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BAD AID: Sexual abuse in the aid industry and what can be done about it

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In February 2015, residents of Gilgil, a small town halfway between Naivasha and Nakuru in Kenya’s scenic Rift Valley – which was once known for its “Happy Valley” set – were stunned to learn that Simon Harris, a respected middle-aged British charity worker who had been living in the town since the 1990s, had been sentenced to jail for sexually abusing street children. A court in Birmingham in the UK had sentenced Harris to 17 years in prison for indecent sexual assault and for possessing indecent images of children.
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In February 2015, residents of Gilgil, a small town halfway between Naivasha and Nakuru in Kenya’s scenic Rift Valley – which was once known for its “Happy Valley” set – were stunned to learn that Simon Harris, a respected middle-aged British charity worker who had been living in the town since the 1990s, had been sentenced to jail for sexually abusing street children. A court in Birmingham in the UK had sentenced Harris to 17 years in prison for indecent sexual assault and for possessing indecent images of children.

According to an article by Nation reporter Pauline Kairu, few people in Gilgil suspected Harris of being a paedophile because he had gained a reputation as “the kind mzungu social worker who crusaded for the education of the less privileged”. This is also probably why the townspeople did not question his motives when he took street children to his house for “a warm bath” and a “hot meal”.

Two of the street children interviewed by the Nation reporter said that nights in Harris’ house “usually featured naked boys wrapped in towels, smoking bhang, cigarettes and binging on alcoholic beverages.” These binges almost always ended with Harris sexually abusing the boys. “After the bath, he would smell you and tell you ever so cheerfully, ‘You smell so good, I could eat you,” recalled Dom (not his real name). Many of the boys endured the abuse because “not coming to his house meant sleeping in town on a veranda, cold and hungry”. The judge who presided over Harris’ case stated that his victims had been degraded and used and that “the mental scars will almost certainly never heal”.

This shocking case forced the UK government to screen British nationals seeking to work in Kenya and elsewhere, especially in fields that give them easy access to children (such as teaching and charity work), and to prevent those who have been implicated in the sexual abuse of children in the UK from obtaining jobs abroad. (The UK is one of the few governments that has taken active steps to prevent child sexual abuse and exploitation by its nationals living outside the country.)

According to an article by Nation reporter Pauline Kairu, few people in Gilgil suspected Harris of being a paedophile because he had gained a reputation as “the kind mzungu social worker who crusaded for the education of the less privileged”. This is also probably why the townspeople did not question his motives when he took street children to his house for “a warm bath” and a “hot meal”.

Until the rise of the #MeToo movement – spurred by sexual harassment charges against Hollywood mogul Harvey Weinstein – and revelations this year that senior Oxfam staff based in Haiti had sexually exploited local women and girls, the issue of sexual harassment, abuse and exploitation was not taken seriously by the humanitarian/aid industry. Now that the Oxfam scandal has become so huge, other aid organisations have also been forced to address the issue.

However, while international humanitarian NGOs, such as Oxfam, have been forced to examine practices that allow sexual harassment, abuse and exploitation to flourish within their organisations, the United Nations has been reluctant to even admit to such practices. UN Secretary-General Antonio Guterres has reiterated the world body’s “zero tolerance” for sexual abuse, but has not ordered any of the UN’s agencies to conduct reviews on how they handle such cases, nor has he promised to bring the culprits to book.

“Boys will be boys”

The sexual abuse of children and women by UN peacekeepers has been reported in several countries recovering from civil war or natural disaster but hardly any of the perpetrators have been brought to justice either by their own countries or by the UN. Andrew MacLeod, a former UN official who now advocates for stiff penalties for aid workers implicated in the rape of women and children through his organisation Hear Their Cries, estimates that there have been over 60,000 rapes committed by UN personnel, including peacekeepers, in the last decade and that the organisation harbours some 3,000 paedophiles. (These numbers, however, are hard to verify as the UN does not compile such statistics, and even if does come across such cases, it is not likely to make them public.)

A report published by the UN’s Office for the Coordination of Humanitarian Affairs in 2007 admitted that “the dangerous combination of thousands of relatively well-paid young men posted overseas in environments where the rule of law and other societal constraints are often absent…has allowed the sexual abuse and/or exploitation of local populations”. Tina Tinde, an international aid worker from Norway, told France 24 recently that often cases of rape or sexual exploitation by peacekeepers are overlooked on the pretext that “boys will be boys”.

