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MIDNIGHT SAFARI: How and why David Ndii was abducted

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The Inspector General (IG) Joseph Boinnet’s recent pronouncement that the police had formed a special squad to deal with the Jubilee government’s critics confirmed what many believe to be a plot by the government to clamp down on opposition politics and what it considers to be individual “dissidents” and provocateurs.
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The Inspector General (IG) Joseph Boinnet’s recent pronouncement that the police had formed a special squad to deal with the Jubilee government’s critics confirmed what many believe to be a plot by the government to clamp down on opposition politics and what it considers to be individual “dissidents” and provocateurs.

The police’s daring move of snatching opposition National Super Alliance (NASA) MPs and supporters on highways and from their homes at the beginning of this year was preceded by the sensational episode when the secret police stalked and ambushed David Ndii late last year. The kidnapping of Ndii, NASA’s economic and strategic advisor, in a hotel lobby in the south coast of Kenya and his “midnight safari” from Mombasa to Nairobi and then straight to the Directorate of Criminal Investigations (DCI) at Mazingira House off Kiambu Road – the successor to Nyati House’s operations – is a strategy that the government hopes to continue using to harass the opposition as it seeks to legitimise its contested rule.

Ndii’s abduction and his 500km journey in the dead of the night on December 4, 2017, was a precursor to lawyer Miguna Miguna’s dawn kidnapping from his house in the suburbs of Nairobi and his eventual deportation to Canada.

Nyati House is an oblong-shaped, deathly grey, macabre building that has always been the site of eerie and mysterious police activities. It was a torture chamber reserved for Kenyans who differed with President Daniel arap Moi’s despotic rule. Nyayo House, a sister to Nyati House, also in central Nairobi, was the other torture dungeon. The five-floor, two-part symmetrical building, which is currently undergoing renovations, has always been unkempt and ghostly, with exit doors permanently shut with metal grills.

Ndii’s abduction and his 500km journey in the dead of the night on December 4, 2017, was a precursor to lawyer Miguna Miguna’s dawn kidnapping from his house in the suburbs of Nairobi and his eventual deportation to Canada. The suspension of passports of targeted NASA advisors and supporters that the Jubilee government categorises as consultants and politicians, is yet another tactic the Jubilee government is using to possibly scuttle and disorient a recalcitrant opposition.

The kidnapping and transporting of state opponents by the secret police in the dead of the night is a method that was perfected by the former Communist countries of Eastern Europe and apartheid South Africa.

The night journey

It is some minutes past 7.00pm on December 4, 2017, a breezy, cool Sunday. David Ndii is walking towards the lobby of Leopard Beach Hotel in Diani on Kenya’s south coast. Suddenly, he is accosted by two nondescript fellows who enquire from him whether he is David Ndii. It is evident from their inquiry that they are not sure of his identity. All the same, Ndii answers in the affirmative. They ask him to accompany them. His first instinct is to ask them, “Who has sent you?” To which the police officers answer, “DCI director Ndegwa Muhoro.”

The police officers plead with him to be cooperative and to just allow them to lead him to the unmarked waiting vehicles (in their minds, they are probably praying that he should not cause a scene that will interfere with their mission). Ndii hesitates momentarily – he was walking to the hotel reception with his daughter to pick his feature phone popularly known as mulika mwizi (literally translated as thief catcher) in the Kiswahili language. He turns towards the hotel room where his wife is. The officers follow him, but on second thoughts, he decides he should not let the police near his family and into his room. So he tells his daughter to tell her mum that there are some police officers who want to take him away.

See also: NYAYO HOUSE: Unravelling the Architecture and Aesthetics of Torture

Ndii has been at the south coast for three days. He came down from Nairobi to attend his wife’s nephew’s wedding. After the wedding on December 3, 2017, he decides to stay on with his family – after all, it was the holiday season and they could do with some beach holidaying. In hindsight, Ndii’s muses, “I should just have proceeded to the reception area. That way maybe I’d have made it difficult for the police to take me away.” He was charging his mulika mwizi because his smart phone had fallen into the swimming pool. When it rains…it pours. This was the smart phone that had all his contacts so he could not immediately call his friends to tell them what was happening to him.

Sandwiched between two police officers in the back seat of one of the vehicles, Ndii is calm, but his mind is racing with all manner of thoughts about what they are planning to do with him.

The police take him to two new Subaru Outbacks, and together they drive to Diani Police Station, which is a short drive away. While the two policemen are accosting him, five others are lurking under the cover of darkness at the hotel’s parking bay.

The Subaru Outback, just like its predecessor, the Peugeot 504 station wagon, is today the preferred get-away car of secret police covert operations. It is hardy, fast, powerful and a 4-wheel drive. The Peugeot 504 station wagons used in the 1980s and 1990s were all white in colour. Because the secret police used to be recruited from different police stations and regions, white was the identification code that allowed covert police to easily recognise each other. Other than white Peugeot 504 station wagons, the other covert vehicles the secret police used was white Land Rovers.

In Nairobi’s central business district, according to one police source, one out of every four Subaru Outbacks prowling the streets is a police car. They come in different shades, but the secret police prefer metallic grey and silver colours. At the Central Police Station on Harry Thuku Road, next to the University of Nairobi, you will find some parked there. It is here that the police keep on flipping their registration number plates depending on the nature and state of their undercover missions.

At Diani Police Station, the two police officers who had abducted Ndii from the hotel communicate with some “higher authorities” on what is to be their next move. After mobile phone consultations, they get back into the vehicles and head to Mombasa island. On their way to the Likoni Ferry, they pull aside several times to get instructions. They are constantly on their phones, talking to “higher authorities” who do not seem to have made up their minds what they want the police officers, who are seven in number, to do with Ndii.

Agitated and cursing, the police drive back to Diani Police Station and park outside. After they had driven away to Likoni, a crowd had gathered at the station demanding to know where the police had taken Ndii. The crowd was composed of the Leopard Beach Hotel’s subordinate staff. It occurs to Ndii that while at the hotel, the housekeepers, waiters, stewards and other workers had taken note of his stay at the hotel and had come to the station to support him. His wife was also at the station with opposition leader Raila Odinga’s daughter, Winnie. They demand to see Ndii.

Kandie unleashes a smartphone and proceeds to read from Tuko.co.ke, an online news website. Listening to Kandie read fake news purportedly about him and his “illegal activities” against the state, Ndii – who is visibly amused and aghast that he was tracked all the way to the coast on account of fake stories about him – tells Kandie, “There are four ways in which I communicate and engage with the public. I write a newspaper column, I conduct public speaking, I run a Twitter handle and I engage in TV interviews.”

The Officer Commanding the Police Station (OCS) threatens Mwende, Ndii’s wife, Winnie and the crowd, telling them they are “trespassing a police station”. This ridiculous statement shows that he did not expect a crowd to mill around his station so quickly and openly showing solidarity with a now well-known public figure. This whole rigmarole – of to-ing and fro-ing – takes two hours. Then they set off for Nairobi at about 10.00pm. The same ritual – of the vehicles pulling aside to receive conflicting instructions – commences yet again.

