The peering into that deep void never quite stops. I’m talking about that troublesome, discomforting place that separates the global black family, the rift between Continental Africans and Blacks who are descended from slaves. It’s a rift created by forces and events too painful and shameful for many to want to talk about, yet one that often feels over-hyped, a conversation that stays at the tip of the tongue and never concludes. Is there anything more to explore beyond what you will find in abundance on YouTube and the blogosphere?
There is no shortage of sensational clatter that plugs a hunger for instant gratification when it comes to discussing that eternal antagonism between Africans and Blacks. It is the proverbial tale of sibling rivalry – Essau and Jacob, Sendeyo and Lenana, Thor and Loki, Wuriri and Mabemba… I lost you on the last one. There’s an arresting tale from the Taita people about a rivalry between two sisters that takes one of them through death and mystical destruction, and the redemptive re-membering of body and bond until their relationship is newly restored.
It often seems pointless to rehash an emotive break-up for the sake of resolving it, especially one that has grown larger than life and seems to demand the very institutionalisation of the rivalry that defines it. After all, such a rivalry gave birth to the story that recently took the world by storm – the Black Panther movie – and got people talking all over again about this very rift between the global Black family.
However, beyond the trivial endless beefing – the derogatory name-calling and the beliefs and stereotypes we hold against each other, there is still a sincere hunger for peeling off layers of masks from each other’s faces in the hope that we shall find the long-lost sibling and reach full acceptance at the final unmasking.
There is no urgency on the personal level for a momentous kumbaya between Blacks and Africans; otherwise we would be seeing a lot more inter-marriages between the two by now. The urgency is at the global level. Yet the dissection of this rift towards a global unity of the Black family cannot be done without exploring the trivial nuances that contribute the most to the daily rancor. This also comes with the danger of generalisations, a process that takes one right back to the place of rancor when an argument does not apply to the singular. Having lived, schooled and worked in the United States as an African, now married to an African-American, I will claim the privilege of making informed generalisations on this issue. A reminder that I will use “Blacks” to refer to African-Americans and “Africans” to refer to Continental Africans.
Blacks and Africans do not like revisiting the past. This is a trait that has kept both groups numb to their own pain. They fail to appreciate each other’s past from the point of separation. Blacks have not had a powerful movement dedicated to the demand for reparations, neither have Africans dedicated any significant effort towards reparations for colonisation.
Blacks and Africans do not like revisiting the past. This is a trait that has kept both groups numb to their own pain.
In Kenya, a lawsuit against the British was a low-key process spearheaded by human rights lawyers without the forceful wind of national activism. Reparation is an integral part of healing the past, in this case, repaying a people who went through Maafa – the entire gamut of the African Holocaust. Black people are still going through this targeted catastrophe, only now redesigned as mass incarceration, violent racism and economic subjugation.
Other people have received reparations – the Japanese for the suffering that America put them through when they corralled them into concentration camps; the Jewish people for the Holocaust; groups of Native Americans for massacres that occured across the Americas; Aboriginal people for the great suffering as a Stolen Generation.
For the descendants of slaves, no amount of literature, song or grioting can ever truly capture the impact of their holocaust. It is tragic that a history of two-and-a-half centuries of official slavery has not pricked the conscience of any American administration enough to legislate reparations. It is a necessary step towards removing the poison of racism that still courses through America’s veins and reconciling historical injustices. Equally tragic is the fact that there has not been a collective effort by African nations to confront their colonial masters. This neglect of the past has exacerbated the rift between Blacks and Africans whose knowledge of each other is generally superficial and lacks comradeship.
The post-Civil Rights generation of Black people do not want anything to do with Africa, and Africans remind them of an identity they are embarrassed about. This statement is bound to raise consternation among Blacks who have taken pilgrimages to the Door of No Return, those who have actually settled in Africa, and those who have married Africans.
But I’d argue that the Blacks who have embraced the African identity have little to no clout to shift the whole Black awareness centre towards a Pan-African awakening. They are too few. Many young Black people will say Africa is as strange to them as Mongolia, their African ancestry notwithstanding. Very few who take holidays ever consider Africa as a destination. Why should they, when all they see through American mainstream media’s keyhole is a continent in continuous throes of devastation? Oprah Winfrey said it, as did Dr Henry Loui Gates, that growing up, to be called “African” was an insult deeper than the N-word.
Africans who come to the United States soon learn that they are a notch below the African-American on the social strata. Naturally, it is the person right above your head that gets to step on you the most. The rift between Blacks and Africans is widened by the fact that a lot of the put-downs Africans suffer while abroad come directly from Black people.
It is easy to forget that the weight of oppression that comes from the top is suffered by both Blacks and Africans. By no means does this excuse Black people who find Africans easy targets to deposit long-seated anger and frustration. Indeed, one of the most emotional debates following the debut of Black Panther was on a thread where Africans confronted Blacks for suddenly feeling proud of African costumes and accents. Black Panther made it cool to have an African accent, yet many times Blacks have told Africans to stop speaking “African” when they speak English with heavy African accents. All the direct racist taunts I’ve received in America have come from Black people, mainly for my accent and my style of dressing. Black people’s fear and shame of their African identity is not difficult to understand, and not at all difficult to forgive.
Africans who come to the United States soon learn that they are a notch below the African-American on the social strata. Naturally, it is the person right above your head that gets to step on you the most.
Sadly, the same fear and shame is being reciprocated by Africans against Blacks. This wasn’t the case with Africans who came into the US before the turn of the century, I being one of them. At least in Kenya we were never exposed to derogatory media about Black people in America. This was a new phenomenon, one that followed the rise of hip-hop in African countries. Older generation Africans who now have kids born in the US do not want anything to do with African-Americans. They have also been poisoned by negative keyhole perspectives of Black people.
