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THE NEW LUNATIC EXPRESS: Lessons not learned from the East African Railway

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THE NEW LUNATIC EXPRESS: Lessons not learned from the East African Railway
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“The limits of tyrants are prescribed by the endurance of those whom they oppress.”
-Frederick Douglass

The building of standard gauge (SGR) railways in both Uganda and Kenya and the predictable sagas that have ensued are reminiscent of the controversies surrounding the building of the Uganda and Rhodesian Railways in the late 19th and early 20th centuries. Both present a framework within which it is possible finally to understand the limited achievements in development in all sectors (and frankly, underdevelopment in many) and regression in Uganda’s primary education, copper mining and agricultural sectors. Both SGR projects are tainted with suspicion of shady procurement which, if taken together with the track records of the implementers, points to corruption. It would be irresponsible to say otherwise.

The route, design, level of service and all other decisions of the Uganda Railway of 1990 were dictated by potential profits for foreign investors (both public and private) and their local agents, and not by notions of public service and the common good of those who would bear the ultimate cost. Return on investment is not a bad thing but the Imperial government also claimed to be acting in the interests of the indigenous populations.

The difference now is that there is no pretence about whether the railways are serving the interests of the general population. The different financial implications presented by the procurement process itself, the selection of routes and the relative cost of engineering in the different terrains, plus the cost of compensating displaced landowners, provide scope for long-running, energy-depleting corruption scandals. From the outset, there has been a lack of confidence that procurement processes for the necessary services would prioritise the interests of the public over the interests of the contractor and would actively exclude the personal interests of the public servants commissioning the works. This is what is triggering the anxiety surrounding the SGRs.

The different financial implications presented by the procurement process itself, the selection of routes and the relative cost of engineering in the different terrains, plus the cost of compensating displaced landowners, provide scope for long-running, energy-depleting corruption scandals.

Moreover, the choice over whether to upgrade the old railway or to start afresh was not adequately debated publicly. Ditto the options on financing. For the Kenyan SGR, the most costly of the potential routes were reportedly selectively chosen. Several cheaper routes on land allegedly already in possession of the government are said to have been rejected.

There are also questions surrounding passenger service. Do the railways only serve trade or are passengers entitled to this alternative to dangerous road transport? In areas where passengers and not commodities, who will be the primary user of the railway?

Uganda owns one half of the old East African Railway. Together with the Kenyan leg, it was put under a 25-year management contract. The new owners renamed their new toy Rift Valley Railways (RVR). In 2017, after only twelve years, the governments cancelled the contracts in a move the RVR called an illegal takeover. On the Ugandan end, there were allegations of asset-stripping by previous European concessionaires as well as unpaid concession fees and massive salary arrears caused by RVR. If RVR were to successfully sue the government for cancellation of the contract, their compensation would be the first budget overrun.

The government of Uganda then signed a Memorandum of Understanding in 2014 with the China Civil Engineering Construction Corporation (CCECC), which had submitted a study. It abandoned those negotiations in favour of a second Chinese entity, the China Harbour Engineering Company. In justifying its action, the government questioned the quality of the CCECC’s study, which it said was cut and pasted from pre-existing feasibility studies (something that could have been avoided by following proper procurement procedures). CCECC insists it was a pre-feasibility study requiring less detail than a full-blown feasibility study. Whatever the case, if CCECC had followed through with its suit for US$8 million in compensation, which would have been another massive blow to the budget at inception. Whatever compensation they have agreed to has not been made public but as matters stand, the budget for the eastern leg of the SGR has gone up from CCECC’s proposed US$4.2 billion to CHEC’s US$6.7 billion.

What stands out – apart from the incompetence, squabbling and eventual compensation claims that accompany nearly every major Ugandan development project – is that the President of the Republic is front and centre in the flouting of procurement procedures by issuing personal invitations to foreign firms and individuals to participate in projects. He has done the same with investors from the United Arab Emirates who have been promised land. The results are often disastrous: the country is in debt to the Kenya-based Bidco company after it fell short of 10,000 hectares of land it had promised the company for a vegetable oil project. As a result, Bidco received tax waivers worth US$3.1 million in 2016 alone, according to the Auditor General.

