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DREAMS OF EMPIRE: Stepping out of America’s Fading Lustre

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As Donald Trump surrenders America’s global preeminence, Africans – at home and in the diaspora – should work to build an African superpower rather than succumb to Chinese colonization. By MKAWASI MCHARO HALL

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DREAMS OF EMPIRE: Stepping out of America’s Fading Lustre
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The first African Diaspora Young Leaders summit was coming to a close in Washington DC. The State Department had sent me an invitation to the closing dinner. RSVP for one, I wrote back. State Department dinners are often a microcosm of the global political structure, and schmoozing around with the diplomatic corps is like listening to the whispers of countries bottled up in one room.

Sometimes you catch the ambitious Washington-based African ambassador gunning for the presidency in his or her country, but I’m yet to catch one with a big idea for a United States of Africa. Most of the African envoys do not want to stay in America once their tour of duty is done. They are not economic refugees and their dreams are made. I want to find out from the room filled with ambitious African youth if they want to stay on and catch the American dream. They are also looking to lead the continent in conquering an uncertain 21st century and the US might just be a launching pad.

I asked as many as I could, and without hesitation they all quipped a version of, “I’m going back home of course!” I qualified my question further and asked, “If you got an offer for a job or graduate studies here, would you stay?” One tall Malian fellow hesitated and shook his head in a circular manner. That was the extent of his commitment to pursuing the American dream. He did not care for pecan pie either. These are not singular-story instances meant to create a bias. America has lost its lustre even among young Africans.

In a short while, this realisation would be ascertained by none other than the Under Secretary of State for African Affairs. He stood up to speak and asked the young Africans to speak well of America when they got back to their countries; that America is not as bad as they show it on television. I almost keeled right off my playing-diplomat-for-a-night seat. When did the script change so drastically? It’s no longer Africa asking America to stop spreading the unsavoury story about a dark continent. Now an American top-ranking diplomat is trying to right the image of a superpower that’s suffering an ugly meltdown and the whole world has a front row seat.

In spite of America’s fading lustre, there is still a growing African diaspora in the United States, and they will in a few decades be part of the “people-of-color” majority in the United States. For the American-Africans or Continental Africans who have become citizens, this is their home, one that enables them to play out their transnational citizenship as successfully as other diasporas before them have. An understanding of Continental Africans’ positioning along the timeline of American empire-making is important. It should help get Africans becoming more proactive in establishing an influential presence in American politics and policy-making, and also in pushing Africans to conquer their own continent for themselves.

A savage inspiration

Empire rises through stages: Conquest of territory; elimination or assimilation of indigenous peoples; and the building of new and more efficient trade routes. Those who lead conquests embody the animus dominandi, a necessary force of evil in the usurpation of power, wealth and security.

The end goal in a humane conquest, if the oxymoron can be believed, is the establishment of peaceful coexistence with those conquered, or the removal of oppressive leadership from the land invaded. In modern history, only one humane conquest comes to mind: Tanzania’s invasion of Uganda in 1979 to dislodge the brutal regime of Idi Amin. It lasted all of five months. America’s preemptive invasion of Iraq post-9/11 was sold to the people as a remedy that mirrored Mwalimu Julius Nyerere’s Uganda invasion: to free the people of Iraq from Saddam Hussein’s oppressive rule. But it soon became clear it was a greed-driven opportunity for war profiteering and expansion of the American corporate empire that had become a monstrosity.

Empire rises through stages: Conquest of territory; elimination or assimilation of indigenous peoples; and the building of new and more efficient trade routes. Those who lead conquests embody the animus dominandi, a necessary force of evil in the usurpation of power, wealth and security.

There are many wars that America has fueled to maintain its interests and footprint in foreign soil. It wasn’t always like that. America grew out of European immigrants who were running away from persecution, famine, and war in their own lands. They came to America seeking fortune and new beginnings, and they formed a country that rejected monarchy and its extreme powers. America was the biggest and boldest experiment in democracy and freedoms that attracted people from all over the globe. This roaring inspiration was also ruthless as European immigrants who became white Americans held millions of Africans in bondage and massacred millions within indigenous nations, with the survivors confined to reservations. Vicious greed easily becomes a reality in empire-building.

Eventually, a civil war that killed over 600,000 Americans brought an end to slavery. This is a price they had to pay for the dream of a truly free nation whose citizens were all considered as created equal and endowed with the same inalienable rights. It took bold and selfless political leadership to apply this principle of freedom to enslaved persons. President Abraham Lincoln’s emancipation proclamation in 1863 was met with disdain and dismissal from his friends and enemies alike. It ranked poorly as a political move.

Lincoln was driven by his own conscience and the American Constitution, a document that captures the ideals of a people, written with the ink of human kindness. It is also a document that has made America the “home of the free and land of the brave”. The irony of it all is that America was also built through the savage inspiration of those who stopped at nothing to succeed; immigrants who never gave up, never made excuses, and never let hunger, disease or the ravages of unpredictable Mother Nature stop them.

Dust bowls came and threatened famine, and the new Americans started afresh. The Ireland famine they escaped from was far worse as it had killed over a million. Floods came and carried the homes of new Americans carving a home from scrub in the wild West, and they rebuilt. They had far worse memories of homes shelled with bombs and bullets in war-torn Europe. Religious persecution in Europe brought the Anabaptist Amish to America where they found freedom and thrived in exclusive communities of their own defining. Persecuted Mormons trekked west through harsh territory and built their city on the hill out of a mirage of hope. Diseases came and killed families that moved to nowhere-places in the expanding America, and they picked up their shredded hearts and kept on striving. The Chinese suffered calculated segregation through the Exclusion Act but they found a way to remain an important part of building America throughout the 1800s.