Sandwiched between two police officers in the back seat of one of the vehicles, Ndii is calm, but his mind is racing with all manner of thoughts about what they are planning to do with him. One of the thoughts that crosses his mind is: Could they possibly be planning to execute him, just like they had executed radical sheikhs from Mombasa who had been summarily assassinated a while back? He asks to be allowed to take a toilet break. They refuse.

One of the officers is carrying an AK47, which he places under the seat. This time they drive all the way to the ferry’s gangplank. At this time of the night there are few ferries, so they have to wait for one to make its return trip from the other end of the crossing. When they cross the ferry, they head to a Total petrol station in the city centre, where they refuel and check tyre pressure. It dawns on the police officers that they are set for a long journey – which apparently they had not planned or prepared for – because they loudly complain and grumble about it. “Shouldn’t they have forewarned us,” they seem to say.

They had barely passed through the Makupa Causeway when the police inside the vehicle carrying Ndii were already wondering loudly when they would arrive in Nairobi. They estimate that they will arrive in Nairobi around 7 the next morning They abruptly stop somewhere in the bush and tell Ndii that he can now relieve himself. It is pitch dark. They all come out, but Ndii finds this idea of stopping in the middle of nowhere in the dark night spooky and not amusing at all. When they had stopped to refuel at the petrol station he had asked to be allowed to go the toilet and but they had not let him.

Left seated inside the vehicle as the officers oversee the servicing of the vehicles, an eerie thought crosses Ndii’s mind: If only they could allow me to go to the toilet, I could find a way to melt into the street. The city streets of Mombasa are lively at night and there a lots of people milling about. The policeman who was in charge of the AK47 that he had placed under the seat pulls it from there and hands it over to the other policeman guarding Ndii. Instinctively, he asks Ndii: “Do you have a firearm?” “No, I have never owned a gun,” Ndii tells him.

After refuelling, they drive like crazy. Ndii wonders if they are on a suicide mission. “Is this their plan to kill me?” he thinks to himself. “Let me belt up”, he says to one of his captors as they overtake and overlap the multiple 24-wheel trucks plying the busy highway. They are driving like obsessed mad men. They stop at Mariakani to buy snacks for themselves. They ask him whether he wants anything. He declines. It seems that these policemen were plucked from their homes, not having eaten supper, and not fully briefed on the nature of the mission they were supposed to undertake. They were unaware and unprepared for a long journey in the middle of the night.

For the first time since they went for him at the hotel, they engage him in a conversation. “Are you worried?” one of the policemen asks him. “We have no intention of harming you,” he hopes to reassure Ndii. What could they be up to with all this banter? “I don’t know who sent you,” Ndii answers him. The conversation does not go far. They drive dangerously the whole night. When they reach Mombasa Road in Nairobi, they take the northern corridor, which passes the North Airport Road and the Embakasi garrison and that crosses Kangundo Road through Ruai onto Ruiru railway line and then links with the Thika superhighway to connect with the Eastern bypass that starts at the Kiambu-Ruiru Road.

After they had dealt with their agenda of the day, Ruto turned to complaining about Ndii, lamenting how Ndii was feeding NASA luminaries with the political theory of “grabbing power”. His grouse was a regurgitation of the standard Jubilee Party cabal’s conventional thinking on Raila Odinga: “Raila is a ‘good man’, but has been captured by hardliners” – chief among them, one David Ndii.

Caught in the traffic snarl-up, the policemen buy a newspaper from the roving vendors. It is The Standard. On the front page, there is a mugshot of Ndii. They tune into the radio and the news is all about Ndii’s abduction. The police now turn to examine Ndii properly. They obviously did not know who he is. “Who is Ayub Ndii”, one of the policemen asks him. Ayub is actually Ndii’s uncle. In proper Kikuyu parlance, Ayub would be referred to in the English language as “younger father”.

Avoiding the superhighway, the police drive through the back roads behind the sprawling Mathare North slum. They are headed to the Directorate of Criminal Investigations DCI. When they reach there, Ndii is taken straight up the stairs to an office. The first thing he asks is, “Why am I here?” to a junior officer. “Can I have a phone?” The junior officer shrugs off his request – he is possibly as clueless as Ndii about why he has been brought here. “I am here to keep you company,” says the policeman nonchalantly. Another junior cop shows up and joins Ndii in the sparsely furnished office. He offers Ndii tea. Ndii refuses the offer. The two policemen are obviously Akamba because they converse in the Kamba language while keeping Ndii company, pending further instructions. Ndii is kept at the DCI for several hours.

Then the real police honcho shows up. He is the Senior Superintendent of Police (SSP), somebody called arap Kandie. The office that Ndii is being kept in is the Serious Crime Office (SCO). Kandie pompously announces that he is the head of SCO. “Am I under arrest?” Ndii immediately asks him. Kandie mumbles some unintelligible answer. He appears not to know why Ndii has been referred to his office. “We need to interrogate your crime,” he tells Ndii. “The last time I was under this kind of situation, it was 30 years ago, I hope we are not going back there?” Ndii tells Kandie.

“Trouble shooters”

In 1987, Ndii was a third year economics student at the University of Nairobi’s main campus. It was a time when there was a crackdown on university students. President Daniel arap Moi had unleashed his secret police to hound the students, who he deemed were in cahoots with political dissidents opposed to his dictatorial regime.

Ndii spent two weeks at the Nyayo House bunkers, where he was tortured and thoroughly interrogated. That was the same year that Miguna Miguna was arrested by the same secret police, and later forced into exile, first to Tanzania, where he stayed for three months, then further south to Swaziland, and eventually to Toronto, Canada, after a six-month sojourn in the southern African state.

SSP Kandie grouses over the fact that people like Ndii are “trouble shooters” and their only agenda is to cause “chaos and disaffection” among “peace loving Kenyans.” Why is he constantly attacking the government, he wonders aloud – loud enough to solicit a rebuttal from Ndii. He asks Ndii about the Larry Madowo NTV talk show in which he had participated several days ago. “I will not discuss political theory with you,” Ndii replies to Kandie.

Kandie unleashes a smart phone and proceeds to read from Tuko.co.ke, an online news website. Listening to Kandie read fake news purportedly about him and his “illegal activities” against the state, Ndii – who is visibly amused and aghast that he was tracked all the way to the coast on account of fake stories about him – tells Kandie, “There are four ways in which I communicate and engage with the public. I write a newspaper column, I conduct public speaking, I run a Twitter handle and I engage in TV interviews.”

At that point, Kandie asks his four junior officers – two had tagged along him to join the other two – to leave. Among the officers is a Mr. Cheruiyot and a Kamba deputy SSP. Kandie then produces a statement and asks Ndii to sign it, stating that it is for his own “protective custody”. Ndii declines to sign it. Instead, he writes his own statement, now detailing the four ways he engages with the public and how he goes about making his political pronouncements.

As he engages with Kandie over whether to sign the statement, several of Ndii’s friends and political activists are now gathered at the DCI precincts, demanding for his release. Among them are lawyers James Orengo and Edwin Sifuna. Having not eaten for more than 18 hours, Ndii asks his lawyers to bring him coffee from Java Café. At 2.30pm the police say the charge sheet is ready. So, accompanied by Orengo and Sifuna, and not by the police, Ndii is driven to the Milimani High Court.