The last top-level contact with a foreign investor whose details are known resulted in the arrest in New York of Patrick Chi Ping Ho in late 2017 on charges of paying bribes to the Ugandan president and the foreign minister through an American bank. The Ho-Kutesa bribery case casts more shade on the procurement arrangements for the SGR. Without a satisfactory resolution of the matter and with the same people still in situ, citizens would be foolhardy to expect value for money from the SGR.

By the beginning of 2018, owing to cash flow difficulties, less than half of the land required for the 273-kilometre eastern section of the SGR had been acquired. Not surprisingly, as Uganda slithers into insolvency, the government has resorted to domestic and foreign borrowing to fund ordinary recurrent expenditure like payroll. Commodity prices are significantly lower and the shilling worth much less than when the SGR was first contemplated. So bad is the situation that the police force announced that police work in 2018 is to be carried out on a rotational basis among the regions as there are insufficient funds to enforce the law across the whole country at once.

The Uganda Railway, 1900

The Uganda Railway initially ran from Mombasa to the Kenyan side of Lake Victoria, where the journey was completed by steamer to Port Bell in Kampala. The main purpose of the railway was to make Uganda colonisable.

Under the hinterland principle introduced by the Treaty of Berlin of 1885, colonial powers had the first option on the ownership of the hinterland abutting on their coastal possessions. To claim possession of the hinterland, a power had to show that it had effectively occupied the coast.

Having secured the Kenyan coast, Britain was not required to effectively occupy the East African hinterland – Uganda – but was determined to do so, fronting the objective of stopping the slave trade under the Brussels Anti–Slavery Act of 1890, which also required it to “improve the moral and material conditions of existence of the native races”. The argument ran as follows: To stop the slave trade, the region had to be governed by Britain and to govern, soldiers, ammunition, civil servants and their supplies had to be transported to the region, for which a railway was essential.

Only after the annexation of Uganda did references to the slave trade fade out as the overriding objective and the need to grow cotton to feed Britain’s textile industry and reduce unemployment came in to sharper focus.

Having secured the Kenyan coast, Britain was not required to effectively occupy the East African hinterland – Uganda – but was determined to do so, fronting the objective of stopping the slave trade under the Brussels Anti–Slavery Act of 1890, which also required it to “improve the moral and material conditions of existence of the native races”.

There was competition for the hinterland from the western coast of Africa, whose Congolese hinterland Belgium owned. Belgium was interested in north-western Uganda. In the north, the French had had a military confrontation with the British in Fashoda over supremacy in the Sudan. Time was, therefore, of the essence and the proposal was tabled in Parliament without a thorough survey.

We have had a large sum of money voted, but I observe that in recent documents the survey has disappeared and it has become a ‘reconnaissance survey’. We want to know whether we are making an estimate of the cost of a railway upon a reconnaissance survey. Major Macdonald was at the head of that survey, and when he arrived at the mountains he did not survey any further but put upon his survey ‘mountains’, and so there was practically no survey” (Henry Labouchère, MP, Uganda Railway debate, April 1900)

 The expenditure necessary was minimised in presentations to Parliament,

The estimates of cost have been falsified from the very commencement. They began with an estimate of £1,700,000; then it jumped up to £3,000,000, and year after year when the vote for Uganda came on for discussion, we were told that that would not be exceeded. And now the right hon. Gentleman comes here and, pluming himself on having carried out his own estimates, asks us to vote almost two million additional; and he shows us in no sort of way that the last estimate of £5,000,000 is based on solid ground any more than the £3,000,000 estimate, or the £1,700,000 estimate […] We ought not to vote any more money until we have had a full practical businesslike survey. (Labouchère 1900)

Also distorted were facts about the purpose of the railway. The benefit to the British cotton industry, one of the country’s leading employers, was minimised while advantages to the inhabitants of British East Africa were magnified to overshadow any criticisms of the railway’s implementation. One argument was that Britain would eliminate the high cost of the squadron needed as a barrier to slave ships off the East African coast by transporting soldiers overland to quash the last remaining slave caravans.

Labouchère questioned the government in 1900 as to whether the partially complete railway had had any impact on the size of the British squadron. The answer was no, it hadn’t. In fact, as he noted “it has not prevented one single slave being carried away”. Apart from anything else, slavery was tolerated in Zanzibar and Zanzibari slaves were being used as porters by British officials even in 1900.

