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

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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

What Ails the Cashew Nut Sector in Kenya?

The lack of a focused policy since the 1990s has pushed the cashew nut sector into perennial decline. The sector’s disintegration started when the state-owned Kenya Cashewnut factory ollapsed in 1997 – a time when the political environment was not inclined to rescue a sector that had been a lifeline for thousands of Kenya’s coastal residents.

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What Ails the Cashew Nut Sector in Kenya?
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Lake Kenyatta Cooperative Society (LKCS) in Mpeketoni in Lamu – perhaps the only remaining cooperative society in Kenya’s coast region formed by cashew nut farmers in the 1970s – once collected 9,000 metrics tonnes of cashew nuts from its members during the sector’s heydays in the 1980s. Currently, despite boasting a membership that has stretched to over 6,000, the cooperative does not expect to collect anything beyond 300 tonnes this year. This is the volume it managed to collect in the last calendar year.

From a peak harvest of over a total of 36,000 tonnes in the late 1970s, when the cashew nut sector was at its highest peak, the sector is today struggling to even produce 11,000 tonnes.

Cashew nut farming and processing was once a thriving undertaking in Kenya. After nationalising the economy shortly after independence, the government of Jomo Kenyatta took full control of the cashew nut sector, which was dominated by Mitchell Cotts, a shipping giant. In 1975, the government formed Kenya Cashewnut Limited (KCL) and established a large-scale processing factory in Kilifi, with a capacity to process 15,000 metric tonnes of cashew nuts per year.

The National Cereals and Produce Board (NCPB), one of the shareholders of the newly created KCL, was granted legal monopoly to buy all the cashew nuts from farmers. Other shareholders of KCL were the Industrial and Commercial Development Corporation (ICDC), the Industrial and Development Bank (IDB) and the Kilifi District Cooperative Union (KDCU).

Farmers were organised into many cooperatives across the coast – big ones such as LKCS and KDCU and also small ones. To be able to pay farmers in time for cashew nuts collected, KCL pre-financed NCPB. The factory would determine its raw material requirements and the excess would be exported in shell to India. Essentially, the factory guaranteed a stable farm gate price and provided a predictable and reliable market.

In post-independence Kenya, market stability saw the sector expand production from about 5,000 tonnes in 1965 to over 36,000 tonnes in the late 1970s and early 1980s. In 1982, KCL made a net profit of Sh26 million (US$325,000), up from Sh3 million (US$37,500) in 1975 – nearly a ten-fold increase in just seven years.

At its peak, the KCL cashew nut factory employed over 4,000 people. During this period, coastal residents were able to send their children to good schools, raise their incomes, and develop local micro-economies.

Dwindling fortunes

Those heydays didn’t last for long though. In the 1980s, President Daniel arap Moi and his cronies started engaging in rent-seeking from parastatals in order to sustain a regime that was under threat.

By 1989, KCL got caught up in governance and financial challenges, and in February 1990, it rendered a large chunk of its employees jobless. At the same time, powdery mildew disease (PMD), which had not been witnessed before, hit crop yields and production. The resultant dwindling economic fortunes of KCL meant that it could not provide extension services to the cashew nut farmers, which spelt doom for the sector.

In post-independence Kenya, market stability saw the sector expand production from about 5,000 tonnes in 1965 to over 36,000 tonnes in the late 1970s and early 1980s. In 1982, KCL made a profit of Sh26 million (US$325,000), up from Sh3 million (US$37,500) in 1975 – nearly a ten-fold increase in just seven years.

When the disastrous 1990s’ World Bank-led Structural Adjustment Programmes (SAPs) hit the country, they found an already struggling cashew nut sector. By November 1992, the Parastatal Reform Programme Committee (PRPC) recommended the sale of 65 per cent of the shares the government held in KCL through NCPB, ICDC and IDB.

The PRPC recommended that Kilifi District Cooperative Union (KDCU), the owner of the remaining 35 per cent of the shares, be granted pre-emptive rights to buy the 65 per cent government shares. A parliamentary committee would later discover that partly due to the high cost involved in buying these shares, the three main directors of the KDCU had decided to strike a deal with some of President Moi’s closest business friends.

A Ministry of Agriculture report in 2009 noted that with a value of Sh141.2 per share, the 65 per cent share of the government was valued at Sh78 million (US$1.34 million). Debts acquired by the KCL in previous years that were owed to NCPB, ICDC, the Treasury, and the Italian government amounted to over Sh118 million (US$2.03 million). The company also owed Sh33 million (US$0.56 million) in redundancy payments to former employees. In total, the KDCU would have had to invest roughly US$4 million to finance the acquisition of the company – money it did not have. This is how private money was used to buy government shares in KCL.

In 2000, the Public Investments Committee (PIC) recommended that the factory be handed back to the farmers. The same year, a subsequent cashew nut report tabled in Parliament by PIC noted that the factory’s shares were illegally acquired by Moi’s cronies, including the president’s personal secretary, Joshua Kulei, who was accused of having defrauded the farmers.

