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MOTHER OF THE NATION: The spear has fallen

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In this third and final part of a three-part series, ISAAC OTIDI AMUKE revisits the funeral of Winnie Madikizela Mandela, the Mother of the South African Nation who defied both apartheid and patriarchy till her dying days. The eulogies paint a picture of woman with a fighting spirit who served as an enduring inspiration to her people.

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maWinnie: Lessons in Feminist Approaches to Storymaking
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April 2018

‘‘She talked about forgiveness, and it’s one of those things that whenever she spoke about, she would have tears in her eyes but the tears wouldn’t roll down her face,’’ Zodwa Zwane, Winnie Madikizela-Mandela’s personal assistant, stated in her eulogy on April 11, 2018, during an ANC memorial service at Orlando Stadium in Soweto, Johannesburg. ‘And she would say Zodwa, I don’t have tears anymore. I have felt pain up to the highest threshold.’’

Seth Mazibuko, who was the youngest member of the Student Action Committee that led the Soweto students’ uprising starting in June 1976 – which resulted in the killing of hundreds of students by apartheid police (estimates range between 176 and 700 deaths, with over 1,000 injured) – said that Madikizela-Mandela was an eternal source of strength to his generation. He recalled that fateful 16th of June 1976 when school children were shot by apartheid police for participating in a protest against the introduction of Afrikaans as the official language of instruction in schools. Madikizela-Mandela – driving a maroon Volkswagen Beetle – and journalist Sophie Tema – driving a white Volkswagen Beetle – rushed to the scene and ferried the dead bodies of the massacred children away. Among those killed was 12-year-old Hector Pieterson who became the face of the uprising when the photo of 18-year-old Mbuyisa Makhubu carrying a fatally shot Pieterson was widely circulated across the world.

Mazibuko credits Madikizela-Mandela with admitting him into a proper psychiatric hospital after he was released from prison at the time when he was suffering from post-traumatic stress disorder (PTSD). He says that decision alone – of getting him proper medical care – could only be taken by someone who truly cared for him. Madikizela-Mandela taught him how to cook, as well as reprimanded Mazibuko whenever he transgressed.

‘‘The saddest part of the news of her passing is that it has happened at a time when we needed the energy and gallant spirit of a mother of the nature and stature of Mama Winnie,’’ Mazibuko stated. ‘‘Some of us in the struggle are still hurting. We needed the motherly side of Mama Winnie that would urge us to keep going. We needed a voice as strong as that of Mama at this time when the ANC is talking of renewal and unity.’’

People like Mazibuko had not just lost a leader, but a mother-figure as well. When he was sent to prison at Robben Island aged 16, it was Madikizela-Mandela who went out of her way to look after his own mother. There were many more instances where Madikizela-Mandela went above and beyond the call of duty to assist. That being said, it wasn’t lost on Mazibuko that there were sustained onslaughts to isolate and discredit Madikizela-Mandela as she fought apartheid and even after the ANC assumed power in 1994.

‘‘There is no struggle that is clean,’’ Mazibuko said. ‘‘The struggle was conducted on the dirty streets of Soweto, and here was someone willing to fold her sleeves and get her hands dirty. When other people were in exile, it was Mama who kept us together. When freedom came, she never enjoyed it. She was pushed away. We owe her an apology before we say ashes to ashes.’’

Tokyo Sexwale, the former Premier for Gauteng province, the Minister for Human Settlements and an ANC liberation stalwart, was the only person who had lived in the same house with Madikizela-Mandela before being jailed at Robben Island in 1977, where he served 13 years after being convicted for terrorism and conspiracy to overthrow the apartheid government. Sexwale had taken shelter at Madikizela-Mandela’s Soweto residence as a 17-year-old ANC activist, a home where he stayed in for three years before embarking on Ukhonto we Sizwe activities, which landed him in jail. On arriving at Robben Island, Sexwale said that the prison’s most famous detainee, Nelson Mandela, wanted to know every little detail about life in his Soweto home, asking about his wife and two children – how they dressed, how each of the kids performed at school, how they coped with his absence – information Sexwale readily volunteered.