“Sir G. Portal’s expedition [sent to effectively occupy Buganda] was one which had numerous slaves in its ranks. The whole territory of the East Africa Company now was swarming with slaves. What hypocrisy would be charged against this country, if their real motive being financial greed and territorial aggrandisement, they put forward the sacred cause of slave emancipation, while at the same time their own territories were swarming with slaves, and were actually impressing these poor creatures in large numbers to carry Sir G. Portal himself on this expedition. (Robert Reid, Uganda debate, March 1893).

(This is the same G. Portal who was sent by the Crown to implement the treaty extracted from Kabaka Mwanga and who exceeded its boundaries by marching through Buganda, setting up a fort in the Kingdom of Toro from where the Kingdom of Bunyoro was annexed.)

In the interests of speed and economy, a non-standard gauge was used. This partially explains why in the 21st century Kenya and Uganda are embarking on their first SGRs rather than extending existing lines. Apologists for incompetence should take note: there will be railways but whether they are the most cost-effective, robust (extensible) option is another matter.

In their rush, the Foreign Office formed a Works Committee to build the railway, which wound up costing significantly more per mile than comparable railways in India. It was referred to as a light or small-gauge railway. The cost of two comparable light railways in India was £6,500 and £6,400 per mile, respectively. The Kenya-Uganda light railway was being built in 1900 at £8,500 per mile. (Ugandans may recall that the price tag for the new thirty-mile Kampala-Entebbe Highway was double that of a comparable highway in Ethiopia.)

Railway finance

Contrary to popular belief, railways were not a gift to the colonies; they were financed by loans paid from tax revenues collected by the local colonial administrations and, therefore, any waste and losses in the construction were borne by the taxpayers in the colonies. Even where the Imperial government made the initial expenditure, ultimately it was the citizens of the colonies who paid.

For example, Palestine was charged £1 million for a railway built to facilitate the movement of British troops during the First World War (Palestine and East Africa Loans Act 1926). The retroactive payment was engineered by guaranteeing a loan taken by Palestine the proceeds of which then went to the British treasury while Palestine (then under British administration) made the repayments. For an idea of the magnitude of a million pounds in those days, the exact same amount was provided three years later in total development grants for the entire empire, then numbering over 40 territories.

Contrary to popular belief, railways were not a gift to the colonies; they were financed by loans paid from tax revenues collected by the local colonial administrations and, therefore, any waste and losses in the construction were borne by the taxpayers in the colonies. Even where the Imperial government made the initial expenditure, ultimately it was the citizens of the colonies who paid.

The £1 million provided in 1929 would not have covered Uganda’s total budget for one year. Even without a full set of Protectorate accounts, it is still possible to see that Uganda’s budget balanced at approximately £2 million between 1931 and 1935. In those years there was an excess of assets over liabilities of between £700,000 and £1 million. The Uganda Protectorate was even able to maintain the reserve fund required by the Imperial government. It stood at over £400,000 in the 1930s.

“The Reserve Fund is really required for three purposes: (a) as a kind of insurance against a definite national emergency, such as a famine or locust invasion involving very exceptional expenditure; (b) to meet a possible deficit in case of an exceptional shortfall in revenue; and (c) to enable the normal programme of capital expenditure to be carried out from year to year unimpeded by fluctuations in revenue. It will thus be seen that a considerable sum should be kept available, and it is hoped that it will be possible to accumulate £l,000,000 in the course of time.” (A.E. Forrest, Acting Treasurer, Uganda Protectorate)

 The Imperial Loan, the earliest loan record available to this writer, was made in 1915. It was followed by development loans between 1921 and 1924 and then further loans in 1932 and 1933. Total unused balances on these loans ranged from between £3,300 and £95,727 in the years 1931 to 1935; £588 was paid towards the Kampala-Jinja Railway in 1933. Total loan servicing that year was £144,718 for the 1932 and 1933 loans. The only grant received during the same period was £841. (This is not a typo.)

