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2017: The End of the Kenyan Judiciary’s Independence

14 min read.

As Kenya marked its 55th anniversary of independence on 12 December 2017, the Judiciary was silently marking the end of its 60 days of independence.



2017: The End of the Kenyan Judiciary’s Independence
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Lawyer Julie Aullo Soweto glanced at her wristwatch and realised that she was running late for the 11 am pre-trial conference that was scheduled to take place on that morning of 14 November 2017. She robed quickly and debated whether or not to wear her advocate’s wig. In the end, she chose to leave the wig behind as she made her way from her Biblica House office to the Supreme Court building. She had filed an application at the Supreme Court for scrutiny of the materials from the 26 October 2017 repeat presidential election, and had a good feeling about its chances.

Almost single-handedly – over three days and with little sleep in between – she had drafted the application for scrutiny of election materials from the 8 August 2017 poll in the Raila Odinga petition. The success of that application, in which 19 of the 26 prayers were granted, enabled the petitioners to not only discover anomalies in the election results filed in the Supreme Court but also exposed the Independent Electoral and Boundaries Commission’s (IEBC) suspicious refusal to grant access to the computer servers used to receive, transmit and collate results. It likely played a significant role in persuading four of the six judges to nullify the election of Uhuru Kenyatta as president.

The petitioners hoped to use the scrutiny to prove that the results published on the portal did not correspond to those on the official paper documents. The IEBC’s lawyers, however, proceeded to paint a grim picture of the information overload that the court would have to bear if it accepted the request.

Despite playing a critical role in the first petition, Soweto had not sought the public’s attention from the row of seasoned litigators assembled for the case but the petition challenging the repeat presidential election brought by civil society activists Njonjo Mue and Khelef Khalifa, would thrust her to the fore.  Soweto was determined to bring her experience from the first successful petition to bear on the second one. She had gone over the application, which had been allowed in August, tightening loose ends and closing gaps. She whittled down her original 26 prayers to a round figure of 20. It was the same bench of judges; she was certain they would allow it.  They did not.

The petitioners hoped to use the scrutiny to prove that the results published on the portal did not correspond to those on the official paper documents. The IEBC’s lawyers, however, proceeded to paint a grim picture of the information overload that the court would have to bear if it accepted the request. They inundated the judges with frightful claims of the terabytes of information that would take two years to work through – while conveniently neglecting to mention that, in fact, these were photographic images of results forms. (Images occupy substantial space on databases.)

The question raised by this response is how the IEBC itself managed to sift through the terabytes of information within a week to establish who had won the vote.

In the event, the petitioners were granted the order for the original voters’ register but the IEBC demanded Sh80 million to have it photocopied. But even had the petitioners been able to afford the price of photocopying the register themselves, it would have taken several weeks to produce one and, in the end, the petitioners were simply given a soft copy of the register. This incident serves to illustrate the needless hurdles that the petitioners had to overcome.

The court granted only 2 out of the 20 requests around the scrutiny – allowing access to results declaration forms for the constituency, county and national tallying centres and permitting access to the voters’ register at the petitioner’s cost. The court’s ruling said:

Some of the prayers have been declined due to the sheer impracticability of their implementation given the short time left for the determination of the petitions at hand. Others have been declined because they were not pleaded with sufficient particularity in the Petition. Yet others were declined on grounds that they are couched in such general terms as to be no more than fishing expeditions.

The court had explained that the prayers had been “declined on the basis of very clear grounds, which will be elaborated in a detailed version of this ruling to be issued by the Court at a later date”. More than 18 months since that ruling was read out in open court, those reasons are yet to be made public.

Scrutiny is intended to demonstrate openness of the electoral process, wrote Justice Maraga in a 2016 paper, adding that it was one of the tools courts used to ascertain the integrity of an election. It is a court-supervised forensic investigation into the validity of votes cast and the subsequent determination of who ought to have returned as the winning candidate.

Scrutinising the servers

The decision to allow scrutiny of the servers in the August 2017 petition was notable in its provisions (showing a court that had a firm grasp of ICT matters), a far cry from what had happened in 2013. The orders on ICT were detailed and authoritative, indicating that the court’s ICT literacy was higher than it had been in 2013 when arguments about Uhuru Kenyatta’s The National Alliance (TNA) party sharing a results platform with the IEBC seemed to fly over the judges’ heads. There was a certain burden that the court understood it needed to discharge to command respect in the wider judiciary.

Although the 2013 scrutiny showed appalling errors, with some polling stations recording turnouts as high as 203 per cent, and numerous discrepancies between the votes announced and those recorded in the official result forms, the lawyers for Odinga were unable to create a coherent narrative that would force the judges to confront what had happened in the election.

The scrutiny in 2017 was a marked departure from what had transpired in 2013 when the Supreme Court ordered the Chief Registrar of the Judiciary to take charge of the exercise. That scrutiny got underway in fits and starts more than 24 hours after it was ordered, and was characterised by systems collapse, poor coordination and unequal representation of the various parties. Davis Chirchir and Winnie Guchu, who had both been members of the IEBC’s predecessor, the Interim Independent Electoral Commission, and were now working for The National Alliance Party, were present throughout. In contrast, lawyers for Raila Odinga showed up one evening at 8 pm, milled around the hall at the Kenyatta International Conference Centre for an hour, and left. By the time the court was being informed that the scrutiny had not been completed, Odinga’s lawyers had no report of their own to file.

Although the 2013 scrutiny showed appalling errors, with some polling stations recording turnouts as high as 203 per cent, and numerous discrepancies between the votes announced and those recorded in the official result forms, the lawyers for Odinga were unable to create a coherent narrative that would force the judges to confront what had happened in the election.

During the August 2017 petition, the petitioners sought to make the scrutiny produce the smoking gun that would prove their case. They alleged that not all the records of the vote count in the presidential election had been received at the national tallying centre when the results were announced; thousands of polling station results documents and scores of constituency results were missing, a claim acknowledged by the IEBC.

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Their lawyers asked the court to order a scrutiny of these documents. They also sought an audit of the servers, alleging that the IEBC’s system of electronically transmitting results from polling stations and constituencies had been compromised.

The judges not only allowed the scrutiny and the audit, but also ordered the registrar of the Supreme Court to supervise it. Petitioners and respondents were allowed two agents each while the lawyers for each side would be granted 15 minutes to make submissions. The court ordered the registrar to produce reports of the scrutiny and audit by 5 pm two days later.

The registrar of the Supreme Court supervised the scrutiny of the results forms, which took place at the Milimani Ceremonial Hall in Nairobi. A staff member of the court’s ICT department and two independent, court-appointed ICT experts oversaw the audit of the IEBC servers at the commission’s headquarters at Anniversary Towers in Nairobi. There had been disquiet at the commission, especially around the ICT system – and with good reason; Chris Msando, the commission’s head of ICT had been found brutally murdered barely a week to the election.

At noon on Tuesday 29 August 2017, James Orengo, Odinga’s lead advocate, reported to the court that the audit of the servers had not yet begun. By way of explanation, IEBC lawyers claimed that the delay in allowing access to the servers was due to the fact that the system’s high-level security was based in France – a two-hour time difference with Kenya – and their suppliers were still asleep at 9 am Kenya time when the audit was supposed to have begun.