‘‘There is no struggle that is clean,’’ Mazibuko said. ‘‘The struggle was conducted on the dirty streets of Soweto, and here was someone willing to fold her sleeves and get her hands dirty. When other people were in exile, it was Mama who kept us together. When freedom came, she never enjoyed it. She was pushed away. We owe her an apology before we say ashes to ashes.’’

‘‘I saw with my own eyes the torture, the humiliation by the police who came in to break things, to take clothes off the laundry line and throw them into the rubbish dump… and she would go and pick them up and wash them all over again with tears in her eyes,’’ Sexwale recalled. ‘‘I saw the tears of joy whenever it was time to visit Mandela at Robben Island and the tears of sadness whenever she returned from Robben Island. I saw the police slapping her. I saw them calling her bitch in her own house.’’

‘‘When they slapped her she fought back,’’ Sexwale continued. ‘‘They would hit her with fists and whenever I tried getting up to intervene they would kick me. And the children, Zenani and Zindzi, would be there from time to time whenever they were back from school in Swaziland. Then on the night they came to take her away for detention, she was kicking and screaming, telling the men that the things they were doing to her wouldn’t stop her people’s liberation.’’

‘‘No person should go through the life of Winnie. Let alone a woman, a mother,’’ Sexwale said of Madikizela-Mandela on April 2. ‘‘We have lost one of our best. Winnie was like a candle caught in the crosswinds. She was an indefatigable person, a fighter and a defiant resistor to the end. She even refused – when I spoke to her last week – to have a wheelchair. She would not succumb. She was defying gravity. The nation has lost a heroine… one of our best… a mother not only to her two daughters but a mother to the nation of our unwashed masses….’’

ANC Deputy Secretary General Jesse Duarte – who is the only woman serving as a member of the party’s ‘‘top six’’ officials – remembers Madikizela-Mandela as nothing but a nurturer, a mother to whoever needed one. No child who needed a place to stay was ever turned away from Madikizela-Mandela’s home, and whenever anyone was arrested, Madikizela-Mandela made sure their families were taken care of and lawyers were hired for them. When Duarte was released from prison in 1988, where she was detained without trial for close to a year, she first stopped to see Albertina Sisulu, the struggle stalwart and wife of Walter Sisulu, who had recruited her into the ANC back in 1979 when she was 26. Her next stop was the Soweto home of Madikizela-Mandela, who told her that now that she was back from prison it was time to recommit to the liberation struggle because the difficult work they had started was not yet complete.

‘‘Comrade Winnie Mandela is the Winnie Mandela of the people of Ivory Park, the Winnie Mandela of the people of Slovo Park,’’ Duarte eulogised Madikizela-Mandela on April 11. ‘‘She is the Winnie Mandela of the poor, the Winnie Mandela of the working classes of this country. She gave everything she had. She kept very little for herself and her family. She gave us her life, her commitment. She never betrayed our struggle. She did not betray the revolution….’’

Speaking at the United Nations headquarters in New York on April 4, former South African Vice President (to Thabo Mbeki), UN Under Secretary-General and Executive Director of UN-Women, Dr. Phumzile Mlambo-Ngcuka, elaborated on how and when Madikizela-Mandela was christened Mother of the Nation, and why she was enormously deserving of the reputable title.

‘‘She believed she was a rock, and therefore she had to be there for people to lean on her,’’ Dr. Mlambo-Ngcuka said. ‘‘She fought a system that was brutal, and the fact that she was defiant at every turn gave many of us the courage to fight back in our own small ways because we had this larger-than-life personality who was leading from the front. She was not the wife of an icon. She was an icon in her own right, standing next to another icon.’’

