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CONSTITUTIONALISM FOR CONVENIENCE: How Kenyan Presidents Have Subverted The Supreme Law

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CONSTITUTIONALISM FOR CONVENIENCE: How Kenyan Presidents Have Subverted The Supreme Law

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.[1] 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.[2] 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,[3] 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.[4] 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.[5] Growth occurred in fits and starts,[6] but there was little redistribution to the low absorption regions and communities previously overlooked by colonialism.[7] 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.[8]

Figure 1: Under-5 Mortality Rates by background characteristics, 2014

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.[9] In any case, the annual CAG reports that would highlight such criminal misconduct would be several years behind schedule, complicating remedial action.[10]

Table 2: Ethnic shares of Kenyan cabinet positions and population (%)

Ethnic group Kenyatta (Kikuyu) Moi (Kalenjin) Kibaki (Kikuyu) Share of population
1966 1978 1979 2001 2003 2005 2011 2009
Kikuyu 28.6 28.6 30 4 16 18.1 19.5 17
Luhya 9.5 4.8 11 14 16 21.2 17.1 14
Luo 14.3 14.3 11 7 16 3.1 12.2 12
Kalenjin 4.8 4.8 11 17 7 6.1 9.8 13
Total 21 21 26 28 25 33 42

 

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.[11] While Moi retained power at the election, the seed of change had been sown;[12] sustained internal and external pressure for a comprehensive constitutional review led to the Bomas of Kenya conference launched in 2003.[13]

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.[14] 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,[15] 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.[16]

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.[17] 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.[18] 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,[19] 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,[20] especially devolution which would take “at least 15 percent of national revenue” out of Treasury’s control (Articles 203 (2), 207 (1) and 209).[21] 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[22] 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.[23]

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.[24] Secondly, Kenyatta is among the Kiambu-ians who came to terms with ‘the snake crossing the River Chania’ into Nyeri,[25] but cannot countenance the snake leaving the ‘House of Mumbi’, an underlying issue in the post-2007 election agenda.[26] 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.[27]

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’.[28] Since then, the law has been changed to complicate the nullification of a presidential election.

Conclusions

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.

 

References

 

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

 

 

[1] 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.

[2] 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.

[3] 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

[4] 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.

[5] 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.

[6] 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.

[7] See Bigsten (1977).

[8] Kenya National Bureau of Statistics et al. (2014).

[9] 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.

[10] Into the early 1990s, these annual reports were 7 years behind schedule, meaning the responsible officer had likely transferred, retired, or indeed, died.

[11] See Murunga and Nasongo (2013).

[12] 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.

[13] See URAIA/IRI (2012: 15-18).

[14] This choice overlooked Raila Odinga and former minister Katana Ngala, and former vice presidents George Saitoti, Kalonzo Musyoka and Musalia Mudavadi.

[15] 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.

[16] 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).

[17] 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

[18] An interesting analysis is available in Kenyan National Commission on Human Rights (2008).

[19] The manner of their creation was so ad hoc, leading to deeply contested boundaries and headquarters.

[20] 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.

[21] 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.

[22] See Ministry of Local Government (2012).

[23] Transition Authority (2016) is an elaborate end term report. Sun, August 20th 2017.At

[24] See Njeri Rugene and Patrick Langat, President Kenyatta defends tenure, seeks second term. Daily Nation, Tuesday March 21, 2017.

[25] 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.

[26] See for example, Paragraph 545 in Kenya National Commission on Human Rights (2008).

[27] 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

[28] 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

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Othieno Nyanjom is a lecturer, researcher and an international development consultant based in Nairobi, Kenya.

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Uganda: Why Only Public Oversight Can Stem Corruption and Incompetence in the Public Service

It is more productive for Ugandans to focus on the underlying incompetence in public administration and to devise means of increasing public oversight of the Treasury.

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Uganda: Why Only Public Oversight Can Stem Corruption and Incompetence in the Public Service

It is that time of the year when the Auditor General’s annual report, released at the end of December, is drip-fed to Ugandans, query by query. The majority of the population will only ever know headlines such as “Uganda’s Public Debt Worrying”. Along with the news that Uganda’s public debt has risen by 22 per cent, the latest report carried the first official confirmation that the country’s sovereignty has been put at risk by the terms and conditions of some loans. These two alarming pieces of information received minimal response from the public.

What did not make the news was that significant amounts of the petroleum fund set aside for infrastructure development is being used instead to fund the recurrent budget (wages, consumables, transport etc.) amounting to UGX.125.3 billion ($34,137,671).

Revenues receivable from oil developers amounting to UGX 12,877,415,932 ($3,508,073), have not been collected. A number of other entities have failed to collect monies due to them and it is possible the receivables have been diverted.

Outstanding Receivables

Outstanding Receivables

There is a real risk of loan default given that borrowing and on-lending to parastatals has increased by 975 per cent, from UGX 431 billion ($117,409,571) in 2015/16 to UGX 4,634 billion ($1,262,612,871) in 2017/18 even as parastatals continue to fail to repay earlier loans. Parastatals have traditionally been conduits for public funds in to private hands.

The debt to revenue ratio is now 54%, the highest in the region and projected to rise to 65% in 2020 when some loans expire. Historically, nothing above 40 per cent debt to revenue ratio has been sustainable. Interest payments as a percentage of revenue collection, at 17 per cent, are also above the accepted threshold of 15 per cent. The AG first flagged unsustainable interest payments in 2016 when they were still at 16 per cent of revenues.

Other areas of deterioration in financial management reported are: a rise in contingent liabilities (including potential court awards) to UGX 9.4 trillion ($2,560,731) from UGX 7.5 trillion ($2,043,187) a year ago; unpaid court awards and compensation against the government have risen to UGX 655 billion, from UGX 648 billion ($176,509,616) in 2017. Interest on a section of judgment debts is UGX 124 billion ($33,790,210). Yet awards made in favour of the government amounting to UGX 20.6 billion ($5,611,883) have not been collected.