The UN says it does not have the mandate to arrest or prosecute errant peacekeepers and that such cases should be referred to the countries that provide the peacekeepers. But even this principle is not adhered to. One of the most disturbing cases to emerge recently was that of Anders Kompass, the director of field operations at the Office of the United Nations High Commissioner for Human Rights, who in 2014 was suspended after he informed the French government about the sexual abuse of children by French peacekeepers in the Central African Republic. Kompass endured months of frustration and eventually resigned from the UN, “disappointed and full of sadness” as the UN’s senior managers continued to blame him for tarnishing the organisation’s reputation, instead of addressing the issue and providing the victims with assistance. Narrating his experience to IRIN News, Kompass said that he had seen a lot of horror and brutality during his career at the UN but reading about “an eight-year-old boy describing in detail his sexual abuse by the peacekeepers meant to protect him is the kind of account I wish I’d never had to read.” He said that his experience had strengthened his conviction that UN staffers who act ethically will inevitably suffer negative consequences.

Andrew MacLeod, a former UN official who now advocates for stiff penalties for aid workers implicated in the rape of women and children, estimates that there have been over 60,000 rapes committed by UN personnel in the last decade and that the organisation harbours some 3,000 paedophiles.

Lori Handrahan, who once served as a gender expert at the UN’s refugee agency, UNHCR, says that when she reported a “food-for-sex” scandal at a refugee camp on the Chad-Darfur border, she was told by a senior UNHCR official to shut up. When she refused to do so, and especially after her story about how female refugees in the camp were being sexually exploited was published, she was warned that she would never work for UNHCR again.

In most countries where there are UN peacekeeping missions, the vast majority of the refugee or internally displaced populations comprise women and children – the most vulnerable group in any society. These are the people who are most likely to be sexually abused or exploited. The internally displaced boys in the Central African Republic who were sexually abused by the French peacekeepers were often given food or money in exchange for sexual favours. These kinds of “transactional” sexual relationships thrive in impoverished or war-torn regions. A Save the Children report on Liberia, for instance, showed that many Liberian girls believed that they had to have sex with UN or NGO staff before they could be given food. Naomi Tulay-Solanke, who runs an NGO in Liberia called Community Healthcare Initiative, says she is not surprised by revelations of sexual abuse and exploitation by aid workers. “Aid workers have been in my country for decades. This kind of thing happens everyday,” she told Bright magazine.

People working for aid/humanitarian organisations sexually exploit people because they can. The Oxfam director in Haiti, Roland van Hauwermeiren, used his privileged position to procure sex from women whose lives had been devastated by the January 2010 earthquake. Women and children in poor countries destroyed by war or other disasters are vulnerable to sexual abuse or exploitation because they are more likely than men to have direct contact with humanitarian organisations – they are usually the ones who stand in line for rations and other types of aid during a crisis and who are often targeted for medical and other interventions aimed at women and children. For this reason, as Macleod points out, humanitarian organisations attract a disproportionate number of “predatory paedophiles” or opportunistic rapists.

A culture of misogyny and racism

In an email interview, Handrahan, who is also the author of Epidemic: America’s Trade in Child Rape, a book that looks at the impact of child abuse and pornography, told me that sexual abuse and exploitation of vulnerable populations by UN officials and aid workers continues because “the humanitarian sector, as whole, has cultivated a culture of misogyny and racism against employees and beneficiary populations” and “is still, largely, about white men enjoying power”. She says that white men in powerful positions within humanitarian organisations view sexual exploitation as their “right” or a “perk” that comes with working in hardship areas. She believes that this culture will only change if more women are hired in senior positions within these organisations.

Of course, not all aid workers implicated in sexual abuse or exploitation have been white men; an Associated Press investigation in Haiti found that the majority of UN peacekeepers involved in a child sex ring were from Sri Lanka. And many of the perpetrators of rape and child abuse in other troubled parts of the world have been from the so-called developing world. The thing to remember is who holds the power in the donor-recipient or peacekeeper-affected population relationship – and who holds the guns.

In an email interview, Handrahan, who is also the author of Epidemic: America’s Trade in Child Rape, told me that sexual abuse and exploitation of vulnerable populations by UN officials and aid workers continues because “the humanitarian sector, as whole, has cultivated a culture of misogyny and racism against employees and beneficiary populations” and “is still, largely, about white men enjoying power”.

We must also accept that the aid creates dependency, which distorts the donor-recipient or saviour-victim relationship. As Firoze Manji wrote in the January 2015 edition of the New African, “for saviours to exist, there must be those in need of saving – saviours require victims – and turning other humans into victims is therefore a fundamental requirement of the saviour complex.” Saviours, he says, “cannot thrive where people retake control of their destinies, assert their dignity and humanity, create the structures for self-determination, organise to make collective decisions, take pride in their own countries, and seek neither aid nor charity.”