Enter the Africans

How could anyone not feel inspired by a country made up of people who came from every corner of the world and found more ways than one to dream and achieve? Is it any wonder that the American Dream phenomenon took root and became the country’s biggest thought export that kept drawing in the rest of the world? The land where every dream is possible also became the allure for African immigrants from the mid-twentieth century, their numbers spiking from the early 1980s.

New legislation broke the Europeans-only influx into America and allowed more Africans to become part of America’s citizenry. A place of great contradictions: on one extreme, African descendants were enslaved for two-and-a-half centuries, and on the other extreme, free and educated Continental Africans were provided a way in through the Immigration and Nationality Act of 1965.

Empire and smart nation-building knows that human capital is key in its expansion and stability. From the Roman Empire that had earlier been the cradle of modern democracy to the United States of America, citizenship held the highest value for the inhabitants. It gave them the power to vote, to gain access to economic opportunities, to hold office, and to move freely.

New legislation broke the Europeans-only influx into America and allowed more Africans to become part of America’s citizenry. A place of great contradictions: on one extreme, African descendants were enslaved for two-and-a-half centuries, and on the other extreme, free and educated Continental Africans were provided a way in through the Immigration and Nationality Act of 1965.

Stages to citizenship become goals that an immigrant works very hard to achieve. In a land where the biggest pull factor is the American Dream, achieving that dream becomes a calculated get for African immigrants so that tales of their personal conquest will vindicate their desertion of home. When Europeans set out for the United States on boats and scraps of boot, many died out of pride, refusing to return to homes that still had their arms open wide for them in case things did not work out. The shame of not achieving that dream would be too much to bear. They would die in the gold rush melee, in the coal mines, in the cowboy ventures, in the farmers’ fight against nature, and in the run-in with Native Americans fighting to hold on to their lands.

Africans who come to the United States are no different from those first immigrants. Much as most come with a mind to acquire their education, a slice of the American Dream, and promptly go back to beloved Africa, they discover that the road to achieving what they came for is entangled in legislation and privilege. They are outsiders standing in a long line of immigrants waiting to get in to the gates of a new belonging.

Becoming American for an African is very rarely a personal goal but a necessity acquired to assist with personal conquest. Africans do not carry the pride of nation as Americans do. My neighbours, like many Americans, fly the US flag every public holiday and any other odd day. I have recently purchased a Kenyan and a US flag that I will fly on my front porch to test out the feel of nationalism. In Kenya, I would not be allowed to fly my Kenyan flag. However, in a changing America, pro-Trump neighbours will also look at my Kenyan flag askance as it will indicate an unwelcome immigrant presence.

As the latecomers in the game of American belonging, there isn’t much out there on African immigration statistics. Shaw-Taylor and Tuch (2007) surmise that about a million Africans immigrated to the United States between 1965 and 2007. These records are usually far below the real numbers as many who come and stay do not participate in the census. Second generation Continental Africans have also increased significantly. The Nigerian diaspora has become one of the fastest growing, both in numbers and in economic success. A Bloomberg research bursts the myth that Asians are the only ones at the top of the intellectual wealth pyramid.

The Kenyan diaspora, meanwhile, continues to astonish as its remittances to Kenya grow to a whopping Sh197 billion (nearly US$2 billion) this year, up from Sh174 billion (about US$ 1.8 billion) last year. The tragedy of the Kenyan diaspora, at least those in the US, remains their insistence on staying cocooned in cliques and tribal mindsets while abroad, an attitude that makes them ineffective pawns in America. A long straw extends from the mouths of family and community in Kenya and dips into diaspora pockets, and each year, the gulp gets bigger, thanks to the powerless generosity of a splintered diaspora. With all their smarts, Kenyans in the US have refused to invest in the strategy of building a united front as a power bloc, and so their remittances remain untapped influence. Eight years after the constitutional enshrining of their right to vote, the Kenyan diaspora in the US still cannot vote back home.

The Kenyan diaspora, meanwhile, continues to astonish as its remittances to Kenya grow to a whopping Sh197 billion (nearly US$2 billion) this year, up from Sh174 billion (about US$ 1.8 billion) last year. The tragedy of the Kenyan diaspora, at least those in the US, remains their insistence on staying cocooned in cliques and tribal mindsets while abroad, an attitude that makes them ineffective pawns in America.

No immigrant community has ever achieved influence without the strategic politics of mobilisation and organisation in their adopted country. Kenyans are adept at splitting their power by dismissing each other’s efforts. They duplicate, triplicate and quadruplicate initiatives instead of supporting what is on the ground. The new entrants to a cause will dismiss others as failures and with great humility argue that they are the ones who will make it happen. The community politics of the Kenyan diaspora is not only a microcosm of Kenyan society in Kenya but a far darker version of it.

Lessons from how other immigrant communities in the United States conquered in spite of their political or ethnic diversity are yet to sink in for the Kenyans. Collective intelligence is a switch that an initiative-taker turns on, but the bulb will not light up until the people with their hands around it stop the sabotage. (I have played significant roles in the Kenyan community in America long enough to observe its ways, which gives me a measure of authority on the subject.) Perhaps the growing second-generation Kenyan-Americans will shape its power.

Conquest, China and African superpowerdom

If the American republic has risen to superpowerdom through conquering occupied lands, eliminating indigenous peoples, and building infrastructure through the wilderness, all while using stolen labour and the legitimisation of a cruel injustice, why hasn’t the African continent achieved as much in its own continent where its nations are free? Dreams of a Pan-African state have flared up with the staunchest Africanists and died like a kerosene flame, leaving only a smoky trace of it that still lingers.