‘‘For decades when we couldn’t relate to the leaders,’’ Dr. Mlambo-Ngcuka continued, referring to top ANC leaders who were either in jail, underground or exiled, ‘‘she was the go-to person who helped glue the different groupings in the country together. That is why she was called Mother of the Nation…She will be solely remembered as a gallant fighter against apartheid who fought for women, fought for her community and fought for the oppressed people. Period.’’

‘‘She believed she was a rock, and therefore she had to be there for people to lean on her,’’ Dr. Mlambo-Ngcuka said. ‘‘She fought a system that was brutal, and the fact that she was defiant at every turn gave many of us the courage to fight back in our own small ways because we had this larger-than-life personality who was leading from the front. She was not the wife of an icon. She was an icon in her own right, standing next to another icon.’’

One group which understood what Madikizela-Mandela’s motherhood and nurturing side felt like was the then expelled leadership of the ANC Youth League, among them Julius Malema and Floyd Shivambu, the duo which went on to become president and deputy president of the Economic Freedom Fighters (EFF). On learning of their expulsion from the party for supposed ill discipline in their push for a radical economic transformation agenda, the expellees’ first stop was the Soweto home of Madikizela-Mandela, who embraced and comforted them. Much as the group went ahead to form a political party that became a sharp thorn in the ANC’s flesh, Madikizela-Mandela maintained a very public, uninhibited motherly attitude towards them.

During the 2017 doctorate graduation ceremony of MP and EFF spokesperson Mbuyiseni Ndlozi, Madikizela-Mandela, who was in attendance, congratulated ‘‘her boys’’ in her usual joking manner, telling them that ever since they went to parliament they had been doing exactly what she had asked them to go and do. Madikizela-Mandela spoke of how she had told the EFF to go and wake the ANC up, since the liberation movement was sleeping. ‘‘You have done a better job because no parliamentarian sleeps anymore,’’ a jovial Madikizela-Mandela said to enormous applause. ‘‘Everyday you insult us, you are doing exactly what I sent you to do in parliament.’’

In their condolence message to the Mandela and Madikizela families – typed in their characteristic red ink – the EFF castigated the ANC for denying South Africa its first woman president. This was in reference to the December 1997 ANC Mafikeng elective conference, where Madikizela-Mandela intended to offer herself for election as the party’s deputy president to Thabo Mbeki, a move which could have seen her rise to the country’s presidency post-Mbeki.

The bottleneck was that Madikizela-Mandela had not been nominated by ANC branches before the conference, as was procedure, meaning she needed a nomination from the floor of the conference backed by 25% of delegates. Madikizela-Mandela requested Mbeki, who was chairing the session – flanked by Jacob Zuma on his right and Nelson Mandela on his left – to briefly adjourn the conference so that she could speak to delegates and get her nomination on course, something Mbeki called canvassing. Mbeki declined to adjourn, leaving Madikizela-Mandela with no choice but to quash her ambition. Jacob Zuma was elected ANC deputy president unopposed, setting on course his future disastrous presidency.

Yet when Mbeki and his friend-turned-foe Jacob Zuma were threatening to tear the ANC apart during the party’s 2007 Polokwane elective conference – which they eventually did following Mbeki’s defeat and subsequent recall as president of South Africa – it was Madikizela-Mandela who summoned the moral courage before the conference and confronted the two men, asking them to shelve their ambition for the ANC presidency and instead settle for a compromise candidate, an initiative which bore no fruit, seeing that the livid duo was keen on going all the way. As she spoke to the two men, Madikizela-Mandela reported that they both used one phrase in reference to each other – ‘‘Mama, you don’t know that man.’’ It took a decade after Jacob Zuma’s 2007 election as ANC president in Polokwane for the party to regain a semblance of unity following the December 2017 Nasrec elective conference where Cyril Ramaphosa was elected ANC president, leading to the recall of a stubborn Jacob Zuma, who had hugely dented the party.

