To a greater power and a better nature you, free, are subject, and these create the mind in you that the heavens have not in their charge.
Therefore, if the world around you goes astray, in you is the cause and in you let it be sought.
~ Marco the Lombard’s counsel, from Dante’s Divine Comedy
Novelist Pankaj Mishra, referring to “the history of modernisation”, observes how despite pretentions to rationality and order described by the American originators of the term in the 1950s and 1960s, modernisation’s history “is largely one of carnage and bedlam” that disproportionately afflicts a targeted, “othered”, dehumanised, inferiorised population invariably classified as poor, who by implication are also made responsible for the pathetic state in which they find themselves.
A polarisation of conscience means that little solidarity can be extended to those who suffer the greatest burden of the consequences of the worst of human impulses and choices. Do we imagine that the gaze infected by the paradigm in which it thrives can refocus its witnessing lens from a place of profound empathy for and with humanity, and see itself in the suffering of the other?
There is nothing objective in the human gaze. We know this. Yet we collude with this post-Enlightenment, neoliberal hubristic production system that even proposes its own transcendence and omniscience— and does so while denying or erasing the reality of the shared experience of suffering so that it can lay claim to transcendent objectivity. How can a corrupted witness purport to offer a truthful testament to human experience? How unbiased is the evidence (images, stories) that such a witness brings forth?
Humanity now thrashes about in a chasm of the absence of a real vocabulary of beingness today, while at the same time, makes excuses for a parasitic ideological structure that requires the stories of others’ vulnerabilities in order to shore up itself and its peculiar myths. An obsessive and pornographic preoccupation with the wounds of others serves two key purposes: one, it enables the observers to feel, what is that imbecilic word…superior, and two, it helps the observers to avoid engaging with their own internal contradictions and pathologies, it buries their fears.
Against such a backdrop, what does our own articulation of post-coloniality, social development, vulnerability and poverty actually mean here and now? What does “representation” become when forged through an epistemological structure that fragments the world so that it can elevate itself as the “universal” and the standard by which the human race measures its progress. In referring to this dilemma, the thinker Santiago Castro-Gomes calls it the problem of the “hubris of point zero”.
This is the epistemology that, despite its, yes, many virtues, treasures, and achievements on behalf of its select, could also declare those on the right of the screen as virtuous and righteous in their actions against those on the left, who are consistently classified as soulless, valueless, ungovernable and unmournable savages, barbarians, terrorists and heathens— not entirely human and, therefore, exploitable and dispensable. The mostly Euro-American collective societal imagination, in particular, was co-opted into this belief. The paradigm deliberately enlisted science and academia to develop a literature and theory to absolve itself from this, its public evil. The desecrated bodies on the left of the screen are rendered undignified and nameless even in their ancestral homes—and there are no plaques to commemorate their histories, achievements, their existence – while museums are built to enshrine the so-called exploits of those on the right.
An obsessive and pornographic preoccupation with the wounds of others serves two key purposes: one, it enables the observers to feel, what is that imbecilic word…superior, and two, it helps the observers to avoid engaging with their own internal contradictions and pathologies, it buries their fears.
What we see and hear now has a history and a template. Given this, what then should a person do with an array of stories and images embedded in a diminished, diminishing and disordered framing of life, that from its origins, and despite the evidence of its horrid impulses, has never been forensically interrogated?
In a 1999 New York Times article, Nigerian author Wole Soyinka reminded us how “the great philosophical minds of Europe, like Hume, Hegel and Kant, bent their prodigious talents to separating the species into those with rights and those with none, founded on the convenient theory that some people were human and others less so. The Encyclopedists of France, products of the so-called Age of Reason, remain the most prolific codifiers of the human (and other) species on an ambitiously comprehensive scale, and their scholarly industry conferred a scientific benediction on a purely commercial project that saw millions of souls dragged across the ocean to serve as beasts of burden. Religion and commerce … were reinforced by the authority of new scientific theories to divide humanity into higher and lower manifestations of the species. The dichotomy of the world was complete.”
I am compelled to ask how truthfully a person of this epoch can speak to precarity, poverty or marginalisation without making incisions into the profound moral and existential vacuum that are their sources and causes, which the human collective treats with amnesia. We are enduring a season of an unprecedented crisis of being and vision – and the devastation of lives we see and label as “precarious” are symptomatic of this.
Reality, they say, is relational, not representational. I retreat once more to Marco the Lombard’s counsel from Dante’s Divine Comedy for guidance:
To a greater power and a better nature you, free, are subject, and these create the mind in you
that the heavens have not in their charge.
Therefore, if the world around you goes astray, in you is the cause and in you let it be sought.
Do we really have the adequate tools of analysis that will lead us into an immersive experience of the realities to which we refer? We live a lie-laden un-reality where communities of the most resource-rich territories of the world are interpenetrated by the most devastating forms of poverty while those of the resource-consuming lands are lauded as the most advanced, the wealthiest, the best, when the questions that should be asked are: How does the world’s wealth get to be transferred, from where, by whom, for whom and at what price? Who sets the rates? To what obscene extent are precarity, marginalisation and poverty in themselves a profitable by-product of a way of being in the world? How are these accepted by-products of an accepted global industrial ideology? Will we explore poverty in its multiple designs and constructions in Bretton Wood cults, in the numerous multinational boardrooms, and in all those resource-hunting, territory-scouring Trojan horses that first appear as non-governmentals and then collude with emasculated, lobotomised post-colonial governors masquerading as leaders of so many nations?
We find ourselves entangled in and by a culture that, for example, knowing there were no weapons of mass destruction in Iraq, still allowed its privileged liars, those contemporary high priests of baal, a gateway to create and launch a grotesque unending war fifteen years ago that has since devoured an ancient civilisation and pushed our earth into the cusp of a human-caused apocalypse. This alleged “war on terror”, an abominable act, co-opted forty other nations, all of which fly the banner of democracy and human rights, and who have wilfully and continuously committed atrocities before slithering away to reconstruct a narrative of righteousness by evolving new euphemisms that deny the horror that their choices have visited upon millions and millions of innocents.
I am compelled to ask how truthfully a person of this epoch can speak to precarity, poverty or marginalisation without making incisions into the profound moral and existential vacuum that are their sources and causes, which the human collective treats with amnesia.
The abomination is today visited on Yemen for no real reason other than Saudi Arabia, this paradigm’s favourite pimp, wishes to test its war chops and spread its particular version of self-rightousness. Saudi Arabia is spending trillions of dollars on weapons sold to it by nations, that offer themselves as ‘paragons of human values’ weapons that are sometimes procured through second or third parties. Money gratefully received without question. Later, when the images of devastating Yemeni starvation hits your Christmas screens, some scrawny Englishman will compose a “Do they know it’s Christmas?” dirge so that we can all send our one pound to help the poor, the starving and the helpless. Meanwhile, it is Christmas every day in our weapon-manufacturing communities; the war in Yemen is a ceaseless bounty.
I ask you, are there any stories today, any images of the full Yemeni reality? Of course not. We will neither reveal the images of the generals overseeing the devastation of an already weak land, nor will we show what bullets and grenades do to human bodies. Why should the truth of what sustains our economies and guarantees our lifestyles interfere with the pleasure of our morning cappuccino? But God help the ones who emerge from the inferno of our making. They become our revenants. Their bodies and haunted lives are fingers pointing at us, which without a single word, mock our presumed innocence.
Here is our world now, this massive entangled bruise of traumatised, alienated, marginalised, terrorised, impoverished hundreds of millions, a world offering itself to the possibility of self-annihilation as entertainment.
This epistemological framing by which we live has won for its adherents entire territories that are relabelled as, for example, the United States of America, Australia, Canada, and then elevated as “universal” beacons of high human values that also confirm the hegemonic paradigm’s transcendent delusions, those mythologies that are adorned with titles such as “civilisation”, “democracy”, “scientific”, “advancement”, “philanthropy” and “human rights”, so many gilded fig leaves positioned to conceal the wound and its questions, which may include:
What is the origin of this nation?
How did the current governance structure evolve? Who and how many had to die to invent this “country”? How did they die?
Who atones? Who does not atone?
This dominant system, including its knowledge systems, generates and reinforces a malignant Military Industrial Complex upon which entire economies depend. And it seduces us with amnesia. Forget! it suggests. In exchange we may frolic carefreely amidst the flowers of Orwellian doublespeak – collateral damage, for example, a euphemism for lies, transference, prevarications, perception management, propaganda, erasure and rewriting and rebranding of horrors. Meanwhile, in a world of abundance, how is it even possible that eight men from the same cultural paradigm have gained control of 80 per cent of the earth’s wealth? Is this the culmination of the so-called Age of Reason?
Today we accuse Kim-Jong-Un of impoverishing North Koreans, but do we also reflect on the meaning (today) of the American war in Korea (1950-3)? The wilful carpet bombing of a country by one set of humans until everything is rubble, as the generals casually cited that 20 per cent (a conservative estimate) population death rate? Why do we act shocked when grieving, starving, devastated, traumatised people turn their backs on a world that turned its backs on them? And we suddenly have something to say about…what?
Please don’t get me wrong; I am not excusing insanity. What I ask is if the prevailing global paradigm and its tributaries—-modernism, post-modernism, post-post-modernism…with their penchant for laundering their darkness – are what can gainfully articulate the dimensions, meaning and language of profound human suffering. In the end, after we have described, or gazed upon, the poverty- stricken, the marginalised, the oppressed, the dehumanised, in whatever forms these take, what actually changes for the common good as a consequence?
A different point.
We neither see nor imagine the same thing when we say “poverty” or “precarity”, do we? Despite our preferred assumptions, there is no uber-state of poverty or precarity that is the universal template. Yet so very rarely do we allow an exploration of the varieties of consciousness that imbue human seeing, recognising, describing and attending; or the reality of philosophical and cultural divergences.
This alleged “war on terror”, an abominable act, co-opted forty other nations, all of which fly the banner of democracy and human rights, and who have wilfully and continuously committed atrocities before slithering away to reconstruct a narrative of righteousness by evolving new euphemisms that deny the horror that their choices visited upon millions of innocents.
To some, poverty is an asset in a world where shareholder profit is the Holy Grail, where consumption is the measure of nirvana. So valuable it is that should the economies of certain nations decline, wars must be manufactured. As long as weapons can be sold and jobs created, a necessary magic happens—these economies are rich and stable again and can hold themselves up as beacons of world development and order, right? But the blood-price that designated scapegoats have paid remain obscured and untold.
Precarity does, however, explain how humanity has turned vampire to humanity, feeding on its own lifeblood, its harrowing collective gaze always turned outward and elsewhere. Precarity (or what some might refer to as precariousness, which is a less enduring/permanent condition) – a word that was apparently coined by the Catholic monk and anarcho-communist Léonce Crenier (1888-1963) – has been defined as “the politically induced condition in which certain populations suffer from failing social and economic networks…becoming exposed to injury, violence and death”. Precarity is a condition that is often associated with neoliberal capitalism and its perverted logic of blaming the victim for his or her suffering, rather than examining the skewed power and economic relations that might have contributed to that suffering – a logic that relies on scapegoating to absolve the inflicter of suffering from any blame.
