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Gambia: How Yahya Jammeh Stole a Country

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For more than two decades, Yahya Jammeh ruled over Gambia. His administration was implicated in widespread human rights abuses and several waves of brutal crackdowns on dissent. And his bizarre personality drew headlines around the world after he gave himself five titles and claimed to be able to cure AIDS.

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Gambia: How Yahya Jammeh Stole a Country
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Gambia’s former President Yahya Jammeh orchestrated the embezzlement of nearly US$1 billion of public funds and illegal timber revenue during his 22-year rule, looting the treasury in a long-running conspiracy that crippled one of the world’s poorest countries.

While president of the compact West African state of 2 million, Jammeh frequently drove his black stretch Hummer from his official residence in Banjul, the capital, to a lavish private estate in his home village of Kanilai.

His route took him past the central bank, the social welfare office, and the headquarters of the state telecom company. These were some of the institutions Jammeh pillaged by elevating privileged civil servants to prominent positions and empowering a group of corrupt businessmen led by a key Hezbollah financier.

Thousands of documents obtained exclusively by the Organized Crime and Corruption Reporting Project lay bare for the first time the massive scale of Jammeh’s corruption. They show how he hijacked government funds and departments, set up private accounts at the central bank, and built a patronage network while ruling the country through a combination of guile, unbridled power, and violence.

What was not withdrawn in cash by Jammeh’s officials or funnelled to bank accounts controlled by the president went to businesses that received lucrative contracts (or for unknown purposes). Some was sent to foreign shell companies about which little is known. The transfers may have violated Gambian law.

Just how much of the great Gambian heist ended up in Jammeh’s own pockets — through offshore accounts or bags full of cash — is still unknown.

Adama Barrow, the country’s current president, estimated in 2017 that Jammeh stole about 4 billion dalasis ($90 million) from public coffers. An official investigation known as the Janneh Commission of Inquiry is currently examining financial misconduct during his rule. And at the end of last year, the United States announced that Jammeh had been banned from entering the country, citing evidence that he had been involved in “significant corruption.”

The documents analyzed by OCCRP show a web of fraud that far exceeds the figure offered by Barrow, who defeated Jammeh at the polls in 2016 but was only able to oust the former president after neighboring states threatened a military intervention.

Jammeh was the worst of dictators, but because he ruled a nobody country, nobody cared.

“He ran the country like an organized crime syndicate,” said Jeggan Grey-Johnson, a Gambian activist and communications officer at the African regional office of the Open Society Foundation, a pro-democracy and good governance organization.

“Jammeh was the worst of dictators, but because he ruled a nobody country, nobody cared,” Grey-Johnson said.

Jammeh spent some of the stolen money on his palace in Kanilai, where he had his own private mosque, built a jungle warfare training camp, and kept camels, hyenas, zebras, and other exotic animals.

In total, Jammeh and his associates looted or misappropriated at least $975 million. Among their biggest targets:

  • $363.9 million from the state-run telecoms company;
  • $325.5 million in illicit timber revenue;
  • more than $100 million in foreign aid and soft loans from Taiwan;
  • $71.2 million from the Central Bank of The Gambia;
  • $60 million from the Social Security and Housing Finance Corp., which manages disability, housing, and pension payments; and
  • $55.2 million from the state-run oil company.

Jammeh spent some of the stolen money on his palace in Kanilai, where he had his own private mosque, built a jungle warfare training camp, and kept camels, hyenas, zebras, and other exotic animals. The looted funds also supported a lavish lifestyle that Jammeh’s average official monthly government salary of about $6,000 could never sustain.

Other spending was designed to portray Jammeh as a benevolent and generous ruler, but not typically in ways that benefitted ordinary Gambians, who eke out a living in an economy that is literally dependent on peanuts, a top export. In 2010, using diverted money, Jammeh held a tribute concert for Michael Jackson after the pop superstar’s death. He also hosted a Miss Black USA beauty pageant in Gambia using $1.1 million illicitly diverted from the Port Authority.