A Ministry of Agriculture report in 2009 noted that the actual majority shareholders had the KDCU appoint themselves as the management agents of the factory, which was renamed Kilifi Cashew Nut Factory Limited (KCFL), and which was under the management of P.K. Shah, who took complete de facto control of the day-to-day business of the factory.

In 1996, the KDCU received a loan of Sh2 million (US$ 35,000) from its main owner, Kenya Plantations and Products Limited, to purchase raw cashew nuts (RCN) – which it secured with its 23 per cent shares, valued at a much higher Sh28.07 million in 1992 – as collateral for the loan. When it failed to pay back the loan, these shares were transferred to private investors.

Eventually, in 1997, KCL collapsed under its financial and operational burden. Unable to service an outstanding loan of about Sh95 million, Barclays Bank placed the factory under KPMG- managed receivership in 2000, and on 8 May 2002 sold all its assets, including the plant and machinery, to Millennium Management Limited (MML) for Sh58 million (US$ 0.97)

In just a few years, the marketing monopoly that the NCPB enjoyed and the logistical machinery it had put in place to procure cashews came a cropper. The board completely withdrew from marketing cashew nuts. This decision led to the disappearance of key functions, such as financing cooperatives and reliably supplying KCL with affordable raw cashew nuts.

The lack of a focused policy in the last three decades has pushed the cashew nut sector into a perennial multi-year production and profit decline. The sector’s decline and disintegration started when the state-owned KCL collapsed in 1997 – a time when the political environment was not inclined to rescue a sector that had been a lifeline for thousands of Kenya’s coastal residents.

New players  

With the stake of the factory diminished, and the end of its monopoly in cashew nut matters, exporters of raw cashew nuts emerged. These exporters were able to offer significantly higher and faster payments due to the high rebates they enjoyed for exporting raw materials that would in turn create jobs in the importing countries.

By buying through middlemen – who became the sector’s main players – the new market structure undermined the role of cooperative societies that had enjoyed state-sanctioned market support. They could not survive and all but collapsed.

The first main processor, Wondernut Ltd, came into the country in 2003. Kenya Nut Company (KNC), owned by Pius Ngugi, and Equatorial Nuts, owned by Peter Munga, which predominately deal in macadamia nuts from the Mount Kenya region where their factories are based, made forays into processing cashew nuts as well.

In just a few years, the marketing monopoly that the NCPB enjoyed and the logistical machinery it had put in place to procure cashews came a cropper. The board completely withdrew from marketing cashew nuts. This decision led to the disappearance of key functions, such as financing cooperatives and reliably supplying KCL with affordable raw cashew nuts.

With the Kilifi Cashew Nut Factory (partially revived by MML) and the later entry of another Central Province macadamia processor, Jungle Nuts, the number of active cashew processors in Kenya had expanded to five.

Even so, these five processors had to compete with the well-established exporters of raw, unprocessed nuts who had gained favour with farmers due to their market flexibility and higher prices. In the 2007/8 season, for instance, exporters of raw cashew nuts went on a buying spree that saw the share of processed export nuts drop by over 20 per cent that season. This posed a huge threat to local processors.

Despite a total ban on the export of raw cashew nuts in 2009 (which nut processors had called for) the industry has gone horribly wrong in the last decade. In their call to the government to ban exports, the nut processors argued that the ban would allow them an opportunity to gather enough harvest to enable them to utilise their excess installed processing capacity.

A baseline survey that had been done on the crop in 2009 by the Institute of Development and Business Management Services (IDS) on behalf of the Micro Enterprises Support Programme Trust (MESPT), a value chain government initiative, had revealed a sector reeling in distress.

This is the situation that the sector found itself in 2009 when the Nut Processors Association of Kenya (NutPAK) – the result of processors pulling together resources – was formed to lobby for the industry’s protection, with a keen focus on the export ban.

Despite a total ban on the export of raw cashew nuts in 2009 (which nut processors had called for) the industry has gone horribly wrong in the last decade. In their call to the government to ban exports, the nut processors argued that the ban would allow them an opportunity to gather enough harvest to enable them to utilise their excess installed processing capacity.

William Ruto, the current Deputy President who was then the Minister of Agriculture, met stakeholders in the cashew nut industry at Pwani University in Kilifi in March 2009. He ordered a Cashew Nut Revival Task Force (CNRTF) on 9 April 2009 to submit a report by the end of April and to come up with recommendations on measures to be taken to revive the cashew industry. John Safari Mumba, the former Managing Director of KCL and former MP for Bahari Constituency, and then the Chairman of the Kenya Cashew Growers Association, led the four-member task force.

When the task force finally submitted its report based on views it received from various players, it recommended banning the export of raw nuts.

That same year, Ruto heeded their call and pronounced an export ban on RCN after the four-member task force hastily collected views from the industry’s key players. On 16 June 2009, barely one month after the task force’s report had been submitted, Ruto published “The Agriculture (Prohibition of Exportation of Raw Nuts) Order, 2009” banning the export of raw cashew and macadamia nuts.

The government also announced that all nuts would be sold through the NCPB, which was then struggling to buy maize from farmers. It would later sell the produce to processors.