What the scapegoater’s target (the poor, the starving, the helpless, the victims) may have to give up is the power to name themselves. If they survive the struggle, they will be doomed to be spoken for, depicted, analysed and approached with the delicious frisson of Freud’s unheimlich — the uncanny. But sometimes, sometimes, it is true, that the monstered being growls back using the tools and technology of the paradigm against itself.
We, the inhabitants of this earth, are caught up in the matrix of a dark drama that services our fears, our violence, our silences, our looking away, and in some cases, our approval. This grotesque dance is justified with epic headers: Age of Discovery, War on Terror, Humanitarian Interventions. Weapons of Mass Destruction. Mother of All Bombs. Later, imagine our surprise when survivors from such expeditions flee their homes seeking refuge and peace in our midst. Having even been robbed of their names, we are now able to label them poor, marginalised, migrants, refugees, precarious, as if what befell them happened through their own fault. We negotiate encounters so that their suffering is kept as far away from our lives as possible.
Their courageous odyssey, their spirit and strength in the face of overwhelming intimate losses are rarely voiced, lest they expose our cowardice. Their desperation is often criminalised, as if it is infectious. We may safely look at their drowned bodies on television, but having seen enough of these, no longer notice them. We engineer them into concentration camps in Turkey, Lebanon, Kenya, Uganda, Jordan, Greece and Libya. Meanwhile, we neglect to act on the reality that we know that their powerless bodies are minute by minute being brutalised, experimented with and traded. Their organs are being auctioned, their children are being raped, their women are being violated, their men are emasculated, humanity is being brutalised by humanity using its most insidious weapons: human absence and human silence.
To some, poverty is an asset in a world where shareholder profit is the Holy Grail, where consumption is the measure of nirvana. So valuable it is that should the economies of certain nations decline, wars must be manufactured.
In April last year, the American military dropped what they christened the “Mother of All Bombs” over the Achin district in Afghanistan’s Nangarhar province, a public display of the same casual evil that created the Nagasaki and Hiroshima slaughter, a prelude of what is to come, perhaps? There is still to this day a terrible silence over the actual number of Afghani casualties, which have already been pre-stigmatised as ISIS, not to speak of the devastation of the landscape and environment. There are no independent verifications, no counter-checks, no accountability, no display of bodies other than those of living American soldiers standing in caves that are still intact and whose locations cannot be verified.
So, when a surge of humans in deep distress whose environment has been poisoned and shattered will flee Afghanistan trying to find new homes, will they be returned to the source? Will we try and find the reason for their fleeing and hold to account the responsible nation? Of course not. That would require what seems to have been leached out of the human collective: a will to truth and courage. Indifference has been made cool. “Post-truth” has been invented. When the desperate immigrant carrying his remaining child peers through a fence, won’t we line our words and images to articulate a preferred trope that reinforces our framing of poverty, powerlessness, and precarity regarding him and his country?
Shall I go on?
Weeks before the bombing and Donald Trump’s foray into Syria, American soldiers and their Saudi friends were implicated in the mass slaughter of a boat filled with innocent people escaping Yemen. After the announcement of the mistake, nothing. There was also the horrible and mistaken slaughter of innocents in Mosul involving the so-called coalition forces. After the initial alarm, nothing. You who study representation, have you heard anything more of these crimes against the earth, decency, morality and humanity that sink without a trace, without a second bleep? The silence, though, does make it simpler to rationalise the sacrifice of humans to tomahawk missiles while the enabler eats chocolate cake—or was it vanilla?
It is to specific and targeted realms of anguish that we send our image capturers and story makers. The consistency of the ideology calls for the permitted symbols of doomed desires: the sacrificeable, the pitied and – despite the pathos – the unmournable body (preferably in a particular melanin shade and from a particular culture). This paradigm allows the media to use and expose them as the poor, the less fortunate, the marginalised, the victims. So the advantaged—and that is the adjective always used – might make meaning by pressing a forefinger on the donate button and dispatch two euros fifty to support one of a hundred thousand non-governmentals who promise the miracle of turning coins into medicine and water for the ones, who, fortunately, are not us. These days it is accompanied with a hashtag. But no questions.
So what do we have to show, we humans speaking about poverty and precarious lives lived in ineffable margins? What do we have to show that amplifies our abysmal and wilful unknowing of the actual and inner lives of those whose histories we choose to condense into a single, transient thumbprint, captured, edited, and distributed by a thinned-out imagination? In the academy’s retelling of precarity, poverty and their representation, what room exists for a multidimensionality and multiperspectivity that breathes fresh knowledge and insight that might actually transfigure our humanity?
Let us change track and look at some art, okay?
The cover image of Job’s Friends by Lenny Caccio is inspired by the biblical Book of Job. It features three friends – Eliphaz the Temanite, Bildad the Shuhite and Zophar the Naamathite – who show up to supposedly console a terribly afflicted Job. Encountering the extreme suffering and wounded spirit and body of their friend, they first choose to sit in shock. After a suitable interlude, now accustomed to the spectacle of suffering, they proceed to diagnose the disease from a safe space that does not require them to touch Job. They also evolve a branding plan in which they excuse everything but Job, who is somehow made responsible for his fate. They offer a scholarly treatise on meaning, suffering and Job’s responsibility. They wonder why Job is not more like them, they who are favoured by God. If he were, such suffering would not be his fate. Nay indeed, since they know the mind of God, actually, in a way, this makes them, like God…if not God Himself.
Meanwhile, we neglect to act on the reality that we know that their powerless bodies are minute by minute being brutalised, experimented with and traded. Their organs are being auctioned, their children are being raped, their women are being violated, their men are emasculated, humanity is being brutalised by humanity using its most insidious weapons: human absence and human silence.
Suddenly, certain of their transcendence, they authoritatively proceed to make decisions for Job. They go on and on until Job became a scientific and social development project. They discuss the alleviation of Job’s poverty, precarity and disease. Dear Job is sucked into the eye of the cyclone of stupidity and is compelled to reclaim a semblance of humanity by trying to explain the inexplicability of his existential harrowing.
In the eyes of the three idiots, Job, the scapegoat, must not be perceived as innocent, for through this judgment he is designated as the carrier of the pathologies and terrors that afflict the human journey; upon him rests the entire mystery of human suffering. Now Job is the heathen. The savage. The pagan. The terrorist. The infidel. The Third World hordes…or was it swarms (David Cameron). The extreme other from whom our lives are detached, whose suffering is alien to our righteous ease. Behold this, the detached collective observing human suffering, not as witnesses, but as judges and gossips. They fail to see that Job is a mirror and witness to the reality of life. These idiots (yes, I am judging them) look and look and turn blind.
It does end rather well, with a schadenfreude twist. The mysterious Source of Existence in whose name much was suggested by the trio shows up from out of the whirlwind, the storm, the chaos, and is in a very bad mood. He stormily affirms and underlines the truth of human unknowing before the immensity of life. Some paraphrased bullet points from within the storm: You are not the authors of nature or life. You are all subject to the mystery of suffering, pain, death, and the unknowing. In other words, as a millennial friend once put it to me, you know shit about life.
The three self-appointed dunderheads get their knuckles thoroughly rapped by a God who makes them dependent on Job for a dramatic gesture of forgiveness and sacrifice that will release them from the hell their presumptuous babblings have driven them into, thus demonstrating another useful point: You need one another other in order to get yourselves out of your self-created hell.
Back to earth.
On January 24, 2017, a 22-year-old human being, a man named Pateh Sabally, either jumped into or slipped into Venice’s Grand Canal. Witnessing this were about two hundred men and women. They were cited as cursing, mocking and abusing him as he flailed and cried.
What did Pateh see? What did he experience as he started to die? To know that the last human gaze Pateh experienced was the gaze of hatred is such a weight on a sensitive human conscience. What looks out of the gaze of this mob in Venice, finding satisfaction in the slow death of an ebony-bodied stranger in a canal?
A dying man entered the doorway of death with the sound of over two hundred apparently “sane” human beings mocking his life, urging him to annihilation, amused by his suffering. What did Pateh see? What did he experience as he started to die? To know that the last human gaze Pateh experienced was the gaze of hatred is such a weight on a sensitive human conscience. What looks out of the gaze of this mob in Venice, finding satisfaction in the slow death of an ebony-bodied stranger in a canal? And death and dying are such a private, intimate happening, even among creatures. So, what has become of a people and their interior values who seek and find intense porno-visual satisfaction in the death of a stranger? What turns these people into a howling beast, a mob that has lost access to the grammar of life? What is in the gaze of the human in the canal looking at his audience?
We have been here before, haven’t we?
I was surprised, and then not surprised, that the horror did not generate greater contemplation in the media or in societal reflections and that the only images published were those of the drowning Pateh, with the mob offered as a faceless mass without a shape that melts into the day when invited to account for their manner of witnessing. I am struck by the length of time that the mob spent observing, archiving, recording and commenting on Pateh’s dying, and the eerie idea of profound satisfaction in the experience. The mob is so preoccupied with their perception of Pateh’s otherness, his immigrant-being, that nothing of his humanity penetrates their gaze. What is this epistemology of life that makes of human beings a thing that finds pleasure in the dying and death of a man? Why has it not been hacked to pieces yet? Unless, of course, its diminished conceptualisation of who a human being is has its worshippers. In this event, who in our epistemological structuring would be the subject of our reflections on poverty, precarity and pity? Pateh or his mob?
Second case: On September 8, 2015, a woman who had veiled her face, protecting herself from the contagion of encounter, filmed the flow of human sufferers crossing into her country, Hungary. She would at some point drop her camera to focus on extending her foot to kick two children and their father, a former Syrian football coach, Osama Abdul Mohsen, who carrying one son, stumbled to the ground. It is not possible to list the many ways that this man, travelling without his wife, was humiliated. A man has lost his home through no fault of his own, has lost his country, is compelled to impoverishment, and struggles with life in ways that not many in the world can. He traverses unknown worlds, deserts, storms, wars, water, death, displaying the noblest human spirit and its will to live and hope.
This human seeks refuge among other humans, strangers. Reduced to scrambling across a man-caused frontier, he runs in the direction of a camerawoman, who is masked to preserve herself from the diseases he purportedly carries. Let us think carefully about the gesture as she pauses her filming and puts out a leg to trip a man carrying his son, who flails and falls. That fall, friends, is a wounded gong in the deepest soul. A warning. This episode is enshrined as the Petra László incident. It travelled as a cold slithering shiver across the world. In our house in Nairobi, when we saw it, no one could speak. But it was recognised for what it was.
