.) (2013), Kenya: the struggle for democracy. London: Zed Books
Mutua, Makau (2008), Kenya’s Quest for Democracy: Taming Leviathan (Challenge and Change in African Politics). Boulder: Lynne Rienner.
URAIA Trust and IRI (2012), The Citizen Handbook: Empowering citizens through civic education. Nairobi: URAIA/IRI. At http://www.juakatiba.com/public/publication/eccbc87e4b5ce2fe28308fd9f2a7baf3.pdf
 That impunity persists despite the structural opportunities to fight it is also a reflection of the hopelessness of a majority of the Kenyan people, as illustrated in the rest of this note.
 This was precisely what the European settlers in Rhodesia did in 1965, leading to minority rule opposed by guerilla warfare in that country until formal independence was negotiated in 1980.
 While the constitution had provided for a multi-party state in a bi-cameral parliamentary system, the opposition KADU party was ‘encouraged’ to dissolve itself by “crossing the floor”, transforming Kenya into a de facto single party state, even if in law t remained a multi-party state
 After the 1969 banning of ex-Vice president Oginga Odinga’s KPU party, and the detention without trial of all its leadership, the country became a de facto single party dictatorship.
 The ‘higher absorption’ parts of the country were the former White Highlands of central Kenya and the spine of the Rift Valley, settled by European settler farmers, in which the colonial government had used ‘native’ tax revenues, such as is reported by Kipkorir (2016), to build development-facilitating infrastructure, such as roads, electricity and telecommunications.
 For example, allowing African small scale farmers to grow cash crops at independence boosted national economic growth into the late 1960s, but the oil crises of 1974 and 1979 dampened performance.
 See Bigsten (1977).
 Kenya National Bureau of Statistics et al. (2014).
 A local government minister, for example, used Nairobi City Council equipment to grade a road to his Kajiado home in preparation for his son’s wedding.
 Into the early 1990s, these annual reports were 7 years behind schedule, meaning the responsible officer had likely transferred, retired, or indeed, died.
 See Murunga and Nasongo (2013).
 Even Mwai Kibaki who a decade earlier had declared that removing Moi and KANU from was like trying to cut down a mugumo tree using a razor blade, ventured to contest the presidency.
 See URAIA/IRI (2012: 15-18).
 This choice overlooked Raila Odinga and former minister Katana Ngala, and former vice presidents George Saitoti, Kalonzo Musyoka and Musalia Mudavadi.
 The Kibaki faction for instance rubbished a Memorandum of Understanding that provided for equal shares of the cabinet with the Odinga faction of the party.
 The 2007 presidential election circumstances are documented in the Kriegler Report, available at https://kenyastockholm.files.wordpress.com/2008/09/the_kriegler_report.pdf. The post-election violence is explored in the Waki Report, available at http://kenyalaw.org/Downloads/Reports/Commission_of_Inquiry_into_Post_Election_Violence.pdf. For an academic approach to the issues, see Kanyinga and Okello (2011).
 The Agendas were as follows: 1–Immediate action to stop the violence and restore fundamental rights and liberties; 2–Immediate measures to address the humanitarian crisis, and promote healing and reconciliation; 3–How to overcome the political crisis; and 4–Addressing long-term issues, including undertaking constitutional, legal and institutional reforms; land reform; tackling poverty and inequality as well as combating regional development imbalances; tackling unemployment, particularly among the youth; consolidating national cohesion and unity; and addressing transparency, accountability and impunity. For details, go to https://reliefweb.int/sites/reliefweb.int/files/resources/Background-Note.pdf
 An interesting analysis is available in Kenyan National Commission on Human Rights (2008).
 The manner of their creation was so ad hoc, leading to deeply contested boundaries and headquarters.
 Key individuals in his regime had campaigned against the Proposed Constitution, and only changed positions when it became evident the ‘Yes’ camp would carry the August 2010 national referendum.
 The Constitution ring-fences at least 15% of national revenue for county governments. In reality, however, the share has been nearly 40% of the revenue.
 See Ministry of Local Government (2012).
 Transition Authority (2016) is an elaborate end term report. Sun, August 20th 2017.At
 See Njeri Rugene and Patrick Langat, President Kenyatta defends tenure, seeks second term. Daily Nation, Tuesday March 21, 2017.
 Kenyatta I’s Kiambu people provided the ‘home guards’ who fought against the Mau Mau largely from the Kikuyu lands across the River Chania. The Kiambu position was therefore that the presidency (and its motorcade [snake]) should never cross into the other lands.
 See for example, Paragraph 545 in Kenya National Commission on Human Rights (2008).
 For example, see Nzau Musau, Why Decision 2013 was ridiculed, torn apart by scholars. Standard Digital, Sun, 20th August 2017. At https://www.standardmedia.co.ke/article/2001251923/why-decision-2013-was-ridiculed-torn-apart-by-scholars
 Aljazeera, Uhuru Kenyatta to court: “We shall reisit this”. 2nd September 2017. At http://www.aljazeera.com/news/2017/09/uhuru-kenyatta-court-revisit-170902130212736.html
Sudan’s (Non-)Arab Spring: Lessons from the April 2019 and Other Uprisings
The political protests in the Sudan, which began last December in the working class city of Atbara, and the perennial power struggle that triggered political instability in South Sudan, speak to the failure of the Sudanese political elite to manage the post-independence socio-economic and political engineering of the state.
The Sudanese people have a cultural trait peculiar and typical of them – a cultural practice that downplays the negative in favour of the positive, that treats individualism and egoism as less important than the general welfare of society and that readily sacrifices for another or the country. Western individualism scarcely appeals to the Sudanese sentimentality and sensibilities, whether they are southerners (jinubieen), westerners (garaba), or northerners (shamalieen).
In the words of Prof. John Lonsdale, the Sudanese, in their different social formations, used to live as negotiating ethnicities until colonial rule turned them into competing tribes. More than two hundred years of common history – notwithstanding the bad memories – are difficult to erase or turn away from; socially, they will always run into each other. However, the long history of bitter and violent struggles against foreign occupation, injustice, political repression and totalitarian regimes, unfortunately, failed to sublimate the Sudan into a nation-state although the people yearned for territorial unity. It is not by chance that the protesters in Khartoum hold the secession and independence of South Sudan as one of the criminal charges against the deposed dictator, Omer Hassan Ahmed el Bashir.