The spending did little to address Gambia’s needs. The country has poor health care, few basic services, and under 1,000 km of paved roads. According to the World Bank, its external debt at the end of 2017 was $489 million — less than the amount Jammeh allegedly stole.

The United Nations criticized Jammeh during his final election campaign for threatening to kill off the country’s most populous ethnic group — the Mandinkas — and put them “where even a fly cannot see them.

The former president gave himself five titles, insisted he could cure AIDS (but only on Mondays and Thursdays), and proclaimed that he would stay in power for a billion years if Allah wanted him to. He is now in exile in Equatorial Guinea, where he allegedly spends his days on a farm carved out of the jungle.

Ruling with an Iron Fist

The United Nations criticized Jammeh during his final election campaign for threatening to kill off the country’s most populous ethnic group — the Mandinkas — and put them “where even a fly cannot see them.”

In its 2015 report on Gambia, “State of Fear”, Human Rights Watch detailed accusations that included “enforced disappearances,” torture of political opponents, the summary execution of more than 50 African migrants, and the murder or disappearance of two journalists.

The sentiment was typical of a president who ruled through terror. At the center of his ability to strip Gambia of its meager wealth was Jammeh’s ruthless control of the government and its institutions. After capturing power in a bloodless coup in 1994 at just 29, he quickly deployed an array of official and unofficial security forces to silence dissent.

In a climate of fear, and with the complicity of a powerful circle in and out of the government, Jammeh’s brazen corruption continued unchecked for more than two decades.

The Jungulers, an unofficial unit of about 40 men largely drawn from the Presidential Guard, carried out the most egregious offenses. In its 2015 report on Gambia, “State of Fear”, Human Rights Watch detailed accusations that included “enforced disappearances,” torture of political opponents, the summary execution of more than 50 African migrants, and the murder or disappearance of two journalists.

In a climate of fear, and with the complicity of a powerful circle in and out of the government, Jammeh’s brazen corruption continued unchecked for more than two decades.

Merely questioning Jammeh’s often erratic rule could result in entire departments being seized. When a senior official at the state-run oil company questioned the president’s office on whether its income could be exempt from taxes, Jammeh responded by seizing control of the company’s bank accounts and diverting its funds for his use.

His micromanagement of government affairs allowed him to exert “complete control” over Gambia, said Fatou Camara, who twice served as Jammeh’s press secretary between 2011 and 2013.

“Every minister would wait for him before they made decisions,” Camara said. “Everything had to wait for the Office of the President to agree.”

Jammeh’s human rights abuses and corruption went largely unchallenged by the international community because of his country’s small size and relative obscurity. A wave of violence across West Africa during his reign — in Ivory Coast, Liberia, and Sierra Leone — also helped him fly under the radar.

“The Gambia wasn’t even like a back-burner issue — it was a backwater issue,” said Cameron Hudson, a former West Africa analyst for the CIA.

The ‘Number One Bank’ as a Slush Fund

The Central Bank of The Gambia was known as the “number one bank” among Jammeh’s staff because they knew its coffers would continually be replenished with public money.

Central banks are only supposed to regulate local banks, control currency in circulation, and set interest rates. Typically, individuals can’t have accounts. But Jammeh treated Gambia’s central bank as his personal slush fund.

Much of the time, the money he stole flowed electronically between domestic and foreign accounts. But sometimes the cash literally traded hands. Beneath the hum of air conditioning units in a loading bay on the central bank’s east side, presidential aides were known to shove suitcases stuffed with dollars, euros, and other currencies into waiting vehicles, according to testimony received by the commission of inquiry. The official investigation, led by lawyer Surahata Janneh, has not yet released its final report.

On one occasion, when Jammeh wanted to withdraw cash from the central bank, his office wrote directly to the bank’s second deputy governor with a blunt request that circumvented lawmakers and regulators. The bank complied.

