Ghai returned to Kenya in 2008, “with no expectations” of getting involved in constitutional work again. “We wanted to rest,” he says, remembering the decision that he and Cottrell Ghai took to settle in Nairobi. “We felt we were getting old.” Despite what he may have envisioned as a quiet life, however, the Ghais are never far from the limelight. Manji describes the Ghais’ life: “For all their living in Muthaiga in a nice house, all they do is work — and work and work and work.”
Ghai’s experience in and service to various nations have afforded him multiple opportunities to make a home outside of Kenya. “With his outstanding legal training, he could easily have developed ‘big man’ syndrome and sat in London and held court. He could’ve made himself an extremely nice life,” says Manji. Cottrell Ghai explains the decision to return to Kenya. “There was a conviction that he wanted to be Kenyan in Kenya; he still does feel pretty strongly Kenyan.”
Importantly, Ghai’s conception and quiet demonstration of his Kenyan identity has allowed him to carve out a special niche for himself in his home country. Indeed, Githongo credits Ghai’s ability to rise “above tribe” as one reason why Moi agreed to appoint him as Chair of the CKRC. “Yash made sense for Moi, who was in a political corner. He had no tribe but he was Kenyan. He was very sharp and very respected, but he wasn’t affiliated with any big ethnic groups. Moi, in his pure political, ruthless analysis, thought, ‘This is the right guy.’” Over the years, Ghai’s work with various communities around Kenya has cemented his reputation. “Yash transcends. People see him, ordinary people see him as just Yash,” Githongo says.
Ghai’s model of Kenyan-ness has inspired others. Says Manji, “We grew up in the Moi era, and we were told not to engage in politics. Keep your head down, say nothing. I tried once or twice and was told very clearly not to talk politics at the table. There was this Asian tendency to quietly get on with your life and don’t let anyone know your thinking. Growing up under Moi, you weren’t entirely sure there was any kind of contribution you could make. What I loved about Yash was that I was suddenly free to think and talk about Kenyan politics and be political. Through his authority, he gave me authority to be political. There was something there that liberated me. I saw a model of how to be Kenyan and Asian. He really showed me how to make a contribution, and one way in which he did that is by demonstrating how to feel Kenyan by transcending tribe.”
It is unsurprising that – since returning to Kenya – both Ghais have continued to dedicate much of their time and energy to constitutional work. Indeed, they continue to invest time and energy in the Kenyan Constitution, ever-dedicated to its power to effect change. Manji refers to Ghai as “a constitutional optimist and something of an idealist.” Since resigning from the CKRC, Ghai has continued to publicly write and speak about the Constitution. On many occasions, he has also advised the government on constitution-related issues and developments. His “Katiba Corner” in The Star, which he and Cottrell Ghai began in late 2013, continues to offer the latest analysis and commentary – from themselves and other experts – on constitution-related matters in Kenya.
Perhaps the Ghais’ most important contribution, however, and one that will house the professor’s legacy in Kenya for a long time to come, is the Katiba Institute (KI), an NGO dedicated to “achieving social transformation through the Constitution.” KI’s first Executive Director, Waikwa Wanyoike, recalls his enthusiasm for the position. “Yash is larger than life in academia and constitutional law. I knew his history quite well, and I knew he was very principled. He had gone into exile just because he didn’t want to compromise on his principles, and he had been extremely successful. There is no question that being able to work in an institution where Yash was the main person – for me – was icing on the cake. Who else would you want to work for with regard to constitutions in Kenya and globally? It was a moment of pride that I could associate myself with him and with an institute that he founded. Being able to take advantage of Jill as well, of her interest in and knowledge of law generally – again, that was a huge, huge bonus for me.”
KI is also a reflection of Ghai’s commitment to Kenya. There is a commitment to harnessing local expertise and building a strong base of highly skilled lawyers. Says Wanyoike, “How do you justify calling yourself an institute when you use consultants, when you aren’t a repository of expertise? We knew that, if we have the right people, even if we weren’t able to mobilize financial resources, we would still manage. We also wanted to build a new group of technical experts for the future. We saw ourselves as an extension of teaching institutions, a place where people could come and learn about real life problems.” This extends to more than the training of lawyers. KI’s Executive Assistant says, “Before KI, I didn’t understand the constitution, but now — working with him — I have learned a lot. I can say I am more knowledgeable about my rights and I can interpret some of the articles, despite not being a lawyer. He has impacted a lot of people in terms of trying to offer trainings to different communities and the world. A lot of people are more knowledgeable and they appreciate and have pride in Prof. for what he has done for this country.” The focus on technical expertise goes hand in hand with broad inclusion. Wanyoike describes KI’s desire to focus on groups that ordinarily would not get attention. More than half of KI’s lawyers are women, and they appear before the Supreme Court more than other female litigators.
True to Ghai’s spirit, KI fights hard to stay true to its own mission and priorities, relying as little on donors as possible. “The programming of KI is not driven by donors or grants. 60-75 percent of litigation is not reflected in activity reports for donors. It’s being creative, based on the needs and demands of the country at the moment.”
And it has worked. Says Manji, “What you see in Katiba is the most robust lawyers you can imagine. Yash has got an incredible eye for good lawyers. Waikwa is a really good example – he is Kenya’s most brilliant lawyer. Everyone at Katiba is the same — the starting point is great lawyers and great legal minds and everything else follows.”
Both Ghais continue to be a mentor to many, including Manji, who describes how the couple took her under their collective wing when she became the head of the British Institute of East Africa. “They were absolutely exemplary in looking after me. Any time I wanted advice or anything I ever asked, they did for me. They were just outstanding.” Speaking of Ghai specifically, she says, “He’s my teacher, as well as a mentor and an advisor. He’s the grandfather of everything we are trying to do. There are many of us who feel that.” Mutunga concurs. “When I became CJ, he was a great mentor and advisor. He was one of the scholars and judges who inducted the Supreme Court in Mount Kenya Safari Club (Yash used his contacts to get us these prominent jurists). His contribution to the development of progressive jurisprudence based on the 2010 Constitution is exemplary. His and Jill’s work at the Judiciary Training Institute has been legendary.”
