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DEATH OF AN INVESTIGATOR: The Suicide of Stephen Mumbo

On Friday, 12 October 2018, Stephen Mumbo jumped from the 17th floor of the PwC office building in Westlands, Nairobi. Piecing his last moments alive reveals a trail of work-related stress and a man who was broken long before he fell to his death. By DAVID ODONGO and MORRIS KIRUGA

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DEATH OF AN INVESTIGATOR: The Suicide of Stephen Mumbo
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Dark Friday

As he was leaving for work, Stephen Mumbo closed the door to his apartment. It was still dark outside, but he had to be at work early enough to finish a report and prepare for a meeting. In one hand he carried the lunchbox his wife, Roselyne, packed for him every night. In the other, he held his car keys.

A quiet, shy bespectacled man with a balding head and a nerdy aura, he was always polite to a fault. He was also a workaholic, rarely seen anywhere else but at his office desk. But this morning, as he left the apartment, got to the parking lot, and into his maroon Mitsubishi Lancer, registration plate KAS 843M, something else was on his mind.

He was tired, but that fatigue would have to wait. He had barely seen Roselyne and their infant daughter in the preceding two months as he had been busy undoing one of the biggest corporate messes in Kenyan history. It was his brief, but for most of the previous decade and a half, such assignments had been his life.

To anyone watching, nothing was outwardly unusual about Mumbo that cold Friday morning.

From his apartment building, the 9-storey Pangani Palace Apartments off Muthaiga roundabout, he joined the early morning rush hour traffic. Although Nairobi wakes up early to beat the city’s infamous traffic jams, it took him less than 30 minutes to reach his office in Westlands. The sun rose on the horizon and with it, the city. It would be the last time he would take that route.

As he took a gentle left turn off Waiyaki Way to the paved driveway of the twin Delta Towers, the headquarters of his employer, Stephen Mumbo was already a man on edge. But his permanent calm demeanor, which had only failed him on rare occasions, hid the turmoil beneath.

Mumbo waved at the guards as they let him through the barrier. He drove to his parking slot, reverse-parked into it, and walked to the lift. Once in, he pressed the 12 button and waited. When the doors opened, he got off and walked to his office.

Mumbo used his access card to enter the office a few seconds before 6:15 a.m. Even that early on a Friday morning, he was not the first person at the Pricewaterhouse Coopers (PwC) Kenya office. At least four of his colleagues were already at their desks, typing up reports, trying to meet deadlines and preparing for meetings.

Mumbo removed his suit jacket and draped it over his seat. On any other day, he would only wear it again if he had a meeting or if it got cold. He sat at his desk, which was a neatly arranged table with no personal items. It was where he spent days and nights working on assignments, and where, this fateful morning, he would sit one last time. On his mind was a report he had been toiling on for the previous two weeks that was due that morning. But there were many other things troubling him.

Mumbo used his access card to enter the office a few seconds before 6:15a.m. Even that early on a Friday morning, he was not the first person at the Pricewaterhouse Coopers (PwC) Kenya office. At least four of his colleagues were already at their desks, typing up reports, trying to meet deadlines and preparing for meetings.

Six weeks before that morning, UBA Bank had placed ARM Cement, a listed manufacturing company, under PwC’s management over massive debt. The company had been suspended from the Nairobi Stock Exchange (NSE) as its shareholders reeled in disclosures of hidden debts and other forms of corporate malfeasance. While for outsiders it was a story of yet another typical Kenyan company, for Stephen Mumbo it was a direct challenge.

As the Assistant Manager of Executory and Forensic Investigations, the complexities of understanding the company’s true position, and then figuring out ways to solve the mess, fell directly on his desk – and he was just the man for the job. He was not only reliable, he was also driven. In a profession that demands brilliance, he could be considered a proper nerd. Besides, he had worked for PwC for nearly a decade and a half and had proven his skills countless times. If there was a complexity you couldn’t untangle, on just about any project, Stephen Mumbo was the man to ask.

He’d spent 18-hour work days working on the ARM proposal, which was not unusual for him or anyone who worked at PwC. What was specifically different was that Mumbo was a perfectionist par excellence. Grammar was important to him; a comma out of place would unnerve him, and more than once he had chosen to file reports late rather than table them with errors. He approached his work, as one colleague put it, like the civil engineer he had been trained to be. One centimetre off, and the whole structure risks collapse. That perfectionism meant he spent hours and days labouring on not just getting the right proposals on paper, but also on making sure that the language in the reports was clear and concise. It made him irreplaceable, but at the same time, it meant that he could not be promoted.

Sometime between 7:30am and 7:40am, Mumbo asked a colleague whether there was any free meeting room on the 17th floor. There wasn’t, she told him. Despite having this information, he still went upstairs, hoping that the administrator there could find him one. He needed it for a meeting, which was scheduled for 9am, but he also had other things on his mind.

The only thing that might have caught anyone’s attention was that he wasn’t wearing his spectacles, which was rare. His eyes were red, but for a man in his profession, that was considered just another day at the office. It was also not unusual for him to go upstairs hours before a meeting. Since he had left his jacket draped on his chair, everyone assumed he was coming back.

On the 17th floor, Mumbo tried several rooms. He found someone talking on her phone in one of them. She asked him if he had booked the room. He said no, and closed the door. That woman was probably the last person to see him alive.

When he got to Kilimanjaro 2 meeting room, he found it empty. He closed the door behind him. He was physically alone, but no one will ever truly know what kind of torment he was going through.  He walked across the room’s polished floors, passing the black and yellow chairs, probably tapping his fingers on the grey top mahogany table. Then he placed his Lenovo laptop on the table, walked to the window, and climbed outside. From there, he could see the Westlands rush hour traffic below him. He could see Waiyaki Way, and even the stretch he had turned into two hours earlier to get into his office, as well as the Westlands matatu stage on the other side of the road. There was the luxury car dealership at the end of the complex, and the parking lot between it and his building. But maybe he didn’t notice any of this as he steadied himself on the ledge.

Then he jumped.

To anyone watching from outside, the fall lasted the blink of an eye. One second Stephen Mumbo was standing on the ledge of the window, and the next he was on the balcony of the 2nd floor, fifteen floors down. It must have looked macabre, the sight of a man falling to his death against the backdrop of Delta Towers’ imposing façade. To the employees at SBM Bank, on whose second-floor window ledge Mumbo died, it sounded like a sudden thud.

Many things drove his choice of the 17th floor, including the fact that it was mostly empty at that time of day, and that from that high up, he was unlikely to survive the fall. Later images from witnesses in the buildings across show four first responders around his lifeless body dressed in a light blue shirt and black suit pants. There wasn’t much anyone could do at that point, and he was pronounced dead immediately after he was taken to the hospital.

Inside PwC Kenya, the immediate members of his team were told to go home or wait if they needed to see a counsellor. Someone retrieved Mumbo’s Lenovo laptop from the meeting room, and from it the report he had spent his last two months alive working on. Everyone else was ordered back to their assignments, even while Mumbo’s body still lay on a ledge below.

***

As the news of Stephen Mumbo’s fall broke in the capital city, people speculated on whether he had jumped or he had been pushed. On Twitter, people wondered whether there had been foul play; some connected the dots from Mumbo’s sensitive work as a forensic investigator to his fall. There are no cameras in the corridors outside the boardroom, only on the staircases.  That blind spot would make it hard for investigators to determine if anyone had joined him in the room.

Others focused on the suicide angle; many wondered why a 41-year-old man with a well-paying job would choose to end his life. Some suggested domestic issues had driven Mumbo to his death; one strangely detailed tweet suggested infidelity. But the public speculation ignored the probability that only Stephen Mumbo knew what Stephen Mumbo was going through. In the absence of a suicide note in any form – none has been found – piecing back the last few years of his life is probably the only way to understand why he killed himself.

As the news of Stephen Mumbo’s fall broke in the capital city, people speculated on whether he had jumped or he had been pushed. On Twitter, people wondered whether there had been foul play; some connected the dots from Mumbo’s sensitive work as a forensic investigator to his fall.

By the time he died, Stephen Mumbo was one of only three employees who had been at PwC Kenya for more than 13 years. He’d only had one job outside PwC (as a design engineer between March 2003 and April 2004) before joining the accounting firm. The only other company he had worked for was a small Malawian smallholder farmer’s company where he had done a brief consultancy in 2016. PwC was, by all accounts, more home to him than his apartment was. The job fit his personality as it required a meticulous, borderline obsessive mind.

Mumbo was, by many accounts, a good boss and an effective team leader who avoided office politics. In a profession where kindness is rare, he was overly compassionate and helpful. Sometimes, according to several people who worked with him over the years, he would volunteer to help on a project and eventually take a leadership role. But he was the kind of colleague who took on team projects and then credited everyone else. According to at least one insider, the kind of work Stephen Mumbo was handling on ARM Cement was probably work that should have been handled by a team of six.

