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
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Arror & Kimwarer Dams Saga: Fighting Corruption or Realpolitik?
The cases at the Milimani Anticorruption Court provide few concrete answers amid claims that the investigations into the Arror and Kimwarer Dams projects are politically motivated to weaken Deputy President William Ruto who is running for the presidency.
A joint investigation by IrpiMedia and The Elephant
Soon after Uhuru Kenyatta and his deputy William Ruto secured a controversial second term in November 2017, investigations begun into the procurement and financing arrangements surrounding the Arror and Kimwarer dams in the Rift Valley county of Elgeyo Marakwet.
The dams had been commissioned years earlier, and billions had been paid out but there was nothing on the ground to show for either dam. The Kimwarer project has since been cancelled, the Arror one scaled down, and eight defendants today face charges of conspiring to defraud the government of nearly Sh60 billion. However, there have been claims that the investigations and prosecutions are politically motivated and aimed at weakening Deputy President William Ruto who is running to becoming Kenya’s fifth president. Just this week, during the presidential debate, Ruto essentially said the dams were casualties of the 2018 fallout with his boss. This has been many times denied by the Director of Public Prosecutions.
The two cases dealing with the dams at the Anti-Corruption Court in Milimani, Nairobi, focus on alleged irregularities in the tendering and contracting of the dams as well as alleged illegal payments made to two Italian companies. The crux of the ODPP’s case is that officials of Kerio Valley Development Authority and the national government colluded to grant CMC di Ravenna and its joint venture partner, Itinera S.P.A, a contract for the construction of the two dams for which they had not won the tender and that differed fundamentally from the terms advertised in December 2014, which called for proposals for the “funding, design, build and transfer” of the dams. The eight Kenyan officials in case No. 20 of 2019 and the 18 Italian companies and individuals in case No. 21 of 2019, are accused of executing a sleight of hand, initially pretending that the contractors would mobilize money from the Italian government to build the dams and then switching it to a commercial loan with the government as the borrower. Furthermore, instead of the borrowed money being deposited into the Consolidated Fund as the constitution prescribes, on the contrary, it was sent directly to the contractor. In the ODPP’s view, this is where the fraud arose.
The initial contracting model selected was Engineering, Procurement, Construction and Financing where the contractor also arranges financing for the project through tie-ups with financing institutions. They can be useful when contractors have better access to low-cost financing, including state-provided export-import financing. However, the Parliamentary Service Commission has noted that these contracts are vulnerable to abuse and in 2019 parliament suspended 20 dam projects, including Arror and Kimwarer, saying “Kenyans [were] not getting value for money in this model”.
According to the ODPP, the tendering process for the two dams was riddled with irregularities. In an affidavit sworn in February 2020 on behalf of the DPP, Police Constable Thomas Tanui states that, unlike the Arror dam, the Kimwarer project had not been approved by the Cabinet, as required by the 2013 Public Private Partnership Act (PPA). Further, in the course of the process, the tender documents for CMC di Ravenna were illegally altered at least twice to switch CMC’s joint venture partners from South Africa’s AECOM to a company only known as MWH, and then again to Itinera S.P.A. And while it was Italy-based CMC di Ravenna that made the bid, the tender was awarded to South Africa-based CMC di Ravenna, a different legal entity with whom KVDA signed Memoranda of Understanding regarding the two dams in December 2015 and February 2016 that were meant to end with the signing of concessional contracts within 8 months.
However, the MOUs expired without the concessional contracts being signed and instead, on 5 April 2017, the KVDA signed commercial contracts for the construction of both dams with the Italian CMC di Ravenna and its joint venture partner Itinera S.P.A. for a total combined amount of US$501.8 million, including 10 per cent contingencies that had not been negotiated for under the concessional agreements.
In his affidavit, PC Tanui avers that the dam projects were conceived as concessionary projects under the PPA but were surreptitiously converted into a commercial instead of a concessional contract. However, what the ODPP means by “concessional contract” and how that differs from a commercial contract is not clear. There’s no mention of a “concessional contract” in the PPA which defines a concession as “a contractual licence . . . entitling a person who is granted the licence to make use of the specified infrastructure or undertake a project and to charge user fees, receive availability payments or both”. While the law allows government agencies to “enter into a project agreement with any qualified private party for the financing, construction, operation, equipping or maintenance” of infrastructure, none of the 15 types of public private partnership arrangements it lists in its second schedule seem to fit what KVDA had initially advertised.
However, perhaps what the ODPP refers to as a “concessional contract” is a reference to the way the project was to be funded. According to press reports and Richard Malebe’s petition, the initial charges alleged that the national government and KVDA officials as well as the Italian companies conspired to “entered into a commercial loan facility agreement disguising it as a government-to-government loan guaranteed by the Italian Government . . . ‘while knowing the tender document contained in the request for proposals for the development of the dams project was a concessional agreement where the intended concessionaire was to be the borrower and financier and not the Government of Kenya’”. In essence, by substituting the commercial contract for the concessional one, rather than an arrangement where Government only paid once the dams were delivered, with the contractor and financiers assuming all the risk, it was the public that was left holding the baby when things went wrong. If anything, the Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.
A Treasury press statement dated 28 February 2019, signed by one of the accused, former Cabinet Secretary Henry Rotich claims that the financing agreement for the two dams was “government-to-government” with the Italian government—represented by the 100 per cent owned Servizi Assicurativi Del Commercio Estero (SACE)—providing “insurance cover and financial support” amounting to close to 88 per cent of the total loan amount, with a consortium of four banks led by Intesa Sanpaolo said to provide the rest. The statement details “the Conditions Precedent”, which were payments apparently required before funds could be released to the government and the contractor. These include €7.83 million (Sh951 million) in fees and commissions and €94.2 million (Sh11.4 billion) in credit insurance to cover lenders for both dams. In addition, another US$75.2 million (Sh9 billion), or 15 per cent of the total contract sum for both dams was paid out to the contractor.
The Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.
