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 In Kenya’s case, this legislation was way overdue considering that Kenyans were relying on outdated statutes contained in the 1948 Penal Code and the 1998 Kenya Information and Communication Act to try digital crimes.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

Is Democracy Dead or Has It Simply Been Hijacked?

10 min read. The rise of right-wing populist leaders in many countries across the globe suggests that democracy’s days are numbered. However, as PATRICK GATHARA argues, populism is less a cause of democracy’s demise than a consequence of it.

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Is Democracy Dead or Has It Simply Been Hijacked?
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“Anyone can cook,” declares Chef Auguste Gusteau in the 2007 Pixar classic, Ratatouille, one of my favourite animated movies. The film tells the tale of an anthropomorphic French rat with a passion for haute cuisine, who against all odds, makes it from foraging in the garbage to cooking at a high-end restaurant and being declared “nothing less than the finest chef in France”. It is an inspiring story with valuable lessons about bravery, determination and following one’s dreams. Yet it comes with a caveat, as explained by the funereal critic, Anton Ego, at the end of the movie: “Not everyone can become a great artist; but a great artist can come from anywhere.”

Across the world today, democratic societies appear to have taken Gusteau’s maxim but not necessarily with Ego’s qualification. In Kenya, the death of popular Kibra MP, Kenneth Okoth, has occasioned a by-election in which the ruling Jubilee Party has fronted a professional footballer who has spent much of the last decade in Europe and who, until a few weeks ago, had never even registered to vote or expressed any interest in politics.

“The world is going the Wanjiku way,” Mike Sonko, the populist Governor of Nairobi declared recently on the Sunday show, Punchline. “Take the example of the Ukraine. The President of Ukraine is currently is a comedian. They voted for a comedian. Because the Wanjikus were fed up with the leadership of that country. They were fed up with the politicians…Go to Liberia. They elected a footballer to be their president. Madagascar for the second time have elected a DJ, Rajolina, to be their president”.

He is not wrong. From Donald Trump in the United States to Bobi Wine in Uganda, there seems to be a growing dissatisfaction with and distrust of career politicians and the nebulous “establishment”. In Kenya, this manifests in a contest between the so-called “dynasties” (the wealthy families that have dominated the country’s politics for nearly 60 years) and the “hustlers” (the political upstarts who claim to not be a part of the establishment). It is evident in the “handshake” between President Uhuru Kenyatta and opposition leader Raila Odinga, sons of Kenya’s first President and Vice President, respectively, and their open feud with Deputy President William Ruto, the self-declared head of the “hustler nation”.

The idea that “anyone can rule” is taken by many to be a cardinal tenet of democracy. At its root is a legitimate rejection of the old idea that the ability to govern was only bestowed on some bloodlines, which today has largely been consigned to history’s trash heap.

Yet this democratisation of governance has created fears of its contamination by the unwashed and uneducated masses. A famous quote from the early twentieth century US journalist, Henry Mencken, encapsulates these fears: “As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart’s desire at last and the White House will be adorned by a downright moron.” The quote is taken from Mencken’s piece originally posted in the Baltimore Evening Sun in July 1920 in which he rails against the candidacies of Republican Warren Harding and his rival, James Cox, for the US presidency, which he saw as proof of the tendency of democratic competition to result in a race to the bottom.

The idea that “anyone can rule” is taken by many to be a cardinal tenet of democracy. At its root is a legitimate rejection of the old idea that the ability to govern was only bestowed on some bloodlines, which today has largely been consigned to history’s trash heap.

“The first and last aim of the politician,” he wrote, “is to get votes, and the safest of all ways to get votes is to appear to the plain man to be a plain man like himself, which is to say, to appear to him to be happily free from any heretical treason to the body of accepted platitudes – to be filled to the brim with the flabby, banal, childish notions that challenge no prejudice and lay no burden of examination upon the mind.”

Arguing that “this fear of ideas is a peculiarly democratic phenomenon,” he goes on to assert that as politicians increasingly pander to electorates, then “the man of vigorous mind and stout convictions is gradually shouldered out of public life” and the field is left to “intellectual jelly-fish and inner tubes” – those without convictions and those willing to hide them.

Populist idiocy

Many recognise the fulfilment of Menckel’s prophecy in Donald Trump’s presidency, though it is notable that it had been applied to Ronald Reagan and George W. Bush before him. However, it is clear that Mencken had a low opinion, not just of politicians, but of electorates as well. In fact, in his view, it is the ignorance and stupidity of the masses that, in a democracy, makes morons of politicians. And moronic politicians love ignorant voters as evidenced by Trump’s declaration during the 2016 presidential campaign: “I love the poorly educated.”

Menckel’s view is also echoed by a common maxim spuriously attributed to Winston Churchill: “The best argument against democracy is a five-minute conversation with the average voter.” So, is the slide into populist idiocy the inevitable fate of democracy? Can anyone cook? Or is Ego right that while good governance can come from anywhere, not everyone can be a great leader?

“Democracy is hard,” notes Kenyan academic and author, Nanjala Nyabola. It “requires constant vigilance—something that we now see is difficult to achieve even under the most ideal circumstances.” For most voters, this constant vigilance is a tough ask. In fact, for most, getting to grips with the issues and personalities is not worth the hassle.

As Ilya Somin, Professor of Law at George Mason University, puts it, “If your only reason to follow politics is to be a better voter, that turns out not to be much of a reason at all… there is very little chance that your vote will actually make a difference to the outcome of an election.”