Mumbo’s perfectionism and thoroughness also made him irreplaceable. Most of the people who eventually became his bosses owed some of their success to him. He trained them, as he did many other people, but they passed him in rank because he was not assertive. In a meeting room, he would point out flaws in plans in a heartbeat, but recoil when asked how to change them. Instead, he would draft his thoughts and offer them to someone else to present.

But he enjoyed the work itself. The constant mental challenge must have been a thrill at the beginning of his career, but it slowly chipped away at his mental health.

By October 2018, he couldn’t take it anymore. “They [PwC] plied him with so much work, and he wasn’t the type to say no, so he did it anyway. He was always very well groomed, but always tired,” said a relative.

The firm

By the time Pricewaterhouse Coopers bought part of Delta Towers in late 2012 for Sh4.4 billion in a joint deal with the University of Nairobi, it was already one of the biggest auditing firms in the world. The company was founded in 1998 through a merger between Coopers & Lybrand and Price Waterhouse, and rebranded to PwC in September 2010. By then, it was present in 158 countries and 743 locations, battling it out with three other audit firms, Deloitte, EY, and KPMG. PwC had over 236,000 people in its ranks, among them a quiet Kenyan nerd called Stephen Mumbo.

The PwC Tower, one of the two towers that make up Delta Towers, became PwC’s new home from early 2013. It was a remarkable investment by a company partially owned by Indian billionaire Mukesh Ambani. PwC Kenya settled for Wing B of the 20-storey twin towers, occupying half and renting out the other half. Upper Hill, its former home, was losing its lustre as new buildings came up without the infrastructure to support them. Now, in the newest building on the corner of Waiyaki Way and Ring Road Westlands, its employees were spoilt for choice on where to live. Location was important because many of them would work long hours, driving to and from work while the city slept.

As an employer, PwC Kenya consistently ranks as one of the best places to work in Nairobi. Entry-level graduate trainees earn an average monthly salary of Sh120,000, and its partners, according to Kenya Revenue Authority (KRA), are some high-net-worth individuals with gross annual incomes of between Sh350 million and Sh1 billion.

For the ARM job, PwC charged Sh65.6 million for the first three months, in addition to Sh7.9 million for preparatory work. While the PwC partners appointed to do the job were Muniu Thoithi and George Weru, the actual legwork went to a quiet nerd on the 12th floor called Stephen Mumbo. Thoithi and Weru would earn Sh43,000 per hour, while associate directors would earn Sh37,800, senior managers Sh30,000, and project managers Sh25,000 per hour. As a manager, Mumbo’s pay most likely fell in the two lower ranks. But to earn his keep, he would have to spend hours on end poring through reports, preparing his own recommendations, and presenting them to his bosses and the client.

By the time Mumbo got to his desk at 6:15am on Friday, 12th October, he had had less than three hours of sleep. He had gone home at 1am the previous night. He fell asleep fast, but he was clearly distressed, according to several close family members. He kept tossing and turning and woke up before daylight to get back on the grind.

Multiple conversations with past and current employees of PwC Kenya paint the picture of a firm with little space for work-life balance. Long hours and mind-breaking work are the norm, and most employees, like Stephen Mumbo, tend to live close to Delta Towers to ease the commute to work. The employee turnover rate is understandably high, as the work environment becomes more unbearable as one ages and begins seeking a better work-life balance.

Describing his experience at PwC, one employee said, “Deadlines have to be met and bonuses have to be earned. Your health is your problem. If you can’t handle the pressure, quit.” Another termed PwC’s work culture as “ruthless”, adding that even “having a baby is frowned upon.” Lunch breaks, several employees said, are not exactly an option: “Nobody goes for a long leisurely lunch at PwC. Many people eat at their desks.” The average work day, said several employees, is 14 hours. If you are on a project, it’s not unusual to work 18-hour days.

Under Kenyan law, normal working hours are between 45 hours and 52 hours a week for day employees and 60 hours for night employees. The law also provides for at least one rest day a week. At 14-18 hours a day, Stephen Mumbo and his colleagues were clocking between 84 hours to 126 hours a week, twice the legal limit. While the law also provides for overtime, the overriding element is that it be properly compensated, and not result in overworking, which impairs sleep patterns and increases the risk of stress, depression, and lower immunity. Overwork has been associated with heart problems, and among low-income workers, with an increased risk of type 2 diabetes. People who overwork tend to lead unhealthy lifestyles, having less time to exercise, eat. They also tend to smoke or drink more.

Describing his experience at PwC, one employee said, “Deadlines have to be met and bonuses have to be earned. Your health is your problem. If you can’t handle the pressure, quit.” Another termed PwC’s work culture as “ruthless”, adding that even “having a baby is frowned upon.”

Stephen Mumbo seemed to have navigated many of the physical challenges of overworking for almost a decade and a half. He was in good health, didn’t smoke, and barely drank alcohol. But the mental strain was showing.

All the interviewees for this story did not want to be named for fear of retribution for breaking company policy. In more than one case, there were also descriptions of the kind of retribution they might face, down to being put on track to be fired. More often than not, the interviewees still within PwC Tower outlined their basic exit plans and described Mumbo’s death as the latest in a series of wake-up calls.

For those who choose to stay, like Stephen Mumbo, the back-breaking work eventually leads to burnout. There was at least one other breakdown at the office in 2017, and several employees whispered about people self-harming or using drugs to cope with the pressure. For Stephen Mumbo, years of such pressure had finally taken their toll.

***

Mumbo’s distress on that last night was not the only time he had shown signs of work-related stress and depression. In the years before his death, he had had at least three visible episodes of burnout and mental distress at work. In 2015, he had a breakdown in the office and walked out on his boss. He was away from the office for a month. Meanwhile, work was still piling up; Shah Karuturi, the Kenyan subsidiary of the world’s biggest producer of cut roses, was placed under administration sometime during his break. This project was on his desk when he got back.

Then, in mid-2017, a colleague recalls, Mumbo fell asleep in the middle of a presentation with a client. “He was totally burned out, but his bosses simply told him to go to another boardroom and sleep for 45 minutes and then get back to work,” remembered the colleague. Such was life for him, going from one burnout to the next.

The third instance was perhaps the most significant in piecing together Stephen Mumbo’s last years alive. It happened years before he finally took his life, and linked back to the pillars in his adult life.

Then, in mid-2017, a colleague recalls, Mumbo fell asleep in the middle of a presentation with a client. “He was totally burned out, but his bosses simply told him to go to another board room and sleep for 45 minutes and then get back to work,” remembered the colleague. Such was life for him, going from one burnout to the next.

Run to the finish

Mumbo’s village in Kisumu, Nyamasaria, is a hot, dry, humid area. The land is infertile because its black cotton soil sucks the life out of any cash crop. Only weeds, euphorbia, and coarse grass are stubborn enough to grow on the land.

It was in this unforgiving terrain that Stephen Henry Mumbo was born to Arthur Waore Mumbo, an administrator at KEMRI, and Abigael Waore, a teacher at Nyamasaria Primary School in 1977. Mumbo was the last-born in a family of five.

Arthur Waore died in 1992, the year before Stephen joined St. Paul’s Amukura. The young teen moved to Alupe, Busia, to live under the care of his uncle, Mzee Obura, a doctor who still works for KEMRI. All accounts of Stephen Mumbo then match the man he would become: quiet, studious, and driven. According to his cousin, Fred Obura, Mumbo was more than just a brother. They were best friends and even went to the same high school.

In the 1990s, St. Paul’s Amukura, founded by Catholic priest Father Louis Okidoi in 1962, was an academic giant in what is now Busia County. The school motto, Cursum Consumavi, is Latin for “Run to the Finish.” When Stephen Mumbo was a student there, between 1993 and 1996, he lived in Nehru dormitory, named after the charismatic Indian leader.

In his teens, Stephen Mumbo walked awkwardly and avoided conversation. Several fellow alumni of St. Paul’s describe Mumbo’s shyness with fascination. Mumbo was, one says, the guy who wanted the key to the library when everyone else was chasing girls and dates. Odeo Sirari, a KTN news editor, was in Form One when Mumbo was in his final year. “As a new student, it was easy for me to notice Mumbo because he looked so serious, a total book worm,” recalls Sirari.

Another schoolmate, Caleb Etyang, who was a year ahead of Mumbo, says Mumbo would never be found on the school Isuzu bus, christened Kisisiata 3, which served the school between 1990 and 1999, and was driven by a gentle old man the boys fondly called Boyo. “He wasn’t a guy to go for sports or drama outings, he was much more at home in the school and in the library.” In his first two years at the school, he was the class prefect. In his last two years, he was the library prefect.

Mumbo topped the class of 1996 at the school, his only disappointment being that he hadn’t beaten the record of Adiema Aura, a renowned educationist who attended the school in the 80s. He’d only failed to overthrow Aura because he didn’t do well in Kiswahili; he scored an A-minus in the subject.

