Connect with us

Politics

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

Published

on

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

“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.”

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

By

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.

Politics

Would Ochieng Still Accuse the Press 30 Years Later?

The Kenyan media landscape has changed drastically in the time since Philip Ochieng wrote I Accuse the Press but the core of his argument remains pertinent.

Published

on

Would Ochieng Still Accuse the Press 30 Years Later?
Download PDFPrint Article

Dark prologue

Veteran journalist Philip Ochieng Otani exploded onto Kenya’s journalism scene in 1966 as a reporter for the Daily Nation aged 28. The country was just beginning to shed off the baggage of violent colonial rule, ushering in a new decade of political and cultural independence. However, beneath the promise of a glowing future that saw more black Africans take over from the British, the country was also starting to write a prologue to its self-destruction. By 1965 nationalist Pio Gama Pinto was dead. Jaramogi Oginga Odinga angrily resigned from Kanu the following year to form his party, and three years later Economic and Planning Minister Tom Mboya was cut down by an assassin’s bullet in broad daylight. The Kenyan press, though now relatively free and able to finally “concern itself with finding out what goes on in the mind of the African”, as Mboya had earlier put it, later suffered the cascading political events that would have a lasting effect on its editorial policies.

Ochieng published I Accuse the Press: An Insider’s View of the Media and Politics in Africa in 1992, crystallising his wide-ranging thoughts around three central issues: the question of media ownership, self-censorship among editors and the know-how of journalists. He extended the idea of know-how to know-why, whereby the journalist is not just a conveyor belt of information but also has the necessary analytical sensitivity to break down the information for the reader’s benefit.

Born a precocious child in Awendo, Western Kenya, a story is told of how the then Alliance High School principal Carey Francis drove several kilometres to Ochieng’s village to convince him to return to school. Ochieng, as the legend goes, had entangled himself in bad company and was on the verge of dropping out of education, which he eventually did – not from Alliance, but from Roosevelt University in the US, where he had enrolled after benefitting from the Kennedy Airlift programme of 1959. These rather disparate intellectual foundations shine with dazzling brilliance through the pages of his book, illuminating the history of the Kenyan press that has had a profound impact on the current media landscape.

Media ownership and its dangers 

Along Tom Mboya Street, just across the Khoja Mosque roundabout, is a building that used to house the Daily Nation offices. It is now called Old Nation House and only the name remains as a reminder that a media house once stood on the busy street. The building now houses shops, the sidewalk colonised by hawkers, make-shift confectionary stalls, booksellers, fruit sellers, clothes vendors, chemist shops and MPesa outlets. On the surface, the city is booming. A new world order brought about by advancements in digital technology and a liberalised media means that most of these traders don’t really care about media gatekeepers. Should they? Nation Media Group, which owns Daily Nation among other media products, and which is itself owned by Aga Khan IV, later moved to the relatively quiet Kimathi Street. Over the years, it has undergone radical transformations, unlike when Ochieng worked there, especially in the heady 1970s and 1980s, which form the backdrop of his long and intellectually stimulating musings.

Ochieng’s take on media ownership falls into three broad categories: foreign-owned, indigenous-owned and state-owned. These categories often overlap, in that a foreign-owned publication, such as Daily Nation, also has its indigenous Kenyan journalists, and editorial matters (or decisions) are left strictly to those tasked with running the paper – who in this regard include the top editors, led by the editor-in-chief. Indigenous-owned media, on the other hand, is in the hands of Kenyans but can also be susceptible to outside influence, like in the case of Hilary Ng’weno’s string of publications, which urgently needed a bailout after he plunged into financial headwinds. The indigenously-owned media outlet that is most familiar to Kenyans today is S.K. Macharia’s Royal Media Services.

Interestingly, Ochieng makes a compelling argument about the relationship between media ownership and press freedom. For example, he says, in special circumstances, state ownership “has tended to safeguard freedom – not only of the Press but the whole society – from material wants much more genuinely than has private ownership”. He goes on to cite Tanzania, where the state-owned papers in the 1970s played a vanguard role in protecting the gains of independence, while at the same championing Ujamaa – a socialist ideology aimed at self-reliance. While that statement would today sound unpopular, conservative, and be even deemed right-wing, there is a grain of truth to it. Private media ownership on the other hand, as the author vividly illustrates, does not necessarily mean there is press freedom.

Ochieng makes a compelling argument about the relationship between media ownership and press freedom.

A case in point is how the mainstream media handled the 2013 and 2017 general elections. Hiding behind a peace narrative, or what some observers have called “peacocracy”, the media tiptoed around the underlying issues that ignited the flames of electoral violence. The media on this occasion failed in its role, which Ochieng says is to provide “a full analysis of the whole system”. By becoming that which it was supposed to critique, the media lost the trust of a large swathe of the Kenyan audience. And this is why the argument for state-ownership of a newspaper or broadcaster (KBC, for instance) becomes relevant because, at the very least, the audience knows what to expect.

However, the argument about state ownership should not be endorsed wholesale. The case of the Kanu-owned Kenya Times, and its infamous “Kanu Briefs”which Ochieng has been placed at the centre of, for orchestrating a sustained smear campaign against politicians and intellectuals who were against the ruling party is a chilling reminder that the state must never have unchecked control of a country’s political and cultural consciousness. In recent years, politicians have been linked to various media houses, and this in itself is not a bad thing; however, vigilance must be maintained at all times to guard the media against direct political interference.