And that’s not all. Even if one were inclined to be immersed in the policy debates and to investigate candidate platforms, the sheer size of modern government and the scale and impact of its activities means that one could not hope to monitor more than a tiny fraction of what the state gets up to.

Since voters are unwilling to get their hands dirty, they take short cuts, which often means relying on someone else to tell them what’s going on in the kitchen. For instance, when asked, during the 2005 and 2010 referendum campaigns on a proposed new constitution, whether they had read the drafts, a section of Kenyan voters were reported to have responded with “Baba amesoma” (Father has read it). Baba is a reference to Raila Odinga, perhaps the best known politician in the country and the voters, many of whom had little knowledge of constitutionalism, were opting to take their cue from him. Others chose to follow the musings of pundits and other self-appointed “experts” or journalists or even comedians. The problem here, as with following politicians, is you do not know whether what you are getting is the truth, the real truth and nothing but the truth.

However, that turns out to be less of a problem than one might at first suppose. Truth (shock, horror!) is not always the reason one follows politics – or politicians. Prof. Somin notes that political supporters tend to behave very much like sports fans – less interested in the merits of arguments or how well the game is played than in whether their side wins. This is perhaps best illustrated by the phenomenon of electorates voting against their own interests. For example, in the US, older voters tend to support the Republican Party, which takes a dim view of government entitlement programmes like Medicare and Social Security that primarily benefit the elderly.

Since voters are unwilling to get their hands dirty, they take short cuts, which often means relying on someone else to tell them what’s going on in the kitchen. For instance, when asked, during the 2005 and 2010 referendum campaigns on a proposed new constitution, whether they had read the drafts, a section of Kenyan voters were reported to have responded with “Baba amesoma”.

Even the few neutrals out there tend to talk only to like-minded others or follow the game through like-minded media. In either case, there is little scope for voters to have their views challenged or their horizons expanded. As the former British Prime Minister put it, “The single hardest thing for a practicing politician to understand is that most people, most of the time, don’t give politics a first thought all day long. Or if they do, it is with a sigh… before going back to worrying about the kids, the parents, the mortgage, the boss, their friends, their weight, their health, sex and rock ‘n’ roll.”

A civic ritual

If voters don’t care about politics, why do they even bother to vote? According to Prof Somin, “The key factor is that voting is a lot cheaper and less time-consuming than studying political issues. For many, it is rational to take the time to vote, but without learning much about the issues at stake.”

Voting has thus become a civic ritual, much like going to a football game and cheering your favourite team. It provides the satisfaction of participation – one can brandish a purple finger as a marker of having fulfilled one’s duty without actually doing the hard work of wrestling with the issues. Voters pick their teams based less on ideas than on arbitrary considerations, such as ethnicity or place of birth.

The media exacerbates this trend in two ways; both in the content of their reporting and in the manner they do so. By far, the mainstream press is the most important avenue through which people access and organise information about what is happening in the world. Despite the growth of the internet, which has enabled many more people to get in on the act, news is still largely what the media says it is, whether it is an earthquake or a war in some far-off place or the latest tweet by Donald Trump.

However, as Prof Cas Mudde of the School of Public and International Affairs at the University of Georgia writes, the media tends to report the news, rather than analyse and explain it. The addiction to scoops and “breaking news” and the competition to be first even when every outlet will have the story in the next few minutes and though social media means there is less attention paid to “trends behind the day-to-day news”. Further, in order to attract a larger audience and sell more advertising space or more newspapers, the media prioritises what is sensational over what is important and stays away from anything that cannot be reduced into a soundbite or squeezed into a two-minute news segment.

It also propagates and perpetuates false notions of “objectivity”, presenting itself as a reliable neutral observer rather than as an active participant. Yet through its curating and shaping functions, the media wields tremendous influence not only on how events unfold but also on how on they are perceived. Like a chef, the media takes events and fashions out of disparate events, to be served up to audiences in bite-sized chunks on its many channels.

Brought up on this fast news diet, Prof Somin says, voters come to “mistakenly believe that the world is a very simple place [requiring] very little knowledge to make an informed decision about politics”. And this leads to the embrace of simplistic panaceas for complex problems, and to a preference for populist politicians who deny complexity. If the world is so simple, then fixing it requires no specialised knowledge. Anybody can cook.

It is no wonder then that today there is a lot of angst about the state of democracy and fears that the ship of liberal democratic constitutionalism is floundering on the rocks of populism. The emergence of right wing populist governments and movements in countries as far removed as Brazil, Italy and the Philippines, and in Western countries once thought to hold the high ground for liberal democracy, such as the UK (which is steeped in a constitutional crisis over Brexit) and the US (where President Trump is facing an impeachment inquiry) has many thinking that democracy’s days are numbered.

William Galston has called populism an internal challenge to liberal democracy. Populists, he says, weaponise popular ignorance “to drive a wedge between democracy and liberalism”. Liberal norms, institutions and policies, they claim, weaken democracy and harm the people and thus should be set aside.

Brought up on this fast news diet, Prof Somin says, voters come to “mistakenly believe that the world is a very simple place [requiring] very little knowledge to make an informed decision about politics”. And this leads to the embrace of simplistic panaceas for complex problems, and to a preference for populist politicians who deny complexity.