From St. Paul’s, he made his way to JKUAT, where he would spend the next few years training to become a civil engineer. Engineering offered the challenges a nerd like him yearned for, with its tenets of approaching problems and challenges with a tenacity that combined knowledge, skills and experience. After graduating, he did an accounting course and then took a brief engineering gig. Then he joined PwC Kenya, where he would spend the rest of his life, save for two unpaid sabbaticals.

Throughout this life, Mumbo relied mostly on his mother, Abigael, for emotional support. He had his siblings as well, as well as his adopted ones who were in fact, his cousins. But it was Abigael who represented the most profound influence on her shy young son’s life before and after school.

Then, on 3rd June 2008, Abigael Waore died.

Figure 1: Kenya Gazette notice of 31 October 2008

 

Multiple accounts point to a marked change in Mumbo’s life, work, and demeanor after his mum died. He simply couldn’t work anymore; he took a one-year unpaid sabbatical before going back to work. At some point, either then or after, Mumbo also mounted a massive portrait of his mother in his bedroom. Her face was the last thing he saw before he slept and the first thing he saw when he woke up.

 

Colleagues say that whenever he was not shy, he would talk about his mum a lot. After she died, he mostly talked about his wife Roselyne. They had been married for seven years but had spent a considerable time apart as Roselyne focused on a project in Kisumu and Mumbo toiled at PwC Tower. On days when they were together, his lunch box was the source of envy, as colleagues listened to him go on and on about his wife’s cooking. On any day, even when out of the country on assignment, he would speak to her on the phone for at least an hour.

In the three months before his tragic fall, he also talked about his daughter. The couple had tried to have a baby for several years before finally settling on adoption to grow their family. The toddler was a new addition, and a happy one at that. Mumbo often talked about his daughter, but also said how he didn’t get enough time to be with her.

The patterns

Mumbo’s suicide was not the first time a PwC employee had died after jumping from a floor in a PwC office. In April 2016, a 23-year-old employee of the PwC headquarters in London had jumped to his death from PwC’s ten-storey office building. His decision was attributed to a secret gambling habit, which he had begged his parents not to inform PwC about. He died on a walkway outside the office.

In another case, in May 2012, a 46-year old man jumped off the eighth floor of the PwC building in Largo, the third largest city in Pinellas County, Florida. In 2015, a director at PwC in the UAE, Jumana, was found dead in an apparent suicide pact with her sister, Soraya Saiti, at the base of a building under construction in Amman, Jordan. Then in August 2017, a PwC director named Werner Haupfleisch died by suicide in his home in Royldene, South Africa.

While none of these deaths were directly linked to PwC’s organisational culture, there have been other related deaths. In 2011, for example, Angela Pan, an auditor at the Shanghai PwC office, died ten days after first showing flu-like symptoms. Although her death was attributed to viral encephalitis, social media users of Sina Weibo speculated that she had been “worked to death”, Sometime before her death, Pan sent an update on Sina Weibo that said, “I can accept overtime. I can also accept out-of-town business trips. But on learning a young worker died from fatigue at KP (KPMG), I feel something has broken my bottom line to endure.” She had only worked for the company for six months, after graduating from Shanghai Jiao Tong University.

Faith Atsango, a psychologist, says that work-related stress should be classified as a safety hazard. “People in high pressure jobs are prone to have mental breakdowns,” she adds, “and such incidents should be treated as physical health and safety issues at work.” Atsango says that similar to how factories provide safety gear, stressful work environments should find ways to help employees cope, and ease burnout. Many of these are included in the Occupational Safety and Health Act, which also safeguards employees from “mental strain”.

Faith Atsango, a psychologist, says that work-related stress should be classified as a safety hazard. “People in high pressure jobs are prone to have mental breakdowns,” she adds, “and such incidents should be treated as physical health and safety issues at work.”

Despite these safeguards, high unemployment and weak enforcement of labour laws mean that work-related stress is not properly addressed. Mental health is still largely a taboo topic, despite an increasing number of deaths directly connected to it.

Part of the stigma attached to mental health is gender-related; statistics show that more than 70 per cent of the suicide-related deaths in 2017 were of males.  Two days after Mumbo’s death, another man jumped into a borehole in Matisi Estate, Kitale. Five months before that, another man had jumped off the 8th floor of the 15-storey NSSF building in Mombasa.

There are numerous reasons for the gender disparity, most of them revolving around the social silence on depression and other mental health issues among men. Even worse, the stresses of living and working in a fast-paced urban centre pile up.  The stresses include underemployment, overwork, length of the commute to work, and stagnant pay levels in a struggling economy.

A 1982 study on the subject showed that while the population in Nairobi grew by 7.5 per cent between 1975 and 1979, the rate of suicides grew by 300 per cent. The study also found a pattern in the months with the highest suicide rates; suicides tend to occur in the months of January to March, April to June, and October to December. There have been other studies focusing on at-risk groups, such as university students, but there is barely any substantive research on work-related stress and depression.

Then there’s the law. Instead of the law taking a pragmatic approach to the reasons why people take their own lives, it treats suicide as a crime. Attempted suicide is a misdemeanour punishable by two years’ imprisonment or fines, or both. This means that if Stephen Mumbo had survived his fall, which was unlikely, he would have promptly been arrested and thrown before a judge. That legal perspective and the social stigma also mean that suicide goes largely unacknowledged as the social issue it is.

Despite the legal and social hurdles, there have been some attempts to provide psychological wellness for several at-risk groups. In October, the same month Stephen Mumbo died, the National Police Service created a new department to assess the psychological wellness of officers. There had been at least five reported suicides of police officers in the preceding months. A few months later, the education ministry raised the alarm on an increasing number of death by suicide among university students.

In corporate workplaces such as PwC Kenya, the inclusion of psychological wellness has been at best abstract. PwC Global has made several public commitments to facilitate mental health awareness within its ranks. PwC UK, for example, has a “Green Light to Talk Day” and hired Beth Taylor as its new mental health leader in January 2016. PwC Malaysia has a “FitPwC” programme that combines physical and mental wellbeing. PwC Kenya does not have any such programme, and several employees described recent events, such as a meeting where management sought ideas on how to improve the work environment, as window-dressing.

As a consulting firm, PwC has published several reports on workplace stress. In 2017, PwC UK published a report on tackling workplace stress with technology. Three years before that, PwC Australia published a report titled “Creating a mentally healthy workplace.” The irony of such reports, according to a former long-term employee of PwC, is that they were most likely prepared by people who were themselves working in a mentally unhealthy environment. 

The aftermath

A few hours after Mumbo’s death, Peter Ngahu, PwC’s regional and country senior partner, held a press conference where he said, “It’s difficult to keep track of what each and every person is doing.” He refused to answer the question about whether Mumbo had been alone in the meeting room before he fell to his death. His response was: “He may have had a meeting, but he’s not here to answer the question.”

After that, Ngahu and Mumbo’s bosses, Muniu Thoithi and George Weru, declined any more media interviews into the death. Both Ngahu and Thoithi didn’t pick calls or answer text messages about the company’s work culture and measures they would institute to help employees deal with work-related stress. Reached for comment, George Weru declined, saying “No, no, no, I would not wish to say anything about this issue. The boss, Ngahu, issued a press statement and held a press conference on the matter last Friday.”

 

PwC Press Release

PwC Press Release

At PwC Tower, life continued almost as if nothing significant had happened there on October 12th. If Mumbo’s death had been “a big blow” to PwC Kenya, as Ngahu termed it in his press release, then it didn’t show. There was counselling for a few of the staff members in Mumbo’s team, but then everyone went back to work even before his body was removed from the scene.

The ARM project, his last, continued unabated, as did the entire firm. Eleven days after he stepped off the ledge of the 17th floor meeting room, ARM’s creditors approved an extension of PwC’s mandate to September 2019. It will be going on to this next phase without one of its ablest minds. In a meeting on October 22nd, the creditors also gave PwC permission to implement several options to revive the company. These, most likely sourced from Mumbo’s work, include getting a strategic investor and selling off some of the company’s key assets. It is unclear whether he had been the one who discovered that for years, ARM Cement had been treating a loan to its Tanzanian subsidiary as a performing loan while Maweni had been defaulting for years.

At PwC Tower, life continued almost as if nothing significant had happened there on October 12th. If Mumbo’s death had been “a big blow” to PwC Kenya, as Ngahu termed it in his press release, then it didn’t show. There was counselling for a few of the staff members in Mumbo’s team, but then everyone went back to work even before his body was removed from the scene.

***

Even before the shock of his sudden death waned, Mumbo’s friends and family organised meetings and fundraisers. At Tumaini Meeting Chambers behind Kencom House, they planned a farewell to a man who had seemed like he had it all. Many of his colleagues could not make it to the meetings because they were working. Instead, they sent cash donations and condolences.

On Friday, 26th October 2018, exactly two weeks after Mumbo had ended his life, they left in a convoy from Montezuma Funeral Home and drove to Mumbo’s home in Nyamasaria. The next day, at 9 am, they sat as the priest prayed, and then watched in grief as the casket bearing Mumbo’s body was slowly lowered into the grave. It was heartbreaking, a tragedy by any measure. A man who, after living off his brilliance, had ended up back in the unforgiving soil where he had first seen the world. For Roselyne and their daughter, it was the beginning of a life without Mumbo, who was at the time the sole breadwinner in the household.