I am struck by the blank in the place where people have absented themselves from, or even worse, have become so paralysed by human uncertainty that they do not know how to be hospitable to and receive, perhaps through an embrace, the wounded among and within them.
My own gaze stays on the camerawoman Petra László. I want to meet her. I have questions to ask. What drives a human being to this place of cruelty? I have traced her narrative of defence. Her first explanation: “I just snapped.” The second: “The man lied.” The third: “I am in danger.” The fourth: “I shall sue Facebook, I shall sue the witnesses.” It goes on.
The discomfort for us is this, the reason for our unspeaking witnessing: Here is the public revelation of the disintegration of humanity, the evidence of the wound. And no, this is not about privilege. Petra is a mirror, you see. Here also is my emptiness. Here is my terror of the mysteriousness of another. Here is a symbol of my impoverished humanity. Here is the sign of the unspoken wound that tears through my own soul, that if unattended for much longer will turn septic and evil—for here precisely is what I do not wish to be.
So who are these people? And why does society and popular media collude in an act of amnesia and erasure, not of the dead or suffering, but of the agents who amplify the suffering of others? It is not labelled as anything, is it? There is no name offered for this precarious condition. Why? There is the gaze. But what is heard? What is told and repeated? What gets muted so that an image can be explained differently?
In August 2016, police in Rome received a phone call from a stranger asking them to investigate a situation. An 84-year old woman and her 94-year old husband were in their apartment. They had been wailing so loudly for a good part of the day and their cries were now disturbing their neighbours. When the police entered the house, they found an elderly couple who were so overwhelmed by an existential loneliness, who having watched the news were horrified by the state of the world, that all they could do was wail, and wail, and wail. The media story slides quickly to the part where the police cook pasta for them. But I am interested in the spaces of silence and absences of neighbours, of family, of community. I am interested in the gaps occupied by this profound human keening, the sensitivity of a man and woman who feel the wounds of the world so profoundly.
But I am mostly struck by the communal unhearing and unseeing and unfeeling and unregarding. The story is not only about the police and pasta, but also about the meaning of that human cry, and the reactions of those who heard it. I am struck by the blank in the place where people have absented themselves from, or even worse, have become so paralysed by human uncertainty that they do not know how to be hospitable to and receive, perhaps through an embrace, the wounded among and within them. Yet here are the kind of people who would press the contribute button on the computer to send one euro to pay for a borehole in Timbuktu.
The worst of these are the leaders of nations whose people are compelled to flee to find life elsewhere, despite the wealth and treasures of home. Each of these leaders, through their incompetence, cowardice and collusion, are culpable and accountable for the extremes of suffering experienced by their people.
What has happened? Do you know? I don’t. But does our lexicon for poverty and precarity encompass this, the marginalisation of persons from themselves? The meaning of lives no longer at ease with embracing, holding, comforting, or mourning each other?
For the Bretton Woods and United Nations indices on global well-being, this scene scores high on the wealth index. It shows evidence of the consumption of pasta. Poverty or precarity, under the dominant paradigm does not figure, does it?
There is an adjunct to this that often skips our global headlines: The state of the elderly in European and American societies, evidenced in excessive winter mortalities, is a reality that is carefully left out of developmental indices and global conversations about precarity. Yet the paradigm to which our world has pledged its visioning will implode before it admits that its mythology is erasing the top end of its generations. It would be cynical to imagine, I guess, that the wild reaping of a generation judged as no longer productive is a desired outcome for a worldview obsessed with human usefulness, wouldn’t it?
What I am trying to say, perhaps not too eloquently, is that perhaps, primarily, for me, this conversation we are having about ‘precarity’ is about humanity and its choices, this is an examination of a communal consciences in an attempt to see a way to engage that is transformative to our humanity and its dignity.
Allow me to make brief references to two key aspects in the global value chain of the misery economy that have a role in informing our constructions and perceptions of poverty and precarity:
First, the matter of forced philanthropy, one of the studios and markets for the representational images of poverty and devastation that social development paradigms offer. The business of imposed philanthropy is a fascinating study of human delusion to omniscience, the exercise of power through the mask of pity and the subversion of genuine human compassion for the purposes of profit and personal glory. It too has a history that reaches deep in the roots of the alleged Age of Discovery that I do not need to go into now. Its patterns are the same. The designated beneficiaries are always rendered choiceless, voiceless and nameless and subject to the character profile the philanthropist imposes upon them. Their most intimate lives are exposed to an irresistible gaze. The philanthropists have the power to speak for and represent an entire people and their experience. It is like the ventriloquist who seeks dummies into which he can throw his voice and reiterate his agenda.
Deus ex machina. I will not names.
Caught up in a devastating existential struggle, the targets rarely fight this denudation of their humanity—because, admittedly, some coins to alleviate immediate suffering are made available. Those who object to this business model are often labelled as out of touch, people who are denying or manufacturing reality. For the patron society must always reaffirm its intrinsic goodness. Its people are good. Its intentions are good. And the vulnerable are a blank canvas upon which stories can be repackaged. And if the images are from the imagined African milieu, I promise you a fly on the face shot, even if it has to be photo-shopped in. But this imposed philanthropy serves its most potent purpose: it offers the paradigm a messiah, or many messiahs.
We lament the body of Aylan but immediately censor our awareness about the link between his sea-washed body and that of the CEO of the weapon-making factory that supplied the manufactured rebels with the guns and bombs that destroyed the Kurdi family life in Kobani, Syria.
An overview of this ecology of suffering would be dishonest if it did not refer, at least once, to the role played by the useful idiots, those too-numerous colonial (they pretend to be “post-independent”) governments – those impotent venal agents of collaborative coloniality, betrayers of hopes, repellant homeguards. The worst of these are the leaders of nations whose people are compelled to flee to find life elsewhere, despite the wealth and treasures of home. Each of these leaders, through their incompetence, cowardice and collusion, are culpable and accountable for the extremes of suffering experienced by their people. Entangled in a grammar of violence and oppression, they have woven their individual lives into a life-destroying global economic paradigm at the expense of a vision for the world and their own people; they create new demons and excel in the creation and sustenance of a hell that destroys even the future of their land and generations of people. They engineer displacement, and do so in the name of social development. Yet their governments spend twenty times the resources allotted to national development to buy weapons abroad for incompetent armies trained to turn their weapons inward. These caretakers of disaster have nothing to say about a reality that has turned their people’s bodies into the most tradeable and the most disposable, mere containers for other people’s organs. (Many of their people now lie on the bed of the Mediterranean as undersea ghosts.) What a wreckage. What an abysmal poverty of spirit and imagination.
Is there a repository of more profound ideas, values, and words that can engender transformative human relationships so that we do not have to bear the burden of human anguish and injustice alone?
We lament the body of Aylan but immediately censor our awareness about the link between his sea-washed body and that of the CEO of the weapon-making factory that supplied the manufactured rebels with the guns and bombs that destroyed the Kurdi family life in Kobani, Syria. In the representation of poverty, precarity and alienation, where are the images and stories of the weapon factories and the military or prison industrial complexes? We side-eye bodies that have drowned attempting to cross the Mediterranean Sea but block our ears to the reality of a multi-billion-dollar human trafficking/slavery network owned by an amoral global elite for whom business has never been better, certainly in the supply of human organs that had been a problem before but is no longer an issue in most of the world now.
How can one enter the soul of this theme without a life-giving mythology of presence so that when we speak of human poverty and precarity we do so justly, and in a way that shelters all that is shamed, broken, unjust, flawed, deaf, blind, lost, wounded or sad? What framework do we have that can call out the normalisation of unmitigated evil and our human dalliance with a violence that excuses itself and erases the voices of the most vulnerable?
Is there a way to interrogate the entrenchment of a seemingly omnipotent economic complex that mocks humanity by calling itself not only humanitarian but also just? What do we do with processes and ideologies with which we cohabit that glorify hatred, injustice, fear and violence that turn others into bogeymen? What ideologies of being exist that are capable or brave enough to hold perpetrator predatory systems and cultures accountable for their wilful desecration of life and meaning? Is there a repository of more profound ideas, values, and words that can engender transformative human relationships so that we do not have to bear the burden of human anguish and injustice alone?
Paraphrasing Mignolo, it must be possible for our humanity to imagine “institutions at the service of life rather than life at the service of institutions.” There has to be a way of being and seeing that deepens the witness’s gaze, a daring to first love—yes, I said it, love – and, therefore, make representation a true gift, a grace of human encounter, of human discovery, dignity, enchantment and knowing.
This essay is adapted from a speech by the author at the Gesellschaft für Anglophone Postkoloniale Studien / Association for Anglophone Postcolonial Studies (GAPS) Annual Conference on the theme, ‘Representing Poverty and Precarity in a Postcolonial World’, held from May 25 – 27, 2017 – at the University of Bonn, Germany.
The ideas this essay puts forward are mined from many disciplinary spaces and are especially energised by proposals from thinkers like Enrique Dussel, W.D. Mignolo, Santiago Castro-Gomes, Arturo Escobar, among others, who dare to interrogate the reality of the extended and always-morphing life-cycle of coloniality existing in a dominant historical framework that informs the state of the world today. My intention is to exhume a few sacred graves, particularly those masked in silences. This is a basic exploration of, to borrow from Dussel, “negated alterities”.
I want to now confess to you that writing this was a struggle for so many reasons, some not too clear. For one, what really is an adequate analytical framework through which to enter a thorough exploration of the contemporary iconography of profound human suffering? In considering this question, I was forced to recoil before the dominant post-Enlightenment, modernistic ideology and paradigm that fakes its break with its myriad pasts, while embedding and consolidating its humanity-displacing values and intentions To pretend that the paradigm—modernism, post-modernism, post-colonial, neo-liberal, whatever – is not also a violence-based, suffering-denying, scarcity-inducing, wound-causing, human-dividing, difference-criminalising, consumption-adoring, crisis-creating, self-aggrandising, disordered belief system, with its prosperity gospel, slaughtering priests, elaborate infrastructure, instruments, and institutions that favour a pre-selected few would be ingenuous of me.
In which case, how then does one truly speak about representation, for example, within the framework of this overarching epistemological ecology? How does one address its systemic propensity for blood-letting, dependency on the commodification of life, a habit that is soothed by an instinct to euphemise atrocities that include presiding over a protocol that governs which images and narratives are allowed, sought, desired, derived, edited, distributed, sold and pre-explained? This essay is my attempt to deconstruct the representations and present a life- and human-affirming mirror to those doing the gazing.
Moving On or Business as Usual? Contemplating a Post-Museveni Uganda
9 min read. Is the West’s renewed interest in promoting human rights in Uganda a genuine attempt at bringing about democracy and eliminating corruption, or is it based on the commercial interests of a superpower intent on reducing China’s influence in Africa?
