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Uncovering the secretive deals in Africa’s telecoms market

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Uncovering the secretive deals in Africa’s telecoms market
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The spread of mobile phones across Africa has been one of the continent’s success stories over the past two decades, transforming lives through better communication and simpler banking. It has also resulted in huge profits for powerful international companies – and for some of Africa’s wealthiest and best-connected individuals.

But an investigation into the African interests of UK mobile phone giant Vodafone by the Finance Uncovered network has raised serious questions about transparency and the processes by which Western firms entered Africa’s telecoms markets.

Often Western operators that wanted market access in a particular country would have to choose between accepting a government stake in the venture, or sell significant shareholdings to “local investors”. But how partners were selected appears contentious, and questions have been raised over how some deals were structured.

The International Finance Corporation, which is part of the World Bank, estimates that mobile phone revenue in sub-Saharan Africa grew from $100 million in 1995 to $40 billion in 2015.

The Finance Uncovered investigation has discovered that, in certain cases, politically connected elites secured shares in Vodafone subsidiaries by borrowing money from Vodafone itself. Such arrangements may strike outsiders as odd, but they are legal, and for the lucky few able to do such deals, the rewards have been huge. The International Finance Corporation, which is part of the World Bank, estimates that mobile phone revenue in sub-Saharan Africa grew from $100 million in 1995 to $40 billion in 2015. Last September, Vodafone raised $1.1 billion by selling a mere 5% stake in its main African subsidiary, Vodacom Group. And the month before, Vodacom Tanzania raised $213 million by selling a 25% stake. The flotation, the biggest on the Dar es Salaam stock market, was prompted by the introduction of a Tanzanian government regulation requiring 25% of Vodacom Tanzania’s stock to be in public hands. 

For one of Tanzania’s wealthiest businessmen, Rostam Aziz, this proved that there was a strong appetite among investors wanting to buy into a company he retained a significant stake in. The scion of a successful Tanzanian trading family, with interests in mining, agriculture, ports and media, Aziz became an MP in 1994 and went on to become the national treasurer for the ruling party Chama cha Mapinduzi after he helped to fund and managed Jakaya Kikwete’s successful presidential campaign in 2005.

Two years later, in 2007, Aziz’s “extraordinary influence” was noted in a US embassy cable that later appeared in Wikileaks. The cable quoted a fellow politician saying of Aziz: “I don’t know what magic that guy has, but he is the power behind the throne.”

In 1999, the government of Daniel arap Moi allowed Vodafone Kenya to buy a 40% share in the state-controlled telecoms operator Safaricom for $42 million. It later transpired that Vodafone had been given “advice and assistance” on securing the investment by an anonymous Guernsey-registered company called Mobitelea.

In 2011, Aziz resigned as an MP amid corruption allegations that he has strenuously denied. At the time, he suggested that the unsubstantiated claims were the work of political rivals. “I have decided to relinquish all leadership positions in the party … my decision is based on a clear conscience to end these gutter politics and spend my time concentrating on my business,” Aziz said in his resignation speech. By this time he was a very wealthy man.

In 1999, while an MP, a company belonging to Aziz acquired a 10% stake in Vodacom Tanzania. Over the next eight years, Aziz increased his shareholding to 35% via two companies, Mirambo and Caspian.

Under rules that were common to shareholders in Vodacom Tanzania, local investors, such as Aziz’s companies, were obliged to lend the telecoms operator money to help it build its network. But Vodacom also lent Aziz’s company millions of dollars to help him with those shareholder obligations. None of the share purchases by Aziz were funded by these loans.

By 2012, Vodafone says, Aziz’s company owed Vodacom and Vodacom Tanzania a total of $52.5 million. This figure is disputed by Aziz. Two years later, Aziz’s company sold half of his shares for $240 million. His shareholding catapulted him on to the Forbes list of global billionaires. The principle shareholder, Vodacom Group, now wants to buy out Aziz’s company’s remaining share, which if it transpired would net him another hefty amount.

Vodafone says that the 1999 deal with Aziz took place before it gained majority control of Vodacom Group and that it was “not party to the transaction”. By 2006 it owned half of the group and then went on to control it.

Vodacom Tanzania is not the only Vodafone interest in Africa that has resulted in significant profits for influential and well-connected minority shareholders. In 1999, the government of Daniel arap Moi allowed Vodafone Kenya to buy a 40% share in the state-controlled telecoms operator Safaricom for $42 million. It later transpired that Vodafone had been given “advice and assistance” on securing the investment by an anonymous Guernsey-registered company called Mobitelea.

Now Vodafone has admitted to reporters at Finance Uncovered, an international journalism organisation, that it told the UK’s Serious Fraud Office who owned the Mobitelea shares. However, it is not clear when exactly Vodafone’s admission took place.

In 2001, Vodafone granted Mobitelea share options in Vodafone Kenya at 1999 prices, enabling it to buy a stake in Safaricom. Finance Uncovered estimates that these options eventually yielded Mobitelea a profit of about $51 million in 2009, a reflection of Safaricom’s spectacular success.

The involvement of Mobitelea did not surface until 2007, when the Kenyan government floated some of its Safaricom holding, and was required to list all current shareholders. But exactly who was behind the company has never been publicly disclosed. There is speculation that members of Moi’s inner circle may have benefited from the deal.

In 2007, after Kenyan MPs raised concerns of corruption involving Mobitelea, the UK Serious Fraud Office (SFO) approached Vodafone for further information. The company says that it worked closely with the SFO to provide documents and information relating to who was behind Mobitelea, and that the SFO decided to take no action. However, despite divulging the information to the SFO, Vodafone says it was legally obliged not to publicly disclose the identity of the beneficial owner of Mobitelea for reasons of commercial confidentiality.

Vodafone says all due diligence was done and that external lawyers drew up contracts that included anti-bribery and anti-corruption clauses.  It added:  “We were able to provide this information to the UK Serious Fraud Office. We note that the SFO concluded that no further action was required.”

In 2008, the SFO stated that it did not believe it had the resources to ever get to the bottom of the case.

This explanation has angered many Kenyans. John Githongo, Kenya’s renowned anti-corruption champion and chairman of the Africa Centre for Open Governance, said he was concerned that the true beneficiaries behind Mobitelea have never been identified publicly.

Financial experts point out that foreign companies are often required by law to include an element of local shareholder investment if they want to expand into a particular country’s market. However, in certain cases, the deals require levels of finance that are typically beyond the means of many local investors, meaning that foreign corporations have little choice but to offer loan facilities to acquire the equity involved.

“Reportage of these transactions continues with a bitter taste left in the mouth,” Githongo said. “How would the British media and NGOs respond to the same practices if they took place within the UK?”