The political protests in the Sudan, which began last December in the working class city of Atbara, and the perennial power struggle that triggered political instability in South Sudan, speak to the failure of the Sudanese political elite to manage the post-independence socio-economic and political engineering of the state. Myopia, religious-cultural narrow-mindedness and intolerance, which engendered political exclusion, social discrimination and economic marginalisation or neglect, culminated in the partition of the Sudan, the wars in Dar Fur, Nuba Mountains, and the Blue Nile and civil unrest in eastern Sudan. The crystallisation in the centre of a tiny minority at the helm of the country’s political and economic power at the expense of the vast majority of the Sudanese in rural areas is the source of Sudan’s predicament.
The mass action (processions, demonstrations and picketing) in Atbara, Khartoum and the major cities of the Sudan point to a salient political reality that characterised its regional distinct socio-economic and cultural development. The mass movements in the cities and towns in northern Sudan contrast exponentially with the military action undertaken in rural parts of the Sudan (southern Sudan, Dar Fur, Nuba Mountains, Blue Nile and eastern Sudan), reflecting the differential socio-economic and political evolution of the Sudanese state since the Turco-Egyptian era [1824-1885].
This reality points to the fact that a degree of social and economic development results in transformation of means and relations of production, and engenders a heightened social awareness and political consciousness. In this respect, it makes it easy for the people to establish a tradition of political organisation combined with action in support of socio-economic and political rights. This process occurred in northern and central Sudan in the form of the construction of the railway line from Wadi Halfa to Khartoum (1898), the Gezira scheme (1925) and the evolution of manufacturing light industries in Khartoum North, leading to the emergence of a conscious and politically organised working class that employs processions, demonstrations, strikes, picketing and civil disobedience in support of their demands for social, economic and political rights.
This is the third time in the Sudan that mass action in the form of a popular uprising (intifadha) ousted a military-based totalitarian regime. The first popular uprising was in 1964 (Ibrahim Abboud) and the second was Gaafar Numeri (1985).
On the other hand, however, rural Sudan (southern Sudan, Dar Fur, Nuba Mountains, Blue Nile and Eastern Sudan) is characterised by poverty and ignorance due to dominant traditional modes and relations of production, natural forces and superstition. As a result, social awareness and political consciousness is inordinately low; there is an obvious lack of tradition and culture of organised political action. Thus, to support the demands for social, economic and political rights, the people in rural Sudan use violence as their chief means of mobilisation for changing the political system.
This is the third time in the Sudan that mass action in the form of a popular uprising (intifadha) ousted a military-based totalitarian regime. The first popular uprising was in 1964 (Ibrahim Abboud) and the second was Gaafar Numeri (1985). The common denominator is these popular uprisings was the dominance of workers and farmers’ trade unions, professional associations, the student’s movement led by the Khartoum University Students Union (KUSU) and the political parties playing in the background. Without the workers’ strikes, picketing and sit-ins, civil disobedience wouldn’t be effective. Another feature of the two uprisings of 1964 and 1985 in the cities was that there were parallel military actions by Anya-nya (1955-1972) and the SPLM/SPLA (1983-2005), which contributed to weakening the incumbent regime. The National Islamic Front (NIF) seized state power in a military coup on 30 June 1989 and installed the Ingaz (salvation) system. It exploited the apparent weak performance of the Sudan Armed Forces in the SPLM/A spearheaded war of national liberation in southern Sudan.
Consequences of the paradigm shifts by the SPLM leadership
In a previous essay, I argued that the colonial education system, which essentially was Christian, anti-Arab and anti-Islam, coupled with the policy of annexing the southern provinces to British East Africa, instilled into the southern Sudanese political elite fear and hatred of the northern Sudanese. Thus, at independence, in a country dominated by highly educated northern Sudanese, this fear and hatred turned into a deep-seated inferiority complex in the southern Sudanese political leaders’, notwithstanding the conspicuous power and wealth asymmetry between the two groups.
As a result, the southern Sudanese pursued a policy line that separated them from the northern Sudanese in a common struggle. For instance, in the run-up to independence (1947), there was a strong voice among the southern Sudanese politicians that the southern provinces would remain under British rule while northern Sudan gained its independence. The nationalist trend triumphed in the end and Sudan became independent as one country. This attitude among the southern Sudanese elite – of shunning unified political action with northern Sudan in favour of a separate and parallel struggle against the same oppressive political dispensation – has been the Achilles’ heel in the Sudanese body politic. But even within southern Sudan, this attitude was echoed in the “kokora” (redivision), which culminated in Nimeri dismantling the southern region and the abolition of self-rule that the southern Sudanese had won in the Addis Ababa Agreement, rather than in unified political action together with northern Sudanese opposed to Numeri.
The ideological and political shifts…pushed the SPLM/A into negotiating liberal peace and a comprehensive peace agreement (CPA). It also rescued the Ingaz regime from collapse, extending its life and enabling it to wage war and commit war crimes in Dar Fur in 2003.
The paradigm shifts in the early 1990s, which the SPLM leadership struck following the collapse of the world socialist order, smacks of this attitude of separatism. The SPLM’s ideological shift from revolution to neoliberalism coincided with the political shift from “united secular New Sudan” involving all the oppressed, political excluded and marginalised Sudanese to the right of the people of southern Sudan to self-determination. Had the southern Sudanese- dominated SPLM/SPLA honestly pursued a revolutionary agenda for destroying and restructuring the Sudan in order to meet the aspirations of its people for freedom, justice, fraternity, Omer el Bashir would have fallen in 1997 when he suffered serious military setbacks at the hands of the SPLA in war theatres in southern Sudan, Nuba Mountains and Blue Nile, and at the hands of the New Sudan Brigade in eastern Sudan.
The ideological and political shifts (which made the war of national liberation a southern Sudanese movement, an obvious betrayal of the Nuba, Funj and Beja African groups in northern Sudan who joined the war on the basis of having been marginalised, oppressed and discriminated against), pushed the SPLM/A into negotiating liberal peace and a comprehensive peace agreement (CPA). It also rescued the Ingaz regime from collapse, extending its life and enabling it to wage war and commit war crimes in Dar Fur in 2003.
In fact, the secession of South Sudan left virtually intact the Ingaz system. It strengthened the Ingaz grip on power in the Sudan, enabling it to eschew the issue of democratic transformation on which the CPA was predicated. Once South Sudan was gone, the regime had no political military force to restrain its imposition of the strict Islamic code on the people of the Sudan. It immediately unleashed war on the SPLM/A-North in the Nuba Mountains and Blue Nile. The regime exploited the South Sudan-Sudan border war (2012) in terms of resultant acute economic difficulties in the Sudan, and the eruption of the civil war in the Republic of South Sudan (2013) to strengthen itself vis á vis the armed and political opposition in the Sudan.
