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

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The judiciary had finally come of age, judicial independence had been attained. In the days that followed, judicial officers discussed on their social media pages how they were retaking their oaths of office. Erstwhile critics in the Internet fever swamps were suddenly gushing with praise for the judiciary.

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

On the morning of 1 September 2017, Kenya entered the annals of history as only the fourth country in the world to annul a presidential election. Before that, courts in only Ukraine, the Maldives and Austria had annulled presidential elections. No opposition party in Africa had ever successfully petitioned a court to overturn an election, and the decision was praised globally as striking a blow for democracy and the rule of law. “Look, in view of all that evidence, and in good conscience, what other decision would I have made and how would I have looked?” the Chief Justice remarked.

Outside the courtroom later, as the majority decision and the two dissenting opinions were read out and broadcast live, the crowds erupted into celebration. From inside the building, it felt as if a bomb had gone off.

The judiciary had finally come of age, judicial independence had been attained. In the days that followed, judicial officers discussed on their social media pages how they were retaking their oaths of office. Erstwhile critics in the Internet fever swamps were suddenly gushing with praise for the judiciary.

President Uhuru Kenyatta was visibly angry. He had expected the court challenge on his victory to suffer the same fate as the challenge to his 2013 election victory and plans for his swearing in were already in top gear. The day before the Supreme Court decision Kenyatta had even made disparaging remarks about waiting for what some six people would decide regarding the election, and a false news alert on the Kenyatta family-owned K24 TV had implied that the petitioners had lost the case even before the judgment had come in. The 2017 petition was expected to go the same way. Then it all went horribly wrong.

Kenyatta had waged many battles in courts both at home and abroad and he had prevailed each and every time. He had defeated petitions seeking to stop his candidacy for president, neutered efforts to invalidate his shocking 2013 presidential election victory, and watched with amusement as a crimes against humanity case against him at the International Criminal Court (ICC) floundered, with witnesses withdrawing or recanting their testimony. He had won every court battle that mattered – until then.

Just what had changed in four short years? The answers would become clear from the actions undertaken in response to the petition decision.

Kenyatta’s first response to the Supreme Court’s decision annulling the election was to make a televised address from State House pledging adherence to the rule of law (sic). Later on the same day, he let rip at a rally of his supporters at Burma Market in Nairobi, calling the judges crooks and warning the Chief Justice that now that his victory had been invalidated, he, the Chief Justice, would be dealing with a President and not a mere president-elect.

Still smarting, Kenyatta told a State House meeting the following day that the country had a problem in the judiciary and vowed he would fix it.

Maraga thinks he can overturn the will of the people,” Kenyatta said.  “We shall show you in 60 days that the will of the people cannot be overturned by one or two individuals. Tutarudi na tukishamaliza tuta-revisit hii mambo yenu …Tunafanya kazi hii, unakuja unablock, unaweka injunction. Kwani unafikiria wewe umechaguliwa na nani? [After we return from the repeat election, we shall revisit your issues. We cannot be working only for you to frustrate us with injunctions. Who do you think elected you?]

The tirade signalled the beginning of a political onslaught that would manifestly challenge the judiciary’s claim to independence.

Among Kenyatta’s supporters, the anger was palpable. And it quickly turned into action – Member of Parliament for Nyeri Town Ngunjiri Wambugu petitioned the Judicial Service Commission (JSC) to remove Chief Justice Maraga from office for alleged gross misconduct. He accused the Chief Justice of instituting a “judicial coup” with a view to seizing political power. The petition to the JSC came only a day after Members of Parliament from Kenyatta’s Jubilee Party announced during a Senate debate that they planned to pass a series of laws to limit the powers of the judiciary on elections. Kenyatta prevailed on Ngunjiri to withdraw the petition.

Within a week, a loud demonstration by Jubilee Party supporters was accompanying Derrick Malika Ngumu to the Supreme Court as he lodged a petition with the JSC to remove Justices Mwilu and Lenaola from office. The petition accused the two judges of gross misconduct and breach of the judicial code of conduct for allegedly being in contact with the petitioner’s lawyers during the hearing of the 8 August presidential election petition. As it turned out, cell data showed that some of the judges lived within the same radius as a bar popular with politicians. The JSC dismissed the petition for lack of merit.

In contrast, when the decision to annul the election results came in, Raila Odinga and Kalonzo Musyoka were in court. From the court steps, Odinga declared that the decision had vindicated him and he pressed his advantage by demanding resignations at the electoral commission as well as irreducible minimum reforms to guarantee a free fresh election. He would later withdraw from the fresh election and call on his supporters to boycott it.

Both Kenyatta’s and Odinga’s reactions to the nullification appeared to be knee-jerk and tactical rather than strategic. The nullification appears to have surprised both protagonists, with the result that they were grappling with how to deal with loss and victory, respectively. As the court drank in the praise for its courage and independence, the attacks against some of its judges began to crystallise. The opposition began to expect more decisions along the same lines, and the angry government saw the court as a stalking horse for the opposition that might well issue more damaging decisions if not checked.

The decision to annul the election results was a huge rebuke to the electoral commission’s conduct, but it stopped short of finding the commissioners and staff culpable

The majority judges had not thought that they were in any danger. They were convinced of the soundness of their decisions and how they had arrived at them; they felt that they could defend them. After all, they had not cited Kenyatta for anything untoward. Although the judges understood the President’s anger for what it was — a normal human reaction, they took comfort in the public support that they received. Yet, that public goodwill lulled them into underestimating the hostility they were going to face.

The decision to annul the election results was a huge rebuke to the electoral commission’s conduct, but it stopped short of finding the commissioners and staff culpable. The commission’s chairman invited the director of public prosecutions to investigate any of his staff suspected of wrongdoing. Save for a few low-level officials at the polling station and constituency level who allegedly tampered with the elections, no charges have been preferred for illegal acts committed in the 8 August 2017 polls.

Because the judges had not faulted the President or any individuals at the Independent Electoral and Boundaries Commission (IEBC) despite acknowledging the existence of “irregularities and illegalities”, they felt safe since they had not crossed the invisible line of power.

Still, there was a surge of attacks on the judiciary. Public demonstrations against the Supreme Court judges took place in Nyeri, Eldoret and Nairobi. The demonstrations targeted the Chief Justice in particular, with some protestors burning his effigy. Within the public sphere, an explosion of coordinated fake news, hash tags, videos and social media postings targeted the judges and the courts. Kenyatta’s reference to the judges as wakora [crooks] spawned the hash tag #WakoraNetwork.

