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Striking a Balance Between Judicial Immunity, Independence and Accountability: The Kenyan Situation

15 min read. There is a need to re-engineer these parameters of the Judiciary to strike a functional balance between immunity, independence, impartiality and accountability of members of the bench for Kenya to enjoy a trued independent Judiciary.

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Striking a Balance Between Judicial Immunity, Independence and Accountability: The Kenyan Situation
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Kenya’s Supreme Court is in the eye of a storm. Four members of the apex court face allegations of bribery and impropriety. The Chief Justice himself faces a petition. The Deputy Chief Justice faces the prospect of criminal charges if an ongoing constitutional case is determined against her. One of the Supreme Court judges has declined to appear before the Judicial Service Commission (JSC), citing constitutional immunity.

Lower down the rung, a judge of the High Court who was found unfit has challenged the decision. His appeal has, however, been dismissed by the Supreme Court. Several other High Court judges could face tribunals depending on the findings of the committees set up to investigate the complaints against them. Some of the complaints may turn out to be not worthy of the formation of a tribunal. However, the fact that there are so many complaints against members of the Supreme Court erodes the confidence that should be attached to the apex court, and by extension, to the whole Judiciary.

It is said that when Julius Caeser’s wife, Pompeia, allowed a man dressed as a woman into a Roman religious festival strictly reserved for women, Caeser divorced her. The whole thing had been a prank and Pompeia had no intentions of impropriety. Aware of this, the citizens of Rome enquired why Caeser had divorced his wife. “The wife of Caeser must be above suspicion,” was the Great Emperor’s response. Hence the comparison with the level of integrity expected of a judge.

Perception plays an important role in the discharge of justice. Some 118 years ago, Lord Charles Bowen, while setting aside the ruling of the Lord Chief Justice who had determined an appeal in a case involving his own brother’s architectural firm, said, “Like Caeser’s wife, a judge must be beyond suspicion.”

Now one may ask where Caeser’s wife fits in all this? What does Caeser’s wife have to do with the integrity of a judge?

It is said that when Julius Caeser’s wife, Pompeia, allowed a man dressed as a woman into a Roman religious festival strictly reserved for women, Caeser divorced her. The whole thing had been a prank and Pompeia had no intentions of impropriety. Aware of this, the citizens of Rome enquired why Caeser had divorced his wife. “The wife of Caeser must be above suspicion,” was the Great Emperor’s response. Hence the comparison with the level of integrity expected of a judge.

A transparent, reliable and accountable Judiciary is vital in the furtherance of the rule of law, which is fundamental to constitutionalism and democracy. It cannot be gainsaid that right from the recruitment, functioning, supervision, to the removal of judicial officers, the process must be rigorous, transparent, accountable and free from influence. To properly carry out their mandate, judicial officers must be insulated from victimisation arising from the discharge of their judicial functions. Conversely, they must conduct themselves with the propriety expected from those entrusted with great power.

Justice before 2010

Prior to the enactment of the 2010 constitution, the appointment of the Chief Justice was the sole prerogative of the president. He was also the appointing authority in the appointment of judges, the only rider being that with such appointments, he was to act in accordance with the advice of the Judicial Service Commission (JSC).

An examination of the composition the JSC, however, clearly showed that the president held sway in such appointments. Composed of the Chief Justice, the Attorney General, two judges appointed by the president and the chair of the Public Service Commission, all members of the JSC were direct or indirect appointees of the president and, therefore, beholden to him.

Another contract judge, Patrick O’Connor, was sacked by the Chief Justice when he resisted a transfer to Meru. When O’Connor questioned whether the Chief Justice had the powers to sack him, he was criticised by the political class. Not long after, in 1988, Parliament amended the constitution to remove the security of tenure of judges.

Then there were the “contract judges”, who were mostly British citizens. Their contracts were renewable at the government’s discretion. Some of these judges were so beholden to the Executive that, in one instance, the by then Chief Justice, Alan Robin Hancox, in 1991 went as far as advising members of the bar and bench that their loyalty was to the head of state.

Another contract judge, Norbury Dugdale, found himself in conflict with lawyers and members of the Law Society of Kenya (LSK) due to the consistency of his decisions in favour of the Executive. Supporting an earlier call by nine members of the LSK in 1991 to have a tribunal established for the removal of Chief Justice Hancox and Justice Dugdale in September of that year, 107 lawyers signed a memorandum calling for the resignation of the two. (The Weekly Review Sep 6, 1991, page 4.)

Not all of the contract judges acted as gatekeepers for the Executive. Not all of them were malleable to the whims of the head of state. The fierce independence of Justice Derek Schofield, a contract judge, comes to mind. In 1978, a family filed a writ of habeas corpus seeking the production of their family member, Mbaraka Karanja. When Justice Schofield ordered the production of Karanja, the police said that he had been shot while escaping and had been buried. The judge then insisted the body be exhumed. Even after the opening of 19 graves, there was still no body of Karanja. Justice Schofield then threatened the Director of Criminal Investigation with contempt, prompting Chief Justice Cecil Miller to remove the case from the judge and to transfer him to Meru. Justice Schofield chose to resign than put up with this blatant interference. He would later say that the Chief Justice had informed him that his actions had been at the behest of President Moi. (Nairobi Law Monthly 49. Feb/Mar, 1992, and also Nation newspaper, 11 October 2008, interview with Okwemba.)

Another contract judge, Patrick O’Connor, was sacked by the Chief Justice when he resisted a transfer to Meru. When O’Connor questioned whether the Chief Justice had the powers to sack him, he was criticised by the political class. Not long after, in 1988, Parliament amended the constitution to remove the security of tenure of judges. ( Weekly Review, 5 August 1988, page 3.)

At the lower tier of the judiciary were the magistrates. Greater in number than the judges, and considered the true face of the Judiciary, they worked in far-flung stations. The JSC exercised complete control over their appointment. The law afforded them nothing in terms of security of tenure and they could be sacked at any time through mechanisms that were not transparent.

They worked alongside police prosecutors. Often considered enforcers for the Executive, their courts acted arbitrarily with little regard for the law or procedure. The extent of their emasculation by the Executive was at its most obvious during the Mwakenya trials. Scores of intellectuals, students, politicians and ordinary wananchi were arrested, tortured and charged with belonging to proscribed groups. The accused persons were “tried” and convicted in the magistrate’s courts, outside court hours, usually in the evenings without the benefit of counsel. (See KNHRC 2009 publication “Surviving after Torture”, pages 41-42.) One of the accusations against the twelfth Chief Justice, Benard Chunga, in 2003 when a tribunal for his removal was constituted, was that during his tenure as the Deputy Public Prosecutor, he had condoned and executed programmes of torture and illegal trials in the magistrate’s courts.

Executive interference was not the only factor that influenced the decisions of judicial officers. Far from it. In many cases, it was corruption that subverted the course of justice. So rooted was this vice that the popular saying, “Why hire a lawyer when you can buy a judge?” was an accurate depiction of the state of corruption in the Judiciary. The corridors of “justice” had become a marketplace where the highest bidder carried the day.

Magistrates who displayed independence were punished. A case in point was in 1994 when Senior Principal Magistrate, Onesmus Githinji; while acquitting six accused persons (famously known as the Ndeiya Six) charged with breaking into a chief’s camp, censured the police and ordered an investigation over allegations of torture. Soon after, he was transferred to a remote court in Kitui, which prompted him to resign.

Executive interference was not the only factor that influenced the decisions of judicial officers. Far from it. In many cases, it was corruption that subverted the course of justice. So rooted was this vice that the popular saying, “Why hire a lawyer when you can buy a judge?” was an accurate depiction of the state of corruption in the Judiciary. The corridors of “justice” had become a marketplace where the highest bidder carried the day.