On the 2nd floor ledge at Delta Towers, where Mumbo breathed his last, the dent his body left is still prominent, a stark reminder of his tragic end. In the parking lot, his Mitsubishi Lancer sat untouched for months, parked in the same spot where he left it.

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David Odongo (@DavidOdongo) is a journalist and writer while Maurice Kiruga (@MorrisKiruga) is a blogger and writer, both based in Nairobi, Kenya.

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The Investors That Stole Our Future: Uganda’s Illusory Fiscal Policies

With Uganda’s history of poor public administration and disastrous debt management, corruption, and increasing civil unrest and repression, what was the basis of the IMF’s optimism? The organisation has a permanent office in the Ministry of Finance and its headquarters sends multiple missions every year to monitor economic progress. To solve Uganda’s perennial economic distress, citizens must first understand the IMF’s mission in Uganda.

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The Investors That Stole Our Future: Uganda’s Illusory Fiscal Policies
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There was a time when the root causes of Uganda’s economic failure were so mercurial that one could never quite locate them. The evidence sometimes suggested incompetence; other times corruption; often a combination of the two. Examining the fiscal policy at a granular level reveals the method in the madness: there is now incontrovertible proof that incompetence is an essential part of – and is often allowed to flourish in order to facilitate – grand corruption. We are not talking about small players operating out of cramped government offices but about the country’s top leadership and their foreign and domestic partners.

In an old story, President Mobutu Sese Seko is said to have approached donors for assistance with Zaïre’s out-of-control external debt. By that time, his history of raiding the treasury was widely known and the donors facetiously suggested he lend the government the money they needed out of his personal resources. He is said to have answered, “I can’t trust them to pay me back.” (This is only funny when it is not happening in your own country.)

Uganda is in a similar situation. Unsustainable debt is rising in direct proportion to the wealth of the top leaders. When payment of the over UGX 3 trillion balance on over 20 loans (Table 1 below) commences in 2020, the country’s debt-to-revenue ratio will jump from 44% to 65%. In 2015, when Uganda’s debt repayments stood at 38% of GDP, between 26% and 36% of the population was undernourished. Undernourishment has made steady progress, rising by 1% a year between 2006 and 2011 and accelerating to two percentage points plus every year from 2011 (World Bank). Nothing has happened since 2016 to ensure undernourishment does not increase; in fact, it rose from 39% in 2015 to 41% in 2016. In contrast, world undernourishment fell 14 percentage points over the same period and is on a downward trend except for a short rise in 2015-2016.

Despite trends in the increasingly unsustainable loan portfolio, on the one hand, and erratic public administration on the other, the IMF has assessed Uganda as a low risk for external debt distress. It says the risk was not increased by significant risks stemming from domestic public and/or private external debt.

As a justification for further borrowing, President Yoweri Museveni and Ministry of Finance officials claim that the debt-to-GDP ratio is within the historically safe limit of under 50%. The Auditor General has been of the contrary view, saying debt levels are “unfavourable when debt payment is compared to national revenue collected which is the highest in the region at 54%.”

That argument has been overtaken by events. Current International Monetary Fund (IMF) projections show that debt-to-GDP will hit 49.5% in 2021. Furthermore, it is guaranteed to deteriorate as the outstanding balances on the loans will increase as the shilling continues to slide against the dollar and as further non-concessional (high-interest) loans are taken in the domestic market, such as the $104 million to be spent on security cameras and loans for ad hoc investments like the revival of Uganda Airlines at $388 million.

Table 1: Uganda's Unsustainable Debt

Table 1: Uganda’s Unsustainable Debt

Despite trends in the increasingly unsustainable loan portfolio, on the one hand, and erratic public administration on the other, the IMF has assessed Uganda as a low risk for external debt distress. It says the risk was not increased by significant risks stemming from domestic public and/or private external debt. (Debt Sustainability Analysis (International Monetary Fund, Approved by Roger Nord (IMF, AFR), Zuzana Murgasova (IMF, SPR), and Paloma Anos Casero (IDA), 2016).

They went on to claim, “Uganda’s economic performance remains strong, but has moderated in recent years.” Further, “Government finances remain on a sound footing…” The only suggestion in the Debt Sustainability Analysis (DSA) that all may not be well (inserted no doubt as a basis for claims to due diligence to be made after the economy crashes) was “… though expenditure composition can be of concern.” Expenditure composition includes items not part of the National Development Plan e.g. a national airline and a network of security cameras. In the same year, the Auditor General pointed out a serious barrier to attaining development targets: loans were performing poorly. He could not have been clearer when he warned that interest payments were becoming unsustainable (Auditor General 2016 p. 14).

“Several loans appeared to be performing poorly, with some nearing expiry; while others reached the closing date without fully disbursing. As at 30th June 2016, committed but un-disbursed debt stood at UGX 18.1 trillion [approximately US$5 billion]. Such low levels of performance undermine the attainment of planned development targets and render commitment charges of UGX20.9 billion (US$5.9 million) paid in respect of undisbursed funds nugatory [i.e. wasteful or of no value] (Auditor General 2016, p.72).” In other words, borrowed funds were not being put to use.

The problem has persisted in 2017 and 2018. This gives the lie to the IMF’s DSA 2016 finding that Uganda is scaling up infrastructure for future economic growth. The IMF admitted a risk to growth goals would be “failure to realize the envisaged growth dividend from the increased investment is a key risk”. What they did not mention was that the contingency had already materialised. A 2015 special audit of the Uganda Support to Municipal Structure Development (USMID) project (financed with a $150 million loan) showed under-utilisation of loan funds accompanied by incomplete projects requiring funds. The risk is that idle balances will eventually be diverted, as has happened in Hoima Municipal Council.

We are not far from a full admission that Uganda is in debt distress although there are still the persistent and irrelevant claims of on-target economic growth (of 6.3%). Irrelevant because it was during the past periods of alleged high economic growth that universal primary education was degraded to the point where the drop-out rate was 60%.

The current situation is that 95% of the UGX100 billion disbursed under USMID for municipal development and capacity building grants remains idle (Auditor General 2018, p. 5). Understaffing in specialised technical areas is one reason municipalities are unable to utilise infrastructural development loans. (Understaffing is a result of a cap on recruitment enforced by the IMF.) Yet for the past three years, the Treasury has only been able to release UGX417 billion of the UGX800 billion required annually to maintain the feeder roads so crucial to farmers (Auditor General 2017, p. 33).

Uganda’s fiscal policy is ‘a moving target’

In 2019 the IMF is leaning towards the Auditor General’s point of view. They now say that rising interest payments reduce resources available for education and health (human development). Their latest assessment states, “The current ratio of interest payments to revenue is comparable to what countries with high risk or in debt distress typically face.”

We are not far from a full admission that Uganda is in debt distress although there are still the persistent and irrelevant claims of on-target economic growth (of 6.3%). Irrelevant because it was during the past periods of alleged high economic growth that universal primary education was degraded to the point where the drop-out rate was 60%. During high economic growth, inequality, and especially rural-urban equality, deepened. High economic growth preceded the current phase of social unrest. According to the IMF, “In each of the last three macroeconomic assessments of Uganda, the projected debt path was revised upwards. Having a clear direction for fiscal policy would help budget planning and execution.”

Nevertheless, the IMF continues to claim that the risk of debt distress remains low, provided domestic revenue can be mobilised. The set target under the National Development Plan II and medium-term Sustainable National Development Plan is to increase the tax-to-GDP ratio from 14% to 16% by 2019/20. If this cannot be achieved through job creation, it can only translate into more taxes and austerity measures.

The question arises: With Uganda’s history of poor public administration and disastrous debt management, corruption, and increasing civil unrest and repression, what was the basis of the IMF’s optimism? The organisation has a permanent office in the Ministry of Finance and its headquarters sends multiple missions every year to monitor economic progress. To solve Uganda’s perennial economic distress, citizens must first understand the IMF’s mission in Uganda.

In any event, the grace period on over 20 loans expires in 2020 and debt is now of concern. We are now rated as “moderate to high debt distress risk. On top of expenditure on projects in the Public Investment Plan, there is significant expenditure arising from unplanned projects, such as the revival of Uganda Airlines, requiring $380 million. Lubowa International Hospital, initially planned as a public-private partnership with Finasi (a commodities trader), eventually became a contract for Finasi to build and operate a hospital funded 100% by the Government of Uganda.

Incompetence in industrialisation and job creation

A recent round of commissioning of factories and other infrastructure has proven that infrastructural development is a chimera. The Isimba Dam launched in March may generate but does not transmit power. Together with Karuma, to be launched later in the year, it cannot do so without further expenditure of $3.5 billion to extend the grid. The Nile Bridge had to undergo major remedial work owing to poor construction only days after commissioning. The president’s electioneering took in at least one factory many years old and employing a miniscule number of Ugandans. Nile Agro Industries Ltd has been producing soap, wheat flour, cooking oil, bottled water, lint bales, and fortification and industrial plastics since 1999. Yet it was commissioned and “launched” on 7th May 2019.

