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The Original Sin: Land, Politics and the History of Ethnic Tensions in the Rift Valley

As the theatre of the politics of succession leading to 2022 plays out in the expansive Rift Valley region, the spectre of the ever-simmering land question looms large.

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The Original Sin: Land, Politics, and the History of Ethnic Tensions in the Rift Valley
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“Chitap koret,” this is my ancestral land, a Kalenjin from the Sabaot community, one of the nine ethnic dialects that make up the Kalenjin nation, said to me at the foothills of Mt Elgon, in Trans Nzoia County. Sabaots are a pastoralist community and just like the Maasai people, believe in keeping cattle – even the poorest Sabaot must have a cow or two. “Kalenjin believe North Rift especially belongs to them and nothing will change that,” said Kip, my Sabaot acquaintance.

“These people (the Kikuyus) will always be tenants on our land,” said Kip. “They are here temporarily. It doesn’t matter whether the land they occupy has been bought legally or not, was dished out, bought from one of us or any other person, whether it has a title or not. One day they must vacate this land.” Kip said mutual suspicion between the Kikuyus and Kalenjin in the Rift Valley will always abound. “Mark my words,” said Kip emphatically, “just like the Kikuyu don’t forget, we Kalenjin don’t forgive – we will revisit the issue of land ownership in the Rift Valley. We will soon show them who the true owners of the Rift Valley are.” It was an ominous threat.

Every time there is a shift in the political relations at the national level, between the Kikuyu and Kalenjin elites, every time these elites engage in a public spat, the Kalenjin people of the greater Rift Valley allude to foreigners among them who should be ejected. Every time the issue of foreigners arises in the Rift Valley region, the first targets are specifically the Kikuyu people, some of whom have lived in the Rift Valley region for the last 70 years.

Kip said mutual suspicion between the Kikuyus and Kalenjin in the Rift Valley will always abound. “Mark my words,” said Kip emphatically, “just like the Kikuyu don’t forget, we Kalenjin don’t forgive – we will revisit the issue of land ownership in the Rift Valley. We will soon show them who the true owners of the Rift Valley are.” It was an ominous threat.

The genesis of the land quagmire between the Kalenjin and Kikuyus in the Rift Valley region, traces back to the 1940s, which the British colonial government exacerbated by settling the Kikuyus in the area. An annual colonial write-up of 1957 reported, “In common with other Kalenjin people, however, there is everywhere else, dislike of the Kikuyu settlement being established in what is regarded as their district’s sphere of influence in Uasin Gishu”.

Yet, the colonial government had, by the turn of the 19th century, sowed the seeds of discord, when it pushed many of the ethnic communities into reserve lands and squatter camps, to create room for cash crop growing by the European settler farmers in the White Highlands. Central Kenya, Rift Valley and Coast Province were the major culprits in this settler land colonial project.

A pastoralist community, the Kalenjin, however struck an exceptional deal with the settler farmers: provide manual labour in the farms for exchange of grazing rights. But come the mid-1940s, this arrangement was destabilized, because the settler farmers needed more land for their cash crops. Why? World War (II) had ended in 1945 and Europe had decimated most of its agricultural lands for cash crop production. In addition, the Kalenjin people were expanding in population, even as their livestock grew in numbers. They too were demanding more land to graze their animals. This naturally created further tensions.

The first thing the colonial government did in reaction to this agitation by the Kalenjin was, to contain them in squatter camps and deny them grazing land. A warrior-like people, the Kalenjin refused to be squatters in the settler farms. So, in search of pastureland, they trekked off. This migration led them to central Rift Valley, Taita-Taveta and even in as far as Tanzania.

Every time there is a shift in the political relations at the national level, between the Kikuyu and Kalenjin elites, every time these elites engage in a public spat, the Kalenjin people of the greater Rift Valley allude to foreigners among them who should be ejected

To replace the departing Kalenjins, the colonial government brought in the Kikuyus from Central Kenya to work in the settler farms arguing that the agrarian, sedentary Kikuyus were hardworking and attuned to plant cultivation, unlike the “lazy” pastoralist Kalenjin.

By 1950s therefore, Kikuyu population in the Rift Valley had tremendously grown and this greatly upset the indigenous Kalenjin. This is around the time the Kalenjins started agitating for their land and viewing Kikuyus as strangers and intruders. Hence, the temporary halting of more “importation” of Kikuyus from Central Kenya to Rift Valley, according to colonial reports that quoted Mr P.H Brown, the Uasin Gishu District Commissioner (DC), who recommended the stop.