To build empire, Africa would not need to engage in the cruelty of displacing or enslaving anyone. The Morgenthaunian animus dominandi or necessary evil-nature approach to raising empire has to be redefined if Africa is to use it to achieve superpowerdom. By superpowerdom I do not mean a hunger for domination over others, but a reaching towards the highest levels of self-realisation as Africans. Such realisation comes with technological advancement, an end to poverty, the inalienable right to freely acquire knowledge for its own sake, and definitely the restructuring of political systems and inculcation of integrity in the continent’s democratic processes.

But is Africa interested? The current trend has African countries firmly serving nationalistic self-interest at best, and more of individual strongman interests. A continental trading bloc covering at least fifty African countries has been in the works, but its success is yet to unfold. The assumption that an African economic bloc could set the giant continent off to the 21st century superpowerdom is unlikely; at least not without independent institutions powerful enough to ensure economic accountability and social justice.

The success of America’s rise, savage inspiration that it was, also came from the independent institutions that checked its rogue politics, demanded a righting of wrongs, and allowed for people power. If African is not ready to hold its rogue leaders to account as South Korea recently did by throwing its corrupt president in jail, an economic bloc will only create a deeper chasm between those who can manipulate trade and those too far from the decision-making table.

Africa is a willing victim in the unfolding conquest by the rising Chinese global power, which is carrying out open surgery on the continent. As they open up the innards of Africa and plant Confucius centres in colleges, popularise Mandarin classes, establish television stations to transmit Chinese propaganda, and build breathtaking infrastructure, Africa seems content with the drip of modernisation-on-loan feeding its arteries. There is nothing the Chinese are doing that global powers of the past – Malian, Roman, British, American and others – did not do.

China’s Belt and Road Initiative (BRI) that seeks to etch the most ambitious trade routes across several continents is reminiscent of the Trans-Sahara trade routes that gave superpower status to the kingdom of Mali for a span of seven hundred years – until the Europeans made more efficient trade routes through the Atlantic. It wasn’t until America built the Transcontinental railway that connected it from sea to shining sea that the country actually started its rise to superpower status. Throughout history, control of new and more efficient trade routes have led to the rise of new empires. How is it that free African nations and their rich diasporas cannot build an engineering marvel from Cape to Cairo all by themselves?

The unfolding conquest of Africa is a willing victim eyes-wide-open surgery on the continent by the Chinese rising global power. As they open up the innards of Africa and plant Confucius centres in colleges, popularise Mandarin classes, establish television stations to transmit Chinese propaganda, and build breathtaking infrastructure, Africa seems content with the Chinese drip of modernisation-on-loan feeding its arteries.

White nationalism and the Age of Trump

Trump’s America is a surrender of empire in exchange for white nationalism. Stoking trade wars and supporting white extremism is a calculated recipe for white nationalism. The president has been on an anti-globalisation rampage. He has attacked regional and inter-governmental trade treaties, environmental agreements and military alliances that have kept America at the helm of the current global political structure. The president is in the throes of a ferocious tariff war against China, Canada and European countries, all trading allies of the United States. It has become common to wake up to news about American industries now making significant losses and some shutting down because the targeted countries are no longer buying American products. Farmers and fishermen whose products are exported to China now need a government bailout to survive.

Anti-immigrant policies have restricted temporary work visas that usually bring in seasonal workers from Mexico to work on farms and in the crab industry. As a result, massive fields of unpicked crop have gone to waste and the crab industry has suffered. The same policies have created the parent-child separation debacle in Texas, a racket that turns out to be, no surprise at all, a profiteering racket. While the world reels in shock at how low America has sunk, the detention business continues to thrive as it nets in new clients in immigrants seeking asylum. The GEO Group that runs private prisons also happens to be the biggest contractor for the U.S. Immigration and Customs Enforcement (ICE). The company is also accused of sponsoring politicians in Texas, the same state where unconscionable detention of children is happening.

In all this, good old American activism stays fired up and keeps agitating its way to justice. A company as powerful as the GEO Group now feels threatened by the Dream Defenders Action who have exposed them. A strategic and sustained fist pumped in the air has proven a formidable weapon against massive corruption in a country as powerful as America.

As the Mexican border immigration wars rage, some African immigrants who never thought themselves unsafe now find themselves targets of the government’s ransacking of those who supposedly cheated in their citizenship interviews. The U.S. Citizenship and Immigration Services is on record explaining the task to de-naturalise “errant” Americans who took up citizenship since 1990. That is the decade the numbers of Africans in America started rising significantly.

It is well-known that Trump has an issue with Nigerians, an identifier he uses to mean Africans. And he’s not alone in calling all Africans Nigerians. Perhaps it is the rising power of Nigerians in America that feels too threatening. The whitening of America in the Trump era is real. The immigration witch-hunts conjure up histories that led to some of the worst human atrocities in places like Nazi Germany where unwanted groups of people who had started thriving were exterminated.

While this remains an interesting time in America, perhaps the incredulous nature of it drives one to the conclusion that it is all in futility. The numbers will sort it all out. Unless white people increase their population at an astronomical rate in the next few decades, America is destined to become a country of majority “people of colour”, for lack of a better term. It is a scary thought that stoked the flames of white nationalism in Britain, leading to Brexit, and now in the United States. Human civility is superficial. Once threatened with the possibility of extinction, conquest or minority status, the human becomes the brute in a jungle where all civility disappears.

