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The Indomitable Yash Pal Ghai – Part 1: The Father of the Constitution

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Ghai’s natural aptitude, not just for the law but also as an educator, quickly became clear. While teaching in Dar, he co-authored (with his colleague and friend, Patrick McAuslan) what would become one of his most well-known books, Public Law and Political Change in Kenya.

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The Indomitable Yash Pal Ghai: The Father of the Constitution
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On an otherwise ordinary Nairobi day in 2016, Yash Pal Ghai stood in a hallway of the Supreme Court of Kenya, waiting to have lunch with his former student and friend, Chief Justice Willy Mutunga. Ghai, carrying his usual striped cloth bag, its worn strap tied in a knot and its edges frayed, waited patiently, his unassuming nature belying his reputation as one of the world’s foremost experts in constitutional law.

Ghai soon noticed activity around the Chief Justice’s office. Mutunga had gone in, followed by several senior judges, many of whom had been Ghai’s students in the early days of Kenya’s independence. When he was finally called in, Ghai was taken aback by the arrangements in the room, which had been set up to swear him into the Roll of Advocates of Kenya. Mutunga had arranged it as a surprise.

Now, at 78 years of age, and after having waited nearly half a century for this day, the father of the Constitution of Kenya – his small, slender frame concealed beneath a billowing, black robe and a white barrister’s wig hiding the silver wisps of his iconic, unruly hair – cut a distinctive figure in the room. “As Chief Justice, it was my singular and great honour to admit Yash in the Roll of Advocates on June 10, 2016, six days before I retired. I fought tears as I conducted this ceremony. It seemed like a culmination of brother-comrade-friend-teacher-student-patriot.”

It was a meaningful moment for Ghai as well, but – ever the professor – his memory of the day is dominated by pride in his student. “To see Willy, my former student, as Chief Justice, was very meaningful. I had kind of given up on practicing law at that point, so being sworn in was quite moving.”

It had been a long and circuitous journey, but Ghai was finally home. For Mutunga and many others, the moment was highly symbolic, a mark of rightful return, a sign that Ghai – whose lifelong work in the service of people’s rights had been done while in exile from his home – was finally back where he had always belonged.

Growing Up in Colonial Kenya

It may come as a surprise, given his long and illustrious career, but law was not Ghai’s first career choice. In fact, when he left Kenya for the University of Oxford in 1956, the young Ghai had been intent on studying English Literature. “I loved reading novels,” he remembers with a smile. “My father used to give me fifty shillings a month, and I would hoard it and hoard it until I could buy a Jane Austen novel. I thought I might be an English teacher.” When he wasn’t absorbed in an Austen novel – Pride and Prejudice being his favourite – young Ghai could be found with his best friend, Dushyant Singh, the son of esteemed High Court Judge Chanan Singh.

The youngest of six children, Ghai remembers a happy childhood. His family was close, and he was, in his own words, “slightly pampered” by his older siblings. Ghai’s home in Ruiru was behind his father’s store, Mulkraj Ghai Shops, a popular stop for the area’s coffee farmers. “We sold everything, from kerosene, to food, to general supplies. The farmers would come in the morning to place their orders, and by the time they returned in the evening my father would have prepared and packed each order.” Kenya in the 1940s was heavily segregated, and – aside from one notable exception – Ghai says he rarely saw a non-white customer. That exception was none other than Jomo Kenyatta. “At the time, Africans were not allowed to drink, but he used to drink a lot. He would come to the shop, and my father would take him up to our place, close the curtains and give him a drink. My mother would give them lunch. My father could have been jailed if anyone had ever known that.” Kenyatta, who developed a close friendship with Ghai’s father, took a special interest in the youngest Ghai. He would often ask to see the youngster, bringing him fruit from his farm. Ghai remembers seeing Kenyatta after he was released from prison. “When I had come home from Oxford, Kenyatta had just been released and he asked my father why he hadn’t taken me to visit him and my father told him that the queues of people waiting to see him were so interminably long! So he arranged for us to see him specially. There is a picture of us all together about a week after he was released.”

Yash Pal Ghai with brother Dharam, two of his three sisters and another relative.

