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The Indomitable Yash Pal Ghai – Part 4: The Defender of Justice

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We still have a hugely corrupt and dangerous elite that will do anything to continue looting and raping this country, but Yash wrote this Constitution so they can’t mess with certain things.

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The Indomitable Yash Pal Ghai: The Defender of Justice
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Over the course of his career, Professor Yash Pal Ghai has had the opportunity to act as a visiting professor in a number of countries, teaching law across Australia, the United Kingdom, the United States, India, Singapore, South Africa, Canada, Fiji, and Italy. It was during one such visiting appointment in 2000, at the University of Wisconsin, Madison, that Ghai received one of the most important calls of his career.

When the phone rang, Ghai was sitting with Bill Whitford, his longtime friend, in Whitford’s home in Madison. It was Amos Wako, Ghai’s former student, then the Attorney General of Kenya. “Come home,” Wako said to a stunned Ghai. His initial reaction was disbelief. “Are you really serious?” he asked Wako. “Yes,” Wako explained, “Everyone wants you to come home, and President Moi wants you to write the new constitution.”

Ghai’s initial reaction was, unsurprisingly, one of hesitation. “The government had never shown any interest in me, and I still felt bitter about the way I had been treated.” His hesitation was compounded by a feeling of detachment. Although he had been home sporadically in the intervening years, it was never for more than a few days at a time; he did not have a strong sense of what was happening politically. “I said no,” Ghai says. “I didn’t know what was happening, my experience had been bad and I didn’t know how sincere they were.” Indeed, Ghai had missed the years of political turmoil that preceded this moment. He had been away while the Kenyan executive gradually consolidated power and eroded democratic rights; he had missed the decades of struggle for constitutional reform.

Over the next few days, however, he consulted with old friends, including Pheroze Nowrojee and Willy Mutunga, who advised him to visit and survey the landscape before making a final decision. “Then one day my secretary rings from Hong Kong and says, ‘This man who rang has called again and wants to see you. Can I give him your details in America?’ The next day, Wako arrived in Wisconsin. He spent time with me and said things had changed and that I should give it a chance.” Cottrell Ghai also recalls it clearly. “Wako actually went to Madison. It was most extraordinary.”

As Ghai considered the offer, many of his contacts in Nairobi told him not to accept. The country was deeply divided, and the thinking around constitutional reform was concentrated in two opposing camps, one led by the Moi government and the other led by a coalition of religious leaders and civil society organisations, known as Ufungamano. Many in civil society did not trust that any real change could come through government-led efforts, and they believed that the focus should remain on deposing Moi from power. Mutunga was relatively alone among Ghai’s closest friends in his support. “He had written constitutions all over the place in the Commonwealth. He was honoured by the Queen for it. As a patriot, writing one for Kenya would be a great accolade. He had his doubts, but as a human rights activist we urged him to take up the task, notwithstanding the challenges.”

The Indomitable Yash Pal Ghai: The Father of the Constitution

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After some initial thought, Ghai agreed to visit Kenya and survey the landscape without necessarily committing. First, however, he had to return to Hong Kong, which he did via Papua New Guinea, where he had some work. Ghai was relatively cut off for the duration of his short assignment, but by the time he returned to Hong Kong, Wako had (falsely) announced that he had accepted the position, a move that would eventually come back to haunt Wako.

When Ghai made his first visit to Kenya in December 2000, it was a momentous occasion. Wako and Raila Odinga, who was at the time representing the Langata constituency in parliament, personally met and welcomed Ghai home. He used this initial visit to meet with key players and get the lay of the land, eventually deciding to take the position but only on his own terms. When he returned to Hong Kong, though, the University was unwilling to allow Ghai to accept the assignment. A few days after the refusal, Ghai received a call from the Chancellor. “He said he hadn’t been able to sleep,” Ghai remembers. “He had raised this with the Council and they said they felt a bit bad. After all, it was a chance for me to go back to my country. So they said, ‘Ok, but this is the last time you can go.’ We felt it wasn’t right for Jill to also leave so she stayed back.”