On 19 September 2017, a day before the judges were due to deliver the reasons for the determination in the petition, the Chief Justice stood on the steps of the Supreme Court flanked by members of the Judicial Service Commission.

He pointedly criticised the Inspector General of Police, who he said was not taking judges’ calls. Judges had requested increased security but they were being ignored. “If leaders are tired of having a strong and independent judiciary, they should call a referendum and abolish it altogether. Before that happens the judiciary will continue to discharge its mandate in accordance with the Constitution and individual oaths of office,” he said.

The judges had never faced as much pressure as they did in the aftermath of the decision; they had no experience in dealing with the executive at close range, and nothing could have prepared them for the backlash.

It was a sobering moment as the Chief Justice said that he was willing to pay the ultimate price to protect the Constitution. Maraga was considered an insider, beloved by entrenched interests who hoped that he would apply the brakes on the reforms train, but he had little experience in playing the long game with the executive and the legislature.

The constant attacks were eroding whatever social capital the Supreme Court had built up with the decision of the 1st of September. As public support for the Supreme Court grew lukewarm, dampened by politicians’ criticism of the judges as having gone rogue, so too did the spirit that had imbued the court before the election nullification begin to wither.

By the 1st of October, when Supplementary Budget Estimates were published to accommodate the costs of the fresh presidential election, the budget of the judiciary had been slashed by Sh1.95 billion or 11.1 per cent.

At the height of emotions over the Supreme Court’s annulment decision, the ruling coalition demanded that changes be made to the Judicial Service Act to modify the procedures concerning the appointment of judges. The National Assembly passed amendments to the Election Act barring the courts from opening ballot boxes to scrutinise voting tallies

The judiciary’s budget had previously been increasing progressively from Sh3 billion in 2009/10 to Sh7.5 billion in 2011/12 before reaching a high of Sh16 billion in 2015/16. As other sectors continued to receive increased budgetary allocations, the judiciary’s projected budget of Sh31 billion was slashed to Sh17.3 billion.

At the height of emotions over the Supreme Court’s annulment decision, the ruling coalition demanded that changes be made to the Judicial Service Act to modify the procedures concerning the appointment of judges. The National Assembly passed amendments to the Election Act barring the courts from opening ballot boxes to scrutinise voting tallies.

A shaken IEBC was so uncertain of itself that it filed a petition seeking the Supreme Court’s advice on its role in verifying election results. The court ruled in its 17 October advisory opinion on what it had said in its September judgment, that the IEBC chairman could not correct errors on the vote tallying forms.

As the year wound down, the Kenyan Section of the International Commission of Jurists named CJ Maraga as 2017 Jurist of the Year, celebrating his courage in leading the Supreme Court to the majority decision to annul the presidential election result.

In the aftermath of the fresh election, the dismantling of the president’s legal team would give an indication of the depth of Kenyatta’s disappointment in those handling his legal affairs. Solicitor General Njee Muturi was demoted to Deputy Chief of Staff at State House; AG Githu Muigai would suddenly resign in January 2019, and the president’s advisor on constitutional affairs, Abdikadir Mohamed, would decline a posting to South Korea as ambassador. The president also accepted the resignation of Keriako Tobiko as Director of Public Prosecutions and offered him the position of Cabinet Secretary for the Environment.

Within the judiciary, there was a collective sigh of relief that the institution’s prestige and honour had been restored. The joyous mood at the Supreme Court contrasted sharply with the ugly scenes in the aftermath of the 2013 decision on the presidential election petition. As soon as Chief Justice Willy Mutunga had read out the 30 March 2013 decision, each judge swiftly left the building under the escort of the paramilitary General Service Unit (GSU) and the crowds in the streets were dispersed with teargas. What had begun as a globally watched court battle ended in silent ignominy. Much hope had been placed on the Supreme Court in 2013 and the disappointment in its decision significantly injured the public standing of the judiciary.

Just what had happened to change the Supreme Court in the four years between 2013 and 2017?

The 60-day period the Supreme Court gave for a fresh election provided a snapshot of the judiciary’s highest moment as an independent institution. The judiciary had for years been engaged in a struggle to claim its independence within a volatile political environment. The interplay of internal institutional politics – involving appointments, personality clashes, conflicts of interest and opposing judicial philosophies – and the external politics around how those wielding political power related with the institution is likely to have influenced how the court decided the presidential election petitions in 2013 and 2017.

Court in A New Mould

Kenya’s first Supreme Court was cobbled together from the old judiciary, academia, and civil society and it is instructive that the Court of Appeal contributed only one judge to the new apex court that would topple it in the judicial hierarchy. It was a clean break with the insularity of the Court of Appeal, its arrogance and slavish loyalty to rules.

Until 2013, presidential election petitions in Kenya had never gotten off the ground. Petitions challenging the election of the president in the 1992 and 1997 contests did not go beyond the preliminary stage and were dismissed on technicalities at the Court of Appeal – the highest court at that time. The requirements the petitioners needed to fulfil – such as the requirement to personally serve a sitting president with court papers – were so onerous as to make litigation moot. Opposition politicians refused to take the dispute over the 2007 presidential election to the courts, arguing that their opponent controlled the judiciary, leading to a 60-day violent crisis that only ended with the international mediation that brokered the formation of a coalition government.

This history made part of the case for establishing the Supreme Court as a special forum to hear and determine presidential election petitions, which had to be decided within 14 days of the announcement of the result. A president-elect could only be sworn into office if there was no court challenge. The change was first introduced into the September 2002 draft constitution prepared by the Constitution of Kenya Review Commission. This draft was the basis of successive proposed constitutions that culminated in the adoption of a new constitution in 2010.

On the surface, the first Supreme Court seemed to have the right mix of insider experience and outsider mavericks. More significantly, the court was a subconscious assembly of the country’s so-called Big Five, the largest ethnic groups; the Kamba, Kalenjin, Luo, Luhya, and Kikuyu, were represented.

At the helm as Chief Justice and Supreme Court President was Dr Willy Mutunga, who had taught law at the University of Nairobi, had been a political detainee, had pioneered the establishment of Kenya’s vibrant civil society movement, and had been part of the push for a new constitution. He had also been in charge of the East Africa regional office of the Ford Foundation. After the return of multi-party politics in 1991, he became one of the public faces demanding constitutional change. In early 2002, he successfully mediated between opposition leaders Mwai Kibaki, Charity Ngilu and Michael Kijana Wamalwa to form a political alliance and support a single candidate for the presidency in the 2002 elections following which Kibaki was elected president.