While this remains an interesting time in America, perhaps the incredulous nature of it drives one to the conclusion that it is all in futility. The numbers will sort it all out. Unless white people increase their population at an astronomical rate in the next few decades, America is destined to become a country of majority “people of colour”, for lack of a better term.

Only communities that have lived in close connection to the earth will tend to have a greater sense of civility and welcome for the stranger, conquering only to ensure their own survival, but not to fuel uncontrollable greed. America is a corporate empire built upon unexpiated savagery, and like all empires, it will come to its end.

An ode to indigenous peoples

Sitting Bull. Crazy Horse. Little Wolf. Spotted Tail. Red Cloud…the list is long. These Native American warriors who defended the usurpation of their land with fierce skill and legendary valour will inspire for ages. Their defeat will also depress the human spirit that cheers on the emancipation of the conquered. Victories of Native American nations against American expansion are filled with breathtaking courage. The Lakota, the Nez Perce, Cherokee, Navajo, Sioux, and many of the almost 600 indigenous nations held their ground against an army with numbers, resources and technology they could not match. As with most peoples who get conquered, the lack of a united front plays into their defeat.

A story is told in the annals of history that Sitting Bull once had a dream that his Lakota people of Standing Rock would vanquish the approaching American army led by the feared General Custer who had never lost a battle. On this day, Sitting Bull and his vastly outnumbered Lakota warriors prepared to fight yet again. His dream came true, and to America’s shock, the inconquerable Custer was killed and his army decimated at the famed battle of Little Bighorn.

But it wasn’t the dreams of one who prayed to the Great Spirit that won the battle; it was the ferocious zeal to survive when faced with extinction. It was the same zeal that led Shaka Zulu to victory against a British army with superior weaponry at the battle of Isandlwana; the same Ethiopian dare that trounced the invading Italians at the battle of Adoa; the same fire that led to the Mau Mau uprising against Empire in Kenya.

It is the same fire of indigenous African peoples that need instruction to rise and conquer a continent they already occupy, lands that already belong to them, resources that are theirs to exploit. The unfolding development in Africa is the footprint of another encroaching superpower. Africa should not surrender to a second colonisation so soon.

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Ms Hall is a freelance writer based in the USA

Politics

No War, No Peace: Life and Death in Eritrea

Thirty years after Eritrea gained independence from Ethiopia, there has hardly been any meaningful development in this small nation in the Horn of Africa. On the contrary, the government’s authoritarian policies have undermined democracy and forced young people to flee the country.

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No War, No Peace: Life and Death in Eritrea
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Eritrea was an Italian colony from 1890 to 1941. Following the defeat of Italian forces by the Allied Forces during World War Two, Britain occupied Eritrea until its federation to Ethiopia in 1952. However, by 1962 Emperor Haile Selassie had annexed Eritrea, declaring that it was part of Ethiopia, and in this way ending the federation.

In 1961, a year before the annexation, the Eritrean Liberation Front (ELF) started an armed struggle for independence from Ethiopia. The armed struggle continued for 30 years against successive Ethiopian regimes until 1991, when the Eritrean People’s Liberation Front (EPLF), who had replaced the ELF, defeated the Ethiopian forces in Eritrea. Eritrea became formally independent following a United Nations-supervised referendum in 1993.

From the beginning, the EPLF (now the People’s Front of Democracy and Justice – PFDJ)’s strategy for achieving liberation and national unity was for it to dominate all social, political, and economic spaces. The PFDJ implemented a highly centralised and opaque two-track system of administration: an unseen, powerful inner circle of elites; and public structures that projected an image of egalitarian self-sufficiency. This centralised and opaque model of governance continues today.

Since liberation, PFDJ has banned all opposition parties and treats all non-mass-movement organisations (i.e. independent civil society) with suspicion; hence there are no independent national civil society organisations in the country. Without any consultation, the PFDJ has nationalised all land; it has established a unitary form of government, and it has changed the administrative boundaries within the country. Despite these totalitarian tendencies, in 1994, the PFDJ, as the Provisional Government of Eritrea, set up the Constitutional Assembly to draft the Constitution. The task was completed in 1997. But the Constitution remains unimplemented.

Border dispute

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

The EEBC delivered its border decision on 13th April 2002, placing the town of Bademe, the flashpoint of the border conflict, on the Eritrean side. The Ethiopian government contested the allocation of Bademe to Eritrea. Therefore, a situation of “no war, no peace” ensued between the two countries as President Isaias Afewerki refused any dialogue on the issue because the parties had agreed that the decision of the EEBC was final and binding.

President Isaias Afwerki, who is also the chair of the PFDJ, took advantage of the strained relationship with Ethiopia to:

  1. indefinitely postpone the implementation of the 1997 Constitution as well as the general elections;
  2. arrest and disappear dissenters, especially University of Asmara students and the members of the government known as G15 who promoted a democratisation process (2001);
  3. close the independent media and arrest journalists (2001);
  4. abolish the Eritrean National Assembly (i.e. the Eritrean Parliament) (2002);
  5. maintain a high level of militarisation of the country.

To maintain a high level of militarisation, the government vertically integrated the National Service to the National Development Programme (i.e. the Warsay Yikaalo National Development Programme) and to Education. This integration allows the Eritrean government to move students into the National Service and the National Development Programme from high schools (i.e. Grade 12) and indefinitely extends the period of service of the conscripts, hence taking full control over the working population.