The population of cashew nut trees then stood at about 2 million, with 20 per cent of them beyond the production age and more trees projected to graduate to the unproductive age bracket in just a couple of years. Inadequate crop husbandry, the IDS study further revealed, saw farmers exploit less than a half of the total crop’s potential.

A disorganised nut market that followed the exit of KCL and the coming up of new entrants (largely exporters of RCN who relied mainly on brokers), affected the growth of the crop’s production and productivity since these traders would only emerge during the harvest season and did nothing to promote the crop. The exporters of RCN shifted base to neighbouring Tanzania, one of the world’s leading producers of cashew nuts that exports most of its nut produce raw.

Cashew nut woes

Fast forward to the 2010s. A statistic by the Nut and Oil Directorate shows that the area under cashew nut production went down from 28,758 hectares in 2015 to 21,284 hectares in 2016. Production also declined from 18,907 tonnes to 11,404 tonnes in the same period, with the value of the crop recording Sh398 million compared to Sh506 million in 2015. This was attributed to crop neglect and logging of cashew nut trees for charcoal and to pave way for other crops.

In the absence of farmers’ groups, a poorly structured NCBP and lack of enough collection centres in the cashew catchment areas, NCPB was not able to buy the nuts, so middlemen continue to dominate the scene to date.

To address these shortcomings, the sector’s stakeholders, led by the Provincial Director of Agriculture, formed a multi-sectoral task force to lead in revitalising the sector. Its other members included NutPAK, Cashew Nuts Growers Association and Kenya Agricultural Research Institute (KARI), which was to lead in production expansion.

The task force set out a cashew nuts revival programme that included increased production, streamlining the marketing system to rid the sector of middlemen and setting up minimum farm gate prices, among other measures. However, due to financial challenges, especially for the growers association, the team’s initiatives were not realised.

In the absence of farmers’ groups, a poorly structured NCBP and lack of enough collection centres in the cashew catchment areas, NCPB was not able to buy the nuts, so middlemen continue to dominate the scene to date.

The matter was made worse in 2013 when the agriculture function was devolved and the task force initiatives lost the support of the Ministry of Agriculture, which dealt a devastating blow to its programmes. Unfortunately, the foundation it had sought to build since 2010 was not transitioned to county governments in cashew catchment areas after devolution.

The county governments have continued to under-fund the cashew nut sector and lack strong policy guidelines to promote the sector. Last year, Kwale County allocated only Sh1.5 million to promote procurement of cashew seedlings in a programme that was being funded by the European Union (EU) to increase production in Lamu, Kwale and Kilifi counties. The EU injected Sh240 million through Ten Senses Africa, which was meant to plant 333,333 trees in each of the three cashew-producing counties.

The main processors have scaled down operations in the cashew nut sector. Most of them are located in the Mount Kenya region, where they have mainly focused on macadamia nuts. The ban on the export of raw cashew nuts favoured the macadamia sector, which has recorded a five-fold increase to reach a production of 50,000 metric tonnes per year.

The industry has thus been left to new entrants but there are strong indications that it still has potential, if well supported. In 2019, for instance, the total estimated area under cashew growing was reported to be 22,686 hectares, which is a marginal improvement from the 22,655 hectares reported in 2018, due to efforts to plant new seedlings.

The sector’s revival

The COVID-19 pandemic has simply worsened the cashew export market. This decline has been exacerbated by rare new pests, and a disorganised free-for-all market that has dampened supplies for cashew cooperatives and nearly sealed the sector’s fate.

LKCS’s chairman, David Njuguna, doubts that the cooperative will be able to offer a farm gate pre-2019 price of Sh30 a kilo once the farmers dispose of the harvest they are still hoarding. According to his estimates, a highly compromised cashew nut quality this year means that farmers will only be able to recover 34 per cent from their entire harvest. This can be attributed to poor crop husbandry, thanks to the low price the crop has been fetching, thus denying farmers the capacity to profitably commercialise the sector.

Mumba led a task force in 2009 that formulated seven clear recommendations that were to be carried out before the ban was effected:

  1. To revive the cashew nut industry, the Ministry of Agriculture should first establish a cashew nut revitalisation desk with immediate effect to coordinate the task report’s recommendations;
  2. The ministry should with immediate effect establish a regulatory apex body for the development of the cashew nut industry to be named the Kenyan Cashew Nut Development Authority (KECADA);
  3. KECADA should initiate the process of formulating a cashew nut policy independent from other crops;
  4. Immediately following the formation of KECADA, regulation for a minimum farm gate price should be put in place;
  5. The government, in conjunction with KECADA, should establish funds to support farm input subsidies, as well as guarantees for public-private partnerships financing cashew farmers;
  6. Former farmers’ cooperatives should be revived; and
  7. Most importantly, only once these recommendations have been put in place (particularly the minimum price), should the government consider implementing an export ban on raw cashew nuts, which should be reviewed regularly regarding its effects.

By putting together the right structures and policies, both the national and county governments can bring this important cash crop back to its former glory.

