On November 3, 2017, Kenya’s main opposition party, the National Super Alliance (NASA), spelt out to its supporters the names of three companies whose products they ought to boycott because of these companies’ association with the ruling Jubilee party. The three companies were: Safaricom, the giant money-minting mobile telecommunications company; Brookside Dairies, the largest milk-producing company in East and Central Africa; and Bidco Industries, one of the leading edible oil products manufacturer in this part of the world.
One month later, how has the embargo faired?
The better option?
Bina Wambui has been selling mobile phones’ airtime and sim cards for well over a decade in Nairobi’s city centre. She is an agent for both Safaricom and its main competitor Airtel. Her Charity Sweepstake-type kiosk is located on Moi Avenue, one of the busiest streets in the central business district. “Let me be honest with you,” she told this writer. “The boycott on Safaricom is definitely working. Does Baba (Raila Odinga) have shares in the company (Airtel)?” she asked me, half in jest. “His bonuses should be coming up well. Airtel has a lot to thank Raila for.”
“Let me be honest with you,” she told this writer. “The boycott on Safaricom is definitely working. Does Baba (Raila Odinga) have shares in the company (Airtel)?” she asked me, half in jest. “His bonuses should be coming up well. Airtel has a lot to thank Raila for.”
Bina told me that one of the biggest revenue streams for Safaricom remains the mobile money transfer service M-Pesa. The others are airtime for making voice calls and bundles for surfing the Internet. “My M-Pesa customers are still intact, but Safaricom customers for airtime and sim cards have dipped. I have sold more Airtel sim cards and airtime than at any other time,” she said.
On the day I went to interview her, she told me she had just received her day’s bonus from Airtel’s management. She did not divulge how much the bonus amounted to, but she said it was a good incentive for any Airtel agent who is keen on pushing sales. “An Airtel supervisor, not believing the money I am making in selling Airtel cards and airtime, came personally to see me at my kiosk,” said Bina. “I cannot complain. While my Safaricom sales have been fluctuating, my Airtel sales have been soaring. Should I call it a blessing in disguise?”
“I bank money every single day – money that I cannot dare venture out with from my kiosk. That should give you an inkling of the sales I make in a day.” Bina told me that mobile telecommunication products salespeople who operate in the central business district hold weekly meetings. “The story is the same from the rest of my colleagues: unprecedented booming Airtel sales. Now, the company is even giving a bonus for airtime sold apart from every sim card sold – even on the lowest airtime of 20 bob, you get a bonus.”
However, not all her Safaricom customers have jumped ship. “I will tell you why my M-Pesa customers are still with me: Airtel money transfer is very poor – it is inefficient and hopelessly disorganised and slow – its network is perpetually on a hang mode and if, by bad luck, you make a mistake, it takes between three to four days to sort out the problem. It is too much trouble for a supposedly cheaper money transfer system,” noted Bina. “If only Airtel would fix its money transfer issues, it would really give Safaricom a run for its money.”
A former senior Safaricom executive told me that the sprawling Eastleigh “town” or “little Mogadishu” – so named because of its large Somali population – together with the famous Kibera slum represent the largest Safaricom markets in Nairobi city. Between them, they generate for Safaricom millions of shillings in profits.
“Eastleigh might not be the best place to gauge whether the Kenyatta family’s products are faring well or not,” he said. “There has been a deliberate effort by hoteliers and restauranteurs in Eastleigh and elsewhere where there are food outlets to promote camel milk.”
Eastleigh – which is today a commercial hub of every imaginable type of business, as well as humungous residential estates and three-star hotels – has some of the biggest and busiest Safaricom shops anywhere in the country as well as small retail traders and street vendors hawking airtime and sim cards. My random check on the impact of the Safaricom boycott showed that Airtel had increased its airtime and sim cards sales in this area.
Near the famous Garissa Lodge shopping mall, a woman was selling Safaricom and Airtel airtime from the boot of her car. “Do I need to answer your question of whether the boycott is working?” she asked me. In the fifteen minutes I watched her mostly sell sim cards, only one asked for a Safaricom line; the rest all bought Airtel lines. “Some of my new customers have been forthright on why they are buying new Airtel cards – they are responding to the boycott/resist call,” while keeping their Safaricom lines, said the saleslady.
Ahmed, who I met in Eastleigh, told me that he had recently bought an Airtel card, “because I decided to heed Raila’s call of boycotting some of these consumer products. But I will be honest with you: I will not abandon my Safaricom card – I need it for my M-Pesa transactions. He did not give us a viable option, Airtel is not the option for now – its network system for money transfer is hopelessly inefficient. If Airtel would improve on its money transfer system, I would be the first one to move.”
Airtel has been recruiting massively to beef up the number of its agents countrywide. “One of Airtel’s weakest marketing link has been its inadequate agents to push their products,” said Peter Achayo, a marketing consultant. “Now they have begun advertising aggressively in Nairobi and the other major towns. It is evident they are experiencing a windfall.” Achayo said that part of the reason why Safaricom has been successful is because of its army of agents nationwide. “Agents give your products visibility and generate market competition, which ensures your products are moving fast.”
Like Bina, the saleslady at Garissa Lodge said that the Airtel money transfer system was grossly incompetent. “That is why many people who would gladly want to wholly migrate to Airtel will not: what they are doing is keeping their Safaricom sim card intact specifically for M-Pesa transactions and buying a cheaper non-smartphone phone for their Airtel line.”
Achayo said he had been conducting an impromptu survey to gauge to what extent people had moved from Safaricom to Airtel. “The entire WhatsApp NASA fraternities have changed their mobile numbers to Airtel. I have gone through nearly all the Opposition coalition groups’ on social media, which have members running into their thousands – Airtel fell on a windfall, like manna from heaven, without spending a penny doing any marketing promotion. Safaricom may pretend the shift, however slight it may be, has not affected them, but it sure like hell is feeling the heat.”
Six years ago, Gor Mahia Football Club, named after the famous Luo medicine man and magician, was looking for a sponsor after Brookside Dairy terminated its contract with the club after two years. The premier league soccer club with a fan base across Kenya, whose base support lies among the passionate Luo people, sought Safaricom’s sponsorship.
“My customers warned me I would be playing with fire if they found me selling Brookside. They have formed a vigilante group made of youths who are now moving from shop to shop to detect who is flouting the boycott.”
Its argument was simple and straightforward: We are a leading football club in Kenya and our major colour is green, which is also the brand colour of Safaricom. The club’s management argued that if Safaricom sponsors them, it would be a win-win for both: Safaricom would enjoy enhanced visibility with the green and white matching colours of the two brands, while the club would gain access to much needed financial help. Safaricom dithered and did not consider the offer.
“Safaricom is today regretting not jumping at the offer,” whispered a senior sales and marketing manager at the telecommunications company. Faced with a marketing boycott, the company is now facing the threat of a dent in its profits and market share, which could result in a collision with its major shareholders. Safaricom has been mulling over how to now approach Gor Mahia.
The company is in a dilemma: If they show interest now, it will be obvious they are responding to the boycott and the club may call its bluff and embarrass the company. If they continue dithering, without trying to woo the club, whose supporters are as passionate about football as they are about the opposition and its leader Raila Odinga, they may lose a chance to salvage their company’s reputation. The manager admitted that if Safaricom had agreed to sponsor the club, it would have been difficult and perhaps unlikely that Raila would have asked his supporters to boycott its products.
Camel milk in your tea?
Ahmed invited me for tea in one of the many Eastleigh restaurants that offer exquisite mouth-watering Somali cuisine. It provided me with the perfect opportunity to also ask him whether Eastleigh residents were boycotting Brookside Dairies’ milk. “Personally I take tea made with camel milk – it’s the best nutritionally and it is not overly skimmed,” Ahmed replied. He added that many Somali restaurants were increasingly turning to using camel milk in tea. “Eastleigh might not be the best place to gauge whether the Kenyatta family’s products are faring well or not,” he said. “There has been a deliberate effort by hoteliers and restauranteurs in Eastleigh and elsewhere where there are food outlets to promote camel milk.”