Now Vodafone has admitted to reporters at Finance Uncovered, an international journalism organisation, that it told the UK’s Serious Fraud Office who owned the Mobitelea shares. However, it is not clear when exactly Vodafone’s admission took place.

A source close to the UK’s enforcement agency indicated that Vodafone was never approached by officers during the SFO investigation in 2007 and 2008. It is understood that the SFO investigation only lasted a few weeks before it was shut down.

Rather more is known about some of the shareholders in Vodafone’s operations in Mozambique. In 2007 Vodacom Mozambique lent Emotel, a telecom company owned by the economic arm of Frelimo, the country’s ruling party, nearly $1 million to enable the government to meet its obligations to become a 3% shareholder in the telecom operator.

Vodafone said Vodacom was told by the government that if it wanted to operate in the country it would have to partner with Emotel. Vodafone said the transaction preceded its acquisition of a majority control of Vodacom Group and that it was not a party to the deal. Another shareholder was Intelec, a company that administers the business interests of Armando Guebuza, president of Mozambique until 2015, and one of the country’s richest individuals. A third was the Whatana Investment Group, an investment company chaired by Graça Machel, the widow of Nelson Mandela and the wife of Samora Machel, the president of Mozambique, until his death in 1986.

The former chair of the public accounts committee, Labour MP Dame Margaret Hodge, questioned whether Vodafone could have done more to ensure that ordinary Africans benefited from the transactions.

Financial experts point out that foreign companies are often required by law to include an element of local shareholder investment if they want to expand into a particular country’s market. However, in certain cases, the deals require levels of finance that are typically beyond the means of many local investors, meaning that foreign corporations have little choice but to offer loan facilities to acquire the equity involved.

Vodafone insists that all loans were offered at arm’s-length commercial terms, with interest payments at normal commercial rates. The company said it “implemented specific governance and compliance measures” when it came to dealing with what it termed “politically exposed people”.

A spokesman for Vodafone said: “The matters you raise are historical in nature (in the case of Kenya dating back to 1996) with initial transactions that largely predate our current management teams, in most cases by many years. Personnel who were involved in these transactions – and who may have been in a position to provide information and context of potential relevance to your statements and questions – are no longer employed by Vodafone or Vodacom.”

The former chair of the public accounts committee, Labour MP Dame Margaret Hodge, questioned whether Vodafone could have done more to ensure that ordinary Africans benefited from the transactions.

“Vodafone should not just hold its nose while the wealthiest in Africa get even wealthier,” Hodge said. “They could have used their power to ensure that, where there were local ownership rules, the ordinary people of the country benefited, rather than the wealthy elite.”

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George Turner is a new media producer based in Milan. Twitter: https://twitter.com/georgenturner Nick Mathiason is business correspondent at the Bureau of Investigative Journalism and also works with the Task Force on Financial Integrity and Economic Development. He was previously Business Correspondent at the Guardian and Observer newspapers for 10 years.

Politics

The Investors That Stole Our Future: Uganda’s Illusory Fiscal Policies

With Uganda’s history of poor public administration and disastrous debt management, corruption, and increasing civil unrest and repression, what was the basis of the IMF’s optimism? The organisation has a permanent office in the Ministry of Finance and its headquarters sends multiple missions every year to monitor economic progress. To solve Uganda’s perennial economic distress, citizens must first understand the IMF’s mission in Uganda.

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The Investors That Stole Our Future: Uganda’s Illusory Fiscal Policies
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There was a time when the root causes of Uganda’s economic failure were so mercurial that one could never quite locate them. The evidence sometimes suggested incompetence; other times corruption; often a combination of the two. Examining the fiscal policy at a granular level reveals the method in the madness: there is now incontrovertible proof that incompetence is an essential part of – and is often allowed to flourish in order to facilitate – grand corruption. We are not talking about small players operating out of cramped government offices but about the country’s top leadership and their foreign and domestic partners.

In an old story, President Mobutu Sese Seko is said to have approached donors for assistance with Zaïre’s out-of-control external debt. By that time, his history of raiding the treasury was widely known and the donors facetiously suggested he lend the government the money they needed out of his personal resources. He is said to have answered, “I can’t trust them to pay me back.” (This is only funny when it is not happening in your own country.)

Uganda is in a similar situation. Unsustainable debt is rising in direct proportion to the wealth of the top leaders. When payment of the over UGX 3 trillion balance on over 20 loans (Table 1 below) commences in 2020, the country’s debt-to-revenue ratio will jump from 44% to 65%. In 2015, when Uganda’s debt repayments stood at 38% of GDP, between 26% and 36% of the population was undernourished. Undernourishment has made steady progress, rising by 1% a year between 2006 and 2011 and accelerating to two percentage points plus every year from 2011 (World Bank). Nothing has happened since 2016 to ensure undernourishment does not increase; in fact, it rose from 39% in 2015 to 41% in 2016. In contrast, world undernourishment fell 14 percentage points over the same period and is on a downward trend except for a short rise in 2015-2016.

Despite trends in the increasingly unsustainable loan portfolio, on the one hand, and erratic public administration on the other, the IMF has assessed Uganda as a low risk for external debt distress. It says the risk was not increased by significant risks stemming from domestic public and/or private external debt.

As a justification for further borrowing, President Yoweri Museveni and Ministry of Finance officials claim that the debt-to-GDP ratio is within the historically safe limit of under 50%. The Auditor General has been of the contrary view, saying debt levels are “unfavourable when debt payment is compared to national revenue collected which is the highest in the region at 54%.”

That argument has been overtaken by events. Current International Monetary Fund (IMF) projections show that debt-to-GDP will hit 49.5% in 2021. Furthermore, it is guaranteed to deteriorate as the outstanding balances on the loans will increase as the shilling continues to slide against the dollar and as further non-concessional (high-interest) loans are taken in the domestic market, such as the $104 million to be spent on security cameras and loans for ad hoc investments like the revival of Uganda Airlines at $388 million.

Table 1: Uganda's Unsustainable Debt

Table 1: Uganda’s Unsustainable Debt

Despite trends in the increasingly unsustainable loan portfolio, on the one hand, and erratic public administration on the other, the IMF has assessed Uganda as a low risk for external debt distress. It says the risk was not increased by significant risks stemming from domestic public and/or private external debt. (Debt Sustainability Analysis (International Monetary Fund, Approved by Roger Nord (IMF, AFR), Zuzana Murgasova (IMF, SPR), and Paloma Anos Casero (IDA), 2016).

They went on to claim, “Uganda’s economic performance remains strong, but has moderated in recent years.” Further, “Government finances remain on a sound footing…” The only suggestion in the Debt Sustainability Analysis (DSA) that all may not be well (inserted no doubt as a basis for claims to due diligence to be made after the economy crashes) was “… though expenditure composition can be of concern.” Expenditure composition includes items not part of the National Development Plan e.g. a national airline and a network of security cameras. In the same year, the Auditor General pointed out a serious barrier to attaining development targets: loans were performing poorly. He could not have been clearer when he warned that interest payments were becoming unsustainable (Auditor General 2016 p. 14).