The Western media is taking notice of growing agitation for regime change in Uganda at a level comparable to the 1980s when Yoweri Museveni was referred to as a “a young handsome guerilla” on ITV News and featured in a British documentary filmed in the Luwero Triangle. Even as the then President Milton Obote was denying the existence of a rebel threat in Uganda, British journalist William Pike was interviewing Museveni in the bush. Pike later became a mobiliser for international support for the National Resistance Army (NRA) between 1984 and 1986.
In the past two years, the international mainstream media have regularly covered the phenomenon that is the People Power movement. With the help of social media, the movement’s leader, Robert Kyagulanyi, better known as Bobi Wine, has been noted as a leader of the future by two influential Western publications and has won multiple leadership awards on the African continent. As result, the failings of the 33-year-old National Resistance Movement (NRM) government have been under the global spotlight.
In his latest interview with Al Jazeera, Kyagulanyi appealed to the international community and investors to deal with Uganda and not with President Museveni. As the 2021 presidential and parliamentary elections draw near, foreign debt is coming to the fore in Uganda’s political discourse. Where human rights abuse once dominated, managerial failures in government and poor budget outcomes are gaining increasing attention. A series of events in 2018 and 2019 highlighted the impact of debt distress and managerial incompetence on service delivery.
Corruption and incompetence are no longer simply a drag on development but are bringing public institutions to a standstill. Special audits of thirteen out of fourteen regional referral hospitals show persistent drug stock-outs, understaffing and crumbling infrastructure. (The ICU at Jinja Hospital was shut down due to lack of batteries.).
In his latest interview with Al Jazeera, Kyagulanyi appealed to the international community and investors to deal with Uganda and not with President Museveni. As the 2021 presidential and parliamentary elections draw near, foreign debt is coming to the fore in Uganda’s political discourse.
Yet the health sector was unable to spend Shs.171 billion ($46,367,125.02) allocated to wages and construction and had to return the funds to the Treasury. Shs150 billion ($40,520,625.00) of that was external funding. Reasons given point to institutional failures, and inability to organise recruitment and procurement in time (Budget Monitoring and Accountability Unit, 2019).
In the education sector, the Makerere University strike was a reaction to the government’s inability to cover operational costs, and to the university increasingly relying on fees paid by private students. Ten years ago it was estimated that Shs.600 billion ($162,191,100.00) a year was lost through government procurement fraud alone. Professor Nuwagaba, a Makerere University lecturer and author of the study, estimated that the amount lost was enough to cover all of Makerere University’s student fees for two years.
The latest statistics from the primary education sector show the rate of literacy and numeracy fell from 39 per cent to 33 per cent. With a primary school drop-out rate of 60 per cent, this means that most of those who do not complete primary school education are insufficiently literate or numerate to go on to existing skills training institutions. Loans for skills training and higher education worth $100 million expired, with just a little over 50 per cent utilised and the rest returned to source. An application for a new $45 million has been tabled in Parliament.
Global climate right for change
The global climate is right for political change. By Executive Order 13818 (2017) the Trump administration declared global corruption and human rights violations “a national emergency” with respect to serious human rights abuses and corruption globally, which constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. The Magnitsky Act has since been invoked against senior army personnel while the former Inspector General of Police has been publicly designated under Section 7031(c) of the FY 2019 Department of State, Foreign Operations, and Related Programs Appropriations Act for human rights abuses.
Elsewhere in Africa, five Congolese officials of the DRC’s electoral commission and one from the Constitutional Court had visa restrictions placed on them and were publicly designated for electoral fraud. Together with military officials, they have also been identified as having undermined democracy by violating Congolese citizens’ rights to peaceful assembly, and freedom of expression.
Other publicly designated officials include Kenya’s former Attorney General Amos Wako, Cameroon’s Inspector General of the Cameroonian Gendarmerie, Colonel Jean Claude Ango, Malawi’s former Minister of Home Affairs, and current Special Advisor on Parliamentary Affairs, Uladi Basikolo Mussa due to involvement in significant corruption (a charge that Wako has denied). Exiled former president of the Gambia, Yahya Jammeh is also designated in an undated notice.
Since October 2019, Tanzania’s opposition politician Tundu Lissu and the Justice for All South Sudanese movement have retained a Canadian firm in the area of human rights abuses. Amsterdam & Partners offered its services to the embattled Bobi Wine after the torture the state subjected him to in 2018.
During their press conference, Robert Amsterdam denounced Uganda’s history of political violence and the use of $500 million worth (his figure) of US weaponry in carrying out that violence, saying the West cannot ignore it any longer.
The question is how closely multinational commercial interests are aligned with the long-term interests of the political movements, parties and individuals they now support.
The language of the Executive Order implies that to be actionable, the violations must be a threat to American global interests. By implication, if those interests can be secured by means other than sanctioning human rights violators, then violators need not be sanctioned. Yet in order to end impunity African opposition politicians and activists are clamouring for sanctions on serving officials like foreign minister Sam Kutesa cited in the Patrick Ho bribery case.
In an interview with Aly Khan Satchu in October 2018, Amsterdam described his firm’s work as “litigation in global markets” around both political and commercial matters. He portrayed foreign investor and domestic governance issues as being intertwined.
The question is how closely multinational commercial interests are aligned with the long-term interests of the political movements, parties and individuals they now support.
Amsterdam described the Chinese Belt and Road Initiative (BRI) as predatory lending and neo-colonial, a choice of phrase that would appeal to post-colonial Africa and Asia. He said that the initiative had “prohibited the growth of representative democracy…and given some autocrats a new lease on life.” [Amsterdam video @9:48] Explaining that China uses its surpluses from exporting manufactured goods to “colonise” the rest of the world. Amsterdam warned that “the debt trap is very real”.
He mentioned Hambantota, the port that Sri Lanka lost to China as a result of a debt default in 2018. In the same year, the Auditor General revealed that Uganda too has contracted loan agreements with China that surrender sovereign immunity over territory in the event of default.
The phrase “predatory lending” had been used earlier by the sixteen U.S. congressmen who wrote to the Secretaries of State and the Treasury in August 2018, demanding action to disrupt what they described as China’s bid to dominate the global economy. What is of concern to the Congressmen is that 23 out of 68 BRI countries are said to be at risk of debt distress. Defaulting BRI countries are expected to seek IMF bail-outs, meaning a portion of America’s investment in the IMF (the largest shareholding) would be transferred to China.
The portrayal of Uganda’s governance deficits and Western foreign political and commercial interests as organically related issues is not convincing. The exit plan being signaled for President Museveni is less about human rights abuses about which the world has known for over 30 years and more in aid of preserving existing power and trade relations between Uganda and the United States.
In his latest interview (Al Jazeera, November 2019) Kyagulanyi appealed to the international community and international investors, in particular, to hold the Ugandan administration accountable for human rights abuses and corruption. He urged them not to focus only on business relations but to be united with Uganda by values such as “democracy, respect for human rights…zero tolerance of corruption”. Ugandan activists are aware of the debt-trap and welcome sanctions.
However, in his interview with Sachu, Amsterdam seemed to be suggesting that perpetrators be given a Get Out of Jail card. Apart from floating the idea of an easy exit for Museveni, he stated that sanctions would only “hand over” countries to China (because Chinese foreign policy does not enforce its anti-foreign bribery laws). He gave Myanmar as an example. Sanctioned for the Rohingya genocide, Myanmar allegedly fell profoundly under Chinese influence.
He is again at odds with African activists when he advises his clients to avoid the U.S. Foreign Corrupt Practices Act by denominating their foreign contracts in currencies other than dollars to avoid the New York-based SWIFT money transfer system. Corruption, some of the proceeds of which pass through the SWIFT system, costs the African continent billions of dollars a year. The US Department of Justice recovered $30 million from Vice President Teodorín Obiang in 2014. France recovered (and confiscated) $35 million from him in 2017.
Uganda’s corruption circles are at least as big as Equatorial Guinea’s. There are over 100 ministries and statutory agencies and many more presidential appointees. Museveni himself is rumoured to have stashed away $5 billion in illicit earnings. This figure is difficult to confirm but following the recent ‘#fishrot’ disclosures in which the Namibian Minister of Justice is filmed soliciting a bribe of $200,000 in return for allocating fishing rights to an Icelandic firm, Samherji, it is possible that during Museveni’s thirty years at the helm – when he oversaw the country’s privatisation programme – he amassed a lot of wealth.
An easy exit for Museveni in the interests of a “smooth transition” could jeopardise the hoped for recovery of stolen funds. Robert Mugabe estate includes $10 million in cash, not an insignificant amount in a country where child delivery in hospitals is done by candlelight and a unit of blood costs $120.00, the equivalent of a doctors’ monthly salary or just over two month’s pay for a teacher.
Service delivery default or debt default?
More divergences of interest can be expected post-Museveni. A key issue for Ugandans in the inevitable transition will be the status of Uganda’s foreign debt. By 2021 debt servicing will have risen to at least 65 per cent of revenue (Auditor General 2018).
In the event that the NRM regime is dislodged in the 2021 elections, expectations for more and better service delivery will be high as they were in post-apartheid South Africa. South Africa elected to pay the apartheid debt and as a result, twenty years later, 40 per cent of the population lives below the poverty line. Access to social housing, electricity, running water and other services in the quantities and to the standards promised during the anti-apartheid struggle is still limited for at least half the population.
An easy exit also implies the inheritance of unsustainable debt, whether or not contracted in return for bribes, and regardless of whether it was put to developmental use or stolen. Without a debt audit carried out by an independent body, the repudiation of illegal, illegitimate and odious debt, and the recovery of misappropriated funds, the new government will not be able to meet service delivery expectations without taking on yet more debt. Service delivery will be the casualty. Zimbabwe cleared its debt to the IMF circa 2016. However latest statistics show undernourishment in Zimbabwe is 51.3%, up from 50.9% in 2016 when the IMF debt was cleared.
Post-Mugabe Zimbabwe discovered that it was unable to get new IMF financing without clearing the $5 billion owed to the African Development Bank and World Bank, and without securing financing commitments from development partners to whom money is owed.
Uganda’s corruption circles are at least as big as Equatorial Guinea’s. There are over 100 cabinet ministers and many more presidential appointees, in addition to Museveni, who is rumoured to have stashed away $5 billion in illicit earnings.
The legal status of the Museveni debt, and therefore the obligation to repay it, has been challenged by Dr Kizza Besigye on the grounds that it is odious – contracted at a time when the government was waging war against the people of Uganda. There is ample legal precedent for repudiation of odious debt.
To the extent that payment of the Museveni debt would force the State to continue to default on its obligation to meet the basic needs of its citizens, it is illegitimate. As in Zimbabwe, undernourishment in Uganda has been rising for over a decade. Infant and maternal mortality remain high.
Legally, if the Museveni debt can be shown to be odious or that it was contracted with the lenders’ knowledge or expectation that the government lacked the capacity to manage or repay it and was in any case inclined to steal it (as with the Mozambique tuna bonds), a case can be made for repudiation.