Whitford remembers Ghai’s hesitation. “He didn’t need that job. He just felt this tremendous loyalty to Kenya. He always travelled on a Kenyan passport even though he could’ve gotten a British passport. That was a real pain in the ass, but he did it. It was just important to him to play that role. It was about the chance to do something for his country.” Mutunga agrees, saying, “Kenya remained his constant North.” It had been more than three decades since Ghai had been a young student, standing on the steps of Lancaster House, watching the Kenyan delegates arrive to negotiate an independence constitution. This was a chance for him to contribute to the next phase of that mission – to lend the wisdom he had gained through years of service to other countries to his own homeland.

When Ghai returned to Nairobi, now ready to begin work in earnest, he was under no illusions. Moi was under pressure. He wanted someone who would get it done and get it done quickly. “I told Moi I wasn’t ready to accept. I would only take it if all the key groups in the country were involved in this process. I didn’t want to come and talk to a few politicians. I made it clear that it had to be a very participatory process. I said, ‘If you are willing on that basis, I will consider it.’ ” Ghai told Moi he required two to three months to merge the Ufungamano and government groups and create one united constitutional process. Ghai then embarked on what many consider to be one of his crowning achievements, the process of bringing the two sides together. So committed was he to achieving unity that he refused to take the oath as Chair of the Constitution of Kenya Review Commission (CKRC) unless there was one, unified process.

In addition to the divisions between the government and Ufungamano, Ghai quickly found that he would also have to address divisions within the Ufungamano group itself. According to Zein Abubakar, who represented the Safina Party at Ufungamano and who also became a commissioner of the Constitution of Kenya Review Commission, a “radical” wing of the Ufungamano process saw Ghai as someone who undermined the revolutionary path. Indeed, a radical minority group remained opposed throughout, branding those who participated as “sell outs.” At the same time, Abubakar explains, it was understandable; the government had never kept its word in the past and the fear of betrayal was very real.

Ghai was aware of the divisions. “At that time,” he remembers, “civil society were very divided about my coming. They had already formed their own commission. They had already started going from town to town to talk about the constitution. I didn’t want to sabotage them.” Indeed, John Githongo, who was the head of Transparency International at the time, remembers being highly suspicious of Ghai. “I’ll be very honest. I was very concerned and completely opposed to him. I’ve never told him this, but we were very, very skeptical of a person brought by Amos Wako, even though the Ghai brothers had a sterling reputation as academics. Yash was bright and super-brained, but our attitude was that there’s no way he’s going to get our politics. He’s been away too long.” Abubakar agrees, explaining that Ghai – despite his international reputation – had no legitimate standing with local civil society and religious leaders.

His commitment to achieving unity greatly impressed skeptics in the Ufungamano group. Abubakar says, “One of the things we appreciated was his position that there can only be one process, which was principled. One of the things that bothered a number of leaders was that if you had two processes, apart from divisiveness, how would you implement the outcome of either one? The country was split 55-45 in our favour. It’s very difficult to have a constitutional order that is not supported by half the country. There was also potential for violence and reversal of some of the democratic gains that people had paid for and won by then. At a strategic level, we said that it is better to negotiate a unified process.”

Ghai’s style, based on an objective and open attitude, impressed key players. Abubakar remembers, “The first thing he did was to listen to various sections of society and the listening process allowed him to understand that this process was deeply dividing the nation. Based on those initial consultations and listening, he decided not to take the oath as Chair. That also helped build bridges with the religious sector and the other side, because he was seen as credible and as someone who is not showing any bias. He was willing to listen to everyone who had an opinion.” Githongo agrees, pointing to Ghai’s refusal to take the oath as one of the key factors in shifting the tide in his favour. “His credibility started very low with progressive forces. He was seen as Moi’s man, Wako’s man. I remember all of us sitting around, discussing. People said, ‘No, no. This is a hatchet man for Moi, a waste of time.’ But then he refused to take the oath. Yash’s credibility was first built on that – his unwillingness to take the oath until the two sides came together. It was a very slick move, very well executed. In fact, he doesn’t talk about it or show it but he is a very politically wily operator. After that, all of a sudden, people took him seriously.”