The debt to revenue ratio is now 54%, the highest in the region and projected to rise to 65% in 2020 when some loans expire. Historically, nothing above 40 per cent debt to revenue ratio has been sustainable.

The country has continued to fall short of the amounts it is required to contribute to donor-aided projects. In 2017, the shortfall was UGX 43 billion ($11,714,056) and rose to UGX 1.6 trillion ($435,891,546) in 2018.

The Youth Livelihood Programme attracted more attention than the debt situation, with its salacious details involving revolving loans being made to youth groups, 67 per cent of which do not exist. A small minority will find out from Twitter that 79,000 army veterans haven’t been paid their pension and gratuity arrears worth UGX 500 billion ($136,211,575) or that UGX 65.6 billion ($17,843,484) was released by the Treasury for pensions but was returned after the recipients could not be verified or were being deliberately frustrated by ministries, departments, agencies and local governments. (The latter is more likely. This writer was involved in arm-wrestling the Education Service Commission and the Ministry of Education for an elderly friend’s gratuity. A Ministry of Education official demanded an unspecified “share”; it was denied to him, and so the gratuity was not paid.)

The full report will come into its own with daily television coverage later in the year when the Parliament Accounts Committee (PAC) gets round to debating it. There will be further scrutiny if and when COSASE, Parliament’s committee on commissions, statutory authorities and state enterprises, debates its management. COSASE might spend some time trying to understand why out of the 11 public enterprises in which the government has invested UGX 70 billion ($19,067,642) only Kalangala Infrastucture Services is operational. KIS first came up for mention by the AG in 2016 when it was discovered that it had been paid UGX 16 billion ($4,358,994) to run two ferries between Ssesse Islands and the mainland while the nine other ferries countrywide were operated on a combined total of UGX 10 billion ($2,724,196). The AG pointed out that a new ferry can be acquired for UGX 14 billion ($3,813,865). KIS has never declared profits since the project began in 2012.

All except two of the government’s non-operational commercial enterprises are in the agricultural sector and were designed to transform smallholdings into commercially viable farms (See the State of the Nation Address 2018), fruit and sugar factories and tea factories and growers.

Non-operational Projects

Non-operational Projects. Source: Auditor General’s Report, December 2018

This should come as no surprise given that the AG had earlier warned against these investments made without strategic plans or feasibility studies;

Lack of guidelines for strategic investments

“The government, through the Uganda Development Corporation, is undertaking investments countrywide in the areas of fruit processing and helping others to set up industries in Soroti, Luwero, Kabale and Kisoro districts. These investments cumulatively amounted to UGX 26.6 billion ($7,246,598). However, I noted that there was no policy to guide the establishment of these investments.” The Auditor General’s report of 2016 also shows that some of the investments have been undertaken without feasibility studies on marketability and commercial viability.” (Auditor General, 2018)

The competence of parliament and the general public to oversee public expenditure is also in issue. Kira Motor Corporation (KMC), recently in the news for test-driving a car supposedly made in Uganda, was audited and is listed as non-operational in 2018.

It was only noticed when in February 2019 a parliamentary committee visited KMC and found that the plant does not exist. Where foundations and scaffolding worth UGX 15 billion ($4,087,095) had been expected, there was only bush. Like other presidential initiatives announced to fanfare and outside the NDP, KMC is being revealed as a scheme for gaining access to Treasury funds that have been embezzled.

Nugatory expenditure is a useful indicator of competence in the public service. The AG defines it as avoidable and therefore wasteful “expenditure that does not achieve any result”. In 2017 UGX 2.74 billion ($746,508) was wasted on “delayed settlements of obligations arising from contracts for construction services, court awards.” In 2018, the Ministries of Water and Education lost UGX 1.6 billion ($435,900) on “interest charges including on interest on delayed payments, litigation costs for wrongful termination of contracts and refund of embezzled funds”.

Masked corruption

However, the details are no longer important and not many more can be taken in by an exhausted polity. It is more productive for Ugandans to focus on the underlying incompetence in public administration that gives rise to audit queries such as these and to devise means of increasing public oversight of the Treasury. Some audit queries arise out of incapacity but most mask corruption.

It was only noticed when in February 2019 a parliamentary committee visited KMC and found that the plant does not exist. Where foundations and scaffolding worth UGX 15 billion ($4,087,095) had been expected, there was only bush. Like other presidential initiatives announced to fanfare and outside the NDP, KMC is being revealed as a scheme for gaining access to Treasury funds that have been embezzled.

Take wetland management. It has been government policy for at least a decade to halt encroachment on wetlands. The reasons are both to prevent environmental degradation and to maintain access for communities that derive livelihoods from them. The Wetland Management Department has not updated the inventory of wetlands since 2000; they are neither demarcated nor gazetted. This omission is convenient for those who acquired illegal title in the wetlands in anticipation of the planned standard gauge railway and the compensation that would have to be paid for them being vacated. In 2017 the National Environment Management Authority announced that the titles were to be cancelled. In 2018, the AG found that the cancellation exercise was not funded and therefore did not take place.

The target of restoring 12 per cent of destroyed wetlands by 2020 is unlikely to be met. Degradation of the wetlands outpaces restoration, with only 0.3 per cent of the targeted restorations having been implemented.

Furthermore, it has been found that reclaiming wetlands as part of irrigation schemes has led to enclosure of the irrigated land and exclusion of the local populations dependent on them for their survival. Land management generally is in similar straits with two million hectares belonging to the police, prisons and Ministry of Agriculture encroached upon. At the time of writing a massive tract of wetland is being filled with earth on the Bombo Road – a highly visible highway leading north out of Kampala. The public is mystified.

