On January 5, 2018 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.
Kibra: The Face of Kenyan Politics to Come?
4 min read. What does the Kibra by-election portend for the future of Kenya’s politics? Renowned photographer CARL ODERA captures the sights.
“The most painful state of being is remembering the future, particularly the one you’ll never have.”― Søren Kierkegaard
Located about 6.6 kilometres from Nairobi city centre, Kibra is a sprawling informal settlement with an estimated population of about 200,000 people. Majority of Kibra residents live in extreme poverty. Unemployment rates are high, persons living with HIV/AIDS are many, and cases of assault and rape common. Clean water is scarce. Diseases caused by this lack of water are common. The majority living in the informal settlement lack access to basic services including electricity, running water, and medical care.
But this photo essay is not about the peddled quintessential cliché narrative depiction of Kibra as Africa’s biggest slum’ – itself a false assertion. Rather, Kibra has historically been Nairobi’s most vibrant political constituency; its residents often at the forefront of agitation for expansion of political space in Kenya; and, the most enthusiastic demonstrators at political meetings where the opposition is pitched against an apparently recalcitrant ruling elite. The Kibra by-election is also the political backyard of Raila Odinga, leader of the Orange Democratic Movement and the most enduring fixture in opposition leadership since the early 1990s. Currently, in an alliance with the President Uhuru Kenyatta, the Kibra by-election was occasioned by the death on the 26th of July 2019 of Ken Okoth, 41, the area’s dynamic, popular and highly effective MP.
The demise of Ken Okoth left the seat open for a contest directly between Raila Odinga, whose family has dominated the area for decades and the Deputy President William S. Ruto who is determined to entrench himself as the only viable successor to Kenyatta who is currently serving his last constitutionally mandated term. As such the Kibra by-election of November 7 marked the unofficial commencement of the 2022 campaign season in Kenya with Ruto’s aggressive raid into Odinga’s ‘political bedroom’.
Deputy President William Ruto and Jubilee candidate McDonald Mariga in Kibra’s DC Grounds on Sunday.
ODM leader Raila Odinga with party flag-bearer Bernard Imran Okoth (left) sings the national anthem at a rally on Kiambere Road.
The by-election to fill the position left vacant following the death of the area MP, Okoth, attracted 24 candidates, ODM candidate Imran Okoth, Jubilee’s McDonald Mariga and Eliud Owalo of Amani National Congress, were the dominant players.
Endorsed football star McDonald Mariga
Rally to drum up support for Imran Okoth, ODM’s candidate for Kibra by-election.
Days to the parliamentary by-election there were reports of fracas between warring factions. Rowdy residents, for instance, kicked former Kakamega senator Boni Khawale out of Kibra upon his arrival in Laini Saba ward, claiming it was ODM’s bedroom.
Destruction of property was also reported.
Milly Achieng, a tailor-resident of Kibra told the Elephant that supporters of an opposing candidate recently went and attacked one of her friends and fellow party member and demolished her house. She was forced to flee Kibra with her children.
A family house demolished in a political violence encounter in Kibra.
The Kibra by-election received wide support from leaders across the political divide. Governors Charity Ngilu, Alfred Mutua, Kivutha Kibwana and Anne Waiguru joined Raila Odinga and the ODM party in drumming up support for its candidate, Imran Okoth. The leaders announced that this by-election was the beginning of a new political movement that would drum up support for the Building Bridges Initiative (BBI) and ultimately forge an alliance for the 2022 General Election.
Charity Ngilu campaigning in Kibra to get the vote for ODM candidate Imran Okoth within the Kamba community
Governor Waiguru at Joseph Kangethe Grounds in Kibra on Sunday the 3rd of November to drum up support for the ODM candidate
Raila Odinga and Machakos Governor Alfred Mutua arriving for a rally organised to woo Kamba voters to rally behind ODM candidate for Kibra constituency.
On November 7, 2019, the polling stations across the constituency were opened by 6 am to a smooth start of voting throughout the day amidst a reportedly low voter turnout. The voting stations were closed immediately after the voting exercise was concluded and voter tallying began thereafter. Residents stood in groups waiting for the results.
A man carries his disabled friend to a polling station in Kibra’s Laini Saba.
ODM leader Raila Odinga at Old Kibera Primary school polling station to cast his vote.