Camel milk is brought to Nairobi in trucks daily from Ilbisil, Isinya, Kitengela and Namanga towns where camel farming, specifically for milk production, is booming business. The milk is distributed to various hotels and restaurants in Eastleigh as well as in Nairobi’s central business district. Increasingly, camel tea is becoming popularly as an alternative to the usual cow milk that Kenyans are used to. A couple of years ago, if you had told Kenyans that camel milk was a practical alternative to what they are used to, they would have smirked, but today it is even sold in supermarkets.
Ahmed, who holds a PhD in Business Administration, told me people only change their habits when they are offered viable options that work just as well, or better. “As of now, Airtel is not that option, so naturally and ordinarily, what people do is such situations is they fall back to what is predictable and what they know best.”
The camel milk option among Kenyans will, in the fullness of time, become an acquired taste, said Ahmed, because just as cow milk is an acquired taste, so too is camel milk. In any case, what cow milk offers, camel milk can offer too, if not better in terms of nutritional value and taste.
Eastmatt Supermarket is a mwananchi (common man’s) shoppers’ departmental store that has three outlets in the central business district. The biggest one is on Tom Mboya Street, across from the Nairobi County Fire Station. Every day before 9.00 a.m., the supermarket receives 100 crates of Brookside Dairies milk products, namely, Brookside, Delamere, Ilara, Molo and Tuzo. A couple of years ago, Brookside Dairies, which is owned by the Kenyatta family, bought out Delamere Milk, which was formerly owned by the Delamere family that is domiciled at Elementaita in Naivasha.
A supervisor told this writer that the supermarket receives 20 crates each of each brand, that is, a total 100 crates every day. Each crate has 18 packets of milk, so it receive 1,800 packets of Brookside products daily. On a good day almost all the packets are sold.
However, in the days following NASA’s announcement of the boycott – which was aimed at hurting the Kenyatta family and its scion President Uhuru Kenyatta – the supermarket was left with a lot of unsold milk. Since the milk has an expiry date, it is the shelf manager’s job to ensure that all unsold milk approaching its expiry date (most expiry dates last three days) is returned to the company.
“Our sales seems to have stabilised somewhat, the boycott now is not as biting,” said the supervisor. Normally, by 8.30 p.m., the sales figures are reconciled and summed up. The day I visited the supermarket, the supervisor said they had 10 unsold crates. That month, Brookside had chosen to rebranded the Ilara brand. When I asked the shelf manager why Ilara milk had been repackaged, he was coy with the answer, only saying, “The company is responding to market demands.”
But if Brookside Dairies’ products have been jolted in the supermarkets, it is in the small retail outlets that the company has faced its greatest challenge. In the slums of Nairobi, from Baba Dogo, Gomongo, Huruma, Kibera to Kariobangi North, Mathare to Mlango Kubwa, Mukuru kwa Reuben, Lucky Summer and Riverside, shopkeepers have been warned to stock Brookside milk at their own risk. People in these areas, who make up NASA supporters in great numbers, have completely boycotted the milk.
Japwoyo, a shopkeeper in Kibera, near Ayany estate, the bastion of Raila’s support in Nairobi, said he had stopped accepting Brookside milk from his distributors. “My customers warned me I would be playing with fire if they found me selling Brookside. They have formed a vigilante group made of youths who are now moving from shop to shop to detect who is flouting the boycott.” Japwoyo said even the Brookside distributors are no longer bringing milk to Kibera in their lorries. “One distributor escaped with his dear life after he was accosted by the vigilante one early morning. He pleaded with them not harm him, and to take the milk and not burn his van. They obeyed, but just this one time.”
“Why Lato is sold in Kenya is ostensibly because Museveni and Brookside Dairies entered into a deal: The Kenyatta family is allowed to access the Uganda market, in return, Lato is allowed to penetrate the lucrative Kenyan market. It was a deal between two business entities and has got nothing to do with a bilateral agreement between two countries,” said my Ugandan friend.
In Kibera, people have taken to Lato milk. Lato is from Uganda and it has both fresh and the long life UHT (Ultra Heat Treatment) milk brands. Although it is manufactured all the way in Mbarara town in western Uganda, Lato UHT milk is 10 shillings cheaper than Brookside UHT. I called my friend from Mpigi in Uganda and enquired about Lato milk. She told me Lato was supposedly produced by President Yoweri Museveni’s company.
“Apart from keeping the cultural and traditional long horned Ankole cows, Museveni also keeps dairy cows in Mbarara. Why Lato is sold in Kenya is ostensibly because Museveni and Brookside Dairies entered into a deal: The Kenyatta family is allowed to access the Uganda market, in return, Lato is allowed to penetrate the lucrative Kenyan market. It was a deal between two business entities and has got nothing to do with a bilateral agreement between two countries,” said my Ugandan friend.
Jack Oduor, who lives in Riverside estate – which is ensconced between Mathare North and Baba Dogo – told me that Lato was selling like hot cakes in these adjoining areas. “My shopkeeper at Riverside is a guy from the Jubilee supporting community. He was warned not to annoy the residents by stocking Brookside milk. The shopkeeper had to extend the warning to his distributors.”
In Riverside, Mathare North, Baba Dogo and Lucky Summer, sales of Brookside milk have suffered, said Jack, who has been doing his own random survey in these areas to find out whether the boycott has been effective. “The truth of the matter is the boycott has been biting,” said Jack. “In these areas, there are boycott vigilante youth groups, whose task is to ensure that Brookside milk is not sold in the shops.”
Just for the record, the boycott is not only confined to Nairobi’s ghettoes. Dan Shikanda, who was Peter Kenneth’s running mate in the city’s gubernatorial election in August, lives and runs a shop in Nyayo estate, a middle-class suburb in Embakasi area, 12km southeast of Nairobi. Once a famous footballer who played for AFC Leopards, Shikanda is also a medical doctor-cum-politician. Shikanda’s customers in the larger Nyayo estate told him that if he wanted to keep them as his loyal customers, he should “re-stock” his shop. Translation: Do not sell Brookside milk.
“Like Airtel, Pwani Oil, Kapa Oil Refineries and Menegai Oil companies have Raila to thank,” said a Bidco sales and marketing manager, who requested anonymity to safeguard his job. “Let me tell you just how bad things are at Bidco: The company has had to do two things quickly to reposition itself: suspend the launch of a new product and do something that we have never done before – enter into sports sponsorship.”
In other multi-cultural and multi-ethnic suburban areas like Buru Buru, Donholm, Umoja, Jacaranda, Greenview Innercore, all in Eastlands, plus Kitengela and Ongata Rongai in Kajiado County, shoppers have found a way to boycott, Safaricom, Brookside and Bidco companies’ products. “We have gone ethnic: we Luhyas in Buru Buru Phase 1 have opted to buy from our Luhya shopkeepers, because we know they will not stock these products. The same goes for the Kisiis and Kambas.” In Kitengela and Ongata areas, where the Kisii diaspora mostly live, my friends in those areas told said that it is a strategy they had also opted for: “Just buying from shopkeepers from our own ethnic communities.”
These boycott warnings are not without their dire consequences. Three weeks ago in Mbita, Homa Bay County, a Brookside milk distributor was nearly lynched for showing up with his canter truck. Confronted by a rowdy vigilante mob, the driver, a Luo, was spared his life because he spoke the youth’s language. Evans Otieno, who runs a retail shop at Katitu on the Katitu-Kendu Bay Road opposite the Sondu Miriu power plant, told me that what saved the distributor’s life was that he was one of their own. “But he was given a stern warning not to be seen distributing Brookside milk in that area.” Of course, the vigilantes emptied the canter truck of all its milk. Otieno himself received the same warning from the vigilante youth group: “I cannot sell or stock Brookside milk.”
