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PAN-AFRICANISM: An idea whose time will never come?

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PAN-AFRICANISM: An idea whose time will never come?
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First, an “ancient” African fable.

A chicken foraging somewhere in Africa’s bush came across a pawpaw tree that had grown diagonally instead of straight up. A ripe pawpaw was hanging at the end, which the bird could not quite reach, and so decided to walk up the inclined trunk instead.

As it perched on the end of the tree pecking away, a fox entered the small clearing, looked up, and saw what was going on. “Be generous. Share,” said the fox. “Why are you eating all by yourself? Knock it down so we can eat it together.”

I may be just a bird, but I am no fool,” replied the busy hen. “Clearly the meal you intend is me. Since when did foxes eat fruit?”

“I see. You must not have been at the meeting, then,” the fox observed.

“What meeting?” the hen asked. The fox went on to explain to her how a large meeting of the forest’s animals had taken place recently where they had come to an agreement to no longer eat each other. Instead, they would cooperate to gather and eat fruit.

After securing a sufficient number of haki ya mungus from the fox, the hen knocked the pawpaw to the ground and fluttered down after it.

In the end, of the African Union’s 55 member states, 44 were present and signed up to the removal of trade barriers, 43 signed the launch declaration, and just 27 agreed to lifting barriers to the movement of people.

As the two stood side by side eating, a lion appeared, and began to approach them. The fox screamed, and immediately took to his heels.

“Where are you going?” asked the hen.

“Don’t you see the lion?” yelled the fleeing fox. “Run for your life!”

“But what about the agreement?” asked the puzzled hen as the big cat drew up beside her.

“You don’t understand,” the fox shouted over his shoulder. “That lion was not at the meeting either!”

(Actually, this fable not that old: it was probably made up during the wrangling over delegate credentials at the 1978 Moshi Peace Conference of anti-General Idi Amin forces. The dysfunctional tree was a metaphor for Uganda’s condition.)

The just-concluded African Union Africa Continental Free Trade Area (AfCFTA) summit in Kigali once again brought to the fore political Africa’s favourite topic: Pan-Africanism and it possibilities. To many, this is the Holy Grail of African liberationism, the ultimate destination and logical conclusion of the exertions of previous decades, but building on centuries before that.

The outcomes of the summit are triumphantly declared to have been to finally take a first concrete step on the long journey to the political and economic integration of the continent. Three things required consensus: to agree in principle that such an initiative was required now; to agree to the removal of nearly all customs barriers to intra-African trade; and to agree to the removal of selective immigration barriers to intra-African travel by Africans.

Beneath the excitement, there remained many difficult details that could potentially become obstacles: not every African country was present in Kigali; of those present, not everyone signed up to all three elements of the treaty; among those that did, each element of the protocols must now be subjected to discussion and ratification in the parliaments and cabinets of the participating countries. Among the “faint-hearted” were the continent’s two economic power houses (such as they are): South Africa and Nigeria. South Africa, represented by its new president, Cyril Ramaphosa, said that even initialing the treaty required consultations back home first. As for Nigeria, tales exist of a dramatic literal U-turn as the presidential convoy to the airport had to return to Abuja to hear more concerns from the business community.

Such dictators recognised the strategic value in running their countries like personal fiefdoms with a disorganised, impoverished populace. The last thing they needed was a genuine move towards greater sharing of those resources, and the mutual accountability that this could entail, as could become the case under any Pan-African arrangement.

None of the heads of state of Rwanda’s immediate neighbours were present either. In the end, of the African Union’s 55 member states, 44 were present and signed up to the removal of trade barriers, 43 signed the launch declaration, and just 27 agreed to lifting barriers to the movement of people.

“We [Africans] are the kind of horses that are very thirsty. When brought to the well, some of us drink, others have excuses…We should stop enjoying problems. Especially when we have the answers,” the summit’s host, Rwandan president (and current African Union chairperson) Paul Kagame reportedly said.