The Treasury claims these fees and advances were provided for and paid from the loan from SACE and the banks, not Exchequer funds. This aligns with a November 2019 note by SACE to the Italian foreign ministry which states that the agreement required the “payment of the sums due by the Contracting Authority to the CMC-Itinera joint venture through direct disbursement by the lenders on a current account of the contractor opened outside the State of Kenya” —a violation of the Kenyan constitution which requires all sums borrowed by the government to be deposited in the Consolidated Fund. However, according to both CMC-Itinera and a confidential analysis by the ODPP seen by The Elephant, the advance payment was for a total of €66.6 million (Sh8.09 billion), a discrepancy of nearly Sh1 billion. (It should be noted that the National Treasury appears to have entered into a facility contract with lenders in Euros, and payments appear to have been made in the same currency, even though the commercial contracts were in US dollars, which exposed taxpayers to losses through changes in the exchange rates. In this article, we have used the current exchange rates to reflect the amounts in Kenya Shillings.)
Further, according to business journalist Jaindi Kisero, SACE does not appear in the external debt register which raises doubts as to whether they were indeed the main lender. Also, the November 2019 note by SACE to the Italian foreign ministry says the insurance guarantee was “in favor of the Lenders for the entire amount financed”, which seems to say that all the money came from the banks. The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them. It argues that the insurance premium was fraudulent because if the funds came from SACE, as the agreements suggest, it would have been a government-to-government loan which would require no insurance. It concludes that “payments made by GoK were made with the intention to siphon money from the country in the disguise of advance payment, insurance premium and commitment fees”.
Deputy President Ruto has claimed that only Sh7 billion was in question and that the government had a bank guarantee that protected every penny. The Treasury statement seems to back him up, at least as far as the guarantee is concerned, claiming the advance payment was backed by “a bank/insurance guarantee” which would be called “if the contractor is unable to deliver the service to the Government or runs bankrupt”. And in February 2022 Regional Development Principal Secretary Belio Kipsang told Parliament that Heritage Insurance and Standard Chartered Bank had respectively issued insurance guarantees for the advances paid to the CMC Ravenna-Itinera joint venture for Arror (Sh4.1 billion) and Kimwarer (Sh3.6 billion). He said the government had already recalled the Arror guarantee and was planning to do the same regarding Kimwarer, whose guarantee expires in June 2023. However, it is again unclear from his statement what currency the guarantees are in: dollars, euros or shillings. If in shillings, then it seems that up to Sh1.3 billion may not be covered.
The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them.
It is unclear exactly how much Kenya stands to lose given the discrepancies in the currencies used. In total, according to the ODPP, €168.5 million (Sh20.5 billion) was paid between 4 May 2017 and 7 November 2018 to cover the insurance premium, various fees as well as the advance payments. The statement from the Treasury, as noted above, puts this figure at €102 million and US$75.2 million for a total of Sh23.5 billion at current rates. In addition, the external debt register lists Kenyans as being on the hook for the entire loan amount of €578.4 million (Sh70.3 billion) which stands to be repaid until November 2035. Yet it does not seem that any further disbursements have been made by the banks to the companies beyond the insurance premium, fees and commissions and the advance payment. Why the full loan amount would be reflected as drawn down in the debt register is a mystery. It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.
The cases at the Milimani Anticorruption Court provide few concrete answers. There are currently two cases, consolidated from the initial four—two cases for each dam dealing separately with charges of financial and procedural irregularities. Each of the four initial cases had numerous defendants including directors of companies based in Italy who refused to come to Kenya to take plea, occasioning long delays. Eventually, all the cases were consolidated into two, with Case 20 of 2019 having 8 accused persons based in Kenya, and Case 21 of 2019 dealing with the alleged crimes of 18 Italian individuals and companies. This arrangement has allowed the Kenyan cases to proceed with the first witness out of 57 taking the stand in November last year.
One strange thing about the cases filed by the ODPP is that while they allege a conspiracy to defraud the government through the commercial agreements, there is little indication of the other side of that coin: how did the individuals involved benefit from the scheme? No one is charged with paying or receiving a bribe and there has been little evidence produced so far to warrant the many press allegations of corruption and kickbacks. According to a report in the East African Standard, Sh450 million was “wired by the Treasury to Italian firm CMC di Ravenna . . . was sent to an account in London then Dubai and later to Nairobi”. One of the report’s writers, Roselyne Obala, would later add that the same Sh450 million was part of a larger payment of over Sh600 million and that it was paid to an account in Barclays Bank in Nairobi. However, none of this is in the charges preferred at the Anti-Corruption Court. Further, it is unclear whether “over KSh600 million” refers to the much larger advance payments which, in any case, was (illegally) transferred directly by the banks in London to the companies. Further, the absence of prosecutions within Italy, which has a law criminalizing Italian companies paying bribes to public officials abroad in return for contracts, suggests that there is no evidence that a bribe was paid in this case.
There have been allegations raised that the prosecution of the dam cases was politicised, targeting allies of Deputy President William Ruto. In October last year, Rotich instituted a petition at the Milimani High Courts questioning why the DPP left out key personalities involved in the tendering process such as the former Attorney General Githu Muigai, solicitor general Njee Muturi and former Environment CS Judi Wakhungu. Rotich has also argued that he was not responsible for procurement of the tenders and was not the accounting officer at Treasury. “It is absurd that the respondents chose to charge me while the Attorney General is not charged in this respect. This is an indication of selective prosecution that cannot stand the test of objectivity and fair administration of action,” he argued in the petition. Others have pointed to the dropping of charges against members of the KVDA Tender Committee as well as some of Rotich’s co-accused, former Treasury PS Kamau Thugge and Dr Susan Koech, a former PS in the Environment Ministry, as proof of malicious prosecution.
It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.
Regarding the latter accusation, it is notable that many of the former accused have actually become witnesses so it may just be a case of the DPP using the small fry to net the “big fish”. However, when it comes to why the former AG, the solicitor-general, and the various ministers who oversaw KVDA between 2014 and 2019 are not in the dock, the answers are not so convincing.