Brookside Dairy not only sells fresh and long shelf life milk, but each of its five brands have an accompanying yoghurt product: so there is Brookside Yoghurt, Delamere Yoghurt, Ilara Yoghurt, Molo Yoghurt, and Tuzo Yoghurt. Brookside Dairies’ yoghurt products have not also been spared the boycott – and nowhere has this been felt more than on the Nakuru-Naivasha Highway.
This highway is mostly used by long-distance buses and shuttles going to western Kenya and all the way to the Kenya-Uganda-Tanzania borders. Many of the travellers are destined for Busia, Bungoma, Homa Bay, Kakamega, Kisumu, Kisii, Kitale, Luanda, Malaba, Mbale, Migori, Oyugis and Rongo, among other smaller towns. In western Kenya, these towns form the bedrock of NASA’s support.
At the Gilgil weigh bridge 110km from Nairobi city centre, the buses and the shuttles have to slow down as they file in a queue as the 24-wheel trucks get weighed. Over time, the toll station and weigh bridge have become places that sell Delamare yoghurt and other Brookside yoghurts. Roving yoghurt traders and hawkers have become famous at this Gilgil weigh bridge stop, where they usually do roaring business selling cold fresh yoghurts to travellers. But since the boycott, the hawkers have decried their plummeting sales. “The travellers have been boycotting the yoghurts,” said Edward Okul who lives in Nakuru, and who plies that route between Nairobi and Nakuru every week.
Bidco Industries, which has its main offices in Thika town in Kiambu County, has also been suffering as a result of the boycott. A market leader in manufacturing cooking oil (both liquid and solid) and laundry soaps – known in the consumer market as domestic consumables – Bidco is now having to contend with a sustained onslaught from other market competitors.
Bidco produces more than 10 brands of cooking oil, such as the popular Elianto, Gold Fry, Soya Gold and Yellow Gold and cooking fats aimed at low-income households, such as Chipsy, Chipo, Mallo, Kimbo and Cowboy.
The boycott caught the company flatfooted. “Like Airtel, Pwani Oil, Kapa Oil Refineries and Menegai Oil companies have Raila to thank,” said a Bidco sales and marketing manager, who requested anonymity to safeguard his job. “Let me tell you just how bad things are at Bidco: The company has had to do two things quickly to reposition itself: suspend the launch of a new product and do something that we have never done before – enter into sports sponsorship.”
In the face of a sudden stiff competition amid a dipping market, Bidco Industries halted the launch of a carbonated drink that was to be unleashed in this quarter of the festive season. It also entered into a sports sponsorship deal with the rugby team Kenya Sevens.”
Bidco Industries has divided its Kenya market into three regions: Nairobi, western and coast regions. “All the regions are suffering,” said the manager, who oversees one of the regions. But your guess is as good as mine about which regions are suffering most, Coast and western regions, of course.”
Just after the announcement of the boycott, the sole distributor of Bidco products in western Kenya pulled out. Junet Mohammed, the MP for Suna East constituency in Migori, a great friend and supporter of Raila Odinga, said he could not continue with the distribution no matter however lucrative it was.
The western region begins at Flyover 60kms from Nairobi city centre and covers the region that stretches all the way to Busia, Malaba (Kenya-Uganda border) and Sirare (Kenya-Tanzania) border towns. This market, particularly, the fried fish business mainly concentrated on the Busia-Muhuru Bay along Lake Victoria – commonly knowns as the fish belt market – is key to Bidco Industries’ sales of its cooking oil products. “The fried fish business run by women is big time in western Kenya. Bidco had managed to convince the women that we have the best cooking oil for frying fish,’ said the Bidco manager.
Just after the announcement of the boycott, the sole distributor of Bidco products in western Kenya pulled out. Junet Mohammed, the MP for Suna East constituency in Migori, a great friend and supporter of Raila Odinga, said he could not continue with the distribution no matter however lucrative it was. He recalled all his trucks, which today are packed back in Migori town, which has been his home since the family emigrated from the border town of Mandera 30 years ago. “Our competitors are zeroing in hard and quick on us. It is a huge market that no company can afford to lose,” admitted the Bidco manager.
The same story is replicating itself in the coast where Bidco oils have been used to fry fish and make mahamri, a sweet doughnut that is popular in the region. Bidco’s woes are accentuated by the fact that Pwani Oil and Kapa Oil Refineries are based in Mombasa. Pwani Oil products include Fresh Fri, Fry Mate, Mpishi poa and Salit, while Kapa Oil Refineries manufactures Rina. “Bidco is seriously thinking of revising its prices in the hard hit regions as a way of stemming the slipping market to the competitors,” said the manager.
In Nairobi’s slums, most Bidco oil products are also used by traders who make chapati, fry chips, mandazi (a delicacy similar to mahamri) and fish. “These chapatis, chips and mandazi are daily delicacies that are consumed by low-income people at very friendly prices, so what we did, we tailored a cooking fat that is cost effective,” said the manager. “We had penetrated this market – from the frying fish business of Gikomba Market to these feisty small time traders of Congo, Kariobangi, Korogocho, Kibera, Mathare and Mukuru slums.”
It is still too early to conclusively tell if the boycott, called barely a month ago, has thrown these companies’ products off-balance. But as Ahmed of Eastleigh reminded me, habits are acquired and learned and people can be taught to appreciate new tastes.
ALL THE PRESIDENT’S MEN: Uhuru Kenyatta’s proposed Cabinet raises serious constitutional and legal questions
On January 5, 2017 President Uhuru Kenyatta started the process of constituting his second-term Cabinet by naming some of his nominees. The President’s announcement is unusual in two significant respects. First, it was a partial list; he only announced nine nominees even though the Constitution demands a minimum of 14 and allows him to name up to 22 Cabinet Secretaries (his last Cabinet had 18).
Second, the President said he was “retaining” some Cabinet Secretaries and as such he would not be sending the names of all his Cabinet nominees to the National Assembly for vetting. His statement implied an existing Cabinet whose term continued uninterrupted through the 2017 general elections even though a December 2015 High Court decision held that the tenure of all appointed members of Cabinet ended on August 8, 2017. In attempting to retain some members of the previous Cabinet and exempting them from National Assembly approval, President Kenyatta is acting in contravention of the High Court judgment and the law. (It is also interesting to note that all the Cabinet Secretaries that the President “retained” are men, which also raises the issue of gender parity, which the Constitution explicitly encourages.)
Nominating Cabinet Secretaries and constituting a Cabinet is a constitutional obligation of the President contained in Articles 129, 130, 131 and 132. Article 152(1) defines the Cabinet as the President, the Deputy President, the Attorney General and not fewer than fourteen and not more than twenty-two Cabinet Secretaries. Note also that Article 152(1) provides that there shall be a “minimum” number of Cabinet Secretaries, indicating that the President has no discretion to have zero or no Cabinet Secretaries. The constituting of a Cabinet is, therefore, a mandatory function of the President, which must be performed as required by the Constitution.
In attempting to retain some members of the previous Cabinet and exempting them from National Assembly approval, President Kenyatta is acting in contravention of the High Court judgment and the law.
Article 129 of the Constitution provides that all “executive authority is derived from the people of Kenya and shall be exercised only in accordance with this Constitution.” This provision reminds the executive that executive power is delegated and has limited authority: it is delegated by the people and may not be legally exercised outside of the limits set by Constitution.
Article 130 defines the national executive as including the President, the Deputy President and “the rest of the Cabinet”, thereby emphasising that the Cabinet is integral to the national executive. Article 131 provides that the president exercises executive authority “with the assistance of the Deputy President and Cabinet Secretaries”, emphasising the necessity of the Cabinet as an instrument for the exercise of executive authority. Additionally, Articles 131(2a) and 131(2e) obligate the President to respect and uphold the Constitution and ensure the “rule of law”.