The Soroti Fruit Factory was founded in 2014 and funded by the government and a grant of $7.4 million from Korea. Last year’s audit listed the factory as un-operational after accumulated public investment of UGX 13,353,129,943. The factory was commissioned by the President on 13th April 2019. It was reportedly closed on 10th May owing to a lack of operating capital for fruit from about 1,000 farmers and salaries for the 123 Ugandan employees. The government’s investment arm, Uganda Development Corporation, has been advised annually for at least three years by the Auditor General against making investments without feasibility studies but in Soroti it was the usual case of ignoring professional advice and pandering to the president’s whims.

“The corporation incurred expenditure amounting to Shs.9,000,026,869 during the year in undertaking industrial development investments in the areas of fruits in Luwero, Soroti and processing in Kabale and Kisoro. However, the Corporation did not undertake investment strategic studies assessment prior to undertaking investments for purposes of assessing the marketability and commercial viability of the final products processed from fruits like mangoes, oranges and tea plantations. The investment may not achieve anticipated results.” (my emphasis) (Auditor General 2016 p. 519)

Apart from Soroti Fruit Factory, other warnings have related to Kampala Industrial and Business Park, Namanve, where UGX 1,000,000,000 for a feasibility study was diverted. Over UGX 131 billion is outstanding on loans for four industrial parks, including Namanve. Although National Information Technology Authority-Uganda (NITA-U) carried out a feasibility study for Commercialisation of the National Data Transmission Backbone Infrastructure (NBI) and E-government Infrastructure (EGI), it did not factor in the costs of its maintenance. “As a result it was difficult to assess the economic sense of the project as Management lacked sufficient benchmark to assess the bid proposals on contract aspects such as the cost of maintaining the NBI, revenue sharing ratios and price of internet services.” (Auditor General, 2017, p. 53)

It is indicative of the general problem pointed out by the Auditor General, who concluded that ignoring planning procedures is a major weakness within the Ministry of Finance “and presents a risk of funding projects which are not feasible and are not aligned to the National Development Plan (NDP).”

New projects are required to undergo four stages prior to being included in the Public Investment Plan (PIP) and commencement: (i) Prepare a project concept in line with NDP, (ii) Prepare a Project Profile demonstrating key results, (iii) Undertake a pre-feasibility study, and (iv) Conduct a feasibility study. But the auditor found that “some projects obtained project codes and admission into the PIP without proper project vetting as stated in without vetting them”.

It is indicative of the general problem pointed out by the Auditor General, who concluded that ignoring planning procedures is a major weakness within the Ministry of Finance “and presents a risk of funding projects which are not feasible and are not aligned to the National Development Plan (NDP).” (Auditor General, 2017, p. 15)

Foreign direct investment

To attract foreign direct investment (FDI), many countries around the world privatised their telecommunications sectors – some voluntarily and others, like Uganda, under an IMF structural adjustment programme. In the UK in the 1990s, public awareness-raising of the move involved repeated assurances that after unbundling postal and telecoms services, 51% of shares in British Telecom would be sold to the private sector but with the proviso that 34.3% would be sold to the general public. Furthermore, in the interests of promoting share ownership, the shares were priced at £130, a price considered below their value.

Kenya sold its telecoms sector, reserving 60% of the shares for the Kenyan state, of which 30% were later sold directly to the public. The new entity, Safaricom, went on to become the most profitable private company in the East African region.

Cross the border into Uganda where income from the lucrative telecoms sector is enjoyed only by a narrow oligarchy. Although the government was to retain 49% of the shares in Uganda Telecom, it currently holds only 31%. Much has been written about how MTN went from being the second national operator to a virtual monopoly and regulator of the sector.

MTN is the biggest player, with 54% of the telecoms market. Only 5% of MTN shares are Ugandan-owned, (the Ugandan being an individual with board membership in at least two privatised entities, including the defunct Rift Valley Railway.) It is only in the past few months that the president began to press MTN to make some of its shares available to the public.

Uganda Telecom, the entity that was supposed to retain residual rights in the sector, was only created after Celtel and MTN (the first and second national operators) had been running for a while. This has meant that MTN has the technology to permit or bar new indigenous competitors from the market, which reportedly it does. Ugandan start-up Eezymoney, a mobile money platform designed to allow banking over different platforms (i.e. between MTN, Africell and other service providers), was awarded over two billion shillings in a suit against MTN for refusing to provide them with access to the network.

Tax evasion and illicit transfers

Returning to the objectives of privatisation and incentivising foreign direct investment, greater efficiency and cash inflows may have been achieved but the benefits have been annihilated by illicit outflows mainly facilitated through tax evasion.

Another 13 foreign investors have been found to have used a lacuna in the law to avoid taxes for years, a fact the IMF was in a position to know. Thirteen of the investors owe UGX 353.5 billion. Some have been beneficiaries of FDI incentives, another has been operating in Uganda since 1969 (and therefore not in need of incentives). One is in possession of the infrastructure that is the privatised Nytil textile manufacturing plant (founded in 1954). A fourteenth is a joint venture once touted as the only manufacturer of ARVs in Africa. It was founded to supply ARVs for domestic consumption and export to Burundi, the DRC, Kenya, Rwanda, South Sudan, Tanzania, Cameroon, Comoros, Namibia and Zambia. The majority shareholding is foreign-owned; the three major Ugandan shareholders own less than 10% of the shares and 18% were sold on the stock exchange in 2018. It turns out that the company may really be in the business of acquiring government tenders for a parent company in India.

In response to the discovery that opportunities to increase the tax-to-GDP ratio are being systemically undermined by tax evasion by investors, the Ministry of Finance this month tabled a proposal in Parliament to give the offenders a waiver of taxes owed on the basis that it would be unwise to drive FDI away by collecting the arrears.

Returning to the Mobutu story, it is not just African despots who have sufficient illicit funds to make a significant dent in their countries’ public debt; the taxes owed by foreign investors could clear it. MTN’s tax arrears (of UGX 2.8 trillion as extrapolated from data recovered during litigation) could clear 73.6% of the current UGX 3.4 trillion outstanding balance on the loans which Uganda will begin to repay in 2020.

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The Drums of Another Senseless War: Why Are the Anti-War Warriors Silent?

True to gangster tradition of making offers that dare not be refused, the US singles out countries as renegades, pushes them against the wall in the hope that they will react, then blames the victims desperately groping for survival. But who gives a damn? Importantly, asks KWELI NZITO in the face of America’s brazen acts of war before even the first bullet is fired, where are the anti-war warriors to embark on serious preventive and deterrent anti-war stands, and to take to the streets in the tradition of the Yellow Vests in France to carry out civil unrest and make it clear that the crimes of their leaders will not be given a free pass?

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Have the people of the United States become desensitised to the horrendous suffering inflicted by their government, or are they blissful co-imperialists?

The ratcheting up of tensions has placed two culturally and geographically dissimilar countries – Iran and Venezuela – firmly in the cross hairs of yet more illegal American wars based on lies.  But lies have now become commonplace and staple in the Empire’s pursuit of her habitual acts of lawlessness and unprovoked aggression.  There is push for an American hegemony and control of the natural resources of weak countries first, for the economic windfall of corporate robber barons, and second, for providing a military front on behalf of Israel.  Both phenomena have ceased to raise eyebrows.  No more pretences after the infamous Pompeo declaration, “We lie, we cheat, we steal”, which inadvertently but accurately summarised the history and essence of the United States since its nascent stages.  Donald Trump once smugly called it “taming” the country, implying in his typically overt racist fashion, that before being tamed, the American land mass was an unforgiving wilderness inhabited by savages.

Beyond the impetus for merciless hegemonic quests, Franz Fanon’s “wretched of the earth” have been given a stark choice:  surrender to the will of Empire, or follow your independent path at your own assured peril – economic devastation first, then the final blow delivered by a merciless military hammer, if you eschew nuclear arms, that is.  Many of these countries have effectively surrendered their sovereignty as they get ever more deeply mired in neoliberal economic muddles prescribed by Washington, the International Monetary Fund and the World Bank against the interests of their own impoverished and disenfranchised citizens.  Equal numbers had participated in comprehensive armed struggles against English, French, Japanese, Portuguese, Dutch, Spanish, Belgian, Zionist and German colonial rule.  They are now being systematically and seriously sapped of the energy and political will to stand up to neo-colonialism, a phenomenon decidedly grimmer and infinitely deadlier than its classic counterpart.

Israel’s partnership in this imperial adventure is becoming less masked and increasingly brazen.  The Israelis are sending 1,000 special IDF forces to Honduras, a US puppet regime, in quiet preparation for the coming war against Venezuela. Other more vociferous accomplices on the margins (Saudis, Egyptians, Emiratis and Bahrainis) are gleefully rubbing their hands at the prospect of their sworn religious nemesis, Iran, being wiped off the map or being turned into yet another failed state.