The Ghais also continue to support KI. Says Wanyoike, “At an intellectual level, they have always been very present, but at an administrative level they have not. They have always given us a lot of autonomy to operate, while also creating as much time for us as we have needed. People told me that Prof. is difficult to work with, because he is headstrong, but that was never borne out in my experience. He insists on integrity and honesty, and as long as he has confidence that is what is driving you, he is not in your space. People don’t know this. He has so much deference and respect for people who work for him. If there is ever a difference of opinion between him and the staff, he will almost always defer to what staff have decided. He is extremely loyal to people who work with him. This is at all levels.”
Today, Ghai can often be found seated at the desk in the home office he shares with his wife, a large room whose walls, shelves and surfaces seem to spawn books. “It’s like a bomb of papers,” Githongo says with a laugh. “He is the uber big brain. Yash can stay up half the night and in the morning you have a written constitution… and it’s flawless. It’s astonishing stuff.” And when he is seated in front of his computer, referring from time to time to one or the other miniature pyramids of books surrounding him, he appears the quintessential professor. At certain moments, when he pulls out his old, dog-eared copy of the Kenyan Constitution – peppered with his hand-written notes in the margins – to point to key sections and emphasize his arguments, he remains the quintessential professor.
Most days, Cottrell Ghai is seated across from him. “We never realized the sheer power and importance of the role of Jill in the beginning,” Githongo recalls. “Jill came in a bit later, and when she became visible, people did not know how to place her. Then they realized that she’s as formidable a mind as Yash. She’s ferocious, totally big brained and knows her stuff. It’s a team, a very formidable team. I don’t think Yash would have made it this far, with the years of disappointments and betrayals, without her.”
Ghai agrees, crediting his wife as his partner in thinking, writing and editing. Even if it is not a jointly authored work, Ghai says, it is the product of “hours of discussion” with Cottrell Ghai. He is lucky, he says, to have such a valued professional partner in his wife. When asked about her career, Cottrell Ghai is dismissive. “I wasn’t that distinguished and I’ve never been that ambitious. I’ve always told Yash that the most interesting things I’ve done in my life have been because of him.”
Ghai also sees his children and grandchildren at least once a year, and he considers himself lucky to have made lasting peace with his ex-wife, who is now a friend. Vacations are sometimes extended family affairs. It is lucky, Ghai thinks, that it is possible to be one family in this way. Cottrell Ghai agrees, saying that seeing the children remains an important priority for her husband. She worries that he does not get more time with them. Ghai also maintains old relationships, taking the time to visit and vacation with his close friends, whenever possible. Whitford says, “I admire him to no end. I feel very lucky that he would regard me as a close friend. I certainly regard him as a close friend. We came from totally different upbringings, but we just hit it off. If he thinks well of me, I feel immensely grateful for that and flattered.”
One of his most recent projects has been support of social justice centres in Kenya. Wanyoike describes his commitment to these centres, which are based mainly in Kenya’s poor, informal settlements. “He has actually contributed a significant amount of money to establishing social justice centres, but he won’t take credit for it.” Kavoi describes the impact of this work on Kenya today. Ghai’s support has allowed the centres to maintain offices and it has also sent students to university. He uses his networks to link the centres to other like-minded organizations, helping promote their impact. Githongo describes such work as exemplary of Ghai’s independent spirit and deep-felt conviction for promoting rights, especially amongst those who are most disempowered. “Yash is a very frustrating figure for [the elites]. He is retired and is hanging out with Mathare Social Justice guys. He should be at the country club; that’s the model.”
Increasingly these days, Ghai expresses a desire to withdraw from public life. He is working on a biography of his personal hero, Chanan Singh. It is a project that means a great deal to him, both because of the great admiration he had for Singh and because he promised his best friend – Singh’s son – that he would do it. “In the last year, I feel age with a vengeance. Things I write take three or four times longer than they used to.” And yet he seems rejuvenated by a walk through his neighborhood, where he is a well-known and beloved figure, inevitably greeted and often thanked by strangers. “It is a bit like being married to a rockstar,” Cottrell Ghai says, describing the public attention. Wanyoike remembers being star-struck long ago, before he had officially met Ghai. “In 2010, I was visiting Kenya, and I went to Uchumi in Sarit. I saw him there, shopping with Jill, and I had this huge urge to introduce myself and say hi. But then I thought, ‘When you are that well-known, you don’t want people to come up to you in the store.’ So I disciplined myself.” Cottrell Ghai says, however, that her husband enjoys the attention. “It gives him a warm feeling; he feels appreciated by people in Kenya.”
It may seem strange that, after all the betrayals Ghai endured in his home country, he carries on with the same work, fighting for the same cause. According to Githongo, this is because Ghai’s work was always aimed at the common man. “When a watchman recognizes him, that’s what is more important for him, and that’s who he wrote the Constitution for.” He goes on, “Once Kenyans respect you for something, no one can take it away. The watchman on the road, the packers in the shops will give him that respect — not because he’s powerful or rich but because he has stood up for the people. Kenyans realize that the same people that have cheated them have cheated him. Ghai has been called “the man who solved the world,” a title at which he shakes his head. In Kenya, though, Githongo says Ghai is known as “mtu wa roho safi (a pure-hearted man). That’s the way ordinary people known him, describe him and appreciate him.”
Reflecting back on his career, Ghai says, “I always wanted to serve the people if I could. I have always been conscious that, if I have been doing something good, it’s because I probably had better opportunities than others.”
Githongo believes that Ghai’s work will continue to impact Kenya for generations to come. “His contribution to human rights is without equal. He is in the very fortunate position that people will appreciate him more and more as time passes. It’s a slow burn. Kenyans realize.” Manji agrees, remarking, “It’s not just in the books, or in the law courts. He protests in the streets! He’s got a real connection to ordinary people, and that to me is his contribution to human rights.”
Ghai’s work has not always made him popular, especially in Kenya. In fact, Ghai recently lamented certain politicians’ rhetoric, which blames the Constitution for problems that clearly are the result of elites’ unwillingness to respect the rule of law. Mutunga is not surprised. In fact, the former Chief Justice points out that Ghai was honored by the Queen of England for his work while his home country failed him. Mutunga refers to Matthew 13:57, a Bible verse that reads, “And they took offense at him. But Jesus said to them, “A prophet is not without honor except in his own town and in his own home.”
“He continues to work against the grain,” Githongo says, “so his phone won’t ring. The moment the crisis comes, the phone will ring off the hook. All the hoodlums will call him then. He’s our fireman.”