Genesis of Sudanese popular uprisings against dictatorial regimes
According to Dr. Hassan Abdalla el Turabi, the Islamic scholar and chief ideologue and architect of the Ingaz system, “the Sudanese masses struggle to bring down military dictatorships while the traditional political parties create conditions for military coups”. To a large extent, this statement carries the truth of the dynamics of the Sudanese body politic since 1958.
Prior to contact with European colonialism, the Sudanese people lived as negotiating peaceful ethnic chieftaincies and kingdoms. However. this situation changed when a repressive and corrupt Turco-Egyptian administration (Turkiya) imposed itself.
The popular uprisings are rooted in the nature of the Sudanese people’s sophist Islam, which is dominant in northern Sudan, with its proximity to Egypt and Europe. As a faith, culture and state in one, Islam, unlike Christianity, has the capacity to arouse in people passions against rulers who are corrupt and unjust. This explains how Mohammed Ahmed el Mahdi succeeded to lead a revolt against the Turkiya (1824-1885) to establish an authentic indigenous Sudanese state (1885-1898). It is this progressive dimension of the Islamic faith that provides energy to enable the Sudanese to quickly mobilise into revolutionary political actions, like the Mahdist’s revolution (1881) and the White Flag Revolution (1924) to mention a few.
The re-conquest of the Sudan and the establishment of the Anglo-Egyptian Condominium (1899) opened the Sudan, particularly northern Sudan, to modernity and to the emergence of a modern working class movement under the leadership of the Sudan Railways Workers Trade Union. This had enormous impact on the evolution of people’s social awareness and political consciousness; the already advanced nationalist movement in Egypt augmented and accelerated Sudanese nationalism, which began under the aegis of the “unity of the Nile basin”.
The Sudanese people, mainly the intelligentsia, benefited from the education opportunities in Egypt, and indeed, most nationalist leaders obtained knowledge and influence of modern ideas from contact with Egypt, which had invested interest in restoring the Sudan to the Egyptian crown. Thus, and because of the terms of the Condominium Treaty, the Sudanese Army evolved as part of the Egyptian Army in the Sudan commanded by British officers but with a tradition of fidelity to the homeland rather than the colonial authorities. This worked to the advantage of the Sudanese nationalist movement, leading eventually to the White Flag revolution (1924), which played out in critical political situations, when as a national institution it was forced to choose between the people and the repressive regime in power.
These and many other factors that cannot be enlisted here shed light on the genesis of Sudanese popular uprisings. It must be mentioned that the pattern of these uprisings was by no means uniform, although it could be said with confidence that the military coups have invariably followed a similar pattern, usually as a result of the failure of political parties to manage power and the democratic process. The northern Sudanese people are highly politicised and organised, which makes it easy for them to craft political action even at the residential neighbourhood level. This explains the ease with which they quickly establish networks of resistance or solidarity.
The second democratic and multiparty political dispensation (1964-1969) was not really democratic. Like the first, it suffered serious political hiccups as the traditional-theocratic political parties (Umma and DUP) and Islamic Charter Front (ICF) jostled for the promulgation of an Islamic Constitution to replace the Transition Constitution (1956) amended in 1964.
The dynamics and intricacy of Sudanese party politics pushed the then Prime Minister Ibrahim Khalil (Umma Party) to hand over power to Gen. Ibrahim Abboud on 17 November 1958 (ostensibly to take it back after six months after the political temperature had cooled down). The masses had to oust Abboud in October 1964, six years later. The October revolution, which the Sudanese people all over the world revere as a paradigm of its own, precipitated civil disobedience throughout the Sudan that paralysed the military government, forcing it to hand over power to a civilian government in eight days (October 21-28).
The second democratic and multiparty political dispensation (1964-1969) was not really democratic. Like the first, it suffered serious political hiccups as the traditional-theocratic political parties (Umma and DUP) and Islamic Charter Front (ICF) jostled for the promulgation of an Islamic Constitution to replace the Transition Constitution (1956) amended in 1964. The political right outlawed the Communist Party of the Sudan (CPS) and unseated its members in the Constituent Assembly to the chagrin and disappointment of the political left, which in reality led the October revolution now stolen by the right-wing politicians. This development paved the way for the military coup, which the leftist Free Officers Movement in the Sudanese Armed Forces, led by Gaafar Mohammed Numeri, pulled on 25 May 1969.
The leftist stint at state power was short-lived, primarily because of the ideological split within the CPS eventually working to the advantage of the ICF, which exploited the ideological void in the May regime left by the communist and revolutionary democrats. Following the Port Sudan agreement (1977) between Numeri and the National Front (right-wing political parties of Umma, DUP and ICF), Dr. Hassan el Turabi decided to join in order to eventually take over the May regime under the guise of political Islam.
Numeri’s abrogation of the Addis Ababa Agreement (1 June 1983), which established the Southern Region, and his imposition of Islamic Sharia laws (September 1983) created the conditions for his overthrow in a popular uprising on 6 April 1985. The dismantling of the Southern Region triggered war in Southern Sudan under the SPLM/A. At that time, the Sudan had gone into deep social and economic crises due to the structural adjustment programme (SAP) imposed by the World Bank and the International Monetary Fund (IMF). The Sudanese pound plummeted from 0.35 to 1 against the US dollar and further down until the dollar exchanged for three Sudanese pounds. The government could not provide social services. Drought and famine had struck in Dar Fur and Kordofan, causing massive population migration to Khartoum. All these factors and war in southern Sudan culminated in the March-April 1985 popular uprising and the fall of the May regime.
The popular uprising did not uproot the regime as was anticipated. The regime’s prominent ideologues and influential elements remained at large. The ICF leadership, now rebranded National Islamic Front (NIF), remained influential in the army and in the bureaucracy. The forces of the intifadha, ensnared by the army’s top brass decision to side with the demonstrators after weeks of bloodshed, gave in too quickly and left the May regime intact even though it had been removed from power. No wonder that NIF ranked the third largest political force in the Constituent Assembly elected in 1986, although its leader Dr. Hassan Abdalla el Turabi, was trounced in a Khartoum constituency.
The third democratic and multiparty-political dispensation departed from the trajectory after October 1964, but again the Umma Party, now led by Sadiq el Shadegg Abdurrahman Mohammed Ahmed el Mahdi, never internalised the lessons learnt after the October 1964 uprising. His prevarications and hesitation to implement the SPLM/A-DUP agreement of December 1988, notwithstanding the defeats his army suffered in war theatres, paved the ground for the NIF to usurp power in a military coup on 30 June 1989.