“Several loans appeared to be performing poorly, with some nearing expiry; while others reached the closing date without fully disbursing. As at 30th June 2016, committed but un-disbursed debt stood at UGX 18.1 trillion [approximately US$5 billion]. Such low levels of performance undermine the attainment of planned development targets and render commitment charges of UGX20.9 billion (US$5.9 million) paid in respect of undisbursed funds nugatory [i.e. wasteful or of no value] (Auditor General 2016, p.72).” In other words, borrowed funds were not being put to use.

The problem has persisted in 2017 and 2018. This gives the lie to the IMF’s DSA 2016 finding that Uganda is scaling up infrastructure for future economic growth. The IMF admitted a risk to growth goals would be “failure to realize the envisaged growth dividend from the increased investment is a key risk”. What they did not mention was that the contingency had already materialised. A 2015 special audit of the Uganda Support to Municipal Structure Development (USMID) project (financed with a $150 million loan) showed under-utilisation of loan funds accompanied by incomplete projects requiring funds. The risk is that idle balances will eventually be diverted, as has happened in Hoima Municipal Council.

We are not far from a full admission that Uganda is in debt distress although there are still the persistent and irrelevant claims of on-target economic growth (of 6.3%). Irrelevant because it was during the past periods of alleged high economic growth that universal primary education was degraded to the point where the drop-out rate was 60%.

The current situation is that 95% of the UGX100 billion disbursed under USMID for municipal development and capacity building grants remains idle (Auditor General 2018, p. 5). Understaffing in specialised technical areas is one reason municipalities are unable to utilise infrastructural development loans. (Understaffing is a result of a cap on recruitment enforced by the IMF.) Yet for the past three years, the Treasury has only been able to release UGX417 billion of the UGX800 billion required annually to maintain the feeder roads so crucial to farmers (Auditor General 2017, p. 33).

Uganda’s fiscal policy is ‘a moving target’

In 2019 the IMF is leaning towards the Auditor General’s point of view. They now say that rising interest payments reduce resources available for education and health (human development). Their latest assessment states, “The current ratio of interest payments to revenue is comparable to what countries with high risk or in debt distress typically face.”

We are not far from a full admission that Uganda is in debt distress although there are still the persistent and irrelevant claims of on-target economic growth (of 6.3%). Irrelevant because it was during the past periods of alleged high economic growth that universal primary education was degraded to the point where the drop-out rate was 60%. During high economic growth, inequality, and especially rural-urban equality, deepened. High economic growth preceded the current phase of social unrest. According to the IMF, “In each of the last three macroeconomic assessments of Uganda, the projected debt path was revised upwards. Having a clear direction for fiscal policy would help budget planning and execution.”

Nevertheless, the IMF continues to claim that the risk of debt distress remains low, provided domestic revenue can be mobilised. The set target under the National Development Plan II and medium-term Sustainable National Development Plan is to increase the tax-to-GDP ratio from 14% to 16% by 2019/20. If this cannot be achieved through job creation, it can only translate into more taxes and austerity measures.

The question arises: With Uganda’s history of poor public administration and disastrous debt management, corruption, and increasing civil unrest and repression, what was the basis of the IMF’s optimism? The organisation has a permanent office in the Ministry of Finance and its headquarters sends multiple missions every year to monitor economic progress. To solve Uganda’s perennial economic distress, citizens must first understand the IMF’s mission in Uganda.

In any event, the grace period on over 20 loans expires in 2020 and debt is now of concern. We are now rated as “moderate to high debt distress risk. On top of expenditure on projects in the Public Investment Plan, there is significant expenditure arising from unplanned projects, such as the revival of Uganda Airlines, requiring $380 million. Lubowa International Hospital, initially planned as a public-private partnership with Finasi (a commodities trader), eventually became a contract for Finasi to build and operate a hospital funded 100% by the Government of Uganda.

Incompetence in industrialisation and job creation

A recent round of commissioning of factories and other infrastructure has proven that infrastructural development is a chimera. The Isimba Dam launched in March may generate but does not transmit power. Together with Karuma, to be launched later in the year, it cannot do so without further expenditure of $3.5 billion to extend the grid. The Nile Bridge had to undergo major remedial work owing to poor construction only days after commissioning. The president’s electioneering took in at least one factory many years old and employing a miniscule number of Ugandans. Nile Agro Industries Ltd has been producing soap, wheat flour, cooking oil, bottled water, lint bales, and fortification and industrial plastics since 1999. Yet it was commissioned and “launched” on 7th May 2019.

The Soroti Fruit Factory was founded in 2014 and funded by the government and a grant of $7.4 million from Korea. Last year’s audit listed the factory as un-operational after accumulated public investment of UGX 13,353,129,943. The factory was commissioned by the President on 13th April 2019. It was reportedly closed on 10th May owing to a lack of operating capital for fruit from about 1,000 farmers and salaries for the 123 Ugandan employees. The government’s investment arm, Uganda Development Corporation, has been advised annually for at least three years by the Auditor General against making investments without feasibility studies but in Soroti it was the usual case of ignoring professional advice and pandering to the president’s whims.

“The corporation incurred expenditure amounting to Shs.9,000,026,869 during the year in undertaking industrial development investments in the areas of fruits in Luwero, Soroti and processing in Kabale and Kisoro. However, the Corporation did not undertake investment strategic studies assessment prior to undertaking investments for purposes of assessing the marketability and commercial viability of the final products processed from fruits like mangoes, oranges and tea plantations. The investment may not achieve anticipated results.” (my emphasis) (Auditor General 2016 p. 519)

Apart from Soroti Fruit Factory, other warnings have related to Kampala Industrial and Business Park, Namanve, where UGX 1,000,000,000 for a feasibility study was diverted. Over UGX 131 billion is outstanding on loans for four industrial parks, including Namanve. Although National Information Technology Authority-Uganda (NITA-U) carried out a feasibility study for Commercialisation of the National Data Transmission Backbone Infrastructure (NBI) and E-government Infrastructure (EGI), it did not factor in the costs of its maintenance. “As a result it was difficult to assess the economic sense of the project as Management lacked sufficient benchmark to assess the bid proposals on contract aspects such as the cost of maintaining the NBI, revenue sharing ratios and price of internet services.” (Auditor General, 2017, p. 53)

It is indicative of the general problem pointed out by the Auditor General, who concluded that ignoring planning procedures is a major weakness within the Ministry of Finance “and presents a risk of funding projects which are not feasible and are not aligned to the National Development Plan (NDP).”