Then came the internet. Then social media. Then Facebook.

When a 20-year-old computer science and psychology student at Harvard University wrote code for a website project that would later become the interactive platform named Facebook, few could imagine the technological dividends the millennials and Generation Z would reap, accustomed as they were to filtered news and omnipresent gatekeeping (particularly the millennials). There was a fundamental shift in media ownership because if you had a social media account, you could now publish, broadcast and counteract news from mainstream sources such as newspapers and television. One could also start a blog,  an online newspaper or magazine, or a YouTube channel, qualifying Ochieng’s statement that “freedom of expression is primarily a technological question”. This means that the question of media ownership and the idea of a free press in the 21st century can no longer be merely about buying shares in a media company and telling news managers and editors what to publish and what to censor.

While there are indeed genuine concerns with the citizen journalism promoted on social media platforms, especially with the rise of misinformation and disinformation that threatens the social fabric of society, the gains made so far cannot be downplayed. But how these platforms can counter narratives of self-censorship by proxy, as Ochieng puts it in his book, matters more.

The question of self-censorship

Ochieng makes a lucid argument that self-censorship affects media independence because readers do not get the value of what they pay for. More importantly, self-censorship is informed by the commercial interests of corporate mass media because “whoever owns the majority of the shares” of a particular media company will definitely affect its overall editorial policy. I want to demonstrate a recent example of what perfectly encapsulates self-censorship on the part of the Kenyan press.

During the 2017 general election, a 41-year-old man wearing a pair of brown trousers, a matching brown coat, a black and white shirt, and clutching a bag of githeri in his left hand, burst onto the media scene and became an instant sensation. Martin Kamotho, for that was his name, became the subject of wild adoration. It was, however, the manner in which the mainstream press glorified Kamotho that later became the subject of intense debate. The country was already in the grip of political tension – as usually happens during a general election – and Kenyans were beginning to question whether the polls would indeed be credible following the murder of Chris Msando, a key IEBC official. Claims that critical IT infrastructure used to transmit the results had been hacked were also of general concern. There was an overall perception that the media as an institution had learned its lessons in the 2013 general election and that it could not trust the state when it comes to setting the agenda in election reporting.

Ochieng makes a lucid argument that self-censorship affects media independence because readers do not get the value of what they pay for.

However, the case of Kamotho, later christened “Githeri Man”, exposed the crass hypocrisy of the mainstream media and its cunning ability to censor itself because it knew it could not muster the courage to answer the tough questions Kenyans were asking. Ochieng is, therefore, right that there are “the kinds of chains with which owners, managers and editors tie their own media in order to make them conform to the total ethos of the ruling class [that] cannot be seen by the majority of the people”. However, Kenyans saw through the game that was being played, and the backlash was immediate. Mainstream media was quickly baptised “Githeri Media” – purveyors of fake news, disinformation and misinformation, state apologists, propagandists who, as the fourth estate, had failed in their role to keep the government accountable.

The media’s fixation with “Githeri Man” was not just about pleasing the political class or protecting its (the media’s) commercial interests. It was also about the glaring absence of know-why among journalists – the ability to ask why a certain narrative is being vigorously promoted and not another, and what effects such an editorial policy has on the health of Kenyan journalism.

Shift towards know-why journalism 

Ochieng writes that “as long as [media] training stresses little more than technique and avoids the whole problem of self-consciousness” then “training can only serve as an instrument for perpetuating the present international economic and intellectual order”. Journalism as an enterprise then becomes what I called earlier a mere conveyor belt of information, which serves no purpose in making us more aware of the immediate problems of the 21st century such as climate change, the dangers of identity politics, pandemics, repressive immigration laws, the rise of far-right ideology and the tyranny of social media companies, among others.

Kenyans saw through the game that was being played, and the backlash was immediate.

Know-why journalism, however, cannot fully bloom without sufficiently addressing the issue of know-how. The latter, which at the most basic level is about technique, is also about understanding the shifts in media operations, and how to adjust to those changes. Know-how then means having the ability to tell stories across varying multimedia platforms that include podcasts, videos, and texts. And because consumer tastes have also evolved over the years, know-why journalism can only succeed when know-how as a skill has been extensively sharpened.

Closing curtain

Ochieng danced to the land of no return on 27 April 2021, aged 83 years. During an interview with the Saturday Nation, when asked if he “would make the same accusations” in I Accuse the Press, he said he was still likely to do just that, but be “more enlightened and thoughtful about it.” However, by standing up to the hypocrisy of the mainstream media and its connivance with the state and Western business interests, Ochieng had set the stage for a new chapter of self-criticism for journalists and media practitioners. Ochieng stood with the audience in demanding that the media play its watchdog role more effectively by delving deeper in its analysis of issues.

Continue Reading

Politics

Is It the IEBC Chairperson or the Commission Who Declares a President-Elect?’

On the limited point of whether Chebukati had the power to make the declaration that he did on 15th August, 2022, we are of the view that he did and that in doing so he has fulfilled the obligations required of his office in accordance with the principles of the Constitution and the relevant election laws.