Asked how Madikizela-Mandela should to be remembered during an April 6 interview, Thabo Mbeki ardently pushed the argument that it was ill-advised to single out personalities and celebrate them as individuals, when in fact they had been part of a collective. Mbeki insisted that Madikizela-Mandela was part of the liberation effort, and that she should therefore be remembered in that context – as one in the midst of many. He seemed to be making the argument that even if individual members of the movement – like Nelson Mandela – had previously been celebrated as icons in their own right on the occasion of their passing, then it was time to change that culture. It appeared the former president feared that Madikizela-Mandela was about to be lionised. Unfortunately for Mbeki, there was never going to be moderation in the remembrance of the Mother of the Nation, a nation extending beyond South Africa’s borders.

Mbeki’s perception of Madikizela-Mandela as an attention-seeker is best illustrated by an incident during the 25th anniversary of the 1976 Soweto students uprising in 2001. Mbeki, at the time South Africa’s president, had already arrived at the anniversary celebrations when Madikizela-Mandela made her late entry. Amid cheers from the crowd, Madikizela-Mandela walked up to the high table where she went to hug Mbeki, who while declining the hug, knocked Madikizela-Mandela’s cap off her head, an act Mbeki says was accidental.

‘‘She did something wrong… she liked arriving at meetings late, deliberately… in order to get applause,’’ Mbeki said of the incident. ‘‘She comes in alone, and people’s attention is drawn away from the person speaking… she did that systemically. So when she came on stage and wanted to embrace me I told her you can’t do wrong things like that repetitively.’’  His remarks attracted the wrath of Madikizela-Mandela’s supporters, coming as they did just days after her passing.

The irony of the whole situation is that during the anti-apartheid struggle, when the ANC leadership was either exiled in Zambia or imprisoned, it was Mbeki and other ANC intellectuals who made a conscious decision to settle on Nelson Mandela as the face of the movement, a choice hugely influenced by the fact that Mandela’s wife had built her own larger-than-life profile as a revolutionary who was constantly targeted by the apartheid regime. For Mbeki and his comrades, pairing the profiles of Nelson Mandela and that of Madikizela-Mandela was an act of genius, Mandela having served 27 years in prison and Madikizela-Mandela having become the globally renowned liberation stalwart and persecuted wife of the long-serving prisoner. While it suited the ANC to exploit Madikizela-Mandela’s “Mother of the Nation” stature, she was also isolated and labelled as an ill-disciplined disruptor when it was convenient, especially when she posed a direct political threat to the powers-that-be within the organisation.

The irony of the whole situation is that during the anti-apartheid struggle, when the ANC leadership was either exiled in Zambia or imprisoned, it was Mbeki and other ANC intellectuals who made a conscious decision to settle on Nelson Mandela as the face of the movement, a choice hugely influenced by the fact that Mandela’s wife had built her own larger-than-life profile as a revolutionary who was constantly targeted by the apartheid regime.

Mbeki may or may not have an axe to grind with Madikizela-Mandela or her legacy – and he recently stated that he and Madikizela-Mandela had a cordial relationship despite the mishaps – but what remains clear is that theirs could be a manifestation of the divide between forces on the ground, as represented by Madikizela-Mandela and Chris Hani, and the top exiled ANC leadership, as represented by Mbeki – two groups who hugely contributed to the struggle but who seemed to look at the frontline from different prisms.

The ANC has always refuted the perception that its ranks are split into three: the Robben Islanders, constituting Nelson Mandela and his Rivonia trial comrades; the external exiles, consisting of the likes of Mbeki; and the in-xiles (internal exiles) consisting of the likes of Madikizela-Mandela. The jury is still out on these divisions.

Mbeki had wanted to join the Umkhonto we Sizwe fighting force after his undergraduate studies, but ANC president O.R. Tambo declined his request, insisting that Mbeki needed to return to Sussex University to pursue his Masters degree. Much as Mbeki would later undergo military training in Moscow, where he and Chris Hani marked their 28th birthdays together, he would remain an intellectual and ideologue within the ANC, never a gun-carrying fighting cadre. On the other hand Chris Hani and Madikizela-Mandela commanded ground forces. This in turn set the stage for the grouping of perceived militants like Hani and Madikizela-Mandela on one side, and supposed moderates like Mbeki on the other, which affected how they related with each other within the organisation.

