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MATING RITUALS: Fault lines in the donor-NGO relationship

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As Western donors make nice with the government and abandon Kenya’s vocal civil society organisations, can social media ride to the rescue of citizen activism? By RASNA WARAH

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MATING RITUALS: Fault lines in the donor-NGO relationship
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Prior to the 2013 general election in Kenya, presidential aspirant Uhuru Kenyatta and his running mate William Ruto employed a clever (and highly cynical) strategy that used to their “advantage” the fact that they were both indicted by the International Criminal Court (ICC) for crimes against humanity committed after the 2007 election. In a campaign that shocked much of the world – and left many dumbfounded – the duo presented themselves as “victims” of a flawed and racist international justice system and painted the election as “a referendum against the ICC”. Thanks to a well-oiled PR machinery (that included the likes of the controversial firm Cambridge Analytica), they were declared the winners of the election (albeit by a small margin that was contested by the opposition) because, not in spite, of the fact that they were indicted.

The UhuRuto election campaign also castigated non-governmental organisations (NGOs) – also known as civil society organisations (CSOs) – and the Western donors that funded them as “evil society”. Prior to the election, the United States Assistant Secretary of State, Johnny Carson, had warned of “consequences” if Kenyatta and Ruto vied for the presidency and the then British High Commissioner to Kenya, Christian Turner, had stated that if the two candidates’ Jubilee Alliance coalition party won the elections, his government would only maintain “essential contact” with its top officials. (This would all change after Uhuru Kenyatta became the president, but I will come to that later.)

Underlying the anti-West rhetoric was a sub-text that cast Western donors and the NGOs they funded as imperialists. Prominent NGOs that had questioned the legitimacy of ICC indictees running for the presidency were labelled as foreign stooges intent on disrupting the peace and on undermining the country’s sovereignty. (The attack on NGOs as imperialist lackeys seemed disingenuous and hypocritical, considering that Kenyatta’s family has vast business interests that are linked to Western capital and that he had even hired a British PR firm, BTP Advisers, to manage his 2013 presidential campaign and public relations. As professor Horace Campbell noted, the “pseudo anti-imperialism” of Kenyatta was so layered that it would have required a high level of sophistication to grasp the game-playing that was going on.)

Kenyan NGOs were among the first casualties of Jubilee’s unexpected election victory. Writing in African Arguments, Kenyan researcher Kennedy Opalo noted that “at some point in the election cycle they [NGOs] lost the support of a sizeable chunk of the middle class. The feeling of betrayal was hard to miss. The very people they had fought for had rejected their cause.”

This sense of betrayal was evident in Professor Makau Mutua’s weekly column in the Sunday Nation of 21 April 2013, in which he described the deep loss that he and his fellow civil society activists felt as “an existential moment”. Fearful that NGOs might not survive a Kenyatta government, Mutua, the chair and founder of the Kenya Human Rights Commission, stated that civil society activists felt “betrayed by a population they’ve always fought for”, adding that “engaging” and “dialoguing” with the new government would only serve to legitimise it, a notion he found hard to stomach.

Kenyan NGOs were among the first casualties of Jubilee’s unexpected election victory. Writing in African Arguments, Kenyan researcher Kennedy Opalo noted that “at some point in the election cycle they [NGOs] lost the support of a sizeable chunk of the middle class. The feeling of betrayal was hard to miss. The very people they had fought for had rejected their cause.”

Now, more than five years after it castigated Western donors and the ICC as racist imperialists and donor-funded Kenyan NGOs as the “evil society”, the Jubilee government, it seems, has not only mended fences with the West, but Western donors are falling over themselves to impress the government, perhaps in an attempt to secure lucrative infrastructure and other deals and to ensure their geopolitical interests in the region. After threatening all manner of “consequences”, including sanctions and “minimal contact” if the two candidates were elected, donor countries, notably Britain and the United States, have recanted their earlier positions. Given that Britain and the United States, in particular, have huge security and economic interests in the country and in the Horn of Africa, it is likely that their relationship with the Kenyan government is set to flourish. There is no more talk of Kenyatta’s and Ruto’s cases at the ICC (which were dropped due insufficient evidence, witness intimidation and state non-cooperation). Instead Western donors are working overtime to lend support to Jubilee’s development agenda – perhaps in an attempt to counter the increasing influence of China on the Kenyan government’s policies and programmes.