While finding their place in America, Africans are unwilling to understand the struggles of Black people and choose to either keep to themselves or marry white. A Kenyan-American teenager said to me that he dislikes it when his parents tell him that if he wants to make it, he should not mix with losers, meaning Black people. This young man identifies himself more as African-American than as Kenyan-American. This myopic view of Black people causes Continental Africans in the diaspora to miss out on the gains they could make if they joined hands with their Black brethren in the countries where they now reside. They become insular in their immigration woes, choosing to hide rather than fight.
The Kenyan diaspora community, for instance, has lost its unity and has become an each-one-for-themselves society, at best uniting around ethnic identities. This kind of unity is weak and ineffective when it comes to moving legislation in the diaspora’s favour. Only recently, the self-styled “General” Miguna Miguna, who has aligned himself with the National Resistance Movement in Kenya, toured the US and became a major magnet for diaspora Kenyans; only it was mainly one ethnic group that showed up for these rallies.
These ethnic-driven passions do nothing to solve the needs of the diaspora. Continental Africans in the diaspora have completely ignored the power and resourcefulness that could come with aligning themselves with Blacks. Fortunately, the young second-generation Africans align themselves more with Blacks than with Africans, and that might spell the realisation of a much needed Pan-Africanism.
Cultural appropriation is a concept that should not be given room to flourish. Black movements have always come with some form of African pride expressed through fashion or re-invented nuggets of African traditions. Black people who have arrived at a point of reconciliation with their African identity also pick and choose what, when, where and how much of this identity they can add on to give authenticity to who they are. A dashiki here, an African name there – one with just the right phonaesthetics.
Whether the declared African meaning is real or imagined is inconsequential, and that’s just fine. A black model named Roshumba once said on national television that her name meant “beautiful” in Swahili. At the time, I was flabbergasted, and that’s because I was still newly arrived from the motherland and had not learnt the intricacies of lost identities that are the burden of brothers and sisters shipped here hundreds of years ago.
As a descendant of a people violently separated from their culture and identities centuries ago, a people who have lost track of where on the continent they came from, Roshumba has every right to arbitrarily attach semantic value to a name that she or her parents decided is Swahili. Forget that no such word exists in the Swahili language. It does not become a corruption of the language; it becomes a creative addition to a language, not by a colonial force but by a fellow African long separated from her unknown language by tragic circumstance.
My journey as an African in the diaspora who has had a close and personal connection to African-Americans has stamped in me a fierce responsibility to defend the right of Black people to find their own African identity, as long as that process does not diminish African people. While Africans can and should provide a correction to a cultural misnomer, they also do not have a monopoly to decide what is African. For example, naming a child “Mwizi” and declaring that it means “king” in Swahili when it actually means “thief” is something a Swahili speaker can correct. At the same time, such corrections should not come with an expectation that “Mwizi” should always mean “thief”.
My journey as an African in the diaspora who has had a close and personal connection to African-Americans has stamped in me a fierce responsibility to defend the right of Black people to find their own African identity, as long as that process does not diminish African people.
A lesson I learnt in my linguistics class many years ago is that the relationship between a morpheme and its semantic value is arbitrary. In other words, a word can mean anything its speaker wants it to mean, and that is how language evolves. If the person who named their child “Mwizi” was misinformed, and the child has grown to believe it means “king” and no one questioned it because no one else knows the original meaning, then the semantic value of “king” becomes valid among those found within that region.
I take pains to unpack this identity repurposing because it’s a conversation we Africans have had often concerning strange “Swahili” names that Black people acquire and their equally odd meanings. Granted, the current generation of Blacks has adopted a trend of creating names based purely on stylish phonetics devoid of semantic value, such as De’Quisha. That too is valid cultural dynamism that is both unique and self-affirming. My own ethnic community has names whose meanings have been completely lost to time and traversing.
Continental Africans should also remember that those who were captured into slavery as late as the eighteenth century preserved African traditions that retain an ancient authenticity. The Gulla-Geechee people of North Carolina and Georgia maintain the highest concentration of African customs brought in from Sierra Leone where their ancestors were captured in the 1700s. Some have migrated up north and carried with them these authentic African traditions. They are much like the Falasha Jews of Ethiopia who have maintained some of the oldest Jewish traditions as a result of thousands of years of separation from other Jews.
The sudden spike in African pride, thanks to Black Panther, could be a flash in the pan. It could also potentially enhance the rift between Blacks and Continental Africans in the diaspora by the latter claiming to be the authentic custodians of everything African, especially the good stuff. Let us not forget that one of the greatest gifts, in my opinion, that Black people have given to the world is the Kwanzaa festival, a non-religious ceremony that uses African language, symbols and consciousness. The value in Kwanzaa transcends race, religion and nationality and could easily become as universal as Christmas.
Black people should embrace active custody and practice of all good things African, be they real, reimagined or repurposed for the greater good. This points to a socio-cultural diplomacy where African conscience becomes a lifestyle and an aspiration on a global scale. It would be an equivalent to the spread of the American Dream, which played a major role in boosting America’s economy and stature in the world. It is mind vibranium, a soft power for launching a 21st century Pan-Africanism that young people can buy into.
The Old Pan-Africanism
A young generation now lives out its life largely through social media. Africa has the world’s largest young population, which the United Nations estimates at 200 million aged between 15 and 24. They have time and again shifted centres through social media activism, using platforms such as Twitter and Facebook. Kenyans On Twitter, for example, got CNN to retract and apologise to Kenyans for calling the country a “hot-bed of terror”.
Siyanda Mohutsiwa, a famed writer and speaker from Botswana, makes the case for a Social Pan-Africanism led by the digital revolution. She is young, she has roused up globally trending hashtags such as #IfAfricaWasABar, and she understands the bee-hive effect of social media platforms that can be used to usher in a new Pan-Africanism. She calls it Social Pan-Africanism, an idea that would allow Africans to communicate and solve the issues of their times unencumbered by borders or nationality, untouched by oppressive governments or censorship. It also easily bridges this great void made worse by African peoples’ unwillingness to think beyond nationalistic, ethnic or diasporic enclaves.
Siyanda Mohutsiwa, a famed writer and speaker from Botswana, makes the case for a Social Pan-Africanism led by the digital revolution.