So, as a result of the elephant in the room being the issue of the lions not in the room, the renewed path to African unity will be remembered partly for being launched with a snide remark from the host.

But what exactly is Pan-Africanism? And to what extent is any of this actually new, or a departure from previous attempts?

A history of hopes

We need not retrace the path to this moment in detail. The aspiration for one big country, or at least a “United States of Africa” has always been part of Africa’s post-colonial political lexicon. Where leaders of the past differed was on the question of the best route to getting there. Famously, Ghana’s independence icon Kwame Nkrumah called for it to be implemented straight away. Among his contemporaries were those with another school of thought, calling for a phased process. Neither happened, of course, and, for the Pan-Africanists at least, the continent remained a halfway house of former colonies within inconvenient colonial borders. No longer a girl, not yet a woman (to paraphrase American philosopher-singer Britney Spears).

This is not to say there was no de facto unity, at least on certain issues. Far from it. The AU’s forerunner, the Organisation of African Unity – which, with its early decision to uphold the colonial era borders, emerged as the physical expression of the “phased process” approach – became the forum where a number of key initiatives demonstrating a determination for united action among the continent’s leaders could be seen. The better-known among these was the decades-long campaigns against the stubborn colonial stain that held on in Southern and Western Africa, in the Portuguese colonies, as well as in the die-hard white settler “nationalism” isolated in the South. This included everything from diplomatic and political protests to sanctions and material support, including military training for Southern African nationalists.

Regional trade blocs were established in West, East and Southern Africa. Some states went further by actually intervening in regional conflicts. However, many more conflicts simply overran and made farcical any pretence towards mutual African respect. Key cases in point are the 1967-1970 civil war in Nigeria, which still poisons the politics of that country, the still ongoing Saharawi stalemate in Western Sahara against Morocco and Ethiopia’s four-sided wars from the early 1960s until 1990.

A key question then, now and in the proposed future is always going to be: What does the ordinary African get out of these arrangements?

The most striking and frightening characteristic of all African governments is this: that without an exception, all of them are dictatorships, and practice such ruthless discriminations as to make the South African apartheid look tame…..I leave it to political scientists to explore and analyse this strange situation whereby independence means the replacement of foreign rule by native dictatorship,” wrote the legendary Ugandan poet Okot p’BItek in a 1968 article that may well have jeopardised his career, but certainly ruined his standing with the powers-that-were.

By way of an excuse, one could argue that these severely hampered aspirations, and the poet’s mockery of them, were the result of three things:

First, Cold War geopolitics overshadowed Africa’s entire post-independence period. There were intractable wars like the 1977-1978 Somalia versus Ethiopia conflict over the Ogaden region, which saw the Soviet Union first back Somalia against Emperor Haile Selassie’s forces, and then dramatically change sides when the “socialist” dictator Mengistu Haile Mariam deposed the Emperor. In Angola, an even more obvious proxy war was fought for nearly two decades between the superpowers, as Jonas Savimbi’s UNITA dueled with the MPLA government. In all these cases, interventions led to a prolongation of conflict, the entrenchment of authoritarian cultures and a sapping and stagnation of social and cultural energies.

Even Tanzania’s Julius Nyerere was obliged to remark that “there is no national economy at all!” when recounting the practical difficulties of establishing a fair trade regime after independence.

Second, there was global plunder – perhaps the whole point of the Cold War. This gave rise to opulent kleptocracies, such as Marshal Mobutu’s in Congo and Bedel Bokassa’s in the Central African Republic, as well as to pseudo-socialist regimes, such as Macius Nguema’s in Equatorial Guinea, in which impunity reigned as long as the backing superpower obtained the resources it craved. Such dictators recognised the strategic value in running their countries like personal fiefdoms with a disorganised, impoverished populace. The last thing they needed was a genuine move towards greater sharing of those resources, and the mutual accountability that this could entail, as could become the case under any Pan-African arrangement.