The impunity with which some judicial officers conducted their affairs was in some instances almost hilarious. In Kisumu, an advocate obtained a photograph of a judge being transported in a vehicle that the same judge had irregularly allowed an auctioneer to attach and sell. When the advocate confronted the judge with this evidence and asked that he disqualify himself from the still ongoing proceedings, he declined. (The same judge would resign rather than face a tribunal during the 2003 “radical surgery” of the Judiciary initiated during the Mwai Kibaki administration.) In Nairobi, a magistrate was found with two sets of written judgments for the same case, one acquitting the accused, the other convicting him. His reason for this embarrassing situation was anyone’s guess.

In remote stations, magistrates were a law unto themselves. Feared by a populace that had long accepted corruption as a way of the courts, they went about their sordid business without a care in the world.

The Radical Surgery

By the time the country was going to the 2002 polls, it was plain to see that it was just a matter of time before some serious intervention was made to try and salvage a Judiciary gone rogue. And come it did in the form of what came to be known as the Radical Surgery.

With the defeat of KANU in the 2002 presidential elections and the ascendance of Mwai Kibaki to power, the stage was set for a radical intervention. An Anti-Corruption Committee chaired by Justice Aron Ringera was promptly constituted to investigate corruption in the Judiciary. Upon completing its work, it tabled a report that chronicled instances ranging from judicial officers receiving money to influence decisions to the seeking of sexual favours to make favourable decisions. It implicated 5 of the 9 Court of Appeal judges, 18 of the 36 High Court judges and 82 of the 254 magistrates country-wide.

This radical crackdown had unmasked powerful men and women, who hitherto, like Caeser’s wife, had been considered above suspicion. Pictures of Court of Appeal judges outside what is now the Supreme Court being helped by family members to load personal belongings into the boots of cars was a reflection of the magnitude of what had transpired.

In a brazen, and most would say unfair, move, the names of the implicated judicial officers were published in the national press even before they were informed of the accusations against them. This was followed by a withdrawal of their benefits and privileges. (These were to be reinstated many months later.) A two-week ultimatum to resign or be dismissed was issued to them. Many opted for the former. Some of the judges decided to face the tribunals. Justices Waki, Anganyanya, Nambuye, and Mbogoli were some of the judges who were later cleared and resumed their duties as judges.

This radical crackdown had unmasked powerful men and women, who hitherto, like Caeser’s wife, had been considered above suspicion. Pictures of Court of Appeal judges outside what is now the Supreme Court being helped by family members to load personal belongings into the boots of cars was a reflection of the magnitude of what had transpired. Men, once the face of justice, were struggling to put as much distance as possible between themselves and the corridors of justice.

Years of corruption and impunity within the Judiciary had eroded public confidence. This now ensured that there was little sympathy for these victims of the purge. It was the reason why there was little protest, despite the process of their removal being unfair and unjust. Even when the President, in an unorthodox move, used his authority to appoint 28 acting judges of the High Court to replace the fired ones, there was hardly any opposition.

The President’s move was irregular. The new acting judges had not been subjected to scrutiny. Many believed their appointment was influenced by political, tribal and other considerations, rather than merit. The process was flawed. Consequently, an opportunity to effectively clean up the Aegean stables that our Judiciary had become was lost.             

In 2003, Evan Gicheru replaced Benard Chunga as the thirteenth Chief Justice of independent Kenya. An embattled Chunga had opted to resign rather than face a tribunal made up of men he had on many occasions crossed swords with, and whose opinion of him could only be negative.

Business as usual

The Radical Surgery having gobbled up a sizeable chunk of the old faces in the judiciary. Many naively expected a reduction in instances of executive interference and corruption and consequently a marked improvement in the delivery of justice. This was not to be and for obvious reasons.

Firstly, the manner in which the Radical Surgery had been carried out, with little regard for the internationally accepted standards for the removal of judges, greatly eroded morale in the Judiciary. The appointment of 28 acting judges to replace those removed was also far from transparent. The appointees were beholden to the appointing authority, which was still the President. The constitution still allowed him the sole prerogative in the appointment of the Chief Justice. Little wonder then that in 2007, Chief Justice Evan Gicheru, who owed his appointment solely to President Kibaki, was agreeable to irregularly swearing him in as president at dusk in a private function at State House after a highly contested election. The culmination of this was an eruption of violence that left over a thousand dead and hundreds of thousands displaced.

The other reason why the Judiciary would still be hobbled with the problems of old was that the institutional deficiencies remained in place. While the faces of the judicial officers had to a great extent changed, the structures and working conditions for a long time remained the same. Soon enough it was business as usual.

The greatest opportunity to truly revamp the Kenyan Judiciary came with the promulgation of the new constitution in 2010. For the first time, the appointment of the Chief Justice would not be the sole prerogative of the president. The new constitution provided for an independent Judicial Service Commission (JSC). Save for the Attorney General and a couple of other members, the JSC was to be composed of a representative elected by magistrates, judges of the High Court and the Court of Appeal, and two members elected by the Law Society of Kenya, amongst others; all independent of the Executive. The members of the JSC were to forward their choice for Chief Justice to the President. Their single nominee – subject to the vetting of Parliament – would be appointed to head the Judiciary.

The new constitution also mandated Parliament to provide legislation for the vetting of all judges and magistrates who were in office on the 27th of August 2010. This culminated in the enactment of the Vetting of Judges and Magistrates Act No. 2 of 2011 and consequently the appointment of a vetting board by the President in consultation with the Prime Minister. A seasoned advocate, Sharad Rao, was appointed to chair the board. The decision of the board was not to be the subject of question or review in any court.

The Mutunga Era

In June 2011, Willy Mutunga, a well-known human rights activist, one-time chair of the LSK and a former detainee, was appointed the fourteenth Chief Justice. Everyone agreed that with his appointment, the third arm of government was on the way to great heights. The state of the Judiciary at the time of his appointment was summed up in his speech delivered in October 2011.

The new Chief Justice was considered an outsider – he had not been a member of the Judiciary nor had he practised much as an advocate. So he was bound to meet opposition to his leadership and any proposed reforms. The advantage was that he would not be bound by the cartels that had for a long time taken root in the Judiciary.

“We found an institution so frail in its structures; so thin on resources; so low in confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic. We found a judiciary that was designed to fail.”

The new Chief Justice was alive to the dire state of the Judiciary he had been tasked to head. With only 16 High Court stations and 111 magistrate’s courts around the country, a total of 53 judges and 330 magistrates were expected to cater for a population of over 41 million. Morale amongst the magistrates was low. Considered the backbone of the Judiciary, they handled most of the cases in far-flung courts under appalling conditions, yet their salaries, in comparison with what the judges were paid, was measly. There was a huge case backlog, which was not helped by the constant disappearance of files instigated by litigants and even advocates. Financing was low, with a paltry 0.05 per cent of the national budget set aside for the Judiciary in 2010-2011, compared with the international benchmark of 2.5 per cent. This was the Judiciary that Mutunga inherited from Evan Gicheru.

Upon assuming office, Willy Mutunga realised that there were many reports by civil society and task forces formed by past Chief Justices, the latest being the 2009-2010 report by Justice Ouko that recommended improvements in the functioning of the Judiciary. Using most of this material, his team developed what he called The Judiciary Transformation Framework.

The new Chief Justice was considered an outsider – he had not been a member of the Judiciary nor had he practised much as an advocate. So he was bound to meet opposition to his leadership and any proposed reforms. The advantage was that he would not be bound by the cartels that had for a long time taken root in the Judiciary. The confidence in the new Chief Justice was soon reflected in the substantial increase in funding of the Judiciary. Parliament more than doubled the Judiciary’s budget allocation in 2011-2012. The World Bank, GTZ and UNDP committed funds towards the intended transformation.

Mutunga also sought to give the Judiciary a more human face by doing away with some anachronistic traditions. He allowed for less formal attire and did away with symbols such as wigs. Encouraging interaction between judicial officers and court users, he sought to bridge the distance that had been created under the guise of independence and impartiality. He introduced new innovations, like the Daily Court Returns Template tracking the progress of cases.