NGOs have thus been relegated to the back burner, making many civil society activists wonder whether all the talk by Western donors about good governance, accountability and human rights was mere rhetoric and not a desired or expected outcome of the donors’ engagement with them. And Western donors are back in the government’s saddle, much to the activists’ amazement and disbelief. They have not only gone on a charm offensive with the Jubilee government but they have also remained largely silent in the face of major corruption scandals that have characterised the Jubilee administration since it took power. NGOs that would have been more vocal about a mismanaged economy or human rights abuses are now struggling to get Western donors’ attention.

Meanwhile, high profile civil society activists who have been vocal critics of both Kenyatta and Ruto are slowly fading into the distance. Some NGOs have even been threatened with closure by the NGO Coordination Board, which has come up with spurious charges against them, an indicator that the space for civil society is likely to shrink further.

Mating ritual

But then why are we surprised by this turn of events? This “mating ritual”, as The Economist once described the relationship between Kenya and its Western donors, is hardly new. The government-donor relationship has undergone several incarnations, ranging from passive-aggressive non-cooperation to grudging accommodation to deliberate re-alignment. The mating ritual’s steps, to quote The Economist article published in August 1998, are as follows:

“One, Kenya wins its yearly pledges of foreign aid. Two, the government begins to misbehave, backtracking on economic reform and behaving in an authoritarian manner. Three, a new meeting of donor countries looms with exasperated foreign governments preparing their sharp rebukes. Four, Kenya pulls a placatory rabbit out of the hat. Five, the donors are mollified and the aid is pledged. The whole dance then starts again.”

In his book Liberal Democracy and the Emergence of a Constitutionally Failed State in Kenya, the Kenyan scholar Abdalla Bujra says that Western donors’ emphasis on “good governance” – and their funding of NGO activities that advance this agenda – is not so much premised on the idea that governments have to be democratic, accountable and participatory, but is “to ensure that foreign investors and large corporations conduct business quickly and efficiently in Kenya as well as to ensure that these investors and foreign companies get their maximum profit without having to share it with local elite through corruption”. (Could it be that one of the “rabbits” that Jubilee pulled out of its hat to placate the US government was the awarding of a large multi-billion-dollar contract to a US company to build a six-lane highway between Nairobi and Mombasa?)

In his book Liberal Democracy and the Emergence of a Constitutionally Failed State in Kenya, the Kenyan scholar Abdalla Bujra says that Western donors’ emphasis on “good governance”…is not so much premised on the idea that governments have to be democratic, accountable and participatory, but is “to ensure that foreign investors and large corporations conduct business quickly and efficiently in Kenya…”

Because some foreign aid is channelled to NGOs (ostensibly to exert the donor country’s “soft power”), NGOs in Kenya became inextricably linked to the “good governance” agenda advocated by Western donors and international financial institutions. Kenya’s “second liberation” from Moi’s autocratic rule was partly the result of donor-funded activities that allowed NGOs and their leaders to push forward their demands. As the Kenyan constitutional lawyer Wachira Maina has noted, “the extent to which local politics is often mediated by donors is remarkable”. Donors, Western donors, in particular, he says, “are the first organised group that the opposition in Kenya speaks to when it has an idea to sell”.

Donors thus, in effect, become “embedded” within Kenyan civil society, thereby indirectly exerting influence on the political landscape. Their support also ensured that NGOs promoted the kind of neoliberalism and democracy favoured by Western governments, which emphasises individual, rather than collective, rights, and repudiates notions of “popular power” based on the sovereignty of the people.   (It is important to note, however, that the bulk of bilateral donor aid to Kenya goes to the government; only a small proportion is channelled to NGOs, a fact that successive Kenyan governments have deliberately played down.)

In order to understand how the mating rituals between the Kenyan government and Western donors and between Western donors and NGOs work, it is important to look at how the government-donor-NGO relationship in Kenya evolved.

