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TAMING THE INTERNET: The good, the bad and the ugly parts of the Computer Misuse and Cybercrimes Act 2018

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TAMING THE INTERNET: The good, the bad and the ugly parts of the Computer Misuse and Cybercrimes Act 2018
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Imagine a world without the Internet.

Now imagine a world where you are not free to say what you want to and where your social media posts could land you in jail. There are those who would love this world. To them, the Internet is encumbered with bigoted, sadistic and misogynistic speech that must be reined in.

Conversely, there are those who see any attempts to regulate online conduct as impinging on their freedom of speech. They believe that once you open the gates for government control, you risk political control and ultimately the death of online democracy.

A third school of thought is that you can never tame the Internet. John Gilmore’s famous mantra comes to mind: “The net interprets censorship as damage and routes around it.” No matter the laws and policies put in place, bad actors will always find a way to be there.

Regulation of online conduct has now hit close to home. This week, President Uhuru Kenyatta signed into law the Computer Misuse and Cybercrimes Act 2018. Here is what it provides.

The expected

There are offences that are standard in cybercrime legislation across the globe. In Kenya’s case, this legislation was way overdue considering that Kenyans were relying on outdated statutes contained in the 1948 Penal Code and the 1998 Kenya Information and Communication Act to try digital crimes.

What most would simply refer to as “hacking” is now covered by the offences of unauthorised access, access with intent to commit a further offence, unauthorised interference and unauthorised interception. Hacking critical information infrastructure (very important public facilities) amounts to cyber espionage, which carries a hefty penalty – 20 years in prison and/or up to Sh10 million in fines.

Spying for Kenya’s enemies is also covered under cyber espionage. Each of these offences requires different prerequisites and carry a different sentence. Other variations of these offences are covered under computer fraud and computer forgery. It is laudable that the Act has included the use of social engineering in the list of offences.

Trading in hacking tools, password crackers and social engineering tools is now an offence. Possession of such tools with the intent to use them to commit an offence can earn one a fine of Sh10 million or ten years in jail. Nevertheless, the Act protects “white hat” hackers (computer security specialists who deliberately break into protected systems or networks to assess their security).

Disclosure of a password or access code without permission could lead to a three-year stint in jail, a Sh5 million fine or both. If any of these offences are committed on a protected computer system (government, banks, telecommunications or witness protection systems), the perpetrator gets an enhanced penalty. He or she may be imprisoned for two decades, pay a Sh25 million fine or both.

Sections on mutual assistance and international cooperation in the investigation of cybercrime are commonplace yet necessary given the borderless nature of the Internet. What the Act lacks is an express condition that requests for investigation from other countries that will be subjected to the same legal procedures as local investigations.

Disclosure of a password or access code without permission could lead to a three-year stint in jail, a Sh5 million fine or both. If any of these offences are committed on a protected computer system (government, banks, telecommunications or witness protection systems), the perpetrator gets an enhanced penalty. He or she may be imprisoned for two decades, pay a Sh25 million fine or both.

Finally, it wouldn’t be a complete Kenyan law without the establishment of yet another government body, so the National Computer and Cybercrimes Coordination Committee and its secretariat were created. The Committee has heavy representation by national government agencies. However, the absence of county government representation in the Committee is worrying as it is assumed that counties have no role to play in cybersecurity.

The progressive

The Internet comes with its own share of ills, which, if unchecked, can affect vulnerable groups in society. The natural reaction by legislatures the world over is to over-legislate on online conduct in the hope that the law could re-engineer social order to counter the ever increasing incidents of anarchy. However, a balance needs to be maintained between laws that could restore this order and laws that would have a chilling effect on online freedom. Here are some of the enacted offences that could be considered progressive.

Cyber harassment

The definition of this offence is wide enough to cover cyber stalking, cyber bullying, doxing, trolling and dogpiling. The determining factor is conduct that causes apprehension, detrimentally affects a person, or is indecent and gross. This offence carries with it a Sh20 million fine, a ten-year prison term or both.

Victims of ongoing cyber harassment will now be able to obtain court orders to put an end to the harassment. This order can be obtained at any time of the day, even outside court working hours. Since cyber harassment is often carried out by trolls hiding behind pseudo accounts, a court may order online service providers to provide the perpetrators’ subscriber information, including their name, address, location, email address and phone number.

The framing of the offence, however, presents ambiguity. It is not clear what amounts to “detrimentally affects a person” and “indecent and gross”. These are subjective judgements and could be used to undermine freedom of expression.

Child pornography

Children need overzealous protection online from perverts and sometimes from themselves. It is an offence to produce child pornography and publish it. Further, downloading, distributing, exhibiting, selling and “making child pornography available in any way” or simply having it on one’s device also amounts to an offence calling for a Sh20 million fine, 25 years in jail or both. Any material showing a child engaging in sexual conduct or a similarly poor depiction amounts to child pornography. An example of this would be the photos recently shared under the #IfikieWazazi trend.

The ambiguous

Clarity in the letter of the law is key. It is equally important that laws prescribing the elements of an offence do so objectively using conduct-specific words. This not only gives a clear guide to the Office of the Director of Public Prosecutions as to when they should bring a criminal charge but also reduces the risk of such a law being declared unconstitutional. Precision is one of the areas where the Act falls short. There is a likelihood that most charges brought under it will be terminated prematurely.

The offence of identity theft and impersonation forbids the fraudulent and dishonest use of the password or unique identification feature of another person. However, the Act offers no definition of what constitutes “unique identification features”. And what amounts to “dishonest” use? Is it possible that opening a social media account in the name of another person could now be considered impersonation? Parody accounts, which are used for social commentary, may be at risk.