But, no sooner had Brown stopped further Kikuyu migration into the Rift, than his successor revoked the decree. Mr R.S Symes-Thompson pointed out that Kikuyus were central to agricultural success in the settler farms. It is an arrangement that Jomo Kenyatta inherited and perfected when he became first, the Prime Minister in 1963 and, later President in 1964.

When it became apparent that the British would have to relinquish its power in Kenya, they bought between one and three million acres of land to resettle the landless. They also put a caveat to land ownership: any Kenyan would own land anywhere in Kenya, regardless of their ancestral origins and ethnicity. Secondly, there was no free land. If anybody wanted to buy land, it would, henceforth be, on a willing-seller, willing-buyer. It is an arrangement that greatly favoured the Kikuyus and that Kenyatta took to heart and implemented it even better than the departing British. To date, these two decrees appear in the new promulgated 2010 constitution.

To this end, the British colonial government gave Kenyatta’s government 100 million sterling pounds under the Settlement Fund Trustees (SFT) to buy land for the squatters – many of who were Kikuyus. In 1969, fiery Nandi MP Jean Marie Seroney, convened a charged meeting to debate the land question in Rift Valley. The Nandi Hills Declaration was the aftermath of that meeting, which decreed all land in Nandi belonged to the local community, that would henceforth oppose any further acquisition and settlement of Kikuyus in the area.

Moi who was the Vice President and Minister for Home Affairs and was Seroney’s political nemesis, threw him into detention. The Kalenjins have always argued that even when they had money to buy their own land, the Kenyatta government opposed the move. They cite the example of the Makonge (sisal) Farm in Ziwa. The attempt to buy this land was thwarted by the state in 1976, leading to the arrest of Eldoret North MP, the controversial Chelagat Mutai. The farm, instead, was handed to a land buying company belonging to Kikuyus.

In Property and Political Order in Africa: Land Rights and the Structure of Politics, published in 2014 by Cambridge University Press, Catherine Boone, ably tackles the intricate interconnectedness of supra local politics and land ownership in the volatile Rift Valley region.

“The statist land tenure regime (LTG) established in the Rift Valley farming districts by the colonial state was perpetuated and elaborated by the Kanu government after independence,” writes Boone. She says, the government bought the land from the departing European settlers, and allocated the land through settlement schemes to smallholder farmers between 1960–1975. “The rest of the land so acquired was transferred in the form of large estates to high ranking members of the Kenyatta regime entrenching their status as an economic, as well as a political elite.”

Burnt Forest area – which become infamous in December 2007, after some Kikuyu families were trapped in a Pentecostal church and that was set on fire, burning mostly women and their children below 10 years – “become a zone of mostly Kikuyu settlement schemes and was purchased by the state in 1965.” During the highly contested presidential 2007 election, the Opposition coalition led by Raila Odinga, running on an ODM ticket cried foul and accused the Mwai Kibaki led Party of National Union (PNU) of stealing the elections, provoking ethnic cleansing in Rift Valley, especially in areas that were heavily populated by Kikuyu. Burnt Forest became one of the notorious flashpoints of that ethnic warfare.

“Many settlers on the Uasin Gishu and Trans Nzoia Districts schemes were Kikuyu who had previously been employed on European farms in these areas” points out Boone. “Under Kenyatta, the kanu government used its land powers to open the Rift to settlement by peoples and persons who were not recognized by the state as indigenous to these jurisdictions, and who did not claim ancestral or customary rights in these areas.” Boone adds, “Under colonial rule, these people were categorized into state-recognized ethnic groups (the Nandi, Kipsigis, Maasai, Tugen, Elgeyo, Samburu, Marakwet, Sabaot, Pokot Terik, Turkana and so on).”

Catherine Boone who is a professor of Government, International Development and Political Science at the London School of Economics (LSE), makes the point that even after these communities were pushed to the margins of their lands (presumably to create room for the sedentary communities such as the Kikuyu to engage in agricultural farming), the loss (of land) did not decrease, or become less onerous, overtime.

Conflicts over access to land in Kenya’s Rift Valley have marked all stages of Kenya’s national history and shaped each critical juncture, says Boone. “The colonial state expropriated much of what is now Rift Valley Province from the Maasai and other people indigenous to the Rift. The British proclaimed direct jurisdiction over what it designated as Crown Land in the Rift Valley in 1904.”