Populism, though, is less a cause of democracy’s demise than it is a consequence of it. Democracy has been crumbling from within for a long time. Galston blames this on immigration which, he says, has not only upset the “tacit compact” between electorates and elites – where the former would defer to the latter as long as they delivered economic growth and prosperity – but has also profoundly challenged existing demographic and cultural norms, leaving many feeling dislocated in their own societies.

However, it is that compact that is at the root of the crisis, transforming as it does the understanding of democracy from a system where people participate in governance to one where they elect others to govern them. Further, the gnashing of teeth over historic decline in voter turnout blinds many to the fact that, like populism, it is also a symptom and not the problem.

As Phil Parvin notes in his paper, Democracy Without Participation, the decline in political engagement and deliberation by ordinary citizens and the eclipse of broad-based citizen associations by professional lobby groups have resulted in a model of democracy where “politics … is something done by other people on behalf of citizens rather than by citizens themselves”.

In Africa, the “wind of change” that toppled many dictatorships in the 1990s and early 2000s did not result in the empowerment of local populations to do anything other than participate in the ritual of periodic elections. Participation in governance in the periods in between elections is actively discouraged. Those who are dissatisfied with government policies are routinely told to shut up and await the opportunity to do something about it at the next election.

This model of democracy as reality show, where elites compete on who gets a turn at the trough (with the media providing a running commentary and the public choosing the winner) is at the root of the malaise. The professionalisation of democratic participation – outsourcing it to politicians and activists – leads to an increasing polarisation and tribalisation, with everyone claiming to be the authentic voice of the silent and silenced population. Alienation, as political debate focuses on the problems of elites rather than those of the people, becomes inevitable.

It is into this void that the populists have stepped, claiming to do away with the edifice of “the establishment” when in fact, they are seeking to entrench elite rule by doing away with even the appearance of popular consultation. This is what they mean when they evoke the idea of a “strong leader” – one who is not bound by the charade of democratic politics and can thus instinctively channel a pure form of the people’s will. But, as the Mayor of London, Sadiq Khan, says, this is to ignore the lessons of history. Strongmen, as Africans know from bitter experience, tend to reflect, not the aspirations of their people, but their own.

In Africa, the “wind of change” that toppled many dictatorships in the 1990s and early 2000s did not result in the empowerment of local populations to do anything other than participate in the ritual of periodic elections.

The solution may be to do away with elections altogether as a means for selecting decision-makers. In any case, what is required is not less popular participation, but more. We can no longer afford to continue to treat governance as something voters get to participate in once every election cycle, to pretend that democracy is a fire-and-forget proposition. Constant vigilance requires citizens at all levels willing to get their hands dirty, learn about issues, debate openly and engage with representatives – citizens who collectively insist on being heard and who demand accountability from those in power, not simply wait for someone else to do it on their behalf.

Paradoxically, the internet has dramatically lowered the costs of participation and it has never been easier for people to access information, to express opinions, to participate in petitions and to organise outside the parameters set by the elite or by the state. The question for societies with democratic aspirations should be how to make the voices and concerns of ordinary folks, rather than just their votes, count and not be drowned out by the din of elite politics. How do we truly get to the public interested in the ideal of “government of the people, by the people, for the people”?

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Politics

How Corruption and Greed Are Destroying Africa’s Forests

8 min read. Africa is losing its forests at an alarming rate, yet the very forces that claim to be protecting them are responsible for their destruction.

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How Corruption and Greed Are Destroying Africa’s Forests
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When elephants fight, it’s the grass that suffers.”

As the trade war between the world’s superpowers continues, the global South is the one getting the short end of the stick. The economy of most African countries depends on massive exportation of raw materials, usually controlled by large foreign companies. The exploitation of the local resources, such as wood, never seems to stop, even if massive deforestation in countries such as Kenya, Uganda, and Ethiopia is bound to have catastrophic economic and environmental consequences.

Who are the main (local and foreign) players behind the progressive loss of forested areas in East and South Africa? What are the causes and, more importantly, the effects of this apparently unstoppable exploitation of land on local economies and climate change? How much is corruption responsible for this devastation? Are there any virtuous players trying to staunch this wound, or is it just the usual Western hypocrisy that preys on the unavoidable dependence on “development aid”?

Land grabs and exploitation

The Western world’s hunger for African resources, including land, has only grown more intense due tp the increased demand for carbon and biofuels. The whole continent becomes more dependent on overseas trade day after day. Internal trade between African countries is extremely weak, and most of these countries are large importers of pricey finished goods and services provided by other global partners. Most African countries are exporters of raw materials that generate profit margins that are quite small on their own and are made even smaller by the fact that most of the lands where these goods are produced rest in the hands of large transnational companies.

In many countries, such as Ethiopia, the laws that regulate land leases have been extremely generous to foreign investors. The land is leased for negligible rents, especially in remote and sparsely populated areas, and the approval process for investment proposals is superficial at best. In exchange for an alleged economic return that in many cases never follows, national governments exempted foreign companies from repatriated profits on taxes and taxes on imports of capital goods. All these land grabs are notoriously unjust to the original inhabitants of these lands – usually small farmers and pastoralists who, in some cases, have even forcefully been evicted with the help of the army.