Clarity in the letter of the law is key. It is equally important that laws prescribing the elements of an offence do so objectively using conduct-specific words. This not only gives a clear guide to the Office of the Director of Public Prosecutions as to when they should bring a criminal charge but also reduces the risk of such a law being declared unconstitutional. Precision is one of the areas where the Act falls short. There is a likelihood that most charges brought under it will be terminated prematurely.

It is now an offence to hide information that was delivered to you by mistake. Take an email for example. The content of the email may not be relevant to you. However, it is impossible to tell that you were not the intended recipient. The intention of such a provision is unclear.

Unlawfully destroying messages is also an offence. However, the Act does not spell out what amounts to unlawful destruction, which makes the provision baffling.

Section 37 makes it an offence to distribute obscene or intimate images of another person. Use of general words such as “obscene” and “intimate” in laws that limit freedom of expression is unconstitutional. The intention may have been to ban revenge pornography or posting of personal photographs without the subject’s consent. Regrettably, we may not realise this protection due to the ambiguous language used in the Act. Failure to restrict this offence to instances where photos are uploaded without consent means that it is generally illegal to post pornographic material online in Kenya, unless the subject of the material posts it.

In a surprising twist, the section on child pornography makes it illegal to download, distribute and disseminate pornographic material or making it available in any way. Could this mean that it is now illegal to watch pornographic material in Kenya even where the actors are adults? Will search engines such as Google be held culpable for “making available” pornographic material? As this is a section on child pornography, is it safer to assume that this was an error in drafting or was this deliberate?

The borderline unconstitutional

There are some sections in the Act that not only make good fodder for public debate but also raise constitutional issues.

Fake news

Any law banning certain types of speech finds itself in conflict with the constitutionally guaranteed freedoms of opinion and expression and of the press. While freedom of expression is not absolute, its limitation can only be to the extent allowed by the Constitution.

The Act has been nicknamed the “Fake News Law”. Two sections in the Act have earned it this moniker. One criminalises “false publications” and the other outlaws “publication of false information”. Is this a calculated ploy or a play on semantics? In both cases, the Act offers no definition of the word “publish”. It will be interesting to see the interpretation adopted by the courts.

The first of these, Section 22, makes it an offence to publish fake news with the intention to deceive people who may treat it as authentic. This offence carries with it a Sh5 million fine, two years in the slammer or both. An obvious dilemma is how the prosecutors will prove that the information was published with the intention to deceive.

The Act has been nicknamed the “Fake News Law”. Two sections in the Act have earned it this moniker. One criminalises “false publications” and the other outlaws “publication of false information”. Is this a calculated ploy or a play on semantics? In both cases, the Act offers no definition of the word “publish”. It will be interesting to see the interpretation adopted by the courts.

There is, however, a rider in Section 22(2) that states that freedom of expression does not extend to speech that amounts to propaganda for war, incitement to violence, hate speech, advocacy for ethnic hatred or discrimination, or fake news that negatively affects the rights and reputations of others. These are the exceptions allowed under Article 33 of the Constitution. Such a qualification is necessary for any law that purports to limit a constitutional freedom. The import of this is that any law restricting speech that does not fall into these categories is unconstitutional.

What this means, therefore, is that fake news is only an offence if it amounts to propaganda for war, incitement to violence, hate speech, advocacy for ethnic hatred, advocacy for discrimination, or if it negatively affects the rights and reputations of others. A person charged with the offence of false publication has the right to challenge the charge before a constitutional court if their speech does not fall under the forbidden categories.

The second fake news offence, Section 23, criminalises fake news that is calculated to cause or results in panic, chaos or violence. It also condemns fake news that is likely to discredit the reputation of a person. This offence attracts a Sh5 million fine, a ten-year sentence or both. This section runs afoul of the Constitution. For one, public order is no longer an acceptable limitation to the freedom of expression. This is because words such as panic and chaos are subjective. How do you determine panic or chaos? In addition, the High Court decided last year that an offence prescribing criminal defamation is unconstitutional. This section is likely to suffer a similar fate.

Government surveillance

Every person has the constitutional right to privacy, which means that they have the right not to have their person, home or property searched, to not to have information relating to their family or private affairs unnecessarily revealed and to not to have the privacy of their communications infringed.

However, it is sometimes necessary to impeach the right to privacy, especially to allow for investigation of criminal activity. What the Constitution requires is that such invasion of privacy be carried out according to clear procedures set out in law. The law that allows invasion of privacy by the government must be clear as to the extent of the limitation of the right to privacy. The investigation procedures in the Act feature some questionable provisions.

If a police officer wants to search or seize a computer in the investigation of an offence, they must obtain a search warrant from a court of law. The police officers will then make a list of all the information seized and allow one to copy the contents of the computer before taking it away.

ISPs to surrender subscriber information

As part of the investigative procedures, Internet service providers (ISPs) may be directed to submit information on any of its subscribers. This includes the name, address, location, email address and phone number. Further, they may be directed to either collect traffic data (identity of the sender and recipient of an email, its subject lines and size, titles of any attachments, websites visited by a user and the time spent at each website etc.) on behalf of the police or allow the police to tap into the ISP system in order to do so. Finally, ISPs may be directed to record the content of a subscriber’s communication and surrender it to the police or, alternatively, allow police officers to dock into the ISP’s system and collect the content data.

All these require court orders. This intermediate step of requiring judicial approval is a necessary check on police power. However, there is a catch. Where police officers consider an investigation “urgent”, they are allowed to bypass the courts and directly issue a notice to the ISP to surrender information concerning any of its subscribers. This is a worrying exception that is prone to abuse. It is possible for police officers to cunningly term all their investigations as urgent and go straight to the ISPs without involving the courts.

ISPs must comply with any police directives as failure to do so would amount to an offence. This is a blatant disregard of the right to privacy, and could be used as a form of retaliation against anti-government entities or individuals. The Act bestows too much authority on investigators/police officers, leaving Internet users vulnerable to the whims of the state or powerful individuals.