The evolution of the Kenyan NGO

The role of NGOs in Kenya has changed significantly since colonial times, when they were mainly philanthropic organisations focused on social welfare issues. While some aligned themselves with the anti-colonial struggle, and went on to form political parties and movements, by and large they remained apolitical. (In fact, many NGOs are required to remain non-partisan and apolitical to be eligible for donor funding.)

After independence in 1963, NGOs continued to do charity work, often working hand-in-hand with the government and the private sector in the spirit of harambee (self-help) popularised by the founding president Jomo Kenyatta. Rural communities, in particular, were encouraged to pool together their own resources to build schools, hospitals and other infrastructure – which in essence meant that the state abdicated its responsibility towards these communities and expected them to use their own money and labour to bring about “development”. The concept of “harambee” (which means to pull together) also got corrupted in later years as politicians fund-raised for and gave money to harambee projects in order to buy votes and influence constituencies.

However, in the early 1980s, when President Daniel arap Moi tightened his grip on the country after declaring the country a de jure one-party state, a number of underground organisations and advocacy groups emerged to oppose his leadership and to fight for the enlargement of the democratic space. This led to the growth of movements such as the proscribed Mwakenya and other pro-reform groups led by faith-based organisations and individual politicians.

The government’s antagonistic relationship with NGOs has its roots in this period when reformist politicians, intellectuals and activists began demanding greater freedoms and more democratic space. The Moi regime fought their demands by instituting draconian laws, arresting and torturing protesters and activists and disbanding or coopting social movements, such as farmers unions and women’s groups, including Maendeleo Ya Wanawake, the largest grassroots women’s group in the country. Some of these activists went on to form NGOs that later become leading voices in the human rights and democracy movement.

Ironically, the 1980s also coincided with a time when both the government and NGOs started to attract more donor funding, particularly after the Kenyan state began reducing investments in the social sector as required by the World Bank-International Monetary Fund-initiated structural adjustment programmes (SAPs). In an essay titled “The Depoliticisation of Poverty”, Firoze Manji says that the hardships precipitated by SAPs led to some serious re-thinking by official aid agencies and multilaterals on how to present their austerity programmes with “a human face”. Funds were set aside to “mitigate the social dimensions of adjustment”. In the late 1980s, therefore, official aid to Kenya began increasing, rising from $394 million in 1980 to $1.18 billion by 1990. Some of this funding went to the rapidly growing NGO sector, which was seen as more cost-effective, less bureaucratic and more efficient than the state.

SAPs thus enlarged the role and scope of NGOs. Privatisation and the reduced role of the state in service delivery led to a significant rise in the number of Kenyans who were “unserviced”. NGOs and faith-based organisations tried to fill the void left by the state – which did not necessarily lead to improved or expanded service delivery to the masses, but did give rise to many NGOs that focused on delivering basic services, such as health and education.

However, the austerity imposed by SAPs led to a rise in civil unrest and protests by leading opposition leaders, which triggered a backlash against the Moi regime in the early and mid- 1990s. The country’s economy was in shambles and hardships imposed by SAPs were fermenting increased dissatisfaction.

SAPs thus enlarged the role and scope of NGOs. Privatisation and the reduced role of the state in service delivery led to a significant rise in the number of Kenyans who were “unserviced”. NGOs and faith-based organisations tried to fill the void left by the state – which did not necessarily lead to improved or expanded service delivery to the masses, but did give rise to many NGOs that focused on delivering basic services, such as health and education.

By the late 1990s, Western donors’ relationship with the Moi government had also begun deteriorating. In order to pressurise Moi to institute political and economic reforms, donors began reducing the amount of aid given to the country. Figures for Kenya compiled by the World Bank show that official aid to Kenya increased dramatically in the late 1980s and early 1990s, but then began dropping in the mid-1990s. By 1999, official bilateral aid to Kenya had dropped to just $310 million, the lowest in two decades.