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

Through the integration of the National Service into the Warsay Yikaalo National Development Programme and Education, the government has limited the citizenship rights of conscripts who while in service cannot: legally obtain a mobile phone or SIM card; get or renew a business licence; access land; and access travel documents and exit visas. Deserters or objectors are denied any rights and cannot access state services. Thus, the official Eritrean concept of citizenship is intrinsically linked to conscription and the fulfilment of National Service duties.

The National Service is a combination of military training and civil service, working for little pay in non-military activities such as agriculture, the construction of roads, houses and buildings and mining. The Warsay National Development Programme relies on the deployment of te National Service (Warsay) and defence personnel (Yikaalo) as a labour force. The programme operates under the umbrella of the Ministry of Defence.

Since 2003, the government has closed the University of Asmara (the only university in the country). It has also required that all Eritrean students complete Grade 12 at the Sawa military training camp. Students who have not completed their final year of secondary school at Sawa and have not sat for the National School Certificat, cannot access college education. The PFDJ has replaced Asmara University with regional colleges, which are administered jointly by an academic director and a military director.

National Service conscripts work for an indefinite period on development projects, the administration of ministries and local authorities, as well as in PFDJ-owned businesses. Such work is carried out for very little pay and in conditions that a UN Commission of Inquiry on Human Rights in Eritrea described as “forced labour”.

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa. The government will not issue an exit visa to any Eritrean above the age of five, irrespective of their situation (i.e. family reunification, health, etc.)

The government’s control over the Eritrean people is a political, social and economic process of deprivation and human rights violations for which it refuses to take any responsibility. It is systematically impoverishing the population. Therefore, Eritrean youth face having to choose between the life of slave labour or exile. They describe their situation as slavery: “[The] situation in Eritrea and long time ago with slaves is the same. We build the houses of the elites without money. We work on farms of government officials for no money. If you are educated, they deploy you to anywhere…for a short time, you can tolerate it…but this is for life.”

Faced with accusations of human rights violations, the government reverts to “threat” mode. It labels any reference to human rights violations as “lies” and “ploys” of its enemies to undermine the state. The PFDJ Head of Political Affairs, Mr Yemane Gebreab, dismissed the findings of the Commission of Inquiry on Human rights by saying: “….[it is] really laughable……There is no basis to the claims of the Commission of Inquiry…”

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa.

In addition to taking control over the working population, the government also took control of the economic sectors, including finance, import and export, transport and construction. It has achieved control over the economic sphere through a process of unfair competition with private business, facilitated by the fact that it does not pay taxes and does not comply with labour, environmental, and other regulatory requirements. Also, as the regime has control over the working population, it has unlimited access to a large pool of free labour, effecting a net transfer of the workforce away from the private sector. This policy of moving human resources to labour sites identified and controlled by the government has crippled the private sector, especially the agricultural industry, which still relies to a large extent on subsistence farming.

The government’s control and domination of the economy have not increased economic activity or productivity. The economy is stagnating, further weakening the private sector and restricting economic opportunities for Eritreans.

Notwithstanding PFDJ’s rhetoric, Eritrean youth experience the state as an albatross around their necks. They understand the state in terms of spy networks; as a human rights violator curtailing civil, political, and economic rights and as the as the source of torture and deprivation. They see it as the source of all restrictions and deprivations. This is the reason why they flee the country.

Peace Agreement with Ethiopia and its aftermath

In April 2018, the Ethiopia Prime Minister Abiy announced the acceptance of the EEBC decision, in particular the allocation of the flashpoint town of Bademe to Eritrea. In this way, he started a process that led to the signing of the Ethiopia Eritrea Peace Agreement in July 2018, thus ending two decades of “no war, no peace”. The land borders opened to much jubilation in 2018. However, by April 2019, the Eritrean government had closed them all. So far, the only achievements of the Peace Agreement are the reopening of embassies and telecommunication lines and the resumption of flights.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country. Soon after the signing of the Peace Agreement, the Eritrean Catholic priest Aba Teklemichael pointed to the sweeping reforms implemented by Prime Minister Abiy in Ethiopia, and urged the Eritrean government to also undertake necessary reforms in Eritrea and to democratise the government. By Easter 2019, the Eritrean Catholic bishops were also calling for a constitutional government and the rule of law. They also encouraged the government to release political prisoners and start a process of reconciliation within the country. However, to date there have been no reforms in the country, a state of affairs confirmed by the UN Special Rapporteur on Human Rights in Eritrea who at the start of this year reported that she had: “ ……no tangible evidence of a meaningful and substantive improvement in the situation of human rights in Eritrea”.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country.

The ongoing peace process is not transparent; it has mostly remained an elite political level agreement unable to deliver on the economic front or to resolve the issue of Bademe as both Prime Minister Abiy and President Isaias Afewerki have marginalised the Tigray People’s Liberation Front (TPLF) for political motives. The Eritrean government has increasingly identified the Tigray State and the Tigray People’s Liberation Front (TPLF) as an existential threat to Eritrea, thus justifying the maintenance of a high level of militarisation. Consequently, Eritrean youth continue to flee the country. In 2018, UNHCR ranked Eritrea as the ninth-largest refugee-sending state in the world.

Ailing health sector

The totalitarian agenda of the Eritrean government did not spare the health sector either. The task of reconstructing the Eritrean health system after the liberation struggle and following the 1998-2000 Eritrea-Ethiopia border war was monumental. It was an undertaking that the late and former Minister of Health Saleh Meki undertook with passion, commitment, and zest from 1997 to 2009 when Ms Amina Nurhussein replaced him.