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Why Cash Transfers Are an Efficient Method of Reducing Food Insecurity

With high levels of mobile phone and internet penetration, coupled with advanced digital technologies in the financial sector, Kenya has favourable conditions for cash transfers to the most vulnerable populations. However, corruption and lack of reliable data on beneficiaries can derail efforts to make all Kenyans food secure during and after the COVID-19 pandemic.

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Why Cash Transfers Are an Efficient Method of Reducing Food Insecurity
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As governments across the globe continue to grapple with the economic effects of COVID-19, many are faced with the additional burden of guaranteeing food security for millions of their citizens. Restrictions in movement and other social distancing measures adopted to contain the spread of the virus have put a significant strain on food supply chains, both at production and distribution links. As a result of this, millions have been pushed to the brink of hunger. The United Nations estimates that up to 265 million people will face acute food shortage by December 2020, a sharp increase from earlier predictions of 135 million people. A disproportionate share of these people live in low- and middle-income countries where shock-responsive social safety nets are inadequate or poorly managed.

In Kenya, long before the World Health Organisation (WHO) declared COVID-19 a global pandemic, an estimated 1.3 million Kenyans were already facing acute food shortage as a result of prolonged droughts, extended long rains well into the harvesting season and a locust infestation not witnessed in a decade.

On 13th March, after the country reported its first case of the virus, the government instituted containment measures in the interest of public health. This further disrupted food supply chains and consequently put a strain on the country’s food systems. Stay at home advice, a night curfew, closure of non-essential social spaces and social distancing requirements have reduced economic activity resulting in job and income losses. The resultant reduced household purchasing power further propelled more households into crisis food shortage.

Further, and with schools closed, millions of students who benefit from school feeding programmes are losing out on this benefit, with parents having to fully take on an all-day feeding responsibility. The World Food Programme (WFP) now projects that a total of 5 million Kenyans will require food and livelihood assistance as a result.

Three months into the pandemic, we can already see a deacceleration of philanthropic acts to provide food supplies to the most vulnerable populations compared to the early days of the pandemic, an indication that private charity, while important, is not adequately prepared to address the need and is not sustainable. Given the uncertainty of when a vaccine will get to the market and when we will see the resumption of normalcy, it is expected that millions will require food assistance and government and private philanthropy will need to better coordinate this assistance and ensure that households remain food secure during this pandemic.

Food packages vs cash transfers

According to the Kenya Food Security Steering Group, despite the adverse climatic shocks, Kenya’s food availability remains stable as a result of a favourable harvest due to above average short rains towards end of the year in most agricultural areas. COVID-19, however, presents a challenge of affordability for many households, who no doubt will require food assistance.

However, how can governments, development agencies and philanthropists provide this assistance in a manner that provides choice, flexibility, and dignity to those that need it and in line with their individual circumstances?

Three months into the pandemic, we can already see a deacceleration of philanthropic acts to provide food supplies to the most vulnerable populations compared to the early days of the pandemic, an indication that private charity, while important, is not adequately prepared to address the need and is not sustainable.

How do we put people at the centre of this assistance by not only providing food, but promoting financial inclusion of the poorest and most vulnerable during this pandemic? How do we ensure that the nutritional needs and requirements of the vulnerable are not generalised and reduced to a few food and other household items? How do we move away from paternalistic tendencies that have long viewed hunger as a question of charity rather than one of justice? Who decides what food items a given household requires in comparison to the rest?

These questions require reflection on the forms and manner in which food assistance can be provided. Should we provide households with food packages or should we provide cash transfers?

In determining a suitable approach, we will need to be cognisant of the unique challenges COVID-19 throws into this long-standing debate of food packages vs cash transfers in development circles. Firstly, and from an epidemiological standpoint, there is a need to reduce social contact as much as possible to ensure food distribution does not become a conduit for virus transmission. Secondly, it is worth noting that the pandemic is causing involuntary stay-at-home, therefore disengaging many from meaningful economic activities, and thereby creating COVID-induced dependency.

This group is particularly of concern given that there is no telling how long they will require assistance even when restrictions are eased. As such, cash transfers remain a lifeline for many as they allow people to navigate through the pandemic and rebuild their lives after the crisis. Thirdly, given the reduced household purchasing power and the resultant decreased demand in household and food items, cash transfers can be an effective tool in turning food need into an effective food demand to sustain supply chains, particularly among downstream smallholder farmers. This, however, needs concerted efforts to ensure distributional links, particularly to small open-air markets, as a majority of lower-income households in urban areas depend on these markets for their food supplies.

Interventions to ensure that households remain food secure will, therefore, need to provide households with flexibility and choice in determining food and other household items that meet their unique circumstances. Choice will need to be devolved to the household level and not left to the imaginations of benefactors – government or private.

Cash transfers have proven to do exactly this by increasing household expenditure, particularly food expenditure, thereby enabling households to meet their unique and diverse dietary requirements, improved health and nutritional outcomes and other outcomes, such as savings and investments. The 2015/16 Kenya Integrated Household Budget Survey (KIHBS), for instance, shows that food remains a high expenditure item at the household level, with 33.5 per cent of cash transfers received from within Kenya used on food items, only preceded by education, at 44.6 per cent.