Although each of the Supreme Court judges – there are seven – had been through public interviews and those already serving on the bench had additionally been vetted for suitability to continue serving, there were questions about whether they were up to the task of adjudicating a political dispute purely on the basis of evidence and facts. Only three judges had judicial experience; the other three came from academia and civil society.

Dr Mutunga had had no role in interviewing or selecting any of the first Supreme Court justices. He and Deputy Chief Justice Baraza were awaiting parliamentary vetting and approval at the time. The JSC thus gazetted the names of five judges without his input. A court challenge seeking to have the Supreme Court conform to the principle that no institution should have more than two thirds of one gender failed.

The other judges who would make up the bench for the 2013 presidential election petition were Justices Philip Kiptoo Tunoi; Jackton Boma Ojwang; Mohamed Khadar Ibrahim; Smokin Charles Wanjala; and Njoki Susanna Ndung’u. By pure coincidence, they had all been Dr Mutunga’s students at the University of Nairobi. Deputy Chief Justice Nancy Makokha Baraza, however, would leave office after serving for only six months following a public furore over her altercation with a female security guard performing checks at a Nairobi shopping mall. A tribunal found Baraza unsuitable to serve on Kenya’s apex court and she later withdrew her appeal at the Supreme Court. The vacancy created by her departure was not filled until after the 2013 election petition had been decided.

In the run-up to the 2013 presidential election petition Dr Mutunga’s stint as a political prisoner and history as a pro-democracy activist had fed fears that he would be in the tank for Prime Minister Raila Odinga, who had also been a political prisoner and was contesting the presidency a third time. Yet, ahead of the 2013 presidential election petition, the Supreme Court had cultivated the habit of dodging legal bullets and its excessive caution was sometimes seen as bordering on cowardice. For example, when the IEBC sought an advisory opinion on the election date under the new Constitution, the Supreme Court sent the matter down to the High Court whose decision was subsequently affirmed by a five-judge bench of the Court of Appeal by a majority of four to one.

The Supreme Court’s aloofness discouraged litigants from approaching it to settle the question of Uhuru Kenyatta and William Ruto’s eligibility to contest the 2013 elections given their indictment at the (ICC for crimes against humanity. “Any question on the qualification or disqualification of a person who has been duly nominated to run for president can only be dealt [with] by the Supreme Court,” said Judge Helen Omondi, reading out the decision of a five-judge High Court bench, 17 days to the March 4, 2013, General Election. To date, the Supreme Court has not made any determination on the leadership and integrity standards a candidate for president should satisfy in order to qualify to run.

By the time the 2013 presidential election petition arrived at the Supreme Court, police were dispersing the petitioners’ supporters with teargas. Once the petition was filed the court opened up the proceedings to live broadcasting and web streaming on its website, with 157 law schools following the feed. Six senior jurists from the Commonwealth Judges Association were on hand to watch the hearing The pre-trial conferencing ­- an innovation of the new Supreme Court – was fascinating, giving the public a rare inside view of how the wheels of justice turn.

The judges declined an audit of the IEBC’s Information and Communication Technology (ICT) system, saying that the petitioners had not indicated who should conduct it, and expressing fears that the exercise might go beyond the constitutional deadline for determining the petition.

Remarkably, a report published by the Carter Center after the election put the failure of the ICT system at 41 per cent of all biometric identification kits.

Another application sought leave for Odinga’s lawyers to formally file an 839-page bundle of affidavits and other evidence — necessitated by the IEBC’s own filing in response to the petition. However, citing the deadline imposed upon it by the Constitution, the court ordered that the material be expunged from the record.

Civil society activists Gladwell Otieno and Zahid Rajan filed a separate petition seeking to argue that the IEBC did not maintain a constant voter register, with the result that the number of people who voted was higher than the number of those who were registered. The petitioners claimed that it was unclear which register had been used to confirm the identities of voters at polling stations across Kenya.

A third set of petitioners, Moses Kiarie Kuria, Dennis Njue Itumbi and Florence Jematia Sergon filed their petition before the March 16, 2013 deadline seeking a declaration that spoilt votes should not be taken into account when computing the valid votes cast.

The court, on its own motion, ordered the scrutiny of all votes cast in all the 33,400 polling stations to gain insight into whether the winning candidate had indeed met the threshold of garnering a majority of all votes cast. But it soon became clear that notwithstanding the availability and use of nearly 50 legal researchers, the court was woefully unprepared to manage the scrutiny or to understand how the Sh10 billion ICT infrastructure had helped or undermined the election.

Dr Mutunga and Dr Wanjala were convinced that a scrutiny would provide a snapshot of the election but the Supreme Court’s lack of experience in managing an election scrutiny would prove to be its undoing as it ceded control to the court administrators who actively sabotaged it through administrative delays and systems failure. In the event, although the team completed the scrutiny, they misled the judges that they had only examined 18,000 polling stations and that the data was inconclusive.

Without acknowledging that the scrutiny it ordered was only partially undertaken and inconclusive, the court upheld the election for lack of evidence of rigging. The decision provoked brutal criticism, including open accusations of bribery. Dr Mutunga resorted to publishing an agonised post on Facebook asking that if anyone knew of judges accepting bribes, he or she should come forward with the evidence.

Long before it gave its final decision, the manner in which the court had handled a number of applications made during the hearing was a clear indication of the decision that the court would make. The final judgment was brief on matters such as the failure of the polling kits (worth only seven paragraphs) while lengthy on far less important ones such as why rejected votes should not be considered in the final tally (27 paragraphs).

Although there were recriminations about the inadequate preparations by advocates for the petitioners – who declined offers of help from the United States at the time – the Supreme Court came in for severe criticism for its proceduralist reading of the rules and this may have influenced its approach in 2017.

In their book on the 2013 General Election, New Constitution Same Old Challenges, James Gondi and Iqbal Basant point out that public confidence in the Supreme Court declined after the decision, which was roundly criticised in academic and legal circles. A Judiciary Perception Survey in 2015 found that the approval rating of the judiciary plummeted from a stratospheric 78 per cent to just under 50 per cent in the year after the ruling.

So harsh was the backlash from the decision that when interviewing for the Chief Justice’s position in 2016, Justice Smokin Wanjala – who had been on the Supreme Court bench since its establishment – said he would not be happy to be part of another presidential election petition, if only to avoid unfair criticism.

In the event, he was one of the four judges that formed the Supreme Court majority that annulled the 8 August 2017 presidential election and he also sat on the petition challenging the validity of the fresh election held on 26 October 2017.