Cheruiyot is the designated case officer and so accompanies Ndii to court. The Director of Public Prosecutions (DPP) Keriako Tobiko – who has since been appointed the Cabinet Secretary for Environment – is not ready to charge Ndii until the police present his office with what he is being charged with. The lawyers are frantic; if they do not move with haste, the police may find an excuse to lock Ndii in for the night because it is already past 4.00pm and there is no charge preferred against him. They then all head to Pangani Police Station to get a police bond. The case officer asks Ndii how much he wants to pay for his bond. The lawyers give an arbitrary figure of Ksh10,000 and Cheruiyot says KSh10,000 it is. Ndii is escorted by a convoy of ten vehicles and just before 5.00pm he gets his bond. The bond says that he should report to DCI on December 11, 2017.

The derisive characterisation of Raila as a “good man” by Jubilee Party carpetbaggers is a well-oiled narrative, deliberately and systematically propagated by the architects of the theory that forming a coalition government is one way of assuaging Raila’s electoral losses, fully knowing that these losses were politically engineered through electoral malpractices.

Ndii reports to the DCI on December 11 and rewrites his statement. The police in their characteristic prevarication and procrastination claim that they are still not done with their investigations, therefore the DPP cannot commence any prosecution against Ndii. He is again asked to report to DCI on December 28, 2017. No word on his presumed “illegal state activities”, or any clue as to when the police investigations will be complete. He again reports to DCI soon after new year’s day in January. “No instructions still from the DPP”. Days later, the DPP is moved from his job. “This thing has become a circus,” Ndii concludes, and from then henceforth, he will wait to hear from the new DPP on his case.

“A good man”

Ndii realises that the plan to fix him was well-orchestrated, but poorly executed. From the officers who abducted him, to the interrogating officers, it appeared to be a combined Kalenjin-Kikuyu affair, apart from the Kamba rookie officers who were asked to keep him company. The ethnicisation of the harassment of key opposition figures has now been taken to the apolitical police force: the police officers who are now sent to pick up and intimidate opposition figures are carefully selected to convey a deliberate ethnic supremacy of brutal and naked force as a counter-measure to an equally and deliberate ethnicisation of the opposition politics by the government.

A couple of weeks before Ndii was trailed all the way to the south coast and picked from the supposedly safe confines of a five-star beach hotel, a Jubilee Party politician allegedly had a meeting with Deputy President William Samoei Ruto. After they had dealt with their agenda of the day, Ruto turned to complaining about Ndii, lamenting how Ndii was feeding NASA luminaries with the political theory of “grabbing power”. His grouse was a regurgitation of the standard Jubilee Party cabal’s conventional thinking on Raila Odinga: “Raila is a ‘good man’, but has been captured by hardliners” – chief among them, one David Ndii.

The derisive characterisation of Raila as a “good man” by Jubilee Party carpetbaggers is a well-oiled narrative, deliberately and systematically propagated by the architects of the theory that forming a coalition government is one way of assuaging Raila’s electoral losses, fully knowing that these losses were politically engineered through electoral malpractices.

Contrary to what the Jubilee Party elites would like Kenyans to believe, the talk of forming another coalition government has always been the ruling party’s idea. This idea is today being pushed publicly by one Peter Karanja, the Secretary General of the National Christian Council of Kenya (NCCK), the umbrella body that groups together Protestant churches. Karanja’s argument, which is the base logic of Jubilee Party hawks, is that if the post of Prime Minister is created by amending the constitution or otherwise, Raila will calm down, and this will in effect also calm down his supporters and all shall live happily ever after.

The Jubilee Party fraternity’s characterisation of Raila as a “good man” masks their real intentions. After the successful signing of the Peace Accord, which was reached after the post-elective violence (PEV) of December 2007/8 on February 28, 2008, I sat down with an influential Central Kenya politician in an exclusive Nairobi golf club to review the new political arrangement. “Let me tell you, we (Kikuyu political cabal) found the perfect formula for dealing with these Luos. Invite them to join the government by creating for them a pompous office, provide some chase cars and security detail (which you can always withdraw and return at will), as you keep a tight leash on them. Give them some budget to entertain themselves. In the process, they will soon be caught up in the corruption dragnet. This will disarm them, so every time they raise their voice on state scandals, you quietly remind them of the ‘living in a glass house’ aphorism.”

The Jubilee Party barons also cynically refer to Raila as a “good man” because they believe he is “tamable”. When in 2008 he agreed to form a coalition government with Mwai Kibaki, the Kikuyu political elite sighed with great relief, but later boasted among themselves of how they were the masters of political chicanery. “We outsmarted our chief political nemesis. I suspect we are going to rule this country for a very long, long time,” said the bragging politician.

In this era of social media and smartphones, the police can no longer handle “government dissidents” the way they did twenty years ago. Add to this a progressive constitution and you have a government that is groping in the dark and resorting to knee-jerk reactions

So, early on when Ndii was identified as a “hardliner” by the Jubilee Party mandarins, they sought to isolate Raila from him, or if you may, Ndii from Raila – a scheme that does not seem to be working. Alongside, Ndii, they also sought to profile lawyer Norman Magaya, another NASA advisor and presumed “hardliner”. Convinced that the much-taunted swearing-in of Raila Odinga was going to take place on December 12, 2017, on Jamhuri (Independence) Day, the Jubilee Party elites began toying with the idea of scuttling the move by taming Ndii days before the event took place. That is why, when the police bonded him on December 5, 2017, they asked him to report to DCI on December 11, the eve of the swearing-in ceremony, in the belief that they would be disorganising and handicapping the arrangement.

The crux of the matter is that for the first time the government is having to play catch-up with an increasingly cheeky and unpredictable opposition. The speed and turn of political events have ensured that the government cannot second-guess what the opposition is really up to. Yes, the Jubilee Party “won” the election on October 26, 2017, but four months later, the government, even after having announced the cabinet, does not seem to have found its gravitas. Its best laid plans seem not to have taken root and those plans seem to be getting continuously disrupted.

In this era of social media and smartphones, the police can no longer handle “government dissidents” the way they did twenty years ago. Add to this a progressive constitution and you have a government that is groping in the dark and resorting to knee-jerk reactions, not really knowing what to do. It is patently clear, the “arrest” of Ndii and the deportation of Miguna Miguna were not well-thought out moves. The first priority of totalitarian regimes all over the world is complete control of the flow of information – when they realise this is a futile exercise, they resort to intimidation and underhand tactics.

Fred Matiang’i, the Cabinet Secretary for Internal Security, sounded ridiculous when he sought to explain to a section of the media that the government had not ordered a media shutdown, and why some TV stations had been closed. He said that the government had exposed a scheme by the opposition to cause a bloodbath in the guise of swearing-in Raila Odinga, “The People’s President”, at Uhuru Park. The well-attended ceremony – better attended than President Uhuru’s swearing at Moi International Sports Centre on November 28, 2017 – comprised a great multitude of people from all walks of life. Hence, the switching off of the NTV and KTN TV stations’ signals for ten days and Citizen TV for even longer, was an attempt at foreclosure by the government, a move that was reminiscent of the dark days of President Moi’s tyrannical rule.