But I see a crater that could swallow all the efforts towards a youth-led social Pan-Africanism if they don’t sustain it through a merger with the foundations of political Pan-Africanism that established freedoms for African peoples across the globe. Political Pan-Africanism is rooted in the painful place that young Continental Africans and Blacks do not want to revisit. They do not need to dwell in the past, but they need to tether themselves to the anchors of the past in order to create a mind-blowing future.
This is a lesson Black Panther communicates well for those familiar with Africa’s history. Wakandan Afrofuturism was a reality somewhere in the past, albeit without the sci-fi gizmos. For a stretch of 700 years, economic Afrocentricism ruled the world when African kingdoms controlled global trade. The last powerful monarch, Mansa Musa of the Kingdom of Mali, saw the construction of a global university and an empire so advanced that Europeans, then in the dark ages, might have looked upon it as we did when Wakanda technology flashed before us.
Let us remember that before slavery and colonisation there were African kingdoms across the continent in various stages of political and economic power, well before the United States rose to be a superpower. If there was one thing that led to the fall of Africa’s “Wakanda” past, it was the Europeans’ discovery of trade routes through the Atlantic that erased the powerful Trans-Sahara trade routes. The cheaper and more efficient sea routes controlled by Europeans opened the doors to shipping more merchandise from Africa, including humans, which became easier after African kingdoms began to weaken in the 16th century.
The last powerful monarch, Mansa Musa of the Kingdom of Mali, saw the construction of a global university and an empire so advanced that Europeans, then in the dark ages, might have looked upon it as we did when Wakanda technology flashed before us.
Reconstructing an African people united by common past and common destiny started during slavery with the abolitionists who also advocated a return-to-Africa movement, and continued through the Civil Rights movement and into the African independence struggles. The fact is that the Black diaspora that descended from slaves has always been an active participant in seeking the liberation of colonised Africans. Marcus Garvey, W.E.B DuBois, the Congressional Black Caucus, the TransAfrica Forum, the Nation of Islam and the Rastafari Movement all held a Pan-Africanist soul at their core, a belief in the common struggle and destiny of the Black race that drove them to reach across oceans to save fellow Africans suffering under colonisation and apartheid. They did this through activism, legislation, art and scholarship. There should be a monument of African-American Pan-Africanists in African countries. It is fitting that Ghana recognized W.E.B Du Bois’s role and built a Centre for Pan-African Culture in his name.
While celebrating Venezuela’s Independence Day at their embassy in Washington DC, I ran into a now elderly Harry Belafonte, and he told me about the time he, together with Miriam Makeba, sang at Kenya’s independence celebrations. He spoke of Jomo Kenyatta and the Mau Mau movement with pride. Belafonte has blended art, diplomacy and activism for the Black cause with power and dignity. As his tall frame faded off towards his car, it struck me that there is a fading generation of Black diaspora Pan-Africanist giants that have been bridging this Black divide for a long time. Organised Pan-Africanism started soon after the First World War when the 1st Pan-African Congress met in 1919 expressly to demand that Africans be granted home rule by their colonial masters, a demand Du Bois revised to self-rule at the second Pan-African Congress.
Kwame Nkrumah drank from the fountain of Garveyism. Marcus Garvey was a Pan-African purist who believed in the segregation of the races and preached an Africa-for-Africans philosophy. His faith was made true by his works, evidenced not only by his founding of the United Negro Improvement Association (UNIA) early in the twentieth century, but more significantly by the Black Star Line he started for the purpose of shipping Black people back to Africa. He was the black Noah that built a boat to save the African race from the deluge of Maafa and its drowning effects. He believed it was the responsibility of the diaspora African descended from slaves to save the African in Africa from the oppression of colonisation. Only his plan for salvation did not quite work out the way he envisioned, and the floods of imperialism in Africa and Jim Crow in the United States remained regional catastrophes the Black race overcame without the global unity he had purposed.
Politically, African countries were moving farther away from any form of Pan-Africanism as the formation of successful independent nations became a greater priority. The formation of the Organisation of African Unity did not foster much of a shared responsibility towards Africa’s common destiny. Many founding leaders of newly independent African nations turned to their colonial masters instead of building an Africa that could depend on itself. African nations became pawns on the neo-imperial chessboard of their former colonial masters. For a continent as endowed in natural wealth as Africa, it is tragic that the plausible dream of Pan-Africanists like Garvey failed to take root. But it is not all together dead. Garvey left a dream of the rise of Africa that one can glean from restless young and awakened Black activists. Erik Killmonger picks up where Garvey left off. Where the Black Star Lines failed, the Killmonger attitude will step in to usurp power from insular African leaders who have failed to use their resources for the good of the African people.
I have met Erik Killmonger, and he is a Republican. I have met him in the minds of Black Republican friends in Washington DC longing for the rise and liberation of the Black race from the high rates of poverty, neglected neighbourhoods, incarceration and political powerlessness. In conversations whispered in shared car rides, a Republican friend narrates to me the vicious circle of need in inner city black neighborhoods, and how Democrats are to blame because they’ve been in leadership in these cities far too long. My friend says she has spoken to many Black single mothers who do not want welfare hand-outs. They want opportunities, and Republicans want to instill in that get-it-at-all-cost attitude. It’s the Killmonger drive – grab fearlessly what is due to you, fight for it and do not expect entitlements.
I’m a Democrat. And a Kenyan. I’m not too religious about party politics. I agree with what she is telling me, and on any good day, she might have converted me. Except that when I zoom out and take in the Republican view of global politics, I cannot buy into it. I find it to be one that seeks domination as opposed to cooperation. Doctrines such as with-us-or-against-us, as espoused by former President George Bush, have justified preemptive attacks and wars that have killed too many in foreign countries. African countries have become battlefields in a global war against terror that they never started, one that benefits a corporate world that runs the world’s economy. That is also the Killmonger hunger for domination.
