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Health for All: A Reflection on the Current State of Healthcare in Kenya

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The goal of universal healthcare must take into account how Kenyans access and pay for health services, and eschew the concept of “world class” as a standard for what good quality care should be. By NJOKI NGUMI

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Health for All: A Reflection on the Current State of Healthcare in Kenya
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There are three main concerns Kenyans from all walks of life have during illness or any manner of health crisis: 1) Who is going to take care of me, and where do I have to go to access that care? 2) Will all the options I need for full care be available to me, and are they the best ones there are? 3) Who is going to pay for the options I take? Is it going to have to be me, and what does that mean for my budget and my life?

These are obviously very valid and important questions, and it is a challenge to separate them because they weave so intractably into each other. Where we go and who we see when ill are dictated by who we are. Our age, gender, religion, socio-economic class, employment status, tribe, and proximity to an urban area or hub dictate the options available, and all these rest on the bedrock of the available funds to create and maintain a system of administration, equipment and skilled workers that avail healthcare services. All that considered, let us unpack each of these questions to see much more clearly where we sit in this often confusing and scary place.

Becoming a patient

The first thing we need to remember is that nobody plans for illness, and in that African cultural and spiritual way, we actively assume full wellness in anyone until they are on the verge of collapse. This is rooted in a commonly understood and yet completely unsaid superstition that if we summon illness it will come to stay; so we deny it until we cannot any longer. Kenyans are much less likely to be hypochondriacs than they are to sit uncomfortably on a symptom until it is alarmingly close to its worst possible manifestations.

The first thing we need to remember is that nobody plans for illness, and in that African cultural and spiritual way, we actively assume full wellness in anyone until they are on the verge of collapse. This is rooted in a commonly understood and yet completely unsaid superstition that if we summon illness it will come to stay; so we deny it until we cannot any longer.

A lot of this is linked to the roles we play in society: many people have hostile employers who view illness as a way to chicken out of work. Additionally, there are things we cannot opt out of, even while ill: parenting, especially by mothers of small children, is an example of a 24-hour shift regardless of our state of health. Many doctors will actually make a decision to admit and keep a mother who needs bed rest in hospital because sending her back home is a guarantee that nobody will let her stay in bed longer than five minutes. Many mothers cannot even have a short call in peace when in a house with a small and active child, let alone have a quiet meal or a full night’s sleep.

The idea of who is going to take care of a sick person, therefore, has to begin with who is available to take over or cover for the tasks they have, because this helps them on the path to acknowledging lack of wellness that is severe enough to need intervention from an outside source. Women again tend to draw the short straw and take on a third shift of minder to the sick and frail in a household. Predictably, another woman will likely be destabilised from other roles to come and hold fort for a woman if she herself is sick. Women therefore end up trading their time (as it is seen as less valuable) to take sick relatives to hospital and to assist recuperation there and at home.

Where we go to find help

When seeking help for illness, we prefer to play our cards as close to our chests as possible, and as Kenyans we cannot really blame ourselves for this. In a society where trust metrics have been in active decline for a while now, we are used to being scammed. We watch liars every day on our news channels and listen to them every Sunday at church. Choosing the devils we know, however inefficient they may be, is an easier option emotionally for a people weary of untruths.

One option is to go straight to a chemist, because most people end up at one, one way or another, to buy medicine. They relay the group of symptoms to the person behind the counter, whose only claim to care is a white coat. This person listens to the symptom list: to be fair, it is usually pain, stomach problems, or something respiratory, the majority of which are not too serious, and these things can mostly be managed over the counter. There is definitely room for one-stop interventions and medications, but one key issue is that a single quick public exchange often reduces the quality of the questions and the depth of the answers given. It is thus very easy to miss the subtle nuances between a series of self-limiting symptoms which need instant calming for quick relief, and an unfolding disease process which would need a more intensive treatment plan, as mapped out by lab and image investigations.