However, food consumption is higher in rural households compared to education spending, at 38.9 per cent and 38.2 per cent, respectively. Further, the survey shows a higher proportion of food expenditure in female-headed households compared to male headed households, especially in the rural areas, at 41.8 per cent and 35.2 percent, respectively.

In addition to providing beneficiaries with choice, cash transfers have a positive spillover effect of stimulating local markets to the benefit of downstream local producers and retailers. However, in determining amounts for disbursement, it is worth ensuring these are informed by household food consumption rates to sufficiently cover food needs.

Granted, food packages bear the benefit of cushioning beneficiaries against commodity price spikes, especially where markets are disintegrated and retail prices are vulnerable to erratic price changes. But on the flip side, they often limit dietary diversity and may fail to respond to disparate nutritional needs across households, especially those with infants, young children, lactating mothers, pregnant women, and the elderly. Food packages normally contain food items with long shelf life (i.e. cereals, rice, maize, wheat flour, salt, cooking oil and other household items), often leaving out short shelf life items, such as milk and other dairy products, that have essential nutrients for household members with unique nutritional requirements.

The 2015/16 Kenya Integrated Household Budget Survey (KIHBS), for instance, shows that food remains a high expenditure item at the household level, with 33.5 per cent of cash transfers received from within Kenya used on food items, only preceded by education, at 44.6 per cent.

Administratively, food packages present logistical challenges in distribution, and depending on the approaches of distribution, may be inconsistent with measures to curb the further spread of the virus. For instance, social distancing measures require minimal social contact, yet distribution of food packages require social proximity, which makes these packages possible conduits for virus transmission.

Additionally, food packages are prone to mismanagement by those responsible for distribution. When factored in, the cost of corruption may significantly impact the overall cost of food distribution. For instance, a 2011 World Bank review of India’s Public Distribution System (PDS) showed that 58 per cent of food did not reach the intended beneficiaries.

In contrast, because cash transfers are distributed through mobile money, not only are the administrative costs of this form of assistance reduced, but cash transfers provide a transparent framework for distribution, thereby minimising misappropriation.

Cash transfers have their limitations too. Targeting of the most deserving beneficiaries may be a challenge where accurate identification and validation of beneficiaries is hampered by lack of reliable data.

Strong digital infrastructure

Kenya’s ICT sector has rapidly grown over the years, placing the country’s mobile phone and internet penetration at 91 per cent and 84 per cent, respectively, which is above Africa’s average of 80 per cent and 36 per cent, respectively. Although variations exist in mobile ownership between rural and urban populations, at 40 per cent and 60 percent respectively, Kenya still fairs relatively well in reaching rural populations. On the gender front, more females (10,425,040) than males (10,268,651) own a mobile phone, according to the 2019 Kenya Population and Household Census.

Kenya’s digital payment infrastructure is equally advanced, making it a global leader in mobile money usage. Data from the Central Bank of Kenya shows that as by December 2019, there were 58 million active mobile money accounts and 242,275 mobile money agents across the country. In 2019, Kenyans transacted a total of Sh4.35 trillion (almost half the country’s GDP) through their mobile phones. According to the KIHBS 2015/16, mobile money transfer was used more by households in rural areas compared to those in urban areas, at 46.2 per cent and 38.9 per cent, respectively, an indication of the effectiveness of mobile money- enabled cash transfers in reaching the most vulnerable.

To further deepen reach and ensure vulnerable populations, such as the elderly, women and remote populations, are reached, there is a need for the government and mobile phone operators to temporarily relax the know-your-customer requirements, and ensure all targeted individuals/household are facilitated to access cash transfers through mobile money.

These advancements provide a strong digital infrastructure that when effectively deployed can support a massive cash transfer programme to ensure households are adequately cushioned during this pandemic. Given the time lag in collecting socio-economic data at the national level, a lag that may not quickly correspond to the changing socio-economic characteristics of the population, data from mobile and internet usage offer a quick and verifiable option of targeting the most vulnerable and therefore making them food insecure.

In 2019, Kenyans transacted a total of Sh4.35 trillion (almost half the country’s GDP) through their mobile phones. According to the KIHBS 2015/16, mobile money transfer was used more by households in rural areas compared to those in urban areas, at 46.2 per cent and 38.9 per cent, respectively…

Combined, mobile phone use and historical mobile money transactions provide massive data, which when carefully analysed, prove a useful resource for assessing the socio-economic standing of individuals, and therefore accurately determining individuals who most qualify for assistance.

Additionally, technology offers a robust and trusted framework that when optimally utilised limits leakages that are often associated with traditional methods of cash disbursement. For one, they make visible households that qualify for cash transfers and when disbursements are due. The predictability they offer also enables households to know when to expect cash and therefore plan better for both food and other household expenditure.