True to gangster tradition of making offers that dare not be refused, the US singles out countries as renegades, pushes them against the wall in the hope that they will react, then blames the victims desperately groping for survival.

What of Venezuela? What possible grounds have led to their rebuke from the newly evolved god, the USA? Whatever the answer, it cannot be on religious grounds.  The fact that Venezuela is an overwhelmingly Christian (88%) country does not shield it from the secular god’s wrath who alone can offer salvation with all its earthly rewards, or damnation with the accompanying indiscriminate terrestrial hell.  Rewards of worldly heaven for the sycophants and living hell for the audacious and assertive. This is a posture much resembling a prescription from the scriptures. But then designated apostates (only god can designate nations as terrorist, target them for sanctions or embrace them as allies) like Venezuela do not deserve to sit on the world’s largest reserves of oil and natural gas. That is the natural right of Uncle Sam, via the auspices of his installed puppets.

True to gangster tradition of making offers that dare not be refused, the US singles out countries as renegades, pushes them against the wall in the hope that they will react, then blames the victims desperately groping for survival. The sanctions being expanded now force countries once exempted and allowed to buy Iranian oil to look elsewhere for fuel.  Among them is the second most populated country in the world, India.

But who gives a damn? If the US did in fact give a hoot about inferior peoples, it would not have acquired their empire by means mostly foul, cruel and unscrupulous.  The frontier cowboy bushwhacking mentality lives on and thrives.  Naturally, the US is chief among potential beneficiaries of this criminal embargo with higher prices likely to turn it into an exporter of oil, its petroleum magnates and corporate masters raking in the profits borne out of the abject misery visited on millions of targeted victims.

Lest we forget about the 500,000 children murdered by American sanctions against Iraq, which denied these children essential medicines, prompting Madeline Albright to soberly reflect that that macabre criminal measure was “worth it”. The sanctions resulted in the United Nations Oil-for-Food programme, which was equally mired in scandal and controversy that resulted in the loss of billions of dollars.

US Secretary of State, Mike Pompeo, recently declared without an atom of remorse or shame, “The Iranian leadership has to make a decision that they want their people to eat,” abandoning all pretence of caring about Iranian innocents while flaunting the latest overpowering sanctions.  So, the US doctrine, evolving in plain sight, is “to make their economy scream”, in the words of the late American President and thug, Richard Nixon, followed by orchestrated starvation of Iranians a la Pompeo and then a wiping out of the Iranian regime with all the military might at America’s disposal (famished and ailing children included).

But here we posit morally searching questions to ponder: In the face of America’s brazen acts of war before even the first bullet is fired, is this not the time for the anti-war warriors to embark on serious preventive and deterrent anti-war stands, and to take to the streets in the tradition of the Yellow Vests in France to carry out civil unrest and make it clear that the crimes of their leaders will not be given a free pass?  They are not visible yet, save for the buried voices from the much-maligned Ilhan Omar, Ro Khanna, Walter Jones and Barbara Lee. (The latter’s prescient stand against the Afghanistan war led to death threats against her). Where is the Black Caucus when you need it?  Where on earth can they possibly be? Or has the American government and the Israel First lobby so effectively neutralised the movement as to make it irreversibly inoperable and useless?

Indeed, has the public become so desensitised to the horrendous suffering of fellow humans beyond their frontiers so callously wrought by their government that they have taken refuge in silence as the easier, gutless exit out of their inescapable burden of guilt – that is if they have any left?  Or have they been rendered totally ignorant by servile, cheerleading corporate media that knowingly conceal the criminal acts of their government abroad so much so that the public’s ignorance has become a source of virtual bliss and inaction? Have the lessons of the lies of the Gulf of Tonkin, the weapons of mass destruction (WMD) in Iraq, lies about saving Libyans from Gaddafi, Cubans from Castro, Nicaraguans from Ortega, Haiti from Aristide and Venezuelans from Maduro, about Mandela being a terrorist, about Hamas being designated a terrorist organisation been entirely lost on the public?  What of the hitherto essentially abandoned, redundant falsehoods of spreading democracy and human rights, the rule of law and order by a country that clearly ranks as the worst offender of these once lofty principles, running roughshod over civilised norms and international law.

Karl Marx once asserted that religion is the heart of a heartless world, and the soul of soulless conditions…the opium of the people.  It is doubtful that the sheer magnitude of befuddlement and pacifying of the American public produced with such lethal efficacy by the corporate media could have been foreseen by Marx.

Are these not the same warriors who truncated that other brutal, criminal war in Vietnam by their leaders by protesting courageously until their leaders could no longer continue to play deaf? Or was it simply for nepotistic reasons of not bearing the prospects of more body bags wrapping their relatives who had wasted their lives fighting a criminal and unjust war for an elite that never visited the front lines?  Can the American public be credibly oblivious to their country’s unsavoury distinction of having launched more unprovoked and criminal wars of aggression post-WWII, killing more innocents than the rest of humanity combined?  What exactly are they teaching these young men and women, boys and girls in schools, colleges, universities and temples of worship where salvation is ostensibly at hand and the honourable pursuit of divine justice a matter of moral duty?

Karl Marx once asserted that religion is the heart of a heartless world, and the soul of soulless conditions…the opium of the people.  It is doubtful that the sheer magnitude of befuddlement and pacifying of the American public produced with such lethal efficacy by the corporate media could have been foreseen by Marx. Or is it a newly-found potent mix of propaganda, employing religion as a mass pacifier instead of agitator, along with runaway consumerism that has produced this unprecedented state of brain demise, amorality and bizarre insensitivity to the suffering and pain of others? Why this inexplicable, thunderous silence and moral turpitude from what should instead be the conscience of the nation and voices of reason?  Why?

Identical questions could be asked of European anti-war warriors.  No ready answers seem to be forthcoming from there either.  Did their leaders not commit to stand by Iran to circumvent the evil American sanctions so Iranian civilians can enjoy a reasonably normal life in the face of so much adversity after their government had complied with the letter and spirit of the original Iran nuclear deal that Trump had trashed? Have any of their commitments borne fruit yet?  Not one. Nada.  Zilch. Yet they have the gall to reject Iran’s ultimatum to remove the cap on enriching uranium, something that Iran perhaps should have done well before the ill-fated agreement was to be signed and unceremoniously discarded.  That posture may well have put Iran on par with North Korea which at least is allowed the luxury of occasional fake negotiations and bogus dialogues (albeit mostly on Washington’s terms) but still North Korea is resolute enough not to yield to the machinations of certified, compulsive liars. All the impassioned discussions from the White House about evil Iran’s nuclear programme make no mention, not a word, of Israel’s estimated 400 nuclear warheads.

The real heartbreak comes not from the lack of sensible and satisfactory answers to the many questions posed here. It comes from a sense of impotence both inside and outside the US.  It is one occasioned by the one-way orders and edicts issuing from the modern secular deific entities collectively constituted by the American leadership.  They are deities with barely any modicum of demonstrable compassion. It is reminiscent of the god of the Old Testament – vindictive, cruel, merciless, racist and bloodthirsty. Such traits and the aversion to peace have become the defining qualities of these deities, their disciples and the secular lumpen spiritariat.

And to such a deity, his creatures have been left with no choice but total and unconditional submission.  Freedom as a dream, as aspiration, as a catalyst for hope, is now being consigned to the trash bins of revisionist history because the new gods thus ordain it. Francis Fukuyama’s erroneous title of “The End of History” fell flat on its face because it was myopic and deceitfully triumphalist.  It should have read, “The End of Resistance”.

 

This article was originally published in the Black Agenda Report with the title, Where have all the anti-war warriors gone?

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2017: The End of the Kenyan Judiciary’s Independence

As Kenya marked its 55th anniversary of independence on 12 December 2017, the Judiciary was silently marking the end of its 60 days of independence.

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Lawyer Julie Aullo Soweto glanced at her wristwatch and realised that she was running late for the 11 am pre-trial conference that was scheduled to take place on that morning of 14 November 2017. She robed quickly and debated whether or not to wear her advocate’s wig. In the end, she chose to leave the wig behind as she made her way from her Biblica House office to the Supreme Court building. She had filed an application at the Supreme Court for scrutiny of the materials from the 26 October 2017 repeat presidential election, and had a good feeling about its chances.

Almost single-handedly – over three days and with little sleep in between – she had drafted the application for scrutiny of election materials from the 8 August 2017 poll in the Raila Odinga petition. The success of that application, in which 19 of the 26 prayers were granted, enabled the petitioners to not only discover anomalies in the election results filed in the Supreme Court but also exposed the Independent Electoral and Boundaries Commission’s (IEBC) suspicious refusal to grant access to the computer servers used to receive, transmit and collate results. It likely played a significant role in persuading four of the six judges to nullify the election of Uhuru Kenyatta as president.