For a continent as endowed in natural wealth as Africa, it is tragic that the plausible dream of Pan-Africanists like Garvey failed to take root.
It is tempting to buy into the rise of Africa as a dominant power, knowing we have been there before, but this time around, Africa would have the advantage of new technology. But that would mean nothing short of an arms race and wars. Nations have thrived better through cooperation than through exclusivism and domination. If there was a Killmonger in real life, perhaps Muammar Gadaffi could have fit the bill. He was a Pan-Africanist who believed in an African currency that could easily dominate the world economy. After all, Africa’s natural resources, such as coltan, are still the “vibranium” that drives new technology.
Bridge To Kibera
“I was in Kenya last year,” my Republican friend continues.
“Oh?” I want to hear this. It’s always a pleasant surprise to know an African-American has travelled to an African country. I hold my breath, hoping she will say something good about Kenya. During my last trip to Kenya, I had been robbed at gun-point. I was not ready for a guest’s sh*thole testimony about my country.
“And I stayed in Kibera during my entire stay!” My heart sunk. Couldn’t she have stayed in a hotel? For heaven’s sake, Kibera? What was she thinking? She has money, a lot of it, and she is someone who has held advisory positions with several Republican White House administrations. So why does she sound excited about having stayed in Kibera for… what? Did she just say three months?!
“My Kenyan friend welcomed me to her home in Kibera!” She truly was excited about it. The way she said it, as if there was nothing to it but someone’s hospitality in its purest form. I will never doubt a Black Republican’s down-to-earth passion for the well-being of Black people anywhere in the world. No matter one’s political leaning, true Pan-Africanism has to have the heart to extend from the White House to Kibera.
African Continent a Milking Cow for Google and Facebook
‘Sandwich’ helps tech giants avoid tax in Africa via the Netherlands and Ireland.
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.
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.
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.
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’.
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.
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’.
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 2019. This leaves US$ eighteen billion for Africa and the Middle East.
This article was first published by our partner ZAM Magazine.
An Unlikely Alliance: What Africa and Asia can teach each other
Once African and Asian leaders looked towards each other for guidance. What possibilities can a renewed cross-continental solidarity offer?
When independent Congo’s first prime minister, Patrice Lumumba, was assassinated in 1962, over 100,000 people protested in Beijing Workers’ Stadium. Thousands more protested in New Delhi and Singapore.
When Sudan lacked a formal plaque at the 1955 Bandung Conference, where the leaders of Asia and Africa declared the Third World project, India’s Jawaharlal Nehru wrote “Sudan” on his handkerchief, ensuring Africa’s then largest country a seat.
It was a time when Asia and Africa, home to almost 80 percent of humanity, found kinship in their shared trauma and conjoined destiny. Both were always spoken of in tandem. Martin Luther King Jr.’s “Letter from a Birmingham Jail,” drew inspiration from what he saw overseas: “The nations of Asia and Africa are moving with jet like speed toward gaining political independence.”
Too often we forget that the most defining event of the 20th century was not World War II or the Cold War, but the liberation of billions in Asia and Africa between the 1950s and 1980s as citizens of almost 100 new-born countries.
It also marked the revival of an ancient, pre-European connection. Historically, Asia and Africa were enmeshed centers of wealth and knowledge and the gatekeepers of the most lucrative trade routes. The Roman Empire’s richest region was North Africa, not Europe. A severe trade imbalance with South Asia forced Roman emissaries to beg spice traders in Tamil Nadu to limit their exports.
Western Europeans left their shores in desperation, not exploration, in the 1500s to secure a maritime route to the wealthy Indian Ocean trading system that integrated Asia and Africa. Somali traders grew rich as middlemen transiting coveted varieties of cinnamon from South Asia to Southern Europe. The Swahili coast shipped gold, ivory, and wildlife to China. Transferring the world economy to the Atlantic first required Portugal’s violent undoing of the flow of goods and peoples between Asia and Africa.
In Bandung, Indonesia’s Sukarno declared “a new departure” in which peoples of both continents no longer had “their futures mortgaged to an alien system.”
Yet that departure became a wide divergence that is complex to comprehend. Over the last few years, I’ve shuttled between the megacities of Asia to East and Central Africa. I also grew up in four Asian countries—India, Thailand, Philippines, and Singapore—and lived through Southeast Asia’s exponential rise.
The gap between Africa and East Asia, including Southeast Asia, is perplexing because we share much in common—culture, values, spirit, and worldview. I’m reminded of this in Somalia, Sudan, Uganda, or Ghana, where I’ve felt an immediate sense of fraternity.
It’s now a familiar story: 70 years ago, African incomes and literacy rates were higher than East Asia, then an epicenter of major wars. But in one generation, East Asia achieved wealth, human development, and standards of living that rival a tired, less relevant Western world.
The shockingly inept response by many Western countries to a historic pandemic has only amplified calls for Africa to abandon the Western model and learn from its once closest allies. A new book titled Asian Aspiration: How and Why Africa Should Emulate Asia, hit stores this year, co-authored by former Nigerian and Ethiopian heads of state. An op-ed in Kenya’s Star newspaper even prior suggested Kenyans shift their gaze from the supposed advancement of Westerners to “the progress of our comrades in the East.”
The incessant idea that Africa’s future lies in models not of its own making can be patronising. But Africa can indeed learn from the successes and pitfalls of East Asia, the world’s most economically dynamic region also built from scratch, while imparting wisdom of its own.
Many who previously pondered this gap came up with multiple theories, but often ignored a simple reality: Africa’s geography. Like Latin America, Africa is bedeviled by a predatory power to its north that siphons capital, talent, labor, and hope. By contrast, East Asia, even with several U.S. bases, is an ocean away from the United States and a 12-hour flight from Western Europe.