The stonewalling hid a major flaw in the system: the server simply wasn’t there. A report by the Auditor General later revealed that most of the equipment that was to be used to transmit and interpret results had not been delivered, while part of the equipment for processing the results at the data centre was delivered five months after the 8 August 2017 election.

Justice David Maraga asked the parties to work together to comply with the order so that the court could receive a report by 5 pm, or reasons for the failure would have to be provided. “If some of your clients’ agents are in Europe, or wherever, they must have been told yesterday. Wake them up and get the order complied with,” he said.

The stonewalling hid a major flaw in the system: the server simply wasn’t there. A report by the Auditor General later revealed that most of the equipment that was to be used to transmit and interpret results had not been delivered, while part of the equipment for processing the results at the data centre was delivered five months after the 8 August 2017 election. The country had gone to the election without a back-up database for transmitting results and the IEBC did not have the capacity to analyse the data it received from the polling kits.

The reports on the scrutiny and audit were ready when the court reconvened just after 9 pm on Tuesday, 29 August. Orengo stated that the court’s order had only been partially complied with; the GPS locations for each of the Kenya Integrated Election Management System (KIEMS) devices used at the polling stations were not released. The read-only access to the servers the court had ordered had not been granted and agents were only given live access; they could not view or access the logs or see the log-in trail of users.

The 20-hour court-ordered scrutiny of results from the 8 August presidential election raised red flags for documents from at least 63 constituencies, 30 of which did not have a serial number and another 33 of which did not have a security watermark. Some were unsigned and others had typographical errors. Some forms were printed in landscape layout instead of the standard portrait layout of the original forms. Some forms had candidates’ first names printed before their surnames whereas on the standard form the surname preceded the first name.

The 30 constituencies that filed results forms without a serial number accounted for 1,407,746 valid votes, while documents for the 33 constituencies holding 1,850,706 valid votes failed the ultra-violet test because they did not have a watermark.

In his comments about the audit, Orengo said that the scrutiny of the forms showed that some did not have security features, others did not have serial numbers, and close to two-thirds of them did not have the handover section filled out. He said that the court audit had revealed that the election had been “shambolic”.

“Our case has been proven that forgery, trickery and alteration of documents has been used in various ways. We pray you should declare the election of the third respondent as not valid and not in accordance with the constitution,” he added.

But lawyer Fred Ngatia, who represented Kenyatta, said, “It is a fair report. It is our submission that this report fortifies what we have said all along that this election was a fair election.”

Justices Maraga, Mwilu, Wanjala and Lenaola constituted the majority that voted to annul the election of Uhuru Kenyatta for not having been done in accordance with the Constitution and the law. Dr Willy Mutunga’s students at university (Justices Maraga, Wanjala, Ibrahim and Lenaola) appeared to have improved on the record of their teacher.

Justices Jackton Ojwang and Njoki Ndung’u disagreed. Justice Ibrahim, who had been taken ill on the second day of the hearings, did not vote.

Justice Ndung’u, in her dissenting opinion of 1 September 2019, questioned the results of the scrutiny and wrote in detail about her own private examination of the documents in question, which produced different results. Justice Maraga felt compelled to repeat his opening statement after the dissenting opinions had been read out in open court: “The greatness of a nation lies in its adherence and its fidelity to its Constitution, and its strict adherence to the rule of law …”

Days later, Kenyatta’s Jubilee Party accused Supreme Court registrar, Esther Nyaiyaki, of doctoring the scrutiny and insinuated that she had colluded with the petitioners to massage the results. For good measure, the Ethics and Anti-Corruption Commission (EACC) began an inquiry into the allegations of impropriety on the part of the registrar. It remained an open question and, during the petition against the repeat presidential election, the Supreme Court granted limited access for scrutiny and the registrar kept a low profile.

Civil society as petitioner

All presidential election petitions in Kenya have been filed on the deadline day – hinting at the pressure under which they are prepared. They have also been decided within the constitutional deadline of 14 days after filing.

The data centre at InformAction offices, where some of the evidence for the civil society-backed petition was being assembled, had to be moved several times when staff and volunteers noticed a military helicopter circling over the compound for hours.

In the run-up to the 26 October 2017 repeat election, police officers had attempted to forcibly enter the Africa Centre for Open Governance offices to shut it down for alleged tax transgressions. Its Executive Director, Gladwell Otieno, had been one of the petitioners challenging Kenyatta’s 2013 election. The Kenya Human Rights Commission, another critical civil society actor, was being threatened with closure over alleged financial impropriety.

The data centre at InformAction offices, where some of the evidence for the civil society-backed petition was being assembled, had to be moved several times when staff and volunteers noticed a military helicopter circling over the compound for hours. Katiba Institute suffered a major power outage in the week before the deadline for filing a petition. All these organisations were working together under the Kura Yangu Sauti Yangu (KYSY) initiative to support free, fair and credible elections.

With threats and physical attacks on civil society organisations escalating as the deadline for filing the November 2017 petition drew near, the team preparing the case for civil society activists Njonjo Mue and Khelef Khalifa worked discreetly through the nights from a secret location.

They had up to midnight of the last day to file the petition. The court required eight copies for itself and several others for the different parties. The main challenge was ensuring that everything was filed on time. Some important documents had to be couriered by motorcycle to get to the registry on time.

Though they had hastily put together a strong petition, the petitioners’ lawyers felt the deck was stacked against them right from the start. There was hostility even at the registry, with court staff providing misleading information about the time of filing papers.

The respondents had put together an impressive assembly of legal talent to represent them — mostly senior lawyers and household names in Kenya. The petitioners’ lawyers were a team of experienced but younger lawyers. Kenyatta’s and the IEBC’s lawyers then used their seniority to obtain better treatment from the court. The lawyers for the petitioners felt that they were before a court that had already made up its mind – a court that appeared to be looking for reason and justification not to entertain the petition in spite of the strict standards it had set for the IEBC when it overturned the first election.

There were no friendly faces on the bench, but some judges were egregious. Judges appeared to take pleasure in demolishing the evidence and the manner in which it was introduced. One lawyer noticed that Justice Ojwang was being particularly hostile towards Julie Soweto. He appeared to be cross-examining Soweto when she began reading the resignation statement by former IEBC commissioner Roselyn Akombe. “He descended into the arena of litigation. Of all the judges, he was the one that was hardest on us,” said one of the lawyers on the team. “It was like we were litigating against them.”

Lawyer Jane Odiya, an experienced advocate, led the team that went to access the election results forms. She was accompanied by young data entry professionals and university students. Even though they were working under a tight deadline, the scrutiny team was initially stonewalled and then given the run-around at the IEBC’s Anniversary Towers offices. “The IEBC officials slow-walked the scrutiny even though we had the court order in hand,” recalls Haron Ndubi, co-counsel for the Mue-Khalifa petition.

Although IEBC lawyers accompanied the scrutiny team to the commission’s offices, they quickly left after giving assurances that the process would go on smoothly. That was not to be; IEBC officials took a long time to supply files. The scrutiny team wandered the halls of Anniversary Towers with no one to assist them. The IEBC corridors were teeming with people who looked like plainclothes police officers and who followed the scrutiny team everywhere, including into elevators and out of the building. One lawyer said she believed some of the officers trailed them in a vehicle as they went home.

The sense of frustration among the scrutiny team was palpable and, after tempers flared, the team was led into a cosy office at Anniversary Towers where they found lawyers for the commission and a senior IEBC official, who assured them that the conference room for examining the results documents was now ready. Once inside the conference room, the reason for the delay became quickly apparent: the Jubilee team, consisting of lawyers and party officials, like lawyer Faith Waigwa, was already present.