The success of his father’s shop blessed Ghai with a relatively easy childhood. He spent the week in Nairobi, where he went to school and was cared for by his grandmother, and returned to Ruiru on the weekends. His father emphasised the importance of education, and Ghai worked hard, excelling in school. In fact, when Princess Margaret visited Kenya in 1956, Ghai, as the top student in his school, was chosen to present her with a bouquet of flowers. Unbeknownst to him, it would be his first claim to fame. “In those days, the British had their own propaganda thing. There were huge, outdoor screens, and they would show these clips. It would start with news about the country, and then they would show a cowboy movie,” Mutunga laughingly remembers. “I saw Yash in that clip. That was the first time I saw him.” When asked about the moment, Ghai laughs quietly. “I fell in love with Princess Margaret.” Indeed, Mutunga says, “You know, the way the British did those documentaries was very, very interesting. A lot of us became monarchists as young kids after seeing those beautiful women and queens.”

The reality of segregated living meant that young Ghai had virtually no substantive interaction with the white, British population in Kenya. What little interaction he did have, though, showed the young Ghai how very different life was for some Kenyans. “We wouldn’t be allowed anywhere near any British home. We didn’t know any British kids.” In fact, as he now looks out over his garden in Muthaiga, Ghai describes his initial reluctance to live in the neighbourhood. “I remember dogs barking at me here. They would bark at any non-white person. I never wanted to be here.”

Most of the inter-racial interactions he did have in his youth occurred at school, especially during athletic competitions. Once a year, he remembers, the leading schools in Nairobi, each segregated by race, would have athletics competitions. “I took part in athletics. We would always lose, because the Prince of Wales School (for white students) had coaches and equipment. You were on the field together, but then at intervals you went back to your own side. We didn’t even get to know their names.”

Segregation was just one manifestation, however, of the harsh reality of inequality all around him. Ghai remembers witnessing insults and beatings on the streets. “As a kid, when I used to see people being beaten up, I couldn’t do much. The injustice of it left a very deep impression on me, the unfairness of it.” By the time Ghai was ready for university, he had been personally bruised by the harsh mark of racism as well.

As he was preparing to apply for university admission, Ghai was advised to seek assistance from the Ministry of Education. He recounts, “In the Ministry, I saw a lift and I had never been in one. So I got into the lift. I was about to go, and suddenly three white men came in and asked me what I was doing. They physically picked me up and threw me out, and I ended up on the floor. I was so shattered. I thought, ‘How can they just throw me like this?’ ” Taking the stairs instead, Ghai eventually reached the office of Mrs. Brotherton, who, Ghai had been told, could help with the university admissions process. “She asked me where I wanted to go. I said, ‘Oxford.’ She looked at me and smiled and said, ‘You? You want to go to Oxford?’ She laughed at me and then mentioned two or three other universities. ‘You really think you could go to Oxford?’ she taunted. I said that I wanted to try. She asked me if I had received a credit in my ‘O-levels.’ And I said, ‘No.’ She smiled and said, ‘See? You didn’t even get a credit in your exams.’ That’s when I said, ‘Madam, I did not get a credit. I got a distinction.’ She was so angry with me. She told me she didn’t think Oxford was good for me.”

It was a defining moment for Ghai, who had received the highest O-level results in Kenya. Instead of embittering him, however, the experience motivated him to forge ahead. In fact, when he spoke to his teachers at the newly opened Gandhi Academy, which would eventually become the University of Nairobi, they wrote to Queens College to recommend him. After passing the entrance exam, Ghai was accepted at Oxford. Given his intent to pursue literature, however, the university urged him to study Latin so that he would be prepared. “My teachers helped me get tutorials for Latin. They got this chap to come from the Prince of Wales School twice a week and tutor me. My school arranged it. I was quite pleased that this chap drove up and took the time. I thought, ‘He’s English but he’s quite nice.’ ”

Oxford (Queen’s College) welcomed Ghai, but it was an adjustment. “In the beginning, I was nervous in all kinds of ways – there were all these bright people, etc. I didn’t even know how to eat food British style. The British Council had set up a course on how to eat, and I attended that to learn how to use utensils. I would look at other people, and I got a complex about knowing which spoon to use.” Ghai quickly made friends, pursuing his love of sports and the outdoors. He also enjoyed time with his brother, who was still at Oxford, and with Singh, who was studying in Bristol. The two kept in touch, hitchhiking around Europe during their holidays.

