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MOVING BOUNDARIES: Building bridges in a Kardashian world

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MOVING BOUNDARIES: Building bridges in a Kardashian world
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We live in a world where our certainties, including lines in the sand, the imagination of our boundaries, are crumbling. We are in a season where one of the most significant struggles is that of giving a name to the realities of our now. You know the landscape through which our metaphorical boundaries intend to creep: the rise and re-entrenchment of global tribalism—euphemised as alt-right (isn’t that the new non-word being bandied about?), nationalism, Brexit, regionalism, partisanship, supremacy, tribalism, and its evil sister, the extensive, thorough, strategic demonisation of “the other”. Naturally, history repeatedly tells us how this will end – a human frenzy that accelerates into an unstoppable, diabolic rage that will result in some horrendous mass bloodletting that will lead survivors to another round of shame, guilt, regret, outrage and the promise (again) of “oh no, never again”.

Here is a world where an unrepentant sound-bitey demagogue has taken the seat of authority in the world’s most powerful nation, his pointing finger just a breath away from an Armageddon nuclear holocaust button. He got there through a democratic process, a free and fair election fairy tale. In this we can read how the boundaries of “civilisational” paradigms now reveal themselves. This, friends, is supposed to be the apex of democracy, the great adventure our nations are walking towards.

Watching The Donald gloat and heckle his way across the United States to the roaring approval of enraptured masses beggars one’s previous notions about America. The more things change, the more they stay the same. Adolf Hitler would have been impressed. For an African person from Africa, the scenes unfolding are uncomfortably familiar. As much as I enjoy (yes, I admit, it is petty) the discomfort of a few American acquaintances struggling to embrace the consequences of choosing that orange-hued leader of their free world, I am forced to contend with a Trump-led earth. (Mind you, there are also Teresa May and Marie le Pen on the sidelines.)

What the American election process points to is the reality of our limits. It indicates how dogmatic insincerity couched under political correctness and glossy branding will collapse under the pressure of the actual choices of the human heart. The fact that a tribal supremacist wins precisely because he is a tribal supremacist implies that there are far more hidden worlds within the imagined, idealised America, and indeed within our world and within the African continent. The questions that traverse the heart find answers one way or another, whether we want to hear the truth or not, even if, in the USA’s case, the truthful answer is Mr. Donald Trump.

Watching The Donald gloat and heckle his way across the United States to the roaring approval of enraptured masses beggars one’s previous notions about America. The more things change, the more they stay the same. Adolf Hitler would have been impressed.

Let us gesture to some of the questions that may be lurking within these present boundaries of the human heart. None of these questions are ever likely to be answered because to do so would demand that the myths and brands by which we insist on defining our worlds would have to be dismantled. Few are ready to do this. Here are some of those questions:

Would there have been an immigration surge and an ISIS if the United States had not moved boundaries, defied international protocol, manufactured lies to invade and destroy Iraq and Afghanistan and then continued blithely with the annihilation of Libya? Why is there such a massive build-up of war tools right now in so many corners of the world, including Eastern Europe? Is the world preparing for a gigantic-scale war? Why is Russia being turned into a global pariah using the same format that was created to justify the wars in Vietnam, Iraq, Afghanistan and Syria (which failed)? To what purpose? Who benefits the most from the wars in the world? Since all weapons carry serial numbers and if the United Nations is truly desirous of ending wars, why has the UN not been able to sanction the sources of these borderless weapons? Is it because the countries that manufacture these weapons are the UN’s main funders?

Instead of confronting such questions, what we as a human race prefer to do is to bury these questions with our hysterical laughter at the antics of the gruesome Kardashians, who have been turned into a signal icon for human regeneration, aspiration and forgetfulness. We prefer Pollyanna-ish and Orwellian newspeak, with Tinker Bell descriptions, such as “collateral damage”, to disguise and deny the reality of our fears, discontent, terror and confusion. Meanwhile, the earth is reeling. If it is not from angry persons plotting doomsday scenarios, then it is a climate woundedness that sees a never-before-experienced scenario of the melting of the North and South Poles. The seas are rising.

As a response to such existential global uncertainty, the UN, in its wisdom, appointed Wonder Woman – the pneumatic-bosomed illusory white female caricature with a wasp’s waist who wears the American flag as underwear – as the honorary Goodwill Ambassador for something called the Empowerment of Women and Girls. It was a solemn ceremony. When this happened, the world should have realised that our world was truly and royally…buggered (if I may use this most satisfyingly descriptive Anglo-Saxon expression).

Instead of confronting such questions, what we as a human race prefer to do is to bury these questions with our hysterical laughter at the antics of the gruesome Kardashians, who have been turned into a signal icon for human regeneration, aspiration and forgetfulness.

We are living in the eye of the storm of that popularised curse/blessing wrongly attributed to China: May you live in interesting times. The closest Cantonese expression refers to a clown in and of current time. Clowns. Rather apt. Still, the forces of nature, space, time and whatever else seem to have unleashed a whirlwind that is driving the world as flotsam and jetsam. We feel it, we see it, we read the signs, but do not dare to construct a lexicon for this.

In a season of such terrifying flux, borders are a moot point. Frontiers will have to be re-imagined and probably called something else. The human person will also have to reconsider who or what it is. Pope Francis has dared to call this time as that of a piecemeal World War III. We freak out. Yet the possibility that an apocalypse has erupted beneath our living room couches while we keep up with the Kardashians is real.

Boundaries are already in movement; the future is in a state of uncertainty. You have already witnessed (the edited versions of) millions of humans escaping historical homes out of existential distress; they walk deserts, they cross boundaries, crash through frontiers, tear down electric wire fences and sail across wild seas in rubber dinghies seeking safety, hope and a home. The last mass movement of this kind – human journeys into harbours that throw up gates against them – was during World War II. But they keep moving. To what? Where? Transcending boundaries? You have seen the pictures of some of our Africans who have sought to leave for the imagined nirvana of elsewhere now turning the Mediterranean Sea into a cemetery. Meanwhile the African Union, among other African institutions, sustain their impeccable record for profound silences about matters that truly matter to their citizens.

There are other boundary movements that slip off the radar. I am not sure why this is the case, considering that these are bigger than any other migrations taking place in the world right now. I refer to the massive Chinese influx into Africa—official figures are one million, unofficial figures double that – persons now spread throughout the African continent. Mandarin is now a factor of African social and linguistic realities. The blend of cultures and the fruits of such a union through Sino-African children is more apparent now. I ask you then, is the next African decade a Chinese one? If you want to explore African boundaries, look to China. (I am being facetious.)