After Moi’s Kanu party was ousted in the 2002 election by a coalition led by Mwai Kibaki, some NGOs began focusing on issues that the Moi government had failed to tackle or had actually hindered, such as reparation for the victims of historical injustices and the creation of a progressive new constitution. On their part, Western donors, encouraged by the opening of the democratic space and the promise of political and economic reforms, began increasing funding to the Kibaki government and to NGOs; official development assistance (ODA) rose from $525 million in 2003 to $1.3 billion in 2007. This period also saw a rapid rise in the number of NGOs in Kenya, from just 125 in 1974 to more than 6,000 by 2008.

The post-Moi period also saw the co-option of prominent civil society activists and leading lights in the NGO sector into the Kibaki administration; many among them found themselves working for the new government either as elected members of parliament, senior civil servants or advisers. For once it seemed that civil society, NGOs, donors and the government were all on the same page.

However, the cosy relationship between NGOs and the government would change after the disputed 2007 election and its violent aftermath. NGOs dealing with civic education and advocacy found a new calling – that of promoting peace and reconciliation in a country that had become deeply polarised along ethnic lines. Corruption scandals in Kibaki’s first term had also re-energised NGOs that promoted good governance and transparency. The post-election period saw some NGOs and opposition groups intensifying their efforts to advocate for a new constitution (which Kibaki appeared reluctant to implement) that would address historical injustices and safeguard fundamental human rights. (After a lot of back-and-forth, a new constitution was eventually promulgated in 2010 through a nation-wide referendum.)

However, Kibaki’s stated “Look East” policy when it came to development finance, especially for infrastructure, threatened to topple the comfortable paternalistic relationship traditional Western donors enjoyed with the country’s leaders. The appeal of China was irresistible, not only because China did not impose stiff conditionalities on the loans it gave the country, but China’s engagement with Kenya, appeared (on the surface at least) to be mutually beneficial.

This “Look East” policy was further cemented by Uhuru Kenyatta, who barely three weeks after being inaugurated as president in April 2013, made an official visit to China to sign a $3.8 billion deal, most of it in the form of loans for infrastructure projects. (No one wondered how a deal of such magnitude and with so many implications for Kenya’s economy could have been made just days after Kenyatta assumed the presidency, given that bilateral deals of this nature often take months to negotiate.)

Kenya’s love affair with China has blossomed under Kenyatta, much to the detriment of the ordinary Kenyan citizen who is burdened with huge Chinese debts and excessive taxation to service these debts.

The Chinese Communist Party, it seems, has also infected the Jubilee government with an intolerance for dissenting voices. Several NGOs have been threatened with closure, and activists who criticise the government have been vilified on social media by an army of bloggers operating from State House.

The Kenyatta government, like its Chinese counterpart, is also clamping down on the media. In January this year, three TV stations were shut down for almost a week after they aired the “parallel” inauguration ceremony of opposition leader Raila Odinga as “the People’s President”. The Jubilee government is also financially starving media houses by depriving them of advertising: the government’s new MyGov portal that carries all government advertising has deprived many media houses of up to 30 per cent of their advertising revenue. Some newspaper editors have decided to toe the government’s line; there is a feeling that many editorial and management decisions are being made at State House. In March this year, eight columnists working for the Nation Media Group (including myself) resigned due to what we described as “state capture” of the media house.

Intellectual and financial dependency

Some of the problems that NGOs face in the current hostile environment are of their own making. Over-reliance on foreign (mostly Western) donors has created fault lines within the NGO sector which the Jubilee government has fully exploited. Data from the Kenya National Coordination Board shows that more than 90 per cent of Kenyan NGOs’ funding comes from international sources, with only 1 per cent derived from the government. This fact, argues Shadrack W. Nasong’o, raises questions regarding Kenyan NGOs’ independence:

“The reliance of CSOs on external sources of financial support forces them to strive to win the approval of Western donors, lenders, nations and international monitors, rather than the loyalty and support of domestic constituencies, turning them into programmatic appendages of international funding agencies. Given this reality, most of these organisations are unable to effectively counter accusations that they are in the service of foreign rather than local interests. The organisations’ external linkages directly impinge on their agendas and performance.”