Then Petition Number 5 of 2013 happened. It challenged the election of Uhuru Kenyatta as the fourth President of the Republic. On 30th March 2013, in a brief statement delivered in an almost cavalier manner, Chief Justice Mutunga dismissed the presidential election petition. A full judgment followed on 16th April of the same year. Criticised for its lack of depth and failure to confront the evidence, it left a blot in the image of a Judiciary that was still struggling to erase an inglorious past.

The presidential petition aside, more than any other Chief Justice, it was Mutunga who squarely faced the institutional bottlenecks that had long dogged the Judiciary. He undertook structured efforts to solve them. His earlier standing in civil society also helped marshal the finances required to transform the Judiciary. The current robust engagement between court users and the Judiciary, hitherto lacking, can be attributed to Mutunga’s efforts at giving the Judiciary a human face.

Current state of the Judiciary

On the 1st September 2017, the Supreme Court, chaired by Chief Justice David Maraga, nullified the disputed 2017 presidential elections and called for fresh elections within sixty days. While the world wowed, an enraged President called the judges of the Supreme Court “wakora” (crooks). The political class swore to “revisit” the issue. Confidence in the Judiciary soared.

The nullification of a presidential election by the apex court was a clear indicator of how far the Judiciary had moved in terms of independence from the Executive. Such a move would never have been thought of in the times of Hancox or Miller.

Upon realising that the intimidation of judges no longer worked, the Executive now sought to control the appointment process. One clear instance was the Amendments to the Judicial Service Act that sought to have the JSC forward three nominees to the President, instead of one, for position of Chief Justice. The LSK successfully petitioned a constitutional court to declare the amendments to be in breach of the doctrine of separation of powers.

Further pointers of independence from the other arms of government were evident in the fearless abandon with which the High Court continued to strike down legislation sponsored by the Executive as unconstitutional. In 2015, a five-judge bench agreed with the views of Justice Odunga and struck out eight offensive clauses in the controversial Security Law (Amendment) Act No 19 of 2014 as being in violation of fundamental human rights. This prompted much criticism from politicians, with threats against sitting judges.

Upon realising that the intimidation of judges no longer worked, the Executive now sought to control the appointment process. One clear instance was the Amendments to the Judicial Service Act that sought to have the JSC forward three nominees to the President, instead of one, for position of Chief Justice. The LSK successfully petitioned a constitutional court to declare the amendments to be in breach of the doctrine of separation of powers.

The Executive Director of the Kenya Human Rights Commission (KHRC), George Kegoro, in an opinion piece in the Standard newspaper, pointed out other instances of such interference: In one such move the President revoked the membership of two commissioners of the JSC, namely, Rev Samuel Kobia and Kipngetich Bett, while their term had not expired and in disregard of their security of tenure. Another attempt was the insistence on Parliament vetting Justice Warsame, who had been re-elected by the Court of Appeal to the JSC. It took a judgment of the Court of Appeal to scuttle the intended mischief.

The 2016-2017 State of The Judiciary & Administration of Justice Report shows that the number of judges in 2017 had almost tripled to 158 from just 53 in 2011. The number of magistrates had also risen from 330 in 2011 to 421 in 2017. Judiciary funding had almost doubled to 0.99 per cent in 2017. The maximum salary of a judge of the High Court was now slightly over Sh1 million, while that of a Chief Magistarate was over Sh700,000.

With these marked improvements in the numbers and remuneration of judicial officers, why was it that the Transparency International Bribery Index 2017 still considered the Kenyan Judiciary as the second most corrupt institution in the country after the police? Why was there still a perception amongst Kenyans that corruption was still rife in the Judiciary?

The immunity of members of the judiciary from any action or suit for anything done or omitted in good faith, in the lawful performance of a judicial function, is guaranteed in Article 160(5) of the 2010 constitution. Case law also suggests that no action can lie against a judicial officer for anything done within his or her jurisdiction even if done maliciously and in bad faith. (See Anderson -vs-Gorrie [1895] 1QB, 668. A similar position was held by our courts in Bellevue Dev Co Ltd –vs- Justice Francis Gikonyo & 7 others, [2018] eKLR.) What is suggested is that you can never sue a judicial officer for personal liability over anything he does within his jurisdiction even though it is done with malice. It matters not that his decision is so tainted with malice and militates against the evidence to the extent that it can only be attributable to extraneous factors.

Remedy lies in lodging a complaint with the JSC against such a judicial officer, and that’s just about where it ends. Immunity of judicial officers from personal liability for acts while in office, as provided in Article 160(5), suggests that it survives the officer’s tenure. Not even the President of the Republic is offered such immunity. The immunity accorded to a President under Article 143 of the constitution over acts carried out while in office does not extend past his tenure. It also allows for the period of limitation of time for any anticipated action against the President to stop running during his term in office.

It is common knowledge that the complaint process against judicial officers is slow and can remain undetermined for years. One of the reasons is that commissioners of the JSC hold other demanding jobs and enterprises. These men and women only meet occasionally. Judicial officers facing complaints have been known to brag that such complaints will not see the light of day due to the slow process. Others who have been suspended from office as their cases await determination also complain of the slow pace with which their cases are handled. Perhaps the time is right for the implementation of the Sharad Rao-led Judges and Magistrates Vetting Board recommendations of having a permanent Complaints Tribunal to handle such complaints.

The safeguard of immunity, together with the principles of independence and impartiality, are tailored to assist judicial officers to carry out their onerous task of dispensing justice. This has at times been abused. It is not uncommon for an errant judicial officer to shelter behind the iron veil of independence to escape accountability. There is a need to re-engineer these parameters and strike a functional balance between immunity, independence, impartiality and accountability of members of the bench.

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P. Ochieng Ochieng is a writer based in Nairobi, Kenya.

Politics

Is Democracy Dead or Has It Simply Been Hijacked?

10 min read. The rise of right-wing populist leaders in many countries across the globe suggests that democracy’s days are numbered. However, as PATRICK GATHARA argues, populism is less a cause of democracy’s demise than a consequence of it.

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Is Democracy Dead or Has It Simply Been Hijacked?
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“Anyone can cook,” declares Chef Auguste Gusteau in the 2007 Pixar classic, Ratatouille, one of my favourite animated movies. The film tells the tale of an anthropomorphic French rat with a passion for haute cuisine, who against all odds, makes it from foraging in the garbage to cooking at a high-end restaurant and being declared “nothing less than the finest chef in France”. It is an inspiring story with valuable lessons about bravery, determination and following one’s dreams. Yet it comes with a caveat, as explained by the funereal critic, Anton Ego, at the end of the movie: “Not everyone can become a great artist; but a great artist can come from anywhere.”

Across the world today, democratic societies appear to have taken Gusteau’s maxim but not necessarily with Ego’s qualification. In Kenya, the death of popular Kibra MP, Kenneth Okoth, has occasioned a by-election in which the ruling Jubilee Party has fronted a professional footballer who has spent much of the last decade in Europe and who, until a few weeks ago, had never even registered to vote or expressed any interest in politics.

“The world is going the Wanjiku way,” Mike Sonko, the populist Governor of Nairobi declared recently on the Sunday show, Punchline. “Take the example of the Ukraine. The President of Ukraine is currently is a comedian. They voted for a comedian. Because the Wanjikus were fed up with the leadership of that country. They were fed up with the politicians…Go to Liberia. They elected a footballer to be their president. Madagascar for the second time have elected a DJ, Rajolina, to be their president”.

He is not wrong. From Donald Trump in the United States to Bobi Wine in Uganda, there seems to be a growing dissatisfaction with and distrust of career politicians and the nebulous “establishment”. In Kenya, this manifests in a contest between the so-called “dynasties” (the wealthy families that have dominated the country’s politics for nearly 60 years) and the “hustlers” (the political upstarts who claim to not be a part of the establishment). It is evident in the “handshake” between President Uhuru Kenyatta and opposition leader Raila Odinga, sons of Kenya’s first President and Vice President, respectively, and their open feud with Deputy President William Ruto, the self-declared head of the “hustler nation”.