Although the Imperial development grant budget was increased to £5 million in 1940 to cover an even larger number of colonies, the target could not be reached during the Second World War when funds were low. During the war, the colonies had to divert their resources to aid Britain’s war effort. Uganda and most other colonies each donated £100,000, the equivalent of Uganda’s entire development budget for 1939. Kenya raised approximately £17,000. Men from both countries volunteered to serve; there were 77,000 from Uganda and more from Kenya. (The British government finally sent pensions to Ugandan ex–servicemen in 2011 after a long, increasingly hoarse campaign. Over 2,000 British ex-servicemen and thousands of others were rewarded with land in Kenya and Rhodesia).

The people of Buganda gave an additional £10,000 and the Ankole gave £1,000 from taxes collected from their populations. Additionally, the Buganda Lukiiko and the Native Administrations of the Eastern and Western Provinces pledged to give £5,000, £7,000 and £5,000 a year, respectively, for the duration of the war and for one year after its end towards the expenditure of the Protectorate.

Gifts in kind included an airplane (from Mauritius), patrol boats (Singapore Harbour Authority), cocoa, coffee and foodstuffs of all kinds. Farmers’ savings in the cotton and coffee funds were diverted to feed and clothe Allied troops. Only the Oron tribe in Nigeria was spared – their gift of two hundred pounds was returned on the grounds of their financial standing.

Colonies also made interest-free loans to Britain: in 1940 the Kenya-Uganda Railway and Harbour Administration loaned His Majesty’s Government £100,000 for as long as the war lasted. In 1946, Uganda made an interest-free loan to His Majesty’s government of £650,000. Total loans from the colonies amounted to £1,156,983 (See: Accounts of the Uganda Protectorate, 1946 Statement of Balances, Statement XIV, at 31st December, 1946).

It is incredible that in spite of the evidence, Ugandans and other ex-colonials continue to believe that they are being “helped” first by Britain, then by the World Bank and the Chinese. It is this misreading of the facts that prevents any meaningful negotiations for better terms of development cooperation. It is the capacity to negotiate that today’s bribe-taking leaders sell for their thirty pieces of silver.

Secondly, railways transported cotton belonging to the British Cotton Growing Association (a voluntary body comprising Lancashire growers, mill owners, textile workers, shippers and workers in ancillary trades such as dyers) for free in Sierra Leone, Lagos, and Southern Nigeria in return for seeds and professional advice (Secretary of State for the Colonies, Cotton Supply debate, 1905.) Third, once built, railways were used to leverage further loans. The East African Railways and Harbours Authority, being a viable operation, was used to guarantee loans taken out by the East African High Commission (the colonial administration).

By 1961 Uganda’s indebtedness had soared. The public debt was £16,933,000 and was being reliably serviced. Guarantees of interest alone stood at £58 million and a further £3.5 million for interest on a loan from the World Bank (presumably for Nalubaale Hydro-electric Dam). (See: Statement of Contingent Liabilities of the Protectorate Government as at 30 June 1961, Statement 12)

Construction and labour management

Due to the need to build the railway as quickly as possible, “gigantic errors” were made. An attempt was made to cover up escalating costs by saying that the materials had to be upgraded from wood to steel until an examination of the original plans showed provision had been made for steel from the very beginning. Accounts were submitted late for audit.

We have to pay £2,000,000 extra as the result of putting the work into the hands of men who have no practical experience of the work they have undertaken. I, for one, decidedly protest against the reckless and careless way in which the management of the railway has been conducted up to the present time.” (Thomas Bayley, M.P., 1900)

The management of the labour makes it even clearer that the railway was not for the primary benefit of the inhabitants of the region. Much in the same way as Chinese contractors do in Uganda today, the British shipped in foreign manual labourers to carry out the work; 14,000 of the 16,000 labourers employed were expatriates from India. There was a famine in Kenya shortly after.

We ought in my opinion, instead of importing so many thousands of Indian[s], to have employed a good deal more African labour, because natives have been dying by thousands of starvation in the neighbourhood of this railway. It has been most distressing to see the natives dying in the ditches by the side of the railway, and when trains have gone up the line little starving and dying children have come and begged for food, for a little rice, or anything from those on the train. That is not the sort of thing that ought to occur where the British Government are building a railway, and they ought to have engaged labour to a much larger extent from the neighbourhood. (Robert Perks, M.P., Uganda Railway debate 1900)

Much in the same way as Chinese contractors do in Uganda today, the British shipped in foreign manual labourers to carry out the work; 14,000 of the 16,000 labourers employed were expatriates from India.