Published

on

Is It the IEBC Chairperson or the Commission Who Declares a President-Elect?’
Download PDFPrint Article

After a tallying process which ran from 9 August to 15 August 2022, Independent and Electoral Boundaries Commission (IEBC) Chairperson Wafula Chebukati declared that Hon. William Ruto had met the constitutional threshold for election as president and is therefore the President-elect. Moments before this announcement, four IEBC Commissioners—Juliana Cherera, Francis Wanderi, Irene Masit and Justus Nyangaya—issued a statement to the press disavowing the results and alleging that, due to the ‘opaque nature’ of the way the final ‘phase’ had been handled, they could not ‘take ownership’ of the results. A day later, the four Commissioners provided their reasons for disavowing the Chairperson’s declaration, key among them being that the Chairperson excluded them from the decision to declare Hon. Ruto as president-elect. Hon. Ruto’s chief competitor, Hon. Raila Odinga, has also rejected the results on similar grounds.

We have been here before of course. In 2017, there was a fallout between Chebukati and three of his Commissioners on the basis that the Commissioners did not agree with Chebukati’s leadership. As we have argued previously, the IEBC is in need of structural reform.

The events of 15th and 16th August, 2022 have stirred debate about the roles envisaged for the IEBC Chairperson and its Commissioners by the Constitution and Kenya’s election laws. Does the Chairperson’s declaration square with the law? Was he required to have a majority of the Commissioners in agreement with his declaration? Is the declaration of a winner a mere ceremonial function of the Chairperson?

The constitutional and statutory framework

Before answering these questions, it is important to look at the relevant Constitutional and statutory framework.

The IEBC is established by Article 88 of the Constitution which in sub-article (5) states that “[t]he Commission shall exercise its powers and perform its functions in accordance with this Constitution and national legislation”. The Independent Electoral and Boundaries Commission Act (IEBC Act) was then enacted in 2011 to operationalise the entity and is the “national legislation” envisaged in the Constitution.

In relation to presidential elections, the Constitution, in Article 138(3)(c), provides that “after counting the votes in the polling stations, the Independent Electoral and Boundaries Commission shall tally and verify the count and declare the result”.

Article 138(10) of the Constitution then provides that “[w]ithin seven days after the presidential election, the chairperson of the Independent Electoral and Boundaries Commission shall –

  • declare the result of the election; and 
  • deliver a written notification of the result to the Chief Justice and the incumbent President.

Section 39 of the Elections Act provides, in part:

“(1C) For purposes of a presidential election, the Commission shall – 

  • electronically transmit and physically deliver the tabulated results of an election for the President from a polling station to the constituency tallying centre and the national tallying centre; 
  • tally and verify the results received at the constituency tallying centre and the national tallying centre; and
  • publish the polling result forms on an online public portal maintained by the Commission.

(1E) Where there is a discrepancy between the electronically transmitted and the physically delivered results, the Commission shall verify the results and the result which is an accurate record of the results tallied, verified, and declared at the respective polling station shall prevail.

(1H) The chairperson of the Commission shall declare the results of the election of the President in accordance with Article 138(10) of the Constitution.”

Regulation 83(2) of the Election (General) Regulations, 2012 provides that “[t]he Chairperson of the Commission shall tally and verify the results received at the national tallying centre.” Further, Regulation 87(3) reads, in part:

“Upon receipt of Form 34A from the constituency returning officers under sub-regulation (1), the Chairperson of the Commission shall – 

  • verify the results against Forms 34A and 34B received from the constituency returning officer at the national tallying centre; 
  • tally and complete Form 34C;
  • announce the results for each of the presidential candidates for each County;
  • sign and date the forms and make available a copy to any candidate or the national chief agent present;
  • publicly declare the results of the election of the president in accordance with Articles 138(4) and 138(10) of the Constitution;
  • issue a certificate to the person elected president in Form 34D set out in the Schedule; and
  • deliver a written notification of the results to the Chief Justice and the incumbent president within seven days of the declaration…”

Unpacking the legal position 

So, what does this all mean?

Immediately polls close, the Elections Act and its subsidiary legislation require presiding officers at each polling station to openly count ballots and declare the result. The result from each polling station within a constituency is then aggregated at constituency level and a result of this aggregation is declared by respective constituency returning officers. This process is then replicated at the national tallying centre where the Chairperson of the IEBC serves as the returning officer for the presidential elections declares the winner.

Both the IEBC Commissioners and Hon. Odinga have, in their public statements on Chebukati’s declaration of Hon. Ruto, sought to rely on a Court of Appeal decision, IEBC v Maina Kiai & 5 others [2017], suggesting in effect that the role of national returning officer does not exist and that the Chairperson is not vested with the power to declare a result without consensus or a majority decision of the Commissioners. However, this is not an accurate account of the issue before the court and its eventual holding. The issue before the court in Maina Kiai related, principally, to the ability of the Chairperson to alter results during the verification process. In question, were certain provisions of the Elections Act and the Elections (General) Regulations which provided that results declared at polling station level were ‘provisional’ and ‘subject to confirmation’, vesting in the Chairperson the ability to alter results at the national tallying centre. The Court of Appeal confirmed the constitutional and statutory position that the result declared at the polling station by presiding officers is final and cannot be altered by anyone other than an election court.