An election official marks an indelible ink stain on Amani Congress Party’s candidate Eliud Owalo at Old Kibera.
Amani Party Congress party leader Musalia Mudavadi (right) accompanies party candidate Eliud Owalo at Old Kibera Primary school to cast his vote.
A man shows his finger marked with phosphorous ink after voting
As counting of votes for Kibra by-election continued on the night of November the 7, Jubilee candidate McDonald Mariga conceded defeat to Orange Democratic Movement (ODM) party aspirant Imran Okoth.
In a Twitter post, Mariga called Okoth and congratulated him for his victory and promised to work together after the elections.
— Mariga Macdonald (@MarigaOfficial) November 7, 2019
According to the results announced by the Independent Electoral Boundaries Commission (IEBC) on Friday, November 8, Imran Okoth garnered 24,636 votes beating Mariga by over half the total number of counted votes standing at 11,230 votes. ANC’s Eliud Owalo was a distant third, managing to garner a paltry 5,275 votes out of the 41,984 votes cast.
A child in Kibra celebrating Imran Okoth’s victory
Though the Kibra by-election has been deemed a win for Raila Odinga and the handshake and a loss for Ruto and the “tanga tanga” movement, these political battles have yet to translate into tangible benefits for the ordinary mwananchi whom they purport to fight for.
Nancy Akinyi, a resident of Sarang’ombe Ward, Kibra constituency
Written by Joe Kobuthi
The Diplomatic Gaffe That Could Sour Relations Between Kenya and Somalia
10 min read. Have Kenya’s close ties with its “Man in Somalia”, Ahmed Madobe, created a rift between Mogadishu and Nairobi? RASNA WARAH explores the precarious relationship between the two neighbouring countries.
On Saturday 12 October 2019, a plane carrying a high-level Kenyan delegation arrived in the Somali port city of Kismaayo for the inauguration of Ahmed Madobe as the president of Jubaland, a Somali federal state that borders Kenya. The delegation included Aden Duale, the Majority Leader in Kenya’s National Assembly, and Member of Parliament Yusuf Hassan Abdi, among others.
The arrival of Duale and his entourage of mainly Kenyan Somalis in Kismaayo broke several diplomatic protocols. The delegation did not make a courtesy call to Somali president Mohammed Abdullahi Farmaajo in Mogadishu before embarking on their journey to Kismaayo, and was, therefore, perceived as snubbing a sitting head of state. The visit reignited fears in Somalia that Kenya is trying to assert its authority in Somalia through puppet regional leaders such as Madobe who do Kenya’s bidding.
The visit also contravened a directive by President Farmaajo that all international flights to Kismaayo should first pass through Mogadishu’s Aden Adde international airport for inspection. By ignoring the directive, Duale and his delegation not only spurned an ally and a neighbour, but deepened fissures between Somalia and Kenya, two countries that already have tense relations due to an ongoing Indian Ocean maritime boundary dispute.
Farah Maalim, the former Deputy Speaker in Kenya’s National Assembly, had warned that the visit could damage Kenya’s diplomatic relations with Somalia and with other countries in the region. He advised Kenya to cut its ties with Madobe in order to foster a healthier and more amicable relationship with the Federal Government of Somalia in Mogadishu and with President Farmaajo. (It should be noted that President Farmaajo did not support Madobe’s election in the Jubaland polls and had backed a candidate from his own Marehan clan for the state presidency.)
Kenya’s Man in Somalia
Sheikh Ahmed Mohamed Islam, better known by his nickname Madobe, is often viewed as “Kenya’s Man in Somalia” because of the critical role he and his Ras Kamboni militia played in helping the Kenya Defence Forces (KDF) to push out Al Shabaab from the port city of Kismaayo in September 2012. Yet, despite being viewed as an ally of Kenya in its war against terror, Madobe is a man who has himself been associated with terrorist activities and radical elements that wreaked havoc in Somalia after the fall of the Islamic Courts Union (ICU) in 2006.
It is common knowledge that Madobe was a high-ranking official of the militant Islamic group Hizbul Islam, which was formed in 2009 by Sheikh Hassan Dahir Aweys – who has been designated as an international terrorist by the United States – before he joined the Kenyan forces. Madobe was the governor of Kismaayo in 2006 during the short and ill-fated rule of the ICU, a militant coalition of clan-based entities, businesspeople and Muslim clerics who sought to bring about a semblance of governance in Somalia, but which was ousted by US-backed Ethiopian forces because it was perceived as an Islamic fundamentalist group that would bring about the “Talibanisation” of Somalia.