Furthermore, Article 132(2) explicitly vests powers to appoint the Cabinet in the President, providing that s/he “shall nominate, and with the approval of the National Assembly, appoint” Cabinet Secretaries in accordance with Article 152.
So, while the President has the power to nominate he cannot, without the approval of the National Assembly, appoint anyone to the Cabinet. In establishing the Cabinet, the President must follow the process in the Constitution and in law, which includes relevant judicial decisions.
Judicial decisions regarding the process of constituting a Cabinet would, therefore, apply to the President as he undertakes this function. On December 20, 2016, the Constitutional and Human Rights Division of the High Court in Petition 566 of 2015 held that the Cabinet was unconstitutional, as its composition violated Article 27(8) of the Constitution that says that “the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender”.
The High Court was asked to address two issues: the constitutionality of the process of constituting Cabinet and of the composition of Cabinet. In addition to finding the Cabinet unconstitutional, the High Court found that “the actions of the President and the National Assembly…in nominating, approving and appointing the Cabinet” were unconstitutional. As such, the process of establishing the Cabinet and the resulting Cabinet were both declared unconstitutional.
Nothing precludes the President from naming all, some or none of the members of the previous Cabinet; however, all proposed members of the Cabinet, other than the Deputy President, must be nominated again and their names must be submitted to the National Assembly for approval prior to their appointment.
However, the High Court, citing public interest, suspended the judgement for “a period of eight months or until such a time a new Cabinet will be constituted either by the present government or by the new government to be elected into office in August 2017.” The effect of this judgement was that it provided temporary legal permission for the Cabinet’s continued existence, with such permission set to automatically expire if the President named a new Cabinet or if a general election was held.
Therefore, the term for all appointive members of the Cabinet ended on August 8, 2017 by judicial order. As such, the President must, by law, name all appointive members of his proposed Cabinet afresh (a minimum of 15 and a maximum of 26, including the Attorney General). Nothing precludes the President from naming all, some or none of the members of the previous Cabinet; however, all proposed members of the Cabinet, other than the Deputy President, must be nominated again and their names must be submitted to the National Assembly for approval prior to their appointment.
The decision of the High Court in Petition 566 of 2015 found that both the President and National Assembly had violated their obligations in the process of constituting a Cabinet (nominating, approving and appointing the last Cabinet). The High Court, in holding that the National Assembly had failed to perform its role in approving Cabinet nominees, found that the National Assembly must “…apply a strict scrutiny in approving of any action of the executive and where the action involves appointment to public posts a most searching examination in all aspects must be invoked by the National Assembly.” Therefore, the National Assembly cannot be a rubber stamp of Presidential nominees but must exercise the highest legal standard in the vetting and approval, or rejection, of executive nominees.
The President hasn’t violated the law by providing only a partial list of nominees. However, by failing to submit the names of all proposed Cabinet nominees to the National Assembly for approval, and asserting the existence of a valid Cabinet after August 8, 2017, the President is acting in deliberate contravention of the Constitution and the law.
The High Court was explicit that in some cases it is the role of the National Assembly to correct the President: “The National Assembly must exercise that perfect overseer role and tap the President on the shoulder where he is about to slip.” The National Assembly, therefore, has a constitutional obligation to remind the President that all proposed nominees must undergo the entire process of nomination, vetting and approval by the National Assembly prior to their appointment. In addition, the High Court clarified that the National Assembly must reject a proposed Cabinet whose composition would violate the law.
The President hasn’t violated the law by providing only a partial list of nominees. However, by failing to submit the names of all proposed Cabinet nominees to the National Assembly for approval, and asserting the existence of a valid Cabinet after August 8, 2017, the President is acting in deliberate contravention of the Constitution and the law. These actions are especially worrisome considering the opposition’s refusal to recognise the President as legitimately elected. By his actions, the President is providing additional reasons for challenging his legitimacy.
With his announcement, the President has sent important political and legal messages about his second term. It is surprising he is trying to evade the National Assembly given the Jubilee Party enjoys a majority in both houses of Parliament. It would appear that, despite a parliamentary majority, the President is not confident that his nominees will be confirmed by the National Assembly. This anxiety may stem from Jubilee party politics, including the jostling for the 2022 succession, and betrays fears that these intra-party conflicts would play out in the National Assembly approval process. It is also possible that the President may be concerned about the opposition’s ability to utilise parliamentary processes to delay, block or undermine the eventual approval of his Cabinet nominees.
It would appear that, despite a parliamentary majority, the President is not confident that his nominees will be confirmed by the National Assembly.
For an administration whose legitimacy ultimately rests on a judicial decision, the President’s wilful disregard of a court order is also evidence that the battle with the Judiciary continues. It is an assertion of executive exceptionalism saying that the decisions and actions of the President and executive are effectively beyond judicial review. It is troubling that the President isn’t averse to confrontation with the judicial branch, and courting constitutional crises, given the just concluded experiences of the electoral period and the ongoing political uncertainty.
The message is clear: This is not business as usual. If successful, the attempt by the President to bypass Parliament and nominate and appoint a Cabinet in contravention of the Constitution would result in the imposition of an unconstitutional and illegitimate national executive.
An unconstitutional national executive would create unprecedented uncertainty as to the legality of its national and international actions. It would also exacerbate existing political conflicts while signalling to other parties that it is acceptable to resort to extra-constitutional means to resolve political and other conflicts.
By wilfully weakening so many institutions – the Judiciary, the Cabinet, the National Assembly and the Constitution – in a single swoop, the executive is potentially triggering a cycle of political conflict and social instability.
Unchecked, the failure by the President and the National Assembly to accept the constitutional limitations of their authority will lay the foundation for a systematic breakdown in the rule of law. By wilfully weakening so many institutions – the Judiciary, the Cabinet, the National Assembly and the Constitution – in a single swoop, the executive is potentially triggering a cycle of political conflict and social instability. The President and the National Assembly would be best advised to reverse the current course and ensure strict compliance with the Constitution in the process of establishing a new Cabinet.
 The August 8, 2017 presidential election was nullified by the Supreme Court on September 1, 2017. Uhuru Kenyatta won the subsequent election on October 26, 2017. This election was also challenged but this time the Supreme Court, on November 14, 2017, upheld his election paving the way for his assumption of office on November 28, 2017.
(D)EVOLVED HEALTHCARE: Makueni’s trailblazing experiment in providing universal health coverage
Universal health coverage is by many measures considered to be the Holy Grail of delivering quality healthcare. In fact, achieving universal health coverage by 2030 – ensuring that all people have access to the health services they need without the risk of financial hardship – was included as part of the Sustainable Development Goals (SDGs) adopted by the United Nations in 2015. Writing a year later, Marie-Paule Kieny, Assistant Director-General at the World Health Organization (WHO), described it as “the linchpin of the health-related SDGs; the one target that, if achieved, will help deliver all the others by providing both population- and person-centred high-quality services that are free at the point of delivery and designed to meet the realities of different people’s lives.” WHO estimates that about 150 million people around the world suffer financial catastrophe annually from out-of-pocket expenditure on health services, while 100 million people are pushed below the poverty line.
According to the 2013 Kenya Household Health Expenditure and Utilisation Survey, medical expenses account for more than 40 per cent of non-food bills in over half the counties in the country.
In Kenya, though access to quality healthcare is a constitutional right, the scarcity of quality public and private health facilities, as well as the high cost of care even when it is available, means that universal health coverage remains little more than words on paper for much of the population. President Uhuru Kenyatta has made achieving universal health coverage by 2022 a major part of his second term agenda and indicated in his inauguration speech that this would be achieved by expanding coverage under the National Health Insurance Fund (NHIF). The president said that half a century after it was established in 1966, the Fund has only attracted 6.8 million beneficiaries. The World Bank estimates that only a fifth of Kenyans have any sort of medical cover, which means that as many as 35 million Kenyans are vulnerable to the financial devastation occasioned by a medical emergency.