SportPesa: It’s Time for This Kleptocracy to End Kenya’s Billion Dollar Sports Betting Curse
In 2017, a poll of African millennials revealed that Kenya’s youth are the biggest gamblers on the African continent.
Today, The Guardian publishes an investigation we have carried out with them into Kenya’s biggest betting company, SportPesa. With its name emblazoned on the shirts of Premier League club Everton FC and a Formula One racing team, SportPesa is Kenya’s most powerful gambling firm – operating in a sector that sucks $2bn from Kenyans every year.
Its shareholders include Bulgarian businessmen, one of whom, Guerassim Nikolov, has a background in casinos and about whom historic concerns were raised in the Bulgarian media, which he vehemently denies. Its corporate structure is opaque. Our reporter, Lionel Faull, worked with Bivol, the Bulgarian investigative website, and The Guardian, to examine the inner workings of SportPesa. That piece is here.
Lionel also dug into the effect the gambling epidemic is having on Kenya’s youth. Here he reports on how one student activist became a victim of gambling addiction but who is now spearheading a campaign to bring about meaningful regulation. The activist also wants to see there is proper treatment for the hundreds of thousands of young addicted Kenyans who need help after having been lured into betting away money they can ill afford to lose.
In 2017, a poll of African millennials revealed that Kenya’s youth are the biggest gamblers on the African continent.
A year later I prepared to travel to Nairobi to research a story about SportPesa. We at Finance Uncovered were interested in its stunning success. Founded and run by politically connected Bulgarian businessmen in Nairobi in 2014, it is now the biggest of Kenya’s mushrooming sports betting companies. And as we report with the Guardian today, so successful has it been exploiting the gambling craze in Kenya it has opened a European headquarters in the UK.
While investigating, I was struck by the almost total lack of any comprehensive data about the wider industry in Kenya and its millions of punters.
Sure, multiple news articles celebrated the rags-to-riches tales of jackpot winners, some of whom just as suddenly revert to rags. Others narrated horrifying individual anecdotes of gambling addiction, depression and suicide.
The gambling regulatory authority’s online presence amounted to a single sub-page of the interior ministry’s website and there was seemingly no organisation offering tailored counselling to problem gamblers.
It was as if a vast, silent vacuum had settled in the gaps between the sports betting billboards which peered down on Nairobi’s scurrying pedestrians.
Finally, someone referred me to a gambling awareness website which was run on a volunteer basis by Nelson Bwire, a 24-year old economics student at Kenyatta University.
“A way of life”
I took the highway north out of the city to Bwire’s campus, past the football stadium that had recently welcomed English side Hull City FC for a SportPesa-sponsored exhibition match against Kenya’s top club team, Gor Mahia.
As we strolled along the university’s shrub-lined walkways, Bwire told me how he became addicted to sports betting.
It was 2013 and he was fresh out of high school, hanging out with mates and killing time on PlayStation.
One of them boasted how he had won money on a football match and showed Bwire how he could send cash via the ubiquitous mobile money platform M-Pesa to a website called JustBet, the only online sports betting platform in Kenya at the time.
“On my very first bet I put in KShs200 (£1.50) and won KShs4,800 (£35),” Bwire recalls. “I bet on four teams to win. I’ll never forget them. It was Swansea, Stoke, Arsenal and West Brom.”
The win was both a blessing and a curse: “It got me thinking this could be a way of life. It was a good experience, it seemed like fun. You could watch your team playing, and actually earn money doing it.”
“You want to become rich, doing nothing. You want shortcuts in life, and that’s your shortcut.
“As I continued betting, everything increased. The amount of bets, the amount of money, the amount of time. With friends, on my phone, with the room-mates I was living with. Most of us used to bet.
“After about a year and a half, I began to realise that none of us had money because the money we had, it goes to betting.”
Bwire estimated that over the 18-month period he was an avid gambler, he spent around KShs100,000 (£750) on football bets. To put this spending in context, his annual course tuition fee in 2015 was between KShs100,000-120,000 (£750-£900).
“The money I was betting with came from previous wins, pocket money from my parents, and other side jobs I was doing,” he explained.
By late 2015, Bwire recalled that many sports betting companies had burst onto the scene, including SportPesa, and were advertising “vigorously” across Kenya. They were also active in and around the university, handing out flyers on campus and in the neighbouring estates where students live.
“I started to read stories in the media about people committing suicide, people gambling their fees, their rent money. And you also see the kind of life that gambling is sucking out of you. You are waking up and all you are planning is to bet. Whatever winnings you have in your betting account, you don’t even consider taking it out. You use it to bet again. It reached the point that I just called it quits.”
He also noticed how gambling was taking over other students’ lives. “You would go into the computer labs to do some research, or finish an assignment, and you would see screen after screen where students were just browsing sports betting sites,” he said.
“Students were borrowing money from loan sharks at predatory interest rates to fund their habit, and handing over their laptops or their national identity cards as collateral.”
In 2016 Bwire initiated a campus-wide survey to gauge the extent of gambling among his fellow students.
It found that half of male students and one-third of females surveyed bet more than once a week; and that nearly half of all respondents admitted to one or more signs of problem gambling behaviour. [see sidebar].
He later wrote a proposal to the university about how to tackle problem gambling on campus and launched a gambling awareness campaign working closely with student counsellors.
“Gambling is not something that I would want to see banned. No, I don’t take that hard line. But I think people should be aware of the risks and take responsible decisions,” Bwire said.
Soon to be an economics graduate, Bwire mused: “Right now Africa is growing, yes. But gambling problems will suppress African growth. The capital flight of gambling winnings that are going from Kenya to other places, that money should be in people’s hands. It should be in entrepreneurs’ hands. It should be in students’ hands.”
Exactly a year after speaking to Bwire, I took the same road out of Nairobi, past the same stadium preparing to host another SportPesa-sponsored exhibition match, this time featuring Everton FC.
A hundred and fifty kilometres beyond the capital, deep in the countryside, SportPesa’s blue-and-white branding is plastered all over humble general shops in small roadside villages.
While SportPesa is the biggest player in Kenya, there are several others such as Betin, Premier Bet, 1X Bet and the UK-based Betway, which sponsors West Ham United in the English Premier League.
Huge billboards for betting companies greet you as you drive into bigger towns.
The inside sports pages of the newspaper I bought are filled with betting adverts, giving the day’s odds on matches from minor leagues in faraway countries.