There are several examples of debt being successfully repudiated. In 2007 Norway established the precedent for repudiating debt which is neither illegitimate nor odious on the grounds that “repayment may be subject to broader considerations of the equities of the debtor-creditor relationship” (UNCTAD).
The legal status of the Museveni debt, and therefore the obligation to repay it, has been challenged by Dr Kizza Besigye on the grounds that it is odious – contracted at a time when the government was waging war against the people of Uganda.
The Tsarist debt owed by Russia was significantly reduced after payment demands were repudiated. The German and Prussian debt used to colonise Poland was repudiated in 1919. Commercial loans made by the Royal Bank of Canada to fallen dictator Tinoco were repudiated by Costa Rica. Germany repudiated Austrian debt in 1938, and the Franco–Italian Conciliation Commission ruled that Italy was exempt from debt incurred during war waged by a previous regime (1947). (Source: The Concept of Odious Debt in International Law, UNCTAD.)
Debt mismanagement continues in Uganda. The long-awaited health insurance scheme – the National Minimum Healthcare Package (NMHCP) – was tabled in Parliament in August 2019. The maternal health component of it will be financed under the World Bank’s Health Systems Strengthening Project through a loan of $130 million even though $45 million was wasted when the first attempt to design the NMHCP scheme in 2003 came to nothing. The World Bank’s evaluation stated the reasons stemmed from failures within the World Bank itself, including unrealistic design timetables, lack of a monitoring and evaluation (M&E) framework, and little appreciation of the political economy of the reform programme.
There are tens of projects such as these dating back to the initial Economic Recovery Programme of 1987 for which loans were contracted, commissions were paid, disbursements often not completed, some money stolen and outputs only partially delivered, if at all.
The recovery of public funds lost in this way provides ample scope for alliances between opposition groupings across Africa. It remains to be seen whether Ugandans will be able to leverage the West’s new-found willingness to put the well-being of her citizens on the table and negotiate agreements that will prioritise service delivery over investor interests after Museveni’s departure. The pressure on them to do the opposite will be massive.
Kenya’s War on Graft: Reasons to be Wary
10 min read. Unwieldy prosecution strategies have in the past been used as a guise under which the government appears to prosecute corruption while simultaneously taking steps to guard the prosecuted from legal culpability. This article aims to examine current anti-corruption efforts in light of similar efforts in the past in order to glean lessons and hopefully see what can be expected of current initiatives.
More than 200 people, among them senior government officials, principal secretaries and CEOs of state agencies, have been arrested, arraigned in court and charged with diverse criminal offences as a result of President Uhuru Kenyatta’s renewed war on graft.
On 22 July 2019, the Director of Public Prosecutions (DPP) ordered the arrest of and proffered charges against 28 senior government officials, among them Henry Kiplagat Rotich and Kamau Thugge respectively the Cabinet and Principal Secretaries of the National Treasury, the Principal Secretary of the Ministry of the East African Community, the Managing Director of the Kerio Valley Development Authority, a state corporation, and the Director of CMC di Ravenna, an Italian company. According to the DPP, investigations have established that the charged officials flouted procurement rules and abused their oath of office in awarding or otherwise ensuring that CMC di Ravenna secured the contract for the construction of the Arror and Kimwarer dams. The contractual amount is in the region of $600 million.
Prosecuting corruption in Kenya: A troubled past
From Kenya’s independence in 1963 to the establishment of the Kenya Anti-Corruption Authority in 1987, the duty to prosecute government corruption fell on the Office of the Attorney General (AG) who simultaneously happened to be the government’s chief legal advisor and chief legal defender. Requiring an office to prosecute its chief client yielded predictable results. Despite damning reports by the office of the Auditor and Controller General, as well as independent reports of the Parliamentary Public Accounts and Investment Committees, the AG remained resolutely intransigent towards bringing charges against government officials of any stripe, and outrightly protected senior government named in the reports.
In the Goldenberg scandal – an export compensation scam under the Daniel arap Moi regime that is estimated to have cost Kenya 10 per cent of her GDP – the AG at the time (and current Senator for Busia County), Amos Wako, failed to initiate proceedings for four years after the scandal came to light, and was only moved to do so by a suspension of International Monetary Fund (IMF) aid and the combined pressure of the Law Society of Kenya, donor nation governments and an increasingly outraged and assertive public.
Notwithstanding the said pressure, Wako used a variety of guises to impede the prosecution, including attempting to oust the jurisdiction of the High Court in the matter, numerous adjournments, withdrawing charges altogether and then being compelled by foreign pressure to reinstate them. The Minister of Finance at the time was never so much as charged and to date nobody has ever been convicted.
In the Goldenberg scandal, the AG at the time (and current Senator for Busia County), Amos Wako, failed to initiate proceedings for four years after the scandal came to light, and was only moved to do so by a suspension of IMF aid and the combined pressure of the Law Society of Kenya, donor nation governments and an increasingly outraged and assertive public.
Kenya then moved to break the prosecutorial monopoly of the AG. The Kenya Anti-Corruption Authority (KACA) was established in 1987 by the amendment of the Prevention of Corruption Act (Cap. 65) but was hampered by legal, administrative and budgetary constraints that appeared deliberate. Its first director, John Harun Mwau, was appointed 10 years after the establishment of KACA, for instance, and was shortly thereafter sacked by the president at the recommendation of a tribunal of inquiry after the director had obtained warrants of arrest against high ranking officials of the Treasury as well as the Kenya Revenue Authority.
It is noteworthy that Mwau was not conventionally qualified for his post nor was the process of his appointment subject to a transparent recruitment process. Indeed it is believed that the appointment was a quid pro quo in return for his dropping out as a presidential candidate. Nonetheless he was fired just as he appeared to make progress.
As such, whereas his successor Aaron Ringera was undoubtedly well qualified for the post, being a well-respected High Court judge, his appointment was nonetheless greeted with scepticism. Justice Ringera took office in 1997 and by 2000 KACA had been declared unconstitutional by the High Court before any of the cases it had instituted had been, the court finding that the existence of KACA infringed upon the constitutional powers of the offices of the Attorney General and the Commissioner of Police for two main reasons: first, that Justice Ringera, being a judge and simultaneously the head of an organ of the Executive, offended the doctrine of separation of powers; and second, that under section 26 of the Constitution (as it then was), the AG had the exclusive power to prosecute. The cases that KACA was handling were handed over to the AG. These cases were either not continued or ended up being dismissed by courts.
The demise of KACA led to widespread civic and international outrage. Following the general elections in 2002 – widely believed to be the first truly free elections of their kind in Kenya’s history – Mwai Kibaki was elected president on a broad reform mandate, key to which was fighting corruption. He established KACA’s successor, the Kenya Anti-Corruption Commission (KACC) in April 2003 by way of the enactment of the Anti-Corruption and Economic Crimes Act. Exactly one year later, in April 2004, KACC was to face an acid test following the coming to light of what would prove to be the new administration’s nemesis, the Anglo Leasing Scandal (Anglo Leasing).
Anglo Leasing was a government procurement scandal in which a diverse array of fraudulent entities were secretly and unlawfully awarded large security contracts, and subsequently failed to deliver goods or services or grossly overcharged for them. In total it was estimated that there were at least 18 such contracts with a total value of $721 million.
The scandal reached the highest levels of government and was well-documented by the whistleblower John Githongo, who was then the Permanent Secretary for Governance and Ethics. Githongo was a former Executive Director of Transparency International in Kenya and was widely regarded as a person of integrity. Indeed his appointment was intended by Kibaki to signal his seriousness in the fight against corruption. Githongo’s report implicated the president himself, his vice president as well as various cabinet ministers and permanent secretaries.
The consequences were limited. The newly established KACC cleared three cabinet secretaries of obstructing the investigation using the novel and startling legal innovation that the whistleblower was not an investigator as defined by law. Far from playing the role of an independent prosecutor, KACC either did not investigate the most culpable, or when it did, it resorted to technicalities in order to defeat the very purpose it was formed to serve.
Anglo Leasing was a government procurement scandal in which a diverse array of fraudulent entities were secretly and unlawfully awarded large security contracts, and subsequently failed to deliver goods or services or grossly overcharged for them. In total it was estimated that there were at least 18 such contracts with a total value of $721 million.
In what is likely to exert a chilling effect on the exposure of government scandals, Githongo has recently had judgement entered against him personally in the amount of $270,000 for defamation in a suit brought by Dr. Christopher Murungaru who as Minister of Internal Security at the time of the coming to light of Anglo Leasing, was perhaps the leading figure under investigation in the scandal. This is the latest in a long series of legal setbacks which Githongo has faced since doing Kenya the immense service of bringing Anglo Leasing to light.
The Executive: Questionable tactics
Prosecution is no easy task. Prosecuting economic crimes such as corruption is even more so. These crimes tend to be characterised by a high degree of sophistication in terms of commission as well as concealment. Payments to those concerned, for instance, may be in the form of ‘commissions’ by shadowy organisations to multiple offshore jurisdictions, which are hard to trace and whose illegality is difficult to prove.
Unlike other crimes, a disproportionate amount of evidence tends to be in the hands of those who are already suspects. Gathering such evidence takes a great deal of time and expertise, involving teams of professionals applying specialised forensic techniques. The suspects themselves tend to be wealthy and powerful. They are able to hire large teams of lawyers who take advantage of every legal loophole, technicality, adjournment, appeal and delay in their client’s favour. They are able to apply pressure to witnesses and even to those working within the prosecution. Cases are likely to drag on for a long period of time and a government that wishes to see quick results in the war against corruption would be ill-advised to rely on prosecution as its primary and most visible strategy.
The DPP and the Directorate of Criminal Investigations (DCI) have conducted much of the war on corruption as a drama played out in the public eye. Press releases are issued and persons high and mighty are arrested with great fanfare. These persons are arraigned in court in vast numbers, and when bail is granted, the DPP cries foul. One of the major reasons that inform opposition to bail by the DPP is that the accused may interfere with investigations. This then implies that investigations were incomplete at the time suspects were arrested. This working methodology appears to essentially be a public relations exercise that fundamentally undermines successful prosecution.
Unlike other crimes, a disproportionate amount of evidence tends to be in the hands of those who are already suspects. Gathering such evidence takes a great deal of time and expertise, involving teams of professionals applying specialised forensic techniques.
Furthermore, those accused are often skilled political operatives, with established relationships within media. Charismatic and often able to appeal to ethnic loyalties, they can use the media as a tool to gain public sympathy and scuttle efforts at holding them accountable. In addition, early engagement of the media by the DPP as part of political theatre is likely to expose strategies and information prematurely, forewarning the accused. It must also be acknowledged that media organisations are corporate profit-making entities with interests of their own that may or may not align with the public interest.