No human situation lasts indefinitely; political repression and all kinds of injustices end at some critical intersections and crossroads. The Ingaz lasted thirty years because of divided opposition to it; the southern Sudanese, who have been instrumental in the survival or demise of regimes and governments in the Sudan, unfortunately diverted from the Sudanese nationalist movement into secessionism…
The NIF, now rebranded Ingaz, is a modern political force in terms of its ideology and sophisticated political, security and intelligence organisation. It set to transform the Sudan in accordance with the Sharia and the Suna. It constructed a system of political repression, corruption, economic self-aggrandisement and set out to destroy or take over the tools of political resistance: workers’ and farmers’ trade unions, professional associations, and women’s, youth’s and students’ movements. It carried out Jihad in southern Sudan, Nuba Mountains and Blue Nile. During its tenure, tens of thousands of young men and women perished. Through political repression, a network of political patronage and ruthless security/intelligence service,s the NIF managed to establish an Islamic totalitarian regime in the Sudan for thirty years despite the split within its ranks (1999) that witnessed Dr. Turabi’s incarceration and the eventual formation of his Popular Congress Party (PCP) parallel to and competing with the National Congress Party (NCP).
The April 2019 uprising: Will it spell Ingaz’s total demise?
No human situation lasts indefinitely; political repression and all kinds of injustices end at some critical intersections and crossroads. The Ingaz lasted thirty years because of divided opposition to it; the southern Sudanese, who have been instrumental in the survival or demise of regimes and governments in the Sudan, unfortunately diverted from the Sudanese nationalist movement into secessionism, thus forfeiting their pivotal point of being the non-Arab and non-Muslim members of the Sudanese nationalist movement, which could have easily led to the construction of a Sudanese state based on the principle of “unity in diversity” – hallmarks of any democratic dispensation.
There have been attempted uprisings but to no avail since the Arab spring of 2011 that swept the regimes in Tunisia, Libya, Egypt, and Yemen. This time, the architects and leaders of “change and peace”, the Sudanese Professional Association (SPA), acted prudently so as not to repeat the mistakes of the past that permitted the “stealing” of the revolution. On 25 December 2018, which is not a public holiday in the Sudan after the secession of South Sudan, a group of twenty-one professionals (university professors, lawyers, doctors, engineers vets and others) released a public statement titled, “Such that the people’s revolution is not stolen: people’s revolutionary consciousness is the only guarantee for our people”, in which they outlined five important points they categorised as the five principles of the fourth people’s revolution.
These principles inter alia are: to overthrow the regime to stop the deteriorating socioeconomic and political situation in the country; never to allow change of the system from within, otherwise it is going to be Ingaz 2; although the pivotal role of the organised forces is welcomed in the overthrow and dismantling of the Ingaz system, changing the regime through a military coup should never the allowed; never to accept a Military Council on the basis of what transpired following the March-April uprising (1985), which eventually became May regime 2; the demand should be“a revolutionary council comprising the forces of change and whose mandate shall be national sovereignty.
The SPA and the Sudanese masses believe, and are convinced, that the revolution was not just to remove Omer el Bashir or the Ingaz regime for that matter, but to transform the Sudan’s falsified reality and restore its national dignity. There are even calls for the Sudan to quit the Arab League and return to its African roots, which has received support from the masses.
The SPA is following the principles to the letter, as reflected in the decision to camp the protestors into the precincts of the Armed Forces headquarters in Khartoum since 6 April, which marked the thirty-fourth anniversary of Numeri’s overthrow. This is a complete departure from the pattern of previous uprisings, which handed over power to the traditional political parties through fake or bogus elections. The traditional and theocratic political parties and the Islamic Charter Front had been using Islam, a faith to which the majority of Sudanese subscribe, as a political tool to dampen people’s consciousness, making it easy to ensnare them into voting them to power. If the demand now by the members of the SPA to liberate Sudanese politics from religion is met in the new dispensation, it will go a long way in transforming Sudanese reality. (Religion is a double-edged sword.)
The SPA and the Sudanese masses believe, and are convinced, that the revolution was not just to remove Omer el Bashir or the Ingaz regime for that matter, but to transform the Sudan’s falsified reality and restore its national dignity. There are even calls for the Sudan to quit the Arab League and return to its African roots, which has received support from the masses. The reaction to the events in the Sudan have been varied, from support for the military Junta coming from the Kingdom of Saudi Arabia, the Emirates and Egypt to outright rejection of the Junta by the African Union (AU). The AU, in its resolution 5 (c) to “freeze Sudan’s participation in its functions if the Military Council does not surrender power to a civilian authority in two weeks from the date of the resolution”, inadvertently supports the SPA.
My reading of the situation is that although the Junta continues to implement the demands of the protesters camped in its headquarters to arrest, incarcerate and confiscate the looted property of the Ingaz figures, nevertheless, they will procrastinate in handing power to the civilian Supreme Council of the State and a civilian cabinet until they are assured of their immunity from prosecution. . It must be viewed that their intervention was to prevent a sharp split in the army and to keep the Ingaz intact. Most of the members of the Military Council were senior officers in the army and security forces whom Bashir appointed recently, ostensibly to protect his back. The Chair of the Military Council, Gen. Burhan, hails from Bashir’s ethnicity, and may be counting on a possible split along ethnic and regional contours to occur within the ranks of the SPA and the protesters to drive a wedge and weaken the protest.
So far, the SPA and the Sudanese people are united in their demand that an Ingaz 2 shall never be allowed, which explains their demand to dismiss from the information and communication industry all those bureaucrats, journalists and news anchors linked to Ingaz 1. The deposed President Omer el Bashir and his two brothers, Ali Osman Mohammed Tah and Dr. Awad el Jaz, and many other Ingaz figures have been incarcerated in Kober Maximum Prison – a positive development and indication that SPA means business.
While time may be running out for the Junta on account of non-recognition and other diplomatic etiquettes, the SPA and the protesters camped in the army headquarters may continue to bask in the support of the Sudanese masses until they succeed to form the Supreme Council of the State – with or without a representative of the Junta – and a Constitutional and Legislative Assembly representing the forces of change, which in turn will elect a Prime Minister, a Deputy Prime Minister and seventeen civilian ministers of impeccable character. It remains a tall order to transform Sudan’s reality after thirty years of Ingaz
The impact of Sudan’s uprisings on South Sudan and the region
Although until recently (2011), South Sudan was an integral part of the Sudan, nevertheless, as I have mentioned above, its people had not completely integrated into the social and political fabric of northern Sudan. The Southern Sudanese invariably (except for small groups of leftist activists) pursued a separatist agenda, and therefore, don’t count themselves part and parcel of the Sudanese nationalist struggle even though they may have participated in the struggle as individuals or as groups. They have, therefore, forfeited their share of the victory. Not only that but they also don’t benefit in terms of acquiring political skills, such as tactics and strategies, in their struggles. This explains why political struggles in southern Sudan then, and now South Sudan, have invariably been violent ethnic conflicts and wars.