Another key locus in an honest healthcare analysis in Kenya is the traditional practitioner, who can be a herbalist, spiritualist, medium or even a medicine man or woman. Often the holders of cultural knowledge and trust, and able to speak to us deeply in language we can understand, using a frame of reference we are instantly familiar with, they have often been much more affordable and much easier to access, sparing us the long queues on hard chairs which end with cold, uniformed people using hard words that nobody understands.

Traditional practitioners can also seamlessly weave in spiritual ideology around healing, which can be a challenge for Western-trained caregivers. Several schools of thought would seek to corral or erase the traditional practitioner, but if anything, they are becoming increasingly popular in light of the limits current care has in seeing the person as a whole being as opposed to a concatenation of symptoms that need solving. Additionally, with the rise of Eastern practices, we are seeing more of Chinese medicine and Ayurvedic methods being explored in academic spaces. A reasonable strategist can project that the diverse African healthcare methods are the next frontier for Big Pharma. This is a conversation that is going on globally, not just in Kenya, and we would do well to take the brief headstart we have to explore some of these areas to whatever advantage we can.

The list of formal facilities available to Kenyans includes public hospitals, clinics and dispensaries, known mostly for understaffing, overcrowding, and subsequent inefficiency. Though many Kenyans go in and out of them daily without too many issues, they boast few stories of consistently stellar service. Faith-based and mission spaces have had many successes, but the vast majority of them are small operations and the footprint of their impact, even cumulatively, is thus limited. Private facilities close out the ranks; they are known for better quality amenities and offerings, but with the price tag we have learned to expect from all private suppliers of goods that should be publicly available—including transport, education and security. They are mitigated by market forces alone, and not subsidised by our taxes or regulated by public policy.

The list of formal facilities available to Kenyans includes public hospitals, clinics and dispensaries, known mostly for understaffing, overcrowding, and subsequent inefficiency. Though many Kenyans go in and out of them daily without too many issues, they boast few stories of consistently stellar service.

The case against being “world class”

We should really worry about the concept of “world class” as an abstract standard permeating our ideas of what good quality should be, especially with a sector as vast as healthcare. First of all, the idea of urbanness and urban contexts is intractably tied to the availability of specialist caregivers and facilities all over the world. Attracting and keeping certain cadres of healthcare providers necessitates certain amenities and access to a lifestyle associated with upward social mobility. However, rural contexts have human beings who are just as much in need of these exact services, but “world class” escapes an association with village life and small scale. There is nothing inclusive about it. It is not a term that was designed to make room for people who fall outside its reach.

Secondly, the trappings of “world class” care are almost, blow by blow, things that can be associated with luxury and availability of high budgets to afford the comforts over and above the basics. In the mostly capitalist context of the Kenyan economy, dignity is one of those things, because in many senses people have to pay to matter. The speed at which people will rush to the bedside of a VIP will tell you that even though the value system of care argues that all people are equal, the Orwellian situation where some are more equal than others, as detailed in the classic literary work Animal Farm, can most often be trusted to prevail. A “world class” situation where people who pay and people who don’t pay are getting the same quality of service can create conflicts, and we therefore find that we have to create discomfort for people who pay less in order to justify the comfort of those who are paying more. A practical example of that is the ever-shrinking size of economy class seats in most airliners.

Thirdly, “world class” in resource-limited contexts like these has tended to focus, rather dangerously, on flashiness of equipment and an array of available specialties, rather than on how the people feel about how they are being treated and guided on the path back to health. We have seen billboards with photos of futuristic diagnostic machines, but heard horrifying stories of patients suffering in the same hospitals where the sci-fi imagers sit. In many ways, we like the idea of a hospital that looks like one abroad but haven’t thought beyond that to a hospital where Kenyans are treated as though they matter.