A bigger source of discontent is the lack of similar prosecutions over similar projects. For example, the contract over the Itare Dam in Nakuru, also in the Rift Valley, features the same set of characters—SACE, CMC di Ravenna, Intesa San Paolo, BNP Paribas—and was the first dam awarded to the Italians in 2014. After advance payments of Sh4.3 billion were paid out, the project appears to have collapsed. As Nakuru Senator Susan Kihika noted in February 2019, “It . . . seems as if there is no equal treatment of all the projects across the country.”
In 2013, CMC had signed a consultancy contract with Stansha Limited, owned by Stanley Muthama, the MP for Lamu West, in which Stansha pledged to help CMC in its bid for tenders for the construction of Itare Dam, which is under the Rift Valley Water Services Board, and Ruiru II Dam under the Athi Water Service Board, for a fee of 3 per cent of the contract value. For Itare, it came to Sh330 million. According to the ODPP analysis, on 25 November 2015, a Stanley Muthama identified as “Staff CMC Kenya office” participated in a high-level “clarification meeting” with KVDA officials regarding the tender for the Arror dam, one of the decisive meetings for the award of the contract. Among those at the meeting were Paolo Porcelli and Gianni Ponta, two CMC officials the ODPP has charged, among others, for having “conspired to unlawfully have the services of CMC di Ravenna-ITINERA JV procured by KVDA for the development of Arror and Kimwarer multipurpose dams”. There is however no Stanley Muthama being prosecuted by the ODPP in the Kenyan case and no suggestion of any wrongdoing with regard to the contracts.
There, however, seems to be a pattern emerging where CMC di Ravenna—which has been in economic turmoil for four years; in 2018 it owed creditors €1.5 billion euros—receives advance payments for projects it does not thereafter complete. In Nepal, a US$550 million contract for the construction of a hydroelectric plant was terminated in 2019 and the company ordered by an Italian court to return €15 million to a bank in Nepal that had financed the project. CMC had not warned the Nepalese bank of its financial problems and had not even begun the work.
In Kenya, though, the two Italian firms have also claimed the cases were politicised and lacked grounds. In December 2020, they filed a suit at the International Court of Arbitration at the International Chamber of Commerce claiming they were victims of power politics between President Uhuru and his deputy William Ruto. They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations and are demanding US$115 million (KSh13.7 billion) in compensation for the cancellation of the contracts.
A bigger source of discontent is the lack of similar prosecutions over similar projects.
“It seems hardly coincidental that the highest ranking official to be investigated and charged in the criminal proceeding is Kenya’s Treasury CS Mr Henry Rotich, an ally of Mr Ruto,” stated the court document as reported in Business Daily. They claim that allegations of impropriety did not surface until two years after the contracts were signed and that KVDA had admitted that the projects had been politicised with an intention of terminating them.
In notes sent to the Italian Foreign Ministry, the joint venture complains of “delays in the payment of fees [by Kenya] to the Agent Bank with the risk of blocking future disbursements”. The companies blame the failure of the project to get off the ground on the failure by KVDA to deliver the necessary land, a claim repeated by Deputy President Ruto during the presidential debate in July. They also claim that import permit exemptions had not yet been issued.
President Kenyatta has also reportedly tasked AG Paul Kihara and Head of Public Service Joseph Kinyua to negotiate with the joint venture to seek an amicable settlement although it is curious that Kenya would seek to pay off the very companies it accuses of conspiring to defraud it. The country has, however, trodden this route before. In 2014, President Kenyatta ordered payment of Sh1.4 billion to briefcase companies for termination of contracts to supply telecommunication equipment and bandwidth spectrum, part of the Anglo Leasing scam where billions were paid to fictitious companies for security-related contracts.
Further, in May last year, SACE wrote to the AG, the Treasury and the Ministry of Foreign Affairs saying that Kenya could get a partial refund of its insurance premium but only if it committed to paying off the banks on whose behalf the country had taken out the policy. And the letter included a not-so-subtle hint that Kenya’s relationship with Italy was on the line.
They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations.
In brief, it seems clear that there were serious irregularities during the tendering and contracting for the two dams. KVDA tendered the projects under the PPA for a concessional arrangement but awarded a commercial contract under the Public Procurement and Disposal Act to a legally different entity from that which had won the tender without beginning the process afresh. Further, the arrangements to transfer money directly from commercial banks to the contractor seem clearly illegal and the shift from a concessional arrangement to a commercial one probably means Kenyans ended up paying more—including for unnecessary insurance. However, no money appears to have been paid out directly from the Exchequer, although the fees, commissions and advance payments have accrued a debt of up to Sh23.5 billion (at current exchange rates), less than a third of which may be covered by bank/insurance guarantees. Assuming the debt register is mistaken when it lists the entire loan amount, and that the guarantees by Standard Chartered Bank and Heritage Insurance are eventually honoured, Kenyans would still be, when we eventually get round to paying it, out of pocket by around Sh13.5 billion, the sum of the insurance premium (part of which we may get back), the various fees and commissions, and the exchange rate costs. As noted, no one has been accused of actually pocketing bribes. It also does not seem like either Kenya or the banks are pursuing a refund of the money paid to the joint venture in the Italian courts.
The biggest obstacle to a clearer understanding of what is happening with regard to the Arror and Kimwarer dams is the political whirlwind around it. Adding to the confusion is the language employed—terms like scam and kickbacks—suggesting that the officials involved pocketed bribes, whereas they are not actually accused of any of that. Further, journalists have tended to report the story much like the proverbial blind men of Hindustan—each accurately describing a part of the elephant’s anatomy, but not able to grasp the entire animal., It is to be expected that, even after the general election, the controversy surrounding the Arror and Kimwarer dams will continue to generate more political heat while shedding very little light.
Election 2022: Will the Incoming Leaders Deliver the Promises of Devolution to the People of North-Eastern Kenya?