The Court was abundantly clear that Article 138(3)(c) deals with counting, tallying, verification, and declaration by the presiding officer at the polling station level and returning officers at each subsequent level, and not just the Chairperson at the Commission level. In other words, in discharging its mandate under Article 138(3)(c), the IEBC, which is a body corporate, acts through its representatives who are the presiding officers and returning officers. In undertaking the verification exercise at subsequent levels after the polling station, the respective officers are simply required to confirm whether the tally at each level conforms to the declaration which was made by the presiding officer at the polling station and to declare this result. Consequently, the constituency returning officer and the national returning officer (who is the IEBC Chairperson) cannot alter the results in any way when making these declarations. This is the mischief that the Maina Kiai case addressed, and in doing so, it invalidated certain sections of the Elections Act and the Elections (General) Regulations which suggested that results at the polling station level were provisional and subject to alteration or confirmation by the Chairperson. By doing this, the Court of Appeal aligned these laws with the Constitutional position.

Notably, Regulation 83(2) and 87(3) of the Election (General) Regulations which we quoted above, and which empower the Chairperson to tally, verify, and declare the results received at the national tallying centre, were not the subject of the Maina Kiai decision, and as such were not invalidated.  However, the Court of Appeal clarified that in tallying and verifying results, the Chairperson is bound by the results declared at each polling station which are final. Indeed, in the Maina Kiai case, the Court of Appeal recognised the special role of the Chairman and stated:

It cannot be denied that the Chairperson of the appellant has a significant constitutional role under Sub-Article (10) of Article 138 as the authority with the ultimate mandate of making the declaration that brings to finality the presidential election process. Of course, before he makes that declaration his role is to accurately tally all the results exactly as received from the 290 returning officers country-wide, without adding, subtracting, multiplying, or dividing any number contained in the two forms from the constituency tallying centre. If any verification or confirmation is anticipated, it has to relate only to confirmation and verification that the candidate to be declared elected president has met the threshold set under Article 138(4), by receiving more than half of all the votes cast in that election; and at least twenty- five per cent of the votes cast in each of more than half of the counties.”

So, if anything, the Maina Kiai decision reinforced the role of the Chairperson as the national returning officer of the presidential election, contrary to the statement issued by the four Commissioners on 16th August which alleged that such a role does not exist.  Further, the Supreme Court of Kenya in the Joho v Shahbal case made it clear that a declaration takes place at each stage of tallying, implying that the verification and declaration process is not the preserve of the Commissioners. It is done by the respective presiding and returning officers at each stage. The High Court, at an earlier stage of the same case, had confirmed that declarations are made through formal instruments, which in the electoral context, are the certificates issued by the respective returning officers. To render even more clarity, in its majority decision in Petition 1 of 2017 Raila Odinga v IEBC & 2 others [2017], the Supreme Court stated that ‘[t]he duty to verify in Article 138 is squarely placed upon the IEBC (the 1st respondent herein). This duty runs all the way from the polling station to the constituency level and finally, to the National Tallying Centre. There is no disjuncture in the performance of the duty to verify. It is exercised by the various agents or officers of the 1st respondent, that is to say, the presiding officer at a polling station, the returning officer at the constituency level and the Chair at the National Tallying Centre’.

With both the Constitutional and statutory framework and this recent jurisprudence in mind, it is apparent that when it comes to the declaration of results, the Chairperson is not merely performing a ceremonial role on behalf of the Commission but has a singular responsibility to discharge a constitutional duty to declare a president-elect after verifying the results. Once the presiding officers and constituency returning officers discharge their mandate, they hand the baton to the Chairperson for him to also do so. He therefore does not discharge his mandate in isolation or in an arbitrary manner; his role is hinged upon other IEBC officers at various levels dispensing with their mandate. Like the rest, he may not deviate from the declaration made at the polling station. In that way, he acts as a representative or an agent of the entire IEBC in discharging his mandate. This position is aligned with the Elections (General) Regulations and the Supreme Court’s decision in Raila v IEBC which provide that the Chairperson, as the IEBC’s agent, can verify the results and make a declaration. For these reasons, Chebukati’s declaration, we argue, is in accordance with the law.

In public debates following Chebukati’s declaration of a president-elect, there has been an argument in some quarters that the Second Schedule to the IEBC Act and in particular paragraph 7 which reads “[u]nless a unanimous decision is reached, a decision on any matter before the Commission shall be by a majority of the members present and voting”, suggests that the dissension of the majority of the Commissioners on grounds of ‘opaqueness’ meant that Chebukati did not have the authority to make the declaration. Azimio La Umoja Coalition Party presidential candidate Hon. Odinga forms part of the individuals advancing this argument when rejecting the legality of Chebukati’s declaration of Hon. Ruto as president-elect. The Second Schedule is made pursuant to Section 8 of the IEBC Act which provides that “[t]he conduct and regulation of the business and affairs of the Commission shall be provided for in the Second Schedule but subject thereto, the Commission may regulate its own procedure.” The Second Schedule is akin to the provisions of the Articles of Association of a company which deals with how board meetings are conducted.  It deals with matters such as how meetings are called, how quorum is formed and other such administrative matters. Note that paragraph 7 is specifically limited to matters ‘before the Commission’. As set out in the preceding paragraph, the declaration of a president-elect is a matter for the Chairperson and not a matter ‘before the Commission’.