Where police officers consider an investigation “urgent”, they are allowed to bypass the courts and directly issue a notice to the ISP to surrender information concerning any of its subscribers. This is a worrying exception that is prone to abuse. It is possible for police officers to cunningly term all their investigations as urgent and go straight to the ISPs without involving the courts.

The unnecessary

 The approach taken by this Act is to criminalise all unpleasant online conduct, so much so that it has encroached on the preserve of civil law, which will lead to the overburdening of an already under-resourced Office of the Director of Public Prosecutions. Worse still, the drafting language in many of the sections is vague, which could lead to the dismissal of cases brought under the Act.

The aim of criminal law should be to protect the general interests of the public, not to serve private interests. Where personal loss is occasioned, civil law offers perfect remedies. To go a step further and provide for compensation orders, as Section 45 does, is to usurp the role of civil courts, which are best placed to award damages. Try as we might, it is impossible to restore moral virtue via criminal legislation.

The aim of criminal law should be to protect the general interests of the public, not to serve private interests. Where personal loss is occasioned, civil law offers perfect remedies.

Cybersquatting

Cybersquatting – the practice of registering domain names, especially of well-known companies, in the hope of re-selling them at a profit – is an offence punishable by a Sh200,000 fine, a two-year imprisonment or both. This would have been best handled under civil law as it raises concerns related to intellectual property and personality rights.

Reversing erroneous payments

More often than not, mobile money users make payments to the wrong recipient. Failure to reverse such erroneous payments is now an offence with a Sh200,000 fine, a two-year imprisonment or both. This is an example of criminalising conduct arising out of private affairs. It would have been more prudent to require a refund policy from the platforms that operate the mobile money service.

Reporting cyber attacks

Every computer user must now report every cyber attack to the National Computer and Cybercrimes Coordination Committee. Failure to do so is an offence. In fighting cybercrime, cooperation is key. Cooperation is achieved by reporting cyber attacks. This alerts other users of impeding attacks and makes it possible to crowd-source solutions. However, making failure to report such attacks a crime is extreme. In other jurisdictions, only large organisations dealing in large amounts of data and monetary transactions are required to report. Failure to do so is not criminal but attracts administrative fines.

Failure to surrender passwords after employment

This is yet another superfluous offence. At the end of a contract of employment, one should surrender passwords to company computers and access codes. Failure to do so constitutes an offence. This would ordinarily give rise to a civil claim for breach of contract, which makes criminalising of the offence needless. The law is thus encroaching on a matter that is already handled by employers through contracts with their employees.

This is what the Computer Misuse and Cybercrimes Act, 2018 provides. I hope that this equips you adequately to participate in public discourse on the Act.

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Mercy Mutemi is an Advocate of the High Court of Kenya

Politics

A Dictator’s Guide: How Museveni Wins Elections and Reproduces Power in Uganda

Caricatures aside, how do President Yoweri Museveni and the National Revolutionary Movement state reproduce power? It’s been 31 years.

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Recent weeks have seen increased global media attention to Uganda following the incidents surrounding the arrest of popular musician and legislator, Bobi Wine; emblematic events that have marked the shrinking democratic space in Uganda and the growing popular struggles for political change in the country.

The spotlight is also informed by wider trends across the continent over the past few years—particularly the unanticipated fall of veteran autocrats Muammar Gaddafi in Libya, Hosni Mubarak in Egypt, Yaya Jammeh in Gambia, and most recently Robert Mugabe in Zimbabwe—which led to speculation about whether Yoweri Museveni, in power in Uganda since 1986, might be the next to exit this shrinking club of Africa’s strongmen.

Yet the Museveni state, and the immense presidential power that is its defining characteristic, has received far less attention, thus obscuring some of the issues at hand. Comprehending its dynamics requires paying attention to at-least three turning points in the National Resistance Movement’s history, which resulted in a gradual weeding-out of Museveni’s contemporaries and potential opponents from the NRM, then the mobilisation of military conflict to shore up regime legitimacy, and the policing of urban spaces to contain the increasingly frequent signals of potential revolution. Together, these dynamics crystallised presidential power in Uganda, run down key state institutions, and set the stage for the recent tensions and likely many more to come.

The purge

From the late 1990s, there has been a gradual weeding out the old guard in the NRM, which through an informal “succession queue,” had posed an internal challenge to the continuity of Museveni’s rule. It all started amidst the heated debates in the late 1990s over the reform of the then decaying Movement system; debates that pitted a younger club of reformists against an older group. The resultant split led to the exit of many critical voices from the NRM’s ranks, and began to bolster Museveni’s grip on power in a manner that was unprecedented. It also opened the lid on official corruption and the abuse of public offices.

Over the years, the purge also got rid of many political and military elites—the so-called “historicals”—many of whom shared Museveni’s sense of entitlement to political office rooted in their contribution to the 1980-1985 liberation war, and some of whom probably had an eye on his seat.

By 2005 the purge was at its peak; that year the constitutional amendment that removed presidential term limits—passed after a bribe to every legislator—saw almost all insiders that were opposed to it, summarily dismissed. As many of them joined the ranks of the opposition, Museveni’s inner circle was left with mainly sycophants whose loyalty was more hinged on patronage than anything else. Questioning the president or harboring presidential ambitions within the NRM had become tantamount to a crime.

By 2011 the process was almost complete, with the dismissal of Vice President Gilbert Bukenya, whose growing popularity among rural farmers was interpreted as a nascent presidential bid, resulting in his firing.

One man remained standing, Museveni’s long-time friend Amama Mbabazi. His friendship with Museveni had long fueled rumors that he would succeed “the big man” at some point. In 2015, however, his attempt to run against Museveni in the ruling party primaries also earned him an expulsion from both the secretary general position of the ruling party as well as the prime ministerial office.