Odinga issued a statement shortly after the March 2013 Supreme Court decision and before the judges had given their detailed reasoning, saying that he and his running mate, Kalonzo Musyoka, disagreed with some of the court’s findings and pointing at anomalies in the way the hearings were conducted but also adding that: “Our belief in constitutionalism remains supreme.”

“Casting doubt on the judgment of the court could lead to higher political and economic uncertainty and make it difficult for our country to move forward,” Odinga said.

There would be an inchoate attempt to reform the Supreme Court through a proposed referendum on the constitution in 2015, but it did not materialize. Still, attempts to bring the judiciary to heel had begun as early as when Dr Mutunga was Chief Justice. Decisions by the High Court striking down various laws and executive actions as unconstitutional or illegal had grown into a source of regular annoyance. The executive oscillated between quailing impotence and blinding anger in response to court decisions around corruption, the amendment of security laws to deal with terrorism, and the president’s desire to participate in the appointment of judges.

This article is the first of a three-part series adapted from the recently launched report: 60 Days of Independence: Kenya’s judiciary through three presidential election petitions

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A Dictator’s Guide: How Museveni Wins Elections and Reproduces Power in Uganda

Caricatures aside, how do President Yoweri Museveni and the National Revolutionary Movement state reproduce power? It’s been 31 years.

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Recent weeks have seen increased global media attention to Uganda following the incidents surrounding the arrest of popular musician and legislator, Bobi Wine; emblematic events that have marked the shrinking democratic space in Uganda and the growing popular struggles for political change in the country.

The spotlight is also informed by wider trends across the continent over the past few years—particularly the unanticipated fall of veteran autocrats Muammar Gaddafi in Libya, Hosni Mubarak in Egypt, Yaya Jammeh in Gambia, and most recently Robert Mugabe in Zimbabwe—which led to speculation about whether Yoweri Museveni, in power in Uganda since 1986, might be the next to exit this shrinking club of Africa’s strongmen.

Yet the Museveni state, and the immense presidential power that is its defining characteristic, has received far less attention, thus obscuring some of the issues at hand. Comprehending its dynamics requires paying attention to at-least three turning points in the National Resistance Movement’s history, which resulted in a gradual weeding-out of Museveni’s contemporaries and potential opponents from the NRM, then the mobilisation of military conflict to shore up regime legitimacy, and the policing of urban spaces to contain the increasingly frequent signals of potential revolution. Together, these dynamics crystallised presidential power in Uganda, run down key state institutions, and set the stage for the recent tensions and likely many more to come.

The purge

From the late 1990s, there has been a gradual weeding out the old guard in the NRM, which through an informal “succession queue,” had posed an internal challenge to the continuity of Museveni’s rule. It all started amidst the heated debates in the late 1990s over the reform of the then decaying Movement system; debates that pitted a younger club of reformists against an older group. The resultant split led to the exit of many critical voices from the NRM’s ranks, and began to bolster Museveni’s grip on power in a manner that was unprecedented. It also opened the lid on official corruption and the abuse of public offices.

Over the years, the purge also got rid of many political and military elites—the so-called “historicals”—many of whom shared Museveni’s sense of entitlement to political office rooted in their contribution to the 1980-1985 liberation war, and some of whom probably had an eye on his seat.

By 2005 the purge was at its peak; that year the constitutional amendment that removed presidential term limits—passed after a bribe to every legislator—saw almost all insiders that were opposed to it, summarily dismissed. As many of them joined the ranks of the opposition, Museveni’s inner circle was left with mainly sycophants whose loyalty was more hinged on patronage than anything else. Questioning the president or harboring presidential ambitions within the NRM had become tantamount to a crime.

By 2011 the process was almost complete, with the dismissal of Vice President Gilbert Bukenya, whose growing popularity among rural farmers was interpreted as a nascent presidential bid, resulting in his firing.

One man remained standing, Museveni’s long-time friend Amama Mbabazi. His friendship with Museveni had long fueled rumors that he would succeed “the big man” at some point. In 2015, however, his attempt to run against Museveni in the ruling party primaries also earned him an expulsion from both the secretary general position of the ruling party as well as the prime ministerial office.

The departure of Mbabazi marked the end of any pretensions to a succession plan within the NRM. He was unpopular, with a record tainted by corruption scandals and complicity in Museveni’s authoritarianism, but his status as a “president-in-waiting” had given the NRM at least the semblance of an institution that could survive beyond Museveni’s tenure, which his firing effectively ended.

What is left now is perhaps only the “Muhoozi project,” a supposed plan by Museveni to have his son Muhoozi Kainerugaba succeed him. Lately it has been given credence by the son’s rapid rise to commanding positions in elite sections of the Ugandan military. But with an increasingly insecure Museveni heavily reliant on familial relationships and patronage networks, even the Muhoozi project appears very unlikely. What is clear, though, is that the over time, the presidency has essentially become Museveni’s property.

Exporting peace?

Fundamental to Museveni’s personalisation of power also has been the role of military conflict, both local and regional. First was the rebellion by Joseph Kony’s Lord’s Resistance Army in northern Uganda, which over its two-decade span enabled a continuation of the military ethos of the NRM. The war’s dynamics were indeed complex, and rooted in a longer history that predated even the NRM government, but undoubtedly it provided a ready excuse for the various shades of authoritarianism that came to define Museveni’s rule.

With war ongoing in the north, any challenge to Museveni’s rule was easily constructed as a threat to the peace already secured in the rest of the country, providing an absurd logic for clamping down on political opposition. More importantly, the emergency state born of it, frequently provided a justification for the president to side-step democratic institutions and processes, while at the same time rationalising the government’s disproportionate expenditure on the military. It also fed into Museveni’s self-perception as a “freedom fighter,” buttressed the personality cult around him, and empowered him to further undermine any checks on his power.

By the late 2000s the LRA war was coming to an end—but another war had taken over its function just in time. From the early 2000s, Uganda’s participation in a regional security project in the context of the War on Terror, particularly in the Somalian conflict, rehabilitated the regime’s international image and provided cover for the narrowing political space at home, as well as facilitating a further entrenchment of Museveni’s rule.

As post-9/11 Western foreign policy began to prioritise stability over political reform, Museveni increasingly postured as the regional peacemaker, endearing himself to donors while further sweeping the calls for democratic change at home under the carpet—and earning big from it.

It is easy to overlook the impact of these military engagements, but the point is that together they accentuated the role of the military in Ugandan politics and further entrenched Museveni’s power to degrees that perhaps even the NRM’s own roots in a guerrilla movement could never have reached.