In any case, those arguing the contrary have two further obstacles to overcome. Firstly, how do they reconcile their position with the clear constitutional injunctions imposed on the Chairperson by Article 138(10) requiring the Chairperson to declare the results of the Presidential election within 7 days after the Presidential election. What did they expect Chebukati to do? Continue negotiating with the dissenting Commissioners and allow the 7 days to expire? If so, does this mean Chebukati should place the views of his Commissioners above the Constitutional requirement in Article 138(10) even though, at each stage, representative officers of the IEBC verified, declared, and made the results public?  The reason for Article 138(10), in our view, is obvious. In matters relating to the transfer of Presidential power, certainty of process and timing is critical. One cannot leave matters in abeyance and risk a constitutional crisis with an incumbent holding on or causing the delay in the assumption of office by his successor. This would be a recipe for a constitutional crisis with a myriad of implications for Kenyans, especially in relation to their safety and security.

Ultimately, Chebukati’s decision is not final: there is the Supreme Court to which those disgruntled by his declaration can appeal. Although not final, finality in the process of tallying and subsequent declaration is critical. To take such a dramatic step of disavowing the results at a moment when the country was on edge, we would have thought that the four Commissioners would present some compelling evidence pointing to miscalculation on the part of Chebukati in the tabulation of the statutory forms 34A, 34B and 34C. Kenyans have not yet been presented with any such compelling evidence.

Turning to the absence of compelling evidence, one would expect a detailed explanation from the four Commissioners. In their statement following their initial announcement, they disclosed four reasons for their dissent. The first was in relation to the aggregation of the tally surpassing 100% by a margin of 0.01%. A simple calculation reveals that the error may be attributable to the Chairperson rounding the figures upward for purposes of the declaration.

Their second reason was that the Chairperson, in his declaration, did not indicate the total number of registered voters, the total number of votes cast or the number of rejected votes. The declaration of results form available on the IEBC’s website indicates that this is not true as the declaration form does contain all this information.

In their third reason, the Commissioners relied on the Maina Kiai decision to allege that the “Commission has to process the results before they are declared and announced by the Chairperson”. As we have set out above, the Court of Appeal in Maina Kiai indicated that the IEBC, as a body corporate, acts through its officers, specifically the presiding and returning officers who fulfil the IEBC’s obligation under Article 138(3)(c) of the Constitution on the institution’s behalf. Given the results were, at each stage, tallied, verified, and declared by presiding and returning officers including the Chairperson, it is not immediately clear what further ‘processing’ the Commissioners wanted to subject the results to, especially when the Court of Appeal explicitly held that once declared at constituency level, a result is final. The law certainly does not disclose a role for these Commissioners to ‘process’ these results any further. It only envisions a role for the Chair to verify the results and make a declaration. The reliance on Maina Kiai is also misleading in the sense that it implies the Chairperson acted in isolation and in an arbitrary manner, yet he was clearly bound to the results declared by other officers at the polling station level which were publicly available.

Their final reason was that the Chairperson made his declaration before several constituencies had their results declared. The Elections Act provides that the Chairperson may only do so if “in the opinion of the Commission the results that have not been received will not make a difference with regards to the winner”. However, the challenge with this reason is that the Chairperson did not indicate that his declaration was made on the basis that the results were not complete and that the remainder would not make a difference. Perhaps at the Supreme Court, this ground will be elaborated on further.

In light of the above, on the limited point of whether Chebukati had the power to make the declaration that he did on 15th August, 2022, we are of the view that he did and that in doing so he has fulfilled the obligations required of his office in accordance with the principles of the Constitution and the relevant election laws.

Continue Reading

Politics

Arror & Kimwarer Dams Saga: Fighting Corruption or Realpolitik?

The cases at the Milimani Anticorruption Court provide few concrete answers amid claims that the investigations into the Arror and Kimwarer Dams projects are politically motivated to weaken Deputy President William Ruto who is running for the presidency.

Published

on

Arror & Kimwarer Dams Saga: Fighting Corruption or Realpolitik?
Download PDFPrint Article

A joint investigation by IrpiMedia and The Elephant

Soon after Uhuru Kenyatta and his deputy William Ruto secured a controversial second term in November 2017, investigations begun into the procurement and financing arrangements surrounding the Arror and Kimwarer dams in the Rift Valley county of Elgeyo Marakwet.

The dams had been commissioned years earlier, and billions had been paid out but there was nothing on the ground to show for either dam. The Kimwarer project has since been cancelled, the Arror one scaled down, and eight defendants today face charges of conspiring to defraud the government of nearly Sh60 billion. However, there have been claims that the investigations and prosecutions are politically motivated and aimed at weakening Deputy President William Ruto who is running to becoming Kenya’s fifth president. Just this week, during the presidential debate, Ruto essentially said the dams were casualties of the 2018 fallout with his boss. This has been many times denied by the Director of Public Prosecutions.

The two cases dealing with the dams at the Anti-Corruption Court in Milimani, Nairobi, focus on alleged irregularities in the tendering and contracting of the dams as well as alleged illegal payments made to two Italian companies. The crux of the ODPP’s case is that officials of Kerio Valley Development Authority and the national government colluded to grant CMC di Ravenna and its joint venture partner, Itinera S.P.A, a contract for the construction of the two dams for which they had not won the tender and that differed fundamentally from the terms advertised in December 2014, which called for proposals for the “funding, design, build and transfer” of the dams. The eight Kenyan officials in case No. 20 of 2019 and the 18 Italian companies and individuals in case No. 21 of 2019, are accused of executing a sleight of hand, initially pretending that the contractors would mobilize money from the Italian government to build the dams and then switching it to a commercial loan with the government as the borrower. Furthermore, instead of the borrowed money being deposited into the Consolidated Fund as the constitution prescribes, on the contrary, it was sent directly to the contractor. In the ODPP’s view, this is where the fraud arose.