Great resource finds on our continent, coupled with an awareness of a lack of these resources in other parts of the world, have also increased the populations of persons of Caucasian descent living in Africa. The numbers are always disputed and minimised (the International Organisation for Migration has no figures for current European migration into Africa) because this sort of human movement does not subscribe to a favoured mythology. The figures for these are also in excess of a million, with Angola and Mozambique (in the time of the European economic crisis) receiving together over 700,000 young European economic migrants who settled there to start new lives. Migrant crisis, anyone?

Back to this season of wordlessness.

We feel, see, and hide from what we are most uneasy about. We prefer to draw a line across what does not conform to our delusion or brand of the world. We are silent before the unceasing bloodletting. We skip past the news of the slaughters in Uganda, Congo, Central African Republic, Myanmar, Yemen, Syria, Iraq, and entire communities living within the Amazon. We ignore the water wars in the US and the soul-destruction in detention camps worldwide, including that generated by Australia’s own Faustian pact with Nauru, and more significantly, in the Auschwitz-like American concentration camp in Guantanamo Bay – that grotesque giant stain on the human conscience that many of us who proclaim, study and articulate human rights choose to ignore.

How is this even possible?

What is the reality of lines drawn out in a world where the best resources available are dedicated to renewing, reinventing and valorising tools of human violence and destruction to which we have acceded power, and now, with reference to drone warfare, handed over a moral impetus to? A boundary-less machine can be directed to choose whether a human being anywhere in the world lives or dies. Is this the pinnacle of civilisation?

We feel, see, and hide from what we are most uneasy about. We prefer to draw a line across what does not conform to our delusion or brand of the world. We are silent before the unceasing bloodletting.

For a long time, the greatest threat to civilisation was imagined as an invasion from a powerful galactic force: aliens. Yet all this time the alien was us – a strange race that both cannibalises and worships itself. The only ones capable of and willing to and particularly invested in destroying the earth in a cataclysm is us…. And we are willing to do so for the most spurious of reasons: to prove the primacy of our pitiful ideologies so that we can be emperors of a swamp.

Exceptional? Ha!

The world’s latest atavistic impulse is one that is imbued by a virulent Islamophobia. It is unbelievable and unconscionable that the same world that not too long ago learned that an abhorrent depiction and dehumanisation of a peoples could lead to the slaughter of the human soul, the bestial behaviour of human beings and the destruction of the core of human decency can now regurgitate that evil to visit it anew upon others.

If 45 per cent of our African population is linked to Islamic mores, how can we allow this repugnant paradigm to take root unquestioned by our individual and collective sensibilities? Africans, with your endless silences as still as yoghurt, do you even comprehend what this means for your cultures and identities? What happens to being and belonging when by virtue of your facing Mecca in prayer you become defined as a “terrorist-in-waiting” by a culture and paradigm that prefers and perpetuates a most idiotic and ignorant lens to explain away an actual human and existential crisis, the primary purpose of which is the sustenance of a lucrative war and suffering ecosystem?

You and I have experienced the progressive and strategic framing of this horrible lie until it has acquired the semblance of truth—a post-truth that becomes a post-reality reality. And in this matter, not once have I heard an African reframing an African reactiveness. Not once. Africans, your boundaries of existence are receding and you are blind, deaf, dumb and stupid to it. Your governments have even designated your own soldiers to blow up a portion of your own population and to hold them in suspicion because they proclaim “Allahu Akbar”.

The consequences of such extremes of human foolishness manifest in weird new cultural practices. Allow me to be regale you with the tale of a rather senior World Bank official who upon arriving in Johannesburg – her first visit to Africa – showed up surrounded by six, giant, heavily- armed and helmeted security guards who looked like pumped-up black beetles on steroids. The guards had been hired to protect her from the violence of her vivid imagination. I would have done anything to enter into her senses as her plane door opened to a view of the South African city. She proceeded to painstakingly sustain her delusions even as she trip-tropped, trip-tropped all over Sandton Mall like billy goat gruff, needing to justify the expenses of a psychosis created by a cultural commitment to wallow in profound benightedness. What is the language for these new modes of human strangeness?

This, our amputation from both reality and humanity, are the consequences of an investment in an unsustainable idea of the world and its humanity. It is a gross alienation from what should bond, bind and build. You speak of boundaries and bridges, tell me, what types of structures have you called forth to overcome a refusal to experience, even in difference, the humanity of another? What kind of boundaries are you proposing to transcend the now embedded human fear of other humans? We are pleased to invest in propaganda infrastructure to peddle disinformation. We define phrases like “collateral damage” to sanitise and conceal the reality of millions of wilful, innocent murders and the destruction of hospitals and homes for which there are no Nuremberg trials.

Donald Trump appointed the head of the Pentagon a man, who if the principles of Nuremberg were to be applied, should be hanging at the end of noose, until dead. But this man is to oversee the largest war arsenal in the history of humanity under the leadership of an erratic being. Behold your world.

This, our amputation from both reality and humanity, are the consequences of an investment in an unsustainable idea of the world and its humanity. It is a gross alienation from what should bond, bind and build.

With this in mind, what does it mean for you and me to be a human being now? Even with enhanced consciousness of the cosmos and the universe, why are some more still more human than others? Nothing speaks so much to this than the visa application process to which most Africans are subjected. Name of grandmother? Bank account details? Are these people insane?

Even with new revelations shared with us by those seekers, in say, the world of quantum physics or cosmology, why is the prevalent operating mythology still epitomised by the vacuous Kardashians? Why do we prefer that? Even with what we have heard about the awesome wonders of human possibility, why is the inclination that of a willingness to be hypnotised into forgetting reality, to persist in the visiting of such gross wounds on an already suffering world today?

It is no secret that “human rights” are enforced by one set of people and directed at select others. Interpretations vary, of course. They do not stand a chance when confronted by the phrase “extraordinary renditions”. In October 2016, a woman-crushing, human-beheading, Yemen- invading Saudi Arabia was voted into the UN Human Rights Council to replace the newly designated pariah of the Occident, Russia. All I will say about that is that it is only a matter of time before the collective human soul gets weary of its own hypocrisy and calls a time out. Wither your boundaries now? To you who live in these extraordinarily conflictual times, what language have you created to match its demands? What does “boundary” actually mean for a time such as this?

Language is a road map and a blueprint, a provider of impetus, a prophetic vessel. Yet we seem to be either too paralysed or far too implicated to be able to generate an intimately truthful lexicon that might transfigure this present, or at least allow us all to cross out of our present limits. Without language how do we intend to enter the depths of our present reality in order to even understand it?