The idea that “anyone can rule” is taken by many to be a cardinal tenet of democracy. At its root is a legitimate rejection of the old idea that the ability to govern was only bestowed on some bloodlines, which today has largely been consigned to history’s trash heap.

Yet this democratisation of governance has created fears of its contamination by the unwashed and uneducated masses. A famous quote from the early twentieth century US journalist, Henry Mencken, encapsulates these fears: “As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart’s desire at last and the White House will be adorned by a downright moron.” The quote is taken from Mencken’s piece originally posted in the Baltimore Evening Sun in July 1920 in which he rails against the candidacies of Republican Warren Harding and his rival, James Cox, for the US presidency, which he saw as proof of the tendency of democratic competition to result in a race to the bottom.

The idea that “anyone can rule” is taken by many to be a cardinal tenet of democracy. At its root is a legitimate rejection of the old idea that the ability to govern was only bestowed on some bloodlines, which today has largely been consigned to history’s trash heap.

“The first and last aim of the politician,” he wrote, “is to get votes, and the safest of all ways to get votes is to appear to the plain man to be a plain man like himself, which is to say, to appear to him to be happily free from any heretical treason to the body of accepted platitudes – to be filled to the brim with the flabby, banal, childish notions that challenge no prejudice and lay no burden of examination upon the mind.”

Arguing that “this fear of ideas is a peculiarly democratic phenomenon,” he goes on to assert that as politicians increasingly pander to electorates, then “the man of vigorous mind and stout convictions is gradually shouldered out of public life” and the field is left to “intellectual jelly-fish and inner tubes” – those without convictions and those willing to hide them.

Populist idiocy

Many recognise the fulfilment of Menckel’s prophecy in Donald Trump’s presidency, though it is notable that it had been applied to Ronald Reagan and George W. Bush before him. However, it is clear that Mencken had a low opinion, not just of politicians, but of electorates as well. In fact, in his view, it is the ignorance and stupidity of the masses that, in a democracy, makes morons of politicians. And moronic politicians love ignorant voters as evidenced by Trump’s declaration during the 2016 presidential campaign: “I love the poorly educated.”

Menckel’s view is also echoed by a common maxim spuriously attributed to Winston Churchill: “The best argument against democracy is a five-minute conversation with the average voter.” So, is the slide into populist idiocy the inevitable fate of democracy? Can anyone cook? Or is Ego right that while good governance can come from anywhere, not everyone can be a great leader?

“Democracy is hard,” notes Kenyan academic and author, Nanjala Nyabola. It “requires constant vigilance—something that we now see is difficult to achieve even under the most ideal circumstances.” For most voters, this constant vigilance is a tough ask. In fact, for most, getting to grips with the issues and personalities is not worth the hassle.

As Ilya Somin, Professor of Law at George Mason University, puts it, “If your only reason to follow politics is to be a better voter, that turns out not to be much of a reason at all… there is very little chance that your vote will actually make a difference to the outcome of an election.”

And that’s not all. Even if one were inclined to be immersed in the policy debates and to investigate candidate platforms, the sheer size of modern government and the scale and impact of its activities means that one could not hope to monitor more than a tiny fraction of what the state gets up to.

Since voters are unwilling to get their hands dirty, they take short cuts, which often means relying on someone else to tell them what’s going on in the kitchen. For instance, when asked, during the 2005 and 2010 referendum campaigns on a proposed new constitution, whether they had read the drafts, a section of Kenyan voters were reported to have responded with “Baba amesoma” (Father has read it). Baba is a reference to Raila Odinga, perhaps the best known politician in the country and the voters, many of whom had little knowledge of constitutionalism, were opting to take their cue from him. Others chose to follow the musings of pundits and other self-appointed “experts” or journalists or even comedians. The problem here, as with following politicians, is you do not know whether what you are getting is the truth, the real truth and nothing but the truth.

However, that turns out to be less of a problem than one might at first suppose. Truth (shock, horror!) is not always the reason one follows politics – or politicians. Prof. Somin notes that political supporters tend to behave very much like sports fans – less interested in the merits of arguments or how well the game is played than in whether their side wins. This is perhaps best illustrated by the phenomenon of electorates voting against their own interests. For example, in the US, older voters tend to support the Republican Party, which takes a dim view of government entitlement programmes like Medicare and Social Security that primarily benefit the elderly.

Since voters are unwilling to get their hands dirty, they take short cuts, which often means relying on someone else to tell them what’s going on in the kitchen. For instance, when asked, during the 2005 and 2010 referendum campaigns on a proposed new constitution, whether they had read the drafts, a section of Kenyan voters were reported to have responded with “Baba amesoma”.

Even the few neutrals out there tend to talk only to like-minded others or follow the game through like-minded media. In either case, there is little scope for voters to have their views challenged or their horizons expanded. As the former British Prime Minister put it, “The single hardest thing for a practicing politician to understand is that most people, most of the time, don’t give politics a first thought all day long. Or if they do, it is with a sigh… before going back to worrying about the kids, the parents, the mortgage, the boss, their friends, their weight, their health, sex and rock ‘n’ roll.”

A civic ritual

If voters don’t care about politics, why do they even bother to vote? According to Prof Somin, “The key factor is that voting is a lot cheaper and less time-consuming than studying political issues. For many, it is rational to take the time to vote, but without learning much about the issues at stake.”

Voting has thus become a civic ritual, much like going to a football game and cheering your favourite team. It provides the satisfaction of participation – one can brandish a purple finger as a marker of having fulfilled one’s duty without actually doing the hard work of wrestling with the issues. Voters pick their teams based less on ideas than on arbitrary considerations, such as ethnicity or place of birth.

The media exacerbates this trend in two ways; both in the content of their reporting and in the manner they do so. By far, the mainstream press is the most important avenue through which people access and organise information about what is happening in the world. Despite the growth of the internet, which has enabled many more people to get in on the act, news is still largely what the media says it is, whether it is an earthquake or a war in some far-off place or the latest tweet by Donald Trump.

However, as Prof Cas Mudde of the School of Public and International Affairs at the University of Georgia writes, the media tends to report the news, rather than analyse and explain it. The addiction to scoops and “breaking news” and the competition to be first even when every outlet will have the story in the next few minutes and though social media means there is less attention paid to “trends behind the day-to-day news”. Further, in order to attract a larger audience and sell more advertising space or more newspapers, the media prioritises what is sensational over what is important and stays away from anything that cannot be reduced into a soundbite or squeezed into a two-minute news segment.

It also propagates and perpetuates false notions of “objectivity”, presenting itself as a reliable neutral observer rather than as an active participant. Yet through its curating and shaping functions, the media wields tremendous influence not only on how events unfold but also on how on they are perceived. Like a chef, the media takes events and fashions out of disparate events, to be served up to audiences in bite-sized chunks on its many channels.

Brought up on this fast news diet, Prof Somin says, voters come to “mistakenly believe that the world is a very simple place [requiring] very little knowledge to make an informed decision about politics”. And this leads to the embrace of simplistic panaceas for complex problems, and to a preference for populist politicians who deny complexity. If the world is so simple, then fixing it requires no specialised knowledge. Anybody can cook.

It is no wonder then that today there is a lot of angst about the state of democracy and fears that the ship of liberal democratic constitutionalism is floundering on the rocks of populism. The emergence of right wing populist governments and movements in countries as far removed as Brazil, Italy and the Philippines, and in Western countries once thought to hold the high ground for liberal democracy, such as the UK (which is steeped in a constitutional crisis over Brexit) and the US (where President Trump is facing an impeachment inquiry) has many thinking that democracy’s days are numbered.

William Galston has called populism an internal challenge to liberal democracy. Populists, he says, weaponise popular ignorance “to drive a wedge between democracy and liberalism”. Liberal norms, institutions and policies, they claim, weaken democracy and harm the people and thus should be set aside.

Brought up on this fast news diet, Prof Somin says, voters come to “mistakenly believe that the world is a very simple place [requiring] very little knowledge to make an informed decision about politics”. And this leads to the embrace of simplistic panaceas for complex problems, and to a preference for populist politicians who deny complexity.