The leadership is simply not investing in priority areas. The livestock sector, the main source of livelihood and the economic mainstay of the region remains highly underinvested.
Kenyans will go to the polls on 9 August to elect their representatives at the national and county levels. The upcoming elections are the third in Kenya under the 2010 constitution that introduced devolution. Instituted in 2013, devolution sought to bring government closer to the people by devolving political and economic resources to Kenya’s 47 county governments, to better address the local needs of Kenyans.
Just like the rest of Kenya, the residents of the three north-eastern counties of Garissa, Wajir, and Mandera where I was born and brought up, will once again go to the polls to elect their representatives: governors, members of county assembly, women representatives, members of the national assembly, and senators. Those who will be elected will be in charge of managing devolved resources at the county level for the next five years.
In the last decade, devolution could potentially have transformed the lives of the people of north-eastern Kenya but, unfortunately, this has not happened, despite the accrual of substantial funds and political power; the billions of Kenya shillings that have gone into the region have not brought improvements. On the contrary, some sectors such as healthcare and water service provision, have seen a decline or remained the same despite billions of Kenya shillings being pumped into these sectors in the last 10 years. Northeastern Kenya remains one of the most underdeveloped regions in Kenya, lagging behind the rest of Kenya in almost all development indicators, and the people are among the poorest in the country. The majority lack access to basic services and infrastructure such as water and healthcare, good roads and electricity.
The lack of progress in the last ten years is largely attributed to poor governance and the massive theft and misappropriation of public resources by elected leaders, the region’s elites and public officials. All indications are that massive graft, corruption, and misallocation of political and economic resources have stunt the region’s ability to take advantage of devolution and catch up with the rest of Kenya. Resources meant for the population are being misappropriated and the leadership has nothing to show for the ten years after devolution existence; blatant theft and embezzlement of public funds and misgovernance have been its defining characteristic in the last ten years.
This article is a review of devolution in north-eastern Kenya ten years after its inception. It focuses on the three north-eastern counties of Garissa, Wajir and Mandera and is a reflection of the writer’s assessment of devolution in north-eastern Kenya over the last ten years. The situation described above is similar elsewhere in the larger northern Kenya in the counties of Marsabit, Isiolo, Tana River, Samburu, Turkana, and West Pokot, but this piece focuses exclusively on the three north-eastern counties.
The lack of progress in the last ten years is largely attributed to poor governance and the massive theft and misappropriation of public resources by elected leaders, the region’s elites and public officials
Disclaimer: By highlighting the failures of devolution and how it has not delivered for the people of north-eastern Kenya, the writer is by no means advocating for the previous Nairobi-based centralised governance system where resources were shared only by a few at the centre (1963-2013), a system that had neglected and marginalized the region for far too long, denying it investments, the cause of the current predicament the region faces today.
The current failure of devolution in northern Kenya is partly tied to the failure at the centre; the ills of the centre have been replicated at the periphery. Under the Jubilee government, the national government has since 2013 experienced astronomical levels of corruption and theft of public funds affecting public sector institutions than any other time in Kenya’s history. National state oversight institutions mandated to fight corruption at both levels of government have been unable or unwilling to effectively carry out their oversight duties. Also, of importance to note is that, the widespread allegations of corruption and misappropriation of public funds are not unique to the counties of north-eastern Kenya but are also reported across most of the country’s 47 counties and this has greatly demoralized Kenyans.
Blatant theft of public resources
In north-eastern, county officials and leadership, including governors, executives and other public officials are stealing from the people. Over the years, the office of the Auditor General has exposed massive misappropriation of resources and irregular procurement rules. General public perception in the region is that the leaders are not serving the people’s interests, but are only enriching themselves with the resources they have been entrusted with, with impunity and zero accountability. As a consequence, the electorates have given up and resigned themselves to their fate, leaving it to God to will punish the thieving elites in the hereafter.
Over the last decade, and during the tenure of the last two county administrations, the elected governors have turned the north-eastern counties into family “fiefdoms” and “small monarchies” similar to Middle East monarchies where those who benefit most are the immediate family members, close friends and cronies. Nepotism and favouritism have become widespread, and governors and their appointed county executives use relatives, including extended family members and close friends as proxies to siphon off public resources meant to benefit citizens. Across the three counties, the governors and other senior county public officials have put close family members and relatives on the county payroll as ghost workers who have no job descriptions, actual portfolios or offices. Individuals who have previously never worked in any major capacity and have little experience are given high paying public jobs only because they belong to the right families or know the right people.
Governors, county executives and elected local leaders also use proxies and companies owned by friends and close family members to obtain lucrative multimillion contracts. For the five years the governor and the county executives are in charge, they and their proxies remain inaccessible and out of reach of the ordinary mwananchi.
A small portion of the loot is laundered in the region. Much of the looted money is laundered in major cities such as Nairobi and Mombasa, where the county leadership uses the ill-gotten wealth to invest in residential properties and shopping malls. County governors and their executives have bought houses, apartments and palatial homes worth hundreds of thousands of US dollars in Nairobi’s upscale residential areas such as Kilimani, Kileleshwa, Lavington, Parklands, Karen, Spring Valley and others. One favourite estate among senior Somali county officials from northeastern is the South C neighbourhood, where a high number of county executives live and operate from, instead of their respective county headquarters. They either pay high monthly rents or have bought expensive apartments and houses. The Eastleigh neighbourhood the looted public money is “reinvested” in businesses in the form of shopping malls. Some use the looted public resources to marry second and third wives or to purchase vehicles worth many times their annual salaries as county officials, while others have used the plundered money to go to Mecca on pilgrimage and “contribute” to religious causes such as building mosques and Islamic madarasa schools. Governors, specifically, have moved some of their ill-gotten wealth abroad, especially to the Middle East and Turkey. Other favourite destinations include Dubai and Turkey where the governors have bought palatial holiday homes and apartments in cities such as Ankara, Dubai, Abu Dhabi, and elsewhere.