The departure of Mbabazi marked the end of any pretensions to a succession plan within the NRM. He was unpopular, with a record tainted by corruption scandals and complicity in Museveni’s authoritarianism, but his status as a “president-in-waiting” had given the NRM at least the semblance of an institution that could survive beyond Museveni’s tenure, which his firing effectively ended.

What is left now is perhaps only the “Muhoozi project,” a supposed plan by Museveni to have his son Muhoozi Kainerugaba succeed him. Lately it has been given credence by the son’s rapid rise to commanding positions in elite sections of the Ugandan military. But with an increasingly insecure Museveni heavily reliant on familial relationships and patronage networks, even the Muhoozi project appears very unlikely. What is clear, though, is that the over time, the presidency has essentially become Museveni’s property.

Exporting peace?

Fundamental to Museveni’s personalisation of power also has been the role of military conflict, both local and regional. First was the rebellion by Joseph Kony’s Lord’s Resistance Army in northern Uganda, which over its two-decade span enabled a continuation of the military ethos of the NRM. The war’s dynamics were indeed complex, and rooted in a longer history that predated even the NRM government, but undoubtedly it provided a ready excuse for the various shades of authoritarianism that came to define Museveni’s rule.

With war ongoing in the north, any challenge to Museveni’s rule was easily constructed as a threat to the peace already secured in the rest of the country, providing an absurd logic for clamping down on political opposition. More importantly, the emergency state born of it, frequently provided a justification for the president to side-step democratic institutions and processes, while at the same time rationalising the government’s disproportionate expenditure on the military. It also fed into Museveni’s self-perception as a “freedom fighter,” buttressed the personality cult around him, and empowered him to further undermine any checks on his power.

By the late 2000s the LRA war was coming to an end—but another war had taken over its function just in time. From the early 2000s, Uganda’s participation in a regional security project in the context of the War on Terror, particularly in the Somalian conflict, rehabilitated the regime’s international image and provided cover for the narrowing political space at home, as well as facilitating a further entrenchment of Museveni’s rule.

As post-9/11 Western foreign policy began to prioritise stability over political reform, Museveni increasingly postured as the regional peacemaker, endearing himself to donors while further sweeping the calls for democratic change at home under the carpet—and earning big from it.

It is easy to overlook the impact of these military engagements, but the point is that together they accentuated the role of the military in Ugandan politics and further entrenched Museveni’s power to degrees that perhaps even the NRM’s own roots in a guerrilla movement could never have reached.

Policing protest

The expulsion of powerful elites from the ruling circles and the politicisation of military conflict had just started to cement Musevenism, when a new threat emerged on the horizon. It involved not the usual antagonists—gun-toting rebels or ruling party elites—but ordinary protesters. And they were challenging the NRM on an unfamiliar battleground—not in the jungles, but on the streets: the 2011 “Walk-to-Work” protests, rejecting the rising fuel and food prices, were unprecedented.

But there is another reason the protests constituted a new threat. For long the NRM had mastered the art of winning elections. The majority constituencies were rural, and allegedly strongholds of the regime. The electoral commission itself was largely answerable to Museveni. With rural constituencies in one hand and the electoral body in the other, the NRM could safely ignore the minority opposition-dominated urban constituencies. Electoral defeat thus never constituted a threat to the NRM, at least at parliamentary and presidential levels.

But now the protesters had turned the tables, and were challenging the regime immediately after one of its landslide victories. The streets could not be rigged. In a moment, they had shifted the locus of Ugandan politics from the rural to the urban, and from institutional to informal spaces. And they were picking lessons from a strange source: North Africa. There, where Museveni’s old friend Gaddafi, among others, was facing a sudden exit under pressure from similar struggles. Things could quickly get out of hand. A strategic response was urgent.

The regime went into overdrive. The 2011 protests were snuffed out, and from then, the policing of urban spaces became central to the logic and working of the Museveni state. Draconian laws on public assembly and free speech came into effect, enacted by a rubber-stamp parliament that was already firmly in Museveni’s hands. Police partnered with criminal gangs, notably the Boda Boda 2010, to curb what was called “public disorder”—really the official name for peaceful protest. As police’s mandate expanded to include the pursuit of regime critics, its budget ballooned, and its chief, General Kale Kayihura, became the most powerful person after Museveni—before his recent dismissal.

For a while, the regime seemed triumphant. Organising and protest became virtually impossible, as urban areas came under 24/7 surveillance. Moreover, key state institutions—the parliament, electoral commission, judiciary, military and now the police—were all in the service of the NRM, and all voices of dissent had been effectively silenced. In time, the constitution would be amended again, by the NRM-dominated house, this time to remove the presidential age limit—the last obstacle to Museveni’s life presidency—followed by a new tax on social media, to curb “gossip.” Museveni was now truly invincible. Or so it seemed.

But the dreams of “walk-to-work”—the nightmare for the Museveni state—had never really disappeared, and behind the tightly-patrolled streets always lay the simmering quest for change. That is how we arrived at the present moment, with a popstar representing the widespread aspiration for better government, and a seemingly all-powerful president suddenly struggling for legitimacy. Whatever direction the current popular struggles ultimately take, what is certain is that they are learning well from history, and are a harbinger of many more to come.

This post is from a new partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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Politics

The Enduring Blind Spots of America’s Africa Policy

America should move way from making the military the face of its engagement with Africa and instead invest in deepening democracy as a principled approach rather than a convenient choice.

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The Enduring Blind Spots of America's Africa Policy
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While Donald Trump’s administration completely neglected America-Africa relations, the blind spots bedeviling America’s Africa policy preceded his 2016 election. Correcting the systemic flaws of the past 30 years will require a complete rethink after the controversial President’s departure.