The largest African and global development institutions, such as the Alliance for a Green Revolution in Africa (AGRA) and the World Bank, always sold this process as a much-needed transformation to help the growth of less developed countries. The idea of shifting toward large-scale commercial exploitation of lands and resources has been presented as the perfect recipe to overcome the stagnation of African economies; a transformation that would bring progress, modernity, and riches to all the impoverished lands and populations of the global South. Now the whole continent has been integrated into the global trade system with a relationship of complete unilateral dependence, chained to the volatile prices of commodities, enslaved by continuous “development aid”, and bent under the weight of totally asymmetrical agreements.

The effects of foreign liberalism

The free market didn’t help low-income to countries flourish; the only economic effect was purely cosmetic in nature. The shift towards large-scale commercial exploitation of lands came with promises of better employment opportunities, improvement of existing infrastructure, new opportunities for development, knowledge transfer, and professional specialisation. We saw this happen elsewhere as well, such as in Central America – all these promises eventually turned out to be empty, and only resulted in more poverty, hunger, and unfair exploitation.

In a continent where the vast majority of the population depends on agriculture for a living, uncontrolled liberalisation is nothing but a recipe for disaster. Even the most developed nations of the West know the limits of free markets very well and keep sustaining their own farmers with generous subsidies.

In many countries, such as Ethiopia, the laws that regulate land leases have been extremely generous to foreign investors. The land is leased for negligible rents, especially in remote and sparsely populated areas, and the approval process for investment proposals is superficial at best.

For example, Ethiopia’s annual GDP growth rate kept increasing by nearly 9% between 2004 and 2014, but very few Ethiopians enjoyed the benefits of this growth. Nearly 80% of the population is still composed of farmers and pastoralists whose livelihoods are even more precarious than before after their land was impoverished – their income still incredibly low, at $0.14 per day in some areas. The rural population has been marginalised even further, and local labour is often hired only on a seasonal basis, leaving very little opportunities for the professional and economic growth of all these vulnerable households. Knowledge is kept in the hands of the Western professionals, and their investments on ameliorating the infrastructure are too minuscule to represent a valid trade-off.

This non-inclusive model largely depends on the constant flow of capital, which necessarily come from foreign investors, creating an unbreakable cycle of dependency. Technology-based land exploitation has caused the environment to be degraded, and has substituted traditional sustainable and labour-intensive agriculture with intensive use of fossil fuels, pesticides, and widespread deforestation. The loss of biodiversity of large-scale monocultures and the destruction of large forested areas weakened the ecosystems against unexpected weather changes and other natural disasters.

Deforestation and greed

The constant demand for crop and grazing land, as well as wood for fuel and construction, have a tremendous impact on soil conservation and weather management. Deforestation, in particular, is one of those problems that, if left unchecked, may cause a planetary disaster.

Africa’s tropical rainforests include the Guinean forests of West Africa and the Congo Basin, which comprise the second-largest forest cover in the world. However, according to Professor Abraham Baffoe, Africa regional director at Proforest, this immense “world’s set of lungs” is rapidly disappearing. At the beginning of the 20th century, Ethiopia’s forest coverage reached almost 40%. Year after year, almost 200,000 hectares of forest were lost; by 1987 it was reduced to just 5.5%, and in 2003 it had gone down to a mere 0.2%. According to Innovation for Poverty Action (IPA), between 2000 and 2010, Uganda lost forests at a rate of 2.6% every year. Over the last century, West Africa has lost almost 90% of forest coverage.

Losing forests has devastating effects on the indigenous population, the local ecosystem, and the global environment as well. Forests are critical to lowering carbon dioxide levels in the atmosphere, to stabilising the weather, and preventing soil erosion. Among the highest causes of carbon emissions from human activity, deforestation is the second after burning fossil fuels, accounting for approximately 20% of world greenhouse gas emissions.

Soil erosion alone may cause the drying of lakes, such as in the case of the three lakes in the Rift Valley that recently dried up. As the soil is massively washed into the lake, the water is pushed up to a larger surface and rapidly evaporates. Without water, droughts ensue, causing famine, starvation, and poverty.

An estimated 100 million African people rely on forests for support and finding freshwater, food, shelter, and clothing. Forests support biodiversity as well, and many plants and animals only exist in these regions. Without forests, many animal species, such as chimpanzees, are endangered since they can’t survive without their habitat, and entire towns are at risk of rainforest flooding.

Africa’s tropical rainforests include the Guinean forests of West Africa and the Congo Basin, which comprise the second-largest forest cover in the world. However, according to Professor Abraham Baffoe, Africa regional director at Proforest, this immense “world’s set of lungs” is rapidly disappearing.

But the ecological devastation caused by the alleged modernisation of agriculture is not the sole reason behind the massive deforestation occurring in Africa. African forests store 171 gigatons of carbon, and there is a wide range of different interests swarming around them. Everybody wants to put their hands on this gigantic loot, no matter the consequences for the local populations or climate change.

The frequent conflicts that ravage the continent take their toll on forests as well. For example, after the South Sudan crisis in December 2013, nearly one million refugees, mostly women and children, have sought shelter in nearby Ethiopia and Uganda. Once there, they started chopping wood to build their encampments and to fuel their stoves. This had a significant impact on local forests, according to experts.

The impact of corruption on deforestation

Corruption has a tremendous impact on global deforestation. With 13 million hectares lost each year, the Food and Agricultural Organisation (FAO) has identified the illegal timber trade as one of the principal causes of forest loss. The estimated value of illegal forest activities accounts for more than 10% of the value of worldwide trade in wood products. And corruption in the forest sector may increase the cost of forestry activities by about 20%.