Third was the corpus of local interests, both formal and informal, legitimate and not, that naturally have built up in the interstices of whatever passes for “national” economies in each of our countries. For example, much as General Idi Amin took the historic blame (or at least most of it) for the collapse of the original East African Community, credible stories linger about how the road haulage businesses of local oligarchs in the region were certainly not hurt by the hobbling of the East African Railways system, and may even have encouraged it.

“The elites in each of these states really make money off gatekeeping – levying taxes off imports/exports and granting licences or concessions within defined areas. Belief in free and open markets is only skin deep,” tweeted Daudi Mpanga, a distinguished lawyer with extensive experience in corporate and political representation across East and Southern Africa, in a comment on AfCFTA.

But beyond the usual gatekeeping, there are genuine native business interests. For example, corporate interests entering Nigeria have to acknowledge the idiosyncrasies of the situation there and enter into accommodative arrangements with the well-established local business class. One corporation alone was able to post of $750 million in after-tax profits in 2007/8 out of this country-specific process. It is no coincidence that Nigeria was the one country where entrenched queries on AfCFTA have come from her business community.

What then is Pan-Africanism? And to what extent is any of AfCFTA actually new, or a departure from previous attempts at it?

Unity between what and whom, and over what?

If the idea is to unite African states, does this not really mean just amalgamating the interests of the various elites that run these states? If so, given the generally adversarial relationship such elites tend to have with their general populations (Exhibit A: virtually any general election on the continent), would this not result in a continent-wide elite conspiracy against the ordinary African?

As for the idea of bringing African economies together (of which veteran journalist Charles Onyango-Obbo cited the statistics approvingly: “African Continental Free Trade Area signed in Kigali will consolidate a market of 1.2 billion people & GDP of $2.5 trillion. Still 8 times smaller than USA’s GDP of $19.3 trillion [China’s $14.2 trillion), but it’s just what the doctor ordered!”), the question must be asked: Whose economies exactly are these?

A key pillar of the post-Cold War economic arrangements on countries with commend economies (typically, most of sub-Saharan Africa) was the World Bank conditionality that governments should surrender control over their central banks, which would be responsible for directing monetary policy. In practice, this means that on matters of “macro-economic stability” (a treasured goal), issues like currency pricing and supply are not determinable by the native government.

Long before that, there were already huge hurdles in place.

Many of the states created by France in West Africa serve as a particular case in point. Despite five decades of formal independence, they remain – by law, policy and sometimes armed force – wedded to the French economy and banking system through their regional currency zone know as African Financial Community (CFA) that was created in 1945.

A hugely under-reported detail of Uganda’s economic “Africanisation” policy under General Amin (better known as the mass expulsion of non-citizen Asians) was the reaction of the (mainly foreign) banks. Their agents crisscrossed the cities and towns, slapping foreclosure notices on many Asian-owned buildings to the effect that, as default was inevitable, the buildings became the property of the banks.

The idea of substantial “independent” Asian capital itself turned out to be partly a myth. Apart from debt to local banks, much of the loan capital coming from India, for example, was from banks themselves in quiet debt to Western banks.

Even Tanzania’s Julius Nyerere was obliged to remark that “there is no national economy at all!” when recounting the practical difficulties of establishing a fair trade regime after independence.

Then there is the issue of nativity, or origin. What will be defined as an “African” trading company, eligible to take advantage of the new free trade area? These are matters all trading blocs get concerned with. Companies in the United States domestic airline industry must be majority-owned by Americans, for example.

It was the “opening up” rules imposed by the European Union that enabled some European companies and China to domesticate themselves in places like Senegal and proceed to decimate the local fishing industry. If AfCFTA is to be fully implemented, the implication is that such a disaster would no longer be confined to the borders of the country concerned.

But taken as a whole, one can already see the armies of youthful hawkers flooding the traffic jams of the average African city who are part of a vast cheap distribution system for goods sent from China and elsewhere.

With better intra-continental communications (road, rail, air and electronic) no doubt some of our people will be able to use their celebrated “resilience” and “ingenuity” to see opportunities in these changes and make a new living from them. However, there is no guarantee that the larger free trade area will not simply become a bigger playground for the usual predatory economic forces from outside the continent.