But, after half a decade making billions in a largely unregulated environment, the ground is shifting underneath the betting industry’s feet.
A Gaming Bill has been introduced to Parliament that would overhaul a regulatory framework that was originally drafted in 1966.
Fred Matiang’i, the interior minister with a bulldog reputation, has given betting companies a month to settle their tax bills.
Citing a statistic that half a million Kenyan youth have been blacklisted for borrowing money they cannot repay, debt which Matiang’i attributed mostly to the betting craze, he declared: “This is a sector we must regulate.”
Last week, Matiang’i made good his threat when the betting regulator suspended 27 betting firms’ operating licences – including SportPesa – for alleged non-payment of taxes.
Safaricom, the mobile phone company which processes most of the mobile money transactions used to bet, was ordered to withhold their services to the blacklisted companies, and punters were given 48 hours to withdraw their money from their betting e-wallets.
The directives are thought to affect the majority of Kenya’s 12-million betting account holders, interrupting the flow of an estimated $2bn annually from their pockets to the industry.
SportPesa and others have protested vehemently, publishing their most recent tax compliance certificates in the press. SportPesa also pointed to a court order it obtained allowing it to continue operating pending finalisation of a dispute over payment of a percentage of punters’ winnings in tax.
Responding to suggestions about the rise of problem gambling in Kenya, the company told The Guardian it was a socially responsible business that placed a priority on local sports and community work.
In the midst of this febrile atmosphere, I give Bwire a call to find out how he’s doing and what he thinks of the clampdown.
Bwire has now left Kenyatta University, his graduation ceremony is later this month.
He continues to run his gambling awareness campaign on a part-time voluntary basis, but since we last spoke, his ambitions have grown: he is now preparing for it to go national.
He has registered a company, the Gaming Awareness Society of Kenya, and held a series of meetings with the betting regulator, urging them to introduce a countrywide gambling awareness campaign programme.
He is also partnering with a UK software company, Betban, to offer betting website blocking technology to universities; and approached one of Kenya’s largest nationwide network of counselling centres to introduce gambling addiction counselling.
But he is sceptical of the regulator’s motives for the crackdown: “If they were doing this in good faith, you might see some gambling addiction centres, some clinics, even just a little awareness created … they are just doing that for the tax.”
Bwire is echoing other commentators who see the directives as a thinly-disguised tax shakedown targeting the industry on behalf of the Kenyan revenue authorities and treasury who are under pressure to close a widening fiscal gap.
At a traditional wedding last weekend, President Uhuru Kenyatta referred to the crackdown explicitly. He said: “The firms should stop threats that they will move to court. The government must get its share [of tax] to fund activities that are beneficial to this country.”
This may not impress SportPesa’s owners, one of whom – as we report with the Guardian today – has been a major financier and fundraiser for Kenyatta’s Jubilee party.
“Those in the betting companies are our friends,” Kenyatta reportedly said, “But we have to agree that the government must get its rightful share to build cultural centres and other developments.”
But Bwire believes taxation is not going to dampen the public appetite for gambling, because “addicted gamblers will still gamble”.
He challenges the government to take a holistic approach, including addiction awareness and counselling.
“In this game of betting, they can’t only be a referee. People get injured in this game, and so there needs to be awareness about that, and doctors available too.”
Last year a new government body was set up, the Sports, Arts and Social Development Fund, to oversee the allocation of taxes specifically raised from betting.
Gambling taxes have reportedly already swelled the fund to around Shs15bn (more than £100m). By law, this money must be allocated to national sports teams, cultural facilities and the government’s universal healthcare pledges, as well as to unspecified “government strategic interventions”.
The fund took months to become operational due to political wrangling over who would control it.
In a country that many have argued is a kleptocracy, it remains to be seen whether any additional tax the government squeezes from the betting companies will fund gambling addiction awareness or rehabilitation – or instead disappears down the Nairobi drain.
In 2016, a few years after Kenya’s largely unregulated mobile phone-enabled sports betting craze took off, Bwire and his fellow students produced the first dedicated survey of betting among the youth.
They polled 373 students at Kenyatta University, roughly 0.5% of the university student population (78,000).
Although the sample size was relatively small, in the absence of comprehensive data about Kenya’s betting craze, it represents an important contribution to the public’s understanding of its prevalence.
Some key findings were:
* Nearly half of all respondents admitted to one or more signs of being at risk of problem gambling behaviour:
– 50% said they needed to gamble with increasing amounts of money;
– 30% said they were preoccupied with betting;
– 20% said they gambled the day after a loss in order to recoup it;
– 20% reported making repeated unsuccessful efforts to stop, or cut back, on gambling; and
– 3% said they had committed an illegal act to finance gambling.
* Most respondents said they started gambling aged 18-19.
* 68% of male respondents and 47% females said they gambled weekly, or more than once a week
* 7% of male respondents & 2% of females reported gambling daily
* Two-thirds of respondents spend up to KShs1,000 (£7.50) per month, one-quarter said they spend up to KShs5,000 (£40); and 5% of respondents said they spent more than KShs5,000 on gambling per month.
* 72% of all respondents saw gambling/betting as a way to make money; 40% said they saw it as a source of fun.
* 70% of respondents had gambled in the preceding year.
Read the report here.
These statistics broadly mirrored the headline findings of an often-quoted 2017 survey by GeoPoll on the leisure and spending habits of sub-Saharan African youth, which found that 76% of Kenyan respondents – the highest in the continent — had tried gambling.
Kenyans also spent the most money, about $50 (£40) monthly, mostly on football bets. The majority placed a bet once a week.
This is article was first published by Finance Uncovered.
* Edited by Ted Jeory and Nick Mathiason
Wildlife Conservancies or Sanctioned Land Grabs? The Simmering Crisis in Northern Kenya
Proponents of wildlife conservancies in Northern Kenya argue that they provide a win-win situation for both conservation and pastoralist communities. However, the current push to establish more conservancies in the region may backfire and lead to more conflict.
Kenya’s Vision 2030, which identified Isiolo as a strategic location in the hydrocarbon economy of the region, combined with the 2010 Constitution, which led to the devolution of power and resources, have thrust Isiolo County, a once sleepy and neglected former garrison town, into the El Dorado of Kenya’s future development.