Populism, though, is less a cause of democracy’s demise than it is a consequence of it. Democracy has been crumbling from within for a long time. Galston blames this on immigration which, he says, has not only upset the “tacit compact” between electorates and elites – where the former would defer to the latter as long as they delivered economic growth and prosperity – but has also profoundly challenged existing demographic and cultural norms, leaving many feeling dislocated in their own societies.

However, it is that compact that is at the root of the crisis, transforming as it does the understanding of democracy from a system where people participate in governance to one where they elect others to govern them. Further, the gnashing of teeth over historic decline in voter turnout blinds many to the fact that, like populism, it is also a symptom and not the problem.

As Phil Parvin notes in his paper, Democracy Without Participation, the decline in political engagement and deliberation by ordinary citizens and the eclipse of broad-based citizen associations by professional lobby groups have resulted in a model of democracy where “politics … is something done by other people on behalf of citizens rather than by citizens themselves”.

In Africa, the “wind of change” that toppled many dictatorships in the 1990s and early 2000s did not result in the empowerment of local populations to do anything other than participate in the ritual of periodic elections. Participation in governance in the periods in between elections is actively discouraged. Those who are dissatisfied with government policies are routinely told to shut up and await the opportunity to do something about it at the next election.

This model of democracy as reality show, where elites compete on who gets a turn at the trough (with the media providing a running commentary and the public choosing the winner) is at the root of the malaise. The professionalisation of democratic participation – outsourcing it to politicians and activists – leads to an increasing polarisation and tribalisation, with everyone claiming to be the authentic voice of the silent and silenced population. Alienation, as political debate focuses on the problems of elites rather than those of the people, becomes inevitable.

It is into this void that the populists have stepped, claiming to do away with the edifice of “the establishment” when in fact, they are seeking to entrench elite rule by doing away with even the appearance of popular consultation. This is what they mean when they evoke the idea of a “strong leader” – one who is not bound by the charade of democratic politics and can thus instinctively channel a pure form of the people’s will. But, as the Mayor of London, Sadiq Khan, says, this is to ignore the lessons of history. Strongmen, as Africans know from bitter experience, tend to reflect, not the aspirations of their people, but their own.

In Africa, the “wind of change” that toppled many dictatorships in the 1990s and early 2000s did not result in the empowerment of local populations to do anything other than participate in the ritual of periodic elections.

The solution may be to do away with elections altogether as a means for selecting decision-makers. In any case, what is required is not less popular participation, but more. We can no longer afford to continue to treat governance as something voters get to participate in once every election cycle, to pretend that democracy is a fire-and-forget proposition. Constant vigilance requires citizens at all levels willing to get their hands dirty, learn about issues, debate openly and engage with representatives – citizens who collectively insist on being heard and who demand accountability from those in power, not simply wait for someone else to do it on their behalf.

Paradoxically, the internet has dramatically lowered the costs of participation and it has never been easier for people to access information, to express opinions, to participate in petitions and to organise outside the parameters set by the elite or by the state. The question for societies with democratic aspirations should be how to make the voices and concerns of ordinary folks, rather than just their votes, count and not be drowned out by the din of elite politics. How do we truly get to the public interested in the ideal of “government of the people, by the people, for the people”?

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How Corruption and Greed Are Destroying Africa’s Forests

8 min read. Africa is losing its forests at an alarming rate, yet the very forces that claim to be protecting them are responsible for their destruction.

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When elephants fight, it’s the grass that suffers.”

As the trade war between the world’s superpowers continues, the global South is the one getting the short end of the stick. The economy of most African countries depends on massive exportation of raw materials, usually controlled by large foreign companies. The exploitation of the local resources, such as wood, never seems to stop, even if massive deforestation in countries such as Kenya, Uganda, and Ethiopia is bound to have catastrophic economic and environmental consequences.

Who are the main (local and foreign) players behind the progressive loss of forested areas in East and South Africa? What are the causes and, more importantly, the effects of this apparently unstoppable exploitation of land on local economies and climate change? How much is corruption responsible for this devastation? Are there any virtuous players trying to staunch this wound, or is it just the usual Western hypocrisy that preys on the unavoidable dependence on “development aid”?

Land grabs and exploitation

The Western world’s hunger for African resources, including land, has only grown more intense due tp the increased demand for carbon and biofuels. The whole continent becomes more dependent on overseas trade day after day. Internal trade between African countries is extremely weak, and most of these countries are large importers of pricey finished goods and services provided by other global partners. Most African countries are exporters of raw materials that generate profit margins that are quite small on their own and are made even smaller by the fact that most of the lands where these goods are produced rest in the hands of large transnational companies.

In many countries, such as Ethiopia, the laws that regulate land leases have been extremely generous to foreign investors. The land is leased for negligible rents, especially in remote and sparsely populated areas, and the approval process for investment proposals is superficial at best. In exchange for an alleged economic return that in many cases never follows, national governments exempted foreign companies from repatriated profits on taxes and taxes on imports of capital goods. All these land grabs are notoriously unjust to the original inhabitants of these lands – usually small farmers and pastoralists who, in some cases, have even forcefully been evicted with the help of the army.

The largest African and global development institutions, such as the Alliance for a Green Revolution in Africa (AGRA) and the World Bank, always sold this process as a much-needed transformation to help the growth of less developed countries. The idea of shifting toward large-scale commercial exploitation of lands and resources has been presented as the perfect recipe to overcome the stagnation of African economies; a transformation that would bring progress, modernity, and riches to all the impoverished lands and populations of the global South. Now the whole continent has been integrated into the global trade system with a relationship of complete unilateral dependence, chained to the volatile prices of commodities, enslaved by continuous “development aid”, and bent under the weight of totally asymmetrical agreements.

The effects of foreign liberalism

The free market didn’t help low-income to countries flourish; the only economic effect was purely cosmetic in nature. The shift towards large-scale commercial exploitation of lands came with promises of better employment opportunities, improvement of existing infrastructure, new opportunities for development, knowledge transfer, and professional specialisation. We saw this happen elsewhere as well, such as in Central America – all these promises eventually turned out to be empty, and only resulted in more poverty, hunger, and unfair exploitation.

In a continent where the vast majority of the population depends on agriculture for a living, uncontrolled liberalisation is nothing but a recipe for disaster. Even the most developed nations of the West know the limits of free markets very well and keep sustaining their own farmers with generous subsidies.

In many countries, such as Ethiopia, the laws that regulate land leases have been extremely generous to foreign investors. The land is leased for negligible rents, especially in remote and sparsely populated areas, and the approval process for investment proposals is superficial at best.

For example, Ethiopia’s annual GDP growth rate kept increasing by nearly 9% between 2004 and 2014, but very few Ethiopians enjoyed the benefits of this growth. Nearly 80% of the population is still composed of farmers and pastoralists whose livelihoods are even more precarious than before after their land was impoverished – their income still incredibly low, at $0.14 per day in some areas. The rural population has been marginalised even further, and local labour is often hired only on a seasonal basis, leaving very little opportunities for the professional and economic growth of all these vulnerable households. Knowledge is kept in the hands of the Western professionals, and their investments on ameliorating the infrastructure are too minuscule to represent a valid trade-off.

This non-inclusive model largely depends on the constant flow of capital, which necessarily come from foreign investors, creating an unbreakable cycle of dependency. Technology-based land exploitation has caused the environment to be degraded, and has substituted traditional sustainable and labour-intensive agriculture with intensive use of fossil fuels, pesticides, and widespread deforestation. The loss of biodiversity of large-scale monocultures and the destruction of large forested areas weakened the ecosystems against unexpected weather changes and other natural disasters.

Deforestation and greed

The constant demand for crop and grazing land, as well as wood for fuel and construction, have a tremendous impact on soil conservation and weather management. Deforestation, in particular, is one of those problems that, if left unchecked, may cause a planetary disaster.