Thirty-four per cent of ministries, departments and agencies (MDAs) and local governments are understaffed. The level in 2016 was more or less the same – 119 local governments were understaffed by over 40 per cent. “This affects service delivery as a majority of these are critical jobs like doctors, clinical officers, Professors, Commissioners.” (Auditor General). The most affected are public universities and local governments. Following[1] is a sector by sector list of audit findings for MDAs highlighting the understaffing and other difficulties they face.

Then there is the usual corruption, such as the case of six officials in Apac District receiving over UGX 2 billion ($544,883) without supporting documents; financial controls are still being overridden because the twenty-year-old IFMIS has still not been rolled out country-wide. Where it does operate, controls have been by-passed to allow UGX 369 billion ($100,531,084) in expenditure not related to the relevant budget line (up from 168 billion in 2016), unaccounted for expenditure of 21.7 billion ($5,912,119) and nugatory expenditure of 66.9 billion ($18,226,765). Undisclosed arrears, which may or may not be genuine, amount to UGX 377 billion ($102,707,560).

Overall responsibility must be ascribed to the top leadership of the public service, the planning departments of the Ministry of Finance, line ministries and local governments. Unfortunately, that is where the largest gaps exist between expected services and outcomes.

In 2016, a large number of MDAs failed to submit strategic plans “as a result most sector plans and targets are not aligned with the National Development Plan (NDP) and assessing service delivery and level of implementation of the NDP is difficult without service delivery standards and regular interviews.”

However, the details are no longer important and not many more can be taken in by an exhausted polity. It is more productive for Ugandans to focus on the underlying incompetence in public administration that gives rise to audit queries such as these and to devise means of increasing public oversight of the Treasury. Some audit queries arise out of incapacity but most mask corruption.

Low debt absorption is understandable now that it is clear that money is borrowed without plans. In 2016, UGX 18 trillion ($4,903,604,818) was committed but was not disbursed. The Treasury paid UGX 20 billion ($5,448,388) in wasted commitment fees for those loans. In 2018, the trend continued; municipal councils under the Uganda Support for Municipal Infrastructure Development failed to utilise UGX 95,006,243,857 ($25,881,547) while the project support unit did not utilize UGX 6,722,829,229 ($1,831,386). This occurred against the background of “various incomplete and abandoned works due to non-payment of contractors. Work on Mbarara-Nkenda and Tororo-Lira transmission lines was delayed for almost 8 years resulting into cancellation of the loan by the funder with an undisbursed loan amount of USD 6.5m”.

The same loan was audited in 2016 when the unabsorbed amount was UGX 94.783 billion. Officials at that time attributed the failure to a lack of specialised staff (understaffing), which in turn limited their capacity to procure specialised equipment, such as for land surveys.

A minor but interesting detail is that 115 properties under the management of the Departed Asian Custodian Board (DAPCB) have been repossessed by their former owners who were compensated for these properties in 1999. These properties may be lost to the State once the winding up of the DAPCB is complete.

Class action suits

Returning to the issue of an appropriate response to the Auditor General’s findings, the aggrieved have a number of options. The most promising would be to file class action suits for negligence and any losses consequent upon that, be they avoidable deaths in hospital or those caused by bad roads.

Where funds have been available and commitments made, the failure to transmit electricity for eight years and resulting loss of industrial capacity and simple comfort of the affected population is similarly actionable. Nugatory expenditure is actionable in its own right but various communities can demonstrate in lawsuits how it has adversely affected them and obtain compensation.

It is the right of affected populations to petition the Ombudsman, individual MPs, as well as COSASE. If they appear toothless, it may be because the public they represent has abdicated responsibility for the economy.

[1] ANNEXURE II: SUMMARY ENTITY FINDINGS OF MDAS Table 2.1 Adverse Opinions

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The Original Sin: Land, Politics and the History of Ethnic Tensions in the Rift Valley

As the theatre of the politics of succession leading to 2022 plays out in the expansive Rift Valley region, the spectre of the ever-simmering land question looms large. By DAUTI KAHURA

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The Original Sin: Land, Politics, and the History of Ethnic Tensions in the Rift Valley

“Chitap koret,” this is my ancestral land, a Kalenjin from the Sabaot community, one of the nine ethnic dialects that make up the Kalenjin nation, said to me at the foothills of Mt Elgon, in Trans Nzoia County. Sabaots are a pastoralist community and just like the Maasai people, believe in keeping cattle – even the poorest Sabaot must have a cow or two. “Kalenjin believe North Rift especially belongs to them and nothing will change that,” said Kip, my Sabaot acquaintance.

“These people (the Kikuyus) will always be tenants on our land,” said Kip. “They are here temporarily. It doesn’t matter whether the land they occupy has been bought legally or not, was dished out, bought from one of us or any other person, whether it has a title or not. One day they must vacate this land.” Kip said mutual suspicion between the Kikuyus and Kalenjin in the Rift Valley will always abound. “Mark my words,” said Kip emphatically, “just like the Kikuyu don’t forget, we Kalenjin don’t forgive – we will revisit the issue of land ownership in the Rift Valley. We will soon show them who the true owners of the Rift Valley are.” It was an ominous threat.

Every time there is a shift in the political relations at the national level, between the Kikuyu and Kalenjin elites, every time these elites engage in a public spat, the Kalenjin people of the greater Rift Valley allude to foreigners among them who should be ejected. Every time the issue of foreigners arises in the Rift Valley region, the first targets are specifically the Kikuyu people, some of whom have lived in the Rift Valley region for the last 70 years.

Kip said mutual suspicion between the Kikuyus and Kalenjin in the Rift Valley will always abound. “Mark my words,” said Kip emphatically, “just like the Kikuyu don’t forget, we Kalenjin don’t forgive – we will revisit the issue of land ownership in the Rift Valley. We will soon show them who the true owners of the Rift Valley are.” It was an ominous threat.