However, Isiolo’s potential, if not judiciously managed, could turn the county into the future axis of natural resource-based conflict, especially in the large-scale irregularly acquired land by private corporations and individuals under the guise of community wildlife conservation. The consequences of what happens in Isiolo will likely spill over into other parts of Northern Kenya and Northern Rift Valley.
Like other parts of Northern Kenya, Isiolo lagged behind the rest of the country in economic development because of the government’s economic planning policies contained in Sessional Paper No 10 of 1965 “African Socialism and its Application to Planning in Kenya”, which created a dichotomy between low and high potential areas of the country. The reasoning was that the former would benefit from the trickle-down effect of the government’s investment in the latter. Isiolo was considered a low potential area, and thus received limited government investment. The community’s livelihood was based around livestock, which successive post-independence administrations considered economically unviable and antiquated compared to agriculture. This meant that the region received limited state support.
Parallel to limited investment, the post-colonial state continued with the colonial government’s policy of mediating its relations with Isiolo and the broader North Eastern region through the lens of security. If the British colonial administration used Northern Kenya and Isiolo as a buffer zone against Italians who were attempting to colonise Ethiopia and the French who were colonising Djibouti, the post-colonial state viewed Isiolo as a place where demands for secession, banditry and cattle rustling were rampant. This has made Isiolo one of the few counties with the most military schools and military barracks in the country. The military is also one of the largest landowners in Isiolo.
Like other parts of Northern Kenya, Isiolo lagged behind the rest of the country in economic development because of the government’s economic planning policies contained in Sessional Paper No 10 of 1965, which created a dichotomy between low and high potential areas of the country.
Vision 2030, Kenya’s development plan for making Kenya a middle-income country (MIC) by 2030, is perhaps the closest the state came to rectifying the problems created by Sessional Paper No. 10 of 1965. Vision 2030’s economic pillar aims to achieve an average economic growth rate of 10 per cent per annum and sustaining the same until 2030. If the core of Sessional Paper No 10 is centralised planning, thus creating a center and a periphery, Vision 2030 calls for decentralisation, thus blurring the distinction between peripheries and the centre. In fact, it aims to turn previously marginalised areas like Isiolo into centres of development.
Some of the major Vision 2030 projects of the economic pillar are either based in Isiolo or pass through the county. These projects include 6,500 acres of land at Kipsing Gap, which is about 20 kilometres west of Isiolo town and sandwiched between Katim and OlDonyoDegishi Hill, where a multi-billion shilling resort city will be based. Parts of the LAPSSET pipeline passes through the county, and the town is also where the Isiolo International Airport has been built. These projects are at different stages of being implemented.
When they finally take off, these projects will undoubtedly spur positive economic growth and improve peoples’ lives. Attention generated by these projects has also attracted “entrepreneurs” of all stripes with land as their primary key resource. Excision of huge chunks of land pose an existential threat to the pastoralist communities’ primary source of livelihood, which is already buffeted by multiple challenges, including climate change, agro-pastoralist conflict, and the ever-decreasing water and pasture because of demographic pressures.
One of the big players in land excision debates are the private wildlife conservancies. The entity behind wildlife conservancies is the Northern Rangeland Trust (NRT), which manages 39 conservancies that cover an area of 42,000 square kilometers across the country, mostly in Northern and coastal Kenya.
In the media and in policy circles, the discourse on wildlife conservation and pastoralism is always cast in Manichean terms: wildlife conservancy is “good” and pastoralism is “bad”. This was evident during the Laikipia conflict in 2017 that pitted the mostly Samburu and Pokot herders against mostly white, private ranchers (popularly known as Kenyan Cowboys or KCs).
During the conflict, the government and in turn the media described the pastoralists as “barbarians at the gate of civilization”, who only understand the language of brute force. As a result, the killing of livestock – the pastoralists’ livelihood – by the security agencies elicited less sympathy than the killing of wildlife killed by the pastoralists, sometimes in self defence.
In the media and in policy circles, the discourse on wildlife conservation and pastoralism is always cast in Manichean terms: wildlife conservancy is “good” and pastoralism is “bad”.
Since tourism earns Kenya huge amounts of foreign exchange, it tends to be privileged over human life and pastoralists’ livelihoods. For instance, during the 2017 clash involving pastoralists and wildlife conservancies in Laikipia, over 300 cattle were killed by the security agencies, and this act did not generate any condemnation.
Collective destruction of the pastoralist economy has historical precedent: The Truth, Justice and Reconciliation Commission found that the Kenyan army killed and confiscated livestock belonging to civilians in Northern Kenya. The shooting, especially of camels, was a particular strategy employed by the army as it was believed that camels were used by the Shifta to transport guns and other supplies. The Commission also revealed that it was common for soldiers and government officers to invade villages and confiscate cattle, sheep, camels and goats. The owners of such livestock were never told what happened to their livestock, nor were they ever compensated for their losses.
But the discovery of natural resources has suddenly changed the state’s engagement calculus with Northern Kenya, with the government making a beeline for the region, as demonstrated in the expansion of some of the often-neglected infrastructure. There is a sense that being among the least populated region, and being strategically close to the key borders of Somalia, Ethiopia and Sudan, the North has plenty of “free” land to be exploited.
But this courtship is anchored on a deterministic and reductionist single narrative: the free market. There is a belief that if the markets are opened in the region, all its problems will go away.
This narrative is problematic. First, it assumes that the moment the region is linked to other parts of Kenya, it will automatically “develop”. Second, the creation of Northern Kenya in the image of the rest of Kenya at the very minimum denies the people the agency to determine what development means to them. Third, we need to be circumspect regarding the pervasive business language that assumes that the problem with public services is inefficiency and that technology is the answer. This techno fallacy and big data syndrome dehistoricises and decontextualises problems, and is ultimately bound to fail. Fourth, the market, while it can be efficient in allocating economic goods and services, is terrible as the arbiter of social services. Unleashing market forces onto the region will destroy the collective social fabric that has held these people together even in bad times.
Often unaccounted for in this framing is the pastoralist communities of Northern Kenya, which have been trading amongst themselves and with their counterparts across all the borders without government support. The mutually reinforcing twin issues of insecurity and a fragile ecosystem have engendered the communities’ remarkably innovative resilience instincts.