Sheikh Ahmed Mohamed Islam, better known by his nickname Madobe, is often viewed as “Kenya’s Man in Somalia” because of the critical role he and his Ras Kamboni militia played in helping the Kenya Defence Forces (KDF) to push out Al Shabaab from the port city of Kismaayo in September 2012.
Madobe later joined and then defected from Al Shabaab (formed after the collapse of the ICU), ostensibly after protesting against its brutal methods. He later formed the Ras Kamboni militia to fight his former allies and to regain control over the prized port of Kismaayo, which was under the control of Al Shabaab when his militia and the Kenyan forces entered Somalia. (This could have been his primary motive for collaborating with the Kenyans.)
In his book Dirty Wars: The World is a Battlefield, American journalist Jeremy Scahill says that Madobe’s change of heart vis-à-vis Al Shabaab came about after he spent two years in an Ethiopian prison after he was captured while fleeing Ethiopian and American forces when the ICU fell. He then became “one of the new generation of US-backed warlords drawn from the rubble of the Islamic Courts Union”.
Some observers believe that because he already knew the lay of the land, and had similar objectives as the Kenyan forces – to gain control of Kismaayo, Al Shabaab’s economic base – Madobe was identified (and probably presented himself) as a natural ally of the Kenyans. That he belongs to the Ogaden clan, which has for years sought to control southern Somalia – one of the most heterogenous regions of Somalia that is home to several clans and which is also politically dominant in north-eastern Kenya – could also have worked to his advantage.
In the early part of 2011, prior to joining forces with Madobe’s militia, the Kenyan government had plans to support Mohamed Abdi Mohamed Gandhi, the former Minister of Defence and an Ogaden from the Jubaland region, to administer a potential Jubaland regional authority called “Azania” (also known as the Jubaland Initiative). It is believed that Ethiopia – Kenya’s “big brother” when it comes to regional military matters – opposed the creation of the Azania “buffer zone” between Kenya and Somalia as it was viewed as an Ogaden-dominated Kenyan project. It is likely that, because of its propensity to support warlords in Somalia, the Ethiopian government encouraged Kenya to work with the battle-hardened Madobe, whom they trusted more than the suave and cultured anthropologist Gandhi, who did not command any militia in Jubaland.
In May 2013, less than a year after Kismaayo fell to KDF (then re-hatted as AMISOM) and his militia, Madobe declared himself president of the self-styled state of Jubaland, which was not recognised by the central government in Mogadishu. It is believed that the Federal Government of Somalia had been supporting a rival group headed by Barre Aden Shire, who declared himself president of Jubaland moments after Modobe did.
Despite an Ethiopia-brokered agreement in August of the same year that stipulated that Madobe’s “interim administration” should hand over the port of Kismaayo to the central administration in Mogadishu within six months, there have been no signs of a handover to date. Somalia’s fragile “federalism” project to create semi-autonomous states also seems to be suffering from a lack of clarity or direction. Meanwhile, eleven years after Kenyan boots entered Somalia, there seems to be no stabilisation plan for the region, nor any exit strategy for the Kenyan forces.
Clan politics and fears of secession
Some Somali analysts and conspiracy theorists believe that Kenya does not want to see a strong and stable Somalia because the latter would pose a threat to its own national political and economic interests. They say that Kenya seeks a weak – but friendly – Somalia because Kenya believes that a strong Somali state may revive aspirations for a “Greater Somalia” that would include the ethnic Somali-dominated Ogaden region in Ethiopia and the north-eastern region of Kenya.