Ghai also made it clear that he was willing to walk away from the process if it did not live up to his standards. Unlike many others who had been competing for the position of Chair of what would be the review commission, Ghai had no personal ambition to win the position. Abubakar says, “He was willing to walk away and that was important in terms of people’s willingness to sit and talk.”

Finally, Ghai’s connections to all sides greatly facilitated communication and eventual cohesion. “He opened back channels to government and to opposition leaders,” Abubakar says. “I think the insistence then of both Ghai and Raila supporting Ghai is what reluctantly convinced Moi to agree to a common process. If it had been Ghai alone, it wouldn’t have happened. It had to be Ghai and Raila. Ghai then said if there is no willingness to unite the country in a process and make sure the process is credible, he was willing to walk away.”

After nearly five months of negotiations, Ghai achieved unity. The two sides came together, and now the real work began.

As Chair of the Constitution of Kenya Review Commission (CKRC), Ghai created and implemented a citizen-centred methodology based on his decades of experience. The CKRC set up local offices around the country, canvassing public views and educating Kenyan citizens about the process. The Commission also travelled extensively, in multiple rounds, to hold public hearings so that they could listen to what people wanted with regard to the key issues. It was important to Ghai to create a publicly-owned constitution, one that addressed people’s longstanding grievances and that offered equal empowerment and protection to all. He personally travelled to public hearings, further demonstrating his deep commitment to and investment in the work. Githongo says, “I was very impressed, and I grew to have a great fondness for him. He was not only giving intellectually. He believed deeply in the work.”

Yash Pal Ghai listening to views of a Kenyan at a CKRC event.

Indeed, the Ufungamano groups had already begun the process of canvassing public opinion, and Ghai was able to carry that initial momentum forward. “Many places were new to me,” Ghai remembers. “I had never been to so many places. In the beginning, it was not easy. My Swahili had deteriorated a lot, but I still enjoyed it and found it very interesting. I had never seen so many different Kenyans, different styles of dress and ways of life. I enjoyed getting people’s views, getting concrete feedback from the people.” Abubakar recalls Ghai’s personal touch on these journeys. “He has a willingness to learn from others, to talk to people, just ordinary people who flock around him. I had the occasion of him accompanying me to a number of public hearings. He has an ordinary touch with people. He has an ability to inspire people. He connects with young people, ordinary people, people from all different stations in life – from leaders all the way to people who don’t know where the next meal will come from. One time, we were driving to a hearing and he saw people walking on the side of the road. He said, ‘Stop the car and ask these people where they are going.’ They said they were going to the hearing. And then he asked for arrangements for them to be dropped there. And he’s in his element that way.”

The Commission was extremely successful, and by the end of the process, it had collected over 37,000 public submissions on a full range of issues. In its 2002 report to the country, the CKRC highlighted 13 main points from the people. Examples of these included a desire for a “decent life”, fair access to land, a request to have more control over decisions which affect daily life, leaders who meet a higher standard of intelligence and integrity, respectful police, gender equality, freedom of expression for minorities and accountable government. There was a clearly expressed demand to “bring government closer to us.” The CKRC was deeply moved by the public participation, commenting on how “humbling” it had been to see “people who, having so little, were most hospitable to the Commission teams, and [who were] prepared to raise their eyes from the daily struggle to participate with enthusiasm in the process of review.” Githongo calls this public consultation process the second pillar of Ghai’s credibility. “The process he defined and described helped people see that he was serious. He became a people’s hero.

The Indomitable Yash Pal Ghai: Years of Exile

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Ghai’s commitment to his work generated massive amounts of attention. Abubakar says he respects Ghai for his ability to remain “down to earth.” He says, “Prof. [Ghai] didn’t take big security. The only time that he took it was when the government insisted and that was periodic.” This was in sharp contrast to other commissioners, who insisted on 4-wheel drive cars and who even refused to share vehicles with Secretariat staff. Mutunga agrees, recalling, “They wanted him to drive a big car; he refused. Moi even announced that Yash was being too lax about security, and we all thought it meant he would be bumped off! One of the reasons why he became so popular was because of his humility.”