Also, as mentioned earlier, NGOs only get the crumbs from the donors’ table: the largest proportion of bilateral donor aid to Kenya has always gone to the state – after all, that is the raison d’être of international development assistance. Given that donor priorities change with the changing priorities of their governments, over-reliance on foreign donor funding can leave NGOs cash-strapped when they least expect it.

Nasang’o further says that NGOs’ contribution to democratisation and popular participation may just be “incidental” rather than “fundamental” because they lack grassroots support; most NGOs are Nairobi-based and speak the “language of donors”, which may not necessarily reflect the needs and desires of social movements and grassroots organisations, such as cooperatives and farmers’ unions. Having no popular grassroots support, many of these NGOs die when their primary funding source vanishes or when donor priorities shift to other areas.

Some of the problems that NGOs face in the current hostile environment are of their own making. Over-reliance on foreign (mostly Western) donors has created fault lines within the NGO sector which the Jubilee government has fully exploited.

Moreover, because they are heavily dependent of Western donors, who come with their own biases and agendas, few of these NGOs are able to assert their independence on the kinds of projects they want to implement. By succumbing to the “language of the donors”, they lose their intellectual independence, as the constitutional lawyer Wachira Maina highlighted in an article published in 1998:

“The language of political reform in Africa is a language generated by donors. Terms like ‘empowerment’ and ‘aid-re-engineering’ are part of the lexicon of the aid business, this language figures prominently in the proposals of local NGOs and in their presentations at seminars. One wonders whether this language can be used among civil society groups in rural Kenya. Even more worrying are suspicions that this dependency on donor language is perhaps part of a larger intellectual dependency…In this regard, it is revealing that key actors in civil society in Kenya, such as cooperatives, farmers and informal groups, hardly ever figure in the reform debate in spite of their obvious power and influence. More remarkably, even when they demonstrate their power to extract concessions from the State in a manner that the more donor-friendly organisations are unable to accomplish, they remain outside the mainstream”

Further, the “professionalisation” of the NGO sector may have hindered the growth of grassroots “Arab Spring” movements made up of ordinary citizens. As Maina has noted, NGOs often reproduce the cleavages in their society; many of the disenfranchising power structures and corrupt practices of government are replicated in the NGO sector because many NGOs’ main aim is not to bring about a fundamental change in society but to ensure their own survival.

In addition, donors’ and NGOs’ focus on “development”, rather than on social justice, ends up “depoliticising” the root causes of poverty and underdevelopment , as Firoze Manji explains:

Far from helping to overturn the social relations that reproduced injustice and impoverishment, the main focus of development was to discover and implement solutions that would enable the victims to cope with, or find ‘sustainable’ solutions for living with impoverishment…Central to this paradigm was to cast ‘poverty’, rather than social justice, as the main problem facing ‘developing countries’. The victims of years of injustices, whose livelihoods had been destroyed by years of colonial rule, were now defined as ‘the problem’, and once so defined, provided the stage set for the entry of the development NGO to participate in the process of depoliticising poverty.”

Manji says that NGOs face a stark choice: either they reinforce the social relations that reproduce poverty, injustice and conflict or they play a positive role in overturning those relations by empowering (for lack of a better word) and giving a voice to those who remain unheard and by helping the poor and the marginalised to accurately diagnose the causes of their poverty and underdevelopment. The latter choice could give rise to a true people’s movement aimed at liberating entire societies from the clutches of retrogressive and authoritarian structures and unjust social and economic systems.

However, the reality is that any hope of a people’s movement has been severely diminished by the “handshake” between Kenyatta and the opposition leader Raila Odinga in March this year. This so-called rapprochement has taken the steam out of many NGOs and opposition groups. For those who spent the better part of the last five years fighting a government they feel is both illegitimate and unethical, the handshake was like a slap in the face. There is a feeling that the handshake was not about ending hostilities between the government and the opposition but about the sharing of state goodies between the president and opposition leader. What deal was struck between the two leaders remains a mystery.

Western donors, on the other hand, perceive the handshake as a mark of success – a shining example of how warring parties in Africa can achieve peace and reconciliation through dialogue. (Note: the “dialogue” that took place between Kenyatta and Odinga was private, was not made public and civil society was not invited to participate in the discussions.) Donors are back in the business of “development” – and government contracts for infrastructure and other projects (including arms deals) that benefit the donor country. Security and the “war on terror” are also likely to remain priority funding areas in the near and distant future.