If everything around pastoralism is not securitised, pastoralists are infantilised. In the current wildlife private conservation paradigm – underwritten by well-heeled intergenerational wildlife conservation untouchable “royals” and marketed by a well-choreographed sleek PR machine – pastoralist communities who have lived in harmony with wildlife for generations are only used as worn-out tropes of the Messiah Complex. Kuki Gallmann, whose life is immortalised in the movie I Dreamed of Africa is cast as a noble White Saviour, keeping the wildlife and pastoralists safe.
Northern Rangeland Trust and the Lewa model
Isiolo has three national game reserves: the Shaba Game Reserve (256 square kilometres), Buffalo Springs (131 square kilometres) and BisanAdi (150 square kilometres). All of these areas block or restrict human habitation and grazing. On top of the game reserves, there are a number of conservancies in Isiolo: Biliqo-Bulesa, which covers 3784.82 square kilometres and was established in 2007, Nakuprat-Gotu, which was established in 2011 and covers a total area of 719.92 square kilometres, Leparua which was established in 2011 and covers a total area of 328.35 square kilometres, and Nasuulu which was established in 2011 and covers 346.01 square kilometres. These are significant chunks of land being administered by a corporation.
If everything around pastoralism is not securitised, pastoralists are infantilised. In the current wildlife private conservation paradigm, pastoralist communities who have lived in harmony with wildlife for generations are only used as worn-out tropes of the Messiah Complex.
According to NRT, conservancies are community-led wildlife conservation initiatives that provide a win-win situation for wildlife conservation and for pastoralists. The lack of transparency and adequate information regarding the manner in which these conservancies are established and managed adds to the anxiety of pastoralist communities. Pastoralists in the area have been victims of various land grabs in the past and therefore view conservancies as a Trojan horse that will lead to further annexation of their pastoral rangelands.
Lewa conservancy, which covers 62,000 acres and is a home to a wide variety of wildlife, including rare and endangered black rhinos, zebras and Sitatungas, as well as the “Big Five” wildlife animals. Lewa’s value addition is held up as an aspirational model for other private wildlife conservancies.
However, the use of Lewa as a model for the future of Isiolo misses the dynamics inside Isiolo and for that matter elsewhere in the North. Laikipia County, where Lewa is located, doesn’t have nearly as many pastoralists as Isiolo does, which made the excision of such a huge tract of land possible. Additionally, the pastoral communities in Isiolo are diverse. Also not discussed when holding Lewa as a model is the failure of efforts at replicating Lewa inside Laikipia. For instance, establishment of a conservancy in OldoNyiro led to the community losing their land, forcing them to graze their livestock by the roadside because all the land has been fenced off.
Pastoralists in the area have been victims of various land grabs in the past and therefore view conservancies as a Trojan horse that will lead to further annexation of their pastoral rangelands.
At the heart of the establishment of the conservancies is the argument of return on investment: having “community” wildlife conservancies will allow pastoralists to have a stable income. But there is no conservancy that can guarantee the pastoralist the same kind of return that they can get from their livestock.
NRT has ambitions of establishing conservancies not just in Isiolo but across the Northern region. They already have some conservancies in Samburu County and plans are at an advanced stage to establish more conservancies in Marsabit County.
Devolution of power and resources to the county was designed as an antidote to centralised decision-making in Nairobi, which resulted in unbalanced and unequal economic development. What the framers of the constitution did not envisage, however, was the quality of representation that will shepherd devolution at the county level. The disparity between counties with good leaders and those with poor leaders is well documented.
But Isiolo’s land grab did not happen in a vacuum; it has been facilitated by poor leadership. The establishment of wildlife conservancies in Isiolo is a shot across the bow for other counties, such as Marsabit County. If they are not stopped, we could be walking into land-related conflicts with our eyes wide open.
The large-scale land grab in Isiolo by NRT will adversely impact the pastoralists’ livelihood, and generate new conflicts in an area blighted by incessant conflict. This will erode the potential Isiolo would have gained from devolution, Vision 2030 and its proximity to Ethiopia, which has the potential to increase cross-border trade.
Building Bridges or Walls? BBI Charades Masquerading as ‘Public Consultations’
AKOKO AKECH examines whether the “handshake” between opposition leader Raila Odinga and President Uhuru Kenyatta, which resulted in the Building Bridges Initiative (BBI), is truly a people-driven participatory process or merely a tool for the Kenyan political elite to consolidate their power.
It finally docked on our shores, the shores of the Nam Lolwe, on the 6th of June 2019. Unlike the old steamer, MV Alestes, it blew no loud horn to announce its arrival at the port of Kisumu to tell all within the vicinity to steer clear of the waterway and berth. Rather, it glided smoothly into Kisumu City at the end of a financial year, when government departments hurry to close the books. It creeped up on the residents of the city, stealthily like a crocodile. The 35th of the expected 47 Building Bridges Initiative (BBI) “public consultation” meetings was upon us.
“I got a call from the County Commissioners about a month ago. Something like this cannot be done through an open invitation. The whole of Kisumu would have been here,” said a young man with a chuckle, his face beaming with mischief, the smirk of someone proud of his high connections and who had been let into a well-kept siri-kali. We were queuing for tea and snacks at the Acacia hotel, Kisumu’s high-end hotel where the BBI commissioners were holding a “consultation” meeting on how to build a new Kenya.
I, too, would have missed the meeting, had I not seen in good time a WhatsApp message from a friend who’s a Kisumu government insider. The message had been sent in the wee hours of the morning that Thursday. In keeping with the rising personality cults of Kenya’s county governors, and their penchant for frivolous publicity, the e-invitation card I got bore Professor Anyang’ Nyongo’s picture, smiling, donning a white shirt and a red necktie, and holding a jacket flung over his left shoulder, held tenderly by his index finger. Warwakou duto! (All are welcome!), said the e-card.
As we sat down for tea and snacks, a clergyman wearing a white flowing robe and a red scalp cap (signifying his high position in the one of the many African-instituted Christian churches in Western Kenya) said, “I wouldn’t have known who sent me the money. I got am M-Pesa transfer of 2,028 shillings from a Samuel Otieno but I couldn’t tell who that is until the lady spoke.”
That lady he was referring to was an amiable and handsome woman dressed in a white, loose-fitting linen suit who had spoken towards the end of the meeting, shortly before the closing prayer – the ubiquitous Christian prayer that has become mandatory at public events, which always reminds one that many Kenyans, especially state and public officers, are yet to come to terms with the 2010 Constitution of Kenya, even with the shortest of its articles, Article 8, that states that “there shall be no State religion”. She told the officially invited participants that “if you check your phones, M-pesa imeingia [the Sh2000 transport refund] plus Sh28 ya kuitoa. Usikuje kama ulikua na Fuliza, the money has been chewed.”