The genesis of the land quagmire between the Kalenjin and Kikuyus in the Rift Valley region, traces back to the 1940s, which the British colonial government exacerbated by settling the Kikuyus in the area. An annual colonial write-up of 1957 reported, “In common with other Kalenjin people, however, there is everywhere else, dislike of the Kikuyu settlement being established in what is regarded as their district’s sphere of influence in Uasin Gishu”.

Yet, the colonial government had, by the turn of the 19th century, sowed the seeds of discord, when it pushed many of the ethnic communities into reserve lands and squatter camps, to create room for cash crop growing by the European settler farmers in the White Highlands. Central Kenya, Rift Valley and Coast Province were the major culprits in this settler land colonial project.

A pastoralist community, the Kalenjin, however struck an exceptional deal with the settler farmers: provide manual labour in the farms for exchange of grazing rights. But come the mid-1940s, this arrangement was destabilized, because the settler farmers needed more land for their cash crops. Why? World War (II) had ended in 1945 and Europe had decimated most of its agricultural lands for cash crop production. In addition, the Kalenjin people were expanding in population, even as their livestock grew in numbers. They too were demanding more land to graze their animals. This naturally created further tensions.

The first thing the colonial government did in reaction to this agitation by the Kalenjin was, to contain them in squatter camps and deny them grazing land. A warrior-like people, the Kalenjin refused to be squatters in the settler farms. So, in search of pastureland, they trekked off. This migration led them to central Rift Valley, Taita-Taveta and even in as far as Tanzania.

Every time there is a shift in the political relations at the national level, between the Kikuyu and Kalenjin elites, every time these elites engage in a public spat, the Kalenjin people of the greater Rift Valley allude to foreigners among them who should be ejected

To replace the departing Kalenjins, the colonial government brought in the Kikuyus from Central Kenya to work in the settler farms arguing that the agrarian, sedentary Kikuyus were hardworking and attuned to plant cultivation, unlike the “lazy” pastoralist Kalenjin.

By 1950s therefore, Kikuyu population in the Rift Valley had tremendously grown and this greatly upset the indigenous Kalenjin. This is around the time the Kalenjins started agitating for their land and viewing Kikuyus as strangers and intruders. Hence, the temporary halting of more “importation” of Kikuyus from Central Kenya to Rift Valley, according to colonial reports that quoted Mr P.H Brown, the Uasin Gishu District Commissioner (DC), who recommended the stop.

But, no sooner had Brown stopped further Kikuyu migration into the Rift, than his successor revoked the decree. Mr R.S Symes-Thompson pointed out that Kikuyus were central to agricultural success in the settler farms. It is an arrangement that Jomo Kenyatta inherited and perfected when he became first, the Prime Minister in 1963 and, later President in 1964.

When it became apparent that the British would have to relinquish its power in Kenya, they bought between one and three million acres of land to resettle the landless. They also put a caveat to land ownership: any Kenyan would own land anywhere in Kenya, regardless of their ancestral origins and ethnicity. Secondly, there was no free land. If anybody wanted to buy land, it would, henceforth be, on a willing-seller, willing-buyer. It is an arrangement that greatly favoured the Kikuyus and that Kenyatta took to heart and implemented it even better than the departing British. To date, these two decrees appear in the new promulgated 2010 constitution.

To this end, the British colonial government gave Kenyatta’s government 100 million sterling pounds under the Settlement Fund Trustees (SFT) to buy land for the squatters – many of who were Kikuyus. In 1969, fiery Nandi MP Jean Marie Seroney, convened a charged meeting to debate the land question in Rift Valley. The Nandi Hills Declaration was the aftermath of that meeting, which decreed all land in Nandi belonged to the local community, that would henceforth oppose any further acquisition and settlement of Kikuyus in the area.

Moi who was the Vice President and Minister for Home Affairs and was Seroney’s political nemesis, threw him into detention. The Kalenjins have always argued that even when they had money to buy their own land, the Kenyatta government opposed the move. They cite the example of the Makonge (sisal) Farm in Ziwa. The attempt to buy this land was thwarted by the state in 1976, leading to the arrest of Eldoret North MP, the controversial Chelagat Mutai. The farm, instead, was handed to a land buying company belonging to Kikuyus.

In Property and Political Order in Africa: Land Rights and the Structure of Politics, published in 2014 by Cambridge University Press, Catherine Boone, ably tackles the intricate interconnectedness of supra local politics and land ownership in the volatile Rift Valley region.

“The statist land tenure regime (LTG) established in the Rift Valley farming districts by the colonial state was perpetuated and elaborated by the Kanu government after independence,” writes Boone. She says, the government bought the land from the departing European settlers, and allocated the land through settlement schemes to smallholder farmers between 1960–1975. “The rest of the land so acquired was transferred in the form of large estates to high ranking members of the Kenyatta regime entrenching their status as an economic, as well as a political elite.”

Burnt Forest area – which become infamous in December 2007, after some Kikuyu families were trapped in a Pentecostal church and that was set on fire, burning mostly women and their children below 10 years – “become a zone of mostly Kikuyu settlement schemes and was purchased by the state in 1965.” During the highly contested presidential 2007 election, the Opposition coalition led by Raila Odinga, running on an ODM ticket cried foul and accused the Mwai Kibaki led Party of National Union (PNU) of stealing the elections, provoking ethnic cleansing in Rift Valley, especially in areas that were heavily populated by Kikuyu. Burnt Forest became one of the notorious flashpoints of that ethnic warfare.

“Many settlers on the Uasin Gishu and Trans Nzoia Districts schemes were Kikuyu who had previously been employed on European farms in these areas” points out Boone. “Under Kenyatta, the kanu government used its land powers to open the Rift to settlement by peoples and persons who were not recognized by the state as indigenous to these jurisdictions, and who did not claim ancestral or customary rights in these areas.” Boone adds, “Under colonial rule, these people were categorized into state-recognized ethnic groups (the Nandi, Kipsigis, Maasai, Tugen, Elgeyo, Samburu, Marakwet, Sabaot, Pokot Terik, Turkana and so on).”