Europe’s proximity to Africa also cultivated a perennial barrier to development: the Western aid industry. Whether I’m in Haiti or Chad, the sheer domination of Western NGOs, development agencies, aid convoys, and all manner of plunder masquerading as goodwill—$40 billion more illicitly flows out of Africa than incoming loans and aid combined—is something I never saw even 25 years ago in Southeast Asia. Industries look for growth opportunities. Developed societies with robust public systems in East Asia offer few for saviors. The streets of Bangkok and Hanoi are lined with Toyotas and tourists, not wide-eyed youths in armored vehicles guided by white burden. The development industry and most of its participants I’ve had the misfortune of meeting are toxic. Large swaths of Africa remain under occupation of a different kind.
For much of the 20th century, Africa also faced a virulent settler colony in its south which destabilized the region and was so hateful of Black Africans that its mercenaries set up a series of bogus health clinics to surreptitiously spread HIV under the guise of charitable healthcare.
East Asia’s settler colony, Australia, was never able to replicate South Africa’s belligerence. It did lay waste to Papua New Guinea (where it continues to imprison asylum-seekers) but Australia never invaded or occupied Indonesia or the Philippines.
Another fallacy explaining African inertia is poor leadership. Leadership is paramount, but Africa produced a generation of independence era leaders whose values and decency the world desperately needs today. All were killed or overthrown by the West—because Africa is a far deeper reservoir of resources than East Asia.
South Korea, Singapore, and Taiwan are not resource rich. Thailand was never even colonized. An Asian country afflicted by similar conditions to Africa is mineral-rich Myanmar, closed to the wider world and progress for decades. Showcases of democracy aside, its kleptocratic, authoritarian political culture, like many African countries, was inherited from British rule. George Orwell’s less referenced book Burma Days, a recount of his time as a police officer in colonial Burma, called the British Empire “a despotism with theft as its final object.”
Resources prevented African leaders from towing a middle road that kept Western powers happy while investing in their society. The choice was resource nationalism or authoritarian acquiescence “with theft as its final object.” It was either Lumumba or Mobutu.
East Asian success stories worked within the global capitalist system and conducted deft diplomacy to placate Western superiority complexes while fortifying relationships with the rest of the global South. At independence, Singapore dispatched diplomats around the world, including several African countries, to build trade ties. Its manufacturing companies provided cassette tapes for Sudan’s then booming music industry. It hired Israeli advisors to train its military while staying in the good books of neighbors and Arab partners who stood with the Palestinians. These maneuvers are only possible when you aren’t sitting on $24 trillion worth of minerals.
Geography aided East Asia. Colonial borders, with a few exceptions, resembled some form of community that came before the nation-state. Consider both the Malay and Korean Peninsulas. Thailand’s borders, while amended as concessions to imperial powers, conformed largely to the cultural and linguistic boundaries of ancient Siam.
Africa’s artificial borders concocted nation-states with no experience as a community of any kind. The nation-state model creates fissures even in Europe, with the Yugoslav wars and constant, violently suppressed demands for statehood by the Basques and Catalans in Spain, not to mention a referendum by the Scots. Partitions across Africa, a special kind of cartographic violence, congealed animosity for generations.
So while Africans were marginally better off at independence than East Asians, structurally they actually did not have a head start. But Africa still thrived in the 1970s. It is only now reaching average income levels akin to half a century ago. To dismiss the continent’s record since independence as a perennial failure is a historically illiterate point of view. Its cultural output and musical dynamism were astonishing—arguably unrivaled—during this era. Liverpool and Manchester? Try Luanda and Mogadishu.
Africans were well aware of the right course but were thwarted more viciously than East Asia’s most developed states. Perhaps the West is more tolerant of Asian success because of racial hierarchies, just as the US parades Asian-American affluence as a symbol of the universality of the US-led Western model but violently responds to the smallest hint of actual wealth creation in Black-American communities.
Now, amid a precarious coming decade, East Asia indeed offers prescriptions for not only natural allies like Africans but societies worldwide seeking transformation in record time.
First off, it’s all about networks. Do the rules of your country facilitate local, regional, and international networks? A new Harvard study concluded that brisk business travel has the single biggest impact on building networks, diffusing knowledge, and birthing new industries. Europe’s own development benefited from its small land space, which tailored expansive, tight-knit networks that rapidly spread ideas revolutionizing everything from the sciences to football tactics.
Frequent trips to any major city in East Asia connect you to lucrative networks half a world away. Business travel (at least before the chaos of coronavirus) to East Asia is accessible, affordable, and hassle-free. The right infrastructure and laws—state-of-the-art airports, good accommodations, low-cost, high-speed telecommunications, rapid transportation links and whole scale visa liberalization—are needed to accommodate network-building travelers of every stripe and budget. African countries should follow suit, and streamline business travel, which would allow African travelers to build dense regional and continental networks—currently a tough ask when pre-pandemic flights from Nairobi to London were far cheaper than to neighboring capitals.
Since the 1980s, the Anglo-American West, ideologically intoxicated by deregulation, abdicated their society’s fate to self-interested individuals and free markets alone. East Asian countries enacted hardcore capitalist policies but never bought into this demented idea. The US and UK spent the last four decades dismantling their states; East Asian countries meanwhile reinforced their capacity with vast investments in education, telecommunication, and especially healthcare.
Thailand abandoned the neoliberal approach to healthcare in the early 2000s for a private-public model that guaranteed universal coverage and secured its place as the first country in Asia to eliminate HIV transmission from mother to child. Both Singapore and Hong Kong have the most efficient healthcare systems in the world. Sharply guided public health policies underwrote East Asia’s masterful management of COVID-19. Vietnam and Laos had zero deaths from coronavirus while Germany, somehow a celebrated success story in the Western press, has over 9,000 deaths.
Recently, Kenya sought Thailand’s expertise in revamping a typically price-gouged private healthcare system. Ethiopia invited Vietnamese telecommunication companies to make its systems reliable, fast, and, like much of Southeast Asia, affordable.
In the Nigerian and Kenyan corners of Twitter, “The Singapore Solution” resonates. People yearn for a Lee Kuan Yew figure. Lee once told an Indian audience that Singapore’s model cannot be adopted by India, which, according to him, “is not a real country…Instead it is thirty-two separate nations that happen to be arrayed along the British rail line.”