Ndii’s “midnight safari” is, therefore, a metaphor for a dark state and a regime that is desperately looking for legitimacy.

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Mr Kahura is a senior writer for The Elephant.

Politics

No War, No Peace: Life and Death in Eritrea

Thirty years after Eritrea gained independence from Ethiopia, there has hardly been any meaningful development in this small nation in the Horn of Africa. On the contrary, the government’s authoritarian policies have undermined democracy and forced young people to flee the country.

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No War, No Peace: Life and Death in Eritrea
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Eritrea was an Italian colony from 1890 to 1941. Following the defeat of Italian forces by the Allied Forces during World War Two, Britain occupied Eritrea until its federation to Ethiopia in 1952. However, by 1962 Emperor Haile Selassie had annexed Eritrea, declaring that it was part of Ethiopia, and in this way ending the federation.

In 1961, a year before the annexation, the Eritrean Liberation Front (ELF) started an armed struggle for independence from Ethiopia. The armed struggle continued for 30 years against successive Ethiopian regimes until 1991, when the Eritrean People’s Liberation Front (EPLF), who had replaced the ELF, defeated the Ethiopian forces in Eritrea. Eritrea became formally independent following a United Nations-supervised referendum in 1993.

From the beginning, the EPLF (now the People’s Front of Democracy and Justice – PFDJ)’s strategy for achieving liberation and national unity was for it to dominate all social, political, and economic spaces. The PFDJ implemented a highly centralised and opaque two-track system of administration: an unseen, powerful inner circle of elites; and public structures that projected an image of egalitarian self-sufficiency. This centralised and opaque model of governance continues today.

Since liberation, PFDJ has banned all opposition parties and treats all non-mass-movement organisations (i.e. independent civil society) with suspicion; hence there are no independent national civil society organisations in the country. Without any consultation, the PFDJ has nationalised all land; it has established a unitary form of government, and it has changed the administrative boundaries within the country. Despite these totalitarian tendencies, in 1994, the PFDJ, as the Provisional Government of Eritrea, set up the Constitutional Assembly to draft the Constitution. The task was completed in 1997. But the Constitution remains unimplemented.

Border dispute

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

The EEBC delivered its border decision on 13th April 2002, placing the town of Bademe, the flashpoint of the border conflict, on the Eritrean side. The Ethiopian government contested the allocation of Bademe to Eritrea. Therefore, a situation of “no war, no peace” ensued between the two countries as President Isaias Afewerki refused any dialogue on the issue because the parties had agreed that the decision of the EEBC was final and binding.

President Isaias Afwerki, who is also the chair of the PFDJ, took advantage of the strained relationship with Ethiopia to:

  1. indefinitely postpone the implementation of the 1997 Constitution as well as the general elections;
  2. arrest and disappear dissenters, especially University of Asmara students and the members of the government known as G15 who promoted a democratisation process (2001);
  3. close the independent media and arrest journalists (2001);
  4. abolish the Eritrean National Assembly (i.e. the Eritrean Parliament) (2002);
  5. maintain a high level of militarisation of the country.

To maintain a high level of militarisation, the government vertically integrated the National Service to the National Development Programme (i.e. the Warsay Yikaalo National Development Programme) and to Education. This integration allows the Eritrean government to move students into the National Service and the National Development Programme from high schools (i.e. Grade 12) and indefinitely extends the period of service of the conscripts, hence taking full control over the working population.

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

Through the integration of the National Service into the Warsay Yikaalo National Development Programme and Education, the government has limited the citizenship rights of conscripts who while in service cannot: legally obtain a mobile phone or SIM card; get or renew a business licence; access land; and access travel documents and exit visas. Deserters or objectors are denied any rights and cannot access state services. Thus, the official Eritrean concept of citizenship is intrinsically linked to conscription and the fulfilment of National Service duties.

The National Service is a combination of military training and civil service, working for little pay in non-military activities such as agriculture, the construction of roads, houses and buildings and mining. The Warsay National Development Programme relies on the deployment of te National Service (Warsay) and defence personnel (Yikaalo) as a labour force. The programme operates under the umbrella of the Ministry of Defence.

Since 2003, the government has closed the University of Asmara (the only university in the country). It has also required that all Eritrean students complete Grade 12 at the Sawa military training camp. Students who have not completed their final year of secondary school at Sawa and have not sat for the National School Certificat, cannot access college education. The PFDJ has replaced Asmara University with regional colleges, which are administered jointly by an academic director and a military director.

National Service conscripts work for an indefinite period on development projects, the administration of ministries and local authorities, as well as in PFDJ-owned businesses. Such work is carried out for very little pay and in conditions that a UN Commission of Inquiry on Human Rights in Eritrea described as “forced labour”.

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa. The government will not issue an exit visa to any Eritrean above the age of five, irrespective of their situation (i.e. family reunification, health, etc.)

The government’s control over the Eritrean people is a political, social and economic process of deprivation and human rights violations for which it refuses to take any responsibility. It is systematically impoverishing the population. Therefore, Eritrean youth face having to choose between the life of slave labour or exile. They describe their situation as slavery: “[The] situation in Eritrea and long time ago with slaves is the same. We build the houses of the elites without money. We work on farms of government officials for no money. If you are educated, they deploy you to anywhere…for a short time, you can tolerate it…but this is for life.”

Faced with accusations of human rights violations, the government reverts to “threat” mode. It labels any reference to human rights violations as “lies” and “ploys” of its enemies to undermine the state. The PFDJ Head of Political Affairs, Mr Yemane Gebreab, dismissed the findings of the Commission of Inquiry on Human rights by saying: “….[it is] really laughable……There is no basis to the claims of the Commission of Inquiry…”

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa.

In addition to taking control over the working population, the government also took control of the economic sectors, including finance, import and export, transport and construction. It has achieved control over the economic sphere through a process of unfair competition with private business, facilitated by the fact that it does not pay taxes and does not comply with labour, environmental, and other regulatory requirements. Also, as the regime has control over the working population, it has unlimited access to a large pool of free labour, effecting a net transfer of the workforce away from the private sector. This policy of moving human resources to labour sites identified and controlled by the government has crippled the private sector, especially the agricultural industry, which still relies to a large extent on subsistence farming.

The government’s control and domination of the economy have not increased economic activity or productivity. The economy is stagnating, further weakening the private sector and restricting economic opportunities for Eritreans.

Notwithstanding PFDJ’s rhetoric, Eritrean youth experience the state as an albatross around their necks. They understand the state in terms of spy networks; as a human rights violator curtailing civil, political, and economic rights and as the as the source of torture and deprivation. They see it as the source of all restrictions and deprivations. This is the reason why they flee the country.