Those Africans that were employed were paid four pence a day while the Indian skilled labourers were paid 14 pence a day. (Indians had experience in building the Indian railways.)

“That seems to be pretty nearly the same thing as slave labour. I should like to know what would be said in this country if any man were induced by the Government to work for four pence a day. [Several HON. MEMBERS: Oh, oh!] Hon. Members say oh, oh! I know their views. Working men in England have votes, and working men in Africa have not.” (Labouchère, 1900).

But Labouchère himself gave the standard racist reason for the low wages, a sentiment he expressed in defence of his own arguments that investment in Uganda was a waste of time: “What about the Ugandese themselves? They are without exception the very laziest of that laziest race in the whole world, the African negro.”

John Dillon, the Irish nationalist, demonstrated an understanding of the difference between the then African way of life and the grubbing and jostling necessary in over-populated, capitalist European countries,

“[…] where African labourers were employed the earthworks cost 10d. per cubic yard, while with the Indian labourers at the higher wage they cost but 6d., so that by employing the Indian labourer at higher wages you reduced the cost of the work. […] Very often, particularly in railway work, it is much cheaper to employ a better class of men at higher wages than men who do not understand the work at lower wages.

“One argument is that the labourers being free men, with no rent to pay, and with gardens round their huts, are not compelled to labour for the [low] wages offered by contractors and mine-owners; they can ask their own terms. What settles the price of labour in this country is the fact that a man cannot retire to his garden and his house and wait until the employer must have him at his own price; he would starve; therefore he must make the best terms he can. But in Africa the labourer is comparatively a free man, unless you have forced labour, as is so often advocated. (John Dillon, 1900)

However, it was later revealed that in addition to racialist considerations, there was a profit to be made on importing labour. Greek contractors had been awarded contracts to import the Indian labour and their commissions inflated labour costs. The point was not exhaustively argued in Parliament but there were suggestions that Sir Clement Hill, a public servant, received between £10,000 and 70,000 in commissions on materials ordered.

It was argued in Parliament that the amount of money required for the Uganda Railway was sufficient to build a full network of the light railways required in Britain. If anything speaks to the necessity of transparency it is this. Less extravagant profits assured by the government to private investors, contractors and commission agents would have ensured more was available for the common good of ordinary people in both countries, and a measure of dignity for the workers.

In contrast, before building permanent churches, schools and clinics in Uganda, Catholic missionaries in Uganda established technical schools and other training facilities in order to train the craftsmen that would be required for the work. They took the necessary time to maximise skills transference. They specialised in brick-making, architecture, glass-making and other building crafts, as well as tailoring, teaching and nursing. These facilities are still in service today, run by Africans.

For their part, indigenous communities using their own traditional model for infrastructural development known as bulungi bwa nsi (the good of the nation). They continued to contribute most of the locally available material inputs and, of course, all of the land and labour for community infrastructural development.

The character of development changed when the Imperial government commandeered the education sector in 1921 in order to “re-organise” it. After that, records show, the administration was able to manipulate communities by promising schools and other amenities to those communities that agreed to plant cash crops and do other things required of them. Voluntary communal labour was transformed into compulsory labour and extracted through corporal punishment and the dreaded poll tax.

Contracts for technical assistance these days require hired expatriate consultants to transfer skills to the indigenous staff. However, the fact that certain positions remain “expatriate” positions speaks volumes. These days African labourers on foreign-managed project sites are treated no better than the colonialists treated labourers. Ugandans at foreign-owned building sites have made numerous complaints about underpayment, lack of access to safety gear, harassment, sexual exploitation and even violence. In Uganda and elsewhere, some have been served lunch on their shovels. In the 1990s, Ugandans were made to squat in a line, one man between the legs of another. The reason given was that they kept losing/stealing the plates provided.

Chinese abuse of African workers’ rights, importation of labour, disregard for Ugandan environmental preservation and disdain for the communities among which they work is a repetition of the first invasion of capital and demonstrates the extremes to which it goes when left unfettered.

Route and service politics

The original plan had been for the railway to serve farming areas. Tax revenues from the crops would cover the cost of the construction. Introducing cotton and providing a fast means of exporting it was supposed to lead to development. Once the settlers came to know the route, the influential among them lobbied to have the railway diverted to serve their plantations.