The same can be said about Nigeria and Kenya. Singapore is an entrepot state of a few million at the gateway to the Malacca Straits, the world’s busiest shipping lane, with deep ancestral ties to China and India, the world’s richest economies for 1,800 of the last 2,000 years.
Each country’s trajectory is highly contingent on a set of unique circumstances and should never be applied wholesale. With the immense benefit of hindsight, Africans can choose from the best, most fitting lessons from the region, while staying vigilant of and mitigating many pitfalls.
For every one of me, inheritors of East Asia’s boom, there are, like New York City and London in the early 1900s, millions trapped as cheap labor servicing endless growth, forced to compete over scraps in unforgiving cities. East Asian inequality is nauseating. South Korea has the highest elderly poverty rate in the OECD, with almost half of its senior citizens condemned to destitution rather than retirement. Only disparities that torture the soul can create award-winning films like Parasite.
This is a feature, not a bug, of East Asia’s rapid growth. Opening up to global capitalism inevitably instills hierarchies and racialized aspirations. When I see advertisements for new luxury condominiums, possibly the most prevalent hoardings in Southeast Asia, it’s an image of a white man with his East Asian wife and mixed-race child. The message is clear. As Frantz Fanon wrote, “you are rich because you are white, you are white because you are rich.”
East Asia may not have the levels of violent, heartless racism on brazen display in Western societies, but the 1990s were a turning point. East Asians began to look down on those modernization taught them to distrust. You don’t go from mourning an assassinated Congolese leader by the thousands to treating African expatriates as diseased in one generation without a drastic, very recent shift.
Some Westerners, like washed up drunks screaming profanities at a bar, might be tempted to repeat the mantras falsely underlining their sense of superiority to make preposterous demands of such young countries pieced together overnight. They might ask, “Well what of democracy? Human rights? Freedom of the press? Free markets?” These are all wonderful things, if they actually existed.
Not a single Western country was a democracy during its development. Western Europe had a fascist government in Spain until 1975. France and Britain fought horrific wars to deny Algeria and Kenya independence even after defeating Nazism. You can’t be a democracy when you deny democracy to others. European colonies were run as totalitarian dictatorships and lasted well into the late 20th century.
Freedom of the press? Try criticizing Israel in the mainstream US or German media.
Human rights? Europe lets migrants drown by the thousands in the Mediterranean. Australia has offshore camps for asylum seekers where abuse and rape are rampant. The US has kids in cages and its cops murder young Black men for sport.
Free markets? Both the US and Britain were viciously protectionist societies that relied on massive state intervention, and overwhelming military force, to mint its corporations.
The marriage of free markets to supposedly liberal democracy gave us Brazil’s Jair Bolsonaro, India’s Narendra Modi, the Philippines’ Rodrigo Duterte, and kept war criminal Benjamin Netanyahu as Israel’s longest serving leader. The Western liberal order, Indian writer Pankaj Mishra meticulously reveals, is an “incubator for authoritarianism” because it’s premised on fairy tales.
An open society, a vibrant marketplace, and a respect for human dignity are of course worthy and necessary goals. More representative forms of government, hopefully devised by us rather than imported from Cornwall, England, will arrive. We need not be “Jeffersonian Democrats”; we can surely do better than a system championed by slave owners. As Deng Xiaoping said when China opened up after its century of humiliation, “Let some people get rich first,” which should be interpreted as a call to enrich societies as a whole before succumbing to obnoxious Western moralizing about values they rarely practice themselves.
Advancement need not only be predicated on economic growth and democratic politics and Africa need not only be the student and Asia the mentor. Asia has much to learn from Africa’s grand investments in culture in its earliest days. Aside from Vietnam, whose communist government funded the arts, and South Korea, which subsidized its K-Pop industry, most East Asian countries pay little attention to their cultural prowess on the world stage.
When kids in Djibouti listen to songs on their phone, it’s Somali music or Nigerian hits. Hop in a taxi in Accra or Khartoum and you hear that country’s sound. Africans listen to their own music. Southeast Asia does not. The richest music is derided as a pastime of lower classes, unfit for well-heeled urban elites. Talent gets lost in the never-ending roster of cover bands for top 40 American pop.
In Jakarta’s many behemoth malls, “you will not hear Indonesian music,” wrote journalist Vincent Bevins. “You will not hear Japanese music, or anything from Asia… It will all have been packaged and sold in the USA.” It’s the same story anywhere in the region.
This may seem trivial, but a country’s image is vital to any lasting progress. In a world no longer able to “identify with, let alone aspire to, Hollywood’s white fantasies of power, wealth and sex,” wrote Fatima Bhutto in New Kings of the World: Dispatches from Bollywood, Dizi, and K-Pop, “a vast cultural movement is emerging from the global South… Truly global in its range and allure, it is the biggest challenge to America’s monopoly of soft power since the end of the Second World War.”
African countries laid the foundations in the ‘70s to fill this vacuum. Their image will be defined in the next decades by their stellar music, set to be in our lifetimes the global staple and standard. Independent labels and corporate players like UMG and Sony, now with headquarters in Lagos and Abidjan, have ensured unprecedented international access to Africa’s abundance of music, past and present.
African literary festivals have also blossomed, adding to an impressive six percent growth in the industry. It’s only a matter of time before small and multinational publishing houses scout a new cadre of young African writers to make household names, as they did in South Asia. Africa hosts over 35 annual literary festivals, even in struggling cities like Mogadishu, while East Asia only enjoys 21.
Economic engines inevitably slow. Southeast Asia in particular must emulate African pride in its own music and related expressions of culture to seize on openings left behind by a once omnipotent cultural hegemony in full retreat. South Korea understood this early and enjoys a powerful, beloved global brand molded by pop music and films, not per capita income.