The petitioners hoped to use the scrutiny to prove that the results published on the portal did not correspond to those on the official paper documents. The IEBC’s lawyers, however, proceeded to paint a grim picture of the information overload that the court would have to bear if it accepted the request.

Despite playing a critical role in the first petition, Soweto had not sought the public’s attention from the row of seasoned litigators assembled for the case but the petition challenging the repeat presidential election brought by civil society activists Njonjo Mue and Khelef Khalifa, would thrust her to the fore.  Soweto was determined to bring her experience from the first successful petition to bear on the second one. She had gone over the application, which had been allowed in August, tightening loose ends and closing gaps. She whittled down her original 26 prayers to a round figure of 20. It was the same bench of judges; she was certain they would allow it.  They did not.

The petitioners hoped to use the scrutiny to prove that the results published on the portal did not correspond to those on the official paper documents. The IEBC’s lawyers, however, proceeded to paint a grim picture of the information overload that the court would have to bear if it accepted the request. They inundated the judges with frightful claims of the terabytes of information that would take two years to work through – while conveniently neglecting to mention that, in fact, these were photographic images of results forms. (Images occupy substantial space on databases.)

The question raised by this response is how the IEBC itself managed to sift through the terabytes of information within a week to establish who had won the vote.

In the event, the petitioners were granted the order for the original voters’ register but the IEBC demanded Sh80 million to have it photocopied. But even had the petitioners been able to afford the price of photocopying the register themselves, it would have taken several weeks to produce one and, in the end, the petitioners were simply given a soft copy of the register. This incident serves to illustrate the needless hurdles that the petitioners had to overcome.

The court granted only 2 out of the 20 requests around the scrutiny – allowing access to results declaration forms for the constituency, county and national tallying centres and permitting access to the voters’ register at the petitioner’s cost. The court’s ruling said:

Some of the prayers have been declined due to the sheer impracticability of their implementation given the short time left for the determination of the petitions at hand. Others have been declined because they were not pleaded with sufficient particularity in the Petition. Yet others were declined on grounds that they are couched in such general terms as to be no more than fishing expeditions.

The court had explained that the prayers had been “declined on the basis of very clear grounds, which will be elaborated in a detailed version of this ruling to be issued by the Court at a later date”. More than 18 months since that ruling was read out in open court, those reasons are yet to be made public.

Scrutiny is intended to demonstrate openness of the electoral process, wrote Justice Maraga in a 2016 paper, adding that it was one of the tools courts used to ascertain the integrity of an election. It is a court-supervised forensic investigation into the validity of votes cast and the subsequent determination of who ought to have returned as the winning candidate.

Scrutinising the servers

The decision to allow scrutiny of the servers in the August 2017 petition was notable in its provisions (showing a court that had a firm grasp of ICT matters), a far cry from what had happened in 2013. The orders on ICT were detailed and authoritative, indicating that the court’s ICT literacy was higher than it had been in 2013 when arguments about Uhuru Kenyatta’s The National Alliance (TNA) party sharing a results platform with the IEBC seemed to fly over the judges’ heads. There was a certain burden that the court understood it needed to discharge to command respect in the wider judiciary.

Although the 2013 scrutiny showed appalling errors, with some polling stations recording turnouts as high as 203 per cent, and numerous discrepancies between the votes announced and those recorded in the official result forms, the lawyers for Odinga were unable to create a coherent narrative that would force the judges to confront what had happened in the election.

The scrutiny in 2017 was a marked departure from what had transpired in 2013 when the Supreme Court ordered the Chief Registrar of the Judiciary to take charge of the exercise. That scrutiny got underway in fits and starts more than 24 hours after it was ordered, and was characterised by systems collapse, poor coordination and unequal representation of the various parties. Davis Chirchir and Winnie Guchu, who had both been members of the IEBC’s predecessor, the Interim Independent Electoral Commission, and were now working for The National Alliance Party, were present throughout. In contrast, lawyers for Raila Odinga showed up one evening at 8 pm, milled around the hall at the Kenyatta International Conference Centre for an hour, and left. By the time the court was being informed that the scrutiny had not been completed, Odinga’s lawyers had no report of their own to file.

Although the 2013 scrutiny showed appalling errors, with some polling stations recording turnouts as high as 203 per cent, and numerous discrepancies between the votes announced and those recorded in the official result forms, the lawyers for Odinga were unable to create a coherent narrative that would force the judges to confront what had happened in the election.

During the August 2017 petition, the petitioners sought to make the scrutiny produce the smoking gun that would prove their case. They alleged that not all the records of the vote count in the presidential election had been received at the national tallying centre when the results were announced; thousands of polling station results documents and scores of constituency results were missing, a claim acknowledged by the IEBC.

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Their lawyers asked the court to order a scrutiny of these documents. They also sought an audit of the servers, alleging that the IEBC’s system of electronically transmitting results from polling stations and constituencies had been compromised.

The judges not only allowed the scrutiny and the audit, but also ordered the registrar of the Supreme Court to supervise it. Petitioners and respondents were allowed two agents each while the lawyers for each side would be granted 15 minutes to make submissions. The court ordered the registrar to produce reports of the scrutiny and audit by 5 pm two days later.

The registrar of the Supreme Court supervised the scrutiny of the results forms, which took place at the Milimani Ceremonial Hall in Nairobi. A staff member of the court’s ICT department and two independent, court-appointed ICT experts oversaw the audit of the IEBC servers at the commission’s headquarters at Anniversary Towers in Nairobi. There had been disquiet at the commission, especially around the ICT system – and with good reason; Chris Msando, the commission’s head of ICT had been found brutally murdered barely a week to the election.

At noon on Tuesday 29 August 2017, James Orengo, Odinga’s lead advocate, reported to the court that the audit of the servers had not yet begun. By way of explanation, IEBC lawyers claimed that the delay in allowing access to the servers was due to the fact that the system’s high-level security was based in France – a two-hour time difference with Kenya – and their suppliers were still asleep at 9 am Kenya time when the audit was supposed to have begun.

The stonewalling hid a major flaw in the system: the server simply wasn’t there. A report by the Auditor General later revealed that most of the equipment that was to be used to transmit and interpret results had not been delivered, while part of the equipment for processing the results at the data centre was delivered five months after the 8 August 2017 election.

Justice David Maraga asked the parties to work together to comply with the order so that the court could receive a report by 5 pm, or reasons for the failure would have to be provided. “If some of your clients’ agents are in Europe, or wherever, they must have been told yesterday. Wake them up and get the order complied with,” he said.

The stonewalling hid a major flaw in the system: the server simply wasn’t there. A report by the Auditor General later revealed that most of the equipment that was to be used to transmit and interpret results had not been delivered, while part of the equipment for processing the results at the data centre was delivered five months after the 8 August 2017 election. The country had gone to the election without a back-up database for transmitting results and the IEBC did not have the capacity to analyse the data it received from the polling kits.

The reports on the scrutiny and audit were ready when the court reconvened just after 9 pm on Tuesday, 29 August. Orengo stated that the court’s order had only been partially complied with; the GPS locations for each of the Kenya Integrated Election Management System (KIEMS) devices used at the polling stations were not released. The read-only access to the servers the court had ordered had not been granted and agents were only given live access; they could not view or access the logs or see the log-in trail of users.

The 20-hour court-ordered scrutiny of results from the 8 August presidential election raised red flags for documents from at least 63 constituencies, 30 of which did not have a serial number and another 33 of which did not have a security watermark. Some were unsigned and others had typographical errors. Some forms were printed in landscape layout instead of the standard portrait layout of the original forms. Some forms had candidates’ first names printed before their surnames whereas on the standard form the surname preceded the first name.

The 30 constituencies that filed results forms without a serial number accounted for 1,407,746 valid votes, while documents for the 33 constituencies holding 1,850,706 valid votes failed the ultra-violet test because they did not have a watermark.

In his comments about the audit, Orengo said that the scrutiny of the forms showed that some did not have security features, others did not have serial numbers, and close to two-thirds of them did not have the handover section filled out. He said that the court audit had revealed that the election had been “shambolic”.

“Our case has been proven that forgery, trickery and alteration of documents has been used in various ways. We pray you should declare the election of the third respondent as not valid and not in accordance with the constitution,” he added.

But lawyer Fred Ngatia, who represented Kenyatta, said, “It is a fair report. It is our submission that this report fortifies what we have said all along that this election was a fair election.”

Justices Maraga, Mwilu, Wanjala and Lenaola constituted the majority that voted to annul the election of Uhuru Kenyatta for not having been done in accordance with the Constitution and the law. Dr Willy Mutunga’s students at university (Justices Maraga, Wanjala, Ibrahim and Lenaola) appeared to have improved on the record of their teacher.

Justices Jackton Ojwang and Njoki Ndung’u disagreed. Justice Ibrahim, who had been taken ill on the second day of the hearings, did not vote.