Most countries in Central and Western Africa that are particularly rich in forests and other resources score particularly low on the Corruption Perceptions Index (CPI), a global index of public sector corruption established by Transparency International. Without a transparent and democratic administration whose framework is built on solid ethical principles, the land rights of local communities and marginalised groups are constantly violated. In sub-Saharan Africa, one citizen in two had to pay a bribe to obtain a land service, such as registering land for his household.

The forest sector is especially vulnerable to grand and petty corruption activities because of the non-standardised but high-priced timber products and low visibility. Government officials often collude with powerful European, American, or Asian companies since they offer forest as a highly valuable commodity in exchange for power and money.

Many indigenous populations have no access to information and justice, cannot claim their rights, and have no chance but to bend the knee when land grabbing laws are enforced by corrupt governments. Foreign companies know how easy it is to violate national regulations and often do so with total impunity knowing that punishment would probably be very light. Funds generated from the profit of the forests are usually embezzled or siphoned out of the continent to be laundered through complex schemes of multi-layered shell offshore businesses. Money that could be invested in social services, jobs, and better infrastructure ends up being devoured by greedy officials, money-hungry corporations, and shady smugglers.

Reforestation and other plans to restore Africa’s forests

Luckily, not all is as bad as it seems. Ethiopia has just started a restoration process that includes a reforestation programme that should replace 22 million hectares of forests and degraded lands by 2030. Even better, in 2018, the government finally revised the National Forest Law to provide better recognition to the rights of local communities and acknowledge their importance in managing lands and crops. The new law also includes much more severe penalties for those who endanger forest ecosystems or who extend farming into natural forests.

Corruption has a tremendous impact on global deforestation. With 13 million hectares lost each year, the Food and Agricultural Organisation (FAO) has identified the illegal timber trade as one of the principal causes of forest loss.

In Uganda, Project Kibale focuses on restoring the Kibale forest and has managed to restore 6,700 hectares of forest so far. On lands owned by subsistence farmers, the Community Reforestation project coordinates hundreds of small community-based tree planting, education, and training initiatives. Similar projects are in operation in Kenya as well, such as Carbon Footprint, B’n’Tree, WeForest, and the Green Initiative Challenge.

Although certainly commendable, many of these reforestation efforts simply seem to be a Band-Aid on a gaping wound. The core problems – corruption, grossly uneven distribution of power among players, and poorly-designed regulations – are not addressed at all. The handful of trees that get planted only help these parasites to get more wood to harvest in due time.

It can also be argued that many of these brave steps toward sustainability are nothing but green rhetoric spin for Western audiences. Wilmar’s hypocrisy, for example, was exposed back in 2015. The multinational of palm oil had abused human rights in Indonesia for years, expropriated lands with no qualms, polluted the environment, and destroyed crops and forest in large areas. After being named by Newsweek as “the world’s least environmentally-friendly company” in December 2013, the palm oil giant adopted a “no deforestation, no peat, and no exploitation policy” and became a champion of environmentalism. However, this was just window-dressing that was rapidly unmasked in subsequent years by NGOs in Uganda, Nigeria, and Liberia. The icing on the cake? In previous years, Wilmar was financed by none other than the United Nations International Fund for Agricultural Development (IFAD).

Conclusion

When the rules are made by those who dominate the markets, globalisation becomes a source of profound inequalities. The blatant asymmetry in bargaining power between the global superpowers and the global South has all but abolished the few safety nets that national laws could provide. All the regions that are rich in resources and commodities are quickly transformed into no man’s lands where the indigenous populations become unwanted guests to be displaced. Entire ecosystems are ravaged and exploited, no matter the consequences. And when newer, fairer rules are established by a more ethical administration, they are rapidly dismantled by leveraging corruption and bribes.

The word “development” has been mentioned so many times that it is now empty and meaningless. Nonetheless, the only way to shift toward a more sustainable economic system is to focus on the real development of African countries. Reforestation is just palliative therapy that is trying to heal some of the wounds of an already terminally ill patient. Africa can flourish only through a more radical approach that allows Africans to grow, develop, and fully exploit the immense value of their enormous resources instead of leaving them in the hands of foreigners and global corporations.

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The Persistence of Small Farms and the Legacy of the Monoculture Mindset in Kenya

12 min read. PAUL GOLDSMITH explores the evolution of agriculture policies in Kenya that failed to recognise the importance of smallholder farming, which has proved to be more resilient than large-scale agriculture projects.

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The Persistence of Small Farms and the Legacy of the Monoculture Mindset in Kenya
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I once drove up the eastern side of Mt Kenya with a manager working in the California horticulture industry. We passed through the Mwea irrigation scheme’s mosaic of rice plots and the smallholder coffee zone in Embu. After crossing the Thuchi River, we transited through the mix of tea farms, coffee plots, and patches of small fields of maize, pulses, and bananas framed by the heavy tree cover blanketing the hills and valleys. The Meru lowlands stretched out to the east, the miraa-dotted slopes of the Nyambene Hills loomed close as we approached Meru town. In the space of three hours we had transected one of the region’s most agriculturally variegated and productive landscapes.

Two days later we drove across the northern saddle of the mountain, leaving the smallholdings created by late colonial-era settlement schemes before cruising past the wheat fields of Kisima and Marania farms and their neighbours. The road carried us past the uniform blocks of horticulture farms and greenhouses stretching across the high plains of the mountain’s northwestern quadrant en route to Nanyuki. Over a plank of some insanely delicious beef at one of the town’s famous local nyama choma joints, my guest tells me she was impressed by the kick-ass agriculture she saw during our trip.