Catherine Boone who is a professor of Government, International Development and Political Science at the London School of Economics (LSE), makes the point that even after these communities were pushed to the margins of their lands (presumably to create room for the sedentary communities such as the Kikuyu to engage in agricultural farming), the loss (of land) did not decrease, or become less onerous, overtime.

Conflicts over access to land in Kenya’s Rift Valley have marked all stages of Kenya’s national history and shaped each critical juncture, says Boone. “The colonial state expropriated much of what is now Rift Valley Province from the Maasai and other people indigenous to the Rift. The British proclaimed direct jurisdiction over what it designated as Crown Land in the Rift Valley in 1904.”

Boone argues in her book that “the farming districts of Kenya’s Rift Valley Province are some of the most productive and highly commercialized rural zones of sub-Saharan Africa. These districts – Nakuru, Trans Nzoia, Uasin Gishu and Nandi – are territories with high in-migration and high ethnic homogeneity and with settlement patterns and land allocation authored directly by the central state. It is also one of Africa’s worst conflict-ridden rural areas, with a long and bloody history of land-related struggles.”

Once Daniel arap Moi was in control of the state organs, after succeeding Mzee Jomo Kenyatta in 1978, “he used the central state’s land prerogative in Rift Valley to reward its own clients, who were encouraged by the regime to coalesce around ethnic identity, Kalenjin-ness that was centred on indigeneity (autochthony) in the Rift Valley,” notes Boone. “From 1986 on, government forestlands became caisse noire of patronage resources that were used to cement elite alliances and build political support for Moi among Kalenjin constituencies he needed as a mass power base.”

Hence, “evictions of Kenyatta-era forest squatters and the declassification of new forest land opened a land frontier that Moi used to settle thousands of Kalenjin families. Most Kikuyus were expelled from the Mau Forest in the 1980s, so that Kalenjins could move in. Many were allowed to settle south of Njoro.”

In the South Rift, largely composed of the Kipsigis, Kalenjin’s biggest dialect, a simmering anger of volcanic proportions is going on, brought about by the eviction of the Kipsigis people from the Mau Forest beginning 2018. Many were settled there, originally by President Moi in the early 1980s, soon after becoming the second president of Kenya, and for some as late as 15 years ago during the tenure of President Mwai Kibaki. The Kipsigis are now accusing the Deputy President William Ruto of ominous silence, as they are forcefully being kicked out and their property burned.

Daniel Burgei told me the Kipsigis helped marshal Kalenjin vote for Jubilee Party through Ruto, “now he is mum about the evictions. This is very troubling as we watch this whole spectacle in bewilderment. The Kipsigis have been practicing shamba system in the Mau Forest, where the soils are rich, do not need fertilizer and are good for cabbage, maize potatoes and tomato production. They also have been keeping livestock; cows, donkeys, goats and sheep.” Yet, in the process, they have hived huge chunks of the forest by cutting trees, hence destroying the natural environment, all in the name of giving way to farming, said Burgei.

Ruto, like Moi in the 1970s when he was Jomo Kenyatta’s VP is accused by a section of the Kalenjin people of keeping quiet in the face of the long-standing issue of land ownership in the Rift Valley region.

It is significant to note that “the name Kalenjin came into use as a group of designation in Kenya among World War (II) servicemen and ex-servicemen and students in the elite East Africa high schools in Nairobi and Kampala in the 1940s. “This ethnic consciousness of being Kalenjin was rooted in the native-stranger distinction. In very part, it was produced by the land tenure regime. The form of ethnic consciousness and mobilization that developed in Kenya was not the consciousness of all the people.

“When (former President Daniel arap) Moi led the efforts to amalgamate the political organization of the state-recognized tribes of the western Rift Valley in early 1960, he called the umbrella group the Kalenjin Political Association (KPA).” Boone adds that when the colonial government lifted the ban on indigenous politics, Kenya African Democratic Union (KADU) took over the interests of KPA.

“By the time of the February 1962 Lancaster House constitutional negotiations, “the rifts between Kanu and Kadu were…deep and deeply felt…During the talks, Moi would repeat that the people of Kalenjin were prepared to fight and die for their land.” Boone reminds us all, that “Kalenjin first appeared as an official ethnicity on the Kenyan census in 1979, Moi’s first year as a president. Moi promoted Kalenjin identity in the 1980s and 1990s as an ethnic designation to transcend the narrower, older colonial-era identities of Nandi, Kipsigis, Elgeyo, Tugen, and so on.” These ethnic consciousness of being a Kalenjin, says Boone was driven by the sensitive land politics of the Rift.

This consciousness has had the effect of creating a peculiar “tribalism,” in the Rift Valley land politics “namely that in it was almost wholly a consciousness of being, either a Kikuyu or not-Kikuyu.”

If the 1960s and 1970s were decades of consolidation of the Kenyatta regime which sidelined those claiming ancestral land rights in the Rift Valley and “inserted” African settlers into Rift Valley farming districts, the 1980s and 1990s were a reversal of these settlements. Forced to accept plural politics in 1991, by the West, his erstwhile allies in the Cold War era, Moi mobilized the Rift Valley constituencies, “along an axis of competition that pitted indigenes of the Rift Valley against settlers who had been implanted by the Kenyatta regime.”

Boone observes that the Rift Valley politicians tapped into existing land-related tensions in which the central state was directly implicated as the author and enforcer of a contested distribution of land rights. “This conflict found direct expression in electoral politics at the national level. Political rhetoric that pervaded Nandi, Nakuru, Uasin Gishu and Trans Nzoia districts dwelled on how land was lost to the Europeans was never recovered and how under Kenyatta ‘black colonialists’had been allowed to buy up land that rightfully should have belonged to indigenous communities.”