Constraints

Effective mobile-enabled cash transfer programmes rely on rich verifiable data that accurately capture the changing socio-economic positions of citizens. Employment and income status of citizens need to be regularly updated to ensure they accurately capture the most deserving. While the government has over the years invested in collecting socio-economic data through the national census, most recently during the 2019 Kenya Population and Household Census, as well as digital registration of citizens during the Huduma Namba registration, there is a need to build on to these databases, and regularly update the same for purposes of establishing robust social welfare systems.

COVID-19 and its impact on household well-being is perhaps bringing to the fore the value of big data in building such systems and cushioning livelihoods through evidence-based social protection policies, particularly as far as these policies are meant to guarantee household food security. The ability of applying these lessons will determine how prepared governments are in fighting the next pandemic and food security challenges, especially as climate change continues to threaten food security systems.

In the immediate term, and as the government props up its cash transfer programme, there is a need for community-based participatory approaches in assessing the most vulnerable and needy households to ensure efficient utilisation of funds. Relying on community social capital is an effective way of determining households that were vulnerable prior to COVID-19 and those that have become dependent as a result of the pandemic.

Corruption

A pandemic itself, corruption is a systemic problem in Kenya, with proven ability to cripple noble initiatives aimed at benefiting the poor. Worse, this problem has significantly reduced trust levels between the government and citizens and has limited citizens’ participation in governance matters. There is, therefore, a need to build safeguard measures in cash transfer programmes to minimise avenues for leakages. This should include digitised and transparent targeting criteria, citizen-led participatory monitoring and oversight, as well as effective complaint mechanisms.

Corruption thrives in information asymmetry. Therefore, automated platforms that make information accessible to the public on who qualifies for transfers, how much they are eligible for, and the frequency of distribution (with all data privacy protocols observed) provide a better bet in bridging this gap.

Information and communication technologies (mobile-enabled transfers coupled with digitised social safety net frameworks) have the potential effect of limiting the discretionary powers of public officers in determining who benefits. This reduces human intervention in the process, thereby limiting opportunities for cash diversion for personal gain. The technologies, when properly managed, can also minimise political manipulation, capitalisation and clientelism to the advantage of the political class. This, however, is dependent on a strong commitment by the government in ensuring cash for disbursement is made available in the first instance. More importantly, citizens will need to push for structured collective social accountability mechanisms, such as social audits and citizens reports, and will need to actively participate in holding public officials accountable.

Corruption thrives in information asymmetry. Therefore, automated platforms that make information accessible to the public on who qualifies for transfers, how much they are eligible for, and the frequency of distribution provide a better bet in bridging this gap.

Given the uncertainty of COVID-19’s staying power, and its disruption to food supply chains, there is no doubt that food security will remain a key concern that requires better coordinated approaches in feeding those who are most vulnerable. The approaches and manner in which this is done will need to take into consideration the unique challenges the pandemic presents.

With advanced digital technologies, particularly in the financial sector, Kenya is well ahead of many countries in the developing world and well prepared to deepen cashless assistance as it works to contain the spread of the disease. Perhaps this is the litmus test for the government’s ability to rise up to the challenge of walking the talk on ensuring its food security and nutrition commitment under the Big Four Agenda.

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Curfews, Lockdowns and Disintegrating National Food Supply Chains

The disruption of national food supply chains due to COVID-19 lockdowns and curfews has negatively impacted market traders, but it has also spawned localised – and more resilient – supply chains that are filling the gap in the food system.

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Curfews, Lockdowns and Disintegrating National Food Supply Chains
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Our stomachs will make themselves heard and may well take the road to the right, the road of reaction, and of peaceful coexistence…you are going to build in order to prove that you’re capable of transforming your existence and transforming the concrete conditions in which you live.” – Thomas Sankara, assassinated leader of Burkina Faso

 On July 6, 2020, Kenya’s President Uhuru Kenyatta announced phased reopening of the country as the government moved to relax COVID-19 restrictions. That day found me seated in a fishmonger’s stall in Gikomba market, located about five kilometres east of Nairobi’s Central Business District (CBD) and popularly known for the sale of second-hand (mitumba) clothes. The customer seated next to me must have received a text message on her mobile phone because she began howling at the fishmonger to tune in to the radio, which was playing Benga music at the time. It was a few minutes after 2 p.m.

“I order and direct that the cessation of movement into and out of the Nairobi Metropolitan Area, Mombasa County and Mandera County, that is currently in force, shall lapse at 4:00 a.m. on Tuesday, 7th July, 2020,” pronounced the president on Radio Jambo.

The response to this news was cathartic. The female customer, on hearing the words “cessation of movement shall lapse” ululated, and burst out in praise of her God – “Nyasaye” – so loudly it startled the fishmonger. The excited customer jumped on her feet and started dancing around the fish stalls, muttering words in Dholuo. Nyasacha, koro anyalo weyo thugrwok ma na Nairobi, adog dala pacho. Pok a neno chwora, chakre oketwa e lockdown. Nyasacha, iwinjo ywak na. Nyasacha ber.” Oh God, I can now leave the hardship of Nairobi and go back to my homeland. I have not seen my husband since the lockdown measures were enforced. Oh God, you have heard my prayers. Oh God, you are good to me.