****

‘‘I am not used to hearing such nice things being said about me,’’ Madikizela-Mandela said on the occasion of her 80th birthday in September 2017 as she entered the Johannesburg venue of the gala. ‘‘I am one of the lucky few to be told such heartwarming things when I am still alive.’’

Historically, the African liberation struggle – in all its forms and shapes – has been a highly patriarchal affair, both by design and by default that seeks to quarantine and limit women. The rise of Winnie Madikizela-Mandela from Nelson Mandela’s wife to a tour de force within the ANC and beyond should be viewed in the context of an African woman beating not only her cultural and societal inhibitions, but going ahead to challenge – head on – the oppressive white occupational state which even the men in her midst who had all the privileges patriarchy afforded them found hard to confront. Madikizela-Mandela first defied patriarchy, before proceeding to defy apartheid. According to South African feminist writer and journalist Gail Smith, in the final analysis, Madikizela-Mandela won the battle against apartheid but she lost the fight against patriarchy, which reared its ugly head even in her death.

Young women across the world have pushed back on Madikizela-Mandela’s demonisation and retold her story – warts and all. Standing outside Madikizela-Mandela’s Soweto home, Cape Town’s executive mayor Patricia de Lille was overcome by emotion as she spoke to a reporter after viewing Madikizela-Mandela’s body, which was brought back to the residence that April 13 evening, where it spent the night before burial the following day.

‘‘It’s really hit me now… because the whole week, two weeks, you know you still hope… and you know we prayed for her… she’s our mother…’’ de Lille said, unable to weave words together, teary eyed, her voice shaking with palpable grief. ‘‘You know she’s no more and her memory will live with us,’’ de Lille continued after regaining composure. ‘‘But we must continue to put up the fight for the poor, the landless, the homeless, because that’s what Mama lived and died for. When I saw her tonight for the last time I recommitted myself to that path of making sure that there are more people in our country who must taste the fruits of freedom and not just a few. That has always been the dream of Mama.’’

De Lille, who was reportedly in trouble with her party, the Democratic Alliance (DA), for choosing to attend a memorial service for Madikizela-Mandela organised by her party’s rival, the Economic Freedom Fighters (EFF), next to the Brandfort house where Madikizela-Mandela was banished in 1977, had retorted that in African culture, when a mother died, it was mandatory for one to go and pay one’s respects. She referred to Madikizela-Mandela as her sister, mother and comrade. She didn’t need to ask anyone for permission to mourn, De Lille said.

‘‘The violence and the torture just made her more resolute,’’ de Lille continued. ‘‘Later she was saying there’s no more pain left and there’s no more fear left but at the same time she was a very soft person, with a heart of gold. We could come to her at anytime. If I just wanted to let off whenever I questioned myself whether it’s worth it to carry on with the struggle, I used to come here and spend hours with Mama and by the time I left I just knew I couldn’t give up. I had to continue. Now that she is no longer there we all have to commit ourselves to work even harder to make sure we look after the poor of this country… tonight I can feel that I have seen her for the last time, but she taught us to never give up… to press on… press on… press on… and that is what I will continue to do.’’

‘‘The violence and the torture just made her more resolute,’’ de Lille continued. ‘‘Later she was saying there’s no more pain left and there’s no more fear left but at the same time she was a very soft person, with a heart of gold.”

Barely an hour after Madikizela-Mandela’s body returned to Soweto, a high-level memorial event attended by UN Secretary General Antonio Guterres was held at the United Nations in New York. The words of Cuba’s Permanent Representative to the UN, Ambassador Anayansi Rodriguez Camejo, possibly captured best the collective mood and sentiment of the evening:

‘‘The Apostle of our independence Jose Marti said, ‘Death is not true when the work of life has been fulfilled.’ Winnie was and is living history. She was Nelson’s voice on the streets of her country and around the world when he was imprisoned by the apartheid regime…Her spirit of resistance earned her admiration from honourable people but also the fear of her enemies who could never bring her to her knees. She has been rightly called the Mother of the South African Nation, but she was more than that. Her motherly embrace transcended the borders of her homeland because with the victory of the South African people over apartheid Africa was reborn… Winnie is the expression of the rebellious and fearless spirit of all African women.’’