Peace Agreement with Ethiopia and its aftermath

In April 2018, the Ethiopia Prime Minister Abiy announced the acceptance of the EEBC decision, in particular the allocation of the flashpoint town of Bademe to Eritrea. In this way, he started a process that led to the signing of the Ethiopia Eritrea Peace Agreement in July 2018, thus ending two decades of “no war, no peace”. The land borders opened to much jubilation in 2018. However, by April 2019, the Eritrean government had closed them all. So far, the only achievements of the Peace Agreement are the reopening of embassies and telecommunication lines and the resumption of flights.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country. Soon after the signing of the Peace Agreement, the Eritrean Catholic priest Aba Teklemichael pointed to the sweeping reforms implemented by Prime Minister Abiy in Ethiopia, and urged the Eritrean government to also undertake necessary reforms in Eritrea and to democratise the government. By Easter 2019, the Eritrean Catholic bishops were also calling for a constitutional government and the rule of law. They also encouraged the government to release political prisoners and start a process of reconciliation within the country. However, to date there have been no reforms in the country, a state of affairs confirmed by the UN Special Rapporteur on Human Rights in Eritrea who at the start of this year reported that she had: “ ……no tangible evidence of a meaningful and substantive improvement in the situation of human rights in Eritrea”.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country.

The ongoing peace process is not transparent; it has mostly remained an elite political level agreement unable to deliver on the economic front or to resolve the issue of Bademe as both Prime Minister Abiy and President Isaias Afewerki have marginalised the Tigray People’s Liberation Front (TPLF) for political motives. The Eritrean government has increasingly identified the Tigray State and the Tigray People’s Liberation Front (TPLF) as an existential threat to Eritrea, thus justifying the maintenance of a high level of militarisation. Consequently, Eritrean youth continue to flee the country. In 2018, UNHCR ranked Eritrea as the ninth-largest refugee-sending state in the world.

Ailing health sector

The totalitarian agenda of the Eritrean government did not spare the health sector either. The task of reconstructing the Eritrean health system after the liberation struggle and following the 1998-2000 Eritrea-Ethiopia border war was monumental. It was an undertaking that the late and former Minister of Health Saleh Meki undertook with passion, commitment, and zest from 1997 to 2009 when Ms Amina Nurhussein replaced him.

In his efforts rebuild the Eritrean health system, Saleh Meki sought to establish strategic partnerships with critical international health institutions, private practitioners, faith-based organisations, such as the Catholic Church, as well as professional members of the Eritrean diaspora. The former Minister of Health carried on with his efforts despite the enormous pressure to conform to the dictates of President Isaias Afwerki, and the concerns generated by the closure of international non-governmental organisations, as well as the restriction of movement imposed on all organisations working in the country. Against all the odds, he re-established the medical school known as the Orotta Medical School.

Saleh Meki died on 2nd October 2009. Soon after his death, all the medical missions of international organisations that he had worked so hard to bring to Eritrea ended. By 2011 the Eritrean Government forced the closure of all private medical clinics. And, by 2018 a total of 29 Catholic health facilities providing maternal and child health support and serving some of the more remote communities in the country were closed. The seizure and closure, of the Catholic health facilities was carried out in complete disregard to the health and safety of the patients, most of whom were left to fend for themselves.

There was no clear justification for the closure of the private health facilities. However, the closure of the Catholic health facilities was justified as an enforcement of the 1995 Proclamation to standardise and articulate religions institutions (Proclamation No 73 of 1995). The Proclamation prohibits religious bodies from engaging in social and welfare services. This position is contested by all faith-based organisations, especially since there was no consultation in the development of the law. The Eritrean Catholic bishops’ communication with the government on the seizure and closure of their health facilities point out that the facilities operated by abiding with all the requirements of the Ministry of Health.

Poor COVID-19 response

The closure of health facilities has reduced the number of available beds and the overall capacity of the health system. Hence, Eritrea, with a score of 0.434, was ranked 182nd out of 189 countries by the 2019 Human Development Index. The low Human Development Index combined with a hospital bed capacity of 7 beds for 10,000 people, and no available data as to the number of health professionals (i.e. doctors and nurses) available per 10,000 people, suggests that the situation might be even more dire. And the poor connectivity of the country (i.e. mobile phones, internet, broadbands) means that the country’s capacity to deal with pandemics such as COVID-19 is low.

The low capacity of the Eritrean health system to deal with the COVID-19 pandemic was also of concern to the diaspora Eritrean Healthcare Professionals Network (EHPN), which urged the Eritrean government to immediately implement the World ealth Orbanization (WHO) and Centre for Disease Control (CDC) guidelines and advisories to contain the pandemic. EHPN expressed concern that the country lacks the necessary prerequisites to implement hygiene measures because: “There is a shortage of water, disinfectants, laboratories that carry out diagnostic tests and medical professionals, including nursing and technical staff. There is also a lack of functioning intensive care units with adequate ventilation equipment needed to properly treat patients. The reality is that many Eritreans will not be able to seek and obtain medical treatment in their homeland or neighbouring countries. In short, the Eritrean health system is not adequately prepared for COVID 19.”

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The government’s willingness to reject donations has, however, launched a COVID-19 appeal among citizens. The appeal is remarkable for the lack of information as to how the funds raised will be used. There is no single COVID-19 emergency response bank account designated for the appeal; hence, in the diaspora, funds are collected in different foreign bank accounts set up by Eritrean embassies. Consequently, there is a real danger that the funds will never enter the country and will disappear into the government’s opaque offshore financial system. Also, there is no information as to how the Ministry of Health will use the funds. Reports by Eritrean human rights activists say the appeal is coerced, confirming the lack of transparency and accountability of the fundraising process.

There is also no transparency in the COVID-19 data that the Eritrean government is providing. It reported the first four COVID-positive cases on the 21st and 23rd of March. One patient was an Eritrean national resident in Norway, and the other three positive patients were Eritrean nationals returning from Dubai. Because of these events, by 26th March, the government banned all commercial passenger flights for two weeks. It also closed schools. And, by 1st April, it imposed COVID-19 lockdown measures.

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The lockdown measures did not include the closure of the Sawa military training camp or the release of political prisoners. The government has recently released 27 Christian prisoners, who were imprisoned without charge or trial for as long as sixteen years. Their release is conditional on their family lodging their property deeds with the government as a guarantee that the people released will not leave the country.

While maintaining a strict lockdown, the Eritrean government has allowed mass gatherings to celebrate the graduation of the 33rd round of Sawa military training camp graduates as well as the transfer of Grade 12 conscripts to the facility.

From 1st April to 18th April, the Eritrean government reported 39 COVID positive cases, all linked to Eritreans visiting or returning from their travels. Then, for two months, there were no new cases reported. After that, the number of COVID-positive cases increased, and by the 12th of October, Eritrea reported a total of 414 COVID-positive patients and 372 recoveries.

Though the government makes repeated references to quarantine centres, it has not shared a list of the centres, their location or capacity. It is also not reporting the daily number of COVID tests. Nor has it reported any COVID-related deaths or any community transmission of the virus. It continues to attribute all the new COVID cases to Eritreans returning through “irregular land and sea routes” from Ethiopia, Sudan, Djibouti and Yemen. But there is no explanation as to why so many nationals are travelling despite the government’s strict lockdown procedure that prohibits all movement between towns and that restricts te movement of any vehicles, including buses and taxis, which require movement permits. Such permits are not easy to obtain.