However, the reality is that any hope of a people’s movement has been severely diminished by the “handshake” between Kenyatta and the opposition leader Raila Odinga in March this year. This so-called rapprochement has taken the steam out of many NGOs and opposition groups. For those who spent the better part of the last five years fighting a government they feel is both illegitimate and unethical, the handshake was like a slap in the face.

With donors no longer interested in actively promoting the good governance and human rights agenda, it is likely that many NGOs will struggle to remain relevant. It is also possible that the nature of the donor-NGO relationship will shift, focusing more on basic needs and service delivery, rather than human rights and governance issues, as it did in the 1990s. With a new set of austerity measures in place, including punitive new taxes (courtesy of the IMF) NGOs may once again be called upon to be the “human face” of hardship.

The idea of having “People’s Assemblies”, and more participatory forms of governance, as proposed by the opposition’s strategist David Ndii, has also died as a result of the handshake between Odinga and Kenyatta. Moreover, the concept that people should be allowed to make decisions about their own welfare – a key principle of devolution that led to the formation of 47 counties – has been tarnished by incompetent and corrupt county governments that are replicating the dysfunctions of the national government. The return of Moi-ism in a different – and perhaps more lethal – garb has set the country back by several decades. However, unlike in the Moi era, NGOs working on issues related to human rights, democracy and good governance are today not likely to find a friendly face at a Western embassy.

Enter social media

The good news is that citizen activism is growing. Tired of opposition politicians who are increasingly being viewed as self-centred and opportunistic and lacking in moral fibre and conviction, the 1.5 million Kenyans on Twitter (KOT) and 5 million Kenyan Facebook users may be the ones who bring about much-needed needed social change. Kenya’s mobile penetration is nearly 90 per cent, which means a large proportion of the population has access to the Internet via smartphones.

Many campaigns, such as the one to switch off Kenya Power, the country’s only electricity supplier, have been initiated using the social media platform, sometimes with positive results. Kenyan social media users have been credited with spearheading the campaign to release the Ugandan politician and musician Bobi Wine from detention. KOT have highlighted issues to do with corruption in government, exorbitant or illegal taxes, and incompetent county governments, among others. Such digital movements may still be urban-based and English-speaking, but they do point to a future where ordinary citizens are becoming more vocal and visible about what they want from their government – that is, if the government does not implement draconian laws to stop their voices from being heard (which it has tried to do through at least three laws, but which the courts have rejected on the grounds that they curtail freedom of expression guaranteed by the constitution).

Other environmental and community-led groups, such as those opposed to the building of a coal-powered plant in Lamu, and fact-checking “digital warriors” who monitor or counter false government propaganda or hate speech, are also emerging. Such individuals and groups no longer feel the need to be mediated by NGOs, which is a good thing as it could eventually lead to a groundswell of grassroots social justice movements across the country. 

Note:

Civil society organisations are generally defined as formal or informal groups that operate in the realm between the individual and the state, and include non-governmental organisations (NGOs), community-based groups, neighbourhood associations, trade unions, charities and faith-based organisations. For the purposes of this article, I have used the term non-governmental organisations (NGOs), which are formal, registered entities that have a national public interest, developmental, social welfare or advocacy function, and which operate largely outside the state, and quite often, in opposition to it. I am not referring to networks, movements or associations that operate informally or outside the law, or which are deemed illegal by the state. Nor am I referring to community-based organisations (CBOs) whose activities are focused at the local community level. 

Rasna Warah
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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

Politics

African Continent a Milking Cow for Google and Facebook

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

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

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

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

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

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

Brick and mortar

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

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

‘Their revenue comes from me’.

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

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

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

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

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

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

Google Ghana is an ‘artificial intelligence research facility’.

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

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

Cash-strapped countries

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

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

Cost to public

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

‘A tax paying people is a questioning people’

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

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

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

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

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

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

Comment

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

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

This article was first published by our partner ZAM Magazine.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Fear and Loathing in Kenya’s Parliament

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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