Policing protest

The expulsion of powerful elites from the ruling circles and the politicisation of military conflict had just started to cement Musevenism, when a new threat emerged on the horizon. It involved not the usual antagonists—gun-toting rebels or ruling party elites—but ordinary protesters. And they were challenging the NRM on an unfamiliar battleground—not in the jungles, but on the streets: the 2011 “Walk-to-Work” protests, rejecting the rising fuel and food prices, were unprecedented.

But there is another reason the protests constituted a new threat. For long the NRM had mastered the art of winning elections. The majority constituencies were rural, and allegedly strongholds of the regime. The electoral commission itself was largely answerable to Museveni. With rural constituencies in one hand and the electoral body in the other, the NRM could safely ignore the minority opposition-dominated urban constituencies. Electoral defeat thus never constituted a threat to the NRM, at least at parliamentary and presidential levels.

But now the protesters had turned the tables, and were challenging the regime immediately after one of its landslide victories. The streets could not be rigged. In a moment, they had shifted the locus of Ugandan politics from the rural to the urban, and from institutional to informal spaces. And they were picking lessons from a strange source: North Africa. There, where Museveni’s old friend Gaddafi, among others, was facing a sudden exit under pressure from similar struggles. Things could quickly get out of hand. A strategic response was urgent.

The regime went into overdrive. The 2011 protests were snuffed out, and from then, the policing of urban spaces became central to the logic and working of the Museveni state. Draconian laws on public assembly and free speech came into effect, enacted by a rubber-stamp parliament that was already firmly in Museveni’s hands. Police partnered with criminal gangs, notably the Boda Boda 2010, to curb what was called “public disorder”—really the official name for peaceful protest. As police’s mandate expanded to include the pursuit of regime critics, its budget ballooned, and its chief, General Kale Kayihura, became the most powerful person after Museveni—before his recent dismissal.

For a while, the regime seemed triumphant. Organising and protest became virtually impossible, as urban areas came under 24/7 surveillance. Moreover, key state institutions—the parliament, electoral commission, judiciary, military and now the police—were all in the service of the NRM, and all voices of dissent had been effectively silenced. In time, the constitution would be amended again, by the NRM-dominated house, this time to remove the presidential age limit—the last obstacle to Museveni’s life presidency—followed by a new tax on social media, to curb “gossip.” Museveni was now truly invincible. Or so it seemed.

But the dreams of “walk-to-work”—the nightmare for the Museveni state—had never really disappeared, and behind the tightly-patrolled streets always lay the simmering quest for change. That is how we arrived at the present moment, with a popstar representing the widespread aspiration for better government, and a seemingly all-powerful president suddenly struggling for legitimacy. Whatever direction the current popular struggles ultimately take, what is certain is that they are learning well from history, and are a harbinger of many more to come.

This post is from a new partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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The Enduring Blind Spots of America’s Africa Policy

America should move way from making the military the face of its engagement with Africa and instead invest in deepening democracy as a principled approach rather than a convenient choice.

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The Enduring Blind Spots of America's Africa Policy
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While Donald Trump’s administration completely neglected America-Africa relations, the blind spots bedeviling America’s Africa policy preceded his 2016 election. Correcting the systemic flaws of the past 30 years will require a complete rethink after the controversial President’s departure.

To remedy America’s Africa policy, President Joseph Biden’s administration should pivot away from counterterrorism to supporting democratic governance as a principal rather than as mere convenience, and cooperate with China on climate change, peace, and security on the continent.

America’s Africa policy 

America’s post-Cold War Africa policy has had three distinct and discernible phases. The first phase was an expansionist outlook undergirded by humanitarian intervention. The second was nonintervention, a stance triggered by the experience of the first phase. The third is the use of “smart” military interventions using military allies.  

The turning point for the first phase was in 1989 when a victorious America pursued an expansive foreign policy approach predicated on humanitarian intervention. Somalia became the first African test case of this policy when, in 1992, America sent almost 30,000 troops to support Operation Restore Hope’s humanitarian mission which took place against the background of the collapse of the Somalia government in 1991.

On 3-4 October 1993, during the Battle of Mogadishu, 18 US servicemen were killed in a fight with warlords who controlled Mogadishu then, and the bodies of the marines dragged through the streets of Mogadishu. The media coverage increased pressure on the politicians and six months later America withdrew from Somalia — a case of the New World Order meeting the harsh reality of civil conflict.

The chastening experience resulted in America scaling back its involvement in internal conflicts in far-flung places. The result was the emergence of the second phase — non-engagement when Rwanda’s Genocide erupted in 1994 and almost a million people died in 100 days revealed the limitations of over-correcting the Somalia experience. This “non-interference” phase lasted until the twin Nairobi and Dar es Salaam US embassy bombings by Al Qaeda in 1998.

This gave way to the third phase with the realisation that the new threat to America was no longer primarily from state actors, but from transnational non-state actors using failing states as safe havens. The 2002 National Security Strategy states: “the events of September 11, 2001, taught us that weak states . . . can pose as a great danger to our national interests as strong states.”

Counterterrorism training and equipping of African militaries is the central plank of this new security policy. As a result, counterterrorism funding has skyrocketed as has America’s military footprint in Africa. As a result, Africa has become the theatre in which the Global forever War on Terror is fought.

The counterterrorism traps 

The reflexive reaction to the events of September 11 2001 spawned an interlocking web of covert and overt military and non-military operations. These efforts, initially deemed necessary and temporary, have since morphed into a self-sustaining system complete with agencies, institutions and a specialised lingo that pervades every realm of America’s engagement with Africa.

The United States Africa Command (Africom) is the vehicle of America’s engagement with the continent. Counterterrorism blurred the line between security, development, and humanitarian assistance with a host of implications including unrelenting militarisation which America’s policy establishment embraced uncritically as the sine qua non of America’s diplomacy, their obvious flaws notwithstanding. The securitisation of problems became self-fulfilling and self-sustaining.

The embrace of counterterrorism could not have come at a worse time for Africa’s efforts at democratization. In many African countries, political and military elites have now developed a predictable rule-based compact governing accession to power via elections rather than the coups of the past.

“Smart” African leaders exploited the securitised approach in two main ways: closing the political space and criminalising dissent as “terrorism” and as a source of free money. In Ethiopia, Yonatan Tesfaye, a former spokesman of the Semayawi (Blue) Party, was detained in December 2015 on charges under Article 4 of Ethiopia’s Anti-Terrorism Proclamation ((EATP), arguably one of the the country’s most severe pieces of legislation. But Ethiopia has received millions of dollars from the United States.