Soon, however, Ghai realised that studying English literature was not what he had expected. “It was very difficult, because at Oxford they started four centuries before Austen. It was hard to read old English, and I just couldn’t cope. So I went to my tutor. He was understanding, and he asked me what I wanted to do instead of English. Even though my second love was history, I chose law.”

Ghai excelled at Oxford, so much so that, when he achieved the highest exam scores in the university, the College Provost told him that the College would henceforth take care of his fees. After graduating with his Bachelor’s degree in 1961, Ghai applied to undertake graduate work at Oxford’s Nuffield College. It was while at Nuffield, where he was studying comparative Commonwealth constitutions for his doctorate, that Ghai was approached by his former tutor. “He raised the idea of Harvard. I hadn’t really thought about it, but he said, ‘Why not take a break from Oxford and go to Harvard?’ He said I could come back later and finish my thesis. I wondered if the College would really allow something like that. He was such a nice person, and he wrote to his friends there. Harvard gave me a grant and a generous allowance.” At Harvard, Ghai completed a Masters in Law and also took courses related to his doctoral thesis.

And it was at Harvard that Ghai met William Twining, the son of the former Governor of Tanganyika, who would become a lifelong friend. Twining had just started a law school, along with AB Weston, in Dar es Salaam. The University of East Africa, as it was then known, was recruiting professors. “People were telling me that Twining was around and was looking for me. It turned out that he was looking for staff. When we met, he said, ‘I’ve come to pick you up.’ ‘Pick me up?’ I laughed it off.” Although he was tempted, Ghai was concerned about finishing his doctorate, especially because Nuffield had been so good to him. It turned out, however, that Twining had already spoken to Oxford and the university was very supportive, encouraging Ghai to take the position in Dar. “After a lot of thinking and consideration of the fact that this was the first time Africans would have had a chance to study law [in East Africa], I thought it would be good to do this. Twining had already recruited four or five teachers. I ended up going at short notice.” Although Ghai would continue to work on his doctoral thesis once in Dar, even publishing several chapters, he never had the chance to finish it. In 1992, the University of Oxford honoured Ghai with a “higher doctorate” in Civil Law. While ordinary doctorates are earned through a defined program of study, higher doctorates are awarded only through a nomination process and a review of a scholar’s research work over a period of time. Ghai is among only 96 recipients of this degree since 1923.

A Young Professor in Dar es Salaam

In 1963, Ghai, at only 25 years of age, accepted his first professional position as a lecturer of law at the University of East Africa at Dar es Salaam. It was a heady, idealistic time for the young graduate, as well as for the wider society. According to Professor Bill Whitford, Ghai’s colleague and lifelong friend, Dar was one of the most desirable places in terms of legal education at the time. “There was a wide range of people from all over the world, and the students were fantastic. The law school admitted only 100 students per year, and they were superb. The other thing was that this was [Tanzanian President Julius] Nyerere’s most creative period, and thoughts about creating a new society were all over the place. Everything was up for debate. It was a very hopeful time.”

Indeed, Ghai describes his time in Dar as “most formative” in terms of his professional growth; he was acutely aware of the significance of his role. “It was the first time black Africans were being allowed to study law [in Africa],” he remembers. “People didn’t know much about law other than that this is what the British used to beat you. We were aware that the students who left us could soon be judges or senior government officials, and we were conscious of inculcating in them the sense that law could be used for the promotion of good values.”

This conviction of his responsibility to inspire students to use the law to work for the betterment of society, to seize and channel the fervour of newfound independence in the direction of an equal, democratic post-colonial Africa, is partly responsible for Ghai’s break with the legal positivist tradition in which he had been trained, opting for what came to be known as “legal radicalism” or “law in context.” This approach, which sought to understand and interpret the law within the social, political and economic contexts in which it functioned, was not the norm at the time. In the new era of independence, however, Ghai and others like him believed it was critical for lawyers to understand how the existing law had come to be and how it might need to change to suit the rapidly evolving needs of newly independent nations. Writing about his years in Dar, Ghai says, “It was not long before I became acutely uncomfortable with endless explorations of the rules of privity and consideration, and became conscious of the unreality of the emphasis on the common law when it touched only a small segment of the population.”