To remedy America’s Africa policy, President Joseph Biden’s administration should pivot away from counterterrorism to supporting democratic governance as a principal rather than as mere convenience, and cooperate with China on climate change, peace, and security on the continent.

America’s Africa policy 

America’s post-Cold War Africa policy has had three distinct and discernible phases. The first phase was an expansionist outlook undergirded by humanitarian intervention. The second was nonintervention, a stance triggered by the experience of the first phase. The third is the use of “smart” military interventions using military allies.  

The turning point for the first phase was in 1989 when a victorious America pursued an expansive foreign policy approach predicated on humanitarian intervention. Somalia became the first African test case of this policy when, in 1992, America sent almost 30,000 troops to support Operation Restore Hope’s humanitarian mission which took place against the background of the collapse of the Somalia government in 1991.

On 3-4 October 1993, during the Battle of Mogadishu, 18 US servicemen were killed in a fight with warlords who controlled Mogadishu then, and the bodies of the marines dragged through the streets of Mogadishu. The media coverage increased pressure on the politicians and six months later America withdrew from Somalia — a case of the New World Order meeting the harsh reality of civil conflict.

The chastening experience resulted in America scaling back its involvement in internal conflicts in far-flung places. The result was the emergence of the second phase — non-engagement when Rwanda’s Genocide erupted in 1994 and almost a million people died in 100 days revealed the limitations of over-correcting the Somalia experience. This “non-interference” phase lasted until the twin Nairobi and Dar es Salaam US embassy bombings by Al Qaeda in 1998.

This gave way to the third phase with the realisation that the new threat to America was no longer primarily from state actors, but from transnational non-state actors using failing states as safe havens. The 2002 National Security Strategy states: “the events of September 11, 2001, taught us that weak states . . . can pose as a great danger to our national interests as strong states.”

Counterterrorism training and equipping of African militaries is the central plank of this new security policy. As a result, counterterrorism funding has skyrocketed as has America’s military footprint in Africa. As a result, Africa has become the theatre in which the Global forever War on Terror is fought.

The counterterrorism traps 

The reflexive reaction to the events of September 11 2001 spawned an interlocking web of covert and overt military and non-military operations. These efforts, initially deemed necessary and temporary, have since morphed into a self-sustaining system complete with agencies, institutions and a specialised lingo that pervades every realm of America’s engagement with Africa.

The United States Africa Command (Africom) is the vehicle of America’s engagement with the continent. Counterterrorism blurred the line between security, development, and humanitarian assistance with a host of implications including unrelenting militarisation which America’s policy establishment embraced uncritically as the sine qua non of America’s diplomacy, their obvious flaws notwithstanding. The securitisation of problems became self-fulfilling and self-sustaining.

The embrace of counterterrorism could not have come at a worse time for Africa’s efforts at democratization. In many African countries, political and military elites have now developed a predictable rule-based compact governing accession to power via elections rather than the coups of the past.

“Smart” African leaders exploited the securitised approach in two main ways: closing the political space and criminalising dissent as “terrorism” and as a source of free money. In Ethiopia, Yonatan Tesfaye, a former spokesman of the Semayawi (Blue) Party, was detained in December 2015 on charges under Article 4 of Ethiopia’s Anti-Terrorism Proclamation ((EATP), arguably one of the the country’s most severe pieces of legislation. But Ethiopia has received millions of dollars from the United States.

The Department of Defense hardly says anything in public but gives out plenty of money without asking questions about human rights and good governance. Being a counterterrorism hub has become insurance policy against any form of criticism regardless of state malfeasance.

Egypt is one such hub. According to the Congressional Research Service, for the 2021 financial year, the Trump Administration has requested a total of US$1.4 billion in bilateral assistance for Egypt, which Congress approved in 2018 and 2019. Nearly all US funding for Egypt comes from the Foreign Military Finance (FMF) account and is in turn used to purchase military equipment of US origin, spare parts, training, and maintenance from US firms.

Another country that is a counterterrorism hub in the Horn of Africa is Ethiopia. For the few months they were in charge, the Union of Islamic Courts (ICU) brought order and stability to the country.  Although they were linked to only a few of Mogadishu’s local courts, on 24 December 2006, Ethiopia’s military intervened in Somalia to contain the rise of Al Shabaab’s political and military influence.

The ouster of the ICU by Ethiopia aggravated the deep historical enmity between Somalia and Ethiopia, something Al Shabaab — initially the youth wing of the ICU — subsequently exploited through a mix of Somali nationalism, Islamist ideology, and Western anti-imperialism. Al Shabaab presented themselves as the vanguard against Ethiopia and other external aggressors, providing the group with an opportunity to translate their rhetoric into action.

Ethiopia’s intervention in Somalia could not have taken place without America’s blessing. The intervention took place three weeks after General John Abizaid, the commander of US forces from the Middle East to Afghanistan, met with the then Ethiopian Prime Minister Meles Zenawi.  The intervention generated a vicious self-sustaining loop. Ethiopians are in Somalia because of Al Shabaab, and Al Shabaab says they will continue fighting as long as foreign troops are inside Somalia.

America has rewarded Ethiopia handsomely for its role as the Horn of Africa’s policeman. In both Ethiopia’s and Egypt’s case, on the score of human rights and good governance, the net losers are the citizens.

Drone attacks 

In keeping with the War on Terror being for forever, and despite departing Somalia in 1993, America outsourced a massive chunk of the fight against Al Shabaab to Ethiopia primarily, and later, to AMISOM. America is still engaged in Somalia where it has approximately 800 troops, including special forces that help train Somalia’s army to fight against Al Shabaab.