Many of the states created by France in West Africa serve as a particular case in point. Despite five decades of formal independence, they remain – by law, policy and sometimes armed force – wedded to the French economy and banking system through their regional currency zone know as African Financial Community (CFA) that was created in 1945. France reportedly sits on the boards of two central banks in the region where it holds veto powers. Who then will the rest of Africa be integrating with: the West African states or the economic interests of France as hosted by those states?

Options

These are not new questions. And they all come down to what one understands Pan-Africanism to be. There are four basic options.

Cultural Pan-Africanism

It is not a widely acknowledged fact that most of Africa’s best and most audacious thinkers have come from the enforced diaspora. Marcus Garvey remained the most effective and far-reaching organiser of people of African descent globally, despite never having set foot in Africa. His thinking and work remain the kernel of all Pan-Africanist thought. There have been and remain many others: John Clarke, Marimba Ani (Dona Richards), Jacob Carruthers and John G. Jackson, to name a few.

In his fifteen years of research, the Afro-Caribbean writer Chancellor Williams concluded that the Africa of the 18th and 19th centuries was a product of a preceding collapse of a unified African civilisation centered on a Greater Egypt taking in Ethiopia, Kenya, Uganda and the Sudans, which left its people scattered, and somewhat disoriented, for nearly two thousand years before the rise of the then emerging European colonial project for which they became easy prey. He argues for the reconstitution of a Pan-Africanism premised on the reconstruction of those scattered cultures and a recognition of their underlying cultural unity. This basically means first doing away with the organisational logic of the current states, whether amalgamated or not.

Statist Pan-Africanism

This could also be termed Nkrumahist after its best-known active advocate. It was the vision of that cadre of nationalists of the late colonial period whose brand of nationalism took control of the colonial units at independence. It is completely premised on the notion of using these states as a primary building block of uniting the Africans into a new, modern identity and then propel them rapidly towards industrialisation and “development”.

To try and unite Africa while being hosted by a regime installed by Western interests will only lead to complicated intellectual gymnastics, such as presenting Uganda’s invasion and occupation of eastern DRC as an act of Pan-African solidarity.

This approach has pitfalls, as was exemplified by the 1990s Uganda-based Pan-African initiative under the management of the late Tajudeen Abdulraheem. To try and unite Africa while being hosted by a regime installed by Western interests will only lead to complicated intellectual gymnastics, such as presenting Uganda’s invasion and occupation of eastern DRC as an act of Pan-African solidarity.

Corporate Pan-Africanism

The 19th century European powers had already brought together vast areas of the continent into spaces ultimately answerable to one political and one economic authority. Between them, France and Britain created most of the countries that now wish to be part of AfCFTA. Many of the countries they founded started life as trading companies, and corporate profit-making has remained the essence of their utility to the West.

Ironically, there is little essential organisational difference between that model and the Nkrumahists: bring the Africans together under a new culture. In fact, the absence of the imperial overlord has worked to make these states more effective in cutting Africans off from one another, as the AfCFTA acknowledges in aspiration.

Even Tanzania’s one-language policy, so beloved of post-colonial state Pan-Africanists, started life with the then German colonisers, who thought that communicating in a multitude of languages was inefficient but did not believe that the African mind could master the supposed complexities of the German language.

The above-mentioned CFA zone, which brings together the economies of fourteen states in West and Central Africa that are answerable to France, is the living example of how “unity” does not necessarily mean being “united” and of why political independence does not necessarily lead to economic independence.

Peoples’ Pan-Africanism

Pan-Africanism from below. This, of course, means rejecting the colonial model and its offspring. It requires the development of linkages between peoples through their own knowledge, institutions and methods – linkages that are not mediated by the former colonial states. It is centred on the idea of bringing native knowledge (which is available free in the community) into the question of enhancing people’s lives through sustainable production, healthcare and teaching. It envisages interaction on a largely horizontal, community-to-community basis. For example, a fishing co-op in Nyanza should be able to carry out trade in dried fish in as far as Botswana without having it mediated through various ministries of health, trade and immigration because it holds the knowledge on how to preserve fish in ways perhaps not recognisable to the modern state.