I remarked that we had crossed an area that produces the world’s best tea, some of the planet’s premier Arabica coffee, and the country’s most sought-after potatoes, French beans and other vegetables that grace European tables. I also informed her that we had skirted the range hosting Africa’s most sophisticated agroforestry system, home to the Horn region’s most prized Catha edulis.

“That’s interesting,” she said, clarifying that she was referring to “the area of proper farms we passed through this morning”.

Kenya’s agriculture generates approximately 24 per cent of the country’s GDP, 75 per cent of its industrial raw materials and 60 per cent of the country’s export earnings. Approximately 26 per cent of the earnings are indirectly linked to the sector through linkages to agro-based manufacturing, transport, and trade.

The sector is a major employer, with an estimated 3.8 million Kenyans directly employed in farming, livestock production and fishing, while another 4.5 million engaged in off-farm informal sector activities. Agriculture remains a key economic sector with significant unexploited potential for adding value through post-harvest processing.

The relationship between large-scale and small-scale producers in Kenya continues to evolve. Smallholder farmers generate the larger portion of overall agricultural value; large farms are still critical contributors to domestic food security and export production while pioneering new technologies and marketing arrangements.

Kenya’s agriculture generates approximately 24 per cent of the country’s GDP, 75 per cent of its industrial raw materials and 60 per cent of the country’s export earnings.

The economists and policy-setting bureaucrats at the World Bank and other important financial institutions, however, now question the small farm sector’s capacity to satisfy Africa’s future needs. The experts have tacitly supported the controversial trend of external investors’ acquisition of the continent’s underexploited land to develop capital-intensive plantations and ranches. Agricultural progress means big fields, straight lines, greenhouses, and large grids of sprinklers, as the comments of the manager reaffirmed.

The rise of monoculture

Assumptions about the superiority of large-scale agriculture have remained unchallenged since the migration of Europeans to the Americas, Asia, and Africa. They came, saw, conquered, and converted the wide open spaces they found into plantations producing sugar, cotton, rubber, tobacco, soybeans, and a long list of other crops for export to the industrial world.

When European diseases decimated the indigenous inhabitants in the New World, the planters plundered Africa to replace them. Steam powered the Industrial Revolution; colonial plantations and mines provided the raw materials. The textile mills of Lancashire generated the profits financing Great Britain’s global empire, and America’s South supplied the cotton.

Large-scale agriculture’s global hegemony grew out of military firepower, capital, technology and ruthless exploitation of labour, not superior crop and animal husbandry. The reign of King Cotton, for example, relied on increasing quantities of land and imports of African labour to compensate for rapid soil fertility decline. Southern land owners were poor farmers who added little value to the development of their agriculture beyond the use of the whip and the noose.

Class dynamics also contributed to the rise of the large commercial farm. The working conditions of the working-class adults and children working the looms was only marginally better than that of the slaves producing the fibre. Growing numbers of the freehold farmers in Europe who were driven off their land avoided this fate by crossing the Atlantic Ocean, attracted by the US government’s recruitment campaigns offering access to land. The industry of the displaced farmers powered the nation’s westward expansion. The American Civil War decided the contest over which system – freehold or plantation – would dominate in the virgin lands beyond the Mississippi River.

Large-scale agriculture’s global hegemony grew out of military firepower, capital, technology and ruthless exploitation of labour, not superior crop and animal husbandry.

The outcome was the same. Within several decades, the massive herds of bison were decimated and the indigenous inhabitants reduced to paupers on reservations. Science and technology came into play. The impressive advances generated by agronomic research and mechanisation extended the ascendency of commercial farms and plantations into the modern era. Economies of scale enabled by railways and the steamship extended the dominance of single commodity farming systems across the world.

Relegation of pre-industrial agricultural populations to the status of pre-scientific peasants preceded the imperial occupation of Africa. The Europeans established their plantations and large farms across the continent’s savanna and highlands. Like the colonialists before them, both capitalist and socialist governments’ rural policies were predicated on the need to introduce modern scientific agriculture. The choice was as basic as the difference between a tractor and a short handle hoe.

The Kenya conundrum

A matrix of physical, climatic, spatial, and social factors complicated the installation of large-scale agriculture production in Africa. Agriculture played a singular role in the development of the modern Kenyan economy, but commercial agriculture and ranching developed by European settlers are only partially responsible for the sector’s progress.

Free land and inexpensive labour facilitated the establishment of commercial farms during the early decades of colonial rule. Drought, locust invasions and crop losses to pests and wild animals, and to vector-borne diseases posed a serious challenge. The effects of the latter were minimised by quarantining the locals in native reserves and demarcating the band of ranches that ring-fenced the so-called White Highlands. Not all the white settlers survived; some left to start over in colonies to the south, but those who stayed on prospered with the assistance of the colonial state.

After World War I the government offered land concessions to war veterans boosting the population of approximately 6,000 white settlers in 1917 to 20,000 in 1936. This abetted the diversification of the new estate sector, which came to encompass coffee, tea, cattle, sisal, cotton, wattle, and other export commodities that sustained the colony’s finances. Expansion raised the demand for African labour while fueling frictions over land between settlers and their African neighbours. It also made managing settlement considerably more difficult for the government and civil servants in the countryside.