The question of whose interests the SGR serves, as raised by Rasna Warah in a recent article published in the eReview, was as valid in the 1890s as it is today. In Kenya, the lack of “native”-directed development meant that there were insufficient railway stations between Mombasa and Lake Victoria for African requirements. It goes without saying that the interests of indigenous populations were not included in the plan. As a result, indigenous farmers had to carry their cotton long distances to the tracks – often in five shifts of one 60-pound bag at a time – and had to spend one or a few nights along the track, sleeping in the open air while waiting for the train.

Because in the beginning there were insufficient carriages and the few available were segregated, the Africans travelled in wagons. They were locked in for the safety and comfort of the first class travellers. Often, as some members of Westminster’s parliament were scandalised to learn, African passengers were unable to alight on arrival at their intended destinations despite banging on the wagon doors and were carried all the way to the next stop or to the Coast.

It goes without saying that the interests of indigenous populations were not included in the plan. As a result, indigenous farmers had to carry their cotton long distances to the tracks – often in five shifts of one 60-pound bag at a time – and had to spend one or a few nights along the track, sleeping in the open air while waiting for the train.

During the debate of the East Africa Commission Report in 1925, Henry Snell articulated the role of capital in distorting the higher development goals of bringing development to Africa,

“The land through which these railways pass [belonging to Settlers] should be taxed to help bear the cost that is involved. In the matter of transport it has been the case, unfortunately, that the Europeans have acquired the idea that railways should be built solely for their benefit, and that money granted as loans or in any other form should be entirely devoted to the white races. If by any chance a railway passes through native reserves, the cry is immediately raised that the land contiguous to the railway is too good for native use, and the native is therefore driven away, or it is urged that he should be removed to some less accessible position. It was on such a plea as that the Maasai were robbed of their country, and plots of land varying from 5,000 to 300,000 acres were given to Europeans for no other reason than that they were covetous of it and that it was in close touch with the railways.

“These extra facilities for transport can only be justified if at the same time the native interests are completely safeguarded. At the present time the difficulties are immense. The native has to raise from 10s. to 16s. per annum for hut tax, and he has to pay this almost entirely out of the material he is able to sell. That involves him in carrying a load of 60 lbs. for 40 miles. To pay this tax he may have to go as many as five journeys of 40 miles, with the 60 lb. load on his head, making for the return journey a distance of 400 miles. That is economic slavery of a most indefensible kind, and of a kind worse than was ever known in the Southern States of America. The roads are very frequently impassable because of bad weather.” (Henry Snell, M.P. East Africa Commission Debate, 1925)

Land grabbing and the Rhodesian Railway

Planning, finance, procurement, labour – what more could go wrong? Answer: speculation. The major and most lucrative railway scam was the use of the railway as a vehicle for displacement of populations and acquisition of their land by speculators. The land was acquired by those who had already been given free or cheap land by the Imperial government and were in a position to leave it idle.

“One syndicate got 500 square miles from the Foreign Office, over the head of the then Governor of Kenya. That is a fairly extensive slice of territory to be handed away. Then there was a grazing land syndicate, called the East African Syndicate, which applied for 320,000 acres, and Lord Delamere, a notorious figure in these parts, applied for 100,000 acres. If one syndicate gets 500 square miles, another gets 320,000 acres, and another applies for 100,000 acres, there is some prima facie evidence of speculators in Kenya.” (Thomas Johnston, Kenya debate, December 1926.)

In Rhodesia, as in Kenya, this resulted in large tracts of land being bought on either side of the proposed track by investors. In both territories the value shot up exponentially as the railway approached. Once the route for the Rhodesian railway was set out, a strip measuring twelve miles wide was carved out alongside taking in parts of Native Reserves. Meanwhile, the Msoro tribe of over 2,000 was displaced in favour of three settlers.

By 1920, Rhodesians had already been corralled in Native Reserves. The 48,000 white settlers had been allocated 48 million acres while the 800,000 Africans had the “right” to reside in (but not own any part of) reserves measuring 8 million acres. Most of the rest of the territory still belonged to the British South African Chartered Company (BSAC) that had deposed both the Mashona and Matabele kings and seized their territory.