Before speaking about the impact of the Sudanese uprisings, it is important to analyse the context of the Horn and the Great Lakes Region in terms of political contacts and flow of ideas, without which it will be practically impossible to gauge the impact of social and political developments in any of the countries on the others in the region.
It is a fact that nationalist movements in the region were fragmented and isolated from each other although there was the overarching Pan-African movement whose objectives were continental liberation. It is obvious the national movements were stronger than the Pan-African movement, whose ideological messages did not permeate traditional, conservative and liberal African political thought. The relations in the region were and remain competitive and conflictual, revolving around inviolability of arbitrary colonial borders. Thus political formations in the region had much on their plates other than solidarity across common borders.
This may explain why important socio-political developments occur without concern, solidarity, or drawing important lessons to be employed locally. Sudanese uprisings did not have much impact on the political party organisation and action in East Africa nor did developments in Aast African countries impact political struggles in the Sudan. For example, the union of Tanzania and Tanganyika did not impact or influence the southern Sudanese desire to pursue secession. The second liberation struggles in Kenya in the 1990s never borrowed a leaf from the Sudanese struggle against Numeri’s totalitarian regime. For instance, it was not enough to remove section 2A from the constitution to relax the struggle against Moi’s totalitarianism
Now times have changed and it is becoming clear that peoples’ struggles and mass movements against dictatorship, personalised rule, and acute economic pauperisation of the masses emanating from the crisis of capitalism in the region at least share some characteristics and must therefore learn from each other in terms of setting strategies and tactics and solidarity with each other. The mass movements in Kenya and Uganda must learn to organise and build solidarity networks and shield them from the repressive security organs of the state, It is important to view a crisis in one sector as part of a crisis in the whole system. The political tool (civil disobedience) in the hands of Sudanese protesters was effective only because all subscribed to the principle of solidarity and all sections of society participated in it at the same time. Mass action in a sector must involve the professionals, the technicians, the workers – otherwise it will not succeed.
Organize Don’t Agonise!!
Winter Is Coming: Why Our National Debt Is Illegitimate, Unjust and Unsustainable…and Why We Should Be Worried
Greece teaches us, if we will listen, that the time is likely to come when Kenya will be unable to pay government workers’ salaries and will not be able to fund essential public services, such as security. At this point, the Government of Kenya will be forced to take on yet more borrowing to prevent a mass uprising. These “rescue packages” will be offered on grossly usurious terms, terms that the government will have no choice but to accept.
Recently the matter of Kenya’s national indebtedness has gained wide coverage in the media, not least in a presidential roundtable with the press on December 28th, 2018. In my opinion, our nation is grossly indebted, and in fact we are in a de facto state of emergency as far as our nation’s finances are concerned. I hope to demonstrate this fact below, and to suggest what options we have for dealing with our indebtedness.
Several indicators for measuring national indebtedness exist, such as Debt-to-Gross Domestic Product (Debt:GDP), debt per capita, etc. Probably the most widely-used indicator is the Debt:GDP ratio. This particular metric is so obfuscatory and misleading that it is not inconceivable that it was actually developed to mask the truth about national indebtedness the world over.
When we as individuals want to borrow salary-backed loans from banks, the banks attempt to assess our ability to pay off these loans by reviewing our payslips, sometimes going back 3 to 6 months. This effort is calculated to answer just one question: what is our take-home pay? In doing this, the banks are assessing our credit-worthiness, which helps to reduce the risk of default.
At the national level, however, this abundance of caution is thrown to the wind. The use of the Debt:GDP ratio to measure national indebtedness means that a country’s ability to take on more debt is assessed on the basis of its GDP. At an individual level, such an assessment would approximate assessing our ability to pay off salary-backed loans based on our gross pay. In fact, it is much worse: it is more like assessing an individual’s ability to pay off a loan based on how much revenue he generates for his employer. Even if such a company is just breaking even, the revenue an employee earns his employer must necessarily exceed his salary, or else that organisation would be unable to meet its operational costs, such as rent, electricity and other office expenses. Put another way, the revenue an employee generates pays a lot more than his salary). Since GDP attempts (poorly) to measure the total value generated by all the economic activity in a nation, to use it as a basis for measuring whether a country has room to borrow is patently unwise simply because not all the value created in a nation’s economy is available to pay a nation’s debt.
The revenue employees generate and the value an economy generates (GDP) are analogous in that both are measures of value created. However, whereas the revenue produced by employees accrues directly to their employers’ GDP, it does not so directly accrue to a nation. For example, after a loaf of bread has been produced in a country, that loaf is not submitted to the government, yet its production adds to the nation’s GDP. For this reason, even a revenue-based definition of employees’ income does not properly approximate the absurdity of using GDP as a measure of national income on which to assess indebtedness because not all of GDP accrues to the nation as income.
By masking true indebtedness, therefore, the Debt:GDP ratio encourages wanton borrowing. This works in favour both of fiscally irresponsible (or worse, corrupt) governments and of predatory lenders…
What is the net effect of all this? The more broadly a lender can define a borrower’s income, the larger the proportion of that borrower’s true income that will flow out as loan repayments, and the more the borrower’s assets stand at risk of repossession as collateral. This is what has happened to us as a nation. When we consider further stratagems like rebasing our GDP, which had the effect of increasing our GDP by 25% at a stroke, it can be seen that by nominally increasing our GDP the illusion was given that our nation was able to take on even more borrowing than before, opening the gates to yet more lending.
By masking true indebtedness, therefore, the Debt:GDP ratio encourages wanton borrowing. This works in favour both of fiscally irresponsible (or worse, corrupt) governments and of predatory lenders, both private and multilateral (the line between private and multilateral lenders is far thinner than is generally believed). We do not pay debt out of GDP. We pay debt out of our national revenues. The more revealing and honest measure would be debt-to-national revenue. For the same reasons of honesty and clarity, it is prudent to narrow the definition of national revenue down further to tax revenue, thereby eliminating grants, donations, monies realised from the sale of public assets, and other incidentals from the discussion.
The problem – from the viewpoint of irresponsible governments and predatory lenders, of course – is that once we do so, the scales will fall off our eyes and it becomes apparent just how much of our nation’s money is going towards servicing our debt. According to the national Treasury, our national debt, which stood at Sh1.894 trillion in the financial year (FY) 2013, had grown to Sh5.047 trillion by the end of FY 2018, a growth of 269 per cent.