Unfettered movement may end up meaning that citizens of poor African states simply decamp to those few states and cities where life is simply better.

As did Chancellor Williams, the late Professor Nabudere saw these modern states as a liability. Being heavily indebted, culturally Eurocentric, and having their key areas of policy dictated from abroad, he believed that these states were at best an irrelevance to this vision of Pan-Africanism and at worst a real obstacle, whether they manage to continue existing or not.

The need to do something

Africa’s challenges are stark, and real: water, food, security, conflict. Writing in the East African, Moses Gahigi provides details on the critical issues: youth unemployment and poverty, which are only set to grow: “According to the African Development Bank, about 13 million young people enter the labour market every year — the number is expected to reach 30 million annually by 2030 — yet only three million (about 33 per cent) are in salaried employment. The rest are either underemployed or in vulnerable employment — a situation some analysts have called ‘a ticking time bomb’ that is likely to go off if the situation is not reversed.”

Which brings us to the last point: goals and strategy.

Cue Osibisa

That excellent Ghanaian band of the 1970s once sang: “…Heaven knows where are going, we know we are; but we’ll get there, heaven knows how we’ll get there, we know we will.”

Is the purpose of Pan-Africanism to further integrate Africa into the global system or to make a break from it? There will have to be a lot more explaining about what a physically united Africa will or should do. Will it strive to leverage public debt, cheap labour and natural resources, as China has done, to become a global purveyor of loans and cheap goods? If so, does this not in fact mean merging the various foreign economies that the African states are merely hosting on behalf of (and under orders from) the Western-led global economic system? If that is the case, how does it improve Africa’s situation beyond being a mere appendage or extension of the global system?

Does this not also mean that we simply give the Africans the right to migrate to go and be poor somewhere else? Unfettered movement may end up meaning that citizens of poor African states simply decamp to those few states and cities where life is simply better. This is a reason why countries like Cuba and China have strict controls on the internal movement of their populations. Migrant workers in China are expected to return to their villages of origin once the contract is done. This seems to be a concern among those member states whose economies are doing somewhat better than the rest. They featured heavily among those countries less keen on signing the protocol on the free movement of people.

However, should our economic position indeed consolidate and improve, will it not ramp up our consumption, and add to the physical burden of the planet? For example, China’s prosperity has created a daily demand for fish from thirty million Chinese. This has contributed heavily to the ruin of fishing waters – and fishing communities – off the West African coast.

My own paranoid (my friends would say) suspicion is this simply allows for the creation of megacities into which the poor can be herded so as to free up the countryside for huge mechanised agribusiness transformations.

But, as the chicken’s fate showed, when you are being told there was a big meeting where all your concerns were answered, be sure to get each and every detail.

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Kalundi Serumaga is a social and political commentator based in Kampala.

Politics

No War, No Peace: Life and Death in Eritrea

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

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Eritrea was an Italian colony from 1890 to 1941. Following the defeat of Italian forces by the Allied Forces during World War Two, Britain occupied Eritrea until its federation to Ethiopia in 1952. However, by 1962 Emperor Haile Selassie had annexed Eritrea, declaring that it was part of Ethiopia, and in this way ending the federation.

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

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

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

Border dispute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Peace Agreement with Ethiopia and its aftermath

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

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

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

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

Ailing health sector

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

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

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

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

Poor COVID-19 response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Search for a Puppet Chief Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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African Continent a Milking Cow for Google and Facebook

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

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

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

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

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

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

Brick and mortar

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

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

‘Their revenue comes from me’.

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

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

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

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

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

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

Google Ghana is an ‘artificial intelligence research facility’.

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

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

Cash-strapped countries

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

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

Cost to public

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

‘A tax paying people is a questioning people’

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

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

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

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

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

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

Comment

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

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

This article was first published by our partner ZAM Magazine.

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