But even as regards care, we must focus on the caregivers, and the situation with them in this country has been tenuous for a while. The line between public healthcare workers and private ones is very thin because most of them receive their education in the same institutions. The labour issues of the healthcare sector have been known for a while, with strikes rocking the nation at different points, causing unfathomable gaps in direct patient care and public health interventions for vulnerable populations, such as children under the age of 5, people living with HIV, pregnant mothers, the elderly etc. For many reasons, top among which are understaffing, overwork and underpayment, many caregivers are burned out and unable to engage humanely in the lives of their patients, and this humane engagement is the bedrock of what the intention of the word “care” is. Professor David Ndetei et al published a preliminary sample study in 2014 that found that over 95 percent of caregivers at Kenyatta Hospital, Kenya’s largest teaching and referral hospital, were showing clinical signs of burnout. As such, we can have all the best machines in the world, but if we do not also ensure that our caregivers are at their best, we are already running a losing race. The same can be said of healthcare support and administrative staff.

A fourth element of “world class”, which we may have been phased out due to unfocused policy, is matching the disease burden and health needs of the people with the opportunities for training new specialists. This country is only just coming to terms with its prevalence of cancer and many non-communicable diseases, for instance. Our previous leaning on tropical medicine and infectious diseases without keeping a sharp eye on the peripheries has allowed this to feel like it snuck up on us when in reality people have always been suffering: it is just us who didn’t take notice.

We can add to this list the conditions that are considered “rare” and therefore possible to ignore because their sufferers have not reached a number large enough to make macroeconomic investment worthwhile. As such, those with the means are able to get treatment and management in other countries which, whether for free market reasons, solid national planning, or both, enabled spaces where this is available. Often we hear of VIPs who manage public resources having the additional perks of opting out of the care available here, which is almost as though, when it is convenient, they get to stop being the Kenyans they are happy for the rest of us to be. This is not an indictment on everyone who has had the privilege of getting on a plane to places like the UK, India or South Africa to access treatment: it is, however, a recognition of the tragedy in the lives we have lost because so many were not able to access the same options. It becomes pricklier when we consider that sometimes there is room for our national public insurer to pay for people to get care abroad, which is obviously wonderful, but why do we remain unable to do what it would take to avail those options here to all Kenyans? How can we ensure that all lives are viewed as equally valuable?

Often we hear of VIPs who manage public resources having the additional perks of opting out of the care available here, which is almost as though, when it is convenient, they get to stop being the Kenyans they are happy for the rest of us to be. This is not an indictment on everyone who has had the privilege of getting on a plane to places like the UK, India or South Africa to access treatment: it is, however, a recognition of the tragedy in the lives we have lost because so many were not able to access the same options.

A general issue with accessing care abroad is that the great equaliser of persons as regards quality of care becomes emergency services. Regardless of who we are, if we are involved in a road traffic accident or suffer some other acute trauma, we are bound to the nearest facility, wherever it may be, to get the interventions that we need in order to make sure that we buy time and avoid death. During such moments, it is not how much we can pay that matters as much as the assurance that wherever we go, the people in both private and public spaces can give us the exact care we need to keep us alive. Currently that is a difficult assurance to give Kenyans, and so these aspirations towards world-class care are more distractions than they are honest analyses of what is actually possible for us.

Who pays for universal healthcare?

The organic segue when discussing value of life in healthcare is to ask ourselves a few rather philosophical questions. How much are states willing to invest in the life and wellbeing of their citizens? A quantification of the amounts of money a nation’s citizens pay out of pocket for healthcare would be one way to understand that. Understanding where citizens have to plug in from their own net income—and why—may be a more qualitative way to map out any gaps in a country’s healthcare spend.

We have to negotiate the practicalities of actively rolling out what we call universal healthcare. It cannot qualify as universal if citizens cannot access it, or if they are paying a significant part of its cost from their own pockets. It bears explaining that once rolled out, Kenyans may not pay for it, but it is far from free: What it means is that everyone’s care is averaged out and charged to each citizen via the varied taxes we already pay, as well as from the net incomes of a nation from the items it offers for sale to the global market. Basically, we put money in Caesar’s pocket, and it is added to whatever Caesar already has coming in, and then Caesar pays for everyone. The reliance on a central source of funds for our healthcare can be worrying if we consider our rising national debt, and our known tendencies to make monies intended for public expenditure disappear. Furthermore, it has been a long time since Kenya even pretended to spend 15% of its total budget on healthcare, as it pledged in the 2001 Abuja Declaration, so how we move from blatant disregard to even just toeing the minimum will be a matter of the ideal sustained political will that is known to elude us on many other matters of public interest.