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The files were not to be copied during the scrutiny. The team could not enter the boardroom with their phones or stationery of any sort. The ban on any writing material was enforced with the help of plainclothes police officers posted at the door. The head of the scrutiny team had to go back to the Supreme Court to seek clarification on the order they had received. It was only after the judges stressed that the team could write down their findings that the exercise resumed. “We felt tortured,” admitted one of the petitioners’ advocates.

After the scrutiny, the team quickly put together its report, and the advocates fought to have it admitted into the record. The court declined, defeating the purpose for which the orders had been sought and issued. The court said the scrutiny report was merely one party’s view and not a rigorous finding arrived at by all parties to the petition. Both Kenyatta’s and IEBC’s representatives had been present when the petitioners scrutinised the results documents but they were there more to impede the process than to participate in it. The scrutiny fell short of the legal definition of one — it was, to be generous, a review of the documents.

The petitioners asked why the forms used to collate the presidential results differed from those the IEBC had brought to court. They further pointed out that the numbers shown in the election portal differed from the ones on the collation forms.

The rejection of the report and the limitation of its scope “broke all of us,” admitted another advocate who worked on the petition.

They believed that a proper scrutiny would have made plain the far greater illegalities in the 26 October election than even those found in the 8 August poll that had been nullified by the Supreme Court. The lawyers point out that the fact that the judges did not entertain the scrutiny gave away the endgame; the petition would be thrown out.

Yet, what the Supreme Court was being asked to do in the November petition was not easy. Even if there were merits to the case, it would be very difficult for a president to accept that he had lost the election, petitioned by a group of civil society activists. Privately, some of the judges felt that Odinga should have come back to court. Still, nullifying one election and paying such a heavy price for doing so had blunted the appetite for a repeat performance, unless a senior political player was asking for it.

After Odinga withdrew from the fresh election a mere fortnight to polling day, the Supreme Court felt that it need not enter into a political dispute. Perhaps the judges would have been less irritable had they felt that the political contestants were taking them more seriously. In the event, the judges treated the petitioners as if they had brought the petition as proxies for Odinga’s National Super Alliance (NASA).

From the outset, the court’s attitude had betrayed the judges’ reluctance to entertain the petition. They dismissed it and unanimously found that Kenyatta had been validly elected. They found no fault with anything that the electoral commission had done in the fresh election. NASA expressed sympathy with the court, saying that the judiciary had been intimidated but the judges too felt abandoned by the political players.

Kenyatta would be sworn in as president on 28 November 2017 at a stately but sparsely populated inauguration ceremony presided over by the Chief Justice. Would this judicial mea culpa suffice to heal the rift between the Judiciary and the Executive?

The full judgment, released on 11 December 2017, read in part: “The … petitioners have not discharged the burden of proof to the standard established by this Court. At no time, in our view, did the burden shift to the [first] and [second] respondents.”

The court tipped its hand by blaming the petitioners for the shortcomings of the IEBC. Although the petitioners made serious allegations against the IEBC and its capacity to conduct an election, in their ruling, the judges blamed the petitioners for failing to provide proof of the allegations.

The judges pointed to the disenfranchisement of a huge swathe of the country that did not vote on 26 October and, curiously, blamed it on the petitioners. This again shows that the judges seemed to treat the petitioners as if they had brought the petition as NASA proxies. The judgment noted that the violence that took place in certain areas where the election could not be held was promoted by the petitioners. The court’s judgment failed to create future disincentives for electoral fraud and malpractice.

Law scholar Muthomi Thiankolu has faulted the Supreme Court for failing to appreciate the informational asymmetry between the IEBC and potential petitioners. He argues that given this imbalance, the court ought to adopt an inquisitorial rather than an adversarial approach in proceedings.

The judges pointed to the disenfranchisement of a huge swathe of the country that did not vote on 26 October and, curiously, blamed it on the petitioners. This again shows that the judges seemed to treat the petitioners as if they had brought the petition as NASA proxies. The judgment noted that the violence that took place in certain areas where the election could not be held was promoted by the petitioners. The court’s judgment failed to create future disincentives for electoral fraud and malpractice.

In the 2013 petition, the Supreme Court had pronounced on the effect of a candidate withdrawing from a fresh election or dying after the nullification of an election; in such a case, a fresh poll having all the characteristics of a new election (such as fresh party nominations) would have to be held. In the November 2017 decision, the court walked away from that observation.

As Kenya marked its 55th anniversary of independence on 12 December 2017, the Judiciary was silently marking the end of its 60 days of independence.

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The Evolving Language of Corruption in Kenya

A cabal of politicos has appropriated the everyday language of hardworking Kenyans to camouflage their intentions to perpetuate corruption and state capture.



The Evolving Language of Corruption in Kenya
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Andrew Ngumba had a curious way of explaining away institutionalized corruption every time he was accused of engaging in it. “In the days gone by, before the village elders arbitrated any pressing or thorny issue, they would be offered libation just before the deliberations and then thanked with a goat thereafter, as an appreciation for a job well done.”

Those who are old enough will remember Ngumba, who died in 1997, as the mayor of Nairobi from 1977–1980. He later became the MP for Mathare constituency, renamed Kasarani, from 1983–1986. Ngumba estate, off Thika highway, next to East African Breweries, is named after the canny entrepreneur-politician, who founded Rural Urban Credit Finance Limited, dubbed the “ghetto bank”. The finance house collapsed in 1984 and Ngumba sought political refuge in Sweden.

Just like your archetypal politician, the wily Ngumba would with characteristic panache then ask, “Was the libation and the goat a form of saying ‘thank you for your time’ to the elders, or was it just plain corruption?” His cheekiness aside, which Kenyan society was Ngumba describing? Pre-colonial, before the advent of British settlers and missionaries? Or was he referring to a pre-urban, rural-setting Kenya, before it was contaminated by colonialism, modern capitalism and corruption?

We can imagine what his answer to his own rhetorical question was. Of greater interest, is the way he chose to re-tell the socio-cultural anecdote, with the obvious intention of exonerating himself and like-minded politicians, when caught engaging in bribery and institutional corruption: he implicitly gave a nod to the nefarious activity by normalizing bribery, a vice previously unknown and unexperienced in the very society he was describing.

“Political elites [also] appropriate moral language and social norms to ‘conventionalise’ corruption, fashioning a vocabulary that takes the moral sting from opprobrium, corruption and its various forms,” says Wachira Maina in his report, State Capture – Inside Kenya’s Inability to Fight Corruption. “Corruption is ‘traditionalised’ and reframed as gift-giving or as a form of socially recognizable reciprocity. Corrupt practices are then expressed in the language of moral obligation. No moral wrong is involved when an official or politician from one’s village violates conflict of interest rules or other laws to provide some ‘token benefit’.”

But when is a gift a bribe and a bribe a gift? Let us take the example of the chief – village or otherwise. Until very recently, up to the late 1990s, the chief was a powerful creature bestowed with the powers of “life and death” over his subjects. Until just before the December 1997 general elections, the statutory powers of the chief were many times greater than those of any elected official that you can think of. With the Inter-Parties Parliamentary Group (IPPG) reforms, some of their powers were supposedly clipped.