America carried out its first drone strike in Somalia in 2011 during President Barack Obama’s tenure. Under the Trump administration, however, the US has dramatically increased the frequency of drone attacks and loosened the oversight required to approve strike targets in Somalia. In March 2017, President Trump secretly designated parts of Somalia “areas of active hostilities”, meaning that the high-level inter-agency vetting of proposed strikes and the need to demonstrate with near certainty that civilians would not be injured or killed no longer applied. Last year, the US acknowledged conducting 63 airstrikes in the country, and in late August last year, the US admitted that it had carried out 46 strikes in 2020.

A lack of transparency regarding civilian casualties and the absence of empirical evidence that the strikes lead to a reduction in terrorism in Somalia suggest that expanding to Kenya would be ill-advised. The US has only acknowledged having caused civilian casualties in Somalia three times. Between 2016 and 2019, AFRICOM failed to conduct a single interview with civilian witnesses of its airstrikes in Somalia.

Despite this level of engagement, defeating Al Shabaab remains a remote possibility.

Containing the Chinese takeover 

The Trump Administration did not have an Africa policy. The closest approximation of a policy during Trump’s tenure was stated in a speech delivered by John Bolton at a Conservative think tank decrying  China’s nefarious activities in Africa.  Even with a policy, where the counterterrorism framework views Africa as a problem to be solved by military means, the containing China policy views African countries as lacking the agency to act in their own interests. The problem with this argument is that it is patronising; Africans cannot decide what is right for them.

Over the last decades, while America was busy creating the interlocking counterterrorism infrastructure in Africa, China was building large-scale infrastructure across the continent. Where America sees Africa as a problem to be solved, China sees Africa as an opportunity to be seized.

Almost two years into the Trump administration, there were no US ambassadors deployed in 20 of Africa’s 54 countries even while America was maintaining a network of 29 military bases.  By comparison China, has 50 embassies spread across Africa.

For three consecutive years America’s administration has proposed deep and disproportionate cuts to diplomacy and development while China has doubled its foreign affairs budget since 2011. In 2018, China increased its funding for diplomacy by nearly 16 per cent and its funding for foreign aid by almost 7 per cent.

As a show of how engagement with Africa is low on the list of US priorities, Trump appointed a luxury handbag designer as America’s ambassador to South Africa on 14 November 2018. Kenya’s ambassador is a political appointee who, when he is not sparring with Kenyans on Twitter, is supporting a discredited coal mining project.

The US anti-China arguments emphasize that China does not believe in human rights and good governance, and that China’s funding of large infrastructure projects is essentially debt-trap diplomacy. The anti-China rhetoric coming from American officials is not driven by altruism but by the realisation that they have fallen behind China in Africa.

By the middle of this century Africa’s population is expected to double to roughly two billion. Nigeria will become the second most populous country globally by 2100, behind only India. The 24-country African Continental Free Trade Agreement (AfCFTA) entered into force on 30 May 2019. AfCFTA will ultimately bring together all 55 member states of the African Union covering a market of more than 1.2 billion people — including a growing middle class — and a combined gross domestic product (GDP) of more than US$3.4 trillion.

While Chinese infrastructure projects grab the headlines, China has moved into diversifying its engagement with Africa. The country has increased its investments in Africa by more than 520 per cent over the last 15 years, surpassing the US as the largest trading partner for Africa in 2009 and becoming the top exporter to 19 out of 48 countries in sub-Saharan Africa.

Some of the legacy Chinese investments have come at a steep environmental price and with an unsustainable debt. Kenya’s Standard Gauge Railway is bleeding money and is economically unviable.

A fresh start

Supporting democratic governance and learning to cooperate with China are two areas that will make America part of Africa’s future rather than its past.

America should pivot way from making the military the most visible face of its engagement with Africa and instead invest in deepening democracy as a principled approach rather than a convenient choice.

Despite the elegy about its retreat in Africa, democracy enjoys tremendous support. According to an Afro barometer poll, almost 70 per cent of Africans say democracy is their preferred form of government. Large majorities also reject alternative authoritarian regimes such as presidential dictatorships, military rule, and one-party governments. Democracy, while still fledgling, remains a positive trend; since 2015, there have been 34 peaceful transfers of power.

However, such positive metrics go hand in hand with a worrying inclination by presidents to change constitutions to extend their terms in office. Since 2015, leaders of 13 countries have evaded or overseen the weakening of term limit restrictions that had been in place. Democracy might be less sexy, but ignoring it is perilous. There are no apps or switches to flip to arrest this slide. It requires hard work that America is well equipped to support but has chosen not to in a range of countries in recent years There is a difference between interfering in the internal affairs of a country and complete abdication or (in some cases) supporting leaders who engage in activities that are inimical to deepening democracy.

The damage wrought by the Trump presidency and neo-liberal counterterrorism policies will take time to undo, but symbolic efforts can go a long way to bridging the gap.

America must also contend with China being an indispensable player in Africa and learn to cooperate rather than compete in order to achieve optimal outcomes.

China has 2,458 military and police personnel serving in eight missions around the globe, far more than the combined contribution of personnel by the other four permanent members of the UN Security Council, Russia, the US, France and Britain. China had more than 2,400 Chinese troops take part in seven UN peacekeeping missions across the continent — most notably in Mali and South Sudan. Of the 14 current UN peacekeeping missions, seven are in Africa, consuming two-thirds of the budget.

Climate change and conflict resolution provide opportunities for cooperation. Disproportionate reliance on rain-fed agriculture and low adaptation to the adverse impact of climate change make Africa vulnerable to the damaging effects of climate change, the consequences of which will transcend Africa. Through a combination of research, development, technological transfer and multilateral investment, America and China could stave off the impact of climate change in Africa.

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Hijacking Kenya’s Health Spending: Companies Linked to Powerful MP Received Suspicious Procurement Contracts

Two obscure companies linked to Kitui South MP Rachael Kaki Nyamai were paid at least KSh24.2 million to deliver medical supplies under single-source agreements at the time the MP was chair of the National Assembly’s Health Committee.