All north-eastern governors have offices in Nairobi where they spend a ood part of their time instead of operating from their county headquarters. Governors and county executive members also hold county executive meetings in Nairobi instead of the county headquarters. You will also find that many county officials such as executive members, chief officers and members of county assemblies are ever present in Nairobi, operating from the city instead of operating from their respective county headquarters.
The current failure of devolution in northern Kenya is partly tied to the failure at the centre; the ills of the centre have been replicated at the periphery. Under the Jubilee government, the national government has since 2013 experienced astronomical levels of corruption and theft of public funds affecting public sector institutions than any other time in Kenya’s history.
Why is this the case? How are elites able to steal with impunity? The stealing that happens in the counties mostly happens through the flouting of public procurement rules, inflating the price of projects and at times even budgeting for non-existent projects. Kenya has been plagued by corruption since independence, but corruption and blatant theft of public resources has become commonplace since 2013 when the Jubilee Party led by Uhuru Kenyatta came to power. Under the Jubilee government, corruption cases involving the blatant theft of billions of shillings of taxpayers’ money have become the norm since 2013. Pervasive institutional corruption at the centre has spread to the periphery through devolution and, therefore, political and economic devolution to Kenya’s 47 counties has only enabled the creation of another cadre of corrupt elites with the ability, through elections, to capture institutions and resources. What used to happen at the centre has been replicated at the county levels through devolution; county leaders plunder everything from nationally devolved county funds to donor contributions. They take for themselves and their proxies the most lucrative contracts. Development projects in the region have become contractor- and vendor-driven with the governors, deputy governors, county executives and elected members of county assemblies being the biggest beneficiaries.
The looting of public resources has largely been successful and continues unbated due to weak government oversight institutions such as the anti-corruption agency, the Ethics and Anti-Corruption Commission (EACC), the Department of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (DPP). The lack of effective anti-corruption mechanisms and political will at the national level to fight graft plays a major role in fuelling graft and theft at all levels of government. Inessen ce, there is little to no risk of being held accountable and this explains why the leaders are unafraid. Not a single culprit who has stolen from the people in the last ten years is behind bars because of what he or she has done, despite large-scale corruption and mismanagement.
Poor service delivery
The mismanagement, graft and elite capture of county resources has resulted in poor service delivery to the people of north-eastern counties. A major challenge is that the leadership is unable to prioritize development that would transform and improve service delivery. Despite the billions in investment – cumulatively, the three counties received close to Shs100 billion in devolved funds over the last ten years – there is nothing much to show for it. Also, the leadership is simply unwilling to prioritize and invest in areas of public need where the impact would be greatest. Instead, funds are spent as they come in poorly thought-out contractor-driven “development” projects. As a consequence, crucial sectors such as livestock and water, healthcare, and education provision, where the needs of the population lie, have been ignored and, in some instances, the quality of services has deteriorated compared to the period before devolution.
In the counties, the easiest way to steal public funds is through infrastructure projects that are of no benefit to people, such as repairing a rural road that does not actually require refurbishment. Millions in resources have been poured into the construction of structures that now lie idle. For instance, it is quite common to build a structure in a certain village and label it “a health centre” or “a market” even as it remains unoccupied and abandoned. No health workers, equipment and drugs are deployed to the structure to make it an operational health facility. Office blocks are also be built which then remain unoccupied.
To symbolize misplaced priorities, the leadership has invested millions in ultra-modern office blocks, and residences for the leadership, instead of fighting poverty and investing in critical infrastructure such as water, healthcare and fodder for livestock at this time of severe drought.
The leadership is simply not investing in priority areas. The livestock sector, the main source of livelihood and the economic mainstay of the region remains highly underinvested. The recent response to the drought emergency is a testament to the ineffectiveness of the county leadership in responding to emergencies and assisting people at a time of need. Last year alone, millions of head of livestock died after water pans and grasslands dried up following a severe drought season. The drought is even now ongoing. Had the county and national governments intervened and provided needed water and fodder for the livestock, the deaths of millions of head of livestock, which are people’s livelihoods, could have been prevented. The pastoralists had no one to turn to as the response from both counties and the national government was lacklustre; the pastoralists had to fend for themselves, buying water for their livestock from private water vendors at an exorbitant cost. On average, one water truck cost between KSh10,000 and Sh50,000 depending on the distance from water sources, which in many cases are at the county headquarters. I witnessed residents of Wajir County who live far from the county headquarters having to wait for “their turn” to receive water supplied by trucks contracted by the county government. In one village less than 50 kilometres from Wajir town, residents had to wait more than 14 days for their turn to receive water. And when the one truck arrived at the village of 300-plus residents, it could only provide water for the people but not their livestock. In many of the less accessible villages in Wajir, help from the county government never arrived.
To symbolize misplaced priorities, the leadership has invested millions in ultra-modern office blocks, and residences for the leadership, instead of fighting poverty and investing in critical infrastructure such as water, healthcare and fodder for livestock at this time of severe drought.
North-eastern is most water-stressed region in Kenya, the number one hurdle that the people of the north-eastern face. Obtaining drinking water for both people and their livestock is a major challenge. Unfortunately, the region’s leadership has not been willing to find a sustainable solution to the perennial water shortage, the most common response to “alleviate” the water problem in the last decade being the construction of expensive water pans and boreholes. The big ugly holes dotting the landscape serve as temporary rain water reservoirs, but do nothing to solve the perennial water problem in the region. The leadership prefers them because they are easy to implement as they do not involve much technical skill and are normally constructed at inflated cost. Water pans are not a sustainable long-term solution as they dry up almost immediately at the onset of the dry season.
Ten years after devolution, and after receiving billions of shillings annually including in allocations for the water sector, residents of Mandera County headquarters do not have access to running water in their homesteads. The Mandera leadership has been unable to tap the waters of River Daawa, which flows through the county headquarters for most of the year. The county residents rely largely on commercial water vendors.