Finally, there are only five incidents of Ministry of Information reporting the number of individuals tested or in quarantine:

  1. 3,000 quarantined – 8th May 2020;
  2. 5,270 quarantined – 3rd June 2020;
  3. 7,158 nationals returned through irregular land and sea routes. Not clearly stated but the implication is that they were all quarantined – 14th June 2020;
  4. 18,000 citizens allegedly returned through irregular land and sea routes. This movement occurred in the last four months. Again, not clearly stated but the implication is that they were all quarantined – the 12th October 2020;
  5. 41,100 tests – 12th October 2020.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The COVID lockdown in Eritrea, like in other countries, has brought economic activities to a standstill. The difference between Eritrea and other countries is that the Eritrean economy was already on its knees before the lockdown and the Eritrean government has not made any attempt – beyond extorting donations from its citizens – to alleviate the suffering of the people with economic support packages. Consequently, Eritreans are hungry and desperate and have started to ignore strict lockdowns. They are on the streets selling all kinds of goods. Women are out in the streets, making tea and cooking food for sale. Family and friends describe Asmara, the capital city, as full of mobile tea shops.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The Eritrean Afars have, through the Red Sea Afar Human Rights Organisation (RSAHRO), issued a press statement, describing their situation under lockdown as a: “… siege imposed by the Eritrean regime on the citizens of the region.”. They warn of the danger of hunger in their area. They also describe confiscation of boats, camels and supplies by the military, closed health centres, unprepared quarantine centres, as well as lack of medical supplies. The human rights organisation also accuse General Tekle Manjus of confiscating trucks of emergency food sent from Asmara for distribution among the Afar.

The Afar coastal area is not the only area in danger of hunger. The information from Eritrea is that hunger is very real all over the country. The government media and social media accounts do not report the danger of hunger or any of the difficulties that the people are facing during this COVID-19 emergency. Their postings give the impression that Eritrea is doing just fine.

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The Search for a Puppet Chief Justice

The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results.

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The Search for a Puppet Chief Justice
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Anxiety over who will replace Chief Justice David Maraga exploded into the public domain on Friday, October 16, 2020, when a member of the Judicial Service Commission (JSC) alleged a plot to delay the recruitment process. Macharia Njeru, one of the two representatives of the Law Society of Kenya (LSK) to the JSC, claimed in a public statement that the Chief Justice and a few others were “hellbent on derailing the orderly recruitment of his successor and leaving the institution of the Judiciary in a crisis of leadership”.

LSK immediately dissociated itself from Macharia’s position and asserted that the “state capture of the Judiciary and the Judicial Service Commission would not be executed through its representatives”.

The parliamentary Justice and Legal Affairs Committee had earlier failed to prevail on Justice Maraga to take early terminal leave, and subsequently published a proposal to change the law on when to begin recruitment of a new Chief Justice. The Chief Justice will officially retire on January 12, 2021, when he turns 70, but he is expected to take leave on December 15, 2020.

Powerful individuals in the country’s politics cannot wait to see Justice Maraga’s back because of his surprising show of spine. On September 1, 2017, the mild-mannered and soft-spoken jurist led a four-judge majority of the Supreme Court to annul the presidential election in a decision that reverberated across the globe. Last month, Justice Maraga advised the President to dissolve Parliament for failing enact laws to increase representation of women in national elected leadership on the strength of a High Court declaration and six petitions.

Between the two monumental decisions, the Chief Justice has called out the President over judiciary budget cuts, disregard for court orders and verbal attacks on the institution he leads.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric. None of these backhanded actions have brought the politically powerful any satisfaction, hence the abiding desire to find a more user-friendly Chief Justice.

Vacancies in the Judiciary can only be advertised fourteen days after they open up, according to the law, which means that the Chief Justice, who also chairs the JSC, plays no role in recruiting his successor. Previously, individuals in the presidency unsuccessfully sought to influence who becomes Chief Justice since the Constitution of Kenya, on its promulgation in 2010, retired Justice Evan Gicheru in February 2011. At the time, President Mwai Kibaki nominated the Court of Appeal’s Justice Alnashir Visram for Chief Justice without inviting applications or conducting interviews. He was countermanded by the newly-constituted JSC, which then conducted one of the most brutal public interviews for the position before choosing civil society icon and law scholar Willy Mutunga.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric.

Dr Mutunga’s transparent recruitment freed him from the usual baggage that would accompany a political appointment to lead the transformation of the judiciary into an independent, publicly accountable institution [Full disclosure: I was communication advisor in the Office of the Chief Justice from 2011 to 2015]. By the time Dr Mutunga chose to retire a year early in June 2016, he had trebled the number of judges to increase efficiency, built confidence and secured the highest funding ever for the institution. He also ring-fenced decisional independence that would enable courts to act as a check on executive and legislative power.

After the Supreme Court upheld the 2013 presidential election, an internal corruption investigation in the Judiciary sucked the institution into a confrontation with the National Assembly, which petitioned the President to appoint a tribunal to investigate six members of the JSC. A five-judge High Court bench neutered the tribunal before it could sit and presented the first contest between Dr Mutunga and President Uhuru Kenyatta.

President Kenyatta would play possum with a list of 25 judge nominees presented to him by the JSC, first appointing 11 and then keeping the other 14 in abeyance for a year. An amendment to the law to require the JSC to send the President three names from which he could choose the Chief Justice was struck down on account of unconstitutionality.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament. By the time interviews for Dr Mutunga’s replacement began in September 2016, the Executive was disoriented and unable to muscle its substantial vote strength in the JSC for a single candidate.

Although the presidency nominates two non-lawyers as members of the JSC in addition to the Attorney General and a nominee of the Public Service Commission, thus controlling 36 per cent of the vote, the Judiciary has five members – the Chief Justice as chair and one representative each for the Supreme Court, the Court of Appeal, the High Court and the magistrates – and has 45 per cent voice. The Law Society of Kenya’s two representatives – 18 per cent – provide an important swing vote for the Executive or the Judiciary whenever there is no consensus.

Justice Maraga of the Court of Appeal emerged as the dark horse in the three-month search for the Chief Justice on the strength of his electoral law jurisprudence. Earlier attempts to name Supreme Court judge Jackton Ojwang as acting Chief Justice were abandoned. Justice Ojwang trailed fellow Supreme Court judge Smokin Wanjala, Kenyan-American law professor Makau Mutua, and constitutional law expert Nzamba Kitonga.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament.

The Supreme Court’s annulment of the presidential election in September 2017 produced voluble complaints from President Kenyatta, who threatened unspecified action against the Judiciary. The independence of the Judiciary, represented in the person of the Chief Justice, has clearly rankled President Kenyatta and his supporters. He subsequently began a systematic reorganisation of the Executive’s representatives to the JSC by picking a judiciary insider, Court of Appeal president, Kihara Kariuki, to replace Attorney General Githu Muigai. Even before the terms of public representatives Winnie Guchu and Kipng’etich Bett were midway, he recalled them and replaced them with Prof Olive Mugenda and Felix Koskey. And then he declined to gazette the re-election of Mohammed Warsame as Court of Appeal representative to the JSC. Judge Warsame was finally seated without re-taking oath courtesy of a court decision that obviated the need for his election to be gazetted. He joined the judiciary column led by the Chief Justice, Deputy Chief Justice Philomena Mwilu, who had been elected to represent the Supreme Court, and Justice David Majanja, who represents the High Court.