Picture this: Two parties are squabbling over a land boundary. They must go to the chief for arbitration. On the eve of the arbitration, one of the parties, most probably the one who has encroached on his neighbour’s land, gets a brainwave and pays the chief a visit in advance, ostensibly to remind him of their big day. Because of the unwritten law that it is “culturally rude” to visit a chief “empty-handed”, the visiting party decides to “gift” the chief with whatever, as has happened from time immemorial. One can, without too much effort, imagine the possible outcome of the land tussle the following day.

Chiefs were not only very powerful, they happened to be some of the richest people wherever they reigned. Should we wonder why chiefs as public officials, for example, own some of the biggest chunks of land in their area of jurisdiction? At the grassroots level, a socio-cultural norm was deliberately subverted to allow open bribery and the establishment of institutionalized corruption.

As currently constituted in the country, chiefs are an invention of British colonial rule. They are part of the indirect rule that the colonial government imposed on Kenyans. When Kenya gained independence from the British in 1963, the post-independent government inherited the colonial indirect system of government — the whole kit and caboodle. With their “illegitimacy” and corruption networks carried over and sanctioned by the new African government, chiefs entrenched themselves even further by extending their corrupt patronage networks within the government bureaucratic structures.

During their “reign of terror”, which continues today, chiefs interpreted bribes as “gifts” that had to be given by “force of law”; any person with matters arising at the chief’s court knew that a “gift” had to be carried along. So, even though this form of corruption was covert and not dangerous to the existence of the state, it impoverished and terrorized the poor peasants.

Chiefs were not only very powerful, they happened to be some of the richest people wherever they reigned.

Corruption, as an evolving concept, was introduced into Kenya society by the British colonial government and, the civil service has been known to be the home of institutionalized state corruption since pre-independence Kenya. Think about it, the word corruption does not exist in the lexicons of Kenya’s ethnic communities. In the Kikuyu community, for instance, there is a specific lexicon that describes a thief and theft, but there is no word for corruption per se, because in African societies, corruption, a Western concept (and as defined today), was unknown in many African traditional societies.

Indeed, as Wachira observes in his report released in 2019, “corruption has been a persistent problem in Kenya since before independence, but it has flourished and put down robust roots since the country’s return to multiparty politics in 1992.”

What is corruption? For the longest time, corruption has been defined in the binary fashion of either petty or grand corruption. Political scientists have variously described corruption as an act in which the power of public office is used for personal gain. In other words, the misuse of public resources by state officials for private gain. Corruption has also been described as behaviour that deviates from the formal rules of conduct governing the actions of someone in a position of public authority or trust.

The benefits of corruption are either economic — when an exchange of cash occurs — or social, in the case of favouritism or nepotism. Hence, grand corruption, sometimes referred to as political corruption, involves top government officials and political decision makers who engage in exchanges of large sums of illegally acquired money. Petty corruption involves mid- or low-level state officials, who are often underpaid and who interact with the public on a daily basis.

In his concise report, Wachira notes that “a generation of reforms has not dented the corruption edifice or undone its rhizome-like penetration into the body politic of Kenya.” Why? “Part of the problem is conceptual: How we name corruption and how we understand its character,” points out the constitutional lawyer.

These simple but loaded terms of “petty” and “grand” corruption present a false dichotomy, says Wachira. “Petty” suggests that the corruption is merely an irritant, something people do to speed up things or evade a long queue — a way of “lubricating the system. “The term suggests an expedient with trivial effect, considered case by case. In fact, that characterization is deeply mistaken. . . . Most important, it becomes a fee, because it guarantees that what was initially a free service is no longer so. From a macro-economic perspective, its distortionary effect could be as at least as impactful as grand corruption,” writes Wachira.

That is why petty corruption in Kenya has long been baptized chai, meaning tea, or kitu kidogo, which means something small. It is daily language that is used to camouflage an illegal act by likening it to one of Kenya’s best-known pastimes — drinking tea. Civil servants demand chai from the public in order, they argue, to grease the bureaucratic wheel, which oftentimes revolves very, very slowly and needs to be lubricated for it to move. Chai and Kitu Kidogo have become interchangeable, because “something small” also connotes a kind of “lubricant” that “hastens” service delivery.

The police, especially traffic cops, who are synonymous with petty corruption, have perfected the language of chai-taking more than any other state official such that when Kenyans conjure bribe giving, the first person who immediately comes to mind is the policeman.

The State Capture report says, “Indeed language is in a parlous condition when the bribe a judge takes to free a dangerous criminal is named chai, like a nice ‘cuppa’ tea between intimates.”

During their “reign of terror”, which continues today, chiefs interpreted bribes as “gifts” that had to be given by “force of law”.

The report further states that, “the term ‘grand’ on the other hand can also be misleading if grand suggests debilitating to the state. Implicit in the term is the notion of a corrupt deal of significant size, involving senior officials and high-ranking politicians. Such corruption involves large-scale stealing of state resources and, the theory goes, it erodes confidence in government, undermines the rule of law and spawns economic instability.”

In Kenya, grand corruption has involved such mindboggling money schemes as the Goldenberg and Anglo-Leasing scandals and more recently, the Eurobond scandal. These mega-scams are a result of collusion between state officials and politicians, who over time have formed powerful corruption cartels that have proved inextinguishable.

Why does this corruption on a massive scale not cause moral outrage or shock in the public? Why is it not obvious to all? “There are cases in which the term ‘grand’ corruption fails to communicate the moral shock and magnitude that seems implicit. ‘Grand’ then becomes merely an audit term that simply describes financial scale,” says Wachira. “If that conclusion is right, it would then explain the frequent lack of moral outrage about widespread theft in government, with the result that there will be cases in which characterising corruption as petty or grand implies nothing about its impact or the social and political levers one can push to eliminate it.”

“Grand corruption” in Kenya today has evidently surpassed the current nomenclature; the staggering sums of money stolen have numbed the people’s sensibilities to shock and have refused to register in their psyche. How, for example, can the president have the audacity of treating Kenyans to shock therapy by telling them that KSh2 billion is stolen from the state coffers every 24 hours? That kind of pillage can no longer be termed as corruption, let alone grand corruption. A more appropriate language has to be found; and there can be no other word for it other than theft.

The State Capture report problematizes the matter of the naming of state plunder and discusses at length what could be the problem with language that seeks to explain the massive haemorrhage of state resources orchestrated by unscrupulous individuals. The report notes that corruption in Kenya has been described as a malignant tumour that hampers the government from governing properly “The problem of naming [corruption] is then compounded by medical or sociological language that pathologises corruption. . . . Therein lies the problem: Anti-corruption programmes ‘pathologise’ the relationship between corruption and the state, deploying medical terms like ‘cancer on the body politic,’ ‘a disease that we must cure’ or ‘a pervasive ill’ potentially responsive to curative interventions.

Wachira says,

Even when the language used is sociological rather medical, the pathological dimension stays. Corruption is ‘a perverse culture’ or ‘negative norm’. Both the medical and the sociological language mobilise a deep-seated ‘conviction that there is something pathological – an illness – within [Kenya] politics and culture’. This suggests that what the reformers must do is ‘to identify this pathology’ and formulate a diagnosis that examines the Kenyan society and brings to the surface the ‘fissures and contradictions’ that explain the graft.