The other source of money for healthcare spend is medical insurance, and because of the relatively tiny percentage of people who are privately insured in this country, most of whom access this as a benefit of formal employment. Comprehensive comparisons and analyses have also been hard to come by, but it is the rare client who has not been blindsided or left in the financial lurch by the sudden onset of red tape and small print. Additionally, it is notable that the list of exclusions are not a fair reflection of the disease burden of this population: the alarming number of services that women are unable to easily access as part of comprehensive reproductive health are testament to that. By and large, it is understandable that insurance companies would want to keep a tight handle on spending and payouts, especially when having to work with a relatively small number of customers. It has, however, been disappointing that for professionals who are well versed in betting on the macroeconomics of health and profiting off savvy investments, the clear advantages of a demographic youth boom such as Kenya’s has not created a space in which to partner with the state in more scalable ways to make healthcare available for more people.

It is impossible to consider healthcare without considering the effects of harambee, ubuntu or community contributions. Many Kenyans have reaped the benefits of belonging to a culture that values, for many reasons, coming together to help a person in need. The person does not even have to belong directly to our tribe, religion or family: we will sacrificially find coins to help someone who has been visited by the misfortune of an illness whose treatment surpassed their ability to pay.

However, the intervention of the many is suited to a one-time issue which will hopefully go into remission forever. The burdens of a chronic condition can quickly elicit compassion fatigue in even the most charitable people. Additionally, personal finances are finite, especially in shaky economic times, and the same person who could be generous at one moment can find his circumstances changed radically during a subsequent request. Because of the unpredictable nature of misfortune and the opaque nature of healthcare costs, someone can so easily come from contributing to another’s issue only to find himself the next victim of these particular debts that can so easily impoverish. Moreover, healthcare costs are unrelenting: they don’t care whether the person is working (and in the case of some illnesses and conditions, the sufferer’s ability to do so is actually taken away) or able to pay for them; they just continue to rack up. It is a terrible and cruel thing for any person to have to contemplate whether it is fair that they cannot raise the amount of money they need in order to guarantee healing and well-being in this life.

It is impossible to consider healthcare without considering the effects of harambee, ubuntu or community contributions. Many Kenyans have reaped the benefits of belonging to a culture that values, for many reasons, coming together to help a person in need.

Light at the end of the tunnel

Despite the fact that it would be easy for cynicism to set in, there are actually several things to be optimistic about as regards healthcare in this country. First among these is that we can always hope that the seemingly renewed state commitment to health for all can be a multipartisan agenda whose achievement can transcend the short-term possibilities of political gain for a few. We may, for many reasons, actually get the high political will and follow-through with this that would not only make it a success but also be a shining light for the failures in provision of other public goods for Kenyan citizens. The massive strides forward we are seeing in Makueni County, helmed by its determined governor, Kivutha Kibwana, are practical attempts at universal healthcare that redefine it as possible, not merely as an ambitious pipe dream.

Secondly, the labour conflicts in this sector have illuminated and mapped out the gaps faced by the civil servants who work in it. Because of this, we have a much clearer picture when we look at the issues raised by both them and the patients or service consumers about what is wrong, and are thus in a much better position to look for solutions, with the great advantage of a multidimensional approach.

The presence of devolution is a mixed bag. Many argue that the complexities of healthcare service provision meant that Counties were prematurely bequeathed this responsibility, especially without a data-driven approach to truly understanding the direct concerns of each county. Others had hoped that because each county has such distinctly different needs, the room for and success of innovative solutions that have been created by this separation from national overview can outperform the wide blanket of country-wide strategy by far. Again Makueni County’s innovative methods stand out significantly. All agree, however, that we need a much slower, more deliberate plan to tease out the relationship between the state and the county as regards the healthcare for citizens, especially along the lines of who pays for what.