The World Bank-funded Water and Sanitation Project meant to connect households to piped water, provide community water points, and improve sanitation services in Wajir Town, the Wajir County headquarters, is failing largely because of lack of county leadership, and elite competition for contracts related to the project.
Half of the homesteads in Garissa Town do not have access to running water. Those that do have access to water benefited from a water project that was undertaken in the town during President Mwai Kibaki’s 2003-2007 administration. This means that from 2013 to 2022 the Garissa County leadership has not done much to expand water provision. This is despite River Tana flowing right through Garissa Town to drain into the Indian Ocean.
The health sector is an area that has seen a deterioration in services during devolution. Hospitals and health centres have been incapacitated from lack of staff, lack of adequate medical equipment and essential supplies such as drugs and laboratory reagents.
The three main referral hospitals in the region are run down. Public health facilities have collapsed to the extent that they do not offer basic services such as CT Scans; citizens are forced to seek such services in private facilities at exorbitant prices. When medical equipment such as MRI machines and CT Scans break down, the authorities take months to have them fixed. As an example, when the MRI machine at Garissa’s main referral hospital broke down, it took the administration months to have it repaired. On a visit to Wajir Referral Hospital in Wajir town, I found that the hospital did not have staplers to pin papers together, staff in the maternity ward were using bandages to tie papers together, a situation that persisted throughout the period of one week that I visited a sick relative in the hospital’s maternity wing. Upon enquiry, I was informed by the staff that this had been the situation for weeks. They also told me that it was common for them to run out of other basic essentials such as cotton wool.
A call to the people of north-eastern counties
This is a wakeup call and a public appeal to the people of north-eastern Kenya to elect people of integrity in the upcoming election on 9 August. It is only the electorate who can stand up to and liberate their counties and resources from the thieving “leaders” who have captured and appropriated the county resources. The electorates should give priority to electing leaders of integrity who have a good track record. It is time to reverse the misgovernance and misappropriation of public resources of the last ten years.
Statutory government oversight institutions such as the EACC, DCI and the DPP have spectacularly failed to rescue the counties from the thieving elites. Despite the wanton theft and loss of billions, the corrupt are walking free and are not held accountability. On the contrary, they flaunt their ill-acquired wealth in front of the poor citizenry they have stolen from.
No single public official has been apprehended and convicted for stealing and misappropriating public resources in the last ten years. However, we should not lose hope. Hopefully, the next national government that will be elected in Nairobi in August will prioritize the fight against corruption and theft of public resources, and reform and empower anti-corruption agencies.
In the meantime, the citizens of north-eastern should not give up and resign themselves to their fate, but rather, use the power of the ballot to vote in good leaders who will serve them.
Kenya’s Internally Displaced: An Enduring Colonial Legacy
Whoever between Raila Odinga and William Ruto takes the presidency of this country after 9/8 must find the moral courage to finally break with a colonial legacy that has relegated thousands of our co-citizens to a life of unending misery and despair.
The long-awaited rains are finally here and yesterday’s dry, cracked black cotton soil that we here call kagenyo has turned into a gluey, slippery mess that sticks three inches thick to the soles of your shoes. I am struggling to keep my sneakers on as I make my way up the path to Wanjĩra’s* homestead.
Wanjĩra greets me at her gate and stands there, not showing any signs of inviting me in. Her handshake is firm and her manner brisk, a big woman in a body fed mainly on stodge. Clearly, Wanjĩra is waiting for me to get to the point of my visit so, in the manner of country people, and to break the ice, I begin by observing that, thank God, the rains are finally here. Wanjĩra turns her head, points her chin at the field behind her wooden cottage and says that she’s wondering whether she should bother to start over again. She had planted the early-maturing Pioneer variety of maize seed in anticipation of the long rains but nothing had come of that and the shoots had died in the ground, beaten down by the unyielding sun. Will the rains be sufficient this time round? There follows an awkward silence; where does one begin when one is intruding on the already difficult lives of those displaced by politically instigated violence?
I had learnt only recently that there were internally displaced people living not five kilometres down the road from me, further inland, and I determined to find out their circumstances, concerned that there could be desperate cases—like those I had found at Shalom—living within my community. That is how I ended up at Wanjĩra’s gate, led there by her orphaned niece, a twenty-something young woman with an infant strapped to her back.
Wanjĩra was born and raised in Londiani, Kericho County. Like many Kikuyus of his generation, Mũreithi, Wanjĩra’s father, had been uprooted from his home in Mũrang’a and moved to a colonial village under the colonial government’s villagisation programme that, by the end of 1955, had “relocated some one million Kikuyu into 804 fortified, policed and concentrated villages from their scattered homesteads that were in turn demolished”. From here, having been fingerprinted and with a mbugi around his neck, “no longer a shepherd but one of the flock”, Mũreithi was removed from the kiugũ, the cattle pen, as Wanjĩra sardonically described the village, shoved onto the back of a lorry and transported to Londiani on the other side of the country, never again to return to Mũrang’a. Mũreithi’s final destination was a settler’s farm where he earned a monthly wage of two shillings and fifty cents as a farm labourer. He married and brought up Wanjĩra and her siblings on that pittance but was never able to find the wherewithal to buy land of his own when independence came. A son had done well enough to purchase a quarter-acre in Karamton, Nyandarua County, and this is where Mũreithi was buried when he died.
Born in 1958 and now with a family of her own, Wanjĩra worked in the Londiani Forest planting trees in exchange for permission to grow crops in the clearings, while also slowly building up a herd of 38 cattle that she would graze in the forest. But the violence that broke out following the 2007 general election would prove to be the final straw for Wanjĩra and her family; she and her husband gathered up their eight children and fled Londiani. When the couple married, Wanjĩra’s father-in-law had made room on his one-acre piece of land for the couple to establish a home and raise a family. But beginning in early 1992, the family’s hold on life became increasingly tenuous as the clashes that broke out in late 1991 in Tinderet in Nandi District spread like wild fire to Londiani and other parts of the Rift Valley. The family hunkered down and survived the onslaught but found their lives once again threatened by the politically motivated ethnic violence that followed in the wake of the December 1997 elections. They survived that spate of violence too and carried on with their lives.