Many proponents of aid argue that by highlighting cases of sexual exploitation and abuse within the aid industry, it becomes much more difficult for humanitarian organisations to carry out their work because these revelations undermine the important work they do in alleviating human suffering.

On the other hand, those who question the benefits of aid argue that it is just another form of colonialism that is instrumental in perpetuating poverty and underdevelopment, especially in Africa. As Maina Mwangi, a Kenyan investment banker put it, aid, by its very nature, is a “blunt instrument” as it removes responsibility for wealth creation and development from Africa’s leadership to donors, which enables the African political class to “eat” with impunity. Similarly, the Tanzanian scholar Issa Shivji has referred to aid a form of neocolonialism that wrests power and responsibility from African states and their leaders and into the hands of NGOs and foreign donors. Indeed, even the British diplomat Robert Cooper admitted once that Western aid is “soft power” – an essential component of extending Europe’s influence in countries it once colonised, or “a new kind of imperialism, one acceptable to a world of human rights and cosmopolitan values”. Donor agencies and the charities and humanitarian organisations that they fund are the instruments through which such “soft power” is exerted.

Like colonialism, foreign aid has the net effect of disempowering and infantilising “the natives” and their leaders. Nowhere is this more evident than in the international emergency relief and humanitarian sectors, which usually gain prominence during famines and other disasters. When an international humanitarian organisation flies in to distribute food to starving people or to provide tents to people fleeing a civil war, it allows these people’s governments to abdicate their responsibility towards their own citizens. As Alex de Waal notes, “The process of internationalisation is the key to the appropriation of power by international institutions and the retreat from domestic accountability.”

The “internationalisation” of famine relief started in earnest during the Biafran famine in Nigeria in 1968. International relief agencies began mushrooming then and by 1984, when the musician Bob Geldof initiated his Band Aid, famine relief had virtually become an industry. Today famine relief is a big industry. The UN’s appeal for donations during the 2011 famine in Somalia, for example, managed to raise $1.4 billion within just one month of the appeal. A lot of this money went right back to where it came from. Much of the food aid for Somalia was purchased from the United States and was transported on US-flagged ships. (A large proportion of this food was alleged to have been stolen by local militias, a claim that was refuted the UN’s World Food Programme, but which suggested that there was a thriving aid-based black market economy in Somalia.)

What needs to be done

Thanks to the #MeToo movement and the Times newspaper’s revelations about Oxfam staff members’ peccadillos in Haiti, there is now greater interest in addressing the issues of sexual harassment within aid organisations and sexual abuse and exploitation by aid workers. The UK’s international development secretary, Penny Mordaunt, has threatened to withdraw funding from aid organisations that do not take sexual harassment or abuse seriously. The UK is also among those countries whose police and anti-crime authorities actively pursue and prosecute UK citizens who sexually abuse children abroad, as was in the Harris case.

Like colonialism, foreign aid has the net effect of disempowering and infantilising “the natives” and their leaders. Nowhere is this more evident than in the international emergency relief and humanitarian sectors, which usually gain prominence during famines and other disasters.

However, such harassment, exploitation and abuse is likely to continue at that bastion of impunity, the United Nations. UN Secretary-General Antonio Guterres has promised to look into the matter and has even instituted a “confidential helpline” for victims of sexual harassment. However, I can confidently say from personal experience that this policy is unlikely to yield results, especially if the person being accused of harassment or other types of wrongdoing is a senior UN official. Any UN staff member who reports the misconduct of a senior UN official usually faces swift retaliation.

More importantly, as long as UN officials enjoy immunity from prosecution and as long as the UN’s internal justice system continues to fail whistleblowers, such abuse is likely to continue. (The UN Charter accords UN officials immunity from prosecution – a privilege that is not even accorded to ambassadors, who can be tried in their own countries, if not in the country where they are stationed, if they are implicated in illegal or criminal activities. Guterres’ office recently tweeted that UN staff members’ immunity would be waived in child abuse cases, but we are yet to see if this will materialise.)

The UN has to overhaul its internal justice system and put in place external, independent mechanisms that are more transparent and accountable – and which do not victimise whistleblowers. As Peter Gallo, a former investigator at the UN’s Office of Internal Oversight Services, says, nothing will change until there is real accountability at the UN “and that will never happen unless and until there is a truly independent and separate agency established that is not part of the UN secretariat but reports directly – and separately – to member states.”

Current and former female UN employees have reported a flawed internal justice and grievance system that is stacked against the victims. One of these women told the UK’s Guardian newspaper that she was raped by a senior UN staff member while working in a remote location but did not obtain justice despite medical evidence and witness testimonies.