After 1919, the British South African Company transferred what was left over from sales of this territory to the British Crown in return for a much disputed bail-out. The bail-out was controversial because under its agreement with the Crown, the BSAC was allowed to reimburse itself for work it did on behalf of the Crown by engaging in business. The Company had earned an income from the sale of millions of acres of land and mining concessions and had exported ivory and minerals, all under the protection of the British flag and therefore the British military. This was supposed to be their “compensation”. However, breaking the rules of the charter, the Company inter-mingled its own private accounts with those of the administration of the colony, making it difficult to separate the cost of government work and BSAC business. Just as with the British East African Company when it was leaving the area, the BSAC was further “compensated” with taxpayers’ money.

By 1920, Rhodesians had already been corralled in Native Reserves. The 48,000 white settlers had been allocated 48 million acres while the 800,000 Africans had the “right” to reside in (but not own any part of) reserves measuring 8 million acres. Most of the rest of the territory still belonged to the British South African Chartered Company (BSAC) that had deposed both the Mashona and Matabele kings and seized their territory.

During the controversy, a secret agreement between the BSAC and the British government came to light under which the government had agreed to reimburse the BSAC if it deposed King Lobengula. BSAC recruited European settlers, promising each a lease of a 6,000-acre farm at 30 shillings a year. They were also offered the option of buying the farm outright at the cost of 3 pounds sterling per 20 acres or 900 pounds for 6,000 acres.

After the successful campaign, the British government paid the lease and purchase costs for the recruits. Those not wishing to purchase were reimbursed for improvements they had made on the properties. In total, £7 million was demanded, half for the recruits and half for the shareholders. All opposition in Parliament was silenced by the Colonial Secretary, public eugenicist Lord Amery, when he revealed that a Commission of Inquiry had exonerated the BSAC and its recruits of any wrong-doing in massacring the Matabele and deposing their King. They eventually settled for £4 million pounds in 1922, a sum roughly equivalent to the Colonial Office’s budget for four years.

The need for public oversight

In his essay “Mexico proved that debt can be repudiated”, published on 24 March 2017, Eric Toussaint devotes a section on showing the links between commodity extraction, railways for transporting the commodities, and loans required to finance the extraction and transport of the commodities. He demonstrates the impact these had on land ownership, the displacement of peoples, the national debt, and a clique of investors.

It is interesting to note that in South America, as on the African continent, railways did not serve to connect communities and countries but rather led straight from the point of extraction of commodities to the point of export. The entire operation was eventually paid for from the indigenous public purse.

Like chartered companies, 21st century local agents for foreign investors enjoy political and military protection by the foreign countries they serve. This phenomenon was most evident in Mexico where various debt repudiations resulted in military invasions and threats of invasion by the United States, Britain and France. Most interestingly, Mexican citizens who had lent to their government were granted European nationality after which their new countries included them among those whose rights were being defended by the invasions. They came to be known as vende patrias – sellers of their country. Then, as now, bail-outs came from taxpayers’ money.

In modern times, attempts to repudiate illegitimate debt or to choose other paths that do not profit financiers still lead to regime change. Today they take the form of grants and NGO funding, which attempt to fill the holes left by diversion of national resources. What a bail-out means is that when an investor makes a profit, it all belongs to the investor. Where s/he makes a loss, it is spread among taxpayers. As Noam Chomsky famously stated, “A basic principle of modern state capitalism is that cost and risk are socialised, while profit is privatised.”

What a bail-out means is that when an investor makes a profit, it all belongs to the investor. Where s/he makes a loss, it is spread among taxpayers. As Noam Chomsky said, “A basic principle of modern state capitalism is that cost and risk are socialised, while profit is privatised.”

There can be no real progress until a critical mass of the electorate makes the connection between foreign capital, its local agents and underdevelopment. As Frederick Douglass put it, “If there is no struggle there is no progress[.…] Power concedes nothing without a demand. It never did and it never will.”

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Mary Serumaga is a Ugandan essayist, graduated in Law from King's College, London, and attained an Msc in Intelligent Management Systems from the Southbank. Her work in civil service reform in East Africa lead to an interest in the nature of public service in Africa and the political influences under which it is delivered.

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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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