The Kardashians are a colourful and hypnotic screen that shield us from reality. They are not alone. The latest poster child for our condition is poor Boris Johnson, the British Foreign Secretary. In October 2016, he declared that “Africa (the country) could do with some British values” so that the country Africa might join the league of humanity as structured by the vacuum of his imagination. I emphasise this, for in the delusional man’s version of the story of English incursions into other lives and cultures, there are no shadow, no demons, no hollows, no genocides, really no messy bits. His eternal soundtrack is Elgar’s Pomp and Circumstances No 1 in D minor.

He no doubt keeps up with the Kardashians.

Against this backdrop, now let me touch on aspects of my literary life. I am a citizen of an imagined space called Kenya, whose frontiers were created by an English cartographer when Kenya, the colony, was a British project. What changed in 1963, the day those who became “Kenyans” call independence day? I stated in a different forum how my experiences of the nation only assert to me that the infrastructure and edifices of the colonial state established after the genocidal invasion designed in 1884-5 in Berlin (purists get irritated when I persist in referring to this as the First World War) are still intact. The colour of the skins of the taskmasters may have changed but everything else progresses as it has for over a hundred and fifty years. For example, there is no day that trains stop taking Congo’s mineral resources towards the sea to the waiting ships of many foreign nations; not once have these trains stopped moving, even in the throes of serious bloodletting. Remarkable, isn’t it?

The people who receive the money are in former colonial capitals, while we waste time and energy asserting… what? Independence? From what?

I live in an Africa experiencing a second-wave invasion – a massive resource grab enabled by our amoral leaders who are mortgaging bounteous landscapes and signing up to massive unpayable loans with strangers. It is likely that within fifty years the great underclass on the continent will be, again, Africans themselves, newly bankrupted vassals of a new set of foreign masters deliberately invited in under our bemused gaze. It is said that history repeats itself especially when lessons first offered remain unacknowledged, unlearned and unresolved. The problem is not with the stranger. It is with us.

Anyway, given this, what moves storytellers of Africa? I don’t know about the others, but I shall tell you something of my own compulsion to search dimly lit places of the world and my continent; to live and then walk through the valleys of peoples’ shadows in order to try to make sense of the time in which I find myself; our framing, our place, our future in the face of so much.

I live in an Africa experiencing a second-wave invasion – a massive resource grab enabled by our amoral leaders who are mortgaging bounteous landscapes and signing up to massive unpayable loans with strangers. It is likely that within fifty years the great underclass on the continent will be, again, Africans themselves, newly bankrupted vassals of a new set of foreign masters deliberately invited in under our bemused gaze.

I love the gift of being human and sharing life. I love humanity. I love ideas that challenge, invite, inspire and grow life. I also wonder about, worry and want to fix life’s fragile and broken places, because something of this time inhabits me and sheds pieces of its ghosts upon my own story. I have a very Catholic urge to name demons, and stare at faces of the enemies without and within before seeking, as part of a collective, to exorcise these. I love the earth. It is a privilege to be here. I love the continent of my heritage. I love my country. The bigger arc of my literary life is a love story that craves a “happily ever after”.

So I roam the disciplines, a bit like a pickpocket. I eavesdrop into the thinking from everywhere; silos bore me. I work with words like a mechanic tinkering with leaky places in a marvellous machine. I am a bit of a pathologist, diagnosing a corpse for its cause of death, imagining that I might prevent a similar fate for myself and for what I love. I have wondered why post-colonial Africa became stunned and inarticulate about its world and stopped writing itself into the world with pens of fire. I try to witness those silences. I want the silences to give up ghosts and names so that I can write them as stories and offer them to light, and then with them find the treasure of peace.

My works also interrogate the notion of the nation. I do not believe it exists. In this post-truth world does that even matter, given the reality of the march of super companies and the fetishisation of money? More seriously, I also often wonder if a nation like Kenya and its people suffer a grievous moral injury in their core and memory. Do societies experience collective post- traumatic stress that is not yet framed in a socio-political lexicon? Some of the frameworks of Holocaust studies profoundly resonate with me as they explain much of Africans’ secret angst, all the things of shame, guilt and grief that remain unspoken.

I have wondered why post-colonial Africa became stunned and inarticulate about its world and stopped writing itself into the world with pens of fire.

My book Dust set me on that path when, after Kenya’s descent into hell in 2007-8, I needed to kick open painted-over tombs where we had nurtured our demons. It led me to wonder if ancestral trauma caused by a violence inflicted on the humanity of another lives out its irresolution by haunting succeeding generations. For most African nations, a horrible war was consolidated in 1885 in Berlin, and imposed itself upon them. It has never really stopped, despite the theatre of changing flags.

How do you move when all your energies are expended in circling, hiding and avoiding a grievous and existence-questioning wound? Do we imagine that the resonance of horror embedded in memory simply fades away? What do you imagine was and is the state of the soul of a man of old Africa experiencing the crushing deceptions and the betrayal of his hospitality by strangers? Who watches his known world disappear and experiences the total powerlessness and betrayal-by-silence of once favoured deities? I see no archiving about this by our people. This absence, I imagine, damages all parties. We have held no memorials for the destroyed. We use our boundaries to shield us from the past and its unrequited ghosts – people who are our brothers, mothers, fathers, ancestors, accusers. There is no “long ago” in the consequences of human deeds.

As a world and as a continent we have never grieved our excesses or our losses of self, families, community, worldview, gods, goods, stories, time, spaces, lands, archetypes and imagination in word, deed and thought. I posit that these live out their lack of resolution to the present. Is it from these too that we seek to escape through our boundaries? What does the now mean to a continent that was massively defeated in an undeclared brutal and genocidal war; a place where defeated men and women could do nothing when their wives, husbands, parents, lovers, sons, and daughters were seized, raped, sodomised, brutalised, mutilated and hunted in their presence?

Linked to this was the economics woven into intricate trade networks. Global monsoon networks reached into the continent’s own heart before reaching into China and Azerbaijan where an African diaspora has long existed. There was the trans-Saharan trade, the southern circuit that moved gold, ivory, gemstones to the coast. The space that is Africa has largely been made up of a people and culture in and of movement as a path to wealth, adventure, humanity and encounter.

What is the impact and implications of such losses of economic wherewithal that offered so many African cultures an access to the world on their own terms? These cultures were violently taken over way by assorted European trading companies that are the parents of the conglomerates we are familiar with today, who own, manage and control the resources of a continent that keep the world afloat. We do not talk often about this; if the conversations occur, I have not been a party to them. The responsibility for this lack of questioning rests squarely at our assorted African doors.