But a decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death. Living under constant threat of violence took its toll on Wanjĩra’s parents-in-law and both died within months of each other. Hardly were they buried on their one acre but Wanjĩra and her Kikuyu neighbours were surrounded by hostile youths blowing cow horns and wielding bows and arrows. The herd she had so painstakingly built over time was driven away before her very eyes and her home was razed to the ground. Wanjĩra and her family fled without a backward glance, her husband with three arrow wounds in his side.
A decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death.
Unlike the many displaced who ended up at the Nakuru Show Ground where disease was rife and the hardship beyond endurance, Wanjĩra and her husband took their family to Gatundu North. Someone had told them that they could live and grow their food inside Kieni Forest in exchange for providing labour to plant trees. From 2008 to 2013, the family joined those who had moved into the forest following the 1992 clashes, living under plastic sheeting in a river valley inside the forest, co-existing with marauding elephants as best they could until the government sent in the General Service Unit to evict them. Following a stand-off, the 805 families squatting in the forest were eventually paid 400,000 shillings each by the government in lieu of land, and it is this payment that enabled Wanjĩra and her husband, together with four other families that had also taken refuge in Kieni Forest, to buy land in Ndaragwa in Nyandarua County.
Like much of the land in this part of Nyandarua County that borders Laikipia East, the land on which Wanjĩra and her family finally settled had been occupied by a British settler in colonial times. The 3,400-acre ranch was eventually sold in 1964 to a group of Kenyans who ran it commercially for almost two decades, growing wheat and keeping livestock, before they subdivided the land among themselves. Over time, some of the owners have further subdivided their farms, bequeathing the parcels to their offspring or selling them to those like Wanjĩra’s family looking for land on which to (re)settle.
Just a kilometre or so down the road from Wanjĩra’s homestead, one such landowner sold some 30 acres of his land to the government to be subdivided amongst victims of the 2007/2008 post-election violence, each family receiving two and a quarter acres. Waithiageni does not know exactly how old she is. Ndiathomire, she tells me, I did not go to school. But she thinks she was about eight years old when her father moved the family from Mũrang’a to what was then Kisumu District. Waithiageni’s father had left his family behind and moved to Nakuru to work on a settler’s farm. Come independence, he applied to be resettled on the Koru Settlement Scheme and moved his family there.
Waithiageni now lives by herself in a corrugated iron shack by the side of a dusty track, having been chased off her father’s 20 acres at Koru and losing her only son in the 2007/2008 post-election chaos. To survive, the now elderly Waithiageni depends on casual work, when it can be found, and on the kindness of her neighbour Nyagũthiĩ, a mother of two grown-up daughters who escaped the violence at Londiani in late 2007.
A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves. The closest source of water is a trek downhill to the Pesi River, the nearest school miles away and the health centre further beyond. No matatu comes this way and a boda boda ride to the trading centre along the Nyeri-Nyahururu road will set you back 300 shillings, a day’s wage in these parts. The 25,000 shillings they had each received to build a home and the 10,000 shillings start-up capital did not stretch far enough and eight of the twelve families left within the year to find a more hopeful livelihood elsewhere.
Kenya is a state party to the Great Lakes Pact, one of the few international agreements that address displacement in a comprehensive and holistic manner. Kenya domesticated the Pact’s Protocol on the Protection and Assistance to Internally Displaced Persons through an act of parliament on 31 December 2012. It establishes a legal framework for the protection of IDPs through the incorporation of the United Nations Guiding Principles on Internal Displacement into domestic law.
A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves.
Specifically, Section 9 of the IDP Act foresees that “The Government shall create the conditions for and provide internally displaced persons with a durable and sustainable solution in safety and dignity. . .” and that, among others, the following conditions for durable solutions shall apply: long-term safety and security; enjoyment of an adequate standard of living without discrimination; access to employment and livelihoods; and access to effective mechanisms that restore housing, land and property.
In November 2013, Nelson Ributhi Gaichuhie, then Chairperson of the Departmental Committee on Administration and National Security, made a statement in parliament to the effect that the government had fully complied with Section 9 (3) of the IDP Act, saying that those affected had been provided with relief food and decent housing. However, to put it in Kenyan parlance, things on the ground are different. Eight years after they were dumped by the government in their new “home”, Wathiageni and her neighbours still live in what can only be described as hovels lacking even the most basic of amenities. Eight long years on, the government has yet to undertake the necessary surveying to allow for subdivision of the land into individual parcels and so, unable to work their land, and without title, they live huddled together on a bare patch by the roadside, walking miles each day in search of casual labour on other people’s farms.
As for Wanjĩra’s family, the 400,000 shillings that it finally received in compensation was just about enough money to buy two acres of land and put up a small wooden structure to house the family of ten. After years of ill health compounded by the hellish living conditions in Kieni Forest, Wanjĩra’s husband died in 2016 and was buried on his land. Her first-born son followed soon after. Her seven surviving children are now grown and two have established their homes on the family’s land. Wanjĩra says that, having lost everything in Londiani, rebuilding what the family lost without resources seems like an insurmountable challenge. On a neighbouring farm is a neatly tended field with onions planted in zai pits. Wanjĩra tells me the land is leased by a farmer with the means to bring water up from the Pesi River about a kilometre away. Wanjĩra hasn’t those means; she must wait for the rains.