Related stories: Behind the Makueni Healthcare Revolution
When illness eventually strikes, it takes a huge financial toll. According to the 2013 Kenya Household Health Expenditure and Utilisation Survey, medical expenses account for more than 40 per cent of non-food bills in over half the counties in the country. In fact, direct payments by citizens accounted for a third of the country’s total health expenditure in the same year, according to Dr. Izaaq Odongo, the head of the Department of Curative and Rehabilitative Health Services at the Ministry of Health, with the balance being made up by government (36 per cent), donors (20 perc ent) and employers (10 per cent). As a result, many Kenyans are forced to resort to selling off property, relying on networks of relatives and friends, or even making desperate appeals on social media to raise the necessary funds. Hence the large, and seemingly never-ending appeals all Kenyans make when clearing medical bills. Despite this, according World Bank Country Director, Diarietou Gaye, the number of those thrust into poverty by medical expenses is close to one million.
Kenya’s network of public healthcare facilities has traditionally been hierarchically organised into 6 levels, with the lowest unit being community health workers embedded within communities. At level 2, dispensaries and clinics provide the link between community-based healthcare and the formal health system. Together with level 3 facilities – health centres, maternity clinics and nursing homes – these make up the primary healthcare units. Levels 4-6 are sub-county, county and national referral hospitals. It is at the lower levels that the majority of people interact with the healthcare system and it especially at the primary healthcare facilities that national government interventions with regard to cost have been most consequential.
Since independence, Kenya has blown hot and cold on the abolition of user fees and decentralisation, both of which, given the economic circumstances of most Kenyans as well as the devolution introduced by the 2010 constitution, are prerequisites for universal health coverage. In 1965, according to the paper “Reforming health systems: The role of NGOs in decentralization – lessons from Kenya and Ethiopia by Richard G. Wamai of the Harvard School of Public Health, “a free access policy abolished the KSh5 co-payment operative in the colonial healthcare system… [and] proposed expanding coverage through centralizing the delivery responsibilities from the counties and municipalities to the Ministry of Health”. Eighteen years later, the provision of health services was again decentralised as part of the District Focus for Rural Development programme and in December 1989, user fees were reintroduced in an effort to inject money into crumbling health facilities. The “cost-sharing” programme was part of a comprehensive health financing strategy that also included social insurance, efficiency measures and private sector development. The fees would, the argument went, generate additional revenue, incentivise use of low-cost primary healthcare services rather than the more expensive referral facilities and improve targeting of resources by reducing unnecessary demand.
Still, implementation problems led to the suspension of the policy less than a year later though it was gradually reintroduced in 1991. A 1996 study found that despite revenue increases and facilities being allowed to budget for three-quarters of the money they remitted to the districts, this did not necessarily result in improved quality of care because the funds were used to offset a fall in government funding for basic care. As evidence mounted that despite a waiver policy to protect the poor and children under five, user fees were proving to be a significant barrier to access, the government – in what came to be known as the 10/20 policy – again reversed course and in 2004 eliminated all fees in dispensaries and health centres, save for a minimum registration fee of KSh10 and KSh20, respectively. By 2007, it had instituted a maternity waiver allowing for free deliveries in public health facilities and introduced the Health Sector Service Fund (HSSF) to compensate these facilities for lost revenue.
Since October 2014, Makueni has been offering its one million residents free healthcare across all its public facilities, including county and sub-county hospitals.
However, as a study published in 2015 showed, this was largely ignored by health facilities for whom user fees represented almost all the cash income they used to cover basic operating costs. As a result, most patients ended up being charged for more than the specified amount while very few received waivers. In 2013, the government abolished all user fees in public dispensaries and health centres and allocated KSh 700 million to the HSSF.
The picture was further complicated by the fact that health is one of the services devolved by the 2010 constitution. This means that while the national government is still responsible for policy and managing two Level 5 referral facilities, namely, the Kenyatta National Hospital and the Moi Teaching and Referral Hospital, the bulk of public healthcare in Kenya is delivered in facilities run by county governments. A history of skewed investment that marginalised some counties, as well as the lack of policy coordination between the various counties and between the counties and the national government, have left a rather confused picture of access to healthcare across the country.
There have, however, been some wins. For the first time since independence, residents of historically marginalised counties, such as Lamu and Mandera, now have access to Caesarean section procedures within their county. There have been problems too: from the controversy arising from the national government forcing counties to lease equipment they neither wanted nor had the resources to use, to ambulance purchases that seemed more about burnishing a governors’ image than delivering care to constituents, to the First Lady’s much trumpeted Beyond Zero initiative that today is in shambles, with many of the facilities either abandoned or turning patients away.
The Makueni model
Nonetheless, an ambitious experiment in the provision of universal health coverage is underway in Makueni, a county that borders Kajiado, Machakos, Kitui and Taita-Taveta counties. Since October 2014, Makueni has been offering its one million residents free healthcare across all its public facilities, including county and sub-county hospitals. It is a model well worth examining if President Kenyatta is serious about expanding access to medical care across the country.
“When we took over in 2013, we realised that 40 per cent of the people of Makueni would sell land and exhaust family income to pay medical bills for relatives,” says Makueni’s Governor, Prof. Kivutha Kibwana. Given that medical services in dispensaries and health centres were already free and paid for by the national government, the county government figured that if it doubled the 100 million that its Level 4 sub-county hospitals were collecting in user fees, it could offer free, across the board healthcare to its residents.
Thus MakueniCare, as the county government has labelled it, was conceived. It piggybacks on the national government’s free primary healthcare policy and the national coverage provided by NHIF to plug the gap in between with the aim of providing seamless cover across all public health services.
Thus, for an annual subscription of KSh500 per household, which covers parents and all their children under the age of 18 years (or up to 24 years in case of students), Makueni residents can access free primary healthcare at dispensaries and health centres courtesy of the national government, free treatment, including inpatient care and ambulatory services, at the 13 level 4 hospitals within the county paid for by the county government, and, if they’re subscribed to NHIF, free care at referral facilities outside the county. The Level 4 hospitals provide free care and bill the county government, which also supplies them as well as the primary healthcare facilities with drugs, equipment and medical staff.
However, universal health coverage is more than eliminating out-of-pocket expenditure; it is also about ensuring access to healthcare. According to Dr. Cyrus Matheka, the head of the county’s Health Promotion Services, MakueniCare took two years to plan and was preceded and piloted by a programme offering free care to those over the age of 65 without a requirement for registration. Within that time, the county government invested in expanding facilities, from dispensaries and health centres to sub-county hospitals, and has continued to do so. In under five years, it has more than doubled the number of health facilities built by the colonial and national governments over the last 50 years. Apart from an additional 113 dispensaries and health centers, the county now boasts 13 Level 4 hospitals and has employed 160 doctors, compared to just 38 doctors and 3 hospitals in 2013. At KSh2.3 billion, health is the county’s single largest budget item.
All this means that the county can offer a wide array of free services to residents, from hospital admission, surgical procedures, X-ray imaging, laboratory testing, to dental and counselling services. Even in death, patients benefit from 10 days of free mortuary services. However, the cover does not apply to specialised care and equipment that are not available at the hospitals, including dialysis for patients suffering from kidney failure, intensive care units, implants, as well as auxiliary devices, such as wheelchairs.
Insurance schemes are essentially funds where people pay into a pool when they are healthy – in this case through both taxes and direct contributions – which they can draw on when sick. The Makueni recruitment model reversed this, thus courting adverse selection, or the tendency of people to get insurance only when they are seriously sick, which can consume huge resources.