In 2013, however, the government collected a total of Sh754.2 billion in taxes. The implication is that our Debt:Tax ratio stood at a whopping 251 per cent in that year. By 2018, although revenue collections had grown to Sh1.47 trillion, our debt had grown much faster, so much so that our Debt:Tax ratio in the FY 2018 stood at 343 per cent.
Our GDP in 2013, according to the same report, was Sh4.496 trillion, meaning our Debt:GDP ratio was 42.1 per cent in 2013. In 2018, our GDP was Sh8.845 trillion. (This suggests that our GDP has been growing at a compounded annual growth rate of 14.49 per cent, which would be news to most Kenyans; the effect of rebasing our GDP can now more clearly be seen.) These figures imply our Debt:GDP ratio in FY 2018 was 57 per cent.
In 2013, however, the government collected a total of Sh754.2 billion in taxes. The implication is that our Debt:Tax ratio stood at a whopping 251 per cent in that year. By 2018, although revenue collections had grown to Sh1.47 trillion, our debt had grown much faster, so much so that our Debt:Tax ratio in the FY 2018 stood at 343 per cent. In other words, if the Government did nothing else but pay off our national debt – if it did not pay teachers, doctors, nurses, the army, and the police; if it did not provide medical supplies; if it bought no textbooks; if it did not construct one metre of road or railway; if it did not construct one hospital room or classroom or police post – it would take us about three and a half years to pay off the national debt.
This situation is untenable. National Treasury data indicates that in FY 2018 we spent Sh459.4 billion servicing our debt. By that measure, debt repayment was the single largest item in our nation’s expenditure, exceeding our expenditure on transport infrastructure (Sh225 billion), health (Sh65.5 billion) or education (Sh415.3 billion). In other words, we are spending more paying off our debt than we are spending providing good transport for our people and good treatment for our sick – combined.
A day of reckoning is soon coming for our beloved country, on which day we shall realise that indeed, as per the Holy Writ, “…the borrower is slave to the lender”, and that debt (even if the money is used well, let alone if it is actively misused as we have done) is the tool of the neo-colonialist. It will become starkly apparent that by a system of multilateral and international debt, there is a sense in which foreign powers have been able to be perhaps as extractive of our nation’s wealth as they were when they were in power as our colonial masters. There is in fact a very real sense in which the colonial powers never really left. The only major change is that China is now on the list of our foreign masters.
We have already seen multilateral lenders like the International Monetary Fund (IMF) force our government to impose VAT on fuel. This is not the first time this happened. In 2013, when our debt was less than half what it is now, the IMF backed changes in our VAT law that would have imposed VAT on milk and medicines, claiming that “…the changes in the law [would] put Kenya in line with other modern VAT regimes in the world by simplifying the way it operates while reducing the number of exempt items.” Although the Cabinet did not impose VAT on milk and medicines, other items, such as textbooks, periodicals and magazines, did not escape the taxman’s levy. The press reported that our national port in Mombasa was used as a security for the loan that was used to construct the Standard Gauge Railway (SGR). These are not isolated bellwethers of the dire situation our country finds herself in: the Daily Nation recently reported that we will require Sh1.04 trillion to service our debt in FY 2020. Where will it come from?
We must now examine possible solutions to what is clearly a monumental problem. The truth is this: debt can be dealt with either by paying it, or by not paying it. National debt can be repaid through austerity programmes and/or by the realisation of collateral. A nation may avoid repayment by pursuing debt forgiveness; defaulting on our sovereign debt; and/or overseeing a managed default on our sovereign debt.
Options for paying our national debt
Since the national debt can only be paid out of taxes, an escalation of the national debt can only result in an austerity programme. Austerity is a term that follows a very well-worn path of giving nasty, anti-common man policies honourable names (this is what is called “Economese”). Simply put, austerity necessitates the redirection of large portions of tax receipts away from normal government expenditure (including mission-critical social expenditure like health and education, and away from development expenditure) in an effort to pay off the debt. The Merriam-Webster dictionary describes austerity as “enforced or extreme economy”.
The fact that Kenya is – whether it has publicly announced it or not – well up the austerity road is evidenced by the earlier observation that debt repayment is the single largest item in our nation’s budget. By the time our lenders and leaders decide to announce that we are in an austerity programme, we will have been in one for years.
To examine where this road leads, we must turn to Greece. That nation has been locked in austerity’s deathly embrace for the better part of a decade. An Al Jazeera article notes that the austerity programme in Greece was occasioned by over-borrowing (sound familiar?) in the years leading up to the global financial crisis, which was exacerbated by a rise in rates occasioned by that crisis. In order to keep paying government salaries and finance public services, Greece had to accept an initial loan of EUR110 billion from its Eurozone partners and the IMF. To pay off this loan, the country was compelled to institute radical austerity measures. How did that go?
The European Union, the European Central Bank and the International Monetary Fund loaned Greece a total of €289bn ($330bn) in three programmes, in 2010, 2012 and 2015.
The economic reforms the creditors demanded in return brought the country to its knees with a quarter of its gross domestic product (GDP) evaporating over eight years and unemployment soaring to more than 27%.
The fundamental contradictions between the envisaged outcomes of austerity and its outcomes in reality are also the reason we find multilateral lenders talking out of both sides of their mouths, first imposing these programmes, and then sheepishly admitting that they have not worked. The IMF, for example, actually produced a report stating that it made notable failures on its first rescue package to Greece.
Greece teaches us, if we will listen, that the time is likely to come when Kenya will be unable to pay government workers’ salaries and will not be able to fund essential public services, such as security. At this point, the Government of Kenya will be forced to take on yet more borrowing to prevent a mass uprising. These “rescue packages” will be offered on grossly usurious terms, terms that the government will have no choice but to accept. Then, in a strange twist of irony, the very people upon whom the initial injustices were visited will do the lenders’ marketing for them by way of a civil uprising. From then on, our nation’s expenditure will be “supervised” by these lenders, not to help the Kenyan people, but to ensure that these lenders are paid. These are doomsday scenarios, and I find it difficult to even write them. Yet it can get worse – and has, elsewhere in the world.
Realisation of collateral
Realisation of collateral is a method of debt payment that is as old and as basic as Shylocks. It is difficult to recall a time when national debt was collateralised to the extent that has happened in the recent past. It appears that the realisation of collateral appears to be the favoured method of China for collecting debt. For our case study on this, we must turn to the nation of Sri Lanka, as the New York Times reported:
Every time Sri Lanka’s president, Mahinda Rajapaksa, turned to his Chinese allies for loans and assistance with an ambitious port project, the answer was yes.