Amadou Colley, the central bank’s governor from 2010 to 2017, told the commission that Jammeh and his cronies exerted significant control over the institution. Government records, testimonies, and directives show senior bank officials routinely allowing the president’s office unfettered access.

Colley, who declined to comment for this story, testified that he saw officials close to the president withdraw funds without proper paperwork. Able to obtain withdrawal notes from Jammeh’s office only occasionally, he resorted to accepting hastily-written statements from those retrieving the money that they had been “directed by President Jammeh [or] the Office of the President to make this withdrawal.”

Documents obtained by reporters show that Jammeh diverted over $71 million from the central bank’s reserves in just a few years. He used three main techniques: hijacking the bank’s accounts, creating new accounts on which he and his chosen aides were sole signatories, and using dormant accounts (which are seldom found at well-managed central banks). Sometimes he ordered the withdrawal of cash from accounts without any funds, causing them to become overdrawn.

Accounts such as the Consolidated Revenue Fund received millions of dollars every year from income taxes and other sources. There is little accounting for how money from the fund was spent between 2007 and 2016, despite laws that require parliamentary approval of expenditures.

Thousands of internal bank documents reviewed by OCCRP revealed other major accounts Jammeh plundered.

They included:

  • The International Gateway Account: This account received revenues from Gambia’s state telecommunications operator, known as Gamtel. The practice of collecting such revenues, earned from long-distance telephone calls and internet services, occurs in every country. In Gambia, however, a disproportionate 82 percent went to private companies through secret contracts that bypassed the country’s regulatory body. About $363 million disappeared this way. The remaining 18 percent which did land in the account was largely withdrawn by Jammeh’s office without explanation. Among other things, the president spent the money on cattle, vehicles, and extravagant carpets.
  • The Special Vision Account: Once the International Gateway account was emptied, Jammeh turned to this account, also funded by Gamtel revenues and intended to finance his development plan for Gambia. From July 2014 until January 2017, Jammeh’s office diverted about $43 million — with $35.7 million taken as cash. Jammeh’s close business associates were among the beneficiaries. Other expenses included doctors’ salaries, a donation to fight the West African Ebola outbreak, and funding for Jammeh’s personal charitable foundation. The last transaction occurred two days after Jammeh went into exile in 2017.
  • The State Aircraft Fund: This state travel fund was financed by donor aid from Qatar, tax revenues, and other sources. Jammeh’s office withdrew cash from the account without stating any purpose and used it to purchase a luxury jet, buses, and vehicles from a close associate.
  • The State Security Account: This account was set up by Jammeh’s office with no declared purpose. About $466,000, or 95 percent of its funds, were diverted from another account called the Consolidated Revenue Fund and used for cash withdrawals, entertainment, travel, payments to Jammeh’s favorite wife Zeinab, and other expenses.
  • Mineral-related accounts collected royalty payments from private mining companies such as Carnegie, Sand Mining, Gamico, and Heavy Minerals. Though this money was intended for the Consolidated Revenue Fund, the payments fell under the control of the president’s office, which oversaw the use of $4.9 million.
  • The Office of the First Lady: There is no such office in Gambia, but Jammeh created this account, filled it with public revenues, and spent the entire $35,706.
  • The National Youth Development Fund: Dozens of scholarships were awarded to young African-American women who Jammeh brought to Gambia to compete in the 2007 Miss Black USA beauty pageant, which he hosted. The fund also paid for maintenance on Jammeh’s jet and other expenses. The source of the $4.5 million that passed through the account is unknown.
  • The Green Industry Account: Although the central bank is not allowed to open accounts for private entities, an account named Green Industry — presumably after a private company of the same name — was created. The source of the funds, which were illegally transferred to the company’s account at Trust Bank, is unclear.
  • The Fish Landing Account: Funded by revenue from a 10 percent fee on fish caught by trawlers in Gambian waters, this account received multiple requests from withdrawals from Jammeh’s office.