Even if Africa and Asia swap carefully selected approaches, ultimate success is only possible from a unity akin to the 1955 Bandung Conference. When we again mingle and ally, when we mourn each other’s dead, when we scribble names on napkins as acts of solidarity, we will again realize our lasting success. The final phase to complete the process of decolonization will have to be done jointly, in unison, or never at all.
Fear and Loathing in Kenya’s Parliament
Parliament’s failure to enact laws to bring women into elected national leadership has only exposed its soft underbelly, revealing a combination of narcissism and incompetence.
A month before Chief Justice David Maraga advised the president to dissolve parliament, legislators were toying with plans to delete the constitutional requirement that would include women in national political leadership.
“You cannot compel citizens to elect either men or the other gender,” said Justin Muturi. Speaking at a parliamentary retreat, the Speaker of the National Assembly appeared to have lost whatever empathy he previously harboured for affirmative action legislation to promote women’s participation in elected leadership in June 2016.
Following the CJ’s September 21 advice, Muturi mobilised the Parliamentary Service Commission, which he chairs, to mount a court challenge against it. He remarked: “The clamour to pass legislation to ensure [the] two-thirds gender principle potentially violates the sovereign will of the electorate at least to the extent that such legislation will demand top-ups or nominations of women”.
Jeremiah Kioni, who chairs the Constitution Implementation Oversight Committee, told the parliamentary retreat that politicians only agreed to include the clause on the inclusion of women in elective leadership in the 2010 constitution “to stabilise the country and cool tempers”.
Unknown to many at the time of the retreat debate, the Speakers of the National Assembly and the Senate had received an August 3 letter from Chief Justice David Maraga informing them that he was considering six different petitions asking him to advise the president to dissolve parliament as provided for in the constitution. The letter followed up on a 25 June 2019 one inquiring about the progress made by Parliament in enacting laws to increase women’s participation in leadership.
In August, Muturi cautioned members of parliament that there was a real risk of dissolution over failure to enact the law on including women in leadership, but since Maraga delivered his coup de grâce on September 21, the Speaker has gone on the warpath.
Although the constitution – which was passed by 68.6 per cent adult suffrage in August 2010 – gave parliament independence, it contains a suicide clause giving the president the power of dissolution should it fail to enact laws that bring the constitution into application. The clause kicks in if the High Court certifies and declares that parliament has failed to pass a law within the required timelines.
The constitutional provision requiring that no gender should constitute more than two thirds of any elective or appointive body has been successfully implemented in county assemblies, but it has remained a sticking point at the national level. Elections for the National Assembly and the Senate in 2017, and the subsequent allocation of special seats, gave women only 23 per cent of the share of legislative leadership at the national level – a 9 per cent improvement on the 2013 elections.
A 2018 National Democratic Institute survey of gender participation in politics found that “[w]omen who had served in specially nominated positions, for example, were more likely to win an election than those who had never held office at all”.
A combination of political chicanery, slothful self-interest and duplicitous male chauvinism has repeatedly thwarted efforts to create an inclusive national legislature. The laws required to cash the promissory note given to women when the country passed the Constitution have never been passed because neither the National Assembly nor the Senate has been able to muster the two-thirds quorum required to debate a constitutional amendment.
The National Gender and Equality Commission documents the Journey to Gender Parity in Political Representation, noting the four floundering attempts to enact laws that would increase the number of women in national legislatures.
In each instance, the bills proposed to become law had already been developed off-site, complete with a costing of what each option would mean for the taxpayer, and all that was required of MPs was for them to show up and make the quorum for the bills to come under consideration.
The last effort at passing the gender law had been stepped down from the order paper in November 2018 over fears that there would be lack of quorum to consider it since it touched on the constitution. The bill was the product of painstaking negotiation, bargaining, and deal making involving over 50 organisations and that had lined up President Uhuru Kenyatta, political party leaders Raila Odinga and Kalonzo Musyoka.
When the proposed law was put to the National Assembly in February 2019, the headcount came in at 174 MPs – 59 short of the 233 required to consider a law relating to the constitution. Earlier, under the hammer of the High Court in 2016 to pass a similar law, Speaker Muturi innovated a way to get round the requirement for constitutional amendment law proposals to wait 90 days, fast-tracked the bill through the 11th Parliament – only for it to fail because there was no quorum to consider it.
Frustrations over the repeated failure to pass laws that promote women’s increased participation in elective politics have triggered a record number of court petitions. The most consequential of these is the petition filed by the Centre for Rights Education and Awareness, from which the High Court issued a declaration that parliament had indeed failed to perform its duty to enact a law to promote the participation of women in national elective leadership.
The Speaker of the National Assembly lost an appeal against the 2017 High Court decisionordering parliament to enact the law providing for inclusive leadership within 60 days.
Last year, on 5 April, the Court of Appeal observed that the repeated failure to get a quorum to pass the law “does not speak of a good faith effort to implement the gender principle”, noting that Parliament had already exhausted the option of extending for a year the deadline for enacting the gender law.
That decision confirmed parliament’s failure to perform its duty, and within two months inspired five petitions requesting the Chief Justice to advise that it be dissolved. The Law Society of Kenya lodged its petition with the Chief Justice in June this year.
Ken Ogutu, who teaches law at the University of Nairobi, analogises the current dilemma to a construction project where the main contractor has completed the main structure of a new house and a subcontractor is then left to do the finishing to ensure the house is completed to the required standards. “The main contractor gives the subcontractor a schedule of the finishing he must do and by when, and if the subcontractor fails to complete these tasks within the specified timelines, he is fired and a new one hired to do the work”.
Parliament has argued that it has passed all the other laws and should not be punished for not enacting the gender inclusion laws.
The Chief Justice’s advice to dissolve Parliament will likely expose the institution’s hidden weaknesses. Its failure to enact laws to bring women into elected national leadership has only exposed its soft underbelly, revealing a combination of narcissism and incompetence.
Beneath the shining veneer of success, evident in the passage of 47 out of the 48 laws required to implement the constitution as outlined in its Fifth Schedule, there is plenty of evidence that parliament is still stuck in the old constitutional order. Some argue that parliament has been the weak link in turning Kenya into a constitutional democracy.