Yes, though feasibility studies said the port wouldn’t work. Yes, though other frequent lenders like India had refused. Yes, though Sri Lanka’s debt was ballooning rapidly under Mr. Rajapaksa.
…Mr. Rajapaksa was voted out of office in 2015, but Sri Lanka’s new government struggled to make payments on the debt he had taken on. Under heavy pressure and after months of negotiations with the Chinese, the government handed over the port and 15,000 acres of land around it for 99 years in December .
There are examples closer to home. In December 2018, the US National Security Advisor, John Bolton, sensationally claimed that China was about to take over the Zambia Electricity Supply Corporation (ZESCO), which is Zambia’s version of Kenya Power & Lighting Company, before KenGen and Ketraco were hived off. Although this rumour was strongly refuted by Zambia’s presidential spokesman, Mr Amos Chanda, Mr Chanda did admit that Zambia owes China US$3.1 billion in debt. In Africa that kind of statement from that kind of person often means the figure is much higher; indeed, some sources have placed the figure at US$6.4 billion.
In 2017, Zambia’s police force had to scrap plans to hire eight Chinese nationals following a public outcry. Zambians were concerned about having to salute a Chinese national in their own country. It is also true that in November 2018 police arrested over 100 residents in Kitwe (the country’s second-largest city) who were protesting the alleged sale of the Zambia Forestry and Forest Industries Corporation (ZAFFICO). There is a possible sub-plot here: Mr Bolton’s claim may mean that the IMF and Western allies are worried that they are losing their grip on the Zambian nation to China.
Options for not paying our national debt
In advocating for the non-payment of national debt I am not advocating injustice or dishonesty for this reason: “The government” is not a nebulous entity separate from the people. The government is the people. When the government borrows, it is the people who are borrowing; when the government pays, it is the people who must pay; indeed, it is their taxes that are used to pay.
As can be seen from the foregoing, over-borrowing, poor governance and/or the mismanagement of public funds can lead to adverse effects, not on “the government”, not on the lenders – even private lenders – but on the people. The stark truth is that austerity rarely, if ever, aids recovery – unless by recovery we mean the recovery of lenders’ money.
As can be seen from the foregoing, over-borrowing, poor governance and/or the mismanagement of public funds can lead to adverse effects, not on “the government”, not on the lenders – even private lenders – but on the people. The stark truth is that austerity rarely, if ever, aids recovery – unless by recovery we mean the recovery of lenders’ money. Austerity is a creditor-oriented policy, not a people-oriented policy, and it fails because cuts in government spending result in reduced consumption, unemployment and lower tax receipts. Yet tax receipts are what are needed in order to pay off the debt. The realisation of collateral (the other solution) is nothing but the seizure of a people’s land
There exists, therefore, a moral case for non-payment, which is this: that the betrayal of a people by its ruling class through the accumulation of a debt whose benefits the people never realised should not be visited upon the class of the ruled, who pay the debt. On this point, therefore, I am advocating for justice, not injustice; and for honesty, not dishonesty.
Debt forgiveness is not a new concept; it is in fact a biblical concept. The concept of Jubilee meant that every 50 years, during the eponymously-named Jubilee year, all debts were written off, all enslavement ended, and everyone was allowed to return to whatever ancestral lands that they might have had to give up because of an inability to pay back debt. A thorough examination of the wisdom and justice of this law would take up a solid chapter in a good book; suffice it to say that it acted like a legislated revolution, resetting the kind of gross national inequalities that US Senator Bernie Sanders is grappling with – for the price of a trumpet blast.
Our gross national indebtedness means – or rather, dictates – that we pursue debt forgiveness, because we simply cannot pay back everything we have borrowed. The problem is that we are not considered a poor country any more – not even a low-income country. We are now a middle income nation, and precedent shows that debt forgiveness is the preserve of highly indebted poor countries. Our pleas for debt forgiveness, therefore, are quite likely to fall on deaf ears. Further, a significant portion of our national debt is owed to China and China, Sri Lanka might whisper, is not a nation one asks for forgiveness.
A note of caution must here be sounded: only 15 or so years ago, Zambia had its debts wiped clean under the IMF’s Heavily Indebted Poor Countries scheme. The same country then took “less than a decade” to run up fresh debt of 59 per cent of GDP, buying million-dollar fire engines and constructing roads twice as expensive as those of her neighbours.
A strategy of debt forgiveness is, therefore, useless in the absence of enforced legislation to ensure that future over-indebtedness and/or wastage is prevented. A law preventing the government from tying up more than 10 per cent to 15 per cent of the average tax collected in the previous five years on debt servicing would be a very good place to start. The laws preventing wastage and theft of what we actually do borrow do exist, but require radical enforcement.
Default on sovereign debt
There exist exceptional circumstances in which nations default on their national debt. These times are usually presaged by significant external shocks or political ones, such as when Fidel Castro took over in Cuba in 1959, and simply defaulted on outstanding Cuban debt. The bonds on which he defaulted are in default to date.
Reference is often made to the Argentinian default (and one must be specific) of 2001. In 1998, Argentina’s economy entered a deep recession. The IMF’s by now predictable solution, of course, was austerity. Over the course of the following two years, it became increasingly clear that the toxic mix of an artificially fixed exchange rate, a steadily worsening balance of payments deficit (imports exceeding exports) and mounting debt, among other factors, meant that Argentina would never be able to pay off its debt.
Then the people began to protest, with increasing vociferousness, against austerity. When in December 2001 the IMF realised that default could not be avoided, it held back previously promised “support” so that the government was left without any external funding. Bank runs and riots followed: at one point the country had five presidents in ten days. Finally, on December 24, the country defaulted on a US$ 100 billion debt. This led to a social crisis of epic proportions, characterised not least by rampant unemployment.
Sovereign defaults of this nature tend to be devastating and ought to be avoided. The social cost ends up being far too high, even if one is a Castro leading a non-conformist Cuba. Firstly, in order to teach other would-be defaulters a lesson, lenders make an example out of one. Secondly, the world has become too interconnected for us to make ourselves a pariah state for any length of time: globalisation is a source of many ills, but it can help us as well, for we have a surplus of labour that we can offer the world (among other competitive advantages).
Managed default on sovereign debt
The way we might want to do it is the way Ecuador did it between 2007 and 2009. The then President Rafael Correa stopped payments on bonds that the country had taken out, and established a “debt audit commission” to conduct an audit on the country’s debt, which at the time was using up 38 per cent of the government’s budget. The purpose of this audit was to establish the “legitimacy” of the debt.