During Jammeh’s rule, the central bank became heavily indebted. One of his government’s first acts in 1994 was to take out a secret $25 million loan in the form of a bond. Decades of fraud, hidden debts in the form of bonds, and account manipulation followed, draining the bank of its revenues. Almost 40 percent of the bank’s spending went toward interest payments on debts, according to OCCRP’s analysis.

In a 2015 letter to the International Monetary Fund, while Jammeh was still in power, central bank officials wrote that the institution remained highly indebted because of significant interest charges, bad investments, over-lending to the government, and violations of its own rules — described as “policy slippages.”

Today, the central bank remains in dire straits. The country owes lenders 130 percent of its gross domestic product, mainly due to “external arrears” incurred by the Jammeh administration, the IMF said in May 2018.

Jammeh’s manipulation of the central bank may have violated several of Gambia’s laws, including the Government Budget and Management Accountability Act of 2004, the Social Security Act of 2010, and the Public Finance Act of 2014. He has not been charged with any crimes.

“Jammeh ran the country like it was his own,” said William Gumede, an economist and chair of the Democracy Works Foundation, a South African pro-democracy group. “Who can question you when everything is considered yours?”

Gambia’s current government did not respond to requests for comment. The government of Equatorial Guinea did not respond to requests to reach Jammeh.

The true scale of Jammeh’s thefts from the central bank may never be fully known.

Taiwan Led the Way, Hezbollah Followed

Jammeh’s thirst for public money began soon after he captured power in 1994. In 1995, he recognized Taiwan’s independence from China in a strategic establishment of diplomatic ties also made by several other African countries. In doing so, he opened the door to some $100 million in foreign aid.

The East Asian island’s development assistance was deposited into a “Special 3M” donor aid account at Citibank, the New York-based lender. Documents show that $35 million of the funding was dispersed in less than two years.

In total, $58 million was processed, primarily by Citibank, meaning the account was presumably overdrawn. The bank transferred the money to just over 20 beneficiaries, allowing the funds to vanish into the accounts of Jammeh and his close associates, including Mohamed Bazzi, one of the country’s richest and most influential businessmen, whom Jammeh used as a middleman.

Some of the world’s biggest banks — including Barclays, Citibank, HSBC Bank, and Standard Chartered — approved transactions for what would turn out to be Jammeh’s seizure of state funds for his personal use

Bazzi, identified by the U.S. as a key financier for Hezbollah, introduced another financier who invested $35 million in Gamtel, Gambia’s state-owned telecommunications provider. He and other Hezbollah-linked businessmen were the primary beneficiaries of oil and telecommunications monopolies worth more than $100 million.

Some of the world’s biggest banks — including Barclays, Citibank, HSBC Bank, and Standard Chartered — approved transactions for what would turn out to be Jammeh’s seizure of state funds for his personal use.

In a statement to reporters, Citibank declined to comment on possible legal violations of standard anti-money laundering, due diligence, and “know your customer” requirements as well as potential violations of U.S. laws regarding banking secrecy, corrupt practices and even terrorism laws.

Standard Chartered declined to comment and Barclays declined to comment on the record. HSBC did not respond to requests for comment.

Former World Bank anti-corruption specialist Richard Messick said U.S. law enforcement might have been working with the banks to monitor where the funds were going.

“It’s possible they reported the transactions to the authorities,” he said. “I know of cases where law enforcement authorities have … ‘spooked’ the account holders … so that they could see where it was going to. So that’s not all beyond the pale.”

“Assuming the banks didn’t alert authorities to the transactions moving the money out of the accounts, they should have applied enhanced due diligence … to ensure the money wasn’t being laundered,” Messick said.

Keep Your Friends Close

None of Jammeh’s plundering would have been possible without the close network of advisers he posted to key positions and shuffled around at will. The aides, often used as signatories to bank accounts and loan agreements, played a key role in his money transfer schemes.