“She, like most of us are very happy that the cessation measures have been lifted. Life was becoming very hard and unbearable,” said Rose Akinyi, the fifty-seven year old fishmonger, also known as “Cucu Manyanga” to her customers because of her savvy in relating to urban youth culture. “Since the lockdown, business has been bad. Most of my customers have stopped buying fish because they have either lost their sources of income while others have been too afraid of catching the coronavirus that they have not come to make their usual purchases,” explained Akinyi.

Gikomba market is also Nairobi’s wholesale fish market.  Hotels, restaurants, and businesses flock there to purchase fresh and smoked fish from Lake Victoria and Lake Turkana. But with the government regulations to close down eateries, fish stocks have been rotting, lamented Akinyi. She has had to reduce the supply of her fish stocks in response to the low demand in the market.

“With the re-opening of the city, I plan to travel to my home county of Kisumu and go farm. At least this way I can supplement my income because I don’t see things going back to normal anytime soon,” she explained.

Two days later, I found my way to Wakulima market, popular known as Marikiti. The stench of spoilt produce greets you as you approach the vicinity of the market, Nairobi’s most important fresh produce market. News of the president’s announcement had reached the market and the rush of activity and trade had returned.

Gikomba market is also Nairobi’s wholesale fish market.  Hotels, restaurants, and businesses flock there to purchase fresh and smoked fish from Lake Victoria and Lake Turkana. But with the government regulations to close down eateries, fish stocks have been rotting, lamented Akinyi.

“Since the lockdown, business has been dire to say the least,” complained one Robert Kharinge aka Mkuna, a greengrocer and pastor in a church based in Madiwa, Eastleigh. Robert, who sells bananas that he gets from Meru County, noted that “business has never been this bad in all my twenty years as a greengrocer. Now, I’ve been forced to supplement my income as a porter to make ends meet. Before COVID-19, I would sell at least 150 hands of bananas in a day. Today, I can barely sell five hands,” he explains.

Robert, who is also a clergyman, leans on his faith and is hopeful that things will get back to normal since the cessation of movement has been lifted. He also hopes that the county government of Nairobi will finally expand the Marikiti market to cater for the growing pressure of a city whose population is creeping towards five million.

A short distance from Robert’s stall and outside the market walls stands Morgan Muthoni, a young exuberant woman in her early twenties selling oranges on the pavement. Unable to find space in the market, she and a number of traders have opted to position themselves along Haile Selassie Avenue, where they sell produce out of handcarts.

“When President Uhuru announced the cessation of movement in April, our businesses were gravely affected,” Muthoni says as attends to customers. “I get my oranges from Tanzania and with the lockdown regulations, therefore, produce hasn’t been delivered in good time despite what the government has been saying. Before COVID-19, I would get oranges every two days but now I have to wait between four and five days for fresh produce. My customers aren’t happy because they like fresh oranges and I’m now forced to sell them produce with longer shelf life.”

COVID-19 vs the Demand and Supply of Food
With the prior government lockdowns in Nairobi and Mombasa’s Old Town, which have large populations and are key markets for various food products, the government had to ensure that people in those areas were not cut off from essential goods and services. It was also the mandate of the government to shield farmers and manufacturers of the goods from incurring heavy losses because of the restrictions. Despite good attempts by the authorities to introduce measures that allowed the flow of goods to populated areas affected by the lockdown, there were several reports of police harassment.

“Truck drivers are complaining that they are been harassed by the police for bribes at the police stops, which is gravely affecting our businesses. The police, with their usual thuggery, are using this season of corona to mistreat and extort truck drivers to pay bribes in order to give them way at police checks even if they have adhered to the stipulated regulations,” complained Muthoni.

The movement of goods is further complicated by the disjointed health protocols. “We also hear that because Magufuli’s Tanzania has a different policy towards COVID-19, trucks drivers are taking longer at the border because they need to be tested for coronavirus before they are allowed to pass. But we don’t know how true these reports are. For now, we believe that things will get better since the cessation has been lifted. If God is for us, who can be against us?” Muthoni concludes.

Divine intervention is a recurring plea in these distressed economic times, but unlike Muthoni and Robert, who remain hopeful, this is not the case for Esther Waithera, a farmer and miller based in Mwandus, Kiambu, about 15 kilometres from Nairobi. Kiambu, with its fertile rich soils, adequate rainfall, cool climate, and plenty of food produce, is a busy and bustling administrative centre in the heart of Kikuyuland.

After the president’s announcement of the quasi-lockdown and curfew, Waithera has been spending her afternoons selling fresh produce from her car that is parked opposite Kiambu mall on the weekends and in Thindigwa, a splashy middle-class residential area off the busy Kiambu Road, on weekdays.

“Before COVID-19, I used to supply fresh farm produce to hotels and restaurants across the city. But now I have been forced to sell my produce from my car boot because if I don’t, my produce will rot in the farm. My husband runs the family mill and even that has been doing badly since the coronavirus came to plague us. We have had to decrease our milling capacity and the cost of maize flour to adjust to new market prices as demand reduces.”