Fears have been rife that the election of the magistrates’ representative to replace Chief Magistrate Emily Ominde in December and the replacement of LSK woman representative Mercy Deche could provide an opportunity for the Executive to support pliant candidates, in addition to Macharia Njeru.

It is likely that urgent attempts to start the Chief Justice’s recruitment could exclude the two representatives of the magistrates and the LSK, thus denying the panel two critical voices. Voting strength in the JSC could also be significantly altered if some of the commissioners apply for the Chief Justice’s position. For one, it is not clear if the 62-year-old Deputy Chief Justice Philomena Mwilu, who already represents the Supreme Court in the JSC, will act as chairperson of the commission once Justice Maraga leaves.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Political horse-trading with Parliament is a necessity for nominees to the position of Chief Justice and Deputy Chief Justice to be confirmed during vetting. Often, politicians view the Chief Justice’s position as one of the spoils to be traded during ethno-regional deal-making. So far, the Chief Justice’s position has been occupied by a kaleidoscope of Kenyans – including many ethnic and religious colourations.

The law only provides for the Deputy Chief Justice to act as Chief Justice “[i]n the event of the removal, resignation or death” and only for a period not exceeding six months pending the appointment of a new one. It remains to be seen if legal experts will argue that retirement is not equivalent to removal, resignation or death. Should Justice Mwilu also throw her hat in the ring for the top job, she would not be able to cast a vote as a JSC member.

Another JSC member who has to weigh between voting and chasing the job is 66-year-old Justice Kihara Kariuki, believed to be a front-runner to succeed Chief Justice Evan Gicheru in 2011 but has bided his time, rising to President of the Court of Appeal before accepting to serve as Attorney General. Meanwhile, Justice Mwilu has been embroiled in petitions seeking her removal from office since the Supreme Court annulled the presidential election. Two years ago, the Director of Public Prosecutions and the Director of Criminal Investigations launched a highly publicised effort to arrest and charge her with corruption before the High Court discharged her and advised that complaints against her be first have been processed through the JSC. Justice Mwilu has since tied the JSC in legal knots over the involvement of the Attorney General and one other member in hearing the complaint against her, claiming that they have shown bias.

Although the Constitution allows a Chief Justice to serve for a maximum of 10 years, the practice so far has been to choose individuals who are close to the retirement age, with the effect that those chosen preside over only presidential petitions from one election cycle before they reach the retirement age of 70. If appointments continue to be short-term to limit the pain individuals can inflict on the institution, candidates in their mid-60s appear to be chosen to navigate the 2022 election and leave before the 2027 one.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Although the Supreme Court’s Justice Smokin Wanjala gave a good showing at the 2016 interviews and was ranked second, his age – 60 – means that if appointed, he would hold the job for 10 years. Law scholar Makau Mutua, 62, who was ranked third in the 2016 interviews for Chief Justice, could also give the job another try, as would former Attorney General Githu Muigai, who would similarly be hampered by fears of serving out the 10 years in the post.

The Executive’s frustration with the Judiciary has been expressed as blame for the slow pace of corruption cases, where the courts are criticised for not pulling their weight to deliver quick convictions. The most evident sign of frustration has been the President’s refusal to appoint 41 individuals nominated by the JSC as Court of Appeal and High Court judges. The law does not permit the JSC to reconsider its nominees after the names have been submitted to the President, except in the case of death, incapacity or withdrawal of a nominee. Last week, judge designate Harrison Okeche died after a road traffic accident before he could be sworn in because the President has not published the names as expected. It remains to be seen how the JSC responds.

Chief Justices chair the Judicial Service Commission, and preside over the Supreme Court, which decides the presidential election petitions. Besides the very constrained and collegial power in these two sites, the Chief Justice also exercises administrative power in empanelling High Court benches for constitutional references, and posts judges – powers shared with the President of the Court of Appeal and the Presiding Judge of the High Court.

A Chief Justice cannot direct judicial officers – from the lowliest magistrate to the Supreme Court judge – on how to decide a matter. Much of the power she or he wields is moral and symbolic. The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results for those seeking a puppet Chief Justice.

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African Continent a Milking Cow for Google and Facebook

‘Sandwich’ helps tech giants avoid tax in Africa via the Netherlands and Ireland.

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Algorithmic Colonisation of Africa
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Google’s office at the airport residential area in Accra, Ghana, sits inside a plain white and blue two-storey building that could do with a coat of paint. Google, which made more than US$ 160 billion in global revenue in 2019, of which an estimated US$ eighteen billion in ‘Africa and the Middle East’, pays no tax in Ghana, nor does it do so in most of the countries on the African continent.

Google Street View of the building registered as Google's office in Accra

Google Street View of the building registered as Google’s office in Accra

It is able to escape tax duties because of an old regulation that says that an individual or entity must have a ‘physical presence’ in the country in order to owe tax.  And Google’s Accra office clearly defines itself as ‘not a physical presence.’ When asked, a front desk employee at the building says it is perfectly alright for Google not to display its logo on the door outside. ‘It is our right to choose if we do that or not’. A visitor to the building, who said she was there for a different company, said she had no idea Google was based inside.

Facebook is even less visible. Even though practically all 250 million smartphone owners in Africa use Facebook, it only has an office in South Africa, making that country the only one on the continent where it pays tax.

Brick and mortar

The physical presence rule in African tax laws is ‘remnant of a situation before the digital economy, where a company could only act in a country if it had a “brick and mortar” building’, says an official of the Nigerian Federal Inland Revenue Service (FIRS), who wants to remain anonymous. ‘Many countries did not foresee the digital economy and its ability to generate income without a physical presence. This is why tax laws didn’t cover them’.

Tax administrations globally have initiated changes to allow for the taxing of digital entities since at least 2017. African countries still lag behind, which is why the continent continues to provide lucrative gains for the tech giants. A 2018 PriceWaterhouseCoopers report noted that Nigeria, Africa’s largest economy, has seen an average of a thirty percent year-on-year growth in internet advertising in the last five years, and that the same sector in that country is projected, in 2020, to amount to US$ 125 million in the entertainment and media industry alone.

‘Their revenue comes from me’.

William Ansah, Ghana-based CEO of leading West African advertising company Origin 8, pays a significant amount of his budget to online services. He says he is aware that tax on his payments to Facebook and Google escapes his country through what is commonly referred to as ‘transfer pricing’ and feels bad about it. ‘These companies should pay tax here, in Ghana, because their revenue comes from me’, he says, showing us a receipt from Google Ireland for his payments. During this investigation we were also shown an advert receipt from a Nigerian Facebook ad that listed ‘Ireland’ as the destination of the payment.

Like Google, Facebook does not provide country-by-country reports of its revenue from Africa or even from the African continent as a whole, but the tech giant reported general revenue of US$ sixty billion as a whole from ‘Rest of the world’, which is the world minus the USA, Canada, Europe and Asia.