The Department of Defense hardly says anything in public but gives out plenty of money without asking questions about human rights and good governance. Being a counterterrorism hub has become insurance policy against any form of criticism regardless of state malfeasance.

Egypt is one such hub. According to the Congressional Research Service, for the 2021 financial year, the Trump Administration has requested a total of US$1.4 billion in bilateral assistance for Egypt, which Congress approved in 2018 and 2019. Nearly all US funding for Egypt comes from the Foreign Military Finance (FMF) account and is in turn used to purchase military equipment of US origin, spare parts, training, and maintenance from US firms.

Another country that is a counterterrorism hub in the Horn of Africa is Ethiopia. For the few months they were in charge, the Union of Islamic Courts (ICU) brought order and stability to the country.  Although they were linked to only a few of Mogadishu’s local courts, on 24 December 2006, Ethiopia’s military intervened in Somalia to contain the rise of Al Shabaab’s political and military influence.

The ouster of the ICU by Ethiopia aggravated the deep historical enmity between Somalia and Ethiopia, something Al Shabaab — initially the youth wing of the ICU — subsequently exploited through a mix of Somali nationalism, Islamist ideology, and Western anti-imperialism. Al Shabaab presented themselves as the vanguard against Ethiopia and other external aggressors, providing the group with an opportunity to translate their rhetoric into action.

Ethiopia’s intervention in Somalia could not have taken place without America’s blessing. The intervention took place three weeks after General John Abizaid, the commander of US forces from the Middle East to Afghanistan, met with the then Ethiopian Prime Minister Meles Zenawi.  The intervention generated a vicious self-sustaining loop. Ethiopians are in Somalia because of Al Shabaab, and Al Shabaab says they will continue fighting as long as foreign troops are inside Somalia.

America has rewarded Ethiopia handsomely for its role as the Horn of Africa’s policeman. In both Ethiopia’s and Egypt’s case, on the score of human rights and good governance, the net losers are the citizens.

Drone attacks 

In keeping with the War on Terror being for forever, and despite departing Somalia in 1993, America outsourced a massive chunk of the fight against Al Shabaab to Ethiopia primarily, and later, to AMISOM. America is still engaged in Somalia where it has approximately 800 troops, including special forces that help train Somalia’s army to fight against Al Shabaab.

America carried out its first drone strike in Somalia in 2011 during President Barack Obama’s tenure. Under the Trump administration, however, the US has dramatically increased the frequency of drone attacks and loosened the oversight required to approve strike targets in Somalia. In March 2017, President Trump secretly designated parts of Somalia “areas of active hostilities”, meaning that the high-level inter-agency vetting of proposed strikes and the need to demonstrate with near certainty that civilians would not be injured or killed no longer applied. Last year, the US acknowledged conducting 63 airstrikes in the country, and in late August last year, the US admitted that it had carried out 46 strikes in 2020.

A lack of transparency regarding civilian casualties and the absence of empirical evidence that the strikes lead to a reduction in terrorism in Somalia suggest that expanding to Kenya would be ill-advised. The US has only acknowledged having caused civilian casualties in Somalia three times. Between 2016 and 2019, AFRICOM failed to conduct a single interview with civilian witnesses of its airstrikes in Somalia.

Despite this level of engagement, defeating Al Shabaab remains a remote possibility.

Containing the Chinese takeover 

The Trump Administration did not have an Africa policy. The closest approximation of a policy during Trump’s tenure was stated in a speech delivered by John Bolton at a Conservative think tank decrying  China’s nefarious activities in Africa.  Even with a policy, where the counterterrorism framework views Africa as a problem to be solved by military means, the containing China policy views African countries as lacking the agency to act in their own interests. The problem with this argument is that it is patronising; Africans cannot decide what is right for them.

Over the last decades, while America was busy creating the interlocking counterterrorism infrastructure in Africa, China was building large-scale infrastructure across the continent. Where America sees Africa as a problem to be solved, China sees Africa as an opportunity to be seized.

Almost two years into the Trump administration, there were no US ambassadors deployed in 20 of Africa’s 54 countries even while America was maintaining a network of 29 military bases.  By comparison China, has 50 embassies spread across Africa.

For three consecutive years America’s administration has proposed deep and disproportionate cuts to diplomacy and development while China has doubled its foreign affairs budget since 2011. In 2018, China increased its funding for diplomacy by nearly 16 per cent and its funding for foreign aid by almost 7 per cent.

As a show of how engagement with Africa is low on the list of US priorities, Trump appointed a luxury handbag designer as America’s ambassador to South Africa on 14 November 2018. Kenya’s ambassador is a political appointee who, when he is not sparring with Kenyans on Twitter, is supporting a discredited coal mining project.

The US anti-China arguments emphasize that China does not believe in human rights and good governance, and that China’s funding of large infrastructure projects is essentially debt-trap diplomacy. The anti-China rhetoric coming from American officials is not driven by altruism but by the realisation that they have fallen behind China in Africa.

By the middle of this century Africa’s population is expected to double to roughly two billion. Nigeria will become the second most populous country globally by 2100, behind only India. The 24-country African Continental Free Trade Agreement (AfCFTA) entered into force on 30 May 2019. AfCFTA will ultimately bring together all 55 member states of the African Union covering a market of more than 1.2 billion people — including a growing middle class — and a combined gross domestic product (GDP) of more than US$3.4 trillion.

While Chinese infrastructure projects grab the headlines, China has moved into diversifying its engagement with Africa. The country has increased its investments in Africa by more than 520 per cent over the last 15 years, surpassing the US as the largest trading partner for Africa in 2009 and becoming the top exporter to 19 out of 48 countries in sub-Saharan Africa.

Some of the legacy Chinese investments have come at a steep environmental price and with an unsustainable debt. Kenya’s Standard Gauge Railway is bleeding money and is economically unviable.

A fresh start

Supporting democratic governance and learning to cooperate with China are two areas that will make America part of Africa’s future rather than its past.

America should pivot way from making the military the most visible face of its engagement with Africa and instead invest in deepening democracy as a principled approach rather than a convenient choice.

Despite the elegy about its retreat in Africa, democracy enjoys tremendous support. According to an Afro barometer poll, almost 70 per cent of Africans say democracy is their preferred form of government. Large majorities also reject alternative authoritarian regimes such as presidential dictatorships, military rule, and one-party governments. Democracy, while still fledgling, remains a positive trend; since 2015, there have been 34 peaceful transfers of power.