Dr. Andrew Mutava Mulwa, the County Minister of Health, estimates that MakueniCare covers at least 93 per cent of the county’s healthcare needs. He says it is built on a platform of ensuring adequate provision of primary care by increasing facilities, improving services and ensuring that medicines are available. “Someone who is sorted at the dispensary will not find their way to the hospital,” he says, adding that only 35 per cent of patients in Makueni need to seek care in the secondary institutions covered by MakueniCare or in tertiary referral facilities outside the county.
However, the programme has had its share of challenges. The first, rather surprisingly, was low uptake. In March last year, when The Elephant visited Makueni, less than 10,000 households had signed up for the programme out of a potential 200,000. The scheme had a mere 30,000 beneficiaries. Part of the reason for this was the decisions taken to make the coverage voluntary, to register subscribers at county hospitals when they sought care and to make the cover active immediately upon registration and payment. Initially there did not seem to be much of a public campaign to get residents to register: there were no posters announcing the programme in all the hospitals The Elephant visited and, despite officials claiming to advertise on vernacular radio, most residents we spoke to had not heard about MakueniCare.
Julia Musau of Kaselia village, who we met at the Tawa Sub-County Hospital, is a typical case. She had been unaware of the scheme until a month prior to our visit. She found out about it after she took a patient to the Makueni General Hospital in Wote, and had difficulty settling the bill. It was another woman whose child had been admitted there who told her about MakueniCare. That was when she enrolled her family immediately.
However, even those who know about it opt to wait till they or their dependents get ill to register since there is no penalty as the cover is activated immediately and registration is done at the hospitals, anyway. This made registration vulnerable to industrial action by medical personnel. For example, during the nationwide strikes, first by doctors and then nurses, fewer people went to the hospitals as there was little expectation of receiving care. In any case, According to Dr. Matheka, less than 5 per cent of the county’s population seeks medical care at any one time, and many of these are over the age of 65, a group that already enjoys free care. This means registration will inevitably be slow unless there is a serious epidemic.
The Makueni model also faces other challenges. Insurance schemes are essentially funds where people pay into a pool when they are healthy – in this case through both taxes and direct contributions – which they can draw on when sick. The Makueni recruitment model reversed this, thus courting adverse selection, or the tendency of people to get insurance only when they are seriously sick, which can consume huge resources. This brings into question the sustainability of the programme. However, in more recent times, according to Wambua Kawive, a former Makueni County Minister, the county government has ramped up its recruitment efforts and has now launched a mass registration exercise targeting 100,000 registrations by the end of the year.
Another challenge the system needed to cope with was an initial influx of patients into hospitals once the policy was implemented. Tawa Sub-County Hospital Administrator, Justus Kilonzo, told The Elephant that the workload at the hospital had increased, which necessitated the recruitment of more staff. Further, there has been an influx of people from neighbouring counties who sought to take advantage of the system. Geoffrey Kirui, the Health Administrative Officer at Makindu Hospital next to the busy Nairobi-Mombasa highway, spoke about having to filter out patients from other counties, especially Taita Taveta, Kajiado and Kitui. Still, trying to determine someone’s place of residence using identification cards, birth certificates and a ward administrator’s or chief’s letter is an inexact science and one gets the sense that this too was not well thought through.
MakueniCare also faces a hazard where, having paid the subscription, patients will head to the hospital for even minor complaints that can be addressed at lower levels, adding stresses to the system. They may also engage in risky behaviour knowing that there is the safety net of free care. Such behaviour may be inadvertently complemented by a shift in focus from preventative to curative care by hospitals seeking to generate more revenue and county officials seeking to make political hay from the scheme.
The latter is particularly important. It is crucial to note that MakueniCare is undergirded by an administrative structure that was created to deliver a different type of healthcare where users contributed directly. Suddenly eliminating such fees can have unintended deleterious effects on both the facilities and their ability to deliver quality services. One study on the effect of the removal of user fees found that although the revenue generated was generally low, it served to ensure that facilities met the costs of services and salaries for support staff not directly funded through the government’s budget.
There is also a legitimate fear that the political priority placed on MakueniCare may be diverting resources from primary and preventative care at the health centre and dispensary levels.
In Makueni, a doctor-turned-administrator who did not want to be named told The Elephant that MakueniCare had created a mismatch of skills, with doctors having to do administrative tasks rather than attend to patients. When MakueniCare was first proposed, the doctor told us, there was much resistance from hospitals, which were concerned about the lack of a clear system as well as lack of necessary training and preparation. “Why the rush to launch in October 2016?” asked the doctor, concluding that the timing had largely been influenced by the interests of county politicians vying in the August general election.
MakueniCare essentially transfers control over funds and decision-making away from hospitals to bureaucrats at county headquarters in Wote town. Hospitals not only have to worry about delays in receiving reimbursements for resources spent in providing care – which can happen if, for example, the national government delays disbursements to the county governments – but also about losing their largely autonomous decision-making power on the equipment they need to procure and the staff they need to recruit. Similarly, where and when new facilities are built may reflect more the political priorities of those running the county government rather than the genuine health needs of the populace. Lastly, as with all government-driven procurement decisions, the spectre of corruption is never far away.
There is also a legitimate fear that the political priority placed on MakueniCare may be diverting resources from primary and preventative care at the health centre and dispensary levels. Ilatu dispensary, which was built by the Kenya Pipeline Company and opened in March 2014, may be a case in point. In September 2015, the facility was handed over to the county government that provided staff and equipment. Adjacent to a settlement scheme, it is the busiest facility in Kibwezi West and offers outpatient, maternal and child health, family planning as well as HIV testing and counselling services. The staff of two nurses and one laboratory technologist attend to between 70 and 100 patients every day. The county government is upgrading it to a health centre and building a 40-bed inpatient facility.
Jacinta Mbula is the nurse in-charge. She says staffing and resources are big challenges. When The Elephant visited the facility, her fellow nurse was on maternity leave and she was running the facility on her own. She said that there is only enough accommodation for one nurse to stay at the facility and take care of overnight maternity cases, and that nurse still has to report to work the next day. Although they receive adequate supplies of essential medicines from the county government, they do sometimes run out of non-essential drugs.
Further, she only gets KSh60,000 – “peanuts” – every quarter from the county government to pay casual labourers and purchase essential supplies. She currently employs one casual worker and one watchman but says she actually needs – but cannot afford – two casuals and a groundsman to manage the 10-acre facility. And because it was not built by the national government, the dispensary is not entitled to access the HSSF, despite its workload, though other less busy facilities do. Ilatu does, however receive, as all facilities do, reimbursement from the national government for maternal deliveries –KSh2,500 each.
Dr. Matheka says the average distance to a health facility has been nearly halved, from 9km to 5km in the last 4 years. However, having more facilities will not necessarily improve health outcomes for the people of Makueni if the quality of care they provide begins to decline as a result of underinvestment.
So as the county keeps building more dispensaries and health centres, questions must be asked about whether underfunded facilities can truly serve as the bedrock for universal health coverage even though access has been improved. Dr. Matheka says the average distance to a health facility has been nearly halved, from 9km to 5km in the last 4 years. However, having more facilities will not necessarily improve health outcomes for the people of Makueni if the quality of care they provide begins to decline as a result of underinvestment. Further, especially as the county expands the number of Level 4 hospitals, one must wonder whether this is being done at the expense of funding primary healthcare.
Makueni officials say some of the potential pitfalls are ameliorated by enhancing public participation. Governor Kibwana says local committees of citizens participate in co-supervision of projects and must, along with technical people and administrators, give approval. This, Kawive asserts, removes politics from the equation and makes bureaucrats and hospital administrators directly accountable to citizens. While it is definitely a good idea to involve local communities, true accountability must be accompanied by real access to information as well as consequences for those who are implicated in wrongdoing.