The Somali analyst Afyare Abdi Elmi believes that both Kenya and Ethiopia have been manipulating Somalia’s political leadership and could actually be fuelling conflict in Somalia to maintain an upper hand in the country. In his book Understanding the Somalia Conflagration: Identity, Political Islam and Peacebuilding, published in 2010, he writes:
“Ethiopia, and to a lesser extent Kenya, have important stakes in either installing their own proxy government in Somalia or in perpetuating the Somali conflict for as long as they can. The strategies that Somalia’s hostile neighbours adopt differ. At a time when the world would not allow an opportunistic invasion, Ethiopia sent weapons and created warlords from different clans. After 9/11 Ethiopia and Kenya capitalised on the ‘war on terror’ and used it to their advantage. As such, Ethiopia invaded Somalia [in 2006] as part of a ‘war on terror’ campaign, albeit in pursuance of its own geographical interests. Kenya has also facilitated this invasion. This leads me to conclude that these countries are determined to block a viable and strong Somali state for as long as they can as their perception is based on a zero-sum understanding of power.”
However, Kenya’s and Somalia’s fears that ethnic Somalis within their territories pose a threat to national unity are not completely unfounded and have historical roots. In the 1960s, Somalia’s first president Aden Abdullah Osman supported secessionist movements in both Kenya and Ethiopia. Although the Somali government eventually entered into a truce with both countries and restored diplomatic relations, the 1969 coup d’etat revived ambitions of a Greater Somalia in President Siad Barre. In 1977, Barre initiated a war with Ethiopia in a bid to regain the Ogaden region. Memories of Barre’s attempts to take over the Ogaden in 1977 are still fresh in many Ethiopians’ minds
The Kenyan government, on the other hand, has been antagonistic and suspicious of its own ethnic Somali population ever since the people of Kenya’s Northern Frontier District voted for secession prior to independence in 1962. This resulted in the so-called Shifta wars that led to the militarisation and marginalisation of the region by the Jomo Kenyatta and successive regimes.
“Taming” the Somalis in Kenya’s north-eastern region has been one of the Kenyan government’s objectives since the Shifta wars of the 1960s that saw this region become a terror zone. “Collective punishments” of the region’s people by the government were common. Until devolution “mainstreamed” Kenya’s northern territories, the region had remained largely neglected and devoid of any meaningful development.
Some Somali analysts and conspiracy theorists believe that Kenya does not want to see a strong and stable Somalia because the latter would pose a threat to its own national political and economic interests. They say that Kenya seeks a weak – but friendly – Somalia because Kenya believes that a strong Somali state may revive aspirations for a “Greater Somalia”…
In its efforts to control the seemingly uncontrollable population, the Kenyan government relied on ethnic Somalis to carry out atrocities against their own people. For instance, the brutal operation known as the “Wagalla Massacre”, which resulted in the death of between 3,000 and 5,000 men in Wajir, was carried out under the watch of General Mohamud Mohamed, the army chief of staff in Daniel arap Moi’s administration, and his brother Hussein Maalim Mohamed, the minister of state in charge of internal security, both of who belonged to the Somali Ogaden clan that controlled politics in the then Northeastern Province. They were among a small group of Kenyan Somalis who were in positions of power in the Moi government. General Mohamed had played a key role in thwarting the August 1982 coup attempt, and had thus contributed to saving the Moi presidency.
It is believed that Moi appointed ethnic Somalis in important positions as they were considered “neutral” in terms of their ethnic affiliation, and could, therefore, be trusted to be loyal. Incorporating ethnic Somalis in his government was also probably a strategy to defuse any “Greater Somalia” sentiments Kenyan Somalis might harbour – a strategy that the Jubilee government has also adopted by appointing or nominating Kenyan Somalis in important government positions.
Many Kenyan Somalis believe that the Mohamed brothers used their influential positions to punish and evict members of rival clans from the then Northeastern Province. Others say that in his hallmark Machiavellian style, Moi used ethnic Somalis in his government to carry out atrocities against their own people – who could easily be divided along clan lines. While it is unlikely that these powerful brothers sanctioned mass killings, they probably played into the clan politics of the area.
Clan politics is also what probably drove Aden Duale and his delegation to make the visit to Kismaayo; Kenya’s north-eastern region is dominated by the Ogaden – Madobe’s and Duale’s clan. The visit symbolised Ogaden authority in Jubaland and in Kenya’s north-eastern region.
And so, because many federal states in Somalia are run like personal or clan-based fiefdoms, decisions made by Madobe could be construed to be at the behest of Kenya. By aligning himself with Madobe, Duale – and by extension, the Kenyan government – has affirmed that Kenya is not interested in a united, democratic Somalia, and that it is using proxies to achieve its objectives in this fragmented country. The visit to Kismaayo was also a slap in the face of the Federal Government of Somalia in Mogadishu, which is now likely to have an even more antagonistic attitude towards Kenya.