I wonder why in most cases, after fifty years of supposed independence, it is easier and cheaper for me travel to Paris and live there for two months than it is for me to travel to Ouagadougou from Nairobi. Why? We are a people who seem to have not only lost agency over our resources, but have also lost the endless scope of their actual and imagined existence in the basic of ways. For example, most Africans today have no idea that coffee is not all about Starbucks or Colombia and that the coffee culture – its identification and its use and consumption as a beverage, medicine and ritual substance – was originally, intrinsically and creatively African (Ethiopian, to be precise). Again, when I define the African milieu as encompassing all our seas and discuss African maritime imaginaries, many gawk at me as if I am speaking to them in hieroglyphics.

What bothers me the most as an artist is our wilful African unknowing, our wilful constraints – boundaries – to imagining, thinking, hearing and seeing. Are we then to move from ignorance to ignorance, a floating people disconnected from our own humus and unable to speak of it, not only to the world, but more painfully, to ourselves? A people whose story is limited, constrained framed and only retold by others, a story so small that ours becomes an existential battle of making our lives miniscule enough to enter into the categories created in order to not again suffer a brutal fate worse than death. Hovering above our psychic heads is the real fear of a return to the diabolic violence that can be unleashed at the whims of one culture that for the most part—apart from the Germans – has declined to examine its conscience and review its consciousness of life and humanity in the face of its impulse to atrocities and the denial of these.

I do worry about a post-independence Africa that lost its voice so much so that it is inarticulate before the realities of Libya, Somalia, Syria, Afghanistan, Iraq, Russia, Colombia Ukraine, Brexit or Trump. Only bystanders, or victims of fate, have nothing to say about their destiny. Only the long-dead have a right to such silence. How do we proceed to traverse into the present and future through the unknown territories of our being where there are neither bridge builders nor bridges?

What bothers me the most as an artist is our wilful African unknowing, our wilful constraints – boundaries – to imagining, thinking, hearing and seeing. Are we then to move from ignorance to ignorance, a floating people disconnected from our own humus and unable to speak of it, not only to the world, but more painfully, to ourselves?

There is a phrase we popularised in Kenya during election 2013: “Accept and Move On.” Moving on. It was assumed that the diabolic violence of the post-election violence of 2007-2008 could be commanded into silence. But the violence and its ghosts keep interfering with our present and feeding from it; we have known no psychological peace. We are caught in a death-roll of a putrefying form of corruption; we are consuming ourselves and are subject to a disgusting inner corrosion that emanates from a refusal to give a name to our horrors. You who speak of movement and boundaries, do you ever imagine that one of the keys to the future is buried in our many darknesses that require courage and humility to excavate in order to extract roots embedded in the past? Given that movement points to two directions, do we dare step into deep truth-telling in order to repopulate the present with what will set the future free?

Now, on a more optimistic note. The African continent plays host to the youngest of the world’s populations. It is called the youth bulge, or the demographic dividend. This lot looks at the world through other eyes. They host each other in their rooms. They travel fearlessly. They set up online literary platforms like Jalada.com—look it up – that think beyond boundaries and have, for example, translated a story by Ngugi wa Thiong’o into over a hundred languages, including Urdu. They code. They regenerate vocabularies. They milk sacred cows. They live, for the most part, an expansive imagination that has no lexicon attached to it yet.

The influx of new souls and cultures into a continent that thrives on variety is a great portent in more ways than it is challenging. Unlike the popularised consensus – not necessarily articulated by Africans themselves – I can also read the influx of the Chinese people into Africa through hopeful lenses. Cultural renewal through the intermingling and exchange of people has always been a force of transformation in the world. These combined forces – the youth and migrants – present an atypical movement impetus on the continent that perhaps promises a transformative idea of place that just may be able to bear the weight of this agitated world and guide it, maybe, into a more wholesome future.

This essay is adapted from a keynote address by the author at the 39th AFSSAP conference in Perth, Australia, on the theme “Africa: Moving the Boundaries” in December 2016.

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Yvonne Adhiambo Owuor is a Kenyan writer and the author of the much-acclaimed novel Dust.

Politics

African Continent a Milking Cow for Google and Facebook

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

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

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

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

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

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

Brick and mortar

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

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

‘Their revenue comes from me’.

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

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

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

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

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

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

Google Ghana is an ‘artificial intelligence research facility’.

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

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

Cash-strapped countries

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

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

Cost to public

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

‘A tax paying people is a questioning people’

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

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

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

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

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

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

Comment

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

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

This article was first published by our partner ZAM Magazine.

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An Unlikely Alliance: What Africa and Asia can teach each other

Once African and Asian leaders looked towards each other for guidance. What possibilities can a renewed cross-continental solidarity offer?

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When independent Congo’s first prime minister, Patrice Lumumba, was assassinated in 1962, over 100,000 people protested in Beijing Workers’ Stadium. Thousands more protested in New Delhi and Singapore.

When Sudan lacked a formal plaque at the 1955 Bandung Conference, where the leaders of Asia and Africa declared the Third World project, India’s Jawaharlal Nehru wrote “Sudan” on his handkerchief, ensuring Africa’s then largest country a seat.

It was a time when Asia and Africa, home to almost 80 percent of humanity, found kinship in their shared trauma and conjoined destiny. Both were always spoken of in tandem. Martin Luther King Jr.’s “Letter from a Birmingham Jail,” drew inspiration from what he saw overseas: “The nations of Asia and Africa are moving with jet like speed toward gaining political independence.”

Too often we forget that the most defining event of the 20th century was not World War II or the Cold War, but the liberation of billions in Asia and Africa between the 1950s and 1980s as citizens of almost 100 new-born countries.

It also marked the revival of an ancient, pre-European connection. Historically, Asia and Africa were enmeshed centers of wealth and knowledge and the gatekeepers of the most lucrative trade routes. The Roman Empire’s richest region was North Africa, not Europe. A severe trade imbalance with South Asia forced Roman emissaries to beg spice traders in Tamil Nadu to limit their exports.

Western Europeans left their shores in desperation, not exploration, in the 1500s to secure a maritime route to the wealthy Indian Ocean trading system that integrated Asia and Africa. Somali traders grew rich as middlemen transiting coveted varieties of cinnamon from South Asia to Southern Europe. The Swahili coast shipped gold, ivory, and wildlife to China. Transferring the world economy to the Atlantic first required Portugal’s violent undoing of the flow of goods and peoples between Asia and Africa.