Take for example the second National Youth Service (NYS) scandal. At one point there were 30 accused persons on one charge sheet in one case. Each was represented by at least one lawyer, and frequently by a team of lawyers. Each individual had to be put on their defence separately; each called and cross-examined their own witnesses. This takes about four days per witness. No country in the world can conduct a speedy trial, or even a fair one, under such circumstances. Even a matter as basic as a courtroom was a problem: there exists no courtroom in Kenya large enough to conduct this case, which had to be held in a ceremonial hall.
Unwieldy prosecution strategies have in the past been used as a guise under which the government appears to prosecute corruption while simultaneously taking steps to guard the prosecuted from legal culpability. During the Goldenberg scandal, the Attorney General, against the advice of his own Director of Public Prosecutions, framed more than 90 counts in one charge despite clear evidence that this would invalidate the charges, which is precisely what happened.
Given the difficulty of corruption investigation prosecution, cases should be restricted and prioritised based on pre-established criteria. Such criteria would include prosecuting the most senior figures, establishing judicial precedent and the probability of a successful outcome, for example, by targeting offences such as tax evasion that are relatively easier to prove.
Moreover, strategies such as plea bargaining and summary proceedings have proven useful in other jurisdictions as a means of shortening litigation and also gathering evidence of criminal activity that would otherwise be unavailable or require an enormous expenditure of surveillance and forensic resources.
Prosecuting corruption amounts to locking the stable door after the horse has bolted. Prevention is by a huge margin the better strategy, a large responsibility that lies with the Executive headed by the President. That we are experiencing corruption at all means that the Executive has failed to stop it and must now rely entirely on prosecuting those whom it has allowed to raid public coffers.
The Executive does not appear to have a coherent professional strategy to fight corruption. In the recent past, buildings on riparian land were brought down in a flurry of activity. Now there is sudden silence. This work has not been completed. Also forgotten is NYS 1, in which the central figure is now a governor. There needs to be a demonstrated professional understanding of corruption in Kenya and its underlying causes that drives the war on corruption; absent that the process will appear ad hoc and susceptible to being interpreted as a platform to selectively seize and exploit the weaknesses of political opponents.
The Executive does not appear to have a coherent professional strategy to fight corruption. In the recent past, buildings on riparian land were brought down in a flurry of activity. Now there is sudden silence.
Furthermore, the close relationship between the presidency and prosecutorial agencies is problematic. Factual independence of prosecutorial agencies from members of government is crucial towards the effectiveness of prosecution as an anti-corruption strategy. Components of factual independence include stable and widely applied legal foundations for the prosecution of crimes. As such, prosecutions ideally should emanate from an independent office exercising a constitutional and legal mandate independently, rather than following directions from any one office, however well meaning. Trust in the war on corruption and the legitimacy of the ruling regime as a whole could be undermined if it is perceived that those closely aligned to State House are unlikely to be prosecuted.
The blame game: The Judiciary
The Judiciary has been accused of granting bail with alarming ease to the high and mighty, while simultaneously denying the same benefits to ordinary citizens. Chicken thieves are subject to incarceration while those who have stolen millions roam this land free and unburdened.
The President himself, on the occasion of his Jamhuri (Republic) Day speech on December 12 2018, accused the Judiciary of granting “ridiculously low bail terms”. The Judiciary has been accused of misunderstanding the presumption of innocence and equating it with a presumption of virtue, being divorced from the aims of society in general and in particular being insensitive to the scourge of corruption. Indeed political actors have not shied away from accusing the Judiciary of outright collusion with accused persons. Individual judges have also been mentioned adversely in social media in ways ranging from the mildly disturbing to the downright scandalous.
It is germane to the President’s comments on “ridiculously low bail” that in the preceding week, top officials of the Kenya Pipeline Company (KPC) and the National Health Insurance Fund (NHIF), including Joe Sang, the Managing Director of KPC and Geoffrey Mwangi, CEO of NHIF, had been charged with abuse of office leading to the theft of billions of shillings. They were released on a bail of Sh2 million each. In July 2018, top officials of the Kenya Power Company, including the CEO Ken Tarus, his predecessor Ben Chumo and senior managers were similarly charged and released on bail terms of Sh1 million.
Where the Judiciary has been criticised for giving bail, no evidence has been proffered of the compelling reasons against it that the Judiciary ignored. Suspects have presented themselves to police stations and have attended court proceedings voluntarily. The purpose of bail is to secure attendance, not to act as some sort of premature punishment prior to conviction by its denial.
While it is still too early to pass definitive judgement on the effectiveness of this new wave of prosecution against corruption there is a key historical hurdle that Uhuru Kenyatta’s administration will have to overcome. The prosecution or lack thereof of Anglo Leasing suspects in a scandal that was enormously well-documented leads us to the inevitable presumption that that those crucial to the campaign of the next general election in 2022, either by dint of being sufficiently wealthy and willing to fund the election campaign or perceived as being able to guarantee key ethnic loyalties, will not be successfully prosecuted and that after the dust and fanfare settles those most culpable will not be held accountable. Shifting the blame to other institutions has already begun and is likely to continue.
Who is Policing the Police? Kenya’s Lame Duck Oversight Mechanism
19 min read. Seven years after an independent oversight body was formed to monitor and investigate police misconduct and abuse, Kenyans are still suffering under the hands of an incompetent and uncaring police force that gets away with excesses with impunity. Has IPOA lived up to its promise?
On the right-hand corner at the top of Policing Lens, the Independent Policing Oversight Authority (IPOA)’s quarterly newsletter, two heavily padded policemen positioned inside the frame of a magnifying glass are holding shields branded ‘Police’. The duo have their baton-wielding fists raised in the air, poised to descend on a seemingly already subdued civilian lying motionless on the ground. This surreal image ushers one into IPOA’s world, a Freudian admission that the National Police Service (NPS) may not be as transformed from what it used to be when it was known as the Kenya Police Force – still deploying brawn in place of brain.
This disturbing yet at once candid logo subconsciously summarises IPOA’s statement of intent, which is that the statutory agency is not afraid of confronting the dark history and the not-so-squeaky-clean present day state of affairs within the police, an unflattering confession they are willing to make publicly. Conversely, the choice of IPOA’s optics could be (mis)construed as an act of concession, confirming that despite its far-reaching powers and mandate, IPOA, just like the overpowered civilian victim of police brutality, remains subdued by police excesses.
Yet the need for IPOA to live up to its full mandate cannot be gainsaid.
Waki, Alston and Ransley
During the 29 May 2009 United Nations Human Rights Council sitting in Geneva, Switzerland, Prof. Philip Alston, the then UN special rapporteur on extrajudicial, summary or arbitrary executions, faced a dilemma. Coming merely two months after his inaugural Kenya working tour, Prof. Alston was calling for the investigation of the Kenya Police Force in a case where it was suspected of involvement in the execution of two human rights defenders. But as he pushed for an investigation into the police, Prof. Alston regretted that as things stood at the time (and maybe as they still stand to date), it was impossible to investigate the police.
Prof. Alston wrote: ‘‘As there is, according inter alia to the report of the Commission of Inquiry into Post-Election Violence (CIPEV, pages 420-421), no existing independent unit capable of effectively and credibly investigating possible police misconduct in Kenya, we consider it imperative that an independent investigation be carried out with support from a foreign police force.’’
Prof. Alston was partly basing his observation on the October 2008 Commission of Inquiry into Post-Election Violence (CIPEV) report authored by Court of Appeal Judge Philip Waki, who chaired the CIPEV, otherwise referred to as the Waki Commission. Apart from pointing out the extent to which it was impossible to investigate the police for suspected police-inflicted deaths and injuries, the Waki Commission showed the extent to which the police were suspected of serious human rights violations during the 2007/2008 post-election violence, where one in every three of the 1,133 deaths documented by CIPEV were as a result of bullet wounds. These figures, though supported by morgue data, were disputed by the Commissioner of Police, Maj. Gen. Hussein Ali, who knew of only 616 deaths, emphatically telling CIPEV that only the police could give authoritative figures for those who died as a result of the post-election violence.
The Waki Commission showed the extent to which the police were suspected of serious human rights violations during the 2007/2008 post-election violence, where one in every three of the 1,133 deaths documented by CIPEV were as a result of bullet wounds.
It was under these circumstances that CIPEV recommended the establishment of an “Independent Police Conduct Authority” outside the police, with the legislative power and authority to investigate complaints against the police and police conduct. By the time Alston was suggesting international investigation of police killings, nothing had happened to implement CIPEV’s crucial recommendation, but his report now made it imperative to establish an independent police oversight agency to curtail future contemplation of seeking foreign investigative assistance.
As if pre-empting Prof. Alston’s May 29 presentation in Geneva on 7 May 2009, President Mwai Kibaki tasked Justice (retired) Philip Ransley to look into concerns raised by the other two Philips – Alston and Waki – by appointing him to chair the National Task Force on Police Reforms. Ransley’s Commission aimed ‘‘to examine existing policies and institutional structures of the police, and to recommend comprehensive reforms that would enhance effectiveness, professionalism and accountability in the police services.’’ Ransley was given 90 days, and in October 2009, having wrapped up his hearings, Ransley handed his report, which contained a whopping 200 recommendations, to the head of state.
Ransley asked for, among other things, terminological change seeking the establishment of the National Police Service (NPS), a change from the scandal-ridden Kenya Police Force. The idea was to shift the mindset of the police towards civilians, a change from always resorting to force in the course of duty to one of offering a professional service. This was to also influence civilians’ perception of the police, from that of antagonism to one of co-operation and collaboration. Ransley similarly asked for the setting up of the National Police Service Commission (NPSC), tasked with overseeing the human resource component of the NPS, starting from recruitment, appointments, promotions, and general welfare of the police, away from the Public Service Commission (PSC), which previously handled these responsibilities.
More importantly, and in responding to Alston’s and Waki’s concerns, Ransley recommended the establishment of the Independent Policing Oversight Authority (IPOA), a civilian body mandated by law to keep the proposed NPS in check. In imagining an ideal scenario, Ransley envisioned an IPOA to watch over financial spending by the NPS; ensure the NPS adhered to international best practices in policing; receive and initiate investigations into complaints on police misconduct; monitor, review and audit police investigations; as well as coordinate other institutions on issues of police oversight, among other things.
That Ransley’s task force completed its work within 90 days and submitted its report soon thereafter came as a surprise to sceptics, including those within the diplomatic corps. This was evidenced in a WikiLeaks cable originating from the US embassy in Nairobi, which read:
‘‘…However, several prominent persons have expressed doubts about the government’s motives in establishing the PRC. They note that the PRC’s short 90-day mandate is far too little for such a massive task and that Police Commissioner Hussein Ali will act to thwart all but superficial reforms. We share some of these doubts, but will take a wait-and-see approach, recognizing that the PRC provides an opportunity – the only one at this time – for much-needed police reform. The UK shares our doubts, but will support the commission financially by paying for a UK and a Commonwealth police expert to serve on the PRC. If the GOK acts to implement real reform we are positioned to support the effort with funds….’’