Clan politics is also what probably drove Aden Duale and his delegation to make the visit to Kismaayo. Kenya’s north-eastern region is dominated by the Ogaden – Madobe’s and Duale’s clan. The visit symbolised Ogaden authority in Jubaland and in Kenya’s north-eastern region.
Although many question the legitimacy of the government in Mogadishu – which is propped up mostly by the international community, mainly Western and Arab donors – the deliberate disregard for its authority by the Kenyan delegation is bound to deepen fissures between Kenya and Somalia, which could have an impact on how the Somali government views the presence of Kenyan soldiers on its soil. The Somali government, although relying heavily on AMISOM for security, has recently been making calls to strengthen Somalia’s national army to replace AMISOM.
The Al Shabaab factor
It must be noted, however, that Somalia and Kenya enjoyed “live and let live” relations until the latter’s incursion into Somalia in October 2011, which muddied the waters and painted Kenya as an aggressor nation in the eyes of many Somalis, not least Al Shabaab, which then made Kenya a target for its terrorist activities. Up until then – hosting the largest Somali refugee population – Kenya was viewed as a generous neighbour that came to the aid of people fleeing conflict. The decision to undertake a military intervention in Somalia was probably one of the biggest blunders of the Mwai Kibaki administration.
But even if Kenya’s intention is to create a safe buffer zone between Kenya and Somalia, the fact remains that apart from controlling the city of Kismaayo and its immediate environs, Madobe has little control over the rest of Jubaland state where Al Shabaab is still very much in control. There have been reports of his administration and KDF making deals with Al Shabaab to gain access to the territories that the terrorist organisation controls. Some of these deals are said to involve the smuggling of contraband into Kenya, as has been reported severally by the United Nations Monitoring Group on Somalia and Eritrea.
It must be noted, however, that Somalia and Kenya enjoyed “live and let live” relations until the latter’s incursion into Somalia in October 2011, which muddied the waters and painted Kenya as an aggressor nation in the eyes of many Somalis, not least Al Shabaab, which then made Kenya a target for its terrorist activities.
The reality in Jubaland and in much of the rest of Somalia is that the majority of the people have not experienced the benefits of a strong central or state government for more than 20 years. The concept of a government has remained a mirage for most residents living outside Mogadishu, especially in remote areas where the only system of governance is customary law or the Sharia. In fact, it has been argued that, with its strict codes and its hold over populations through systems of “tax collection” or “protection fees” combined with service delivery, Al Shabaab offers a semblance of governance in the regions that it controls.
Where AMISOM forces have liberated regions from the clutches of Al Shabaab, they have essentially left behind a power vacuum which neither the Federal Government of Somalia nor the emerging regional administrations can fill. This has rendered these regions more prone to clan-based conflicts, already apparent in Jubaland, where some members of the marginalised Bantu/Wagosha minority group have taken up arms in response to what they perceive to be a form of “ethnic cleansing” by both Al Shabaab and the new Ogaden-dominated administration of Ahmed Madobe.
All these developments do not augur well for peace-building efforts in the Horn, which have been made more precarious by Kenya’s relations with Madobe, who is not likely to cooperate with Mogadishu or cede control of a state characterised by clan-based feuds over resources.
#FeesMustFall: Is the Makerere University Strike a Response to State Capture?
9 min read. Student protests in Uganda have highlighted a crisis in higher education and exposed the dark underbelly of a state struggling for legitimacy.
During the current lull in strike activity at Makerere University, it is possible to examine the root causes of sporadic strike action on the campus, both by staff and students. The strike was a student protest under the banner #FeesMustFall and was triggered by the proposed 15 per cent annual increase in fees for privately sponsored students (more than half of the student body).
It has been a tense two weeks, with the strike leader, one Siperia Saasirabo, reportedly abducted and held for a number of days, and the Guild President Julius Kateregga disappearing en route from an appearance on a morning television chat show and an extraordinary general meeting of the Guild. Both were reportedly dumped in public places, Kateregga with alleged soft tissue injuries.