In Bandung, Indonesia’s Sukarno declared “a new departure” in which peoples of both continents no longer had “their futures mortgaged to an alien system.”

Yet that departure became a wide divergence that is complex to comprehend. Over the last few years, I’ve shuttled between the megacities of Asia to East and Central Africa. I also grew up in four Asian countries—India, Thailand, Philippines, and Singapore—and lived through Southeast Asia’s exponential rise.

The gap between Africa and East Asia, including Southeast Asia, is perplexing because we share much in common—culture, values, spirit, and worldview. I’m reminded of this in Somalia, Sudan, Uganda, or Ghana, where I’ve felt an immediate sense of fraternity.

It’s now a familiar story: 70 years ago, African incomes and literacy rates were higher than East Asia, then an epicenter of major wars. But in one generation, East Asia achieved wealth, human development, and standards of living that rival a tired, less relevant Western world.

The shockingly inept response by many Western countries to a historic pandemic has only amplified calls for Africa to abandon the Western model and learn from its once closest allies. A new book titled Asian Aspiration: How and Why Africa Should Emulate Asia, hit stores this year, co-authored by former Nigerian and Ethiopian heads of state. An op-ed in Kenya’s Star newspaper even prior suggested Kenyans shift their gaze from the supposed advancement of Westerners to “the progress of our comrades in the East.”

The incessant idea that Africa’s future lies in models not of its own making can be patronising. But Africa can indeed learn from the successes and pitfalls of East Asia, the world’s most economically dynamic region also built from scratch, while imparting wisdom of its own.

Many who previously pondered this gap came up with multiple theories, but often ignored a simple reality: Africa’s geography. Like Latin America, Africa is bedeviled by a predatory power to its north that siphons capital, talent, labor, and hope. By contrast, East Asia, even with several U.S. bases, is an ocean away from the United States and a 12-hour flight from Western Europe.

Europe’s proximity to Africa also cultivated a perennial barrier to development: the Western aid industry. Whether I’m in Haiti or Chad, the sheer domination of Western NGOs, development agencies, aid convoys, and all manner of plunder masquerading as goodwill—$40 billion more illicitly flows out of Africa than incoming loans and aid combined—is something I never saw even 25 years ago in Southeast Asia. Industries look for growth opportunities. Developed societies with robust public systems in East Asia offer few for saviors. The streets of Bangkok and Hanoi are lined with Toyotas and tourists, not wide-eyed youths in armored vehicles guided by white burden. The development industry and most of its participants I’ve had the misfortune of meeting are toxic. Large swaths of Africa remain under occupation of a different kind.

For much of the 20th century, Africa also faced a virulent settler colony in its south which destabilized the region and was so hateful of Black Africans that its mercenaries set up a series of bogus health clinics to surreptitiously spread HIV under the guise of charitable healthcare.

East Asia’s settler colony, Australia, was never able to replicate South Africa’s belligerence. It did lay waste to Papua New Guinea (where it continues to imprison asylum-seekers) but Australia never invaded or occupied Indonesia or the Philippines.

Another fallacy explaining African inertia is poor leadership. Leadership is paramount, but Africa produced a generation of independence era leaders whose values and decency the world desperately needs today. All were killed or overthrown by the West—because Africa is a far deeper reservoir of resources than East Asia.

South Korea, Singapore, and Taiwan are not resource rich. Thailand was never even colonized. An Asian country afflicted by similar conditions to Africa is mineral-rich Myanmar, closed to the wider world and progress for decades. Showcases of democracy aside, its kleptocratic, authoritarian political culture, like many African countries, was inherited from British rule. George Orwell’s less referenced book Burma Days, a recount of his time as a police officer in colonial Burma, called the British Empire “a despotism with theft as its final object.”

Resources prevented African leaders from towing a middle road that kept Western powers happy while investing in their society. The choice was resource nationalism or authoritarian acquiescence “with theft as its final object.” It was either Lumumba or Mobutu.

East Asian success stories worked within the global capitalist system and conducted deft diplomacy to placate Western superiority complexes while fortifying relationships with the rest of the global South. At independence, Singapore dispatched diplomats around the world, including several African countries, to build trade ties. Its manufacturing companies provided cassette tapes for Sudan’s then booming music industry. It hired Israeli advisors to train its military while staying in the good books of neighbors and Arab partners who stood with the Palestinians. These maneuvers are only possible when you aren’t sitting on $24 trillion worth of minerals.

Geography aided East Asia. Colonial borders, with a few exceptions, resembled some form of community that came before the nation-state. Consider both the Malay and Korean Peninsulas. Thailand’s borders, while amended as concessions to imperial powers, conformed largely to the cultural and linguistic boundaries of ancient Siam.

Africa’s artificial borders concocted nation-states with no experience as a community of any kind. The nation-state model creates fissures even in Europe, with the Yugoslav wars and constant, violently suppressed demands for statehood by the Basques and Catalans in Spain, not to mention a referendum by the Scots. Partitions across Africa, a special kind of cartographic violence, congealed animosity for generations.

So while Africans were marginally better off at independence than East Asians, structurally they actually did not have a head start. But Africa still thrived in the 1970s. It is only now reaching average income levels akin to half a century ago. To dismiss the continent’s record since independence as a perennial failure is a historically illiterate point of view. Its cultural output and musical dynamism were astonishing—arguably unrivaled—during this era. Liverpool and Manchester? Try Luanda and Mogadishu.

Africans were well aware of the right course but were thwarted more viciously than East Asia’s most developed states. Perhaps the West is more tolerant of Asian success because of racial hierarchies, just as the US parades Asian-American affluence as a symbol of the universality of the US-led Western model but violently responds to the smallest hint of actual wealth creation in Black-American communities.

Now, amid a precarious coming decade, East Asia indeed offers prescriptions for not only natural allies like Africans but societies worldwide seeking transformation in record time.

First off, it’s all about networks. Do the rules of your country facilitate local, regional, and international networks? A new Harvard study concluded that brisk business travel has the single biggest impact on building networks, diffusing knowledge, and birthing new industries. Europe’s own development benefited from its small land space, which tailored expansive, tight-knit networks that rapidly spread ideas revolutionizing everything from the sciences to football tactics.