Boone argues in her book that “the farming districts of Kenya’s Rift Valley Province are some of the most productive and highly commercialized rural zones of sub-Saharan Africa. These districts – Nakuru, Trans Nzoia, Uasin Gishu and Nandi – are territories with high in-migration and high ethnic homogeneity and with settlement patterns and land allocation authored directly by the central state. It is also one of Africa’s worst conflict-ridden rural areas, with a long and bloody history of land-related struggles.”

Once Daniel arap Moi was in control of the state organs, after succeeding Mzee Jomo Kenyatta in 1978, “he used the central state’s land prerogative in Rift Valley to reward its own clients, who were encouraged by the regime to coalesce around ethnic identity, Kalenjin-ness that was centred on indigeneity (autochthony) in the Rift Valley,” notes Boone. “From 1986 on, government forestlands became caisse noire of patronage resources that were used to cement elite alliances and build political support for Moi among Kalenjin constituencies he needed as a mass power base.”

Hence, “evictions of Kenyatta-era forest squatters and the declassification of new forest land opened a land frontier that Moi used to settle thousands of Kalenjin families. Most Kikuyus were expelled from the Mau Forest in the 1980s, so that Kalenjins could move in. Many were allowed to settle south of Njoro.”

In the South Rift, largely composed of the Kipsigis, Kalenjin’s biggest dialect, a simmering anger of volcanic proportions is going on, brought about by the eviction of the Kipsigis people from the Mau Forest beginning 2018. Many were settled there, originally by President Moi in the early 1980s, soon after becoming the second president of Kenya, and for some as late as 15 years ago during the tenure of President Mwai Kibaki. The Kipsigis are now accusing the Deputy President William Ruto of ominous silence, as they are forcefully being kicked out and their property burned.

Daniel Burgei told me the Kipsigis helped marshal Kalenjin vote for Jubilee Party through Ruto, “now he is mum about the evictions. This is very troubling as we watch this whole spectacle in bewilderment. The Kipsigis have been practicing shamba system in the Mau Forest, where the soils are rich, do not need fertilizer and are good for cabbage, maize potatoes and tomato production. They also have been keeping livestock; cows, donkeys, goats and sheep.” Yet, in the process, they have hived huge chunks of the forest by cutting trees, hence destroying the natural environment, all in the name of giving way to farming, said Burgei.

Ruto, like Moi in the 1970s when he was Jomo Kenyatta’s VP is accused by a section of the Kalenjin people of keeping quiet in the face of the long-standing issue of land ownership in the Rift Valley region.

It is significant to note that “the name Kalenjin came into use as a group of designation in Kenya among World War (II) servicemen and ex-servicemen and students in the elite East Africa high schools in Nairobi and Kampala in the 1940s. “This ethnic consciousness of being Kalenjin was rooted in the native-stranger distinction. In very part, it was produced by the land tenure regime. The form of ethnic consciousness and mobilization that developed in Kenya was not the consciousness of all the people.

“When (former President Daniel arap) Moi led the efforts to amalgamate the political organization of the state-recognized tribes of the western Rift Valley in early 1960, he called the umbrella group the Kalenjin Political Association (KPA).” Boone adds that when the colonial government lifted the ban on indigenous politics, Kenya African Democratic Union (KADU) took over the interests of KPA.

“By the time of the February 1962 Lancaster House constitutional negotiations, “the rifts between Kanu and Kadu were…deep and deeply felt…During the talks, Moi would repeat that the people of Kalenjin were prepared to fight and die for their land.” Boone reminds us all, that “Kalenjin first appeared as an official ethnicity on the Kenyan census in 1979, Moi’s first year as a president. Moi promoted Kalenjin identity in the 1980s and 1990s as an ethnic designation to transcend the narrower, older colonial-era identities of Nandi, Kipsigis, Elgeyo, Tugen, and so on.” These ethnic consciousness of being a Kalenjin, says Boone was driven by the sensitive land politics of the Rift.

This consciousness has had the effect of creating a peculiar “tribalism,” in the Rift Valley land politics “namely that in it was almost wholly a consciousness of being, either a Kikuyu or not-Kikuyu.”

If the 1960s and 1970s were decades of consolidation of the Kenyatta regime which sidelined those claiming ancestral land rights in the Rift Valley and “inserted” African settlers into Rift Valley farming districts, the 1980s and 1990s were a reversal of these settlements. Forced to accept plural politics in 1991, by the West, his erstwhile allies in the Cold War era, Moi mobilized the Rift Valley constituencies, “along an axis of competition that pitted indigenes of the Rift Valley against settlers who had been implanted by the Kenyatta regime.”