Asked why it was imperative for her to be present to witness Madikizela-Mandela’s casket – draped in the ANC’s green, yellow and black flag – being carried off the hearse and up the hill leading to her home, a woman wearing a red doek said, ‘‘It was important for me to be here. Mama Winnie was the Mother of the Nation. She fought for us through thick and thin,’’ she said. ‘‘No woman can stand the pain that Winnie withstood. She was strong in jail. She never had time to stay with her family or her kids but she remained strong. I wish I could be like Winnie. I wish every woman can be as strong as her.’’

Asked what she felt at that emotional moment, a younger woman standing next to the woman in a red doek quoted Madikizela-Mandela. ‘‘You strike a woman you strike a rock,’’ she said, ‘‘She was the embodiment of the strength of the African woman.’’ A young man standing behind the two women – dressed in a yellow ANC T-shirt and a black marvin and carrying a black backpack, said, ‘‘I felt like crying because uMama Winnie fought for us… today I am literally still here because of people like her… go well uMama.’’

‘‘No woman can stand the pain that Winnie withstood. She was strong in jail. She never had time to stay with her family or her kids but she remained strong. I wish I could be like Winnie. I wish every woman can be as strong as her.’’

‘‘The sad news that has led us to this moment, this moment when you see the casket of uMama Winnie Madikizela Mandela draped in the ANC flag,’’ South Africa Broadcasting Corporation’s (SABC) Aldrin Sampear reported, standing on a partly deserted street corner outside Madikizela-Mandela’s home. ‘‘Inside this house is the body of uMama Winnie Madikizela-Mandela. The body that was bruised and battered. The body that said there’s no type of pain that I have never experienced. The body that spent 491 days in prison. The body that after seven days (of non-stop interrogation) was urinating blood. The body that was electrocuted. The body that made sure that body would overcome and fight for the freedom of South Africa.’’

At the poignant moment when Madikizela-Mandela’s body was being carried past her gate and into her Soweto home – with the gathered crowd ululating and shouting Amandla! once the casket entered the compound – a somber-looking American civil rights leader, the Reverend Jesse Jackson, and members of the Umkhonto we Sizwe veterans association sang in unison the liberation dirge Hamba Kahle over and over again in line with the tradition of honouring struggle stalwarts. Hamba kahle mkhonto//Wemkhonto/Mkhonto we sizwe – safe journey spear, yes spear, spear of the nation. The spear of the nation had indeed fallen.

The ANC logo has a hand holding a spear. On the logo of the opposition party, the Economic Freedom Fighters (EFF), a hand-held spear sits across the map of Africa. When Nelson Mandela and his comrades Walter Sisulu and Joe Slovo decided to launch an armed struggle against apartheid and formed a military wing of the ANC, they named it Umkhonto we Sizwe (Xhosa for spear of the nation).

It goes without saying that nothing symbolises the anti-apartheid struggle more than the spear. It increasingly appears that that spear is a woman, and that woman is Winnie Madikizela-Mandela, the Mother of the Nation.

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Isaac Otidi Amuke is a Kenyan writer and journalist.

Politics

African Continent a Milking Cow for Google and Facebook

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

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

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

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

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

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

Brick and mortar

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

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

‘Their revenue comes from me’.

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

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

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

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

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

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

Google Ghana is an ‘artificial intelligence research facility’.

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

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

Cash-strapped countries

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

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

Cost to public

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

‘A tax paying people is a questioning people’

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

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

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

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

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

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

Comment

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

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

This article was first published by our partner ZAM Magazine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Fear and Loathing in Kenya’s Parliament

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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