Frequent trips to any major city in East Asia connect you to lucrative networks half a world away. Business travel (at least before the chaos of coronavirus) to East Asia is accessible, affordable, and hassle-free. The right infrastructure and laws—state-of-the-art airports, good accommodations, low-cost, high-speed telecommunications, rapid transportation links and whole scale visa liberalization—are needed to accommodate network-building travelers of every stripe and budget. African countries should follow suit, and streamline business travel, which would allow African travelers to build dense regional and continental networks—currently a tough ask when pre-pandemic flights from Nairobi to London were far cheaper than to neighboring capitals.

Since the 1980s, the Anglo-American West, ideologically intoxicated by deregulation, abdicated their society’s fate to self-interested individuals and free markets alone. East Asian countries enacted hardcore capitalist policies but never bought into this demented idea. The US and UK spent the last four decades dismantling their states; East Asian countries meanwhile reinforced their capacity with vast investments in education, telecommunication, and especially healthcare.

Thailand abandoned the neoliberal approach to healthcare in the early 2000s for a private-public model that guaranteed universal coverage and secured its place as the first country in Asia to eliminate HIV transmission from mother to child. Both Singapore and Hong Kong have the most efficient healthcare systems in the world. Sharply guided public health policies underwrote East Asia’s masterful management of COVID-19. Vietnam and Laos had zero deaths from coronavirus while Germany, somehow a celebrated success story in the Western press, has over 9,000 deaths.

Recently, Kenya sought Thailand’s expertise in revamping a typically price-gouged private healthcare system. Ethiopia invited Vietnamese telecommunication companies to make its systems reliable, fast, and, like much of Southeast Asia, affordable.

In the Nigerian and Kenyan corners of Twitter, “The Singapore Solution” resonates. People yearn for a Lee Kuan Yew figure. Lee once told an Indian audience that Singapore’s model cannot be adopted by India, which, according to him, “is not a real country…Instead it is thirty-two separate nations that happen to be arrayed along the British rail line.”

The same can be said about Nigeria and Kenya. Singapore is an entrepot state of a few million at the gateway to the Malacca Straits, the world’s busiest shipping lane, with deep ancestral ties to China and India, the world’s richest economies for 1,800 of the last 2,000 years.

Each country’s trajectory is highly contingent on a set of unique circumstances and should never be applied wholesale. With the immense benefit of hindsight, Africans can choose from the best, most fitting lessons from the region, while staying vigilant of and mitigating many pitfalls.

For every one of me, inheritors of East Asia’s boom, there are, like New York City and London in the early 1900s, millions trapped as cheap labor servicing endless growth, forced to compete over scraps in unforgiving cities. East Asian inequality is nauseating. South Korea has the highest elderly poverty rate in the OECD, with almost half of its senior citizens condemned to destitution rather than retirement. Only disparities that torture the soul can create award-winning films like Parasite.

This is a feature, not a bug, of East Asia’s rapid growth. Opening up to global capitalism inevitably instills hierarchies and racialized aspirations. When I see advertisements for new luxury condominiums, possibly the most prevalent hoardings in Southeast Asia, it’s an image of a white man with his East Asian wife and mixed-race child. The message is clear. As Frantz Fanon wrote, “you are rich because you are white, you are white because you are rich.”

East Asia may not have the levels of violent, heartless racism on brazen display in Western societies, but the 1990s were a turning point. East Asians began to look down on those modernization taught them to distrust. You don’t go from mourning an assassinated Congolese leader by the thousands to treating African expatriates as diseased in one generation without a drastic, very recent shift.

Some Westerners, like washed up drunks screaming profanities at a bar, might be tempted to repeat the mantras falsely underlining their sense of superiority to make preposterous demands of such young countries pieced together overnight. They might ask, “Well what of democracy? Human rights? Freedom of the press? Free markets?” These are all wonderful things, if they actually existed.

Not a single Western country was a democracy during its development. Western Europe had a fascist government in Spain until 1975. France and Britain fought horrific wars to deny Algeria and Kenya independence even after defeating Nazism. You can’t be a democracy when you deny democracy to others. European colonies were run as totalitarian dictatorships and lasted well into the late 20th century.

Freedom of the press? Try criticizing Israel in the mainstream US or German media.

Human rights? Europe lets migrants drown by the thousands in the Mediterranean. Australia has offshore camps for asylum seekers where abuse and rape are rampant. The US has kids in cages and its cops murder young Black men for sport.

Free markets? Both the US and Britain were viciously protectionist societies that relied on massive state intervention, and overwhelming military force, to mint its corporations.

The marriage of free markets to supposedly liberal democracy gave us Brazil’s Jair Bolsonaro, India’s Narendra Modi, the Philippines’ Rodrigo Duterte, and kept war criminal Benjamin Netanyahu as Israel’s longest serving leader. The Western liberal order, Indian writer Pankaj Mishra meticulously reveals, is an “incubator for authoritarianism” because it’s premised on fairy tales.

An open society, a vibrant marketplace, and a respect for human dignity are of course worthy and necessary goals. More representative forms of government, hopefully devised by us rather than imported from Cornwall, England, will arrive. We need not be “Jeffersonian Democrats”; we can surely do better than a system championed by slave owners. As Deng Xiaoping said when China opened up after its century of humiliation, “Let some people get rich first,” which should be interpreted as a call to enrich societies as a whole before succumbing to obnoxious Western moralizing about values they rarely practice themselves.

Advancement need not only be predicated on economic growth and democratic politics and Africa need not only be the student and Asia the mentor. Asia has much to learn from Africa’s grand investments in culture in its earliest days. Aside from Vietnam, whose communist government funded the arts, and South Korea, which subsidized its K-Pop industry, most East Asian countries pay little attention to their cultural prowess on the world stage.

When kids in Djibouti listen to songs on their phone, it’s Somali music or Nigerian hits. Hop in a taxi in Accra or Khartoum and you hear that country’s sound. Africans listen to their own music. Southeast Asia does not. The richest music is derided as a pastime of lower classes, unfit for well-heeled urban elites. Talent gets lost in the never-ending roster of cover bands for top 40 American pop.

In Jakarta’s many behemoth malls, “you will not hear Indonesian music,” wrote journalist Vincent Bevins. “You will not hear Japanese music, or anything from Asia… It will all have been packaged and sold in the USA.” It’s the same story anywhere in the region.

This may seem trivial, but a country’s image is vital to any lasting progress. In a world no longer able to “identify with, let alone aspire to, Hollywood’s white fantasies of power, wealth and sex,” wrote Fatima Bhutto in New Kings of the World: Dispatches from Bollywood, Dizi, and K-Pop, “a vast cultural movement is emerging from the global South… Truly global in its range and allure, it is the biggest challenge to America’s monopoly of soft power since the end of the Second World War.”