New projects are required to undergo four stages prior to being included in the Public Investment Plan (PIP) and commencement: (i) Prepare a project concept in line with NDP, (ii) Prepare a Project Profile demonstrating key results, (iii) Undertake a pre-feasibility study, and (iv) Conduct a feasibility study. But the auditor found that “some projects obtained project codes and admission into the PIP without proper project vetting as stated in without vetting them”.

It is indicative of the general problem pointed out by the Auditor General, who concluded that ignoring planning procedures is a major weakness within the Ministry of Finance “and presents a risk of funding projects which are not feasible and are not aligned to the National Development Plan (NDP).” (Auditor General, 2017, p. 15)

Foreign direct investment

To attract foreign direct investment (FDI), many countries around the world privatised their telecommunications sectors – some voluntarily and others, like Uganda, under an IMF structural adjustment programme. In the UK in the 1990s, public awareness-raising of the move involved repeated assurances that after unbundling postal and telecoms services, 51% of shares in British Telecom would be sold to the private sector but with the proviso that 34.3% would be sold to the general public. Furthermore, in the interests of promoting share ownership, the shares were priced at £130, a price considered below their value.

Kenya sold its telecoms sector, reserving 60% of the shares for the Kenyan state, of which 30% were later sold directly to the public. The new entity, Safaricom, went on to become the most profitable private company in the East African region.

Cross the border into Uganda where income from the lucrative telecoms sector is enjoyed only by a narrow oligarchy. Although the government was to retain 49% of the shares in Uganda Telecom, it currently holds only 31%. Much has been written about how MTN went from being the second national operator to a virtual monopoly and regulator of the sector.

MTN is the biggest player, with 54% of the telecoms market. Only 5% of MTN shares are Ugandan-owned, (the Ugandan being an individual with board membership in at least two privatised entities, including the defunct Rift Valley Railway.) It is only in the past few months that the president began to press MTN to make some of its shares available to the public.

Uganda Telecom, the entity that was supposed to retain residual rights in the sector, was only created after Celtel and MTN (the first and second national operators) had been running for a while. This has meant that MTN has the technology to permit or bar new indigenous competitors from the market, which reportedly it does. Ugandan start-up Eezymoney, a mobile money platform designed to allow banking over different platforms (i.e. between MTN, Africell and other service providers), was awarded over two billion shillings in a suit against MTN for refusing to provide them with access to the network.

Tax evasion and illicit transfers

Returning to the objectives of privatisation and incentivising foreign direct investment, greater efficiency and cash inflows may have been achieved but the benefits have been annihilated by illicit outflows mainly facilitated through tax evasion.

Another 13 foreign investors have been found to have used a lacuna in the law to avoid taxes for years, a fact the IMF was in a position to know. Thirteen of the investors owe UGX 353.5 billion. Some have been beneficiaries of FDI incentives, another has been operating in Uganda since 1969 (and therefore not in need of incentives). One is in possession of the infrastructure that is the privatised Nytil textile manufacturing plant (founded in 1954). A fourteenth is a joint venture once touted as the only manufacturer of ARVs in Africa. It was founded to supply ARVs for domestic consumption and export to Burundi, the DRC, Kenya, Rwanda, South Sudan, Tanzania, Cameroon, Comoros, Namibia and Zambia. The majority shareholding is foreign-owned; the three major Ugandan shareholders own less than 10% of the shares and 18% were sold on the stock exchange in 2018. It turns out that the company may really be in the business of acquiring government tenders for a parent company in India.

In response to the discovery that opportunities to increase the tax-to-GDP ratio are being systemically undermined by tax evasion by investors, the Ministry of Finance this month tabled a proposal in Parliament to give the offenders a waiver of taxes owed on the basis that it would be unwise to drive FDI away by collecting the arrears.

Returning to the Mobutu story, it is not just African despots who have sufficient illicit funds to make a significant dent in their countries’ public debt; the taxes owed by foreign investors could clear it. MTN’s tax arrears (of UGX 2.8 trillion as extrapolated from data recovered during litigation) could clear 73.6% of the current UGX 3.4 trillion outstanding balance on the loans which Uganda will begin to repay in 2020.

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The Drums of Another Senseless War: Why Are the Anti-War Warriors Silent?

True to gangster tradition of making offers that dare not be refused, the US singles out countries as renegades, pushes them against the wall in the hope that they will react, then blames the victims desperately groping for survival. But who gives a damn? Importantly, asks KWELI NZITO in the face of America’s brazen acts of war before even the first bullet is fired, where are the anti-war warriors to embark on serious preventive and deterrent anti-war stands, and to take to the streets in the tradition of the Yellow Vests in France to carry out civil unrest and make it clear that the crimes of their leaders will not be given a free pass?

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The Drums of Another Senseless War: Why Are the Anti-War Warriors Silent?
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Have the people of the United States become desensitised to the horrendous suffering inflicted by their government, or are they blissful co-imperialists?

The ratcheting up of tensions has placed two culturally and geographically dissimilar countries – Iran and Venezuela – firmly in the cross hairs of yet more illegal American wars based on lies.  But lies have now become commonplace and staple in the Empire’s pursuit of her habitual acts of lawlessness and unprovoked aggression.  There is push for an American hegemony and control of the natural resources of weak countries first, for the economic windfall of corporate robber barons, and second, for providing a military front on behalf of Israel.  Both phenomena have ceased to raise eyebrows.  No more pretences after the infamous Pompeo declaration, “We lie, we cheat, we steal”, which inadvertently but accurately summarised the history and essence of the United States since its nascent stages.  Donald Trump once smugly called it “taming” the country, implying in his typically overt racist fashion, that before being tamed, the American land mass was an unforgiving wilderness inhabited by savages.

Beyond the impetus for merciless hegemonic quests, Franz Fanon’s “wretched of the earth” have been given a stark choice:  surrender to the will of Empire, or follow your independent path at your own assured peril – economic devastation first, then the final blow delivered by a merciless military hammer, if you eschew nuclear arms, that is.  Many of these countries have effectively surrendered their sovereignty as they get ever more deeply mired in neoliberal economic muddles prescribed by Washington, the International Monetary Fund and the World Bank against the interests of their own impoverished and disenfranchised citizens.  Equal numbers had participated in comprehensive armed struggles against English, French, Japanese, Portuguese, Dutch, Spanish, Belgian, Zionist and German colonial rule.  They are now being systematically and seriously sapped of the energy and political will to stand up to neo-colonialism, a phenomenon decidedly grimmer and infinitely deadlier than its classic counterpart.

Israel’s partnership in this imperial adventure is becoming less masked and increasingly brazen.  The Israelis are sending 1,000 special IDF forces to Honduras, a US puppet regime, in quiet preparation for the coming war against Venezuela. Other more vociferous accomplices on the margins (Saudis, Egyptians, Emiratis and Bahrainis) are gleefully rubbing their hands at the prospect of their sworn religious nemesis, Iran, being wiped off the map or being turned into yet another failed state.