The initial contracting model selected was Engineering, Procurement, Construction and Financing where the contractor also arranges financing for the project through tie-ups with financing institutions. They can be useful when contractors have better access to low-cost financing, including state-provided export-import financing. However, the Parliamentary Service Commission has noted that these contracts are vulnerable to abuse and in 2019 parliament suspended 20 dam projects, including Arror and Kimwarer, saying “Kenyans [were] not getting value for money in this model”.

According to the ODPP, the tendering process for the two dams was riddled with irregularities. In an affidavit sworn in February 2020 on behalf of the DPP, Police Constable Thomas Tanui states that, unlike the Arror dam, the Kimwarer project had not been approved by the Cabinet, as required by the 2013 Public Private Partnership Act (PPA). Further, in the course of the process, the tender documents for CMC di Ravenna were illegally altered at least twice to switch CMC’s joint venture partners from South Africa’s AECOM to a company only known as MWH, and then again to Itinera S.P.A. And while it was Italy-based CMC di Ravenna that made the bid, the tender was awarded to South Africa-based CMC di Ravenna, a different legal entity with whom KVDA signed Memoranda of Understanding regarding the two dams in December 2015 and February 2016 that were meant to end with the signing of concessional contracts within 8 months.

However, the MOUs expired without the concessional contracts being signed and instead, on 5 April 2017, the KVDA signed commercial contracts for the construction of both dams with the Italian CMC di Ravenna and its joint venture partner Itinera S.P.A. for a total combined amount of US$501.8 million, including 10 per cent contingencies that had not been negotiated for under the concessional agreements.

In his affidavit, PC Tanui avers that the dam projects were conceived as concessionary projects under the PPA but were surreptitiously converted into a commercial instead of a concessional contract. However, what the ODPP means by “concessional contract” and how that differs from a commercial contract is not clear. There’s no mention of a “concessional contract” in the PPA which defines a concession as “a contractual licence . . . entitling a person who is granted the licence to make use of the specified infrastructure or undertake a project and to charge user fees, receive availability payments or both”. While the law allows government agencies to “enter into a project agreement with any qualified private party for the financing, construction, operation, equipping or maintenance” of infrastructure, none of the 15 types of public private partnership arrangements it lists in its second schedule seem to fit what KVDA had initially advertised.

However, perhaps what the ODPP refers to as a “concessional contract” is a reference to the way the project was to be funded. According to press reports and Richard Malebe’s petition, the initial charges alleged that  the national government and KVDA officials as well as the Italian companies conspired to “entered into a commercial loan facility agreement disguising it as a government-to-government loan guaranteed by the Italian Government . . . ‘while knowing the tender document contained in the request for proposals for the development of the dams project was a concessional agreement where the intended concessionaire was to be the borrower and financier and not the Government of Kenya’”. In essence, by substituting the commercial contract for the concessional one, rather than an arrangement where Government only paid once the dams were delivered, with the contractor and financiers assuming all the risk, it was the public that was left holding the baby when things went wrong. If anything, the Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.

A Treasury press statement dated 28 February 2019, signed by one of the accused, former Cabinet Secretary Henry Rotich claims that the financing agreement for the two dams was “government-to-government” with the Italian government—represented by the 100 per cent owned Servizi Assicurativi Del Commercio Estero (SACE)—providing “insurance cover and financial support” amounting to close to 88 per cent of the total loan amount, with a consortium of four banks led by Intesa Sanpaolo said to provide the rest. The statement details “the Conditions Precedent”, which were payments apparently required before funds could be released to the government and the contractor. These include €7.83 million (Sh951 million) in fees and commissions and €94.2 million (Sh11.4 billion) in credit insurance to cover lenders for both dams. In addition, another US$75.2 million (Sh9 billion), or 15 per cent of the total contract sum for both dams was paid out to the contractor.

The Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.

The Treasury claims these fees and advances were provided for and paid from the loan from SACE and the banks, not Exchequer funds. This aligns with a November 2019 note by SACE to the Italian foreign ministry which states that the agreement required the “payment of the sums due by the Contracting Authority to the CMC-Itinera joint venture through direct disbursement by the lenders on a current account of the contractor opened outside the State of Kenya” —a violation of the Kenyan constitution which requires all sums borrowed by the government to be deposited in the Consolidated Fund. However, according to both CMC-Itinera and a confidential analysis by the ODPP seen by The Elephant, the advance payment was for a total of €66.6 million (Sh8.09 billion), a discrepancy of nearly Sh1 billion. (It should be noted that the National Treasury appears to have entered into a facility contract with lenders in Euros, and payments appear to have been made in the same currency, even though the commercial contracts were in US dollars, which exposed taxpayers to losses through changes in the exchange rates. In this article, we have used the current exchange rates to reflect the amounts in Kenya Shillings.)