Africa’s tropical rainforests include the Guinean forests of West Africa and the Congo Basin, which comprise the second-largest forest cover in the world. However, according to Professor Abraham Baffoe, Africa regional director at Proforest, this immense “world’s set of lungs” is rapidly disappearing. At the beginning of the 20th century, Ethiopia’s forest coverage reached almost 40%. Year after year, almost 200,000 hectares of forest were lost; by 1987 it was reduced to just 5.5%, and in 2003 it had gone down to a mere 0.2%. According to Innovation for Poverty Action (IPA), between 2000 and 2010, Uganda lost forests at a rate of 2.6% every year. Over the last century, West Africa has lost almost 90% of forest coverage.

Losing forests has devastating effects on the indigenous population, the local ecosystem, and the global environment as well. Forests are critical to lowering carbon dioxide levels in the atmosphere, to stabilising the weather, and preventing soil erosion. Among the highest causes of carbon emissions from human activity, deforestation is the second after burning fossil fuels, accounting for approximately 20% of world greenhouse gas emissions.

Soil erosion alone may cause the drying of lakes, such as in the case of the three lakes in the Rift Valley that recently dried up. As the soil is massively washed into the lake, the water is pushed up to a larger surface and rapidly evaporates. Without water, droughts ensue, causing famine, starvation, and poverty.

An estimated 100 million African people rely on forests for support and finding freshwater, food, shelter, and clothing. Forests support biodiversity as well, and many plants and animals only exist in these regions. Without forests, many animal species, such as chimpanzees, are endangered since they can’t survive without their habitat, and entire towns are at risk of rainforest flooding.

Africa’s tropical rainforests include the Guinean forests of West Africa and the Congo Basin, which comprise the second-largest forest cover in the world. However, according to Professor Abraham Baffoe, Africa regional director at Proforest, this immense “world’s set of lungs” is rapidly disappearing.

But the ecological devastation caused by the alleged modernisation of agriculture is not the sole reason behind the massive deforestation occurring in Africa. African forests store 171 gigatons of carbon, and there is a wide range of different interests swarming around them. Everybody wants to put their hands on this gigantic loot, no matter the consequences for the local populations or climate change.

The frequent conflicts that ravage the continent take their toll on forests as well. For example, after the South Sudan crisis in December 2013, nearly one million refugees, mostly women and children, have sought shelter in nearby Ethiopia and Uganda. Once there, they started chopping wood to build their encampments and to fuel their stoves. This had a significant impact on local forests, according to experts.

The impact of corruption on deforestation

Corruption has a tremendous impact on global deforestation. With 13 million hectares lost each year, the Food and Agricultural Organisation (FAO) has identified the illegal timber trade as one of the principal causes of forest loss. The estimated value of illegal forest activities accounts for more than 10% of the value of worldwide trade in wood products. And corruption in the forest sector may increase the cost of forestry activities by about 20%.

Most countries in Central and Western Africa that are particularly rich in forests and other resources score particularly low on the Corruption Perceptions Index (CPI), a global index of public sector corruption established by Transparency International. Without a transparent and democratic administration whose framework is built on solid ethical principles, the land rights of local communities and marginalised groups are constantly violated. In sub-Saharan Africa, one citizen in two had to pay a bribe to obtain a land service, such as registering land for his household.

The forest sector is especially vulnerable to grand and petty corruption activities because of the non-standardised but high-priced timber products and low visibility. Government officials often collude with powerful European, American, or Asian companies since they offer forest as a highly valuable commodity in exchange for power and money.

Many indigenous populations have no access to information and justice, cannot claim their rights, and have no chance but to bend the knee when land grabbing laws are enforced by corrupt governments. Foreign companies know how easy it is to violate national regulations and often do so with total impunity knowing that punishment would probably be very light. Funds generated from the profit of the forests are usually embezzled or siphoned out of the continent to be laundered through complex schemes of multi-layered shell offshore businesses. Money that could be invested in social services, jobs, and better infrastructure ends up being devoured by greedy officials, money-hungry corporations, and shady smugglers.

Reforestation and other plans to restore Africa’s forests

Luckily, not all is as bad as it seems. Ethiopia has just started a restoration process that includes a reforestation programme that should replace 22 million hectares of forests and degraded lands by 2030. Even better, in 2018, the government finally revised the National Forest Law to provide better recognition to the rights of local communities and acknowledge their importance in managing lands and crops. The new law also includes much more severe penalties for those who endanger forest ecosystems or who extend farming into natural forests.

Corruption has a tremendous impact on global deforestation. With 13 million hectares lost each year, the Food and Agricultural Organisation (FAO) has identified the illegal timber trade as one of the principal causes of forest loss.

In Uganda, Project Kibale focuses on restoring the Kibale forest and has managed to restore 6,700 hectares of forest so far. On lands owned by subsistence farmers, the Community Reforestation project coordinates hundreds of small community-based tree planting, education, and training initiatives. Similar projects are in operation in Kenya as well, such as Carbon Footprint, B’n’Tree, WeForest, and the Green Initiative Challenge.

Although certainly commendable, many of these reforestation efforts simply seem to be a Band-Aid on a gaping wound. The core problems – corruption, grossly uneven distribution of power among players, and poorly-designed regulations – are not addressed at all. The handful of trees that get planted only help these parasites to get more wood to harvest in due time.

It can also be argued that many of these brave steps toward sustainability are nothing but green rhetoric spin for Western audiences. Wilmar’s hypocrisy, for example, was exposed back in 2015. The multinational of palm oil had abused human rights in Indonesia for years, expropriated lands with no qualms, polluted the environment, and destroyed crops and forest in large areas. After being named by Newsweek as “the world’s least environmentally-friendly company” in December 2013, the palm oil giant adopted a “no deforestation, no peat, and no exploitation policy” and became a champion of environmentalism. However, this was just window-dressing that was rapidly unmasked in subsequent years by NGOs in Uganda, Nigeria, and Liberia. The icing on the cake? In previous years, Wilmar was financed by none other than the United Nations International Fund for Agricultural Development (IFAD).

Conclusion

When the rules are made by those who dominate the markets, globalisation becomes a source of profound inequalities. The blatant asymmetry in bargaining power between the global superpowers and the global South has all but abolished the few safety nets that national laws could provide. All the regions that are rich in resources and commodities are quickly transformed into no man’s lands where the indigenous populations become unwanted guests to be displaced. Entire ecosystems are ravaged and exploited, no matter the consequences. And when newer, fairer rules are established by a more ethical administration, they are rapidly dismantled by leveraging corruption and bribes.

The word “development” has been mentioned so many times that it is now empty and meaningless. Nonetheless, the only way to shift toward a more sustainable economic system is to focus on the real development of African countries. Reforestation is just palliative therapy that is trying to heal some of the wounds of an already terminally ill patient. Africa can flourish only through a more radical approach that allows Africans to grow, develop, and fully exploit the immense value of their enormous resources instead of leaving them in the hands of foreigners and global corporations.

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The Persistence of Small Farms and the Legacy of the Monoculture Mindset in Kenya

12 min read. PAUL GOLDSMITH explores the evolution of agriculture policies in Kenya that failed to recognise the importance of smallholder farming, which has proved to be more resilient than large-scale agriculture projects.

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The Persistence of Small Farms and the Legacy of the Monoculture Mindset in Kenya
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I once drove up the eastern side of Mt Kenya with a manager working in the California horticulture industry. We passed through the Mwea irrigation scheme’s mosaic of rice plots and the smallholder coffee zone in Embu. After crossing the Thuchi River, we transited through the mix of tea farms, coffee plots, and patches of small fields of maize, pulses, and bananas framed by the heavy tree cover blanketing the hills and valleys. The Meru lowlands stretched out to the east, the miraa-dotted slopes of the Nyambene Hills loomed close as we approached Meru town. In the space of three hours we had transected one of the region’s most agriculturally variegated and productive landscapes.

Two days later we drove across the northern saddle of the mountain, leaving the smallholdings created by late colonial-era settlement schemes before cruising past the wheat fields of Kisima and Marania farms and their neighbours. The road carried us past the uniform blocks of horticulture farms and greenhouses stretching across the high plains of the mountain’s northwestern quadrant en route to Nanyuki. Over a plank of some insanely delicious beef at one of the town’s famous local nyama choma joints, my guest tells me she was impressed by the kick-ass agriculture she saw during our trip.