However, such positive metrics go hand in hand with a worrying inclination by presidents to change constitutions to extend their terms in office. Since 2015, leaders of 13 countries have evaded or overseen the weakening of term limit restrictions that had been in place. Democracy might be less sexy, but ignoring it is perilous. There are no apps or switches to flip to arrest this slide. It requires hard work that America is well equipped to support but has chosen not to in a range of countries in recent years There is a difference between interfering in the internal affairs of a country and complete abdication or (in some cases) supporting leaders who engage in activities that are inimical to deepening democracy.

The damage wrought by the Trump presidency and neo-liberal counterterrorism policies will take time to undo, but symbolic efforts can go a long way to bridging the gap.

America must also contend with China being an indispensable player in Africa and learn to cooperate rather than compete in order to achieve optimal outcomes.

China has 2,458 military and police personnel serving in eight missions around the globe, far more than the combined contribution of personnel by the other four permanent members of the UN Security Council, Russia, the US, France and Britain. China had more than 2,400 Chinese troops take part in seven UN peacekeeping missions across the continent — most notably in Mali and South Sudan. Of the 14 current UN peacekeeping missions, seven are in Africa, consuming two-thirds of the budget.

Climate change and conflict resolution provide opportunities for cooperation. Disproportionate reliance on rain-fed agriculture and low adaptation to the adverse impact of climate change make Africa vulnerable to the damaging effects of climate change, the consequences of which will transcend Africa. Through a combination of research, development, technological transfer and multilateral investment, America and China could stave off the impact of climate change in Africa.

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Hijacking Kenya’s Health Spending: Companies Linked to Powerful MP Received Suspicious Procurement Contracts

Two obscure companies linked to Kitui South MP Rachael Kaki Nyamai were paid at least KSh24.2 million to deliver medical supplies under single-source agreements at the time the MP was chair of the National Assembly’s Health Committee.

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Hijacking Kenya’s Health Spending: Companies Linked to Powerful MP Received Suspicious Procurement Contracts
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Two obscure companies linked to Kitui South MP Rachael Kaki Nyamai were paid at least KSh24.2 million to deliver medical supplies under single-source agreements at the time the MP was chair of the National Assembly’s Health Committee, an investigation by Africa Uncensored and The Elephant has uncovered.

One of the companies was also awarded a mysterious Ksh 4.3 billion agreement to supply 8 million bottles of hand sanitizer, according to the government’s procurement system.

The contracts were awarded in 2015 as authorities moved to contain the threat from the Ebola outbreak that was ravaging West Africa and threatening to spread across the continent as well as from flooding related to the El-Nino weather phenomenon.

The investigation found that between 2014 and 2016, the Ministry of Health handed out hundreds of questionable non-compete tenders related to impending disasters, with a total value of KSh176 billion including three no-bid contracts to two firms, Tira Southshore Holdings Limited and Ameken Minewest Company Limited, linked to Mrs Nyamai, whose committee oversaw the ministry’s funding – a clear conflict of interest.

Number of Suppliers Allocated BPAAlthough authorities have since scrutinized some of the suspicious contracts and misappropriated health funds, the investigation revealed a handful of contracts that were not made public, nor questioned by the health committee.

Mrs Nyamai declined to comment for the story.

Nyamai has been accused by fellow members of parliament of thwarting an investigation of a separate alleged fraud. In 2016, a leaked internal audit report accused the Ministry of Health — colloquially referred to for its location at Afya House — of misappropriating funds in excess of nearly $60 million during the 2015/2016 financial year. Media stories described unauthorized suppliers, fraudulent transactions, and duplicate payments, citing the leaked document.

Members of the National Assembly’s Health Committee threatened to investigate by bringing the suppliers in for questioning, and then accused Nyamai, the committee chairperson, of blocking their probe. Members of the committee signed a petition calling for the removal of Nyamai and her deputy, but the petition reportedly went missing. Nyamai now heads the National Assembly’s Committee on Lands.

Transactions for companies owned by Mrs Nyamai’s relatives were among 25,727 leaked procurement records reviewed by reporters from Africa Uncensored, Finance Uncovered, The Elephant, and OCCRP. The data includes transactions by eight government agencies between August 2014 and January 2018, and reveals both questionable contracts as well as problems that continue to plague the government’s accounting tool, IFMIS.

The Integrated Financial Management Information System was adopted to improve efficiency and accountability. Instead, it has been used to fast-track corruption.

Hand sanitizer was an important tool in fighting transmission of Ebola, according to a WHO health expert. In one transaction, the Ministry of Health paid Sh5.4 million for “the supply of Ebola reagents for hand sanitizer” to a company owned by a niece of the MP who chaired the parliamentary health committee. However, it’s unclear what Ebola reagents, which are meant for Ebola testing, have to do with hand sanitizer. Kenya’s Ministry of Health made 84 other transactions to various vendors during this period, earmarked specifically for Ebola-related spending. These included:

  • Public awareness campaigns and adverts paid to print, radio and tv media platforms, totalling at least KSh122 million.
  • Printed materials totalling at least KSh214 million for Ebola prevention and information posters, contact tracing forms, technical guideline and point-of-entry forms, brochures and decision charts, etc. Most of the payments were made to six obscure companies.
  • Ebola-related pharmaceutical and non-pharmaceutical supplies, including hand sanitizer
  • Ebola-related conferences, catering, and travel expenses
  • At least KSh15 millions paid to a single vendor for isolation beds

Hacking the System

Tira Southshore Holdings Limited and Ameken Minewest Company Limited, appear to have no history of dealing in hygiene or medical supplies. Yet they were awarded three blanket purchase agreements, which are usually reserved for trusted vendors who provide recurring supplies such as newspapers and tea, or services such as office cleaning.

“A blanket agreement is something which should be exceptional, in my view,” says former Auditor-General, Edward Ouko.

But the leaked data show more than 2,000 such agreements, marked as approved by the heads of procurement in various ministries. About KSh176 billion (about $1.7 billion) was committed under such contracts over 42 months.

“Any other method of procurement, there must be competition. And in this one there is no competition,” explained a procurement officer, who spoke generally about blanket purchase agreements on background. “You have avoided sourcing.”

The Ministry of Health did not respond to detailed questions, while Mrs Nyamai declined to comment on the contracts in question.

Procurement experts say blanket purchase agreements are used in Kenya to short-circuit the competitive process. A ministry’s head of procurement can request authority from the National Treasury to create blanket agreements for certain vendors. Those companies can then be asked by procurement employees to deliver supplies and services without competing for a tender.

Once in the system, these single-source contracts are prone to corruption, as orders and payments can simply be made without the detailed documentation required under standard procurements. With limited time and resources, government auditors say they struggle especially with reconciling purchases made under blanket agreements.