True to gangster tradition of making offers that dare not be refused, the US singles out countries as renegades, pushes them against the wall in the hope that they will react, then blames the victims desperately groping for survival.

What of Venezuela? What possible grounds have led to their rebuke from the newly evolved god, the USA? Whatever the answer, it cannot be on religious grounds.  The fact that Venezuela is an overwhelmingly Christian (88%) country does not shield it from the secular god’s wrath who alone can offer salvation with all its earthly rewards, or damnation with the accompanying indiscriminate terrestrial hell.  Rewards of worldly heaven for the sycophants and living hell for the audacious and assertive. This is a posture much resembling a prescription from the scriptures. But then designated apostates (only god can designate nations as terrorist, target them for sanctions or embrace them as allies) like Venezuela do not deserve to sit on the world’s largest reserves of oil and natural gas. That is the natural right of Uncle Sam, via the auspices of his installed puppets.

True to gangster tradition of making offers that dare not be refused, the US singles out countries as renegades, pushes them against the wall in the hope that they will react, then blames the victims desperately groping for survival. The sanctions being expanded now force countries once exempted and allowed to buy Iranian oil to look elsewhere for fuel.  Among them is the second most populated country in the world, India.

But who gives a damn? If the US did in fact give a hoot about inferior peoples, it would not have acquired their empire by means mostly foul, cruel and unscrupulous.  The frontier cowboy bushwhacking mentality lives on and thrives.  Naturally, the US is chief among potential beneficiaries of this criminal embargo with higher prices likely to turn it into an exporter of oil, its petroleum magnates and corporate masters raking in the profits borne out of the abject misery visited on millions of targeted victims.

Lest we forget about the 500,000 children murdered by American sanctions against Iraq, which denied these children essential medicines, prompting Madeline Albright to soberly reflect that that macabre criminal measure was “worth it”. The sanctions resulted in the United Nations Oil-for-Food programme, which was equally mired in scandal and controversy that resulted in the loss of billions of dollars.

US Secretary of State, Mike Pompeo, recently declared without an atom of remorse or shame, “The Iranian leadership has to make a decision that they want their people to eat,” abandoning all pretence of caring about Iranian innocents while flaunting the latest overpowering sanctions.  So, the US doctrine, evolving in plain sight, is “to make their economy scream”, in the words of the late American President and thug, Richard Nixon, followed by orchestrated starvation of Iranians a la Pompeo and then a wiping out of the Iranian regime with all the military might at America’s disposal (famished and ailing children included).

But here we posit morally searching questions to ponder: In the face of America’s brazen acts of war before even the first bullet is fired, is this not the time for the anti-war warriors to embark on serious preventive and deterrent anti-war stands, and to take to the streets in the tradition of the Yellow Vests in France to carry out civil unrest and make it clear that the crimes of their leaders will not be given a free pass?  They are not visible yet, save for the buried voices from the much-maligned Ilhan Omar, Ro Khanna, Walter Jones and Barbara Lee. (The latter’s prescient stand against the Afghanistan war led to death threats against her). Where is the Black Caucus when you need it?  Where on earth can they possibly be? Or has the American government and the Israel First lobby so effectively neutralised the movement as to make it irreversibly inoperable and useless?

Indeed, has the public become so desensitised to the horrendous suffering of fellow humans beyond their frontiers so callously wrought by their government that they have taken refuge in silence as the easier, gutless exit out of their inescapable burden of guilt – that is if they have any left?  Or have they been rendered totally ignorant by servile, cheerleading corporate media that knowingly conceal the criminal acts of their government abroad so much so that the public’s ignorance has become a source of virtual bliss and inaction? Have the lessons of the lies of the Gulf of Tonkin, the weapons of mass destruction (WMD) in Iraq, lies about saving Libyans from Gaddafi, Cubans from Castro, Nicaraguans from Ortega, Haiti from Aristide and Venezuelans from Maduro, about Mandela being a terrorist, about Hamas being designated a terrorist organisation been entirely lost on the public?  What of the hitherto essentially abandoned, redundant falsehoods of spreading democracy and human rights, the rule of law and order by a country that clearly ranks as the worst offender of these once lofty principles, running roughshod over civilised norms and international law.

Karl Marx once asserted that religion is the heart of a heartless world, and the soul of soulless conditions…the opium of the people.  It is doubtful that the sheer magnitude of befuddlement and pacifying of the American public produced with such lethal efficacy by the corporate media could have been foreseen by Marx.

Are these not the same warriors who truncated that other brutal, criminal war in Vietnam by their leaders by protesting courageously until their leaders could no longer continue to play deaf? Or was it simply for nepotistic reasons of not bearing the prospects of more body bags wrapping their relatives who had wasted their lives fighting a criminal and unjust war for an elite that never visited the front lines?  Can the American public be credibly oblivious to their country’s unsavoury distinction of having launched more unprovoked and criminal wars of aggression post-WWII, killing more innocents than the rest of humanity combined?  What exactly are they teaching these young men and women, boys and girls in schools, colleges, universities and temples of worship where salvation is ostensibly at hand and the honourable pursuit of divine justice a matter of moral duty?

Karl Marx once asserted that religion is the heart of a heartless world, and the soul of soulless conditions…the opium of the people.  It is doubtful that the sheer magnitude of befuddlement and pacifying of the American public produced with such lethal efficacy by the corporate media could have been foreseen by Marx. Or is it a newly-found potent mix of propaganda, employing religion as a mass pacifier instead of agitator, along with runaway consumerism that has produced this unprecedented state of brain demise, amorality and bizarre insensitivity to the suffering and pain of others? Why this inexplicable, thunderous silence and moral turpitude from what should instead be the conscience of the nation and voices of reason?  Why?

Identical questions could be asked of European anti-war warriors.  No ready answers seem to be forthcoming from there either.  Did their leaders not commit to stand by Iran to circumvent the evil American sanctions so Iranian civilians can enjoy a reasonably normal life in the face of so much adversity after their government had complied with the letter and spirit of the original Iran nuclear deal that Trump had trashed? Have any of their commitments borne fruit yet?  Not one. Nada.  Zilch. Yet they have the gall to reject Iran’s ultimatum to remove the cap on enriching uranium, something that Iran perhaps should have done well before the ill-fated agreement was to be signed and unceremoniously discarded.  That posture may well have put Iran on par with North Korea which at least is allowed the luxury of occasional fake negotiations and bogus dialogues (albeit mostly on Washington’s terms) but still North Korea is resolute enough not to yield to the machinations of certified, compulsive liars. All the impassioned discussions from the White House about evil Iran’s nuclear programme make no mention, not a word, of Israel’s estimated 400 nuclear warheads.