I remarked that we had crossed an area that produces the world’s best tea, some of the planet’s premier Arabica coffee, and the country’s most sought-after potatoes, French beans and other vegetables that grace European tables. I also informed her that we had skirted the range hosting Africa’s most sophisticated agroforestry system, home to the Horn region’s most prized Catha edulis.

“That’s interesting,” she said, clarifying that she was referring to “the area of proper farms we passed through this morning”.

Kenya’s agriculture generates approximately 24 per cent of the country’s GDP, 75 per cent of its industrial raw materials and 60 per cent of the country’s export earnings. Approximately 26 per cent of the earnings are indirectly linked to the sector through linkages to agro-based manufacturing, transport, and trade.

The sector is a major employer, with an estimated 3.8 million Kenyans directly employed in farming, livestock production and fishing, while another 4.5 million engaged in off-farm informal sector activities. Agriculture remains a key economic sector with significant unexploited potential for adding value through post-harvest processing.

The relationship between large-scale and small-scale producers in Kenya continues to evolve. Smallholder farmers generate the larger portion of overall agricultural value; large farms are still critical contributors to domestic food security and export production while pioneering new technologies and marketing arrangements.

Kenya’s agriculture generates approximately 24 per cent of the country’s GDP, 75 per cent of its industrial raw materials and 60 per cent of the country’s export earnings.

The economists and policy-setting bureaucrats at the World Bank and other important financial institutions, however, now question the small farm sector’s capacity to satisfy Africa’s future needs. The experts have tacitly supported the controversial trend of external investors’ acquisition of the continent’s underexploited land to develop capital-intensive plantations and ranches. Agricultural progress means big fields, straight lines, greenhouses, and large grids of sprinklers, as the comments of the manager reaffirmed.

The rise of monoculture

Assumptions about the superiority of large-scale agriculture have remained unchallenged since the migration of Europeans to the Americas, Asia, and Africa. They came, saw, conquered, and converted the wide open spaces they found into plantations producing sugar, cotton, rubber, tobacco, soybeans, and a long list of other crops for export to the industrial world.

When European diseases decimated the indigenous inhabitants in the New World, the planters plundered Africa to replace them. Steam powered the Industrial Revolution; colonial plantations and mines provided the raw materials. The textile mills of Lancashire generated the profits financing Great Britain’s global empire, and America’s South supplied the cotton.

Large-scale agriculture’s global hegemony grew out of military firepower, capital, technology and ruthless exploitation of labour, not superior crop and animal husbandry. The reign of King Cotton, for example, relied on increasing quantities of land and imports of African labour to compensate for rapid soil fertility decline. Southern land owners were poor farmers who added little value to the development of their agriculture beyond the use of the whip and the noose.

Class dynamics also contributed to the rise of the large commercial farm. The working conditions of the working-class adults and children working the looms was only marginally better than that of the slaves producing the fibre. Growing numbers of the freehold farmers in Europe who were driven off their land avoided this fate by crossing the Atlantic Ocean, attracted by the US government’s recruitment campaigns offering access to land. The industry of the displaced farmers powered the nation’s westward expansion. The American Civil War decided the contest over which system – freehold or plantation – would dominate in the virgin lands beyond the Mississippi River.

Large-scale agriculture’s global hegemony grew out of military firepower, capital, technology and ruthless exploitation of labour, not superior crop and animal husbandry.

The outcome was the same. Within several decades, the massive herds of bison were decimated and the indigenous inhabitants reduced to paupers on reservations. Science and technology came into play. The impressive advances generated by agronomic research and mechanisation extended the ascendency of commercial farms and plantations into the modern era. Economies of scale enabled by railways and the steamship extended the dominance of single commodity farming systems across the world.

Relegation of pre-industrial agricultural populations to the status of pre-scientific peasants preceded the imperial occupation of Africa. The Europeans established their plantations and large farms across the continent’s savanna and highlands. Like the colonialists before them, both capitalist and socialist governments’ rural policies were predicated on the need to introduce modern scientific agriculture. The choice was as basic as the difference between a tractor and a short handle hoe.

The Kenya conundrum

A matrix of physical, climatic, spatial, and social factors complicated the installation of large-scale agriculture production in Africa. Agriculture played a singular role in the development of the modern Kenyan economy, but commercial agriculture and ranching developed by European settlers are only partially responsible for the sector’s progress.

Free land and inexpensive labour facilitated the establishment of commercial farms during the early decades of colonial rule. Drought, locust invasions and crop losses to pests and wild animals, and to vector-borne diseases posed a serious challenge. The effects of the latter were minimised by quarantining the locals in native reserves and demarcating the band of ranches that ring-fenced the so-called White Highlands. Not all the white settlers survived; some left to start over in colonies to the south, but those who stayed on prospered with the assistance of the colonial state.

After World War I the government offered land concessions to war veterans boosting the population of approximately 6,000 white settlers in 1917 to 20,000 in 1936. This abetted the diversification of the new estate sector, which came to encompass coffee, tea, cattle, sisal, cotton, wattle, and other export commodities that sustained the colony’s finances. Expansion raised the demand for African labour while fueling frictions over land between settlers and their African neighbours. It also made managing settlement considerably more difficult for the government and civil servants in the countryside.

Indigenous producers evolved intricate mechanisms of adaptation and risk management to shifting environmental conditions and chronic climatic instability. The over 100,000 African squatters on European farms by 1947 demonstrated their resilience in new circumstances. Despite the restrictions they faced, they out-performed the owners in many ways. The surplus reinvested in livestock led to competition for pasture on the estates, and this prompted restrictions limiting the size of cultivated plots and the number of livestock the Africans were allowed to keep. The number of days of labour owed to the estates also increased over time, doubling from 90 to 180 days a year.

Dependence on native labour in effect led to the parallel development of two distinct large-scale and small-scale systems on the same landholdings at the same time. The contradictions inherent in this situation, combined with the political threat of the Mau Mau, forced a rethink that led to the Swinnerton Act in 1954, which opened the way for the production of export crops in the African reserves.

The sectoral duality generated by these developments has vexed Kenya’s agriculture policy ever since. Kenya gained independence committed to preserving the economic stability provided by the estate sector while satisfying the political expectations of its citizens. The latter translated into the transfer of settler lands under the Million Acre Scheme, support for the cooperative movement, and the deployment of small farmer extension services.

The structural inequalities symbolised by the contrast between the landed elite and the masses nevertheless fueled strident opposition to the Jomo Kenyatta government. Kenya’s status as an island of stability in a turbulent region encouraged international support for the development of schemes and projects mirroring a succession of theories and economic models debated by academics and institutional experts.

One critic of international development accurately described these interventions as policy experiments. Some worked and many did not. The funding flowed despite the repeated failures epitomised by the large agricultural projects dating back to the doomed Tanzania Groundnut Scheme. Attempts to rectify flaws in the Bura Irrigation Scheme, the world’s most expensive at the time, proved futile when the Tana River changed course.

How do we explain the failure to acknowledge the results of such “experiments”?

In a 1988 article, Goren Hyden attributed the syndrome to Africa’s monoculture legacy, which he defined as “mono-cropping in agriculture, single fixes in technology, monopoly in the institutional arena, and uniformity in values and behavior.” The rise of hegemonic economic monocultures, he went on to observe, are usually preceded by a period of competition and experimentation.

No such selectionary forces informed the large-scale solutions designed to alleviate Africa’s agriculture malaise. The continent’s initial conditions were different. The unique regional political economies of the precolonial era did not count. The formal protocols governing exchange among diverse communities were obsolete. The need to differentiate between size and scale did not apply.

Small as the new big

Africa’s lost decade highlighted the neglect of small-scale farmers. In an article in the same edited volume featuring Hyden’s monoculture legacy thesis, Christopher Delgado noted, “It is unlikely that more than 5 five cent of current African food production comes from large farms. A 3 per cent growth of productivity of smallholders would be equivalent to a 60 per cent growth of productivity on large farms.”