In his efforts rebuild the Eritrean health system, Saleh Meki sought to establish strategic partnerships with critical international health institutions, private practitioners, faith-based organisations, such as the Catholic Church, as well as professional members of the Eritrean diaspora. The former Minister of Health carried on with his efforts despite the enormous pressure to conform to the dictates of President Isaias Afwerki, and the concerns generated by the closure of international non-governmental organisations, as well as the restriction of movement imposed on all organisations working in the country. Against all the odds, he re-established the medical school known as the Orotta Medical School.

Saleh Meki died on 2nd October 2009. Soon after his death, all the medical missions of international organisations that he had worked so hard to bring to Eritrea ended. By 2011 the Eritrean Government forced the closure of all private medical clinics. And, by 2018 a total of 29 Catholic health facilities providing maternal and child health support and serving some of the more remote communities in the country were closed. The seizure and closure, of the Catholic health facilities was carried out in complete disregard to the health and safety of the patients, most of whom were left to fend for themselves.

There was no clear justification for the closure of the private health facilities. However, the closure of the Catholic health facilities was justified as an enforcement of the 1995 Proclamation to standardise and articulate religions institutions (Proclamation No 73 of 1995). The Proclamation prohibits religious bodies from engaging in social and welfare services. This position is contested by all faith-based organisations, especially since there was no consultation in the development of the law. The Eritrean Catholic bishops’ communication with the government on the seizure and closure of their health facilities point out that the facilities operated by abiding with all the requirements of the Ministry of Health.

Poor COVID-19 response

The closure of health facilities has reduced the number of available beds and the overall capacity of the health system. Hence, Eritrea, with a score of 0.434, was ranked 182nd out of 189 countries by the 2019 Human Development Index. The low Human Development Index combined with a hospital bed capacity of 7 beds for 10,000 people, and no available data as to the number of health professionals (i.e. doctors and nurses) available per 10,000 people, suggests that the situation might be even more dire. And the poor connectivity of the country (i.e. mobile phones, internet, broadbands) means that the country’s capacity to deal with pandemics such as COVID-19 is low.

The low capacity of the Eritrean health system to deal with the COVID-19 pandemic was also of concern to the diaspora Eritrean Healthcare Professionals Network (EHPN), which urged the Eritrean government to immediately implement the World ealth Orbanization (WHO) and Centre for Disease Control (CDC) guidelines and advisories to contain the pandemic. EHPN expressed concern that the country lacks the necessary prerequisites to implement hygiene measures because: “There is a shortage of water, disinfectants, laboratories that carry out diagnostic tests and medical professionals, including nursing and technical staff. There is also a lack of functioning intensive care units with adequate ventilation equipment needed to properly treat patients. The reality is that many Eritreans will not be able to seek and obtain medical treatment in their homeland or neighbouring countries. In short, the Eritrean health system is not adequately prepared for COVID 19.”

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The government’s willingness to reject donations has, however, launched a COVID-19 appeal among citizens. The appeal is remarkable for the lack of information as to how the funds raised will be used. There is no single COVID-19 emergency response bank account designated for the appeal; hence, in the diaspora, funds are collected in different foreign bank accounts set up by Eritrean embassies. Consequently, there is a real danger that the funds will never enter the country and will disappear into the government’s opaque offshore financial system. Also, there is no information as to how the Ministry of Health will use the funds. Reports by Eritrean human rights activists say the appeal is coerced, confirming the lack of transparency and accountability of the fundraising process.

There is also no transparency in the COVID-19 data that the Eritrean government is providing. It reported the first four COVID-positive cases on the 21st and 23rd of March. One patient was an Eritrean national resident in Norway, and the other three positive patients were Eritrean nationals returning from Dubai. Because of these events, by 26th March, the government banned all commercial passenger flights for two weeks. It also closed schools. And, by 1st April, it imposed COVID-19 lockdown measures.

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The lockdown measures did not include the closure of the Sawa military training camp or the release of political prisoners. The government has recently released 27 Christian prisoners, who were imprisoned without charge or trial for as long as sixteen years. Their release is conditional on their family lodging their property deeds with the government as a guarantee that the people released will not leave the country.

While maintaining a strict lockdown, the Eritrean government has allowed mass gatherings to celebrate the graduation of the 33rd round of Sawa military training camp graduates as well as the transfer of Grade 12 conscripts to the facility.

From 1st April to 18th April, the Eritrean government reported 39 COVID positive cases, all linked to Eritreans visiting or returning from their travels. Then, for two months, there were no new cases reported. After that, the number of COVID-positive cases increased, and by the 12th of October, Eritrea reported a total of 414 COVID-positive patients and 372 recoveries.

Though the government makes repeated references to quarantine centres, it has not shared a list of the centres, their location or capacity. It is also not reporting the daily number of COVID tests. Nor has it reported any COVID-related deaths or any community transmission of the virus. It continues to attribute all the new COVID cases to Eritreans returning through “irregular land and sea routes” from Ethiopia, Sudan, Djibouti and Yemen. But there is no explanation as to why so many nationals are travelling despite the government’s strict lockdown procedure that prohibits all movement between towns and that restricts te movement of any vehicles, including buses and taxis, which require movement permits. Such permits are not easy to obtain.