The real heartbreak comes not from the lack of sensible and satisfactory answers to the many questions posed here. It comes from a sense of impotence both inside and outside the US.  It is one occasioned by the one-way orders and edicts issuing from the modern secular deific entities collectively constituted by the American leadership.  They are deities with barely any modicum of demonstrable compassion. It is reminiscent of the god of the Old Testament – vindictive, cruel, merciless, racist and bloodthirsty. Such traits and the aversion to peace have become the defining qualities of these deities, their disciples and the secular lumpen spiritariat.

And to such a deity, his creatures have been left with no choice but total and unconditional submission.  Freedom as a dream, as aspiration, as a catalyst for hope, is now being consigned to the trash bins of revisionist history because the new gods thus ordain it. Francis Fukuyama’s erroneous title of “The End of History” fell flat on its face because it was myopic and deceitfully triumphalist.  It should have read, “The End of Resistance”.

 

This article was originally published in the Black Agenda Report with the title, Where have all the anti-war warriors gone?

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2017: The End of the Kenyan Judiciary’s Independence

As Kenya marked its 55th anniversary of independence on 12 December 2017, the Judiciary was silently marking the end of its 60 days of independence.

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2017: The End of the Kenyan Judiciary’s Independence
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Lawyer Julie Aullo Soweto glanced at her wristwatch and realised that she was running late for the 11 am pre-trial conference that was scheduled to take place on that morning of 14 November 2017. She robed quickly and debated whether or not to wear her advocate’s wig. In the end, she chose to leave the wig behind as she made her way from her Biblica House office to the Supreme Court building. She had filed an application at the Supreme Court for scrutiny of the materials from the 26 October 2017 repeat presidential election, and had a good feeling about its chances.

Almost single-handedly – over three days and with little sleep in between – she had drafted the application for scrutiny of election materials from the 8 August 2017 poll in the Raila Odinga petition. The success of that application, in which 19 of the 26 prayers were granted, enabled the petitioners to not only discover anomalies in the election results filed in the Supreme Court but also exposed the Independent Electoral and Boundaries Commission’s (IEBC) suspicious refusal to grant access to the computer servers used to receive, transmit and collate results. It likely played a significant role in persuading four of the six judges to nullify the election of Uhuru Kenyatta as president.

The petitioners hoped to use the scrutiny to prove that the results published on the portal did not correspond to those on the official paper documents. The IEBC’s lawyers, however, proceeded to paint a grim picture of the information overload that the court would have to bear if it accepted the request.

Despite playing a critical role in the first petition, Soweto had not sought the public’s attention from the row of seasoned litigators assembled for the case but the petition challenging the repeat presidential election brought by civil society activists Njonjo Mue and Khelef Khalifa, would thrust her to the fore.  Soweto was determined to bring her experience from the first successful petition to bear on the second one. She had gone over the application, which had been allowed in August, tightening loose ends and closing gaps. She whittled down her original 26 prayers to a round figure of 20. It was the same bench of judges; she was certain they would allow it.  They did not.

The petitioners hoped to use the scrutiny to prove that the results published on the portal did not correspond to those on the official paper documents. The IEBC’s lawyers, however, proceeded to paint a grim picture of the information overload that the court would have to bear if it accepted the request. They inundated the judges with frightful claims of the terabytes of information that would take two years to work through – while conveniently neglecting to mention that, in fact, these were photographic images of results forms. (Images occupy substantial space on databases.)

The question raised by this response is how the IEBC itself managed to sift through the terabytes of information within a week to establish who had won the vote.

In the event, the petitioners were granted the order for the original voters’ register but the IEBC demanded Sh80 million to have it photocopied. But even had the petitioners been able to afford the price of photocopying the register themselves, it would have taken several weeks to produce one and, in the end, the petitioners were simply given a soft copy of the register. This incident serves to illustrate the needless hurdles that the petitioners had to overcome.

The court granted only 2 out of the 20 requests around the scrutiny – allowing access to results declaration forms for the constituency, county and national tallying centres and permitting access to the voters’ register at the petitioner’s cost. The court’s ruling said:

Some of the prayers have been declined due to the sheer impracticability of their implementation given the short time left for the determination of the petitions at hand. Others have been declined because they were not pleaded with sufficient particularity in the Petition. Yet others were declined on grounds that they are couched in such general terms as to be no more than fishing expeditions.

The court had explained that the prayers had been “declined on the basis of very clear grounds, which will be elaborated in a detailed version of this ruling to be issued by the Court at a later date”. More than 18 months since that ruling was read out in open court, those reasons are yet to be made public.

Scrutiny is intended to demonstrate openness of the electoral process, wrote Justice Maraga in a 2016 paper, adding that it was one of the tools courts used to ascertain the integrity of an election. It is a court-supervised forensic investigation into the validity of votes cast and the subsequent determination of who ought to have returned as the winning candidate.

Scrutinising the servers

The decision to allow scrutiny of the servers in the August 2017 petition was notable in its provisions (showing a court that had a firm grasp of ICT matters), a far cry from what had happened in 2013. The orders on ICT were detailed and authoritative, indicating that the court’s ICT literacy was higher than it had been in 2013 when arguments about Uhuru Kenyatta’s The National Alliance (TNA) party sharing a results platform with the IEBC seemed to fly over the judges’ heads. There was a certain burden that the court understood it needed to discharge to command respect in the wider judiciary.

Although the 2013 scrutiny showed appalling errors, with some polling stations recording turnouts as high as 203 per cent, and numerous discrepancies between the votes announced and those recorded in the official result forms, the lawyers for Odinga were unable to create a coherent narrative that would force the judges to confront what had happened in the election.

The scrutiny in 2017 was a marked departure from what had transpired in 2013 when the Supreme Court ordered the Chief Registrar of the Judiciary to take charge of the exercise. That scrutiny got underway in fits and starts more than 24 hours after it was ordered, and was characterised by systems collapse, poor coordination and unequal representation of the various parties. Davis Chirchir and Winnie Guchu, who had both been members of the IEBC’s predecessor, the Interim Independent Electoral Commission, and were now working for The National Alliance Party, were present throughout. In contrast, lawyers for Raila Odinga showed up one evening at 8 pm, milled around the hall at the Kenyatta International Conference Centre for an hour, and left. By the time the court was being informed that the scrutiny had not been completed, Odinga’s lawyers had no report of their own to file.

Although the 2013 scrutiny showed appalling errors, with some polling stations recording turnouts as high as 203 per cent, and numerous discrepancies between the votes announced and those recorded in the official result forms, the lawyers for Odinga were unable to create a coherent narrative that would force the judges to confront what had happened in the election.

During the August 2017 petition, the petitioners sought to make the scrutiny produce the smoking gun that would prove their case. They alleged that not all the records of the vote count in the presidential election had been received at the national tallying centre when the results were announced; thousands of polling station results documents and scores of constituency results were missing, a claim acknowledged by the IEBC.