Jammeh’s right-hand man, Gen. Sulayman Badjie, was identified in commission testimonies as the president’s enforcer — both in politics and in business. Even as he ran the country as second-in-command and headed its armed forces, he also provided protection for Jammeh’s timber smuggling operation. Badjie could not be reached by reporters.

The secretary-general of the Office of the President, Nuha Touray, was a crucial intermediary between Jammeh’s office and various government departments. Documents obtained by reporters include directives Touray signed that authorized the seizure of bank accounts and the sacking of public officials who questioned orders.

In addition to Jammeh’s official salary, his personal bank accounts reveal that Bazzi paid Jammeh $500,000 a month for several months. Bazzi testified to the commission that he paid the sum to the president’s account for 20 months and the money was related to an incentive to the president for a telecommunications deal that Bazzi organized for his associate, Ali Charara, another Lebanese Hezbollah financier.

Bazzi did not respond to requests for comment.

Jammeh’s favored officials shared in his prosperity, but were also vulnerable to his propensity for violence and punishment.

Many officials who fell out of favor found themselves incarcerated alongside journalists, political activists, human rights campaigners, and those perceived to be gay or lesbian in the country’s notorious Mile 2 prison.

Touray told the commission that failure to carry out the president’s orders resulted in one of three consequences: “dismissal, imprisonment, or disappeared.”

Exiled in Comfort in Equatorial Guinea

Jammeh’s plundering ended after his seesaw exit from power in 2016, a spectacle that briefly captivated the world. After losing the presidential election to Barrow, a former property developer, on Dec. 1 of that year, the strongman shocked the region by conceding defeat.

But in true Jammeh style, he quickly reversed course and rejected the outcome. As President-elect Barrow called for an investigation into human rights abuses and corruption under Jammeh’s regime, the outgoing president appeared to be buying time to get his affairs in order.

After seven weeks of negotiations, which brought several prominent West African heads of state to Jammeh’s palace for talks, the embattled leader fled the country on Jan. 21, 2017, on a Falcon 900 private jet owned by the government of Equatorial Guinea and used by its president.

President Teodoro Obiang Nguema Mbasogo, known as Obiang, is a longtime friend of Jammeh. The two men have a similar propensity for using state finances for personal gain and quashing opponents. According to media reports, they even owned houses next to each other in Potomac, Maryland.

Once Jammeh arrived in Malabo, Equatorial Guinea’s island capital, Obiang granted him refuge from the chorus of human rights and anti-corruption campaigners who were seeking to put him on trial in the Hague for crimes against humanity.

Jammeh remains in Equatorial Guinea to this day, nearly 5,000 km from Banjul and the commission investigating him.

Back in Gambia, the people Jammeh hurt most are hoping for better times at the hands of the government of Barrow, his replacement. “We’ve been told that our pensions will be increased by 100 percent,” said Abubacarr Dem, 79, a retired civil servant who lives near the capital. “That’s good if it works out. For now, we haven’t seen it. I don’t even know whether they have enough money there for us.

With additional reporting by Saikou Jammeh and Daniela Lepiz.

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Khadija Sharife and Mark Anderson are Investigative journalists with The Organized Crime and Corruption Reporting Project (OCCRP) a global network of investigative journalists.

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No War, No Peace: Life and Death in Eritrea

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

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

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

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

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

Border dispute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Peace Agreement with Ethiopia and its aftermath

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

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

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

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

Ailing health sector

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

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

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

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

Poor COVID-19 response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Search for a Puppet Chief Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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African Continent a Milking Cow for Google and Facebook

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

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

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

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

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

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

Brick and mortar

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

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

‘Their revenue comes from me’.

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

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

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

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

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

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

Google Ghana is an ‘artificial intelligence research facility’.

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

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

Cash-strapped countries

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

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

Cost to public

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

‘A tax paying people is a questioning people’

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

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

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

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

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

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

Comment

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

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

This article was first published by our partner ZAM Magazine.

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