African countries laid the foundations in the ‘70s to fill this vacuum. Their image will be defined in the next decades by their stellar music, set to be in our lifetimes the global staple and standard. Independent labels and corporate players like UMG and Sony, now with headquarters in Lagos and Abidjan, have ensured unprecedented international access to Africa’s abundance of music, past and present.

African literary festivals have also blossomed, adding to an impressive six percent growth in the industry. It’s only a matter of time before small and multinational publishing houses scout a new cadre of young African writers to make household names, as they did in South Asia. Africa hosts over 35 annual literary festivals, even in struggling cities like Mogadishu, while East Asia only enjoys 21.

Economic engines inevitably slow. Southeast Asia in particular must emulate African pride in its own music and related expressions of culture to seize on openings left behind by a once omnipotent cultural hegemony in full retreat. South Korea understood this early and enjoys a powerful, beloved global brand molded by pop music and films, not per capita income.

Even if Africa and Asia swap carefully selected approaches, ultimate success is only possible from a unity akin to the 1955 Bandung Conference. When we again mingle and ally, when we mourn each other’s dead, when we scribble names on napkins as acts of solidarity, we will again realize our lasting success. The final phase to complete the process of decolonization will have to be done jointly, in unison, or never at all.

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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Fear and Loathing in Kenya’s Parliament

Parliament’s failure to enact laws to bring women into elected national leadership has only exposed its soft underbelly, revealing a combination of narcissism and incompetence.

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A month before Chief Justice David Maraga advised the president to dissolve parliament, legislators were toying with plans to delete the constitutional requirement that would include women in national political leadership.

“You cannot compel citizens to elect either men or the other gender,” said Justin Muturi. Speaking at a parliamentary retreat, the Speaker of the National Assembly appeared to have lost whatever empathy he previously harboured for affirmative action legislation to promote women’s participation in elected leadership in June 2016.

Following the CJ’s September 21 advice, Muturi mobilised the Parliamentary Service Commission, which he chairs, to mount a court challenge against it. He remarked: “The clamour to pass legislation to ensure [the] two-thirds gender principle potentially violates the sovereign will of the electorate at least to the extent that such legislation will demand top-ups or nominations of women”.

Jeremiah Kioni, who chairs the Constitution Implementation Oversight Committee, told the parliamentary retreat that politicians only agreed to include the clause on the inclusion of women in elective leadership in the 2010 constitution “to stabilise the country and cool tempers”.

Unknown to many at the time of the retreat debate, the Speakers of the National Assembly and the Senate had received an August 3 letter from Chief Justice David Maraga informing them that he was considering six different petitions asking him to advise the president to dissolve parliament as provided for in the constitution. The letter followed up on a 25 June 2019 one inquiring about the progress made by Parliament in enacting laws to increase women’s participation in leadership.

In August, Muturi cautioned members of parliament that there was a real risk of dissolution over failure to enact the law on including women in leadership, but since Maraga delivered his coup de grâce on September 21, the Speaker has gone on the warpath.

Although the constitution – which was passed by 68.6 per cent adult suffrage in August 2010 – gave parliament independence, it contains a suicide clause giving the president the power of dissolution should it fail to enact laws that bring the constitution into application. The clause kicks in if the High Court certifies and declares that parliament has failed to pass a law within the required timelines.

The constitutional provision requiring that no gender should constitute more than two thirds of any elective or appointive body has been successfully implemented in county assemblies, but it has remained a sticking point at the national level. Elections for the National Assembly and the Senate in 2017, and the subsequent allocation of special seats, gave women only 23 per cent of the share of legislative leadership at the national level – a 9 per cent improvement on the 2013 elections.

A 2018 National Democratic Institute survey of gender participation in politics found that “[w]omen who had served in specially nominated positions, for example, were more likely to win an election than those who had never held office at all”.

A combination of political chicanery, slothful self-interest and duplicitous male chauvinism has repeatedly thwarted efforts to create an inclusive national legislature. The laws required to cash the promissory note given to women when the country passed the Constitution have never been passed because neither the National Assembly nor the Senate has been able to muster the two-thirds quorum required to debate a constitutional amendment.

The National Gender and Equality Commission documents the Journey to Gender Parity in Political Representation, noting the four floundering attempts to enact laws that would increase the number of women in national legislatures.

In each instance, the bills proposed to become law had already been developed off-site, complete with a costing of what each option would mean for the taxpayer, and all that was required of MPs was for them to show up and make the quorum for the bills to come under consideration.

The last effort at passing the gender law had been stepped down from the order paper in November 2018 over fears that there would be lack of quorum to consider it since it touched on the constitution. The bill was the product of painstaking negotiation, bargaining, and deal making involving over 50 organisations and that had lined up President Uhuru Kenyatta, political party leaders Raila Odinga and Kalonzo Musyoka.

When the proposed law was put to the National Assembly in February 2019, the headcount came in at 174 MPs – 59 short of the 233 required to consider a law relating to the constitution. Earlier, under the hammer of the High Court in 2016 to pass a similar law, Speaker Muturi innovated a way to get round the requirement for constitutional amendment law proposals to wait 90 days, fast-tracked the bill through the 11th Parliament – only for it to fail because there was no quorum to consider it.

Frustrations over the repeated failure to pass laws that promote women’s increased participation in elective politics have triggered a record number of court petitions. The most consequential of these is the petition filed by the Centre for Rights Education and Awareness, from which the High Court issued a declaration that parliament had indeed failed to perform its duty to enact a law to promote the participation of women in national elective leadership.

The Speaker of the National Assembly lost an appeal against the 2017 High Court decisionordering parliament to enact the law providing for inclusive leadership within 60 days.

Last year, on 5 April, the Court of Appeal observed that the repeated failure to get a quorum to pass the law “does not speak of a good faith effort to implement the gender principle”, noting that Parliament had already exhausted the option of extending for a year the deadline for enacting the gender law.

That decision confirmed parliament’s failure to perform its duty, and within two months inspired five petitions requesting the Chief Justice to advise that it be dissolved. The Law Society of Kenya lodged its petition with the Chief Justice in June this year.

Ken Ogutu, who teaches law at the University of Nairobi, analogises the current dilemma to a construction project where the main contractor has completed the main structure of a new house and a subcontractor is then left to do the finishing to ensure the house is completed to the required standards. “The main contractor gives the subcontractor a schedule of the finishing he must do and by when, and if the subcontractor fails to complete these tasks within the specified timelines, he is fired and a new one hired to do the work”.