Indeed, Mutunga credits Ghai for this approach. “We were taught law within its historical, socio-economic, cultural, and political contexts, thus departing from the conservative legal positivism with its clarion call that ‘law is the law is the law.’ We undertook to study, research, and practice law never in a vacuum. Above all, we anchored law in politics and shunned legal centralism. Our approaches were multi-disciplinary.” At the same time, however, Ghai ensured that his students were well grounded in traditional law. Mutunga describes the high standards Ghai held as a teacher, demanding that his students become masters of “staunch positivism” while having the skills to interrogate that tradition. Mutunga describes Ghai’s approach as a “fantastic balance,” recalling how his professor’s exams required students to address three questions dealing with technical aspects of the law and two questions asking students to critique the legal rules. “Dar law graduates could regard themselves as ‘learned,’ as we were distinguishable from other pretenders to the ‘learned’ tag.” Mutunga considered Dar to be his “liberation Mecca,” the place where he developed his own intellectual, ideological, and political positions.

Not everyone was a fan of this approach. Mutunga describes how some students were not interested in studying context. Already assured of high level jobs, these students “just wanted to know the rules so they could go out there and practice.” They were not interested in learning context. Some students wanted to “finish things and get marks. They had gone to law school to be ‘big people’.” Ghai himself has questioned legal radicalism, wondering if his students were at a disadvantage for not having trained as traditional lawyers. Mutunga, who adopted Ghai’s approach when he became a professor, disagrees, explaining that his own students have expressed how the approach of law in context helped them cultivate a more holistic approach to the law, and to an understanding of the law.

Ghai’s natural aptitude, not just for the law but also as an educator, quickly became clear. While teaching in Dar, he co-authored (with his colleague and friend, Patrick McAuslan) what would become one of his most well-known books, Public Law and Political Change in Kenya. Although his primary motive in writing the book was to provide a textbook for his students, who did not have authoritative texts on the laws of newly independent East Africa, Public Law became one of the most widely cited works related to Kenyan law. When it was published in 1970, Ghai was just 32 years old.

The authors wrote that they wished to provide an analysis and critique of Kenya’s development since early colonial times as seen through the processes of law:

We have never understood the function of the law teacher or writer to be the mere reciter of rules whose merit is to be gauged by the quantity of information he can relay. All African countries have great need for lawyers who can take their eyes off the books of rules, who can see more to law than a set of statutes and law reports . . . The law student must constantly be brought up against questions such as . . . what is this law designed to achieve, what set of beliefs lie at the back of this law . . . a text should aim to stimulate, even aggravate, not stupefy, and that is what we have tried to do here.

Their analysis was incisive and sometimes harsh, blatantly questioning, for instance, increasing executive power and the trampling of the Bill of Rights, which they said was so ineffective that they wondered why it remained a part of the Constitution at all.

George Kegoro, the Executive Director of the Kenya Human Rights Commission, refers to Public Law as “the bible,” and “easily the most widely cited book in Kenyan law.” Kegoro says, “At independence, everybody was trying to establish a frame of analysing Kenya and Kenyan society. How do you analyse society? What are the constituent components? He provides that within the book. There was no clarity about where the tails were, where the heads were. And what he did was to show us where the tails and heads were. It has held sway up to now. It is still very much a valued way of analysing Kenyan society, which is why the book gets cited over and over and over again. It is one of the reasons why he is a legend.” Kegoro pauses, then adds – with incredulity – “And he never talks about it himself! Ever, ever!”

In fact, despite his growing success, Ghai remained down-to-earth. He strove, in many ways, to be a peer of his students. “Yash belonged to a group of law professors and lecturers who did not carry the tag of ‘academic terrorists’. We reserved that tag for the faculty who clearly did not like to teach, did not like students, and suffered from egos and serious intellectual arrogance. Invariably, they treated us as intellectually inferior, adopted a pulpit lecture system where they ordered not to be interrupted while lecturing. Questions were to be asked during tutorials. Yash and others were different. They were approachable, treated us as equals in the word and spirit of the intellectual culture in Tanzania. “All students were Yash’s friends,” recalls Mutunga.