In his report, Wachira goes on to say, “The medical perspective that implies that the state has gone awry and can be put to rights with an appropriate intervention is pervasive. Implicit in the diagnosis and the proposed cure is the thought that the state is constructed for some legitimate — or benign — purpose that has been perverted by corruption.”

Joseph G. Kibe, a Permanent Secretary in six different ministries in the 1970s, was once interviewed about his experience working as a top government bureaucrat, many years after his retirement in 1979. Said Kibe, “In those days, I could see some kind of low-level corruption starting to creep in, especially involving clerks. For instance, in the Lands Office, they would remove one file and hide it away from where the index shows it is and wait until the owners of the land wanted to conduct a transaction at which point they would ask for a bribe.”

The same low-level corruption has been rampant in the corridors of justice. The low-paid court clerk in the magistrate’s court “disappears” a case file so that he can solicit a bribe to enable the miraculous re-appearance of the “lost” file.

“A generation of reforms has not dented the corruption edifice or undone its rhizome-like penetration into the body politic of Kenya.”

The former PS, who went on to work for Transparency International (TI) Kenya Chapter, said in 2004, “Corruption had crept into ministries, departments and government corporations and was likely to entrench itself unless it was stopped. With corruption you give up development because all resources you have, only a little will do good. A lot will be taken away for personal use.”

Because the patronage networks created by the civil service and the political class have ensured that corruption is profitable and has high returns, it has become extremely difficult to fight the vice. “The difficulties of fighting corruption lie in the union of corruption and politics; a union in which, at least since Goldenberg scandal, a power elite has captured the state, especially the Presidency and the Treasury and repurposed the machinery of the government into a ‘temporary zone for personalised appropriation’” says Wachira.

State capture is a term that was popularized in South Africa, a country that since its independence 27 years ago, has witnessed some of the biggest state scandals since the end of Apartheid. “What is at play in Kenya [today] is ‘state capture’ defined as a political project in which a well-organised elite network constructs a symbiotic relationship between the constitutional state and a parallel shadow state for its own benefit”, explains the State Capture report.

The success of the state capture rests on the ability of a small group of powerful and rich operatives to take over and pervert the institutions of democracy, while keeping the façade of a functioning democracy. Thus, oversight institutions are weakened; law enforcement is partisan and in the pockets of the politicians; civic space is asphyxiated; free elections are frustrated and are typically won by the most violent or the most corrupt, or those who are both violent and corrupt. Arrest and indictments are often the precursor of inaction, not proof of official will to fight corruption.

“Corruption eats at the moral fabric of the nation,” once said Harris Mule, one of the finest PSs to have served at Kenya’s Ministry of Finance. “Positive norms and traditions, once appropriated by the corrupt, instantly transform themselves into curses. Take the uniquely Kenyan institution of Harambee, as an example. It has been changed from what was once a positive manifestation of the culture of philanthropy and community service, into a political tool that fails to deliver what it promises.”

Mule further said, “Corruption causes poverty by promoting unfair distribution of [the] national income and inefficient use of resources. Poverty and inequality in turn breed discontent and can cause national instability. The political implications of sharp economic inequalities are potent.” The former PS was clear in his mind that corruption was the art of “transferring state assets into private hands at the expense of the public interest and purse.”

Harambee, which means, “pulling together”, was a noble idea that tapped into the egalitarian and altruistic nature of African society, that of pooling their meagre resources together for the public good. It was very popular throughout the 1970s and 1980s and to a lesser extent in the 1990s. When Mwai Kibaki came to power in 2003, his government instituted a probe into the now much-maligned popular group effort. Wachira explains that,

As the report of the Task Force on Public Collections or Harambees showed clearly, politicians are the largest donors to ‘charitable’ causes — churches, schools, higher education and funerals are firm favourites — to which they give fortunes that are many times more that their own legitimate incomes. Such charity is, in truth, a bait and switch ploy: once moral institutions buckle to the lure of corruption money, the corrupt buy absolution and are free to dip deeper into the public coffers.

Both the Jomo Kenyatta and Daniel arap Moi regimes misused the Harambee spirit for self-aggrandizement. Mzee Kenyatta, who hardly gave any money towards any Harambee effort and if he did, it was a symbolic sum, expected Kenyans to contribute to his Harambee causes, which were baptized all manner of noteworthy names. The monies were not accounted for and nobody would dare ask how the funds raised were spent, whether they were spent on the causes for which they had been contributed. In many instances, the money collected went to line the pockets of Mzee’s friends.

During Moi’s time, Harambee was used by civil servants, especially chiefs, to solicit bribes and favours from people calling into government offices for services that are meant to be free. A citizen visiting a chief’s office to obtain a personal identification document would be presented with a card for a Harambee by the chief and his subordinates. If you wanted to be served at the Ministry of Lands for example, you would be presented with a Harambee card by a junior officer acting on behalf of his boss. Yours was not to question the authenticity of the card, why a public office was presenting a Harambee card to and all sundry, or why it was “mandatory” to contribute before being served in a public office. If you did, you would be called an “enemy of development” and labelled anti-Nyayo.

Why does this corruption on a massive scale not cause moral outrage or shock in the public?

Just after the Narc party was swept into power in 2003, the country witnessed a “citizen’s jury” at work: it exposed and sometimes went as far as making citizens’ arrests of errant police officers caught engaging in bribery. But what happened to citizens’ arrests? It was just a matter of time before the citizens themselves caved in and returned to offering the same bribes to the very same police officers. Why? Because they realized belatedly that to fight institutionalized corruption in Kenya, there must be goodwill and concerted effort from the government: the fish rots from the head and the fight against corruption must begin at the top.

Since 2013, corruption seems to have acquired a new word to camouflage it – hustler. Under the Jubilee government, “hustler” has come to describe tenderpreneurs masquerading as the toiling masses. It is the new lexicon that has been adopted by a cabal of people intent on raiding government coffers, a cabal that has appropriated the everyday language of Kenyans who eke out a living the hard way. It is the latest socio-cultural jargon that has been unleashed on the political landscape by a network of politicos intent on acquiring state power so that, in their turn, they can perpetuate state capture.

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Pan-Africanism in a Time of Pandemic

Solidarity conferences have been replaced by aid conferences called by “donors”. What we need is a Pan-African conference organised by movements and individuals committed to human development.



Pan-Africanism in a Time of Pandemic
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There was a time, in the last century, when the under-privileged of the world shared a common understanding of the causes of their condition. Today the causes manifest in vaccine Apartheid. That the COVID-19 pandemic should find most African countries with less than one doctor and less than ten beds per a thousand of their population shows the failure of the development efforts of the past 60 or so years. The same countries all struggle with unsustainable debt, which is still being paid during the pandemic and has been increased by the COVID debt. When the global emergency was declared in January 2021, development partners began to hoard personal protective equipment. When vaccines became available a year later, there was insufficient production capacity to meet world needs. The same development partners rejected the option of allowing African countries to manufacture the vaccines on the continent. They hoarded their supplies until they were nearly expired before donating them to African countries.

In the 1950s, there would have been a different reaction. By then, African and Asian countries were moving inexorably towards independence. Organised by Indonesia, Myanmar (now Burma), Ceylon (now Sri Lanka), India, and Pakistan, African countries attended the Bandung Conference of 1955 with economic and social development in mind. Then as now, China and the United States were on opposite sides of the Cold War and each sought to influence Africa while Africa sought non-alignment in order to freely pursue her development goals.