Parliament has argued that it has passed all the other laws and should not be punished for not enacting the gender inclusion laws.

The Chief Justice’s advice to dissolve Parliament will likely expose the institution’s hidden weaknesses. Its failure to enact laws to bring women into elected national leadership has only exposed its soft underbelly, revealing a combination of narcissism and incompetence.

Beneath the shining veneer of success, evident in the passage of 47 out of the 48 laws required to implement the constitution as outlined in its Fifth Schedule, there is plenty of evidence that parliament is still stuck in the old constitutional order. Some argue that parliament has been the weak link in turning Kenya into a constitutional democracy.

Since 2011, Kenya Law Reports has documented 48 statutes or amendments to the law that the courts have struck down for being unconstitutional. Eight of the controversial laws struck down by the High Court or the Court of Appeal relate to the management of competition in elections.

Judges sitting singly or in panels of three in the High Court, or in the Court of Appeal, have struck down parliament’s attempts at power grabs by avoiding public participation and making laws that violate the constitution. It is even more worrying that the 48 are only those laws that citizens or organisations have challenged, meaning that there could be a great deal of unconstitutionality hidden in other laws.

For example, commenting on the attempt to sinecure seats for political party leaders in the election law, appellate judges Festus Azangalala, Patrick Kiage and Jamilla Mohammed wrote in their judgment: “[F]ar from attaining the true object of protecting the rights of the marginalized as envisioned by the constitution, the inclusion of Presidential and Deputy Presidential candidates in Article 34(9) of the Elections Act does violence to all reason and logic by arbitrary and irrational superimposition of well-heeled individuals on a list of the disadvantaged and marginalized to the detriment of the protected classes or interests”.

Other judges have described some of the legislative attempts as “overreach” or “no longer [serving] any purpose in the statute books of this country”. Judge Mumbi Ngugi, commenting on the anti-corruption law passed by parliament, remarked: “The provisions […], apart from obfuscating, indeed helping to obliterate the political hygiene, were contrary to the constitutional requirements of integrity in governance, were against the national values and principles of governance and the principles of leadership and integrity in . . . the Constitution . . . [and] entrenched corruption and impunity in the land”.

The low quality of laws emanating from parliament since the promulgation of the constitution in 2010 arises from several factors, among them competence gaps and self-interest, and despite the inclusion of an entire chapter on integrity in the constitution, the country’s politics is weighed down by poor political hygiene. Similarly, the law on qualification for election as a member of parliament sets a very low threshold while the one for recalling elected leaders is impossible to apply.

Data aggregated from the parliamentary website shows that 72 per cent of all members of the National Assembly are university graduates, but many of the qualifications listed appear to be shotgun degrees from notorious religious institutions acquired in the nick of time to clear the hurdle for election. The modest intellectual heft of members in the National Assembly especially makes the institution unsuited for the task of navigating a Western-style democracy in the design of the constitution.

Some 40 MPs have law degrees, but the Kenya Law Reform Commission, the Attorney General’s office, and various interest groups carry out much of the legislative drafting. Parliament is then often left with the duty of playing rubber stamp.

At moments of national crisis, legislative initiative has tended to emanate from outside parliament, whose members are then invited to endorse whatever deal has been agreed. Cases in point from recent history include the resolution of the stalemate over changing the composition of the Independent Electoral and Boundaries Commission in 2017, and the political détente in the aftermath of the putative 2017 presidential election.

In a global first of game-warden-turned-poacher, the Public Accounts Committee, Kenya’s parliamentary watchdog, was disbanded over allegations of corruption. The Conflict of Interest Bill was only published last year and is yet to reach the floor of parliament. It was not the only instance of members of parliament literally feathering their nests. Legislators have been most voluble in defending the benefits they feel entitled to, and clinging onto the control of the constituency development fund, which they have turned into a pot of patronage.

The constitution refashioned parliament as an independent institution with law-making, oversight and budgeting powers. The institution has not acquitted itself in watching over public institutions and spending, often playing catch-up with reports of the Auditor General. Its lax fiscal management and oversight has resulted in the country’s debt stock growing from Sh1.78 trillion in 2013 to the current Sh6.7 trillion. Only this year, the Sh500 billion contract for the construction of the standard gauge railway using Chinese loans was found to have been illegal.

Its review of the annual reports from the judiciary and the 14 constitutional commissions has been lacklustre, with the worst case being the parlous state of the Independent Electoral and Boundaries Commission. One of the concerns raised about dissolving parliament is around the readiness of the commission to undertake nationwide parliamentary elections, given that four of the seven commissioners have resigned and have not been replaced, and that the institution does not have a sufficient budget to undertake its work.

Another anxiety around the dissolution of parliament has been that the electorate would not cure the gender imbalance in the national legislature through an election. That anxiety is a misapprehension.

On 20 April 2017, in deciding a case filed by Katiba Institute, Justice Enock Mwita ordered that political parties formulate rules and regulations to bring to life the two-thirds gender principle during nominations for the 290 constituency-based elective positions for members of the National Assembly and the 47 county-based elective positions for members of the Senate within six months. He added that if they failed to do so, the IEBC should devise an administrative mechanism to ensure that the two-thirds gender principle is realised within political parties during nomination exercises for parliamentary elections.

The August 2017 High Court judgment requires the IEBC to ensure that party lists contribute to the realisation of the gender principle. The decision has not been appealed or vacated. Given the parliament’s proclivity to pursue the interests of its members in increasing their pay even when not allowed to do so, it is not unlikely that MPs, detained by their own fear of political competition, have refused to see how affirmative action legislation would increase women’s participation in politics.

For now, the Chief Justice’s advice to the president to dissolve parliament has been challenged in court by two citizens, with Judge Weldon Korir certifying that the case raises constitutional questions that need to be adjudicated by an uneven number of judges. It is not unlikely that the matter could go all the way to the Court of Appeal, meaning that the earliest a final position could be settled is February next year.

The dissolution saga will likely highlight the distance yet to be covered in realising the parliament Kenyans wanted to establish through the constitution. Although parliament has a five-year term, it can be extended in times of war or emergency for a period of one year each time, for a maximum of one year. The corollary is that its term can be shortened if it fails to live up to constitutional expectations.

Bereft of any real power or competence and unable to cut the umbilical cord binding it to the executive, parliament will be President Uhuru Kenyatta’s poodle waiting on his charity. And as the president concludes the political calculation of the costs and benefits of dissolving parliament, the country will be assessing its legislature’s performance not just on gender but on everything else.

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