Further, according to business journalist Jaindi Kisero, SACE does not appear in the external debt register which raises doubts as to whether they were indeed the main lender. Also, the November 2019 note by SACE to the Italian foreign ministry says the insurance guarantee was “in favor of the Lenders for the entire amount financed”, which seems to say that all the money came from the banks. The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them. It argues that the insurance premium was fraudulent because if the funds came from SACE, as the agreements suggest, it would have been a government-to-government loan which would require no insurance. It concludes that “payments made by GoK were made with the intention to siphon money from the country in the disguise of advance payment, insurance premium and commitment fees”.

Deputy President Ruto has claimed that only Sh7 billion was in question and that the government had a bank guarantee that protected every penny. The Treasury statement seems to back him up, at least as far as the guarantee is concerned, claiming the advance payment was backed by “a bank/insurance guarantee” which would be called “if the contractor is unable to deliver the service to the Government or runs bankrupt”. And in February 2022 Regional Development Principal Secretary Belio Kipsang told Parliament that Heritage Insurance and Standard Chartered Bank had respectively issued insurance guarantees for the advances paid to the CMC Ravenna-Itinera joint venture for Arror (Sh4.1 billion) and Kimwarer (Sh3.6 billion). He said the government had already recalled the Arror guarantee and was planning to do the same regarding Kimwarer, whose guarantee expires in June 2023. However, it is again unclear from his statement what currency the guarantees are in: dollars, euros or shillings. If in shillings, then it seems that up to Sh1.3 billion may not be covered.

The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them.

It is unclear exactly how much Kenya stands to lose given the discrepancies in the currencies used. In total, according to the ODPP, €168.5 million (Sh20.5 billion) was paid between 4 May 2017 and 7 November 2018 to cover the insurance premium, various fees as well as the advance payments. The statement from the Treasury, as noted above, puts this figure at €102 million and US$75.2 million for a total of Sh23.5 billion at current rates. In addition, the external debt register lists Kenyans as being on the hook for the entire loan amount of €578.4 million (Sh70.3 billion) which stands to be repaid until November 2035. Yet it does not seem that any further disbursements have been made by the banks to the companies beyond the insurance premium, fees and commissions and the advance payment. Why the full loan amount would be reflected as drawn down in the debt register is a mystery. It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.

The cases at the Milimani Anticorruption Court provide few concrete answers. There are currently two cases, consolidated from the initial four—two cases for each dam dealing separately with charges of financial and procedural irregularities. Each of the four initial cases had numerous defendants including directors of companies based in Italy who refused to come to Kenya to take plea, occasioning long delays. Eventually, all the cases were consolidated into two, with Case 20 of 2019 having 8 accused persons based in Kenya, and Case 21 of 2019 dealing with the alleged crimes of 18 Italian individuals and companies. This arrangement has allowed the Kenyan cases to proceed with the first witness out of 57 taking the stand in November last year.

One strange thing about the cases filed by the ODPP is that while they allege a conspiracy to defraud the government through the commercial agreements, there is little indication of the other side of that coin: how did the individuals involved benefit from the scheme? No one is charged with paying or receiving a bribe and there has been little evidence produced so far to warrant the many press allegations of corruption and kickbacks. According to a report in the East African Standard, Sh450 million was “wired by the Treasury to Italian firm CMC di Ravenna . . . was sent to an account in London then Dubai and later to Nairobi”. One of the report’s writers, Roselyne Obala, would later add that the same Sh450 million was part of a larger payment of over Sh600 million and that it was paid to an account in Barclays Bank in Nairobi. However, none of this is in the charges preferred at the Anti-Corruption Court. Further, it is unclear whether “over KSh600 million” refers to the much larger advance payments which, in any case, was (illegally) transferred directly by the banks in London to the companies. Further, the absence of prosecutions within Italy, which has a law criminalizing Italian companies paying bribes to public officials abroad in return for contracts, suggests that there is no evidence that a bribe was paid in this case.

There have been allegations raised that the prosecution of the dam cases was politicised, targeting allies of Deputy President William Ruto. In October last year, Rotich instituted a petition at the Milimani High Courts questioning why the DPP left out key personalities involved in the tendering process such as the former Attorney General Githu Muigai, solicitor general Njee Muturi and former Environment CS Judi Wakhungu. Rotich has also argued that he was not responsible for procurement of the tenders and was not the accounting officer at Treasury. “It is absurd that the respondents chose to charge me while the Attorney General is not charged in this respect. This is an indication of selective prosecution that cannot stand the test of objectivity and fair administration of action,” he argued in the petition. Others have pointed to the dropping of charges against members of the KVDA Tender Committee as well as some of Rotich’s co-accused, former Treasury PS Kamau Thugge and Dr Susan Koech, a former PS in the Environment Ministry, as proof of malicious prosecution.

It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.

Regarding the latter accusation, it is notable that many of the former accused have actually become witnesses so it may just be a case of the DPP using the small fry to net the “big fish”. However, when it comes to why the former AG, the solicitor-general, and the various ministers who oversaw KVDA between 2014 and 2019 are not in the dock, the answers are not so convincing.

A bigger source of discontent is the lack of similar prosecutions over similar projects. For example, the contract over the Itare Dam in Nakuru, also in the Rift Valley, features the same set of characters—SACE, CMC di Ravenna, Intesa San Paolo, BNP Paribas—and was the first dam awarded to the Italians in 2014. After advance payments of Sh4.3 billion were paid out, the project appears to have collapsed. As Nakuru Senator Susan Kihika noted in February 2019, “It . . . seems as if there is no equal treatment of all the projects across the country.”