For one week in Bandung, Indonesia, twenty-nine African and Asian heads of state and other leaders discussed the formation of an alliance based on five principles: political self-determination, mutual respect for sovereignty, non-aggression, non-interference in internal affairs, and equality. The ten-points in the communiqué released after the conference became the governing principles of the non-aligned movement and they included self-determination, protection of human rights, the promotion of economic and cultural cooperation, and a call for an end to racial discrimination wherever it occurred. The alliance began to disintegrate when India and Yugoslavia shunned the radical stand against Western imperialism, leading to the organisation of a rival non-aligned conference in 1965. The 1965 conference was postponed.

While there was no follow-up to Bandung, the ideals it stood for were being espoused by other formations. On the African continent, the Casablanca Group—the precursor to the Organisation of African Unity (OAU)—had a membership of five African states: Egypt, Ghana, Guinea, Mali, Libya, and Morocco. The All-African Peoples’ Conference (AAPC) took place in Cairo in 1958 after the founder, Uganda’s John Kale, was inspired by his attendance at the Afro-Asian Peoples’ Solidarity Conference the previous year. It was a meeting representing peoples and movements and not just states. The conference demanded the immediate and unconditional independence of all the African peoples, and the total evacuation of the foreign forces of aggression and oppression stationed in Africa.

The All-African People’s Conference recommended African co-operation in the interest of all the Africans, denounced racial discrimination in South, East and Central Africa, and demanded the abolition of apartheid in South Africa, the suppression of the Federation of Nyasaland (Malawi) and Rhodesia (Zimbabwe), and independence for the two countries.

The Afro-Asian People’s Solidarity Organisation (AAPSO) organised a conference in Cuba in 1957. The 500 delegates to the AAPSO conference represented national liberation movements as well as states and after a number of such gatherings, AAPSO resolved to include Cuba and Latin America in its membership. Thus was the organisation of Solidarity with the People of Asia, Europe, Africa and Latin America (OSPAAAL) born.

The activities of OSPAAAL included financial support for the anti-colonial struggle in Palestine and for South Africa’s Africa National Congress (ANC). American aggression towards Cuba and its blockade of Vietnam were denounced and global solidarity was shown to political activists under threat of arrest. The movement solidified in the 1966 Tricontinental Conference in Havana, Cuba. The Solidarity movement established a think tank, the Tricontinental Institute for Social Research which produced educational materials in the form of newsletters, articles and the now iconic revolutionary art. This work continues to this day.

For the next decade, Cuba provided support to the armed struggle for independence in Angola, Mozambique, Guinea Bissau and Equatorial Guinea, and to South Africa’s ANC. Fidel Castro was a familiar face on the diplomatic circuit and received Julius Nyerere of Tanzania, and other leaders, in Havana.

The United States government was caught between the expectations of its allies, the former colonial powers and those of the soon-to-be independent countries whose alliance it sought. The civil rights movement in the United States was a thorn in its side as it appealed to Africans in the Independence movement. America chose her traditional allies and neo-colonialism put down roots.

Regardless of that, leaders of African and American movements interacted, learning from each other; Julius Nyerere, Kenneth Kaunda, and a number of other leaders of the day met Kwame Nkrumah at Ghana’s independence celebrations in 1957. Martin Luther King was also there. Reflecting on the cost of freedom and mentioning Egypt, Ethiopia, South Africa, Uganda, Nigeria, Liberia and Kenya, King later wrote, “Ghana reminds us that freedom never comes on a silver platter. It’s never easy. . . . Ghana reminds us of that. You better get ready to go to prison.” Following a visit to Nigeria in 1960, King reported,

I just returned from Africa a little more than a month ago and I had the opportunity to talk to most of the major leaders of the new independent countries of Africa and also leaders of countries that are moving toward independence [. . .] they are saying in no uncertain terms that racism and colonialism must go for they see the two are as based on the same principle, a sort of contempt for life, and a contempt for human personality.

Today Dr King would probably have added predatory debt to that list.

Malcolm X visited Egypt and Ghana in 1959 and met Gamal Abdel Nasser and Kwame Nkrumah. In 1964, he spoke at the OAU conference in Egypt. He went to Tanzania and to Kenya where he met Oginga Odinga and Jomo Kenyatta. Back in New York Malcolm X related his experience: “As long as we think—as one of my good brothers mentioned out of the side of his mouth here a couple of Sundays ago—that we should get Mississippi straightened out before we worry about the Congo, you’ll never get Mississippi straightened out.” Prophetic words. Just this month the President of the United States warned against a “Jim Crow assault” on the voting rights of people of colour and the under-privileged that were won in 1965 after a long and hard civil rights struggle.

By the time the Bandung Conference was taking place, Frantz Fanon had already published Black Skin, White Masks and was to follow it up with A Dying Colonialism and The Wretched of the Earth. Walter Rodney’s How Europe Underdeveloped Africa would appear in 1972. There was an explosion of global awareness of Africa. Musicians like Miriam Makeba, Hugh Masekela, Letta Mbulu, and Caiphus Semenya and others became known in Europe and America as they raised awareness about apartheid. African fashion became the signature of the civil rights movement. On the African continent, the Second World Black and African Festival of Arts and Culture (Festac77) was held in Lagos, attracting 59 countries. Exhibits ranged from David Aradeon’s African architectural technology to work by the Chicago Africobra arts collective. The welcome given to the American diaspora contingent at the venue is testament to the sense of oneness that prevailed at the time.

Yet here we are in the new millennium facing identical existential crises. Palestine has lost over half the territory it had in 1966. The televised ethnic cleansing taking place in the country is openly supported by American aid. The Republic of South Africa has found that the end of apartheid may only have been the beginning of the struggle for human development. The country is just emerging from three days of looting and burning by impoverished citizens. Cuba is still under a US embargo and there was even an attempt to blockade medical supplies being shipped to Cuba for the fight against COVID.

Cold War tensions between China and the West have been revived with the United State’s growing opposition to China’s Belt and Road Initiative. China has remained faithful to the non-interference principle, to the extent of transacting business with African leaders without regard to that other principle, the observance of human rights.

While most African countries are nominally independent, this has not brought development as they had envisaged it. Now, as in 1966, the main economic activity is the export of raw commodities. Africa’s Asian partners in the Bandung Communiqué have long since moved out of the realm of what used to be called “The Third World”. Malaysia, at number 62 out of 189 countries listed on the Human Development Index, is ranked as a Very High Human Development Country. Indonesia, the host of the Bandung Conference, is in the High Human Development category, with a ranking of 107. India, which abandoned the spirit of Bandung, is a medium human development country (ranked 131) while Yugoslavia ceased to exist. Only eight African countries are highly developed, while 30 fall in the Low Human Development category. Within that category, Uganda slipped down one place in 1997 and is ranked 159.

Solidarity conferences have been replaced by aid conferences called by “donors”. They are no longer organised by activists like the Moroccan Mehdi Ben Barka who, together with Chu Tzu-chi of the People’s Republic of China, organized the Tricontinental Conference (Ben Barka was abducted and “disappeared” in 1965 before the conference took place.) or John Kale.  Recent conferences have been organised by European heads of state or United Nations bodies. India and China organise their own conferences for Africa, having transitioned to the ranks of developed countries. Attending delegates are the residual wretched.