Boone observes that the Rift Valley politicians tapped into existing land-related tensions in which the central state was directly implicated as the author and enforcer of a contested distribution of land rights. “This conflict found direct expression in electoral politics at the national level. Political rhetoric that pervaded Nandi, Nakuru, Uasin Gishu and Trans Nzoia districts dwelled on how land was lost to the Europeans was never recovered and how under Kenyatta ‘black colonialists’had been allowed to buy up land that rightfully should have belonged to indigenous communities.”

Prof Boone gives the example of Likia location, in Molo division, Nakuru District, “where most land belonged to Kikuyus in the early 1990s, local Kalenjin politicians reminded the people of the past ownership of the land and encouraged them to reclaim it.”

On January 10, 2019, a former Molo MP, Joseph Kiuna held a press conference in Likia area of Molo and reminded the Kalenjin that they had not forgotten what they had done to the Kikuyus in 2007/2008post-election violence (PEV). “All this time the Kikuyus have been pretending that they had forgotten and moved on,” said Kip. “We Kalenjin are very much aware they have not forgotten anything.” Even though thousands of Kikuyus were internally displaced – up to 600,000 people were dislocated from their homesteads in the greater Rift Valley during PEV, by the marauding Kalenjin warriors – many a Kikuyu nevertheless returned to Rift Valley. The allure of fertile soils, the armistice arrived at between Ruto and Uhuru Kenyatta and a desire to go back to their lands, which they had occupied for many years, was greater than the ominous existential threat of a repeat “ethnic” attack on their farms.

And the Kikuyus have had big group farms ranging between 1000 and 3000 acres in Trans Nzoia and Uasin Gishu Counties. 35 kilometers from Kitale town are the better known Gitwamba and Munyaka Farms located at the foothills of Mt Elgon, bordering Mt Elgon Forest. Most of the Kikuyus who settled here were from Nyeri and its environs. Endowed with black alluvial soils, the farms are very fertile. Since settling there, decades ago, the Kikuyus have grown beans, cabbages, carrots, potatoes, tomatoes amongst a host of other horticultural crops. Markets days in Iten, Kitale, Matunda, Moi’s Bridge and Soy are filled with fresh produce from these farms. As fate would have it, in Trans Nzoia, it is Gitwamba – which in Kikuyu language means a flat, rich plateau with fertile soils and Munyaka which means to be lucky – that were the first flashpoints of ethnic upheavals in 1991. They have remained so to date.

The 1991 ethnic clashes were instigated, organized and executed by Moi’s Kanu regime which suddenly felt under siege from the multi-party advocates. Hoping to tap into their age-old grievances of land ownership and aware he had kept mum as land in the Rift Valley was being parceled to Kikuyus and other communities, by the Kenyatta government in the 1970s, Moi allegedly encouraged the Kalenjins to “reclaim” their land from foreigners, in exchange for their support to further cement and consolidate his grip on state power. By foreigners, he meant the Kikuyu people.

The other Kikuyu farms in TransNzoia are: Wamuini Farm A, the 1,000 agricultural land near St Joseph High School on the Kitale-Ndalu Road. Wamuini Farm B, formerly Mabonde Farm that was called mabonde – Kiswahili for denes, because of its ridges and valleys. There is also Meru Farm bought in the early 1970s. It is near Kitale showground, adjacent to the posh Milimani Estate. The other big farms owned by Kikuyus are Kiirita, Makui and Weteithie Farms. Weteithie, which in Kikuyu means self-help. All these farms were bought through land-buying companies with loans from Agricultural Finance Corporation (AFC). They include Mwihoko, which means hope in Kikuyu, Ngwataniro-Mutukanio, Nakuru District Ex-Freedom Fighters Organization (NDEFFO) and Nyakinyua, which was President Kenyatta’s favourite cultural dancing troupe made up of women.

The 1991 ethnic clashes were instigated, organized and executed by Moi’s Kanu regime which suddenly felt under siege from the multi-party advocates. Hoping to tap into their age-old grievances of land ownership and aware he had kept mum as land in the Rift Valley was being parceled to Kikuyus and other communities, by the Kenyatta government in the 1970s, Moi allegedly encouraged the Kalenjins to “reclaim” their land from foreigners, in exchange for their support to further cement and consolidate his grip on state power. By foreigners, he meant the Kikuyu people.