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

The specific transfer pricing construction Google and other tech giants such as Facebook use to channel income away from tax obligations is called an ‘Irish Double’ or ‘Dutch Sandwich’, since both countries are used in the scheme. In the construction, the income is declared in Ireland, then routed to the Netherlands, then transferred to Bermuda, where Google Ireland is officially located. Bermuda is a country with no corporation tax. According to documents filed at the Dutch Chamber of Commerce in December 2018, Google moved US$ 22,7 billion through a Dutch shell company to Bermuda in 2017.

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

An ongoing court case in Ghana — albeit on a different issue — recently highlighted attempts by Google to justify its tax-avoiding practices in that country. The case against Google Ghana and Google Inc, now called Google LLC in the USA, was started by lawyer George Agyemang Sarpong, who held that both entities were responsible for defamatory material against him that had been posted on the Ghana platform. Responding to the charge, Google Ghana contended in court documents that it was not the ‘owner of the search engine www.google.com.gh’; that it did not ‘operate or control the search engine’ and that ‘its business (was) different from Google Inc’.

Google Ghana is an ‘artificial intelligence research facility’.

Google Ghana describes itself in company papers as an ‘Artificial Intelligence research facility’. It says that its business is to ‘provide sales and operational support for services provided by other legal entities’, a construction whereby these other legal entities — in this case Google Inc — are responsible for any material on the platform. Google Ghana emphasised during the court case that Ghana’s advertising money was also correctly paid to Google Ireland Ltd, because this company is formally a part of Google Inc.

Rowland Kissi, law lecturer at the University of Professional Studies in Accra describes Google’s defence in the Sarpong court case as a ‘clever attempt’ by the business to shirk all ‘future liability of the platform’. Kissi is cautiously optimistic about the outcome, though: while the case is ongoing, the court has already asserted that ‘the distinction regarding who is responsible for material appearing on www.google.com.gh, is not so clear as to absolve the first defendant (Google Ghana) from blame before trial’. According to leading tax lawyer and expert Abdallah Ali-Nakyea, if the ‘government can establish that Google Ghana is an agent of Google Inc, the state could compel it to pay all relevant taxes including income taxes and withholding taxes’.

Cash-strapped countries

Like most countries, especially in Africa, Nigeria and Ghana have become more cash-strapped than usual as a result of the COVID 19 pandemic. While lockdowns enforced by governments to stop the spread of the virus have caused sharp contractions of the economy worldwide, ‘much worse than during the 2008–09 financial crisis’, according to the International Monetary Fund, Africa has experienced unprecedented shrinking, with sectors such as aviation, tourism and hospitality hardest hit. (Ironically, in the same period, tech giants like Google and Facebook have emerged from the pandemic stronger, due to, among others, the new reality that people work from home.)

With much needed tax income still absent, many countries have become even more dependent on charitable handouts. Nigeria recently sent out a tweet to ask international tech personality and philanthropist, Elon Musk, for a donation of ventilators to help weather the COVID 19 pandemic: ‘Dear @elonmusk @Tesla, Federal Government of Nigeria needs support with 100-500 ventilators to assist with #Covid19 cases arising every day in Nigeria’, it said. After Nigerians on Twitter accused the government of historically not investing adequately in public health, pointing at neglect leading to a situation where a government ministry was now begging for help on social media, the tweet was deleted. A government spokesperson later commented that the tweet had been ‘unauthorised’.

Cost to public

The criticism that governments often mismanage their budgets and that much money is lost to corruption regularly features in public debates in many countries in Africa, including Nigeria. However, executive secretary Logan Wort of the African Tax Administration Forum ATAF has argued that this view should not be used to excuse tax avoidance. In a previous interview with ZAM Wort said that ‘African countries must develop their tax base. It is only in this way that we can become independent from handouts and resource exploitation. Then, if a government does not use the tax money in the way it should, it must be held accountable by the taxpayers. A tax paying people is a questioning people’.

‘A tax paying people is a questioning people’

Commenting on this investigation, Alex Ezenagu, Professor of Taxation and Commercial Law at Hamad Bin Khalifa University in Qatar, adds that in matters of tax avoidance by ‘popular multinationals such as Facebook and Google, it is important to understand the cost to the public. If (large) businesses don’t pay tax, the burden is shifted to either small businesses or low income earners because the revenue deficit would have to be met one way or another’. For example, a Nigerian revenue gap may cause the government to increase other taxes, Ezenagu says, such as value added tax, which increased from five to seven and a half percent in Nigeria in January. ‘When multinationals don’t pay tax, you are taxed more as a person’.

Nigeria has recently begun to tighten its tax laws, thereby following in the footsteps of Europe, that last year made it more difficult for the digital multinationals to use the ‘Irish Double’ to escape tax in their countries. South Africa, too, in 2019 tailored changes to its tax laws in order to close remaining legal loopholes used by the tech giants. These ‘could raise (tax income) up to US$ 290 million a year’ more from companies like Google and Facebook, a South African finance source said. With US$ 290 million, Ghana’s could fund its flagship free senior high school education; Nigeria could fully fund the annual budget (2016/2017 figures) of Oyo, a state in the south west of the country.

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

Nigeria’s new Finance Act, signed into law in January 2020, has expanded provisions to shift the country’s focus from physical presence to ‘significant economic presence’. The new law leaves the question whether a prospective taxpayer has a ‘significant economic presence’ in Nigeria to the determination of the Finance Minister, whose action with regard to the tech giants is awaited.

In Ghana, digital taxation discussions are slowly gaining momentum among policy makers. The Deputy Commissioner of that country’s Large Taxpayer Office, Edward Gyamerah, said in a June 2019 presentation that current rules ‘must be revised to cover the digital economy and deal with companies that don’t have traditional brick-and-mortar office presences’. However, a top government official at Ghana’s Ministry of Finance who was not authorised to speak publicly stated that, ‘from the taxation policy point of view, the government has not paid a lot attention to digital taxation’.

He blamed the ‘complexity of developing robust infrastructure to assess e-commerce activity in the country’ as a major reason for the government’s inaction on this, but hoped that a broad digital tax policy would still be announced in 2020.” Until the authorities get around to this, he said he believed that, ‘Google and Facebook will (continue to) pay close to nothing in Ghana’.

Comment

Google Nigeria did not respond to several requests for interviews; Google Ghana did not respond to a request for comment on this investigation. Neither entities responded to a list of questions, which included queries as to what of their activities in the two countries might be liable for tax, and whether they could publish country by country revenues generated in Africa. When reached by phone, Google Nigeria’s Head of Communications, Taiwo Kola Ogunlade, said that he couldn’t speak on the company’s taxation status. Facebook spokesperson Kezia Anim-Addo said in an email: ‘Facebook pays all taxes required by law in the countries in which we operate (where we have offices), and we will continue to comply with our obligations’.

Note: The figure of eighteen billion US$ as revenue for Google in ‘Africa and the Middle East’ over 2019 was arrived at as follows. Google’s EMEA figures for 2019 indicate US$ 40 billion revenue for ‘Africa, Europe and the Middle East’ all together. According to this German publication, Google’s revenue in Europe was 22 billion in 2019This leaves US$ eighteen billion for Africa and the Middle East.

This article was first published by our partner ZAM Magazine.

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