An opposition MP told Parliament he was being held in a “safe house” run by the Special Forces Command (SFC) while the minister for higher education stated that he had information that Kateregga was merely taking time out from the pressure he had been undergoing. Kateregga says he made that statement at gunpoint.
The Budget Monitoring and Accountability Unit (BMAU) at the Ministry of Finance summarised the problem at Makerere and other government universities: there simply isn’t enough money to run them. Apart from Makerere and Kyambogo universities, the Government of Uganda has established six other public universities and two degree-awarding institutions. Three came into existence as recently as 2016/17. The major source of funding is tuition fees followed by government/public funding – which includes tuition fees, external grants and internally generated funding. The cost of funding public universities leapt from Shs.167.94 billion ($45,215,553.00) in FY 2012/13 to Shs.606.09 billion ($163,220,340.00) in FY 2017/18. The Ministry of Finance is unequivocal in stating that the government is unable to provide for all the financial needs of public universities and that funds are insufficient to produce “good outputs”. In fact for the last five years, cash releases from the Treasury have been below budget (BMAU Policy Briefing Paper (24/18, 2018).
It is, therefore, safe to conclude that private students subsidise government-sponsored students. This may not have been a problem in principle or in practice if the economy was such that they could afford it. The fact is that most courses charge close to half of Uganda’s income per capita of about $800 or Shs.2,971,608. Assuming parents have more than one child, payment for university education is out of reach for the majority.
The Budget Monitoring and Accountability Unit (BMAU) at the Ministry of Finance summarised the problem at Makerere and other government universities: there simply isn’t enough money to run them.
The major casualties of this are the quality of outcomes, staff development, and research. Because 59 per cent of Makerere’s budget goes towards payroll, and 11 per cent each on student costs and material supplies, less than 2 per cent is available for staff development. Research, a core function of the institution, is allocated under 1 per cent of the government budget (as distinct from external funding). Student welfare allowances can hardly compete and have been stagnant for over two decades. Research received Shs.30 billion ($8,079,015.00) against the expected Shs.50 billion ($13,465,025.00) in 2018/19. As a solution, the BMAU recommends diversification of income streams to reduce over-reliance on tuition fees. In the interim, financial brinksmanship has been the order of the day.
There are 20,091 government-sponsored students at Makerere of whom just over 4,000 are accommodated off-campus. An allowance of Shs.432,750 ($117) a semester was budgeted for each student to cater for their subsistence. The 2019/2020 allowances budget was reduced in order to rehabilitate the dental school whose dilapidated state and consequent interruption of admission of dentistry students made the news in 2017. According to The Observer of 17 July 2019, “285 million was diverted from the allowances vote and allocated to the Dental School. Another Shs.1.8 billion was allocated towards equipping the university library, while Shs.1.5 billion was allocated to the renovation of toilets in the halls of residence.” This was done in compliance with Parliament’s education and social services committee recommendations communicated on 18 June 2019.
During the current strike, there have been calls for Makerere to be managed by people with business skills as opposed to vice-chancellors elected from amongst academics. There is some merit in this argument; Makerere’s history of financial management does not inspire confidence. In 2016 the Auditor General qualified the university’s audit report, citing a number of significant anomalies that suggested sleight of hand in hiding income, debt, and payroll fraud. The report cited the following irregularities:
- The budget itself was undermined by the fact that Shs.317,227,405 ($85,429.00) was charged against incorrect expenditure codes thereby misstating the balances in the financial statements.
- Staff advances for various activities amounting to Shs.882,316,616 ($237,608.00) were not accounted for. “There is uncertainty as to whether the amount in question was properly utilised for the intended purposes.”
- Revenues received from grants and investments were under-reported. Only revenue from 79 out of a total of 182 active grants was disclosed in the financial statements. The university administration also claimed it did not obtain any revenue from investments during the year under review. However its annual report for 2015 puts the cost of running projects from grants at US$50,000,000 in the year 2015. It also says that the university initiated an endowment fund in 2014 called the Makerere University Endowment Fund, whose investment activities and revenues to date have not been disclosed in the financial statements.
- Fourteen retired members of staff were kept on the payroll, costing Shs.386,790 while overpayments to other staff cost a further Shs.172,560,
- 2,494,991,040 ($671,902.00) in revenue was collected from short courses although this amount was not declared in the financial statements.