More importantly, as long as UN officials enjoy immunity from prosecution and as long as the UN’s internal justice system continues to fail whistleblowers, such abuse is likely to continue.

When in 2005 the UN established an Ethics Office, UN staff members believed that they could report criminal or unethical behaviour confidentially without being punished. However, the UN Ethics Office has proved to be a channel through which wrongdoing is covered up. Very few UN staff members who have approached this office for help have obtained justice; on the contrary, many have been forced to resign or have been fired.

Meanwhile, the perpetrators are given unlimited freedom to do as they please. In 2015, a UN official who was accused of sexual harassment was even allowed to interview the woman who made the compliant against him. (This happened to me as well when I worked at the UN’s city agency, UN-Habitat. The panel selected to interview me consisted almost entirely of proxies of people I had accused of wrongdoing. Needless to say, I didn’t get the job.) As Handrahan asks: “How can the UN end suffering of vulnerable populations when female employees navigate hostile environments just by showing up for work, let alone when they attempt to raise issues of sexual abuse and exploitation by UN staff?”

The UN’s highly hierarchical, male-dominated and secretive environment also makes it difficult for women to report sexual harassment or other kinds of wrongdoing. One internal survey at UNAIDS found that about 40 women had experienced sexual harassment but only two had reported it. The fear of losing their jobs or enduring other forms of retaliation prevent women from coming forward, especially if the accused is a senior official, and particularly if he has the authority to renew – or not renew – their contracts. Meanwhile, few, if any, of these sexual predators lose their jobs or are demoted or reprimanded for their actions.

Furthermore, those who are tasked with reporting sexual abuse and other kinds of wrongdoing do not do so because they believe that their reports will reflect badly on their careers and impact their upward mobility within the organisation. Craig Sanders, the UNHCR official who told Handrahan to keep quiet, feared that exposure of the “food-for-sex” scandal could “ruin his career”. (It didn’t; Sanders is now the Deputy Director in the Division of Programme Support and Management at UNHCR’s headquarters in Geneva.)

A disgruntled American aid worker in Kosovo told David Reiff, the author of A Bed for the Night: Humanitarianism in Crisis, that UN officials believe that a critical report on the UN or on its activities will jeopardise their careers. “And that’s much more unlikely if your reports to UN headquarters say everything is fine than if they are critical. It may not be fine; in fact, it may all be going to hell in a handbasket. But if you value your career chances, you’d better have an awfully good reason to ring the alarm, and above all be damn sure the bad news isn’t going to piss off…major donors, and in turn make your bosses furious with you,” she explained.

The UN’s highly hierarchical, male-dominated and secretive environment also makes it difficult for women to report sexual harassment or other kinds of wrongdoing. One internal survey at UNAIDS found that about 40 women had experienced sexual harassment but only two had reported it.

Thanks to the Oxfam scandal, more mainstream media organisations have started to take aid agencies, including the UN, to task, which was not so before, probably because critics of the aid industry are usually associated with conservative right-wing groups. Even the so-called liberal media have realised that sexual abuse of vulnerable populations by aid workers is an offence that they can no longer ignore, and that this kind of abuse actually undermines the good work that many of these organisations claim to be doing. More exposure in the mainstream media of sexual abuse and exploitation by UN employees and aid workers might just force these agencies to take the issue more seriously.

Many proposals have been made to curb these crimes, including stiffer penalties for the perpetrators and stronger screening systems to prevent paedophiles from getting jobs in the aid sector. But given the stifling bureaucracy at the UN and at most international aid organisations – and their propensity to cover up scandals that make them look bad – perhaps the most effective strategy would be for donors to withdraw funding from any organisation where sexual harassment, exploitation or abuse has been reported and has not been dealt with adequately. There is no bigger incentive in the aid industry to change things than the threat of dwindling resources due to donor disgust.

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Ms Warah, the author of War Crimes, a sweeping indictment of foreign meddling in Somalia, and A Triple Heritage, among several other books, is also a freelance journalist based in Malindi, Kenya.

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

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

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

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

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

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

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

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

Table 1: Uganda's Unsustainable Debt

Table 1: Uganda’s Unsustainable Debt

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

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

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

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

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

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

Uganda’s fiscal policy is ‘a moving target’

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

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

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

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

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

Incompetence in industrialisation and job creation

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

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

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

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

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

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

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

Foreign direct investment

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

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

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

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

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

Tax evasion and illicit transfers

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

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

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

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

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

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

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Have the people of the United States become desensitised to the horrendous suffering inflicted by their government, or are they blissful co-imperialists?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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2017: The End of the Kenyan Judiciary’s Independence

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

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

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

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

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

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

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

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

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

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

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

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

Scrutinising the servers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Civil society as petitioner

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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