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Hijacking Kenya’s Health Spending: Companies Linked to Powerful MP Received Suspicious Procurement Contracts
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Two obscure companies linked to Kitui South MP Rachael Kaki Nyamai were paid at least KSh24.2 million to deliver medical supplies under single-source agreements at the time the MP was chair of the National Assembly’s Health Committee, an investigation by Africa Uncensored and The Elephant has uncovered.

One of the companies was also awarded a mysterious Ksh 4.3 billion agreement to supply 8 million bottles of hand sanitizer, according to the government’s procurement system.

The contracts were awarded in 2015 as authorities moved to contain the threat from the Ebola outbreak that was ravaging West Africa and threatening to spread across the continent as well as from flooding related to the El-Nino weather phenomenon.

The investigation found that between 2014 and 2016, the Ministry of Health handed out hundreds of questionable non-compete tenders related to impending disasters, with a total value of KSh176 billion including three no-bid contracts to two firms, Tira Southshore Holdings Limited and Ameken Minewest Company Limited, linked to Mrs Nyamai, whose committee oversaw the ministry’s funding – a clear conflict of interest.

Number of Suppliers Allocated BPAAlthough authorities have since scrutinized some of the suspicious contracts and misappropriated health funds, the investigation revealed a handful of contracts that were not made public, nor questioned by the health committee.

Mrs Nyamai declined to comment for the story.

Nyamai has been accused by fellow members of parliament of thwarting an investigation of a separate alleged fraud. In 2016, a leaked internal audit report accused the Ministry of Health — colloquially referred to for its location at Afya House — of misappropriating funds in excess of nearly $60 million during the 2015/2016 financial year. Media stories described unauthorized suppliers, fraudulent transactions, and duplicate payments, citing the leaked document.

Members of the National Assembly’s Health Committee threatened to investigate by bringing the suppliers in for questioning, and then accused Nyamai, the committee chairperson, of blocking their probe. Members of the committee signed a petition calling for the removal of Nyamai and her deputy, but the petition reportedly went missing. Nyamai now heads the National Assembly’s Committee on Lands.

Transactions for companies owned by Mrs Nyamai’s relatives were among 25,727 leaked procurement records reviewed by reporters from Africa Uncensored, Finance Uncovered, The Elephant, and OCCRP. The data includes transactions by eight government agencies between August 2014 and January 2018, and reveals both questionable contracts as well as problems that continue to plague the government’s accounting tool, IFMIS.

The Integrated Financial Management Information System was adopted to improve efficiency and accountability. Instead, it has been used to fast-track corruption.

Hand sanitizer was an important tool in fighting transmission of Ebola, according to a WHO health expert. In one transaction, the Ministry of Health paid Sh5.4 million for “the supply of Ebola reagents for hand sanitizer” to a company owned by a niece of the MP who chaired the parliamentary health committee. However, it’s unclear what Ebola reagents, which are meant for Ebola testing, have to do with hand sanitizer. Kenya’s Ministry of Health made 84 other transactions to various vendors during this period, earmarked specifically for Ebola-related spending. These included:

  • Public awareness campaigns and adverts paid to print, radio and tv media platforms, totalling at least KSh122 million.
  • Printed materials totalling at least KSh214 million for Ebola prevention and information posters, contact tracing forms, technical guideline and point-of-entry forms, brochures and decision charts, etc. Most of the payments were made to six obscure companies.
  • Ebola-related pharmaceutical and non-pharmaceutical supplies, including hand sanitizer
  • Ebola-related conferences, catering, and travel expenses
  • At least KSh15 millions paid to a single vendor for isolation beds

Hacking the System

Tira Southshore Holdings Limited and Ameken Minewest Company Limited, appear to have no history of dealing in hygiene or medical supplies. Yet they were awarded three blanket purchase agreements, which are usually reserved for trusted vendors who provide recurring supplies such as newspapers and tea, or services such as office cleaning.

“A blanket agreement is something which should be exceptional, in my view,” says former Auditor-General, Edward Ouko.

But the leaked data show more than 2,000 such agreements, marked as approved by the heads of procurement in various ministries. About KSh176 billion (about $1.7 billion) was committed under such contracts over 42 months.

“Any other method of procurement, there must be competition. And in this one there is no competition,” explained a procurement officer, who spoke generally about blanket purchase agreements on background. “You have avoided sourcing.”

The Ministry of Health did not respond to detailed questions, while Mrs Nyamai declined to comment on the contracts in question.

Procurement experts say blanket purchase agreements are used in Kenya to short-circuit the competitive process. A ministry’s head of procurement can request authority from the National Treasury to create blanket agreements for certain vendors. Those companies can then be asked by procurement employees to deliver supplies and services without competing for a tender.

Once in the system, these single-source contracts are prone to corruption, as orders and payments can simply be made without the detailed documentation required under standard procurements. With limited time and resources, government auditors say they struggle especially with reconciling purchases made under blanket agreements.

The agreements were almost always followed by standard purchase orders that indicated the same vendor and the same amount which is unusual and raises fears of duplication. Some of these transactions were generated days or weeks after the blanket agreements, many with missing or mismatched explanations. It’s unclear whether any of these actually constituted duplicate payments.

For example, the leaked data show two transactions for Ameken Minewest for Sh6.9 million each — a blanket purchase order for El Nino mitigation supplies and a standard order for the supply of chlorine tablets eight days later. Tira Southshore also had two transactions of Sh12 million each — a blanket purchase for the “supply of lab reagents for cholera,” and six days later a standard order for the supply of chlorine powder.

Auditors say both the amounts and the timing of such payments are suspicious because blanket agreements should be paid in installments.