- Revenue from tuition and functional fees was similarly misstated; the cash book showed 86,816,793,066 ($23,435,802) while the financial statements reported a figure of Shs.87,946,425,729 ($23,740,741.00). The Auditor-General stated: “I was not provided with a satisfactory explanation regarding this discrepancy. Under the circumstances, I am unable to establish the accuracy of the revenue reflected in the financial statements.”
- Emphasis was placed on the under-statement of outstanding obligations. Out of 119,664,797,892 ($32,225,789.00) owed by Makerere by close of the financial year, “only Shs.47,167,283,674 ($12,702,173.00) was recognised in its Statement of Financial position and Statement of Outstanding Commitments, while the remaining Shs. 72,497,514,218 ($19,523,616.00) is only mentioned/disclosed in additional notes.”
The patronage economy
What is missing from the solutions proposed for Makerere by BMAU, such as the diversification of income and rationalisation of courses offered, is the elimination of waste. In addition to reducing waste and financial loss caused by sheer lack of capacity to run the business end of the university, the government needs urgently to address other areas of waste.
Shs.69 billion was lost to systemic waste across all spending entities in 2017/18. Some of the means by which this was achieved are examined here. Structurally, the ballooning number of administrative units – 134 districts and rising from the initial 29 in 1997 – is a huge drain on resources that doesn’t necessarily increase effectiveness (this writer has dealt elsewhere with the phenomenon of districts being unable to utilise funds for lack of skilled manpower). Each new district is entitled to three members of parliament, one a woman and one a youth. District leaders are elected but the president appoints a Resident District Commissioner (RDC) to each. The RDC wage bill is Shs. 15.8 billion ($4,259,292.00), 30 per cent more than Makerere’s annual development budget.
Similarly, ministries, departments and agencies (MDA) increase in number as service delivery becomes ever more inadequate. In 2016, 34 per cent of local governments were found to lack critical staff such as doctors. 116 were understaffed by up to 40 per cent. That year the most affected by understaffing were said to be public universities.
During the current strike, there have been calls for Makerere to be managed by people with business skills as opposed to vice-chancellors elected from amongst academics. There is some merit in this argument; Makerere’s history of financial management does not inspire confidence.
In order to lower the cost of public administration, a major restructuring was agreed by Cabinet in September 2018. Only four agencies (Kampala Capital City Authority, the Uganda Bureau of Statistics, Uganda National Bureau of Standards, and Uganda Communications Commission) and the National Medical Stores were either to be retained and the functions of the rest returned to their parent ministries or to be merged or disbanded. Over one-third of the government payroll is absorbed by the 10,000 employees of agencies, which have tended to duplicate work and serve mainly as sinecures for party apparatchiks. This would have freed up funds currently used for the higher salaries paid to agency executives as well as their pensions and gratuities. Since the announcement a year ago, there has not been a single closure; implementation modalities were reportedly still under review by August 2019. Furthermore, there are more agencies in the pipeline (i.e. the Skills Development Authority and Sector Skills Councils slated for 2021).
The lack of political will to conserve scarce resources is evident in other areas, as a recent review of the cost of political appointees by the Daily Monitor shows. There are now 170 presidential advisors – up from four in the 1990s – whose annual wage bill is Shs.29 billion ($7,817,689.00), with an additional Shs.24 billion ($6,469,812.00) for their ministerial vehicles (without fuel, drivers and guards). Again, the total exceeds Makerere’s research budget. The most recent appointees are musicians appointed to advise on Ghetto and Kampala Affairs. They join the relatively new Ministry for Kampala and the new position of Executive Director of Kampala Capital City Authority, both seen locally as political appointments.
Further savings could have been made by eliminating the Shs.30 billion spent every year on flying dignitaries abroad for medical treatment but they have been cancelled out by the inept procurement of a domestic specialised hospital that has left the country in debt.
The State House scholarships scheme could yield further savings. Under this scheme, students whose primary and/or secondary education has been paid for by the State are often sent overseas for post-graduate studies. Elections expense for the incumbent are another diversion of funds from productive expenditure. As with elections before them, the 2021 polls are being preceded by huge billboards, vinyl banners, cash and other handouts, such as Shs.80 billion ($21,544,040.00) worth of hoes for distribution – all paid for from the public purse. (Ugandan farmers clamour for much – seeds, fertilisers, herbicides, irrigation, information, advice, post-harvest technologies, feeder roads and access to markets – but there has been no shortage of hoes since the post-war period.)