The second of the Great Lakes Pact’s ten protocols that is particularly relevant to the internally displaced is the Protocol on the Property Rights of Returning Persons that requires member states to provide legal protection for the property of the displaced and establish legal principles on the basis of which they are able to recover their property. But while the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government appears to have thrown in the towel even before it has started. The following statement from Gaichuhie to parliament makes clear that the government has no plans to ensure that those who lost land and property recover them or are adequately compensated:
“Some of them have title deeds. Very few of them have not been able to go back to where they were living. But I can tell you that most of the IDPs were business people in major towns. That is why the Government has decided that rather than wait to buy land and give it to somebody who had a big supermarket in town, it would give such individuals Kshs400,000 to start businesses. So, not all the IDPs had land. Some of them were businessmen. Some had land for which they did not have title deeds”
The IDP Act became operational in 2013 but the constitution of the National Consultative Co-ordination Committee (NCCC), the body tasked with implementing the Act, was only gazetted in October 2014 and the Chair of the committee appointed in November 2014. Patrick Githinji, who had been appointed to the committee as one of the two IDP representatives foreseen in Section 12 (3)(i) of the Act, and with whom I spoke at length on the 3rd of August 2022, explains that the committee commenced its work in April 2015, and its first task was to vet the internally displaced still living in 65 camps across the country with a view to compensating them and shutting down the camps. This task was accomplished by mid-2016 and—with the exception of Muhu Camp in Nyandarua County and Donga Farm in Subukia in Nakuru County, because the land bought by the government for the resettlement of these IDPs is in dispute—all the camps were closed and 11,000 households were paid 200,000 shillings each, the government having argued that it could no longer afford the 400,000 shillings it had paid to Wanjĩra’s family and others in 2014.
While the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government seems to have thrown in the towel even before it has started.
The next task of the committee was to ensure the compensation of the so-called Integrated IDPs (that is, those living dispersed among communities, whether with relatives or friends or in rented accommodation in urban or peri-urban areas) who numbered 193,000 households according to government records. They were offered a paltry 10,000 shillings in compensation which they turned down. Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households. Of these, 30,000 households were never paid, the government having recalled the funds from the disbursing banks. As it turns out, Wanjĩra and Waithiageni are the lucky ones.
According to an undated confidential report of the Refugee Consortium of Kenya available online, the NCCC is no longer operational. This is confirmed by Githinji who says that although the term of the first NCCC was to end in December 2017, by September of that year the NCCC secretariat had been shut down and seconded staff recalled to their respective ministries.
Together with other members of the National IDPs Network-Kenya, Githinji eventually petitioned the Senate in October 2020, alleging that there were attempts to repeal the IDP Act. In their petition, the group also claimed that land bought by the government to resettle IDPs had been illegally allocated to non-IDPs or grabbed by individuals, and that many IDPs continue to languish in makeshift tents. They also accused the government of refusing to release the funds due to Integrated IDPs because of identification errors introduced into the records by the government’s own officials, and lamented that there was no government authority at whose door they could lay these claims.
Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households.
Upon receipt of the petition, the Senate invited the group to appear before the Senate Committee on Lands, Environment and Natural Resources chaired by Sen. Mwangi Githiomi in November 2020, where, following a two-hour meeting, they were advised to table a fresh petition using the Senate’s guidelines. This they did and it was agreed that the group would again meet with the Senate Committee after the Christmas recess, in February 2021. They have no news since.
By the time the IDP Act was enacted in December 2012, another 112,000 people had joined the ranks of the internally displaced, followed by a further 55,000 in 2013, over 220,000 in 2014 and over 216,000 by mid-2015 (even as the NCCC was finally sitting down to its task), most of them victims of inter-communal violence. Meanwhile, as recently as October 2021, members of the National IDPs Network-Kenya were appealing to President Uhuru Kenyatta to finalise the resettlement and compensation process for those IDPs that were forced to flee their homes in 2007/2008 before the end of his term. Both President Kenyatta and his Deputy William Ruto had made numerous promises on the campaign trail in the run-up to the March 2013 general election—while facing charges of crimes against humanity at the International Criminal Court in the Hague—that all the displaced would be resettled within the first 100 days of their administration if they were elected.
In the face of government inaction, some of the Integrated IDPs who were denied compensation in 2017 have converged on Kianjogu, in Laikipia County, occupying land that was purchased by the government for IDP resettlement but never subdivided. They arrived in March/April of this year from Nyeri, Nairobi, Uasin Gishu and other counties across the country and are living in Kianjogu much as they did when they were first forced to flee their homes, massed together in unsanitary conditions and refusing to yield to threats from the government.
It would appear that the IDP Act was cynically enacted for the sole purpose of creating a vehicle—the NCCC—to facilitate the closure of the tens of camps strewn across the country and disband their residents; out of sight out of mind. If that is the case, then the government has circumvented its duty not only to address the plight of generations of IDPs, but to also provide assistance and protection to the newly displaced, and to put in place structures and measures to prevent further internal displacement. The outgoing government of Uhuru Kenyatta and his deputy William Ruto has instead chosen to perpetuate the generational suffering of Kenyans who were first forcibly evicted or were caused to leave their homes by the brutal and inhumane rule of the British colonial government.
Over the century since the Maasai were forcibly removed from their lands in the central Rift Valley in 1904/1905 to make way for white settlers, successive regimes have overseen the destitution of hundreds of thousands of Kenyan families. In the post-independence era, many have been forced to leave their homes by politically instigated violence where community is set against community, or by drought, famine, man-made disasters such as the Solai Dam tragedy and development-induced displacement. These hundreds of thousands of our co-citizens exist in the shadow of our lives and many lie in unmarked graves awaiting increasingly illusive justice.
The new government must, therefore, and with great urgency, operationalize the IDP Act and revive and properly reconstitute the NCCC so that it can continue with the arduous task of ensuring that durable and sustainable solutions are found for all the internally displaced. In finally beginning to properly address the plight of the internally displaced, the incoming government will not be without resources: in particular, a policy paper drawn up by the Internal Displacement Monitoring Centre dissects the IDP Act and makes concrete recommendations that, if applied, will equip the nation with an internal displacement response system that is fully operational.
It is unacceptable that over the almost sixty years of Kenya’s independence, successive leaders have built on the colonial legacy of dispossession and destitution of Kenyans. Whoever takes the helm after the 9 August general election must find the moral courage to put an end to the suffering of these Kenyans who, as much as anyone else in this country, have a right to expect a life lived in safety and in dignity.
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