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Their lawyers asked the court to order a scrutiny of these documents. They also sought an audit of the servers, alleging that the IEBC’s system of electronically transmitting results from polling stations and constituencies had been compromised.

The judges not only allowed the scrutiny and the audit, but also ordered the registrar of the Supreme Court to supervise it. Petitioners and respondents were allowed two agents each while the lawyers for each side would be granted 15 minutes to make submissions. The court ordered the registrar to produce reports of the scrutiny and audit by 5 pm two days later.

The registrar of the Supreme Court supervised the scrutiny of the results forms, which took place at the Milimani Ceremonial Hall in Nairobi. A staff member of the court’s ICT department and two independent, court-appointed ICT experts oversaw the audit of the IEBC servers at the commission’s headquarters at Anniversary Towers in Nairobi. There had been disquiet at the commission, especially around the ICT system – and with good reason; Chris Msando, the commission’s head of ICT had been found brutally murdered barely a week to the election.

At noon on Tuesday 29 August 2017, James Orengo, Odinga’s lead advocate, reported to the court that the audit of the servers had not yet begun. By way of explanation, IEBC lawyers claimed that the delay in allowing access to the servers was due to the fact that the system’s high-level security was based in France – a two-hour time difference with Kenya – and their suppliers were still asleep at 9 am Kenya time when the audit was supposed to have begun.

The stonewalling hid a major flaw in the system: the server simply wasn’t there. A report by the Auditor General later revealed that most of the equipment that was to be used to transmit and interpret results had not been delivered, while part of the equipment for processing the results at the data centre was delivered five months after the 8 August 2017 election.

Justice David Maraga asked the parties to work together to comply with the order so that the court could receive a report by 5 pm, or reasons for the failure would have to be provided. “If some of your clients’ agents are in Europe, or wherever, they must have been told yesterday. Wake them up and get the order complied with,” he said.

The stonewalling hid a major flaw in the system: the server simply wasn’t there. A report by the Auditor General later revealed that most of the equipment that was to be used to transmit and interpret results had not been delivered, while part of the equipment for processing the results at the data centre was delivered five months after the 8 August 2017 election. The country had gone to the election without a back-up database for transmitting results and the IEBC did not have the capacity to analyse the data it received from the polling kits.

The reports on the scrutiny and audit were ready when the court reconvened just after 9 pm on Tuesday, 29 August. Orengo stated that the court’s order had only been partially complied with; the GPS locations for each of the Kenya Integrated Election Management System (KIEMS) devices used at the polling stations were not released. The read-only access to the servers the court had ordered had not been granted and agents were only given live access; they could not view or access the logs or see the log-in trail of users.

The 20-hour court-ordered scrutiny of results from the 8 August presidential election raised red flags for documents from at least 63 constituencies, 30 of which did not have a serial number and another 33 of which did not have a security watermark. Some were unsigned and others had typographical errors. Some forms were printed in landscape layout instead of the standard portrait layout of the original forms. Some forms had candidates’ first names printed before their surnames whereas on the standard form the surname preceded the first name.

The 30 constituencies that filed results forms without a serial number accounted for 1,407,746 valid votes, while documents for the 33 constituencies holding 1,850,706 valid votes failed the ultra-violet test because they did not have a watermark.

In his comments about the audit, Orengo said that the scrutiny of the forms showed that some did not have security features, others did not have serial numbers, and close to two-thirds of them did not have the handover section filled out. He said that the court audit had revealed that the election had been “shambolic”.

“Our case has been proven that forgery, trickery and alteration of documents has been used in various ways. We pray you should declare the election of the third respondent as not valid and not in accordance with the constitution,” he added.

But lawyer Fred Ngatia, who represented Kenyatta, said, “It is a fair report. It is our submission that this report fortifies what we have said all along that this election was a fair election.”

Justices Maraga, Mwilu, Wanjala and Lenaola constituted the majority that voted to annul the election of Uhuru Kenyatta for not having been done in accordance with the Constitution and the law. Dr Willy Mutunga’s students at university (Justices Maraga, Wanjala, Ibrahim and Lenaola) appeared to have improved on the record of their teacher.

Justices Jackton Ojwang and Njoki Ndung’u disagreed. Justice Ibrahim, who had been taken ill on the second day of the hearings, did not vote.

Justice Ndung’u, in her dissenting opinion of 1 September 2019, questioned the results of the scrutiny and wrote in detail about her own private examination of the documents in question, which produced different results. Justice Maraga felt compelled to repeat his opening statement after the dissenting opinions had been read out in open court: “The greatness of a nation lies in its adherence and its fidelity to its Constitution, and its strict adherence to the rule of law …”

Days later, Kenyatta’s Jubilee Party accused Supreme Court registrar, Esther Nyaiyaki, of doctoring the scrutiny and insinuated that she had colluded with the petitioners to massage the results. For good measure, the Ethics and Anti-Corruption Commission (EACC) began an inquiry into the allegations of impropriety on the part of the registrar. It remained an open question and, during the petition against the repeat presidential election, the Supreme Court granted limited access for scrutiny and the registrar kept a low profile.

Civil society as petitioner

All presidential election petitions in Kenya have been filed on the deadline day – hinting at the pressure under which they are prepared. They have also been decided within the constitutional deadline of 14 days after filing.

The data centre at InformAction offices, where some of the evidence for the civil society-backed petition was being assembled, had to be moved several times when staff and volunteers noticed a military helicopter circling over the compound for hours.

In the run-up to the 26 October 2017 repeat election, police officers had attempted to forcibly enter the Africa Centre for Open Governance offices to shut it down for alleged tax transgressions. Its Executive Director, Gladwell Otieno, had been one of the petitioners challenging Kenyatta’s 2013 election. The Kenya Human Rights Commission, another critical civil society actor, was being threatened with closure over alleged financial impropriety.

The data centre at InformAction offices, where some of the evidence for the civil society-backed petition was being assembled, had to be moved several times when staff and volunteers noticed a military helicopter circling over the compound for hours. Katiba Institute suffered a major power outage in the week before the deadline for filing a petition. All these organisations were working together under the Kura Yangu Sauti Yangu (KYSY) initiative to support free, fair and credible elections.

With threats and physical attacks on civil society organisations escalating as the deadline for filing the November 2017 petition drew near, the team preparing the case for civil society activists Njonjo Mue and Khelef Khalifa worked discreetly through the nights from a secret location.

They had up to midnight of the last day to file the petition. The court required eight copies for itself and several others for the different parties. The main challenge was ensuring that everything was filed on time. Some important documents had to be couriered by motorcycle to get to the registry on time.

Though they had hastily put together a strong petition, the petitioners’ lawyers felt the deck was stacked against them right from the start. There was hostility even at the registry, with court staff providing misleading information about the time of filing papers.