Prof Boone gives the example of Likia location, in Molo division, Nakuru District, “where most land belonged to Kikuyus in the early 1990s, local Kalenjin politicians reminded the people of the past ownership of the land and encouraged them to reclaim it.”

On January 10, 2019, a former Molo MP, Joseph Kiuna held a press conference in Likia area of Molo and reminded the Kalenjin that they had not forgotten what they had done to the Kikuyus in 2007/2008post-election violence (PEV). “All this time the Kikuyus have been pretending that they had forgotten and moved on,” said Kip. “We Kalenjin are very much aware they have not forgotten anything.” Even though thousands of Kikuyus were internally displaced – up to 600,000 people were dislocated from their homesteads in the greater Rift Valley during PEV, by the marauding Kalenjin warriors – many a Kikuyu nevertheless returned to Rift Valley. The allure of fertile soils, the armistice arrived at between Ruto and Uhuru Kenyatta and a desire to go back to their lands, which they had occupied for many years, was greater than the ominous existential threat of a repeat “ethnic” attack on their farms.

And the Kikuyus have had big group farms ranging between 1000 and 3000 acres in Trans Nzoia and Uasin Gishu Counties. 35 kilometers from Kitale town are the better known Gitwamba and Munyaka Farms located at the foothills of Mt Elgon, bordering Mt Elgon Forest. Most of the Kikuyus who settled here were from Nyeri and its environs. Endowed with black alluvial soils, the farms are very fertile. Since settling there, decades ago, the Kikuyus have grown beans, cabbages, carrots, potatoes, tomatoes amongst a host of other horticultural crops. Markets days in Iten, Kitale, Matunda, Moi’s Bridge and Soy are filled with fresh produce from these farms. As fate would have it, in Trans Nzoia, it is Gitwamba – which in Kikuyu language means a flat, rich plateau with fertile soils and Munyaka which means to be lucky – that were the first flashpoints of ethnic upheavals in 1991. They have remained so to date.

The 1991 ethnic clashes were instigated, organized and executed by Moi’s Kanu regime which suddenly felt under siege from the multi-party advocates. Hoping to tap into their age-old grievances of land ownership and aware he had kept mum as land in the Rift Valley was being parceled to Kikuyus and other communities, by the Kenyatta government in the 1970s, Moi allegedly encouraged the Kalenjins to “reclaim” their land from foreigners, in exchange for their support to further cement and consolidate his grip on state power. By foreigners, he meant the Kikuyu people.

The other Kikuyu farms in TransNzoia are: Wamuini Farm A, the 1,000 agricultural land near St Joseph High School on the Kitale-Ndalu Road. Wamuini Farm B, formerly Mabonde Farm that was called mabonde – Kiswahili for denes, because of its ridges and valleys. There is also Meru Farm bought in the early 1970s. It is near Kitale showground, adjacent to the posh Milimani Estate. The other big farms owned by Kikuyus are Kiirita, Makui and Weteithie Farms. Weteithie, which in Kikuyu means self-help. All these farms were bought through land-buying companies with loans from Agricultural Finance Corporation (AFC). They include Mwihoko, which means hope in Kikuyu, Ngwataniro-Mutukanio, Nakuru District Ex-Freedom Fighters Organization (NDEFFO) and Nyakinyua, which was President Kenyatta’s favourite cultural dancing troupe made up of women.

The 1991 ethnic clashes were instigated, organized and executed by Moi’s Kanu regime which suddenly felt under siege from the multi-party advocates. Hoping to tap into their age-old grievances of land ownership and aware he had kept mum as land in the Rift Valley was being parceled to Kikuyus and other communities, by the Kenyatta government in the 1970s, Moi allegedly encouraged the Kalenjins to “reclaim” their land from foreigners, in exchange for their support to further cement and consolidate his grip on state power. By foreigners, he meant the Kikuyu people.

In Trans Nzoia, other Kikuyus acquired land through SFTs, formerly white farms, given ostensibly to “landless people” by Jomo Kenyatta government. In Uasin Gishu County which borders Trans Nzoia, there is a replica of Munyaka Farm, today referred to as Kimumu-Munyaka Farm, located on the Eldoret-Iten Road. The more famous Ya-Mumbi Farm is on the Eldoret-Kapsabet-Kisumu Road. Rukuini and Kondoo Farms are near Burnt Forest. Kimuri and Kiambaa Farms are not far from Eldoret town. Rukuini and Kondoo, just like Gitwamba and Munyaka in Kitale, have remained focal points of “ethnic wars” since 1991.

After the violent uproar that took place in Eldoret North following the controversial 2007 general election, many Kikuyus living in Uasin Gishu County, abandoned their farms in Turbo 30 km from Eldoret town and went to live in town, at Langas estate, the sprawling Kangemi-type ghetto located on the Eldoret-Kisumu highway, just after the Eldoret Polytechnic. Kangemi is a slum on Waiyaki Way, seven kilometres from Nairobi city centre. Stephen Kiplagat, who was born and bred in and whose family still lives in Langas told me that it is today estimated to be 85 per cent populated by Kikuyus. “My family is one of the very few Nandi families that still reside at Langas, the rest are Kikuyus.”

Five Nandi families originally owned Langas. Many of them started parcelling the land and selling it mostly to Kikuyus from the 1980s. Two factors drove this sale: the Kikuyu desire for a plot of land and the fact that they had ready cash to buy the land. With the money, the departing Kalenjin bought land in Kitale, Soy, Turbo and Ziwa so that they could engage in agricultural and livestock farming.

I went to school in Kitale in the 1980s, then it was a one-street settler town and that is where I first heard the phrase “revisiting the issue.” A prominent Kalenjin businessman, (he later become an influential politician in President Moi’s inner circle and today he is retired), said in my presence: “We’ve only leased the land to them (Kikuyus), they should be knowing that…we’ll soon revisit that issue.” When the push for multiparty elections in 1991, appeared inevitable, Moi’s monolithic Kanu one-party dictatorship relented to political pluralism, but not before igniting “ethnic” skirmishes in the Rift Valley.