Though MakueniCare faces its share of challenges, everyone The Elephant spoke with in Makueni who was aware of the programme was full of praise for its ambition, including those who were critical of its implementation. The fact is, as Kenya ponders the way to achieve universal health coverage, the country would do well to pay attention to the lessons from Makueni. The expansion of NHIF cover by itself will not suffice; the national government must work with county governments to outline a plan that creates a seamless spectrum of cover at every level of care and provides the necessary resources at the appropriate time.
Further, there should be horizontal cooperation among counties in providing healthcare and any plan must strive for equity but without punishing the counties that have taken serious strides. Criteria for eligibility for county programmes should be clearly spelt out and counties should be encouraged to collaborate in designing their schemes within the framework of the national plan.
Thirdly, the system should primarily invest in and direct resources towards building the capacities of the public health sector, not in creating opportunities to generate private profits. It should embrace a rights-based approach that seeks to deal with health as a human right rather than an industry. That shifts the focus away from the needs of “investors” to those of citizens. As Ann Wanyoike notes, “an expanded role for the private sector became a health sector reform theme of the 1990s” but this resulted in “a dichotomous health structure that was characterised by the rich opting for high-cost private healthcare providers, with a majority of the populace who had no such means relying on the publicly run health institutions”. This means that those who can contribute the most to a national universal health coverage scheme have little incentive to do so, especially if such contributions are voluntary. More on that later.
In addition, it does no good to simply superimpose universal health coverage on a system designed for hospitals to generate revenue. The latter must be fundamentally retooled to suit the former and this will take both time and resources.
Fourth, the plan must prioritise prevention and care at the lower levels. In 2013, according to the Kenya Service Availability and Readiness Assessment Mapping report, less than 6 out of 10 health facilities in the country have the capacity to provide the Kenya Essential Package for Health (KEPH) – a standardised comprehensive package of health services – and less than half have the basic amenities to provide healthcare services. And while two-thirds have half the basic equipment required, 59 per cent do not have essential medicines. Only 2 per cent of facilities are providing all KEPH services required to eliminate communicable diseases. Providing universal healthcare on such a foundation would be building on sand.
Universal healthcare requires a substantial increase in the resources both levels of government commit to health. The point is not that both levels of government should spend more on health at the expense of other social services; rather they should increase spending on the full range of human rights and social determinants of health. For example, Kenya’s Health Policy identifies reducing the burden of violence and injuries as one of the top objectives and notes that this will require addressing causes. Given that road crashes account for between 45 and 60 per cent of all admissions to surgical wards, comprehensively addressing the problems on our roads would free up considerable resources in the health sector.
According to Djesika Amendah, an associate research scientist at the African Population and Health Research Centre, Kenya spends most of its health budget on salaries, allowances, drug supplies and other recurrent costs; only 7 per cent of the budget goes towards capital expenditure to improve the quality of healthcare by building new facilities or purchasing equipment to care for more people in the future.
How the money that is allocated to the health sector and how it is spent should also change. According to Djesika Amendah, an associate research scientist at the African Population and Health Research Centre, Kenya spends most of its health budget on salaries, allowances, drug supplies and other recurrent costs; only 7 per cent of the budget goes towards capital expenditure to improve the quality of healthcare by building new facilities or purchasing equipment to care for more people in the future.
In addition, the country spends nearly four times as much on curative care as it does on disease prevention and “we devote a higher share of our health shillings (20 per cent) on governance, health system and financing administration; in other words, paying people in the ministries of health who actually do not see any patients rather than spending money on preventing diseases or promoting health.” Further, although most Kenyans live in rural areas, government health expenditure has in the past tended to favour urban areas. Given the country’s limited resources, more prudence will need to be exercised if universal access to care is to be guaranteed to all.
Along the same lines, there should be an emphasis on getting Kenyans to pay into the system when they are healthy and not to wait till they get sick to get the cover. This also means making it easier for people to register and pay. For example, one can currently download a registration from the NHIF website but one then has to deliver it physically to their offices. There appears to be no way to pay via mobile money or credit/debit card. With nearly all Kenyans able to access the internet though their mobile phones, allowing online registrations and payments would be an easy way to bring in more registrations.
Further, whether the scheme should be voluntary or compulsory is a matter for serious debate. While Makueni’s system is completely voluntary, the NHIF is compulsory only for those in formal employment. Yet the WHO’s 2010 World Health Report titled “The Path to Universal Coverage” says that “there is strong evidence that raising funds through compulsory prepayment provides the most efficient and equitable path towards universal coverage. In the countries that have come closest to achieving universal health coverage, prepayment is the norm, organised though general taxation and/or compulsory contributions to health insurance.”
Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it.
There is also the question of whether, like in Makueni, everyone pays the same amount regardless of income, and whether wealthier people are asked to pay a little bit more in order to lighten the load on the poor. As the WHO notes, “financial risk protection is determined by how funds are raised and whether and how they are pooled to spread risks across population groups” and “rais[ing] funds equitably … usually implies a degree of progressivity (where the rich contribute a higher proportion of their income than the poor)”. The NHIF, rather strangely, only has a graduated scale for contributions from those in formal employment; others who join pay a flat monthly fee regardless of income. This is curious for a country where, according to the United Nations’ Economic Commission for Africa, only a quarter of workers are in the formal sector.
Fifth, accountability must permeate the entire system. Implementation of the scheme should not become, as we have seen with the free primary education reintroduced in 2003 and the Standard Gauge Railway, hostage to political priorities. Kenyans must accept that if it is to be done well, it will not be done overnight. Public participation at every stage should be encouraged and resources, especially human resources, should be utilised in the most appropriate and effective manner. Effective public participation as well as transparency will be indispensable if the country is to avoid universal health coverage becoming another avenue for looting by the state.
While universal health coverage focuses on reducing the financial burdens of patients, more will be required if access to the healthcare system is to be expanded. As the World Health Report notes, “eliminating direct payments will not necessarily guarantee financial access to health services, while eliminating direct payments only in government facilities may do little to improve access or reduce financial catastrophe in some countries. Transport and accommodation costs also prevent poor people using services, as do non-financial barriers, such as restrictions on women travelling alone, the stigma attached to some medical conditions and language barriers.”
Finally, Makueni teaches us that universal health coverage is doable and that we do not need to have the resources of an industrialised country to achieve it. All that is needed is a belief that Kenya should be run for the benefit of all Kenyans and that Kenyans are just as capable as any other people of imagining and creating better worlds and better futures. This may be the greatest lesson we can learn from Makueni County.
POT CALLING THE KETTLE BLACK? France’s shady deals in Africa
“I think the corruption of Africa is taken totally out of context, Africa is no more corrupt than any other place around us. For every African leader who is corrupt, we have a 1000 European, American, Chinese business people who are corrupt, where are those guys? Why only talk about African corruption? What about the Chinese corruption, American corruption and European corruption? We need to be really fair in looking at this issue of corruption. What about companies not paying taxes in Africa? What about profit shifting, mispricing? There is a whole lot of corruption around us. What about anonymous companies? Companies whose official ownership is not known, where people hide their stolen money. All that are issues of corruption, so that is all that needs to be discussed and let’s get away from the scenario that only African leaders have a monopoly on corruption which is not true”.
These words came from the mouth of Mo Ibrahim, the Sudanese-British businessman who in 1998 founded the telecommunications company Celtel International and is now the chairman and founder of the Mo Ibrahim Foundation, established in 2006 to support good governance and exceptional leadership on the African continent. Since 2013, Mo Ibrahim has been measuring and monitoring governance performance in African countries through the Ibrahim Index of African Governance (IIAG). He is an iconic figure: he represents African efficiency and good entrepreneurship.