Indeed, Ghai’s ease with people placed him in the middle of a wide social circle, made up of students and colleagues. Despite his work, which was significant, Ghai invested time in creating and maintaining deep and often lifelong relationships with people around him. Mutunga explains, “He was always likable and great company in and out of class. Bear in mind Yash became a full professor at the tender age of 32. In all respects he wanted us to see him and treat him as a brother. Many of us were in our mid-20s. Today, whenever I communicate to Yash I sign off, Nduguyo/Your brother because of a relationship that spans almost over five decades.” Whitford describes Ghai’s ability to balance a social life with his professional duties. “He cooked, and he was an excellent cook! What male Asians cooked at that time?” Whitford asks in amazement. “He didn’t have servants, because he didn’t want to have that kind of relationship with anyone. He was a democratic socialist from the word ‘go.’ He entertained but was also very intellectual. It was typical to see him walking around with his arms full of papers all the time.”

Just as Dar es Salaam was a site where he flourished professionally, it was a place where home took on a new meaning. It was while in Dar that Ghai met and married his first wife, Karin Englund, who was from Sweden. Their daughter, Indira, was born in Dar in 1971. He remembers a pleasant life, with a house by the sea.

Ghai’s tenure in Dar was one of the most dynamic periods of his life. He quickly climbed the ranks, becoming the first East African dean of the University of East Africa’s law school in 1970. He was also personally approached by Tanzanian President Nyerere, who asked him for assistance in the development of the Tanzanian constitution. He admired Nyerere, who gave him complete freedom to say what he believed.

Interestingly, it was also while he was teaching in Dar that Ghai met his future wife, Jill Cottrell, for the first time. “I first met him in 1969. I was doing my Masters at Yale, and my supervisor had taught for a year in Dar. He knew Yash, who was at Yale on a short visit. My supervisor invited a group of people who had some connection to East Africa over for dinner, and then he invited me, although I didn’t know any of these people.” Cottrell Ghai laughs, remembering the evening. “He said, ‘I am going to introduce you to a glamorous man, but I think he’s going to get engaged.’ He did get married soon after that.”

Over time, however, the environment in Dar became increasingly stressful. In his reflections on this time, Ghai writes of more and more racism. “For despite the scholarly analysis of some Marxists, what passed in general for radicalism in those days included a large amount of racism and xenophobia. I remember overhearing the wife of a Tanzanian colleague – a self-proclaimed Marxist – that she would not rest in peace unless she saw that muhindi (Indian) out of the country – that muhindi being me!” In fact, a growing drive to “Africanise” things, along with the University of Nairobi’s continued and persistent invitations to return to Kenya and assume the deanship at the law school, tempted Ghai to finally accept the offer.

Disclaimer: This article is meant as a brief overview of Professor Yash Pal Ghai’s life and career. While it aims to shed light on some of his personal and professional experiences, it is not a comprehensive account.

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Seema Shah is an elections expert with experience in North America, Asia and Africa. She holds a doctorate in Political Science, and her research focuses on electoral politics, with an emphasis on electoral integrity and electoral violence.

Politics

No War, No Peace: Life and Death in Eritrea

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

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

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

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

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

Border dispute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Peace Agreement with Ethiopia and its aftermath

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

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

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

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

Ailing health sector

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

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

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

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

Poor COVID-19 response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Search for a Puppet Chief Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Former Deputy Chief Justice Nancy Baraza, 63, has expressed a desire to return Although the Supreme Court’s Justice Smokin Wanjala gave a good showing at the 2016 interviews and was ranked second, his age – 60 – means that if appointed, he would hold the job for 10 years. Law scholar Makau Mutua, 62, who was ranked third in the 2016 interviews for Chief Justice, could also give the job another try, as would former Attorney General Githu Muigai, who would similarly be hampered by fears of serving out the 10 years in the post.

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

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

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

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African Continent a Milking Cow for Google and Facebook

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

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

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

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

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

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

Brick and mortar

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

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

‘Their revenue comes from me’.

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

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

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

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

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

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

Google Ghana is an ‘artificial intelligence research facility’.

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

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

Cash-strapped countries

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

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

Cost to public

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

‘A tax paying people is a questioning people’

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

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

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

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

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

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

Comment

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

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

This article was first published by our partner ZAM Magazine.

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