The Americans and the British might have had valid reasons to second guess the intentions in setting up the Ransley task force, referred to erroneously in the WikiLeaks cable as the Police Reform Commission (PRC). A few months earlier, before the appointment of Ransley and his team on 7 May 2009, the then powerful Minister of State for Internal Security and Provincial Administration, Prof. George Saitoti, had placed a mischievous announcement in the Kenya Gazette, Notice Number 8144 of September 2008. The alert was about a Police Oversight Board, a proposed agency populated by presidential appointees, which the minister wanted domiciled in his ministry, and whose members – named in the gazette notice – the minister had powers to dismiss at will. This therefore meant that the mandate to oversee the police would remain within the state, under the same ministry as the police, a bad attempt at pseudo self-regulation. Prof. Saitoti’s actions seemed pre-emptive.
At around the same time, the non-statutory Kenya Human Rights Commission (KHRC), among others, was busy singing the chorus of the establishment of a civilian police oversight body. In fact, the KHRC had gone as far as drafting a bill proposing the creation of the Police Oversight Board, a name and concept which the minister appropriated. The difference was that the KHRC was proposing an autonomous civilian agency, while the minister wanted to create an appendage of the police within his portfolio. It was these sorts of cat-and-mouse games that eroded credibility on efforts by the state towards police reforms, setting the stage for doubting Thomases as Ransley got working.
Further, in revelations contained in the aforementioned WikiLeaks cable, Prof. Saitoti was reported to have told the US Assistant Secretary of State for Africa, Johnnie Carson, that what was needed in police reform was ‘‘evolution, not revolution’’. The minister had also been quoted – utterances he denied having ever made – saying that only “normal reforms are required [like] looking into the welfare of officers, adequate facilities to increase the morale and efficiency” of the police. This strategy, of doing cosmetic reforms by focusing on the more bureaucratic end of things as opposed to delving into the more substantive questions of police violations, is one which would later be used to keep IPOA distracted from its core mandate.
The Inaugural Term
On 27 August 2010, almost a year after Ransley’s task force submitted its report to President Mwai Kibaki, Kenya promulgated a new constitution. With the new legal regime in place, and staying true to Ransley’s recommendations, Parliament passed the IPOA Act (Act No. 35 of 2011), legislation which paved way for the establishment of the Independent Police Oversight Authority (IPOA). This was a huge milestone. Other than South Africa’s Independent Police Investigative Directorate (IPID), there remains no other policing oversight agency in Africa.
However, rather than looking to South Africa, IPOA heavily borrowed its architecture from the UK’s Independent Office for Police Conduct (IOPC), formerly the Independent Police Complaints Commission (IPCC). This was possibly a direct result of the input by the British expert seconded to the Ransley task force, as explicitly intimated in the WikiLeaks cable. Consequently, IPOA’s objectives were outlined in Section 5 of the Act thus:
- a) Hold the Police accountable to the public in the performance of their functions;
- b) Give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
- c) Ensure independent oversight of the handling of complaints by the Service.
In adhering to the Act’s requirements on the hiring of the IPOA board, the president, through Kenya Gazette notices 6938 and 6939 of 22 May 2012, appointed IPOA’s inaugural chairman and the agency’s board members, who were all sworn in on 4 June 2012. Ransley’s team had outlined the composition of the board to include two persons with experience in public administration, alongside individuals with knowledge in financial management, corporate management, human rights, and one with experience in religious leadership. The board’s chairperson had to be someone qualified to be appointed a judge of the High Court of Kenya.
Further, in revelations contained in the aforementioned WikiLeaks cable, Prof. Saitoti was reported to have told the US Assistant Secretary of State for Africa, Johnnie Carson, that what was needed in police reform was ‘‘evolution, not revolution’’.
As fate would have it, Macharia Njeru, currently a member of the Judicial Service Commission (JSC), who had served as a member of the Ransley task force, was picked as IPOA’s first chairman. One would have imagined that having been part of the Ransley team, Njeru would hit the ground running, having had the advantage of being one of the agency’s draftsmen. However, by the end of his board’s six-year term, Njeru’s team came under heavy criticism,for what was considered an utterly dismal performance, especially by victims of police excesses.
During its inaugural term, IPOA received an average of four serious complaints a day. As a result, the common refrain against the agency was that of the almost 10,000 cases of police misconduct reported to it, IPOA had only secured a paltry three convictions. These were: High Court Criminal Case No. 41 of 2014 (Republic Vs Inspector of Police Veronicah Gitahi and Police Constable Issa Mzee, and Criminal Appeal No. 23 of 2016 (Inspector of Police Veronicah Gitahi and Police Constable Issa Mzee Vs Republic), and High Court Case No. 78 of 2014 (Titus Ngamau Musila).
Pundits argue that strictly speaking, these were two convictions. In the first case, two police officers were convicted, thereafter appealing the ruling. They lost at the appellate court, a development which saw IPOA count the double loss by the officers as two wins on its part.
During its inaugural term, IPOA received an average of four serious complaints a day. As a result, the common refrain against the agency was that of the almost 10,000 cases of police misconduct reported to it, IPOA had only secured a paltry three convictions.
By 30 April 2018, when the inaugural board’s mandate was just coming to a close, the agency had received a total of 9,878 complaints. These were both from members of the public and from within the police service. Of these, 5,085 were classified as needing to be investigated. The rest, as per IPOA’s breakdown of the numbers, were referred to the Internal Affairs Unit of the National Police Service (748 cases), IPOA’s inspections and monitoring directorate (364 cases), the National Police Service (249 cases), the National Police Service Commission (319 cases), the Kenya National Commission on Human Rights (41 cases), Officers Commanding Police Stations (370 cases), the Directorate of Criminal Investigations (289 cases), and another 312 cases were shared between the Ethics and Anti-Corruption Commission, the National Land Commission, and the Commission of Administrative Justice (Office of the Ombudsman).
Of the 5,085 cases meant for investigations, 752 were reported to have been investigated and completed, 458 were closed preliminarily, 72 were still under investigation, 76 were under legal review by IPOA, 103 were forwarded to the Office of the Director of Public Prosecutions, 11 were sent to the Ethics and Anti-Corruption Commission, with 6 referred to the National Police Service. Furthermore, 459 complaints were dismissed as falling outside IPOA’s mandate, 1,642 cases were closed for what IPOA terms ‘‘withdrawal by complainants; matters before Court; not actionable; and insufficient information.’’ 64 cases were before the courts.
As of March 2019, the total number of cases reported to IPOA stood at 12,781, with 136 cases taken to court. In a mark of progress, three more convictions have been added to IPOA’s tally since the new board took office in September 2018. It goes without saying that the new board is to a large extent building on the groundwork done by their predecessors, meaning by the end of the six-year mandate, IPOA’s second board should have better figures in comparison.
By any account, IPOA’s 2012–2018 numbers are mind-boggling, its paltry three convictions not doing much in terms of building confidence within the aggrieved civilian population. As a matter of fact, naysayers will be forgiven for thinking the numbers being thrown around are all a well-choreographed game of smoke and mirrors, a case of motion without movement.
However, the question one may want to ask is, was IPOA set up for failure from the word go?
While listening to Macharia Njeru campaigning to be picked as the male representative of the Law Society of Kenya in the Judicial Service Commission, it became obvious that the one talking point IPOA’s inaugural chairman wouldn’t let go of was that he had successfully built an institution from scratch.
Njeru’s exit message as his term came to a close was on how much he, his board and IPOA’s senior staffers had worked in putting in place systems. There was talk of financial management awards, all bureaucratic shenanigans – not unimportant but neither were they IPOA’s core mandate. There was certainly need for institution building, but at what expense did this happen? Did Njeru’s team sacrifice IPOA’s primary oversight responsibility at the altar of corporatism, or was it a trap set for him from the word go – to keep him busy paper pushing and not allow his team adequate time and resources to focus on police misconduct?
When looking at IPOA’s founding financials – an annual budget of Sh96 million (US$ 960,000) in 2012/2013 – it is clear that from the beginning one of the ways the state wished to put the agency on a tight leash was by limiting its budgetary allocations. Seeing that the agency needed to build from the bottom up – hire premises, recruit and train staffers, establish regional offices, among other day-to-day operational logistics, it was evident that with a paltry financial allocation, the board would be kept busy micromanaging budget line items as police violations went through the roof. For instance, it is astonishing to note that in 2013, IPOA could only hire an initial staff of six people.
Possibly seeing that the agency had fallen into the institution-building-at-the-expense-of-its-core-mandate trap, IPOA’s budget eventually grew to Sh696 million in 2017/2018 and Sh800 million in 2018/2019, barely Sh1,000 (US$10) per complaint per day, and definitely an insignificant amount of money considering the scope of oversight expected of the agency. By the time Njeru’s team was leaving, IPOA had acquired a total of 27 motor vehicles – a number one might find laughable, seeing that IPOA’s operations needed to cover the entire country – and had a staff roster of a mere 143 employees. How was such an institution, even if perfectly structured, capable of overseeing a National Police Service that recruited an average of 10,000 police officers on an annual basis? Would IPOA ever be fit for purpose?
In 2014, the board developed a four-year strategic plan to coincide with its 2018 exit. The plan was built around four pillars, namely compliance by the police with human rights standards; restored public confidence and trust in police; improved detention facilities; a functional Internal Affairs Unit (IAU) of the National Police Service; and a model institution on policing in Africa. In its usual brick and motor state of mind, IPOA reported that ‘‘it is pleased that the National Police Service has secured an office for the IAU, and indications are that the Unit will be operational by August 2018.’’ Other than that, it is anyone’s guess as to whether any of the other targets were satisfactorily achieved under the strained circumstances the agency was operating under.
By all means, IPOA’s inaugural term had too many moving parts that kept the agency busy, thereby making it drop the ball on many occasions regarding delivery of its core mandate to civilians, who continue to suffer in the hands of rogue elements within the National Police Service. According to Wangui Kimari of the Mathare Social Justice Centre (MSJC), and as has become a common refrain in Kenyan society today, vitu kwa ground ni different (reality bites). For starters, IPOA is not perceived as a friend of the civilians, thanks to its one-size-fits-all bureaucracies.
‘‘Victims of police brutality and families of those killed by the police in places like Mathare and Korogocho are weary of going to report their complaints to IPOA for many reasons,’’ Wangui told me when we met in Nairobi. ‘‘Some of them are broke, they cannot even afford bus fare, yet they are expected to go to IPOA’s intimidating head office to make a statement. Once at IPOA, the majority of the complainants, who are either illiterate or semi-literate, will always be harassed for either not filing their complaints properly or for leaving out crucial information. It is in filling these gaps that trusted grassroots organisations such as the social justice centers come into the picture, but even after lodging the complaints properly, the long periods of time which lapse before IPOA moves on the cases is discouraging to the victims and their families.’’