The BBI task force is run like a tight deep state ship. But there is nothing transparent or charming about its process of public consultations. Unlike the recent commissions, whose meetings and deliberations were widely publicised, the BBI meetings are carefully and secretly organised, and their deliberations are hardly made public through the radio or the daily newspapers.
BBI has neither a known physical address nor a web page. Nor an expressly parliament-sanctioned legal existence and a budget line. It has an email address only. It works mostly as a sad reminder that despite its enormous constitutional powers, the Kenyan Parliament is yet to exercise effective control over the Office of the President, especially over the conduct of the provincial administration in midwifing political transitions such as the BBI and its latest women-only “popular movement” wing, Team Embrace.
The BBI task force is run like a tight deep state ship…The BBI meetings are carefully and secretly organised, and their deliberations are hardly made public through the radio or the daily newspapers.
Although the activities of the BBI have largely escaped or studiously evaded public scrutiny, the Kisumu event gives us a glimpse into how it works. Its consultative forum was surreal. It had a creepy feeling of an odd combination of a typical District Commissioner-organised public holiday event – with all its attendant display of anxieties over the security of the VIP and crowd control – and a typical NGO seminar at a five-star hotel, but with neither the benefits of a skilled moderator nor an appropriate teaching methodology of getting the best out of the competing and conflicting views of the representative of the various groups present at the meeting.
It was an eerily odd public event. Like a typical District or Provincial Commissioner-organised event, it drew in government officials and civil servants, including the starched khaki, big silver button, crimson red epaulets, and stick-wielding types, such as high-ranking police officers and provincial administrators, who patrolled the corridors of the hotel. While the presence of baton-wielding Administration Police officers at an open-field public event, in jungle-green camouflage uniforms, standing strategically in front of a crowd of spectators, and policing the imaginary wall between the seated and sheltered elite and the sweating crowd conveyed a sense of security and control, the conspicuous presence of the AP officers armed with the G-3 rifles or AK-47 rifles sent a chill down one’s spine. It evoked anxiety and fear rather than security and safety, which were amplified by the antics of an order-obsessed deputy county commander who wore a chocolate brown suit and stood like a sentry at the entrance of the second door to the conference room, alternately keeping an eye on the goings-on along the corridor and in the conference room.
Although the activities of the BBI have largely escaped or studiously evaded public scrutiny, the Kisumu event gives us a glimpse into how it works. Its consultative forum was surreal. It had a creepy feeling of an odd combination of a typical District Commissioner-organised public holiday event…and a typical NGO seminar at a five-star hotel…
Unlike a typical NGO forum, there were has no hand-written sign up sheets; the organisers simply ticked off the names of the participants on a printed list of invited participants, each sheet bearing the names of only the invited participants from each of the sub-counties of Kisumu County. Luckily, the uninvited (those not vetted by the Provincial Administration) could also walk into the meeting and listen to the proceeding, without signing up.
But like a typical NGO or government event, the meeting was adorned with big banners, which, despite promising dialogue or debate, served more to mark the boundary between the powerful commissioners’ high table and the jam-packed seminar room than to remind the commissioners of their vision and mission. Pleasantly, a female Kenyan sign language interpreter was hard at work, diligently translating the proceedings of the meeting.
The commissioners took turns to frame the problem, to ask questions, and to offer solutions and ways-forward, slicing up their audience into several categories: geographical, generational, gender, political, minority, and disability, soliciting from each participant, a solution for the evils bedeviling Kenya but barely giving the participants a chance to compose their thoughts or debate many contentious views vying for attention.
Nearly all the participants – except the governor, a Member of Parliament (Oduma Awour) and a former Member of Parliament (Prof Ayiecho Olweny) – were given less than three minutes to talk about items on the 9-item agenda, which prompted Father Samuel of the Catholic Peace and Justice Commission to say, “If the we want BBI to succeed, we need to allow people to freely express themselves, not shut down.” But the Commission did not heed to his plea. “We know what has happened, we need the solution. This is not the right forum for venting,” Prof. Oloo Adams responded curtly.
Except for Dr Florence Omosa’s very brief experiment with the Socratic approach, which questioned, teased out the inconsistencies and tested the appropriateness of a solutions offered by the participants, most of the commissioners found a ready-made formula for the classification of problems bedeviling Kenya by categorising them into neat labels: gender, age, geography, and social exclusion (including disability). Their idea of “participation” was to have a member from each category speak about their issues, as if the problem facing them was defined purely by their gender, age, geographical location, or level of social exclusion. Diversity, when in the hands of the securocrats and the commissioners, was reduced to a convenient tool of bureaucracy, generating more controversies than debate.
In a welcome break with the previous briskly sessions, Dr Omosa intoned politely and firmly, “Why do we fight during elections? We don’t trust each other, what should we do so that life goes on? What must happen so that we don’t have so many baby Pendos? Give me specific recommendations.”
Their idea of “participation” was to have a member from each category speak about their issues, as if the problem facing them was defined purely by their gender, age, geographical location, or level of social exclusion.
Not satisfied with the quick, not-well-thought-out responses, Dr Omosa observed, “I know, it’s not meant to be a dialogue, but I must ask you, how can the elders be the solution [to divisive elections], yet they champion exclusive ethnic leadership?” She was responding to a participant’s suggestion that a greater role for community elders in the management of elections is the solution to the tensions Kenyans experience in general elections. “Disband the IEBC [Independent Electoral and Boundaries Commission],” opined another participant.
Instead of a facilitating dialogue and debate, the meeting became a forum for contentious hard line views: “Kenya should go for a parliamentary system of government,” said one participant. “The constitution of Kenya has turned Kenya into a killing field,” asserted another. “Bring back the death sentence; let the murderers be locked without bail.” “Arrest and lock up the corrupt without bail,” Prof. Ayiecho Olweny, a former Member of Parliament, pleaded passionately. “We want “Luo kit gi Timbegi” brought back to in our curriculum,” said one participant. “Send the children back home to learn Dholuo,” said another. Ms Grace Jowi Jobita from Muhoroni, paraphrasing the Bible, stated, “If it is your eye that’s causing you a problem, my first recommendation is, let them be castrated, second, let them be castrated, and third, let them be castrated.”