The lack of political will to conserve scarce resources is evident in other areas, as a recent review of the cost of political appointees by the Daily Monitor shows. There are now 170 presidential advisors – up from four in the 1990s – whose annual wage bill is Shs.29 billion ($7,817,689.00)…
The unrest at Makerere is the fruit of the wider patronage economy and its untenable strictures. Public financial mismanagement and fraud lead to unforeseen and unnecessary austerity being visited on various sections of the community, including hospital patients, primary school children, farmers, road users etc. University students are in the best position to highlight this systemic injustice because unlike the general population at the receiving end of governance deficits, they are a homogenous group able to agree on a way forward, and the best equipped to analyse the issues. Striking Makerereans speak for all Ugandans.
As is the norm, what began as a peaceful demonstration with perhaps a dozen women carrying placards immediately attracted the full retribution of the Uganda People’s Defence Forces, which had been camping on campus since late 2018 when the People Power movement gained national prominence. True to form, the method of work is to instill terror by attacking not only striking students but also firing tear gas canisters into the closed windows of halls of residence and hostels. There were night raids in which students were dragged out of their rooms, brutalised and their property vandalised. The partially sighted and deaf were not spared and their press conference was stopped by the Uganda Police, a de facto division of the army.
Initial reports on the night of 22nd October were from citizen journalists. The professional media was largely absent (which is understandable given recent threats of shut-downs to those covering “opposition” activities). Of those journalists that did attend, at least three have been hospitalised with injuries and a similar number have been arrested.
The most valiant efforts of government sympathisers to demoralise the students on chat shows and social media by branding them drug abusers were unable to stigmatise the students as “entitled” young people making a nuisance of themselves. Also new, a journalist accused of biased reporting (not for the first time) was heckled off campus by irate students.
The Uganda Journalist’s Association is boycotting all police pressers and other events, this time asking media house heads to join them, a major development in protest. Still, the repeated night raids amply demonstrated the extremes to which Uganda’s kleptocracy is willing to go to preserve itself. Student leaders continue to be suspended as they are identified. The police is visible everywhere on campus and Lumumba Hall was completely sealed off at the time of writing. The army is to be replaced on campus by 2,000 police officers.
If the military was predictable so was the president, his ministers and the diplomatic corps to whom Ugandans appeal during spates of state brutality. After the usual interval of a few days, the United States ambassador played her customary role, publicly expressing concern for the affront to freedoms of assembly, speech and expression guaranteed by Uganda’s constitution. After a further few days during which the public was fully appraised of his impunity, President Yoweri Museveni, the Commander-in-Chief, withdrew the army from the university, stating that he was unaware they were camped there (for a year) in the first place. He faulted the military approach to addressing the issue, saying the young people only needed guidance.
Initial reports on the night of 22nd October were from citizen journalists. The professional media was largely absent (which is understandable given recent threats of shut-downs to those covering “opposition” activities). Of those journalists that did attend, at least three have been hospitalised with injuries and a similar number have been arrested.
France’s ambassador remained focused on cementing relations with Gen. Kainerugaba, the president’s son who is responsible for the SFC, safe houses, #Arua33 and other atrocities. He hosted him at his residence at the height of the troubles. A French company is in negotiations for an oil concession. The European Union and other European members of the diplomatic corps then weighed in, saying much the same as the Americans, only to be contradicted hours later by the Minister for Security, General Tumwine, who advised students that strikers would be beaten and to ignore statements to the contrary.
The latest developments are that Gulu University’s peaceful march in solidarity with Makerere was intercepted by police and four students were arrested for the public order offences of illegal assembly and incitement to violence.
The Minister of Education and First Lady has not appeared before Parliament to make a statement on the unrest. Instead she wrote a long letter to “the children who call me Mama by choice” in which she compared Makerere’s fees with the higher fees charged by a private university. She then claimed that the strikers were mainly non-students hired to riot: “Next time you are tempted to point a finger at corrupt people, if you are guilty of any of the above, know that you too are corrupt; begin with yourself.” The minister finished with an elaborate exegesis of the Scriptures on the origin of authority and why we must submit to it.
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