Finally, there are only five incidents of Ministry of Information reporting the number of individuals tested or in quarantine:

  1. 3,000 quarantined – 8th May 2020;
  2. 5,270 quarantined – 3rd June 2020;
  3. 7,158 nationals returned through irregular land and sea routes. Not clearly stated but the implication is that they were all quarantined – 14th June 2020;
  4. 18,000 citizens allegedly returned through irregular land and sea routes. This movement occurred in the last four months. Again, not clearly stated but the implication is that they were all quarantined – the 12th October 2020;
  5. 41,100 tests – 12th October 2020.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The COVID lockdown in Eritrea, like in other countries, has brought economic activities to a standstill. The difference between Eritrea and other countries is that the Eritrean economy was already on its knees before the lockdown and the Eritrean government has not made any attempt – beyond extorting donations from its citizens – to alleviate the suffering of the people with economic support packages. Consequently, Eritreans are hungry and desperate and have started to ignore strict lockdowns. They are on the streets selling all kinds of goods. Women are out in the streets, making tea and cooking food for sale. Family and friends describe Asmara, the capital city, as full of mobile tea shops.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The Eritrean Afars have, through the Red Sea Afar Human Rights Organisation (RSAHRO), issued a press statement, describing their situation under lockdown as a: “… siege imposed by the Eritrean regime on the citizens of the region.”. They warn of the danger of hunger in their area. They also describe confiscation of boats, camels and supplies by the military, closed health centres, unprepared quarantine centres, as well as lack of medical supplies. The human rights organisation also accuse General Tekle Manjus of confiscating trucks of emergency food sent from Asmara for distribution among the Afar.

The Afar coastal area is not the only area in danger of hunger. The information from Eritrea is that hunger is very real all over the country. The government media and social media accounts do not report the danger of hunger or any of the difficulties that the people are facing during this COVID-19 emergency. Their postings give the impression that Eritrea is doing just fine.

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The Search for a Puppet Chief Justice

The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results.

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The Search for a Puppet Chief Justice
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Anxiety over who will replace Chief Justice David Maraga exploded into the public domain on Friday, October 16, 2020, when a member of the Judicial Service Commission (JSC) alleged a plot to delay the recruitment process. Macharia Njeru, one of the two representatives of the Law Society of Kenya (LSK) to the JSC, claimed in a public statement that the Chief Justice and a few others were “hellbent on derailing the orderly recruitment of his successor and leaving the institution of the Judiciary in a crisis of leadership”.

LSK immediately dissociated itself from Macharia’s position and asserted that the “state capture of the Judiciary and the Judicial Service Commission would not be executed through its representatives”.

The parliamentary Justice and Legal Affairs Committee had earlier failed to prevail on Justice Maraga to take early terminal leave, and subsequently published a proposal to change the law on when to begin recruitment of a new Chief Justice. The Chief Justice will officially retire on January 12, 2021, when he turns 70, but he is expected to take leave on December 15, 2020.

Powerful individuals in the country’s politics cannot wait to see Justice Maraga’s back because of his surprising show of spine. On September 1, 2017, the mild-mannered and soft-spoken jurist led a four-judge majority of the Supreme Court to annul the presidential election in a decision that reverberated across the globe. Last month, Justice Maraga advised the President to dissolve Parliament for failing enact laws to increase representation of women in national elected leadership on the strength of a High Court declaration and six petitions.

Between the two monumental decisions, the Chief Justice has called out the President over judiciary budget cuts, disregard for court orders and verbal attacks on the institution he leads.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric. None of these backhanded actions have brought the politically powerful any satisfaction, hence the abiding desire to find a more user-friendly Chief Justice.

Vacancies in the Judiciary can only be advertised fourteen days after they open up, according to the law, which means that the Chief Justice, who also chairs the JSC, plays no role in recruiting his successor. Previously, individuals in the presidency unsuccessfully sought to influence who becomes Chief Justice since the Constitution of Kenya, on its promulgation in 2010, retired Justice Evan Gicheru in February 2011. At the time, President Mwai Kibaki nominated the Court of Appeal’s Justice Alnashir Visram for Chief Justice without inviting applications or conducting interviews. He was countermanded by the newly-constituted JSC, which then conducted one of the most brutal public interviews for the position before choosing civil society icon and law scholar Willy Mutunga.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric.

Dr Mutunga’s transparent recruitment freed him from the usual baggage that would accompany a political appointment to lead the transformation of the judiciary into an independent, publicly accountable institution [Full disclosure: I was communication advisor in the Office of the Chief Justice from 2011 to 2015]. By the time Dr Mutunga chose to retire a year early in June 2016, he had trebled the number of judges to increase efficiency, built confidence and secured the highest funding ever for the institution. He also ring-fenced decisional independence that would enable courts to act as a check on executive and legislative power.

After the Supreme Court upheld the 2013 presidential election, an internal corruption investigation in the Judiciary sucked the institution into a confrontation with the National Assembly, which petitioned the President to appoint a tribunal to investigate six members of the JSC. A five-judge High Court bench neutered the tribunal before it could sit and presented the first contest between Dr Mutunga and President Uhuru Kenyatta.

President Kenyatta would play possum with a list of 25 judge nominees presented to him by the JSC, first appointing 11 and then keeping the other 14 in abeyance for a year. An amendment to the law to require the JSC to send the President three names from which he could choose the Chief Justice was struck down on account of unconstitutionality.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament. By the time interviews for Dr Mutunga’s replacement began in September 2016, the Executive was disoriented and unable to muscle its substantial vote strength in the JSC for a single candidate.

Although the presidency nominates two non-lawyers as members of the JSC in addition to the Attorney General and a nominee of the Public Service Commission, thus controlling 36 per cent of the vote, the Judiciary has five members – the Chief Justice as chair and one representative each for the Supreme Court, the Court of Appeal, the High Court and the magistrates – and has 45 per cent voice. The Law Society of Kenya’s two representatives – 18 per cent – provide an important swing vote for the Executive or the Judiciary whenever there is no consensus.