After the president’s announcement of the quasi-lockdown and curfew, Waithera has been spending her afternoons selling fresh produce from her car that is parked opposite Kiambu mall on the weekends and in Thindigwa, a splashy middle-class residential area off the busy Kiambu Road, on weekdays.

Maize is Kenya’s staple food and Kenyans rely on maize and maize products for subsistence but, “Kenyans are going hungry and many households are skipping meals to cope with these harsh times,” explains Waithera.

Waithera, who is a mother of three children, doesn’t seem hopeful about the future. “This government that we voted for thrice has let us down. They have squandered the lockdown and have caused economic harm without containing COVID-19. Now we are staring at an economic meltdown, a food crisis and a bleak future for our children.”

A devout Christian of the evangelical persuasion, Waithera deeply believes that “God is punishing the country and its leaders for its transgressions because they have turned away from God and taken to idol worship and the love for mammon”. And like the biblical plagues, “the recent flooding, the infestation of desert locusts and the corona pandemic are all signs from God that he has unleashed his wrath on his people unless we repent our wrongdoings and turn back to God”, laments a bitter Waithera.

For Joyce Nduku, a small-scale farmer and teacher based in Ruiru, this new reality has provided her with opportunities for growth. She acknowledged that her sales have increased during the COVID-19 pandemic, saying, “I now have more customers because there are not enough vegetables available in the market from upcountry”.

Localised and more resilient food systems

At a time when regular food supply chains have not been assured, some food markets have closed, mama mbogas (women vegetable vendors) are out of business, and the cessation of movement is deterring travel, Nduku attributes her increased food production to meet the growing demand to a business model that lays emphasis on a localised food system and short food supply chains.

Approaching food production through a localised food system, she says, “gives me local access to farm inputs”.

She adds, “I get my manure from livestock keepers within my locale and my seeds from local agrovets. I have direct access to my consumers, removing middlemen who expose my produce to unsafe and unhygienic handling and high logistical and transport costs. Hence I’m able to increase the access to safe and affordable food.”

Agriculture, forestry and fishing’s contribution to GDP in 2019 was 34.1 per cent, according to the Kenya National Bureau of Statistics’ Economic Survey 2020. Another 27 percent of GDP is contributed indirectly through linkages with other sectors of Kenya’s economy. The sector, the survey revealed, employs more than 56 percent of the total labour force employed in agriculture in 2019. It also provides a livelihood (employment, income and food security needs) to more than 80 percent of the Kenyan population and contributes to improving nutrition through the production of safe, diverse and nutrient dense foods, notes a World Bank report.

Yet, in a matter of weeks, Nduku tells me, “COVID-19 has laid bare the underlying risks, inequities, and fragilities in our food and agricultural systems, and pushed them close to breaking point.”

These systems, the people underpinning them, and the public goods they deliver have been under-protected and under-valued for decades. Farmers have been exposed to corporate interests that give them little return for their yield; politicians have passed neoliberal food policies and legislation at the peril of citizens; indigenous farming knowledge has been buried by capitalist modes of production that focus mainly on high yields and profit; and families have been one meal away from hunger due to untenable food prices, toxic and unhealthy farm produce and volatile food ecosystems.

Nduku firmly believes that the pandemic has, however, “offered a glimpse to new, robust and more resilient food systems, as some local authorities have implemented measures to safeguard the provision and production of food and local communities and organisations have come together to plug gaps in the food systems.”

Food justice

Many young Kenyans have also emerged to offer leadership with more intimate knowledge of their contexts and responded to societal needs in more direct and appropriate ways. If anything, Nduku tells me, “we must learn from this crisis and ensure that the measures taken to curb the food crisis in these corona times are the starting point for a food system transformation”.

The sector, the survey revealed, employs more than 56 per cent of the total labour force employed in agriculture in 2019. It also provides a livelihood (employment, income and food security needs) to more than 80 per cent of the Kenyan population…

To achieve the kind of systematic transformation Kenya needs, we must “borrow a leaf from Burkina Faso’s revolutionary leader Thomas Sankara”, Nduku adds. Sankara emphasised national food sovereignty and food justice, advocated against over-dependence on foreign food aid, and implemented ecological programmes that fostered long-term agro-ecological balance, power-dispersing, communal food cultivation, and the regeneration of the environment, which remain powerful foundations for food justice today.

Indeed, we must also not rely on discrete technological advances or conservative and incremental policy change. We must radically develop a new system that can adapt and evolve to new innovations, build resilient local food systems, strengthen our local food supply chains, reconnect people with food production, provide fair wages and secure conditions to food and farm workers, and ensure more equitable and nutritious food access for all Kenyans.

Importantly, Nduku emphasises, “We must start thinking about the transformation of our food systems from the point of view of the poorest and those who suffer the greatest injustice within the current framework of our food systems.” This will provide a much more just, resilient and holistic approach to food systems transformation.

This article is part of The Elephant Food Edition Series done in collaboration with Route to Food Initiative (RTFI). Views expressed in the article are not necessarily those of the RTFI.

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