Kip told me, “resources are becoming scarcer by the day in the Rift Valley region and our people would like the land issue in the Rift Valley region prioritized as a matter of national political discourse.”

The first wave of Kikuyu settlers in Trans Nzoia district first appeared as colonial civil service workers in the mid-1940s after the World War II. The next group showed up in the mid-1950s. These were Kikuyus running away from the Mau Mau insurgency and capture by the British colonial police. Many of them converted to Islam and assumed new identities. Indeed the first Kikuyus to settle in Kitale town were Hamisi Saidi and Hussein Ramadhan. They had taken up Islamic names and soon became petty traders in town.

Resources are becoming scarcer by the day in the Rift Valley region and our people would like the land issue in the Rift Valley region prioritized as a matter of national political discourse

Kigotho Njuguna, Mbugua Gachani, Danson Kangonga Mbugwa, John Muchuri, Wanguhu Githiomi (who hailed from Kijabe) and Peter Kinyanjui – one time Democratic Party of Kenya (DP) point man in Trans Nzoia) formed part of the earliest pioneers of Kikuyu settlers in Kitale. DP was an opposition party once led by Mwai Kibaki, the third President of Kenya. The others were: Lawrence Waweru, Kirima Githaiga, David Kiberu, Waigi Mwangi (originally from Ngecha in Limuru) and Apollos Mwangi. All these men are dead and many of them hailed from Nyeri district.

As the theatre of the politics of succession leading to 2022, plays out in the expansive Rift Valley region, the spectre of the ever-simmering land question looms large. William Ruto, like his predecessor Moi, and not Seroney, finds himself in a dicey position of canvassing the entire Kalenjin vote, amid unsettled land ownership saga that remains an unresolved issue.

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The History Kenya Forgot: Untold World War II Stories

The sinking of SS Khedive Ismail suffers from the same historicity issues that World War II, in general, suffers from in former colonies. It was a war (mainly) away from home, driven by issues that most of the one million Africans who enlisted had little or nothing to do with, at least at a socio-cultural level. By OWAAHH

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The History Kenya Forgot: Untold World War II Stories

Before 2:30 pm on 12th February 1944, everything on SS Khedive Ismail was as normal as things aboard a troopship could be. In the music room on the upper decks, someone was playing the Warsaw Concerto on the grand piano. In the lower decks and the cargo hold, which had been converted into barracks mainly for the black soldiers, it was hot and humid. Both spaces would become death traps within a matter of seconds, and the grand piano, a weapon.

A lookout, probably bored out of his mind, noticed a periscope peeking from the water. He raised the alarm, alerting the gunners to the position of the Japanese submarine deftly charging towards SS Khedive Ismail. The troopship was on a routine mission to deliver troops, mainly East Africans, from Mombasa to Colombo in Ceylon (now Sri Lanka) before their onward journey to Burma (now Myanmar). It was part of a convoy codenamed KR8, which had begun its journey from Kilindini port in Mombasa a week earlier.

The alarm was a little too late. Just as the gunners opened fire, the submarine fired four torpedoes. Two missed, but the other two found their target. The first struck the engine room. The second hit the boiler room. The troopship listed, and in less than two minutes, disappeared under the water. The other troopships and the destroyers in the convoy, codenamed KR8, barely had time to react or help. They fled to safety before two destroyers doubled back to face the Japanese submarine and to rescue survivors.

As the troopship sank, survivors clutched onto whatever they could get their hands on. The Japanese submarine, I-27, hid beneath them as the destroyers in the convoy doubled back and tried to hit it with depth charges, killing even more of the survivors. The submarine was eventually forced to surface, and one of the destroyers, Palladin, rammed into it. The hit breached the destroyer’s hull, forcing it to retreat and leave the work to the other destroyer in the convoy, the HMS Petard. The Petard’s torpedoes hit the submarine at 5:30pm, three hours after SS Khedive Ismail had sunk. The sub broke into two and sank with everyone on board.

Aboard the SS Khedive Ismail before the sinking had been 1, 511 people, 996 of whom were members of the 301st Field Regiment, East African Artillery. Only 215 people would make it out alive. The survivors were rescued once the submarine had been sank and moved on to Ceylon, where they got survival leave for two weeks before rejoining the war effort.

Of the 1, 296 people who died that day, only four of them were given a proper sea burial. The rest were left in the shark-infested waters, far from home and virtually forgotten.

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The sinking of SS Khedive Ismail is the subject of Brian J. Crabb’s 1997 book Passage to Destiny. In an email conversation, Crabb says his interest stems from his father, Percival Crabb, who “…was a fortunate survivor of the sinking, escaping through an open porthole with his leg still in plaster!”

In the book, Crabb includes an extensive appendix with all the names and ranks/roles of everyone, black and white, on board the doomed ship. The list of East Africans, mainly from Kenya, Uganda, and Tanzania, takes up several pages. The troops are ranked by names, rank, and number. That’s all we know about Warrant Officers Alfani Ndagile, Kathuka Ndajo, Mua Kilonzi, Muema Ileli, Selemani Mzee, Shabani Mbaraku and Siligwi Mwita. The seven of them were the highest ranking enlisted men among the hundreds of East African troops who died that day. Most of the East African casualties were gunners.

The sinking of SS Khedive Ismail suffers from the same historicity issues that World War II in general suffers from in former colonies. It was a war (mainly) away from home, driven by issues that most of the one million Africans who enlisted had little or nothing to do with, at least at a socio-cultural level.

When World War II began, there were only 2,900 men in the Kings African Rifles (KAR). The real threat of an Italian invasion from Ethiopia, and the entry of Japan into the war, drove the need for fast mobilisation.