Justice Ndung’u, in her dissenting opinion of 1 September 2019, questioned the results of the scrutiny and wrote in detail about her own private examination of the documents in question, which produced different results. Justice Maraga felt compelled to repeat his opening statement after the dissenting opinions had been read out in open court: “The greatness of a nation lies in its adherence and its fidelity to its Constitution, and its strict adherence to the rule of law …”

Days later, Kenyatta’s Jubilee Party accused Supreme Court registrar, Esther Nyaiyaki, of doctoring the scrutiny and insinuated that she had colluded with the petitioners to massage the results. For good measure, the Ethics and Anti-Corruption Commission (EACC) began an inquiry into the allegations of impropriety on the part of the registrar. It remained an open question and, during the petition against the repeat presidential election, the Supreme Court granted limited access for scrutiny and the registrar kept a low profile.

Civil society as petitioner

All presidential election petitions in Kenya have been filed on the deadline day – hinting at the pressure under which they are prepared. They have also been decided within the constitutional deadline of 14 days after filing.

The data centre at InformAction offices, where some of the evidence for the civil society-backed petition was being assembled, had to be moved several times when staff and volunteers noticed a military helicopter circling over the compound for hours.

In the run-up to the 26 October 2017 repeat election, police officers had attempted to forcibly enter the Africa Centre for Open Governance offices to shut it down for alleged tax transgressions. Its Executive Director, Gladwell Otieno, had been one of the petitioners challenging Kenyatta’s 2013 election. The Kenya Human Rights Commission, another critical civil society actor, was being threatened with closure over alleged financial impropriety.

The data centre at InformAction offices, where some of the evidence for the civil society-backed petition was being assembled, had to be moved several times when staff and volunteers noticed a military helicopter circling over the compound for hours. Katiba Institute suffered a major power outage in the week before the deadline for filing a petition. All these organisations were working together under the Kura Yangu Sauti Yangu (KYSY) initiative to support free, fair and credible elections.

With threats and physical attacks on civil society organisations escalating as the deadline for filing the November 2017 petition drew near, the team preparing the case for civil society activists Njonjo Mue and Khelef Khalifa worked discreetly through the nights from a secret location.

They had up to midnight of the last day to file the petition. The court required eight copies for itself and several others for the different parties. The main challenge was ensuring that everything was filed on time. Some important documents had to be couriered by motorcycle to get to the registry on time.

Though they had hastily put together a strong petition, the petitioners’ lawyers felt the deck was stacked against them right from the start. There was hostility even at the registry, with court staff providing misleading information about the time of filing papers.

The respondents had put together an impressive assembly of legal talent to represent them — mostly senior lawyers and household names in Kenya. The petitioners’ lawyers were a team of experienced but younger lawyers. Kenyatta’s and the IEBC’s lawyers then used their seniority to obtain better treatment from the court. The lawyers for the petitioners felt that they were before a court that had already made up its mind – a court that appeared to be looking for reason and justification not to entertain the petition in spite of the strict standards it had set for the IEBC when it overturned the first election.

There were no friendly faces on the bench, but some judges were egregious. Judges appeared to take pleasure in demolishing the evidence and the manner in which it was introduced. One lawyer noticed that Justice Ojwang was being particularly hostile towards Julie Soweto. He appeared to be cross-examining Soweto when she began reading the resignation statement by former IEBC commissioner Roselyn Akombe. “He descended into the arena of litigation. Of all the judges, he was the one that was hardest on us,” said one of the lawyers on the team. “It was like we were litigating against them.”

Lawyer Jane Odiya, an experienced advocate, led the team that went to access the election results forms. She was accompanied by young data entry professionals and university students. Even though they were working under a tight deadline, the scrutiny team was initially stonewalled and then given the run-around at the IEBC’s Anniversary Towers offices. “The IEBC officials slow-walked the scrutiny even though we had the court order in hand,” recalls Haron Ndubi, co-counsel for the Mue-Khalifa petition.

Although IEBC lawyers accompanied the scrutiny team to the commission’s offices, they quickly left after giving assurances that the process would go on smoothly. That was not to be; IEBC officials took a long time to supply files. The scrutiny team wandered the halls of Anniversary Towers with no one to assist them. The IEBC corridors were teeming with people who looked like plainclothes police officers and who followed the scrutiny team everywhere, including into elevators and out of the building. One lawyer said she believed some of the officers trailed them in a vehicle as they went home.

The sense of frustration among the scrutiny team was palpable and, after tempers flared, the team was led into a cosy office at Anniversary Towers where they found lawyers for the commission and a senior IEBC official, who assured them that the conference room for examining the results documents was now ready. Once inside the conference room, the reason for the delay became quickly apparent: the Jubilee team, consisting of lawyers and party officials, like lawyer Faith Waigwa, was already present.

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The files were not to be copied during the scrutiny. The team could not enter the boardroom with their phones or stationery of any sort. The ban on any writing material was enforced with the help of plainclothes police officers posted at the door. The head of the scrutiny team had to go back to the Supreme Court to seek clarification on the order they had received. It was only after the judges stressed that the team could write down their findings that the exercise resumed. “We felt tortured,” admitted one of the petitioners’ advocates.

After the scrutiny, the team quickly put together its report, and the advocates fought to have it admitted into the record. The court declined, defeating the purpose for which the orders had been sought and issued. The court said the scrutiny report was merely one party’s view and not a rigorous finding arrived at by all parties to the petition. Both Kenyatta’s and IEBC’s representatives had been present when the petitioners scrutinised the results documents but they were there more to impede the process than to participate in it. The scrutiny fell short of the legal definition of one — it was, to be generous, a review of the documents.

The petitioners asked why the forms used to collate the presidential results differed from those the IEBC had brought to court. They further pointed out that the numbers shown in the election portal differed from the ones on the collation forms.

The rejection of the report and the limitation of its scope “broke all of us,” admitted another advocate who worked on the petition.

They believed that a proper scrutiny would have made plain the far greater illegalities in the 26 October election than even those found in the 8 August poll that had been nullified by the Supreme Court. The lawyers point out that the fact that the judges did not entertain the scrutiny gave away the endgame; the petition would be thrown out.

Yet, what the Supreme Court was being asked to do in the November petition was not easy. Even if there were merits to the case, it would be very difficult for a president to accept that he had lost the election, petitioned by a group of civil society activists. Privately, some of the judges felt that Odinga should have come back to court. Still, nullifying one election and paying such a heavy price for doing so had blunted the appetite for a repeat performance, unless a senior political player was asking for it.

After Odinga withdrew from the fresh election a mere fortnight to polling day, the Supreme Court felt that it need not enter into a political dispute. Perhaps the judges would have been less irritable had they felt that the political contestants were taking them more seriously. In the event, the judges treated the petitioners as if they had brought the petition as proxies for Odinga’s National Super Alliance (NASA).

From the outset, the court’s attitude had betrayed the judges’ reluctance to entertain the petition. They dismissed it and unanimously found that Kenyatta had been validly elected. They found no fault with anything that the electoral commission had done in the fresh election. NASA expressed sympathy with the court, saying that the judiciary had been intimidated but the judges too felt abandoned by the political players.

Kenyatta would be sworn in as president on 28 November 2017 at a stately but sparsely populated inauguration ceremony presided over by the Chief Justice. Would this judicial mea culpa suffice to heal the rift between the Judiciary and the Executive?

The full judgment, released on 11 December 2017, read in part: “The … petitioners have not discharged the burden of proof to the standard established by this Court. At no time, in our view, did the burden shift to the [first] and [second] respondents.”

The court tipped its hand by blaming the petitioners for the shortcomings of the IEBC. Although the petitioners made serious allegations against the IEBC and its capacity to conduct an election, in their ruling, the judges blamed the petitioners for failing to provide proof of the allegations.

The judges pointed to the disenfranchisement of a huge swathe of the country that did not vote on 26 October and, curiously, blamed it on the petitioners. This again shows that the judges seemed to treat the petitioners as if they had brought the petition as NASA proxies. The judgment noted that the violence that took place in certain areas where the election could not be held was promoted by the petitioners. The court’s judgment failed to create future disincentives for electoral fraud and malpractice.

Law scholar Muthomi Thiankolu has faulted the Supreme Court for failing to appreciate the informational asymmetry between the IEBC and potential petitioners. He argues that given this imbalance, the court ought to adopt an inquisitorial rather than an adversarial approach in proceedings.

The judges pointed to the disenfranchisement of a huge swathe of the country that did not vote on 26 October and, curiously, blamed it on the petitioners. This again shows that the judges seemed to treat the petitioners as if they had brought the petition as NASA proxies. The judgment noted that the violence that took place in certain areas where the election could not be held was promoted by the petitioners. The court’s judgment failed to create future disincentives for electoral fraud and malpractice.

In the 2013 petition, the Supreme Court had pronounced on the effect of a candidate withdrawing from a fresh election or dying after the nullification of an election; in such a case, a fresh poll having all the characteristics of a new election (such as fresh party nominations) would have to be held. In the November 2017 decision, the court walked away from that observation.

As Kenya marked its 55th anniversary of independence on 12 December 2017, the Judiciary was silently marking the end of its 60 days of independence.

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