In Trans Nzoia, other Kikuyus acquired land through SFTs, formerly white farms, given ostensibly to “landless people” by Jomo Kenyatta government. In Uasin Gishu County which borders Trans Nzoia, there is a replica of Munyaka Farm, today referred to as Kimumu-Munyaka Farm, located on the Eldoret-Iten Road. The more famous Ya-Mumbi Farm is on the Eldoret-Kapsabet-Kisumu Road. Rukuini and Kondoo Farms are near Burnt Forest. Kimuri and Kiambaa Farms are not far from Eldoret town. Rukuini and Kondoo, just like Gitwamba and Munyaka in Kitale, have remained focal points of “ethnic wars” since 1991.

After the violent uproar that took place in Eldoret North following the controversial 2007 general election, many Kikuyus living in Uasin Gishu County, abandoned their farms in Turbo 30 km from Eldoret town and went to live in town, at Langas estate, the sprawling Kangemi-type ghetto located on the Eldoret-Kisumu highway, just after the Eldoret Polytechnic. Kangemi is a slum on Waiyaki Way, seven kilometres from Nairobi city centre. Stephen Kiplagat, who was born and bred in and whose family still lives in Langas told me that it is today estimated to be 85 per cent populated by Kikuyus. “My family is one of the very few Nandi families that still reside at Langas, the rest are Kikuyus.”

Five Nandi families originally owned Langas. Many of them started parcelling the land and selling it mostly to Kikuyus from the 1980s. Two factors drove this sale: the Kikuyu desire for a plot of land and the fact that they had ready cash to buy the land. With the money, the departing Kalenjin bought land in Kitale, Soy, Turbo and Ziwa so that they could engage in agricultural and livestock farming.

I went to school in Kitale in the 1980s, then it was a one-street settler town and that is where I first heard the phrase “revisiting the issue.” A prominent Kalenjin businessman, (he later become an influential politician in President Moi’s inner circle and today he is retired), said in my presence: “We’ve only leased the land to them (Kikuyus), they should be knowing that…we’ll soon revisit that issue.” When the push for multiparty elections in 1991, appeared inevitable, Moi’s monolithic Kanu one-party dictatorship relented to political pluralism, but not before igniting “ethnic” skirmishes in the Rift Valley.

Kip told me, “resources are becoming scarcer by the day in the Rift Valley region and our people would like the land issue in the Rift Valley region prioritized as a matter of national political discourse.”

The first wave of Kikuyu settlers in Trans Nzoia district first appeared as colonial civil service workers in the mid-1940s after the World War II. The next group showed up in the mid-1950s. These were Kikuyus running away from the Mau Mau insurgency and capture by the British colonial police. Many of them converted to Islam and assumed new identities. Indeed the first Kikuyus to settle in Kitale town were Hamisi Saidi and Hussein Ramadhan. They had taken up Islamic names and soon became petty traders in town.

Resources are becoming scarcer by the day in the Rift Valley region and our people would like the land issue in the Rift Valley region prioritized as a matter of national political discourse

Kigotho Njuguna, Mbugua Gachani, Danson Kangonga Mbugwa, John Muchuri, Wanguhu Githiomi (who hailed from Kijabe) and Peter Kinyanjui – one time Democratic Party of Kenya (DP) point man in Trans Nzoia) formed part of the earliest pioneers of Kikuyu settlers in Kitale. DP was an opposition party once led by Mwai Kibaki, the third President of Kenya. The others were: Lawrence Waweru, Kirima Githaiga, David Kiberu, Waigi Mwangi (originally from Ngecha in Limuru) and Apollos Mwangi. All these men are dead and many of them hailed from Nyeri district.

As the theatre of the politics of succession leading to 2022, plays out in the expansive Rift Valley region, the spectre of the ever-simmering land question looms large. William Ruto, like his predecessor Moi, and not Seroney, finds himself in a dicey position of canvassing the entire Kalenjin vote, amid unsettled land ownership saga that remains an unresolved issue.

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Mr Kahura is a senior writer for The Elephant.

Politics

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.

Kenya’s Supreme Court: Old Wine in New Bottles?

Read also: Kenya’s Supreme Court: Old Wine in New Bottles?

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.

60 Days of Independence: Kenya’s Judiciary Through Three Presidential Election Petitions

Read also: 60 Days of Independence: Kenya’s Judiciary Through Three Presidential Election Petitions

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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