This point segued into the large body of empirical evidence marshalled in support of a new policy focus on the smallholder sector. But there was a problem, as he and other pro-smallholder analysts recognised: The high variability in conditions and circumstances within and across African countries complicated cost-effective delivery of the services, inputs, incentives, and infrastructure need for the interventions to pay for themselves.

One critic of international development accurately described these interventions as policy experiments. Some worked and many did not. The funding flowed despite the repeated failures epitomised by the large agricultural projects dating back to the doomed Tanzania Groundnut Scheme.

Asia’s breakthrough was an outgrowth of substantial international research supported by national research centres into two basic commodities. The same approach has not worked in Africa because technical enhancements need to contend with multiple crops systems, variations in soils, spatial differentials complicating access to water, markets, and service, local pests and diseases, transport and communications infrastructure, and political variables linked to ethnic constituencies, to name a few of the factors determining the productivity of small farmers.

Research attesting to the more efficient per capita and land unit output of small farms also indicated that there was still considerable scope for raising household incomes by enhancing the productivity of labour. The Kenyan government’s support for small-scale dairies, tea production, and the efficacy of extension services furnished proof. Like the case of colonial squatters before them, smallholder producers began outperforming the large farms and plantations.

Kenya and its bimodal policy frame was often cited as a success story at the time, but was this because government policy focused on concentrating the limited resources available in relatively fertile areas? The failure to replicate these successes further down the ecological gradient invoked a more complicated set of variables.

Other state-supported initiatives, such as smallholder cotton, floundered, and even a tested policy like fertilizer subsidies proved difficult to implement because the cost of delivering the input to small farm households often ended up cancelling out the benefits, especially during years when low rainfall or other external factors reduced output.

During the early 1980s Kenya’s agricultural sector reached the zenith of its development under state control. A matrix of factors, including lower prices and higher market uncertainty, declining civil service terms of pay, gradual closure of the agricultural land frontier, and the highest demographic growth rate in recorded history explain subsequent developments.

Institutional entropy set in. The food security problem became a full-blown national crisis around the same time as government mismanagement of strategic maize reserves exacerbated the impact of the 1984 famine. The food catastrophe marked a turning point, concretising the case for the structural adjustment policies that came into effect during the following years.

The donor-mandated policies included foreign trade liberalisation, civil service reforms, privatisation of parastatals, and liberalisation of pricing and marketing systems, which later involved relaxing control of government agricultural produce marketing and reforming cooperatives.

Increases in quality and efficiency tend to translate into lower commodity prices over time, and the same appeared to hold for institutional reforms. In any event, the policies designed to increase efficiency and decrease state involvement in the economy did not reverse the decline in agricultural production. Declining prices for traditional agricultural commodities and Africa’s terms of trade in general was seen as emblematic of a larger malaise stemming from poor governance and economic mismanagement in Kenya and other African countries.

Although most Kenyans blamed the Daniel arap Moi government, the less than creative destruction wrought by the penetration of capital and primitive accumulation by state-based actors was the real culprit responsible for the economic carnage that followed in its wake. The outcome was “a quasi-stagnant society” qualifying the observation Thomas Picketty offered in his 2014 book, Capital in the Twenty First Century: “wealth accumulated in the past will inevitably acquire disproportionate influence”.

In Kenya, the consequences included the revolt of smallholder coffee farmers in Nyeri, the burning of sugarcane fields in western Kenya, the collapse of cooperatives, an increase of subsistence production on small farms, the commercialisation of livestock raiding in the rangelands, and the rise of cartels that seized control of export commodities and local produce markets.

The situation in Kenya was symptomatic of the forces that eroded the impact of the pro-small-scale agriculture policy framework that had gained traction during the same period.

The release phase and agrarian transition

Subsequent developments in rural Kenya invite us to revisit Picketty’s choice of words in the observation cited above: the reference to “quasi-stagnant” is indicative of a larger dynamic. From an ecosystems perspective, the turbulence arising across Kenya’s agricultural sector and the hollowing-out of state institutions corresponds to the release phase in ecological cycles.

The role of forest fires that remove old growth, allowing regrowth and revival of species suppressed by the canopy of large trees, is the standard example used to illustrate the release function. In the context of human societies and other complex systems, it refers to transitional episodes in “an adaptive cycle that alternates between long periods of aggregation and transformation of resources and shorter periods that create opportunities for innovation.”

For present purposes we can equate Picketty’s quasi-stagnation with the onset of a transitional phase of reorganisation leading to renewal. Support for importation of large-scale capital-intensive agriculture to meet Africa’s future needs, in contrast, correlates with the old school ecological succession model. The degradation of rangelands resulting in the replacement of overgrazed grass and shrubs by less nutritious invasive species is a common example.

The African land grab by foreign investors now taking place in many sub-Saharan countries is in effect a case of replacement substituting for the adaptive processes underpinning indigenous African production systems. The government’s willingness to allocate large tracts of Tana Delta land as an incentive for foreign government investment in the LAPSSET mega-project is an example of this replacement strategy in Kenya.

I was part of a team that undertook a three-year study of commercial agricultural models in Ghana, Kenya, and Zambia. Initially motivated by the problem of large-scale agribusiness investments, the research design focused on three models: large commercial farms, plantations, and contract farming. The team’s general conclusion underscored the emergence of large- and medium-size commercial farms in the three countries.

Although most Kenyans blamed the Daniel arap Moi government, the less than creative destruction wrought by the penetration of capital and primitive accumulation by state-based actors was the real culprit responsible for the economic carnage that followed in its wake. The outcome was “a quasi-stagnant society”…

My personal take was slightly different, and although they may be particular to our Kenya research, two issues warrant mention. The first is the resilience of smallholder households in our surveys and life histories.

Without getting into the intricacies of the data, several factors support this. The time series data showed improved food security for most of the households sampled, and a corresponding decline in conflict over land: only one respondent complained about the ownership of the large farms and plantations in the area.

While the poorer families were hard-pressed to make ends meet, the diversification of income generation strategies indicate that even a small half-acre plot defrays the cost of food purchases while providing a base for participating in the rural economy.

High levels of mobility within the region and a general trend of reversed urban migration add further support to this point. For example, urban unemployment rates of 19.9 per cent for 2009 and 11.0 for 2014 per cent were about double of rural rates.

The process of consolidation underpinning the large farm formation across agro-ecological zones is underway, but it is slowed by the reluctance to sell land and a correspondingly high incidence of leasing land. This is also true for large holdings outside our Mt. Kenya research area, such as the Rift Valley, where owners are holding on by leasing out parcels to smallholders. The successful estates and horticultural firms have developed mutually beneficial links with their smallholder neighbours. This is based on outsourcing production, the sharing of technological innovations from the production of certified seed potatoes to electronic wallets facilitating rapid and verifiable payments to contract farmers, and multi-stakeholder participation in the management and conservation of water sources.

While the poorer families were hard pressed to make ends meet, the diversification of income generation strategies indicate that even a small half-acre plot defrays the cost of food purchases while providing a base for participating in the rural economy.

Our sample divided the household into two categories: those involved with the large commercial farms and those who remained independent. The scores for involved households were significantly higher for crop yields, fertilizer use, income, and most other variables. All of these observations attest to the synergies generated by the large-scale small-scale symbiosis that began to emerge during the final years of the colonial era.

This brings us to the second point – the enduring influence of the monoculture mindset. It resurfaces in the World Bank’s categorisation of both large and small organisational units’ contribution to the continent’s socio-economic transformation. Dualities deceive; learning by trial era works.

The elephantine LAPPSET project, the hallucinatory Galana-Kulala scheme, the government’s Big Four agenda, all suggest that the Chinese version is more of the same.

 

Written and published with the support of the Route to Food Initiative (RTFI) (www.routetofood.org). Views expressed in the article are not necessarily those of the RTFI.

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