The India–Africa Forum Summit (IAFS) inaugurated in 2008 is scheduled to be held once every three years. The France-Africa Finance Summit is an initiative of French President Emmanuel Macron whose various remarks about Africa on his tour of the continent were perceived as racist and disparaging.

At the Forum on China-African Cooperation (FOCAC) in Johannesburg in 2015, China offered US$60 billion in development assistance, US$5 billion in the form of grants and the rest in loans. Attendance by African heads of state was higher than for the most recent African Union Conference; only six did not turn up (but were represented).

Attending delegates are the residual wretched.

The following year FOCAC was held in Beijing. On the first day, members of the American Congress issued a statement condemning China’s predatory lending to African and Asian countries. They argued that the recipient countries eventually wound up needing to be bailed out by the IMF, mostly with American money, thereby transferring American capital to China. For his part, the beleaguered president of economically battered Zimbabwe received the offer of another US$60 billion with fulsome gratitude, saying President Xi Jinping was doing what “we expected those who colonised us yesterday to do.”

The International Development Association for Africa: Heads of State Summit held on 15 July 2021 was a World Bank exercise. The agenda, according to their website, was “to highlight the importance of an ambitious and robust 20th replenishment of the International Development Association.” In other words, it was about increasing members’ debt. These days “cooperation” means aid – with strings attached – not solidarity. This year there will also be a virtual African Economic Conference (AEC) to discuss “Financing Africa’s post COVID-19 Development”. It is organised by the United Nations Development Programme, the African Development Bank and the Economic Commission for Africa.

Of the original anti-colonial activist countries of the 1960s, most Asian countries are in a position to offer solutions to economic questions; they compete in the global arena manufacturing pharmaceuticals and agricultural technology. China has mastered all of the foregoing as well as dominating foreign infrastructural development investment. The African bloc stands alone in not being organised enough to participate in the global discourse except as receivers of aid.

It is true that together with Latin American countries, resource-wealthy African countries have endured Western-engineered coups d’état and other debilitating interference but the dynamism of Gamal Abdel Nasser, Patrice Lumumba, Kwame Nkrumah and Amilcar Cabral is missing. In its place is the renewed use of the once hated colonial public order laws to quell dissent against corruption and repression.

These days “cooperation” means aid – with strings attached – not solidarity.

Two decades after Lumumba’s assassination, the less wealthy Burkina Faso lit the path to self-sufficiency before the country’s radical president, Captain Thomas Sankara, was assassinated with French connivance. Three months earlier, Sankara had called for the repudiation of debt at an Organisation of African Unity Conference. The delegates were stunned as can be seen from the expression on the late Kenneth Kaunda’s face.

The last African-Asian Conference organised by Africa may or may not be more of a memorial than the birth (re-birth?) of the solidarity movement. On the 50th anniversary of the original Bandung Conference, in 2005, Asian and African leaders met in Jakarta and Bandung to launch the New Asian-African Strategic Partnership (NAASP). They pledged to promote political, economic, and cultural cooperation between the two continents. An interesting outcome was their communiqué to the United Nations General Assembly and the Security Council concerning the development of Palestine. On the cultural front, there is talk of a third Festac.

Then there is Cuba, host of the 1966 Tricontinental Conference. Cuba ranks as a high human development country and has the highest doctor-patient ratio in the world—more than double the concentration in the US—and the most hospital beds per 10,000, nearly double what is available in the US. Cuba also has the highest pupil-teacher ratio in the world. Out of necessity due to the economic embargo imposed on it, and being unable to import fertilisers, Cuba pioneered vermiculture, a technique now in use globally. The country manufactures 80 per cent of its vaccines and has five COVID-19 vaccine candidates (two are being used under emergency licence like AstraZeneca, J&J and the other Western products). While Western pharmaceutical manufacturers took an early decision to bar Africa from manufacturing its vaccines on intellectual property grounds, Cuba is willing to transfer its technology to countries that need it. Funds should have been no object as the African continent is awash with COVID Emergency Response funds borrowed from the World Bank and the IMF. This is the kind of development that has been sought for the last sixty-plus years.

The dynamism of Gamal Abdel Nasser, Patrice Lumumba, Kwame Nkrumah and Amilcar Cabral is missing.

But Africa is not talking to Cuba about developing vaccine capacity. African leaders are waiting for UNICEF, appointed by the World Bank, to procure Western-made vaccines for them with funds they shall have to repay. In Uganda, delivery is expected in six months. Meanwhile, Norway and others are donating small amounts of vaccine, hardly enough to cover the twenty-nine million Ugandans that will give us immunity. The Indian-manufactured brand, AstraZeneca, is not recognised in Europe and will prevent recipients travelling there.

The Conscious Era began to wind down with the accession of leaders of independent African states more interested in the instant gratification of cash inflows than in the principles of the past. Yoweri Museveni had the opportunity to learn from the Cuban model when he met Castro in the early months of his rule. As it turned out, he was only wasting El Comandante’s time. Despite condemning his predecessors’ SDR177,500,000 debt to the IMF during the Bush War, Museveni’s SDR49,800,000 structural adjustment facility was signed on 15 Jun 1987—he had been in power for just eighteen months. Since then he has extended his credit to SDR1,606,275 (US$2,285,199.26) from the IMF alone. New debt to the World Bank (contracted since 2020) amounts to US$468,360,000.00. A separate COVID Debt owed to the World Bank amounts to US$300 million so far while over US$31 million is owed to the African Development Bank. These funds have not been used to purchase vaccines.

The Black Lives Matter movement has echoes of the Black Power movement of the 1960s. The movement is strong on showing solidarity with persecuted activists and victims of racism through online campaigns. BLM chapters are in solidarity with Ghanaian activists. Like the Tricontinental Institute, BLM has made attempts to educate, for example via the Pan-African Activist Sunday School. What is needed is another Pan-African conference organised by movements and individuals committed to human development.

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Protests, Chaos and Uprisings: Lessons from South Africa’s Past

The recent riots are an attempt to force change after years of neglect by a state that has remained aloof and uninterested in the economic and social dispossession of the African majority.



Protests, Chaos and Uprisings: Lessons from South Africa’s Past
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The current upheavals across South Africa are ostensibly in response to former President Jacob Zuma’s arrest (or surrender) on 8 July 2021. But contrary to the misinformation in circulation, Zuma was not arrested on charges of corruption, racketeering and for diverting state assets and resources to a circle of cronies including the Gupta family. His reluctance to appear before the Zondo Commission led Deputy Chief Justice Raymond Zondo, the Chair, to issue a warrant for Zuma’s arrest for contempt of court.

Protest politics in South Africa have a long history and protests have been deployed differently at different historical moments. Whereas protests were an important vehicle during the fight against apartheid, their resurgence and propulsion to the centre of the struggles in post-apartheid South Africa has come as a surprise to many. These so-called “service delivery protests” are said to be caused by community dissatisfaction with municipal service delivery and to lack of communication between councils and councillors on the one hand, and citizens on the other.

The African National Congress-led (ANC) government has been facing growing protests associated with economic contraction, and the dual pressures of a recessionary environment and rising unemployment. But while their grievances may be valid, citizens’ protests have been perceived as having a negative impact on government programmes, businesses, investor confidence and jobs. Indeed, the ongoing service delivery protests could be regarded as a self-defeating strategy in those areas that are more susceptible to them, mostly the municipalities located in the peri-urban areas.