This was a brilliant first step. Firstly, it brought to the forefront the moral injustice of a people’s having to pay loans from which they never benefitted. Secondly, the reason given for the initial default was a moral one, as opposed to a financial one (even though the financial reasons lurk menacingly in the background). The genius behind the debt audit was that it was for establishing the morality (and not merely the affordability) of the public debt. Such a debt audit commission in Kenya – objective, apolitical (in a local sense), staffed with technically qualified, patriotic individuals and with an ability to trace the flows of borrowed funds – would likely produce spectacular results.
The way we might want to do it is the way Ecuador did it between 2007 and 2009. The then President Rafael Correa stopped payments on bonds that the country had taken out, and established a “debt audit commission” to conduct an audit on the country’s debt, which at the time was using up 38 per cent of the government’s budget. The purpose of this audit was to establish the “legitimacy” of the debt.
Ecuador’s debt audit commission found that the debt was illegitimate based on the manner in which negotiations were conducted. (The reasons for which debt can be illegitimate are myriad: here in Kenya, the factors would range from non-existence of the assets ostensibly purchased with the debt, overpricing of assets that do exist, payment of bribes and kickbacks, and lack of public participation and parliamentary approval, etc.) Arising from the stopped payments, and from the public establishment of the illegitimacy of the debt, the value of the bonds on the open market plunged. The Government of Ecuador then tendered to repurchase the bonds at 30 cents on the dollar. On the basis of the auction results, the government then offered to buy back the bonds at 35 cents on the dollar, expecting to retire at least 75 per cent of the bonds. Ninety-one per cent of the bonds were so retired in June 2009, that the government paid off its public debt for about a third of what it was worth and, according to President Correa, saved US$ 300M (Sh30 billion) per year in interest payments.
The Ecuadorian solution has an elegance that only simplicity gives. However, its success needs to be assessed against the backdrop of an important contextual factor: the retirement of the country’s debt happened at a time when markets were in the throes of the global financial crisis. Investors, therefore, were under pressure to liquidate their assets. Further, how successful this method would be as regards Chinese debt is anyone’s guess: simple and easy are vastly different things.
That said, the process presents a blueprint for any government that is ready and willing to ease the burden of over-indebtedness and is an option and a strategy this country should pursue – before it’s too late.
Rafael Marques de Morais: “For Press Freedom, I Have Had to Fight to Free the Angolan People from Fear”
Interview of Rafael Marques de Morais, prominent political activist, winner of numerous journalistic prizes and awards, and founder of Maka Angola, an anti-corruption watchdog focusing on social injustice in Angola.
Rafael Marques de Morais has something that defines his whole life: the Civil Courage Prize, which recognises his “steadfast resistance to evil at great personal risk”. Rafael is a journalist and political activist from Angola, fighting government corruption through his online watchdog Maka Angola and the Makaleaks whistleblower platform.
To understand the world of corruption in which Marques lives, he tells us about his last investigation: “A former provincial governor diverted the funds to build schools and a hospital in a rather depressed community, and instead built his own private luxury lodge to welcome foreign hunters to hunt lions and elephants”.
Between 1999 and 2002, Marques de Morais wrote a serie of articles about the diamond trade which gave birth to the book “Blood Diamonds: Corruption and Torture in Angola”. According to the Wikipedia, the articles “described the killing and terrorizing of villagers by private security companies and Angolan military officials in the name of protecting mining operations”. In November 2011 the journalist issued a criminal complaint accusing nine Angolan generals of crimes against humanity in connection with diamond mining. This is Marques style. His fight is against fear: “For there to be press freedom, people must speak freely, without fear. So, I have had to fight to help free the Angolan people from the shackles of fear as well. Otherwise, journalism is like building a sand castle near a high tide”.
“On my first trial, in 2000, the two female assistant judges came to whisper to my ear that they were praying for me”
This means becoming an activist: “I have forged my skills under a dictatorship, and there was no way I could just do journalism. I have had to defend and fight for the very space to fulfill my duties as a professional and as a citizen”. Now, he says, we see even in the United States that “many media outlets and journalists are getting bolder, and being activists, as President Trump accuses them of being the “enemies of the people”.
Marques de Morais is proud to have never fought alone: “On my first trial, in 2000, the two female assistant judges came to whisper to my ear that they were praying for me, and wished me Godspeed strength”. He had been left with no lawyer, no witness, in a trial held in camera for calling the President Dos Santos corrupt and a dictator. “But I was not alone, I had the two assistant judges giving me strength. It is the first time I share this story”, he states.
Marques doesn’t remember how many times he’s been in prison: “I lost count. The longest I stayed in prison was for 43 or 44 days, but I have been briefly detained many times”. Once, he was arrested while going to buy tomatoes for a salad: “I saw a Swiss human rights researcher being chased by some militias. I stopped to help her, and then I ended up at the police station with my tomatoes in the car”, he says.
Another time, a friend asked him to accompany him to buy fish, early in the morning. Without them knowing it, the police had destroyed tens of fishermen’s huts and houses and forcibly removed the people and dumped them out of the city: “Needless to say, I was blamed as the agitator by the police and briefly held”, Marques asserts.
In 2013, he went to cover the trial of young protesters. He was interviewing them outside the court when “54 special police forces besieged us with machine guns and all the anti-riot gear, and an armored car. We were taken to the Rapid Intervention Police were some of us were tortured and taunted with death threats”. All the action was filmed by a camerawoman because, according Marques, “the regime’s hatred for me inspired them to film my beating”.
He has “a lot of kasfkaesque stories to write about one day, including ambushes”, but he has never surrendered. In 2009 he launched Maka Angola to publish the material he had in excess for his dissertation at Oxford University on “The Transparency of Looting” in Angola. “I wanted to share all the information I had gathered”, he says, as the great journalist he is.
Qurium has been hosting Maka Angola and Maka Leaks since 2016. Maka Angola had received many cyberattacks since he joined Virtualroad, by a colleague’s recommendation: “Every since I have had a peace of mind, for it has become a great line of defence against cyber attacks and I have not been bothered by a single attack since Virtualroad became Makaangola’s host”, he says.
Does Marques de Morais think the Internet is a good or a bad tool for journalists? “It’s only a tool, it all depends on the strength of the journalists who use it for good journalism, vis-à-vis the armies of trolls at the service of authoritarian regimes, and the mushrooming industry of online disinformation”. We’re sure which side is he on.
In 2018 the International Press Institute awarded Rafael Marques de Morais with the World Press Freedom Hero prize
This article was originally published by Qurium. Read the original article.
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