The point made by Mo Ibrahim is clear: corruption is a global issue that is making the world sick. Targeting the sickness should be a priority of the whole planet. There is no moral superiority here: each country should blame itself for something. There are countries that behave like strong boxes protecting the financial secrecy of the rich world; others are still trying to colonise the poor while some allow a tiny elite to control the rest of the population.
There is a tendency to view Africa as corrupt. No doubt lack of ethical leadership and economic and political neocolonialism are key factors in the high levels of corruption on the continent. However, treating the corruption issue as an African peculiarity is unfair. Especially if the one complaining is a European country.
Related stories: Special Reports from Reuters journalists around the world
European companies are part and parcel of corruption in African countries. The most recent example concerns Eni SpA, the partially-national Italian oil company and the partially-national Dutch Royal Dutch Shell PLC. On December 20 this year, the Court of Milan indicted Royal Dutch Shell PLC, the chief executive of the Italian oil and gas company Eni SpA and other industry executives on corruption charges connected to a 2011 deal to acquire drilling rights off the coast of Nigeria. “Prosecutors say in court documents that Eni CEO Claudio Descalzi and the other executives at both Shell and Eni knew that most of the $1.3 billion Eni and Shell paid to the Nigerian government to acquire the drilling rights would be distributed as bribes. Prosecutors will argue that Goodluck Jonathan, the Nigerian president at the time of the deal, received part of the kickbacks, according to court documents”, FoxBusiness reported.
There is a tendency to view Africa as corrupt. No doubt lack of ethical leadership and economic and political neocolonialism are key factors in the high levels of corruption on the continent. However, treating the corruption issue as an African peculiarity is unfair. Especially if the one complaining is a European country.
Nigeria is ranked among the most corrupt countries in the world. Corruption has remained rampant in Nigeria, and became worse under the rule of Goodluck Jonathan. In the 2011 case connected to Eni and Shell, there are also several prominent Nigerian figures mentioned in the alleged bribing scheme.
In the European mindset, corruption is a vicious circle: nobody seems to be interested in breaking the bribe rule because it is considered “normal” and it secures success, especially in countries where impunity is the norm. Yet Western countries that have invested in Africa always claim moral superiority: they have better governance, accountable and efficient systems, and they bring jobs. But this supposed superiority is just a veneer that allows these countries to be corrupt and opaque abroad.
France is globally recognised as among the most corruption-free countries. However, there are questions being raised in Kenya concerning whether the France-based company OT-Morpho paid bribes to officials of the Independent Electoral and Boundaries Commission (IEBC) in order to be granted the contract for the electronic voting system used in the 2017 election.
The French government has also in the past been accused of being infiltrated by mafia-like groups that use bribery as a tool to influence politics. Recently, the strongest criticism of France’s dealings abroad came from the broadcaster Arte, which aired a documentary called “Mafia et Republique”.
The French government has also in the past been accused of being infiltrated by mafia-like groups that use bribery as a tool to influence politics. Recently, the strongest criticism of France’s dealings abroad came from the broadcaster Arte, which aired a documentary called “Mafia et Republique”. The historical investigation started in 1929, when in Marseille, Southern France, two friends, Carbone and Spirito, started a criminal group: the very first group of Corsican mafia. In the beginning, this was a gang dedicated to drug trafficking, but the next generation of mobsters in the ‘60s found some politicians who were closer to their interests. The most prominent one was Charles Pasqua, the former interior minister (‘86-’88 and ‘93-‘95) and congressman for almost 35 years. When he died in 2015, he was called the Godfather of Francafrique – the term coined by the former Ivorian president Félix Houphouët-Boigny to define the colonial-style influence that France has in some former French colonies in West Africa. Tchad, Cameroun, Centrafrican Republic, Gabon, Angola – these are some of the African kleptocracies, some still in power, that began their rule in these years. The other important Godfather of Francafrique was Robert Feliciaggi, the middleman between politicians and mafia gangs. He ran casinos with Michel Tomi in Western Africa and died in uncertain circumstances in Ajaccio, Corsica, in 2006.
From 1980 to 1994, France was shaken by the Elf affair, probably the biggest political and corporate sleaze scandal to hit a Western democracy since the Second World War that exposed bribes paid by the national oil company all over the world. In Africa, the intermediaries for the illicit payments were Feliciaggi and Tomi. “Elf’s former chairman, Loik Le Floch-Prigent, 60, was sentenced to five years in jail and fined €375,000 (£260,724); his principal bag-man, the former director Alfred Sirven, was given the same prison term and ordered to pay €1m. The company’s ‘Mr Africa’, André Tarallo, was jailed for four years and fined €2m”, reported the Guardian in 2003. After an eight-year investigation and four-month trial, 30 out of 37 defendants were jailed for embezzling €305 million. This case is a concrete example of an organised, hierarchical mafia-like syndicate that is able to penetrate the so-called grey zone where criminals, politicians and businesses merge together.
According to Reuters’ findings, “Areva’s mines pay no export duties on uranium, no taxes on materials and equipment used in mining operations, and pay a royalty of just 5.5 percent on the uranium they produce. A spokesman for Areva declined to confirm the authenticity of the documents and did not comment on their contents”.
Sometimes corruption is simply a matter of money and power, without criminals or gangs involved. These cases are harder to prosecute because often finding the money is impossible. One such case was reported by Reuters in 2014. The main character was Areva, the mining company that is the global leader in uranium extraction. Areva-Niger’s agreements had never made public and in 2014 they expired. According to Reuters’ findings, “Areva’s mines pay no export duties on uranium, no taxes on materials and equipment used in mining operations, and pay a royalty of just 5.5 percent on the uranium they produce. A spokesman for Areva declined to confirm the authenticity of the documents and did not comment on their contents”. Profits without expenses.
Reuters reported that Areva said that a higher royalty rate would have made the business unprofitable. “Mining Minister Omar Hamidou Tchiana, leading the negotiations for Niger, told Reuters the government wants to increase uranium revenues to at least 20 percent of the budget, from just 5 percent at present…‘For 40 years, Niger has been one of the world’s largest uranium producers, but it’s still one of the poorest countries on the planet,’ he said. ‘At the same time, Areva has grown to be one of the world’s largest companies. You see the contrast?’”.
On his last trip to Burkina Faso, the French president Emmanuel Macron said he wanted to reset French-African relations and get rid of Francafrique-style dealings. “I haven’t come here to tell you what is France’s African policy because there no longer is one, there is only a continent that we need to look straight in the face”, he said in his November 2017 speech in Ouagadougou.
How did Areva obtain these privileges? The answer has never been found.
In 2017 Oxfam France’s report called “La transaprence à l’état brut” exposed the lack of transparency in Areva’s taxes paid in Niger. The same report also mentioned some questionable tax payments by Total in Angola.
On his last trip to Burkina Faso, the French president Emmanuel Macron said he wanted to reset French-African relations and get rid of Francafrique-style dealings. “I haven’t come here to tell you what is France’s African policy because there no longer is one, there is only a continent that we need to look straight in the face”, he said in his November 2017 speech in Ouagadougou. He added: “The crimes of European colonisation are unquestionable . . . It’s a past that needs to pass.”
Despite this new approach, there are still enormous biases that divide France from its former colonies. The first one is the colonial approach of the French multinational corporations, as listed above. The second is more symbolic and maybe more important. France is still hiding secrets from its former colonies. There are strong suspicions about a French role in the conspiracy to kill Thomas Sankara, Burkina Faso’s Che Guevara, in 1987. The French government has also been accused of being involved in the Rwandan genocide in 1994. (However, the military documents that can prove that France supplied some militias with arms are still classified.) People protesting in Togo blame the French authorities of supporting President Faure Gnassigbé, the kleptocrat who has refused to follow the constitution, according to his opponents. The same situation applies to other West African ruling families who are heavily criticised at home, but who have good allies in Paris.
Corruption is criminal and immoral. While European countries benefit from this vice, African countries are left to deal with its devastating consequences.
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