“It could well be a duplicate, using the same information, to get through the process. Because you make a blanket [agreement], then the intention is to do duplicates, so that it can pass through the cash payee phase several times without delivering more,” said Ouko upon reviewing some of the transactions for Tira Southshore. This weakness makes the IFMIS system prone to abuse, he added.

In addition, a KSh4 billion contract for hand sanitizer between the Health Ministry’s Preventive and Promotive Health Department and Tira Southshore was approved as a blanket purchase agreement in April 2015. The following month, a standard purchase order was generated for the same amount but without a description of services — this transaction is marked in the system as incomplete. A third transaction — this one for 0 shillings — was generated 10 days later by the same procurement employee, using the original order description: “please supply hand sanitizers 5oomls as per contract Moh/dpphs/dsru/008/14-15-MTC/17/14-15(min.no.6).

Reporters were unable to confirm whether KSh4 billion was paid by the ministry. The leaked data doesn’t include payment disbursement details, and the MOH has not responded to requests for information.

“I can assure you there’s no 4 billion, not even 1 billion. Not even 10 million that I have ever done, that has ever gone through Tira’s account, through that bank account,” said the co-owner of the company, Abigael Mukeli. She insisted that Tira Southshore never had a contract to deliver hand sanitizer, but declined to answer specific questions. It is unclear how a company without a contract would appear as a vendor in IFMIS, alongside contract details.

It is possible that payments could end up in bank accounts other than the ones associated with the supplier. That is because IFMIS also allowed for the creation of duplicate suppliers, according to a 2016 audit of the procurement system. That audit found almost 50 cases of duplication of the same vendor.

“Presence of active duplicate supplier master records increases the possibility of potential duplicate payments, misuse of bank account information, [and] reconciliation issues,” the auditors warned.

They also found such blatant security vulnerabilities as ghost and duplicate login IDs, deactivated requirements for password resets, and remote access for some procurement employees.

Credit: Edin Pasovic/OCCRP

Credit: Edin Pasovic/OCCRP

IFMIS was promoted as a solution for a faster procurement process and more transparent management of public funds. But the way the system was installed and used in Kenya compromised its extolled safeguards, according to auditors.

“There is a human element in the system,” said Ouko. “So if the human element is also not working as expected then the system cannot be perfect.”

The former head of the internal audit unit at the health ministry, Bernard Muchere, confirmed in an interview that IFMIS can be manipulated.

Masking the Setup

Ms Mukeli, the co-owner of Tira Southshore and Ameken Minewest, is the niece of Mrs Nyamai, according to local sources and social media investigation, although she denied the relationship to reporters. According to her LinkedIn profile, Ms Mukeli works at Kenya Medical Supplies Agency, a medical logistics agency under the Ministry of Health, now embroiled in a COVID procurement scandal.

Ms Mukeli’s mother, who is the MP’s elder sister, co-owns Icpher Consultants Company Ltd., which shares a post office box with Tira Southshore and Mematira Holdings Limited, which was opened in 2018, is co-owned by Mrs Nyamai’s husband and daughter, and is currently the majority shareholder of Ameken Minewest. Documents also show that a company called Icpher Consultants was originally registered to the MP, who was listed as the beneficial owner.

Co-owner of Tira Southshore Holdings Limited, Abigael Mukeli, described the company to reporters as a health consulting firm. However Tira Southshore also holds an active exploration license for the industrial mining in a 27-square-kilometer area in Kitui County, including in the restricted South Kitui National Reserve. According to government records, the application for mining limestone in Mutomo sub-county — Nyamai’s hometown — was initiated in 2015 and granted in 2018.

Mukeli is also a minority owner of Ameken Minewest Company Limited, which also holds an active mining license in Mutomo sub-county of Kitui, in an area covering 135.5 square kilometers. Government records show that the application for the mining of limestone, magnesite, and manganese was initiated in 2015 and granted in 2018. Two weeks after the license was granted, Mematira Holdings Limited was incorporated, with Nyamai’s husband and daughter as directors. Today, Mematira Holdings is the majority shareholder of Ameken Minewest, which is now in the process of obtaining another mining license in Kitui County.

According to public documents, Ameken also dabbles in road works and the transport of liquefied petroleum gas. And it’s been named by the Directorate of Criminal Investigations in a fuel fraud scheme.

Yet another company, Wet Blue Proprietors Logistics Ltd., shares a phone number with Tira Southshore and another post office box with Icpher Consultants Company Ltd., according to a Kenya National Highway Authority list of pre-qualified vendors.

Family LinksMrs Nyamai and her husband co-own Wet Blue. The consulting company was opened in 2010, the same year that the lawmaker completed her PhD work in HIV/AIDS education in Denmark.

Wet Blue was licenced in 2014 as a dam contractor and supplier of water, sewerage, irrigation and electromechanical works. It’s also listed by KENHA as a vetted consultant for HIV/AIDS mitigation services, together with Icpher Consultants.

It is unclear why these companies are qualified to deliver all these services simultaneously.

“Shell companies receiving contracts in the public sector in Kenya have enabled corruption, fraud and tax evasion in the country. They are literally special purpose vehicles to conduct ‘heists’ and with no track record to deliver the public goods, works or services procured,” said Sheila Masinde, executive director of Transparency International-Kenya.

Both MOH and Ms Mukeli refused to confirm whether the ordered supplies were delivered.

Mrs Nyamai also co-owns Ameken Petroleum Limited together with Alfred Agoi Masadia and Allan Sila Kithome.

Mr Agoi is an ANC Party MP for Sabatia Constituency in Vihiga County, and was on the same Health Committee as Mrs Nyamai, a Jubilee Party legislator. Mr Sila is a philanthropist who is campaigning for the Kitui County senate seat in the 2022 election.

Juliet Atellah at The Elephant and Finance Uncovered in the UK contributed reporting.

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