The agreements were almost always followed by standard purchase orders that indicated the same vendor and the same amount which is unusual and raises fears of duplication. Some of these transactions were generated days or weeks after the blanket agreements, many with missing or mismatched explanations. It’s unclear whether any of these actually constituted duplicate payments.

For example, the leaked data show two transactions for Ameken Minewest for Sh6.9 million each — a blanket purchase order for El Nino mitigation supplies and a standard order for the supply of chlorine tablets eight days later. Tira Southshore also had two transactions of Sh12 million each — a blanket purchase for the “supply of lab reagents for cholera,” and six days later a standard order for the supply of chlorine powder.

Auditors say both the amounts and the timing of such payments are suspicious because blanket agreements should be paid in installments.

“It could well be a duplicate, using the same information, to get through the process. Because you make a blanket [agreement], then the intention is to do duplicates, so that it can pass through the cash payee phase several times without delivering more,” said Ouko upon reviewing some of the transactions for Tira Southshore. This weakness makes the IFMIS system prone to abuse, he added.

In addition, a KSh4 billion contract for hand sanitizer between the Health Ministry’s Preventive and Promotive Health Department and Tira Southshore was approved as a blanket purchase agreement in April 2015. The following month, a standard purchase order was generated for the same amount but without a description of services — this transaction is marked in the system as incomplete. A third transaction — this one for 0 shillings — was generated 10 days later by the same procurement employee, using the original order description: “please supply hand sanitizers 5oomls as per contract Moh/dpphs/dsru/008/14-15-MTC/17/14-15(min.no.6).

Reporters were unable to confirm whether KSh4 billion was paid by the ministry. The leaked data doesn’t include payment disbursement details, and the MOH has not responded to requests for information.

“I can assure you there’s no 4 billion, not even 1 billion. Not even 10 million that I have ever done, that has ever gone through Tira’s account, through that bank account,” said the co-owner of the company, Abigael Mukeli. She insisted that Tira Southshore never had a contract to deliver hand sanitizer, but declined to answer specific questions. It is unclear how a company without a contract would appear as a vendor in IFMIS, alongside contract details.

It is possible that payments could end up in bank accounts other than the ones associated with the supplier. That is because IFMIS also allowed for the creation of duplicate suppliers, according to a 2016 audit of the procurement system. That audit found almost 50 cases of duplication of the same vendor.

“Presence of active duplicate supplier master records increases the possibility of potential duplicate payments, misuse of bank account information, [and] reconciliation issues,” the auditors warned.

They also found such blatant security vulnerabilities as ghost and duplicate login IDs, deactivated requirements for password resets, and remote access for some procurement employees.

Credit: Edin Pasovic/OCCRP

Credit: Edin Pasovic/OCCRP

IFMIS was promoted as a solution for a faster procurement process and more transparent management of public funds. But the way the system was installed and used in Kenya compromised its extolled safeguards, according to auditors.

“There is a human element in the system,” said Ouko. “So if the human element is also not working as expected then the system cannot be perfect.”

The former head of the internal audit unit at the health ministry, Bernard Muchere, confirmed in an interview that IFMIS can be manipulated.

Masking the Setup

Ms Mukeli, the co-owner of Tira Southshore and Ameken Minewest, is the niece of Mrs Nyamai, according to local sources and social media investigation, although she denied the relationship to reporters. According to her LinkedIn profile, Ms Mukeli works at Kenya Medical Supplies Agency, a medical logistics agency under the Ministry of Health, now embroiled in a COVID procurement scandal.

Ms Mukeli’s mother, who is the MP’s elder sister, co-owns Icpher Consultants Company Ltd., which shares a post office box with Tira Southshore and Mematira Holdings Limited, which was opened in 2018, is co-owned by Mrs Nyamai’s husband and daughter, and is currently the majority shareholder of Ameken Minewest. Documents also show that a company called Icpher Consultants was originally registered to the MP, who was listed as the beneficial owner.

Co-owner of Tira Southshore Holdings Limited, Abigael Mukeli, described the company to reporters as a health consulting firm. However Tira Southshore also holds an active exploration license for the industrial mining in a 27-square-kilometer area in Kitui County, including in the restricted South Kitui National Reserve. According to government records, the application for mining limestone in Mutomo sub-county — Nyamai’s hometown — was initiated in 2015 and granted in 2018.

Mukeli is also a minority owner of Ameken Minewest Company Limited, which also holds an active mining license in Mutomo sub-county of Kitui, in an area covering 135.5 square kilometers. Government records show that the application for the mining of limestone, magnesite, and manganese was initiated in 2015 and granted in 2018. Two weeks after the license was granted, Mematira Holdings Limited was incorporated, with Nyamai’s husband and daughter as directors. Today, Mematira Holdings is the majority shareholder of Ameken Minewest, which is now in the process of obtaining another mining license in Kitui County.

According to public documents, Ameken also dabbles in road works and the transport of liquefied petroleum gas. And it’s been named by the Directorate of Criminal Investigations in a fuel fraud scheme.

Yet another company, Wet Blue Proprietors Logistics Ltd., shares a phone number with Tira Southshore and another post office box with Icpher Consultants Company Ltd., according to a Kenya National Highway Authority list of pre-qualified vendors.

Family LinksMrs Nyamai and her husband co-own Wet Blue. The consulting company was opened in 2010, the same year that the lawmaker completed her PhD work in HIV/AIDS education in Denmark.

Wet Blue was licenced in 2014 as a dam contractor and supplier of water, sewerage, irrigation and electromechanical works. It’s also listed by KENHA as a vetted consultant for HIV/AIDS mitigation services, together with Icpher Consultants.

It is unclear why these companies are qualified to deliver all these services simultaneously.

“Shell companies receiving contracts in the public sector in Kenya have enabled corruption, fraud and tax evasion in the country. They are literally special purpose vehicles to conduct ‘heists’ and with no track record to deliver the public goods, works or services procured,” said Sheila Masinde, executive director of Transparency International-Kenya.

Both MOH and Ms Mukeli refused to confirm whether the ordered supplies were delivered.

Mrs Nyamai also co-owns Ameken Petroleum Limited together with Alfred Agoi Masadia and Allan Sila Kithome.

Mr Agoi is an ANC Party MP for Sabatia Constituency in Vihiga County, and was on the same Health Committee as Mrs Nyamai, a Jubilee Party legislator. Mr Sila is a philanthropist who is campaigning for the Kitui County senate seat in the 2022 election.

Juliet Atellah at The Elephant and Finance Uncovered in the UK contributed reporting.

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