Since 2011, Kenya Law Reports has documented 48 statutes or amendments to the law that the courts have struck down for being unconstitutional. Eight of the controversial laws struck down by the High Court or the Court of Appeal relate to the management of competition in elections.
Judges sitting singly or in panels of three in the High Court, or in the Court of Appeal, have struck down parliament’s attempts at power grabs by avoiding public participation and making laws that violate the constitution. It is even more worrying that the 48 are only those laws that citizens or organisations have challenged, meaning that there could be a great deal of unconstitutionality hidden in other laws.
For example, commenting on the attempt to sinecure seats for political party leaders in the election law, appellate judges Festus Azangalala, Patrick Kiage and Jamilla Mohammed wrote in their judgment: “[F]ar from attaining the true object of protecting the rights of the marginalized as envisioned by the constitution, the inclusion of Presidential and Deputy Presidential candidates in Article 34(9) of the Elections Act does violence to all reason and logic by arbitrary and irrational superimposition of well-heeled individuals on a list of the disadvantaged and marginalized to the detriment of the protected classes or interests”.
Other judges have described some of the legislative attempts as “overreach” or “no longer [serving] any purpose in the statute books of this country”. Judge Mumbi Ngugi, commenting on the anti-corruption law passed by parliament, remarked: “The provisions […], apart from obfuscating, indeed helping to obliterate the political hygiene, were contrary to the constitutional requirements of integrity in governance, were against the national values and principles of governance and the principles of leadership and integrity in . . . the Constitution . . . [and] entrenched corruption and impunity in the land”.
The low quality of laws emanating from parliament since the promulgation of the constitution in 2010 arises from several factors, among them competence gaps and self-interest, and despite the inclusion of an entire chapter on integrity in the constitution, the country’s politics is weighed down by poor political hygiene. Similarly, the law on qualification for election as a member of parliament sets a very low threshold while the one for recalling elected leaders is impossible to apply.
Data aggregated from the parliamentary website shows that 72 per cent of all members of the National Assembly are university graduates, but many of the qualifications listed appear to be shotgun degrees from notorious religious institutions acquired in the nick of time to clear the hurdle for election. The modest intellectual heft of members in the National Assembly especially makes the institution unsuited for the task of navigating a Western-style democracy in the design of the constitution.
Some 40 MPs have law degrees, but the Kenya Law Reform Commission, the Attorney General’s office, and various interest groups carry out much of the legislative drafting. Parliament is then often left with the duty of playing rubber stamp.
At moments of national crisis, legislative initiative has tended to emanate from outside parliament, whose members are then invited to endorse whatever deal has been agreed. Cases in point from recent history include the resolution of the stalemate over changing the composition of the Independent Electoral and Boundaries Commission in 2017, and the political détente in the aftermath of the putative 2017 presidential election.
In a global first of game-warden-turned-poacher, the Public Accounts Committee, Kenya’s parliamentary watchdog, was disbanded over allegations of corruption. The Conflict of Interest Bill was only published last year and is yet to reach the floor of parliament. It was not the only instance of members of parliament literally feathering their nests. Legislators have been most voluble in defending the benefits they feel entitled to, and clinging onto the control of the constituency development fund, which they have turned into a pot of patronage.
The constitution refashioned parliament as an independent institution with law-making, oversight and budgeting powers. The institution has not acquitted itself in watching over public institutions and spending, often playing catch-up with reports of the Auditor General. Its lax fiscal management and oversight has resulted in the country’s debt stock growing from Sh1.78 trillion in 2013 to the current Sh6.7 trillion. Only this year, the Sh500 billion contract for the construction of the standard gauge railway using Chinese loans was found to have been illegal.
Its review of the annual reports from the judiciary and the 14 constitutional commissions has been lacklustre, with the worst case being the parlous state of the Independent Electoral and Boundaries Commission. One of the concerns raised about dissolving parliament is around the readiness of the commission to undertake nationwide parliamentary elections, given that four of the seven commissioners have resigned and have not been replaced, and that the institution does not have a sufficient budget to undertake its work.
Another anxiety around the dissolution of parliament has been that the electorate would not cure the gender imbalance in the national legislature through an election. That anxiety is a misapprehension.
On 20 April 2017, in deciding a case filed by Katiba Institute, Justice Enock Mwita ordered that political parties formulate rules and regulations to bring to life the two-thirds gender principle during nominations for the 290 constituency-based elective positions for members of the National Assembly and the 47 county-based elective positions for members of the Senate within six months. He added that if they failed to do so, the IEBC should devise an administrative mechanism to ensure that the two-thirds gender principle is realised within political parties during nomination exercises for parliamentary elections.
The August 2017 High Court judgment requires the IEBC to ensure that party lists contribute to the realisation of the gender principle. The decision has not been appealed or vacated. Given the parliament’s proclivity to pursue the interests of its members in increasing their pay even when not allowed to do so, it is not unlikely that MPs, detained by their own fear of political competition, have refused to see how affirmative action legislation would increase women’s participation in politics.
For now, the Chief Justice’s advice to the president to dissolve parliament has been challenged in court by two citizens, with Judge Weldon Korir certifying that the case raises constitutional questions that need to be adjudicated by an uneven number of judges. It is not unlikely that the matter could go all the way to the Court of Appeal, meaning that the earliest a final position could be settled is February next year.
The dissolution saga will likely highlight the distance yet to be covered in realising the parliament Kenyans wanted to establish through the constitution. Although parliament has a five-year term, it can be extended in times of war or emergency for a period of one year each time, for a maximum of one year. The corollary is that its term can be shortened if it fails to live up to constitutional expectations.
Bereft of any real power or competence and unable to cut the umbilical cord binding it to the executive, parliament will be President Uhuru Kenyatta’s poodle waiting on his charity. And as the president concludes the political calculation of the costs and benefits of dissolving parliament, the country will be assessing its legislature’s performance not just on gender but on everything else.
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