Indigenous producers evolved intricate mechanisms of adaptation and risk management to shifting environmental conditions and chronic climatic instability. The over 100,000 African squatters on European farms by 1947 demonstrated their resilience in new circumstances. Despite the restrictions they faced, they out-performed the owners in many ways. The surplus reinvested in livestock led to competition for pasture on the estates, and this prompted restrictions limiting the size of cultivated plots and the number of livestock the Africans were allowed to keep. The number of days of labour owed to the estates also increased over time, doubling from 90 to 180 days a year.

Dependence on native labour in effect led to the parallel development of two distinct large-scale and small-scale systems on the same landholdings at the same time. The contradictions inherent in this situation, combined with the political threat of the Mau Mau, forced a rethink that led to the Swinnerton Act in 1954, which opened the way for the production of export crops in the African reserves.

The sectoral duality generated by these developments has vexed Kenya’s agriculture policy ever since. Kenya gained independence committed to preserving the economic stability provided by the estate sector while satisfying the political expectations of its citizens. The latter translated into the transfer of settler lands under the Million Acre Scheme, support for the cooperative movement, and the deployment of small farmer extension services.

The structural inequalities symbolised by the contrast between the landed elite and the masses nevertheless fueled strident opposition to the Jomo Kenyatta government. Kenya’s status as an island of stability in a turbulent region encouraged international support for the development of schemes and projects mirroring a succession of theories and economic models debated by academics and institutional experts.

One critic of international development accurately described these interventions as policy experiments. Some worked and many did not. The funding flowed despite the repeated failures epitomised by the large agricultural projects dating back to the doomed Tanzania Groundnut Scheme. Attempts to rectify flaws in the Bura Irrigation Scheme, the world’s most expensive at the time, proved futile when the Tana River changed course.

How do we explain the failure to acknowledge the results of such “experiments”?

In a 1988 article, Goren Hyden attributed the syndrome to Africa’s monoculture legacy, which he defined as “mono-cropping in agriculture, single fixes in technology, monopoly in the institutional arena, and uniformity in values and behavior.” The rise of hegemonic economic monocultures, he went on to observe, are usually preceded by a period of competition and experimentation.

No such selectionary forces informed the large-scale solutions designed to alleviate Africa’s agriculture malaise. The continent’s initial conditions were different. The unique regional political economies of the precolonial era did not count. The formal protocols governing exchange among diverse communities were obsolete. The need to differentiate between size and scale did not apply.

Small as the new big

Africa’s lost decade highlighted the neglect of small-scale farmers. In an article in the same edited volume featuring Hyden’s monoculture legacy thesis, Christopher Delgado noted, “It is unlikely that more than 5 five cent of current African food production comes from large farms. A 3 per cent growth of productivity of smallholders would be equivalent to a 60 per cent growth of productivity on large farms.”

This point segued into the large body of empirical evidence marshalled in support of a new policy focus on the smallholder sector. But there was a problem, as he and other pro-smallholder analysts recognised: The high variability in conditions and circumstances within and across African countries complicated cost-effective delivery of the services, inputs, incentives, and infrastructure need for the interventions to pay for themselves.

One critic of international development accurately described these interventions as policy experiments. Some worked and many did not. The funding flowed despite the repeated failures epitomised by the large agricultural projects dating back to the doomed Tanzania Groundnut Scheme.

Asia’s breakthrough was an outgrowth of substantial international research supported by national research centres into two basic commodities. The same approach has not worked in Africa because technical enhancements need to contend with multiple crops systems, variations in soils, spatial differentials complicating access to water, markets, and service, local pests and diseases, transport and communications infrastructure, and political variables linked to ethnic constituencies, to name a few of the factors determining the productivity of small farmers.

Research attesting to the more efficient per capita and land unit output of small farms also indicated that there was still considerable scope for raising household incomes by enhancing the productivity of labour. The Kenyan government’s support for small-scale dairies, tea production, and the efficacy of extension services furnished proof. Like the case of colonial squatters before them, smallholder producers began outperforming the large farms and plantations.

Kenya and its bimodal policy frame was often cited as a success story at the time, but was this because government policy focused on concentrating the limited resources available in relatively fertile areas? The failure to replicate these successes further down the ecological gradient invoked a more complicated set of variables.

Other state-supported initiatives, such as smallholder cotton, floundered, and even a tested policy like fertilizer subsidies proved difficult to implement because the cost of delivering the input to small farm households often ended up cancelling out the benefits, especially during years when low rainfall or other external factors reduced output.

During the early 1980s Kenya’s agricultural sector reached the zenith of its development under state control. A matrix of factors, including lower prices and higher market uncertainty, declining civil service terms of pay, gradual closure of the agricultural land frontier, and the highest demographic growth rate in recorded history explain subsequent developments.

Institutional entropy set in. The food security problem became a full-blown national crisis around the same time as government mismanagement of strategic maize reserves exacerbated the impact of the 1984 famine. The food catastrophe marked a turning point, concretising the case for the structural adjustment policies that came into effect during the following years.

The donor-mandated policies included foreign trade liberalisation, civil service reforms, privatisation of parastatals, and liberalisation of pricing and marketing systems, which later involved relaxing control of government agricultural produce marketing and reforming cooperatives.