The respondents had put together an impressive assembly of legal talent to represent them — mostly senior lawyers and household names in Kenya. The petitioners’ lawyers were a team of experienced but younger lawyers. Kenyatta’s and the IEBC’s lawyers then used their seniority to obtain better treatment from the court. The lawyers for the petitioners felt that they were before a court that had already made up its mind – a court that appeared to be looking for reason and justification not to entertain the petition in spite of the strict standards it had set for the IEBC when it overturned the first election.

There were no friendly faces on the bench, but some judges were egregious. Judges appeared to take pleasure in demolishing the evidence and the manner in which it was introduced. One lawyer noticed that Justice Ojwang was being particularly hostile towards Julie Soweto. He appeared to be cross-examining Soweto when she began reading the resignation statement by former IEBC commissioner Roselyn Akombe. “He descended into the arena of litigation. Of all the judges, he was the one that was hardest on us,” said one of the lawyers on the team. “It was like we were litigating against them.”

Lawyer Jane Odiya, an experienced advocate, led the team that went to access the election results forms. She was accompanied by young data entry professionals and university students. Even though they were working under a tight deadline, the scrutiny team was initially stonewalled and then given the run-around at the IEBC’s Anniversary Towers offices. “The IEBC officials slow-walked the scrutiny even though we had the court order in hand,” recalls Haron Ndubi, co-counsel for the Mue-Khalifa petition.

Although IEBC lawyers accompanied the scrutiny team to the commission’s offices, they quickly left after giving assurances that the process would go on smoothly. That was not to be; IEBC officials took a long time to supply files. The scrutiny team wandered the halls of Anniversary Towers with no one to assist them. The IEBC corridors were teeming with people who looked like plainclothes police officers and who followed the scrutiny team everywhere, including into elevators and out of the building. One lawyer said she believed some of the officers trailed them in a vehicle as they went home.

The sense of frustration among the scrutiny team was palpable and, after tempers flared, the team was led into a cosy office at Anniversary Towers where they found lawyers for the commission and a senior IEBC official, who assured them that the conference room for examining the results documents was now ready. Once inside the conference room, the reason for the delay became quickly apparent: the Jubilee team, consisting of lawyers and party officials, like lawyer Faith Waigwa, was already present.

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The files were not to be copied during the scrutiny. The team could not enter the boardroom with their phones or stationery of any sort. The ban on any writing material was enforced with the help of plainclothes police officers posted at the door. The head of the scrutiny team had to go back to the Supreme Court to seek clarification on the order they had received. It was only after the judges stressed that the team could write down their findings that the exercise resumed. “We felt tortured,” admitted one of the petitioners’ advocates.

After the scrutiny, the team quickly put together its report, and the advocates fought to have it admitted into the record. The court declined, defeating the purpose for which the orders had been sought and issued. The court said the scrutiny report was merely one party’s view and not a rigorous finding arrived at by all parties to the petition. Both Kenyatta’s and IEBC’s representatives had been present when the petitioners scrutinised the results documents but they were there more to impede the process than to participate in it. The scrutiny fell short of the legal definition of one — it was, to be generous, a review of the documents.

The petitioners asked why the forms used to collate the presidential results differed from those the IEBC had brought to court. They further pointed out that the numbers shown in the election portal differed from the ones on the collation forms.

The rejection of the report and the limitation of its scope “broke all of us,” admitted another advocate who worked on the petition.

They believed that a proper scrutiny would have made plain the far greater illegalities in the 26 October election than even those found in the 8 August poll that had been nullified by the Supreme Court. The lawyers point out that the fact that the judges did not entertain the scrutiny gave away the endgame; the petition would be thrown out.

Yet, what the Supreme Court was being asked to do in the November petition was not easy. Even if there were merits to the case, it would be very difficult for a president to accept that he had lost the election, petitioned by a group of civil society activists. Privately, some of the judges felt that Odinga should have come back to court. Still, nullifying one election and paying such a heavy price for doing so had blunted the appetite for a repeat performance, unless a senior political player was asking for it.

After Odinga withdrew from the fresh election a mere fortnight to polling day, the Supreme Court felt that it need not enter into a political dispute. Perhaps the judges would have been less irritable had they felt that the political contestants were taking them more seriously. In the event, the judges treated the petitioners as if they had brought the petition as proxies for Odinga’s National Super Alliance (NASA).

From the outset, the court’s attitude had betrayed the judges’ reluctance to entertain the petition. They dismissed it and unanimously found that Kenyatta had been validly elected. They found no fault with anything that the electoral commission had done in the fresh election. NASA expressed sympathy with the court, saying that the judiciary had been intimidated but the judges too felt abandoned by the political players.

Kenyatta would be sworn in as president on 28 November 2017 at a stately but sparsely populated inauguration ceremony presided over by the Chief Justice. Would this judicial mea culpa suffice to heal the rift between the Judiciary and the Executive?

The full judgment, released on 11 December 2017, read in part: “The … petitioners have not discharged the burden of proof to the standard established by this Court. At no time, in our view, did the burden shift to the [first] and [second] respondents.”

The court tipped its hand by blaming the petitioners for the shortcomings of the IEBC. Although the petitioners made serious allegations against the IEBC and its capacity to conduct an election, in their ruling, the judges blamed the petitioners for failing to provide proof of the allegations.

The judges pointed to the disenfranchisement of a huge swathe of the country that did not vote on 26 October and, curiously, blamed it on the petitioners. This again shows that the judges seemed to treat the petitioners as if they had brought the petition as NASA proxies. The judgment noted that the violence that took place in certain areas where the election could not be held was promoted by the petitioners. The court’s judgment failed to create future disincentives for electoral fraud and malpractice.

Law scholar Muthomi Thiankolu has faulted the Supreme Court for failing to appreciate the informational asymmetry between the IEBC and potential petitioners. He argues that given this imbalance, the court ought to adopt an inquisitorial rather than an adversarial approach in proceedings.

The judges pointed to the disenfranchisement of a huge swathe of the country that did not vote on 26 October and, curiously, blamed it on the petitioners. This again shows that the judges seemed to treat the petitioners as if they had brought the petition as NASA proxies. The judgment noted that the violence that took place in certain areas where the election could not be held was promoted by the petitioners. The court’s judgment failed to create future disincentives for electoral fraud and malpractice.

In the 2013 petition, the Supreme Court had pronounced on the effect of a candidate withdrawing from a fresh election or dying after the nullification of an election; in such a case, a fresh poll having all the characteristics of a new election (such as fresh party nominations) would have to be held. In the November 2017 decision, the court walked away from that observation.

As Kenya marked its 55th anniversary of independence on 12 December 2017, the Judiciary was silently marking the end of its 60 days of independence.

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