Although the Great Depression (1929-1939) was a relatively prosperous time for Kenyan farmers, it gutted the settler economy and the colony’s budgets. Job opportunities in urban areas and farms dwindled, and crime levels in the former rose for a time. Combined with the crop failure of 1939, it meant that the best option for young men was to join the military. Any able-bodied man could enlist, although there had been restrictions as late as 1941 based on ethnicity. The Pioneer Corps, for example, were initially recruited from Western Kenya.

The sinking of SS Khedive Ismail suffers from the same historicity issues that World War II in general suffers from in former colonies. It was a war (mainly) away from home, driven by issues that most of the one million Africans who enlisted had little or nothing to do with, at least at a socio-cultural level.

In his memoirs, Fan to Flame, John G Gatu, the future Reverend and Moderator of the Presbyterian Church of East Africa, writes that he joined the armed forces because he was unemployed. Gatu joined the Signal Corps and served in Ethiopia and Somaliland. Like Gatu, Waruhiu Itote (General China) joined the military because he was unemployed and “to escape the boredom”.

For some, the economic benefits were a result, not a motivation, of being recruited. Kenya’s first four-star general, Jackson Mulinge, accidentally found himself in the military after he chose the wrong day to go to Machakos to sell a chicken. A recruitment officer grabbed the teenager and conscripted him, marking the beginning of a journey that would see him climb up the ranks over the next three decades.

The contracts the new recruits signed stated that they would be discharged “after the cessation of hostilities”. Most of them were in their early 20s, still single, and because of the education policies at the time, barely literate, if at all. By the end of the war, in 1945, there were nearly 100,000 Kenyans in the military either as members of the Kings African Rifles or the Pioneer Corps, a successor of the Carrier Corps.

Being a soldier meant a steady income and other benefits, such as being exempt from excruciating hut and poll taxes. It also gave the soldiers a common martial identity as well as exposed them to unprecedented trauma and horrors that would also go largely undocumented.

In the heat of war, despite concerns from the settler community about everything from labour supply to the economic and security risks, thousands of Kenyans were trained, armed, and deployed to fight in Northern Kenya, North Africa, and Asia. They were all enlisted men, meaning they could never rise beyond the rank of Warrant Officer. That would be one of the challenges in the lead up to and immediate aftermath of independence two decades later.

Discipline was still enforced mainly with corporal punishment. Major infractions were punished with a kiboko, while cowardice was punished with execution. There were at least three incidents of retaliation, once when a sergeant shot and killed three officers, and then when two enlisted men were executed for shooting officers and wounding others with a grenade.

In 1945, a quarter of those who survived the war were discharged. The demobilisation went on for two more years, which meant that tens of thousands of young men who had seen war and death were expected to resume their pre-war status. The Kenya that the veterans returned to had barely changed, but they had. They had not only seen the perils of war but they had also been exposed to a new lifestyle, and had had a steady income and developed new habits. Gatu, in his book, offers that the war was the beginning of unparalleled drug use among the troops. Every week, the soldiers would be issued with matches, soap, and cigarettes.

But they were also liquid and most of them were still young, single and raring to go. Studies of the post-war period mention a rising discomfort with the power held by chiefs and elders, as well as inflation in the social scene as bride price was hiked.

In 1945, a quarter of those who survived the war were discharged. The demobilisation went on for two more years, which meant that tens of thousands of young men who had seen war and death were expected to resume their pre-war status. The Kenya that the veterans returned to had barely changed, but they had.

The money they had made could not last forever. Many of them applied for trade, shop and transport licences, only to be met by a racist bureaucracy that expected them to fall back to wage labour, primarily in agriculture. Some re-enlisted into the Kings African Rifles, while others struck out in new businesses. Others, like my grandfather, used the training they had obtained during the war to eke out a living as health officers and drivers.

A number of the former soldiers were involved in the political upheaval of the late 1940s and the 1950s, but not to as significant a level as one would imagine. Dedan Kimathi, the de facto leader of the Mau Mau, was only a soldier for a month in 1940 before he was dishonourably discharged for violence and drunkenness.

Some rejoined the KAR and other disciplined units, but a large number disappeared into the normalcy of reserve life.

What’s less acknowledged in our history books are the number of enlisted men who died or suffered during the war, and the trauma the survivors came home with. Because a large number of the survivors did not have any formal education, and there was little interest in chronicling their experiences, we can only glean aspects of them from scattered memoirs and academic studies. Several memorials and cemeteries in major towns celebrate their lives and sacrifice, but very few black soldiers are named.

The sinking of SS Khedive Ismail was also problematic because of its magnitude; it was the single largest loss of East African troops, and third worst Allied mercantile shipping disaster of World War II. Publicizing it in the immediate aftermath would have affected recruitment and morale as the sinking of SS Mendi during World War I had done with South African troops.

What’s lesser acknowledged in our history books are the number of enlisted men who died or suffered during the war, and the trauma the survivors came home with. Because a large number of the survivors did not have any formal education, and there was little interest in chronicling their experiences, we can only glean aspects of their experiences from scattered memoirs and academic studies.

Despite Kenya’s central role as the home of the East African force, the Eastern Fleet, and also as a war front with Italy, the war itself is merely a footnote in the events that followed in the next decade. Thousands of enlisted men who died for a cause they didn’t necessarily believe in remain mainly nameless and unacknowledged. The unit that suffered the heaviest losses, the 301st Field Regiment, had been formed just two years before and had already served in Madagascar. The only thing that remains in their memory is a plaque at the Nairobi War Cemetery. Few of the thousands of Kenyans who died on different fronts and missions are named, and their stories have all but disappeared. Even the wounds of war, such as the bombing of Malindi and the Italian excursion 100km into Kenya, are now mere footnotes in history.

It is a significant gap in our military history, and if the lacklustre coverage of our eight-year war in Somalia is anything to go by, a part of our national ethos.

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