Justice Maraga of the Court of Appeal emerged as the dark horse in the three-month search for the Chief Justice on the strength of his electoral law jurisprudence. Earlier attempts to name Supreme Court judge Jackton Ojwang as acting Chief Justice were abandoned. Justice Ojwang trailed fellow Supreme Court judge Smokin Wanjala, Kenyan-American law professor Makau Mutua, and constitutional law expert Nzamba Kitonga.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament.

The Supreme Court’s annulment of the presidential election in September 2017 produced voluble complaints from President Kenyatta, who threatened unspecified action against the Judiciary. The independence of the Judiciary, represented in the person of the Chief Justice, has clearly rankled President Kenyatta and his supporters. He subsequently began a systematic reorganisation of the Executive’s representatives to the JSC by picking a judiciary insider, Court of Appeal president, Kihara Kariuki, to replace Attorney General Githu Muigai. Even before the terms of public representatives Winnie Guchu and Kipng’etich Bett were midway, he recalled them and replaced them with Prof Olive Mugenda and Felix Koskey. And then he declined to gazette the re-election of Mohammed Warsame as Court of Appeal representative to the JSC. Judge Warsame was finally seated without re-taking oath courtesy of a court decision that obviated the need for his election to be gazetted. He joined the judiciary column led by the Chief Justice, Deputy Chief Justice Philomena Mwilu, who had been elected to represent the Supreme Court, and Justice David Majanja, who represents the High Court.

Fears have been rife that the election of the magistrates’ representative to replace Chief Magistrate Emily Ominde in December and the replacement of LSK woman representative Mercy Deche could provide an opportunity for the Executive to support pliant candidates, in addition to Macharia Njeru.

It is likely that urgent attempts to start the Chief Justice’s recruitment could exclude the two representatives of the magistrates and the LSK, thus denying the panel two critical voices. Voting strength in the JSC could also be significantly altered if some of the commissioners apply for the Chief Justice’s position. For one, it is not clear if the 62-year-old Deputy Chief Justice Philomena Mwilu, who already represents the Supreme Court in the JSC, will act as chairperson of the commission once Justice Maraga leaves.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Political horse-trading with Parliament is a necessity for nominees to the position of Chief Justice and Deputy Chief Justice to be confirmed during vetting. Often, politicians view the Chief Justice’s position as one of the spoils to be traded during ethno-regional deal-making. So far, the Chief Justice’s position has been occupied by a kaleidoscope of Kenyans – including many ethnic and religious colourations.

The law only provides for the Deputy Chief Justice to act as Chief Justice “[i]n the event of the removal, resignation or death” and only for a period not exceeding six months pending the appointment of a new one. It remains to be seen if legal experts will argue that retirement is not equivalent to removal, resignation or death. Should Justice Mwilu also throw her hat in the ring for the top job, she would not be able to cast a vote as a JSC member.

Another JSC member who has to weigh between voting and chasing the job is 66-year-old Justice Kihara Kariuki, believed to be a front-runner to succeed Chief Justice Evan Gicheru in 2011 but has bided his time, rising to President of the Court of Appeal before accepting to serve as Attorney General. Meanwhile, Justice Mwilu has been embroiled in petitions seeking her removal from office since the Supreme Court annulled the presidential election. Two years ago, the Director of Public Prosecutions and the Director of Criminal Investigations launched a highly publicised effort to arrest and charge her with corruption before the High Court discharged her and advised that complaints against her be first have been processed through the JSC. Justice Mwilu has since tied the JSC in legal knots over the involvement of the Attorney General and one other member in hearing the complaint against her, claiming that they have shown bias.

Although the Constitution allows a Chief Justice to serve for a maximum of 10 years, the practice so far has been to choose individuals who are close to the retirement age, with the effect that those chosen preside over only presidential petitions from one election cycle before they reach the retirement age of 70. If appointments continue to be short-term to limit the pain individuals can inflict on the institution, candidates in their mid-60s appear to be chosen to navigate the 2022 election and leave before the 2027 one.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Although the Supreme Court’s Justice Smokin Wanjala gave a good showing at the 2016 interviews and was ranked second, his age – 60 – means that if appointed, he would hold the job for 10 years. Law scholar Makau Mutua, 62, who was ranked third in the 2016 interviews for Chief Justice, could also give the job another try, as would former Attorney General Githu Muigai, who would similarly be hampered by fears of serving out the 10 years in the post.

The Executive’s frustration with the Judiciary has been expressed as blame for the slow pace of corruption cases, where the courts are criticised for not pulling their weight to deliver quick convictions. The most evident sign of frustration has been the President’s refusal to appoint 41 individuals nominated by the JSC as Court of Appeal and High Court judges. The law does not permit the JSC to reconsider its nominees after the names have been submitted to the President, except in the case of death, incapacity or withdrawal of a nominee. Last week, judge designate Harrison Okeche died after a road traffic accident before he could be sworn in because the President has not published the names as expected. It remains to be seen how the JSC responds.

Chief Justices chair the Judicial Service Commission, and preside over the Supreme Court, which decides the presidential election petitions. Besides the very constrained and collegial power in these two sites, the Chief Justice also exercises administrative power in empanelling High Court benches for constitutional references, and posts judges – powers shared with the President of the Court of Appeal and the Presiding Judge of the High Court.

A Chief Justice cannot direct judicial officers – from the lowliest magistrate to the Supreme Court judge – on how to decide a matter. Much of the power she or he wields is moral and symbolic. The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results for those seeking a puppet Chief Justice.

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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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