In a word, IPOA’s operations are not fit for purpose since its user experience remains wanting.
According to Gacheke Gachihi, an MSJC activist, IPOA needs to have its tentacles in places such as Mathare, which record some of the highest numbers of extrajudicial killings. It is public knowledge that informal settlements in Nairobi have well-known killer cops, some whom go as far as parading their past, present and future conquests on social media. To Gacheke, the fact that IPOA does not have outposts in places like Mathare shows its top-bottom approach to oversight, where instead of going to the ground, the agency keeps to its air-conditioned offices.
‘‘IPOA needs to come and be in the midst of the people who need it most,’’ Gacheke told me. ‘‘Their presence here can work as a deterrent to rogue police officers. If they think residents of Mathare flood their registry, they will be surprised at the many cases which go unreported.’’
According to Gacheke Gachihi, an MSJC activist, IPOA needs to have its tentacles in places such as Mathare, which record some of the highest numbers of extrajudicial killings. It is public knowledge that informal settlements in Nairobi have well-known killer cops, some whom go as far as parading their past, present and future conquests on social media.
In the opinion of some front line human rights aficionados who wished to remain anonymous – they do not wish to sanitise IPOA’s arrogance with a comment – IPOA’s biggest shortfall has been its opacity. They claim IPOA behaves as if it is ignorant of the fact that for it to succeed it needs to operate within an ecosystem comprising all kinds of stakeholders nurtured by trust. It is this sense of indifference from IPOA, they say, which has resulted in disengagement by human rights defenders, who are getting completely disinterested in IPOA’s work processes. ‘‘They never answer calls or reply to emails,’’ one of them told me. ‘‘It is a complete disgrace.’’
The other battle on IPOA’s plate is that of perception. Wangui told me that when she brought mothers and widows of victims of extrajudicial killings to IPOA’s open day, the majority of them did not want to come close, since they considered IPOA as part of the National Police Service. ‘‘They wouldn’t go to the IPOA stand,’’ Wangui told me, ‘‘because to them, hao ni polisi.’’
The Missing Repository
According to leading human rights lawyer Sam Mohochi – previously executive director of the Independent Medico-Legal Unit (IMLU) and immediate former executive director of the Kenyan Section of the International Commission of Jurists (ICJ-K) – any suspicious death, and particularly death at the hands of or while in the custody of the police or of a prison officer, should automatically trigger a Magistrate’s Inquest under Sections 386 and 387 of the Criminal Procedure Code. In Mohochi’s view, IPOA should therefore be the undisputed repository for all such cases in instances where the police are involved, such that IPOA either exonerates or implicates them.
‘‘All custodial deaths should result in an inquiry being instituted,’’ Mohochi told me in Nairobi. ‘‘But you will notice that as things stand, IPOA does not comply with provisions of the law.’’
‘‘If you look at most cases of extrajudicial killings in Kenya, unless the family or other actors complain, no automatic legal action occurs,’’ Mohochi told me. ‘‘But two, now bring in IPOA. All such cases are automatically expected to be referred to IPOA, directly, by the police. That then means that in IPOA’s progress reports, the agency should always indicate how many such cases have been forwarded to it, by the police. Unfortunately, if you look at IPOA’s progress reports, they are completely silent on that. Yet that would have been the repository where you could keep tally of extrajudicial killings, irrespective of whether investigations are complete or not. That way, there could be a credible tally of encounter killings by the police, reported by the police. What we mostly have are statistics of cases reported by victims, against the police.’’
In Mohochi’s opinion, the ideal situation in cases where police bullets have been used to either harm or kill civilians should be that the Officer Commanding Station (OCS) who is in charge of the police in a given jurisdiction should be the one to forward any suspicious police action to IPOA as a measure of accountability. This means that if the police abuse their powers in a locality and the OCS does not report it to IPOA, then the agency should have punitive measures in dealing with such a non-compliant OCS.
And if dealing with an OCS gets cumbersome – which should not be the case since IPOA has statutory powers – then IPOA should at the very least have its own investigators stationed at every police station in order for the agency to get first-hand accounts of police excesses, which are then forwarded to the agency’s legal and investigative units. Failure to do this, Mohochi says, will result in the majority of police violations to go unreported; even if they get reported, there will always be the evidential challenge since the police, in protecting each other, will neither secure the crime scene nor get witness statements of their own volition.
‘‘IPOA should issue a circular to all police stations,’’ Mohochi told me, ‘‘that should any case of extrajudicial killings occur, they need to be notified immediately. Failure to do so, even IPOA’s own investigators will not find it easy investigating a non-cooperative police service.’’
Further, Mohochi told me, what IPOA is doing – documenting police violations and prosecuting rogue officers – is something that was already being done by non-state actors. However, the establishment of IPOA was meant to scale things up in terms of convictions, something which is not happening. In Mohochi’s recollection, police officers have been jailed before IPOA came into place, but IPOA was meant to act as a bigger deterrent through higher conviction rates. If this is not attainable, Mohochi fears that IPOA will not be serving the purpose it was founded for.
The Evidence Puzzle
Over the years, and as intimated by Mohochi, insufficient evidence has remained one of the prominent bottlenecks in litigating against police violations in cases of extrajudicial killings. For the most part, aside from entities such as the Independent Medico-Legal Unit (IMLU), who were for a long time the go-to place for independent, credible autopsies, especially in public interest cases, attempts to prosecute the police either by IPOA or other actors have run into headwinds for lack of admissible evidence on the cause and circumstance of death. As such, the passing of the National Coroners Service Act of 2017 came as a huge relief for both human rights defenders and evidence-based agencies such as IPOA. This meant that in the event of any suspicious deaths, then there would be a legally mandated entity which would take up the matter, preserve the evidence, institute an inquiry, after which prosecutorial steps can follow.
According to the Kenya National Commission on Human Rights (KNCHR) handbook on the Act, much as the Kenyan version of the coroner’s office will not be quasi-judicial, as an important starting point, the Act establishes a framework for investigations and determination of the cause of reported unnatural deaths in the country. Some of the anticipated quick wins are that obstruction of investigations, bearing false witness, and refusal to comply with directions from the coroner will be things of the past.
Further, the Act provides immunity from civil and criminal prosecution, or any other administrative action for that matter, for those who give evidence to the coroner. This is a huge improvement from the current reliance on Sections 385-387 of the Criminal Procedure Code, which provide for an inquest in cases of suspicious deaths, but does not have the sorts of far-reaching powers provided by the Act. Unfortunately for IPOA and its civilian complainants, and in that typical Kenyan self-sabotage fashion, since the signing of the Act into law in July 2017, it remains gathering dust, and is still not operationalised.
The Recruitment Charade
However, after everything is said and done, one of IPOA’s persisting headaches remains the almost always scandalous police recruitment exercise. It goes without saying that if the National Police Service keeps filling its ranks with individuals not suited for policing, then no matter what interventions IPOA resorts to, its in-tray will forever remain full of cases of police misconduct by rogue officers, persons who were never fit to be part of the service from the word go. To date, no matter what IPOA or other statutory watchdog agencies like the Kenya National Commission on Human Rights (KNCHR) do, the problem of shoddy police recruitment has kept recurring, courtesy of the now perfected selective application of recruitment guidelines.
For starters, recruitment of police officers is the sole prerogative of the National Police Service Commission (NPSC), as recommended by the Ransley task force. However, the law allows the NPSC some discretion, through which it can delegate this responsibility to the Inspector General of Police. This, however, should not be a recipe for subpar recruitment, because the recruitment process should be strictly guided by the NPSC’s Legal Notice No. 41 of 2015. The legal regulations contain general provisions, recruitment categories, gender, regional and ethnic balance requirements, functions of the NPSC in the recruitment, advertising timelines and positions to be advertised for, contents of the advertisement, composition of recruitment panels, calendar of activities for the entire recruitment process, determination of successful candidates, disqualifications, a complaints management system, training schedule and issuance of certificates upon appointment, and submission of the recruitment report to Parliament.
More importantly, Regulations 11-15 of the Legal Notice prescribe a two-tier recruitment process, where in the initial stage, interested candidates submit applications to the NPSC, which having considered education qualifications, gender and ethnic balance, et cetera, is then required to shortlist three times the number of prospective officers it wishes to enlist at each of the recruitment centers. These names are then meant to be shared with the public so that any objections about the recruitment of any individual can be brought forth. Thereafter, the NPSC is supposed to conduct verification of documents as well as medical and physical aptitude examinations. Taking into consideration how rigorous the process should be, from the time of advertisement of vacancies to when the new recruits report to training, Regulation 17 of the Legal Notice provides for a 90-day period for completion of the recruitment cycle.
Unfortunately, the NPSC and the Inspector General of Police have continued practising their traditional one-day recruitment exercises, where they focus not on intellectual aptitude, as the two-tier processes envisions, but give prominence to physical attributes. Aside from that, flawed advertisement processes, lack of public participation, cases of bribery and patronage, and the locking out of observers – who are mandated by law to have access to the entire recruitment process – continue to be the order of the day.
In July 2014, the newly established IPOA took a bold step by taking the NPSC to court after it observed incidents of corruption, fraud and massive irregularities during recruitment. IPOA sought for nullification of the entire exercise, prayers which were granted by the High Court. On appeal, IPOA’s victory was upheld by the Court of Appeal under Petition No. 390 of 2014 and Civil Appeal No. 324 of 2014 (The Recruitment Decisions). According to those in the know, the government did not look at IPOA’s actions favourably, resulting in reported cases of not-so-subtle intimidation, with strong attempts at creating factions within the IPOA board.
Unfortunately, the NPSC and the Inspector General of Police have continued practising their traditional one-day recruitment exercises, where they focus not on intellectual aptitude, as the two-tier processes envisions, but give prominence to physical attributes.
In a sad turn of events, neither the NPSC nor the Inspector General of Police seemed to have learnt their lesson. Two years later, the Kenya National Commission on Human Rights (KNCHR) released a comprehensive report titled ‘‘DisService to the Service: Report of the Monitoring of the 2016 Recruitment of Police Constables to the National Police Service’’, in which it extensively observed that police recruitment continued being marred with serious irregularities characterised by interference from the executive arm of government and a total disregard of the two-tier process, which is meant to attract a higher calibre of trainee officers.
In one of its pleadings, the KNCHR wrote, ‘‘The continuous lack of adherence to follow the two-tier process means that achieving professionalism within the National Police Service will remain a pipe dream. The recruitment process serves as the point of entry into the service, and thus any attempts at professionalising the service should begin at this level.’’
Therefore under the prevailing circumstances, where regulations are ignored at will by the highest organs of the state, IPOA will remain a lame-duck mitigating force inside a garbage-in garbage-out setup.
This report is a criminal human rights reporting project of Africa Uncensored and the Institute of War and Peace Reporting (IWPR).
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