A fourth advantage is the position of Kenya regionally and continentally as a hub for quality and ambition as regards healthcare policy and practice. Kenya’s public sector is known across the continent for its progressive, almost radical HIV care, treatment and prevention policies. Kenya was the second country in Africa and is still among a minority in the world to roll out pre-exposure prophylaxis to the masses and is deeply involved in research and experimentation towards both a cure and a vaccine.

Another example is our no-nonsense approach to maternal mortality, most recently elaborated as the Beyond Zero campaign led by the Country’s First Lady, Margaret Kenyatta. This campaign has been highly praised globally and is being studied to map out how its implementation can be replicated in other spaces. We’re currently debating and drafting legislature on fertility treatment and surrogacy, and despite our societal and religious conservatism, have been able to shift sexual and reproductive health conversations, especially as part of women’s rights, in very significant ways. The private sector has not been left behind; for many of the region’s citizens, Kenya, and Nairobi in particular, are destinations for quality specialist care and access to services that are not available to them at home. There are definitely ethical concerns in turning a country into a medical tourism hub offering services that are not available for the majority of its own citizens. It is, however, a comfort to note that the ingredients for success are already here.

Kenya’s public sector is known across the continent for its progressive, almost radical HIV care, treatment and prevention policies. Kenya was the second country in Africa and is still among a minority in the world to roll out pre-exposure prophylaxis to the masses, and is deeply involved in research and experimentation towards both a cure and a vaccine.

A follow-up to this is the rising numbers of both facilities and care workers in training. Again, we remain aware that tertiary institutions in this country, and the wider education sector, have also had their struggles with labour tensions, privatisation, underemployment and reduced funding from central government, but that is a whole other article. On the bright side regarding health, there are many more training opportunities available, but the vast majority of these are for first certificates, diplomas and degrees. Specialist training programmes for all cadres of healthcare givers are still inordinately expensive, and the government-sponsored opportunities for those have long waiting lists at both national and county levels.

One other place that Kenya has had some tensions is in negotiating the differences in roles between clinical officers, nurse practitioners and doctors. The facts on the ground remain that we still have a dire shortage of primary care interventionists, and our hybrid approach that allows varied cadres to see patients covers a much larger population base than a purist model would. That being said, we could still do with a more iterative, responsive understanding of who is trained to do what, so that patients are very clear about the clinical boundaries of each cadre.

A final point to note (and this list is by no means exhaustive) is that there is a general change in public attitudes to healthcare, the result of the diffuse access to information that has been occasioned by the Internet. There is more education about topics that were previously covered over by a lot of stigma and ignorance: one example is mental health. Because of this, the public has been empowered to ask more questions and demand timely, satisfactory answers from individual care givers, institutions and the sector at large. A part of it is definitely a more entrenched awareness of their rights as citizens as broken down in the Constitution, which is very explicit about the right to health and even specifically, access to emergency care. Citizens are also able to take to social media streets and host online conversations and debates, which have become offline calls for accountability that have been successful in stopping malpractice and neglect. The media are also taking the need for accessible, comprehensive information more seriously, and there has been a significant rise in health-centred human interest stories, and more expert journalists who are able to unpack complex health issues in ways that Kenyans are happy to learn from, engage with, analyse and debate.

There is a lot of room to stick it out and hope for the better—just because so much has been so bad for so long does not invalidate the good things that have been happening under the radar. All said and done, though, we must wait and see if true universal healthcare is possible within the context of what Kenyan healthcare has been and has the potential to be.

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Dr. Njoki Ngumi is a writer, maker and feminist thinker who has held positions in private and public healthcare sectors in Kenya. She is a member of the Nest Collective and coordinates learning and development for HEVA Fund.

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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