There was also a call to “review the social ethics and education curriculum” in order to address the dearth of ethics among Kenyan youth and the rising cases of violence against women, including rampant cases of rape and defilement. “Amend the Chief’s Act. Our society is yearning for the past order, and is uncomfortable with the recent changes,” said retired Paramount Chief Paul Odero.
Mr Mathews Owili, the Kisumu County’s deputy governor, concurred with Prof Anyang’ Nyong’o that Kenya needs a parliamentary system of government, but also asked, “If the Prime Minister can be compelled by law to form a government that reflects the face of Kenya, can the Prime Minister be compelled to treat all Kenyans as equals?”
Struck by the repeated demands for more laws that would ensure diversity in public appointments, especially at the top levels of Kenya’s state power, Senator Amos Wako, the former long-serving Attorney General, pointed out, “The law already provides for that…the constitution makes reference to the face of Kenya in more than 22 Articles. What I want is, how can we ensure that the law, the constitution is respected by whomever?”
“The problem may not be Chapter Six [on leadership and integrity], but the law to enable, enforce the chapter. Perhaps the law enacted to enable this chapter does not reflect the letter and the spirit of the constitution of Kenya, 2010,” added Senator Wako.
However, BBI commissioners stuck to their nine-point agenda, briskly running through each item on their tick-off list, even when the more discerning participants, such as Senator Amos Wako, sensed that the problem might not be more laws, as some were suggesting, but a more complicated political process i.e. the lack of good laws and constitutionalism.
Anxious that this meeting might not yield much, Sheikh Masoud pointed out that “Kikao bila matunda ni ufisadi,” cautioning both the commissioners and the participants at the meeting that if the BBI initiative, like past initiatives such as the Truth Justice and Reconciliation Commission (TJRC), yields nothing, then the participants at BBI public consultation meetings would be complicit in yet another act of corruption.
The TJRC report is silent on or whitewashes some critical aspects of Kenya’s evil past. For example, Volume 11 of the TJRC report airbrushes the 1969 Kisumu massacre out of Kenya’s register of post-independence political massacres. The BBI too looks like yet another lost opportunity to revisit Kenya’s evil past and exorcise the ghosts that haunt Kenya’s post-independence politics.
Sheikh Masoud pointed out that “Kikao bila matunda ni ufisadi,” cautioning both the commissioners and the participants at the meeting that if the BBI initiative…yields nothing, then the participants at BBI public consultation meetings would be complicit in yet another act of corruption.
The BBI’s is a lost cause because it embodies the worst carry-overs from the undemocratic provincial administration’s coercive and manipulative tendencies while pretending to promote progressive and inclusive practices. The BBI seems yet another lost opportunity because the elite have set its course, and are championing narrow, selfish and convenient political causes that hardly go deep enough into the roots of the knotty questions of justice many Kenyans yearn for, and which were not given a fair hearing at the Kisumu forum.
Boniface Akach, a Kondele-based front-line human rights activist, who only learnt of the BBI meeting accidentally while attending a “solidarity” meeting at the same hotel, wrote the following on his Facebook account: “The on-going public participation exercise by BBI is a mockery, a waste of public resources and a rubber-stamping exercise. How can such a public exercise be taken to the Acacia Hotel, a five-star rated hotel, despite other more conducive and accessible spaces being available? The invite-only event is so restricted, with NIS and Police all over. The mobilisation across sub-counties is so well designed apart from Kisumu Central (wajuaji). Mobilisation was strictly done by the Kisumu County Commissioner. But we are not surprised, we all know that the aim the referendum is meant to settle scores as it creates opportunity for recycled, rejected political friends.”
Perhaps, as Akach points out, the perfunctory public consultation meetings, like the one held in Kisumu County, are merely an alibi for a pre-determined political course and cause. In Kisumu, there was a clear divide between the demands made by the ODM elite, on the one hand, and popular demands by the people of Kisumu County, on the other.
According to Kisumu County Governor Prof. Anyang’ Nyong’o and the ODM branch leaders, what’s at stake is a referendum to turn Kenya into a proper parliamentary system of government. However, to others, it’s the unfinished business of political violence and justice for the victims of political violence.
“We want inclusivity in compensation. We lost lives in 2007 and again in 2017. Some people were compensated, but not people from this region. We need inclusive compensation for people like baby Pendo,” said Victor Nyasaya. A representative of the National IDP network also expressed a similar concern. “The 2007 IDPs in Kisumu were paid only three thousand shillings, unlike those from Nakuru who were paid ten thousand shillings,” he lamented.
In many ways, the BBI “consultation” made a mockery of the constitution-sanctioned idea of public participation, a realisation that was not lost on many of the participants attending the Kisumu forum. It was a charade. Melania Jackie, representing the youth, lamented, “We were are not involved in the process of formulating public policies. Not the Universal Health Care, not the Huduma Number, we were only given deadlines. No civic education. We don’t have a youth on the BBI high table, even a token of representation.
“Na tuna ambiwa hii sio baraza,” Mitchelle Otieno lamented on Facebook, adding that “the BBI team ought to have held the meeting in Kondele and not Acacia hotel. We lost lives in Kondele, Nyalenda, Manyatta, and not Acacia.”
In many ways, the BBI “consultation” made a mockery of the constitution-sanctioned idea of public participation, a realisation that was not lost on many of the participants attending the Kisumu forum.
Orengo Ben Wamaya, who represented Bunge la Mwananchi at the meeting, thundered, “Public participation is never done in a five-star hotel.”
If the TJRC report offers the residents of Kisumu an official amnesia for the 1969 massacre in exchange for the recognition of the years of economic marginalisation which followed it, then what will the BBI report yield? Will it offer restorative justice or compensations for lost life, limb and property to the recent victims of political violence? Who will foot the bill? The perpetrators and the principal beneficiaries of political violence now occupying high offices or the Kenyan taxpayers yet again? Will it be sufficient and equitable? Will there be yet another opportunity for a trade-off between some measures of restorative justice and political support for a new political coalition, like the Uhuruto 2013 bargain? Will it offer retributive justice? Will it recommend memorialisation of the victims of past political evils or yet again endorse a tacit collective amnesia and unofficial amnesty for the perpetrators and principal beneficiaries of the past political evils?
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