In 2013, CMC had signed a consultancy contract with Stansha Limited, owned by Stanley Muthama, the MP for Lamu West, in which Stansha pledged to help CMC in its bid for tenders for the construction of Itare Dam, which is under the Rift Valley Water Services Board, and Ruiru II Dam under the Athi Water Service Board, for a fee of 3 per cent of the contract value. For Itare, it came to Sh330 million. According to the ODPP analysis, on 25 November 2015, a Stanley Muthama identified as “Staff CMC Kenya office” participated in a high-level “clarification meeting” with KVDA officials regarding the tender for the Arror dam, one of the decisive meetings for the award of the contract. Among those at the meeting were Paolo Porcelli and Gianni Ponta, two CMC officials the ODPP has charged, among others, for having “conspired to unlawfully have the services of CMC di Ravenna-ITINERA JV procured by KVDA for the development of Arror and Kimwarer multipurpose dams”. There is however no Stanley Muthama being prosecuted by the ODPP in the Kenyan case and no suggestion of any wrongdoing with regard to the contracts.

There, however, seems to be a pattern emerging where CMC di Ravenna—which has been in economic turmoil for four years; in 2018 it owed creditors €1.5 billion euros—receives advance payments for projects it does not thereafter complete. In Nepal, a US$550 million contract for the construction of a hydroelectric plant was terminated in 2019 and the company ordered by an Italian court to return €15 million to a bank in Nepal that had financed the project. CMC had not warned the Nepalese bank of its financial problems and had not even begun the work.

In Kenya, though, the two Italian firms have also claimed the cases were politicised and lacked grounds. In December 2020, they filed a suit at the International Court of Arbitration at the International Chamber of Commerce claiming they were victims of power politics between President Uhuru and his deputy William Ruto. They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations and are demanding US$115 million (KSh13.7 billion) in compensation for the cancellation of the contracts.

A bigger source of discontent is the lack of similar prosecutions over similar projects.

“It seems hardly coincidental that the highest ranking official to be investigated and charged in the criminal proceeding is Kenya’s Treasury CS Mr Henry Rotich, an ally of Mr Ruto,” stated the court document as reported in Business Daily. They claim that allegations of impropriety did not surface until two years after the contracts were signed and that KVDA had admitted that the projects had been politicised with an intention of terminating them.

In notes sent to the Italian Foreign Ministry, the joint venture complains of “delays in the payment of fees [by Kenya] to the Agent Bank with the risk of blocking future disbursements”. The companies blame the failure of the project to get off the ground on the failure by KVDA to deliver the necessary land, a claim repeated by Deputy President Ruto during the presidential debate in July. They also claim that import permit exemptions had not yet been issued.

President Kenyatta has also reportedly tasked AG Paul Kihara and Head of Public Service Joseph Kinyua to negotiate with the joint venture to seek an amicable settlement although it is curious that Kenya would seek to pay off the very companies it accuses of conspiring to defraud it. The country has, however, trodden this route before. In 2014, President Kenyatta ordered payment of Sh1.4 billion to briefcase companies for termination of contracts to supply telecommunication equipment and bandwidth spectrum, part of the Anglo Leasing scam where billions were paid to fictitious companies for security-related contracts.

Further, in May last year, SACE wrote to the AG, the Treasury and the Ministry of Foreign Affairs saying that Kenya could get a partial refund of its insurance premium but only if it committed to paying off the banks on whose behalf the country had taken out the policy. And the letter included a not-so-subtle hint that Kenya’s relationship with Italy was on the line.

They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations.

In brief, it seems clear that there were serious irregularities during the tendering and contracting for the two dams. KVDA tendered the projects under the PPA for a concessional arrangement but awarded a commercial contract under the Public Procurement and Disposal Act to a legally different entity from that which had won the tender without beginning the process afresh. Further, the arrangements to transfer money directly from commercial banks to the contractor seem clearly illegal and the shift from a concessional arrangement to a commercial one probably means Kenyans ended up paying more—including for unnecessary insurance. However, no money appears to have been paid out directly from the Exchequer, although the fees, commissions and advance payments have accrued a debt of up to Sh23.5 billion (at current exchange rates), less than a third of which may be covered by bank/insurance guarantees. Assuming the debt register is mistaken when it lists the entire loan amount, and that the guarantees by Standard Chartered Bank and Heritage Insurance are eventually honoured, Kenyans would still be, when we eventually get round to paying it, out of pocket by around Sh13.5 billion, the sum of the insurance premium (part of which we may get back), the various fees and commissions, and the exchange rate costs. As noted, no one has been accused of actually pocketing bribes. It also does not seem like either Kenya or the banks are pursuing a refund of the money paid to the joint venture in the Italian courts.

The biggest obstacle to a clearer understanding of what is happening with regard to the Arror and Kimwarer dams is the political whirlwind around it. Adding to the confusion is the language employed—terms like scam and kickbacks—suggesting that the officials involved pocketed bribes, whereas they are not actually accused of any of that. Further, journalists have tended to report the story much like the proverbial blind men of Hindustan—each accurately describing a part of the elephant’s anatomy, but not able to grasp the entire animal., It is to be expected that, even after the general election, the controversy surrounding the Arror and Kimwarer dams will continue to generate more political heat while shedding very little light.

Continue Reading

Trending