Historians and experts argue that these types of riots are not merely random acts of violence or people taking advantage of dire circumstances to steal and destroy property. They are, instead, a serious attempt to force change after years of neglect by politicians, media, and the general public.

This article takes a historical view of South Africa’s current upheaval and suggests that this moment has been a long time coming.

Service delivery in historical context

The pre-1994 era was prone to mass protests and defiance campaigns, some sporadic but most coordinated by social movements. They include the two defiance campaigns of 1952 and 1989, in Gauteng, the PAC (Pan Africanist Congress) defiance campaigns that led to the Sharpeville and Langa massacres in 1960 and, of course, the 1976 Soweto student uprisings. These coordinated mass protests had a clear aim — the abolition of the apartheid laws which were central to racial segregation, white supremacy and the oppression of the majority black population.

The violent service delivery protests, which are mostly prevalent at the local government level, have been associated with the results of apartheid: marginalisation of the majority black population with regard to basic needs, including housing, clean drinking water, proper sanitation, electricity, and access to healthcare and to infrastructure. After the end of apartheid, the new democratic government led by the ANC inherited an unequal society and was confronted with protests against lack of basic services and systemic corruption at local government level. Some scholars and analysts have suggested that such unrest epitomises the dispossession of African people, precluding them from complete liberation in their own land and subjecting them to continued subjugation by their white counterparts.

The ongoing service delivery protests could be regarded as a self-defeating strategy in those areas that are more susceptible to them.

Various communities throughout the country have resorted to violent riots, destroying schools, libraries and the houses of underperforming local government councillors. One opinion is that service delivery protests are exacerbated in the informal settlements where poverty and unemployment are high, and where there is a lack of technical and managerial skills within municipalities beset by corruption, poor financial management, and a lack of accountability on the part of local councillors and municipal officials.

Public protests did not feature as prominently during the initial part of the Mandela   administration (1994–1999). The relative lull in public protests following the inauguration of the Mandela presidency in 1994 might have been a result of three key factors. One aspect is the negotiated settlement that gave rise to what is often characterised as a democratic dispensation, popularly and quite falsely  described as a new era  for South African people but which  rapidly  descended into  mass frustration. In the neo-liberal euphoria of the “new democratic South Africa”, the strategic power of mass protest action that had helped to remove the apartheid regime struggled to find a new footing. Protests were suddenly viewed as acts against the state and were vigorously discouraged by an ANC government that was increasingly detached from the broader population. The ANC-led administration preferred to mobilise mass movements as cheerleaders of government programmes and as a result, when   protests did take place, they were often state-managed to be peaceful, media-friendly events.

Another factor is that militant apartheid-era civic society formations were demobilised, which effectively weakened opposition to unpopular government policies and even brought newer NGOS into sharp disagreement with the government. Finally, the adoption of the pro-poor Reconstruction and Development Programme (RDP), which was aimed at redistributing wealth, was well received as a pacifying measure. However, in 1996, less than 24 months after the introduction of the RDP, the Growth, Employment and Redistribution (GEAR) macro-economic policy was adopted, signalling a shift to neoliberalism that prioritised the interests of big business over those of poor citizens. The adoption of GEAR led to the immediate loss of the few economic benefits citizens had received under the apartheid system.

Various social formations including the labour movement and civil society organisations accused the government of “selling out the people’s mandate”. Cost recovery was an essential part of GEAR, and this soon pitted indigent citizens against the government. While the shift to GEAR marked a radical change in how the government approached delivery of services and generated criticism from various quarters, it did not immediately trigger mass protest action mainly because the organisations championing workers’ and ordinary citizens’ rights were in alliance with the ANC. But the grounds were laid for future public protests.

In the neo-liberal euphoria of the “new democratic South Africa”, the strategic power of mass protest action that had helped to remove the apartheid regime struggled to find a new footing.

Some point to the FIFA World Cup (June–July 2010) as a tipping point. The country’s working poor came out in protest, angered by the commercialisation of municipal services and escalating poverty. Other factors that have been the cause of the so-called service delivery protests include the rising costs of basic services (clean drinking water, sanitation and electricity) as a result of the implementation of orthodox market policies, forced demolitions of informal settlements, disparities between luxury stadia and impoverished neighbourhoods and the gentrification brought on by the World Cup which has made inner-cities inaccessible to low-income informal traders.

This contradictory socio-economic policy framework has produced a highly fragmented regulatory structure, which has further compounded the socio-spatial unevenness of contemporary South Africa. The protracted low growth after the 2014 crash of commodity prices and various political scandals undermined the credibility of the ANC leadership. The national difficulties reverberated at the local level; after ruling Johannesburg for over two decades, the ANC lost the city to a coalition of opposition parties in 2016. The new mayor, Herman Mashaba, a self-styled libertarian entrepreneur, announced his commitment to “pro-poor” investments and to ending the arm’s length approach of municipal service providers.

Analysing the rationale behind the provision of basic services may help to clarify the uneasy categorisation of South African social policies and political discourse with respect to the neoliberal paradigm.

The current situation

In the first quarter of 2021, amidst the social and economic devastation wrought by the COVID-19 pandemic, the South African Treasury announced, and subsequently defended, its decision not to increase the country’s extensive social grant payments — that now reach 18 million impoverished citizens — above inflation. Treasury officials have argued that a bigger increase in social welfare protection is simply not currently feasible given the country’s rapidly rising public debt — which has now breached the 80 per cent of debt-to-GDP ratio threshold — and investor demands for fiscal consolidation. This type of fiscal restraint is unfolding in a context of heightened wealth inequality and an official unemployment rate now above 30 per cent.

And, as is often the case — whether they have been peaceful, organised, or not — protesters have been largely viewed as looters, rioters and thugs. Feelings of righteous anger following a year of lockdown, precarious livelihoods, escalating state aggression, and hostile and often deadly policing are bound to have been co-opted by thuggish elements. But the dangerous shades of ethno-nationalism that originally seemed to fuel the riots cannot be left unexamined as they have an impact on how we think about the protests, just as terms like “uprising” and “upheaval” offer ways to think about the unrest as indications of a far deeper social, economic and political rupture.

The adoption of GEAR led to the immediate loss of the few economic benefits citizens had received under the apartheid system.

Reducing the unrest to a “looting spree” also averts attention from a state that has for 27 years been aloof and not interested in recalibrating the economic and social dispossession of the African majority. While President Ramaphosa seems lethargic and tone-deaf, he is no different from his predecessors in insisting on market-led policies, foreign-investor largesse and failed non-distributive economic policies. Add to this the small matter of the “missing” R500 billion. In April 2020, a stimulus package of 500 billion rand was announced. The money was meant to augment the existing social safety net that provides 11.3 million South Africans with monthly assistance for food and other social services. The Auditor-General has described the expenditure as irregular, noting the wrongful diversion of some of the funds to state employees through contracts. To date, the hectoring tone adopted by most public officials regarding this matter shows no sense of irony or self-awareness that their own hands are dirty.

Many analysts and observers inside and outside South Africa have predicted this moment for over fifteen years, evoking the Arab Spring as a cautionary tale. South Africa is not the only country going through a seismic shift. Haiti, Cuba, Swaziland, Zimbabwe, Myanmar, Mozambique and Hong Kong are all facing profound upheavals. But while South Africa elicits deep sentiments across the world, it is not immune to the complexities of state formation, fractured class interests and a leadership vested in maintaining the status quo.

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