Increases in quality and efficiency tend to translate into lower commodity prices over time, and the same appeared to hold for institutional reforms. In any event, the policies designed to increase efficiency and decrease state involvement in the economy did not reverse the decline in agricultural production. Declining prices for traditional agricultural commodities and Africa’s terms of trade in general was seen as emblematic of a larger malaise stemming from poor governance and economic mismanagement in Kenya and other African countries.

Although most Kenyans blamed the Daniel arap Moi government, the less than creative destruction wrought by the penetration of capital and primitive accumulation by state-based actors was the real culprit responsible for the economic carnage that followed in its wake. The outcome was “a quasi-stagnant society” qualifying the observation Thomas Picketty offered in his 2014 book, Capital in the Twenty First Century: “wealth accumulated in the past will inevitably acquire disproportionate influence”.

In Kenya, the consequences included the revolt of smallholder coffee farmers in Nyeri, the burning of sugarcane fields in western Kenya, the collapse of cooperatives, an increase of subsistence production on small farms, the commercialisation of livestock raiding in the rangelands, and the rise of cartels that seized control of export commodities and local produce markets.

The situation in Kenya was symptomatic of the forces that eroded the impact of the pro-small-scale agriculture policy framework that had gained traction during the same period.

The release phase and agrarian transition

Subsequent developments in rural Kenya invite us to revisit Picketty’s choice of words in the observation cited above: the reference to “quasi-stagnant” is indicative of a larger dynamic. From an ecosystems perspective, the turbulence arising across Kenya’s agricultural sector and the hollowing-out of state institutions corresponds to the release phase in ecological cycles.

The role of forest fires that remove old growth, allowing regrowth and revival of species suppressed by the canopy of large trees, is the standard example used to illustrate the release function. In the context of human societies and other complex systems, it refers to transitional episodes in “an adaptive cycle that alternates between long periods of aggregation and transformation of resources and shorter periods that create opportunities for innovation.”

For present purposes we can equate Picketty’s quasi-stagnation with the onset of a transitional phase of reorganisation leading to renewal. Support for importation of large-scale capital-intensive agriculture to meet Africa’s future needs, in contrast, correlates with the old school ecological succession model. The degradation of rangelands resulting in the replacement of overgrazed grass and shrubs by less nutritious invasive species is a common example.

The African land grab by foreign investors now taking place in many sub-Saharan countries is in effect a case of replacement substituting for the adaptive processes underpinning indigenous African production systems. The government’s willingness to allocate large tracts of Tana Delta land as an incentive for foreign government investment in the LAPSSET mega-project is an example of this replacement strategy in Kenya.

I was part of a team that undertook a three-year study of commercial agricultural models in Ghana, Kenya, and Zambia. Initially motivated by the problem of large-scale agribusiness investments, the research design focused on three models: large commercial farms, plantations, and contract farming. The team’s general conclusion underscored the emergence of large- and medium-size commercial farms in the three countries.

Although most Kenyans blamed the Daniel arap Moi government, the less than creative destruction wrought by the penetration of capital and primitive accumulation by state-based actors was the real culprit responsible for the economic carnage that followed in its wake. The outcome was “a quasi-stagnant society”…

My personal take was slightly different, and although they may be particular to our Kenya research, two issues warrant mention. The first is the resilience of smallholder households in our surveys and life histories.

Without getting into the intricacies of the data, several factors support this. The time series data showed improved food security for most of the households sampled, and a corresponding decline in conflict over land: only one respondent complained about the ownership of the large farms and plantations in the area.

While the poorer families were hard-pressed to make ends meet, the diversification of income generation strategies indicate that even a small half-acre plot defrays the cost of food purchases while providing a base for participating in the rural economy.

High levels of mobility within the region and a general trend of reversed urban migration add further support to this point. For example, urban unemployment rates of 19.9 per cent for 2009 and 11.0 for 2014 per cent were about double of rural rates.

The process of consolidation underpinning the large farm formation across agro-ecological zones is underway, but it is slowed by the reluctance to sell land and a correspondingly high incidence of leasing land. This is also true for large holdings outside our Mt. Kenya research area, such as the Rift Valley, where owners are holding on by leasing out parcels to smallholders. The successful estates and horticultural firms have developed mutually beneficial links with their smallholder neighbours. This is based on outsourcing production, the sharing of technological innovations from the production of certified seed potatoes to electronic wallets facilitating rapid and verifiable payments to contract farmers, and multi-stakeholder participation in the management and conservation of water sources.

While the poorer families were hard pressed to make ends meet, the diversification of income generation strategies indicate that even a small half-acre plot defrays the cost of food purchases while providing a base for participating in the rural economy.

Our sample divided the household into two categories: those involved with the large commercial farms and those who remained independent. The scores for involved households were significantly higher for crop yields, fertilizer use, income, and most other variables. All of these observations attest to the synergies generated by the large-scale small-scale symbiosis that began to emerge during the final years of the colonial era.

This brings us to the second point – the enduring influence of the monoculture mindset. It resurfaces in the World Bank’s categorisation of both large and small organisational units’ contribution to the continent’s socio-economic transformation. Dualities deceive; learning by trial era works.

The elephantine LAPPSET project, the hallucinatory Galana-Kulala scheme, the government’s Big Four agenda, all suggest that the Chinese version is more of the same.

 

Written and published with the support of the Route to Food Initiative (RTFI) (www.routetofood.org). Views expressed in the article are not necessarily those of the RTFI.

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