At the end of public review, the CKRC moved on to drafting, producing a draft constitution in September 2002. Ghai then broke his team into thematic groups, each responsible for refining and improving specific portions of the draft. He called in experts from around the world to assist and offer comparative knowledge. He also courted diplomats, many of whom were so impressed that they offered to help fund the process. “But I said, ‘no,’” remembers Ghai. “I wanted it to be a Kenyan process.” Three days before the debate on the draft was to begin, however, President Moi dissolved parliament. Since all MPs were part of the National Constitutional Conference, the body legally mandated to adopt the new Constitution, things could not proceed. In December 2002, Kenya held landmark elections. Moi, who had been in power for nearly a quarter of a century (24 years), finally stepped down, ceding power to the National Rainbow Coalition (NARC), headed by President Mwai Kibaki. One of NARC’s key campaign promises was the promulgation of a new constitution within the first 100 days in office. Once in office, Kibaki stalled. “When people talked about presidential and parliamentary systems, Kibaki used to say that we are opposed to an imperial presidency; we want a parliamentary system. Once he realised that he could be president, that all changed. There was a lot of this opportunism. Even Raila to a certain extent – once Raila realised he wouldn’t be president, he split away.” Indeed, speculation was rife that the aging Kibaki’s reluctance to move ahead with the Constitution was due, at least in part, to a provision that would prevent him from running for a second term.

In April 2003, four months after the elections, the process again got underway, this time at the Bomas of Kenya. Ghai remembers, “When we moved to Bomas, I told the people there that we are going to take over and we need six, seven months. This is going to be hundreds of people. I felt that people should have time to think about their own positions. The mood got better and better. People got to know each other. By the end, people who didn’t know each other had become good friends.” At the same time, however, there was increasing factionalisation amongst the delegates, each making decisions purely based on political self-interest. At one point, during a break in drafting, the government attempted to stop the process from continuing. “I don’t think I have ever seen him so apoplectic,” Githongo recalls with a smile. “Prof. started leading demos of delegates in the streets to demand entry into the Bomas, and that was against guys with guns and dogs,” recalls Abubakar.

Soon thereafter, Ghai was alerted that Kibaki was planning to take the CKRC to court and allege that the entire process was illegal. Upon hearing of the impending court case, Ghai moved quickly to finalise a draft. At this point, however, Ghai remembers that “the only people left in the constitution-making body were from Raila’s side. Others were told to boycott. Kibaki and the DP walked out ostentatiously at one point when they saw they wouldn’t get the vote they wanted.” Particularly contentious to the government were provisions for a parliamentary system and some aspects of devolution. He resolved to work hard to finish. “I had only ten or eleven days to finish and get an endorsement. We had to do so much so quickly, and that’s why some parts are not so good.” Kibaki succeeded in court, and the CKRC was prevented from passing its draft to the government. “That he was able to get the Bomas draft approved by the delegates before the reactionary forces disbanded the conference was a miracle,” says Mutunga.

Ghai returned to Hong Kong soon after finalising the Bomas draft. “I read in the papers that the High Court had declared the whole process and the constitution unconstitutional. I felt terrible. I think I issued a couple of strong articles saying that, based on the documents that started the process, we were legal. By that time, Kibaki had gotten enough support and bribed enough people. They dissolved parliament all together, and then there was nothing more for me to do.” Cottrell Ghai remembers the final push as particularly difficult. “They put huge pressure on the closing stages of the process. There was a sense of great satisfaction for having produced a document but he was disappointed.”

The government’s hijacking of the process became most clear at the end of the Bomas period, but Ghai faced enormous amounts of stress throughout the process. Cottrell Ghai remembers calling him every morning from Hong Kong, after reading the Kenyan papers online, to warn him about what he could expect that day.

Ghai had little say, for instance, regarding the team of commissioners he would lead, and it was clear that there were divisions. Some commissioners were little more than spies for the government side, sometimes purposely delaying progress, while others were more interested in using the opportunity for personal profit than for sincere constitutional reform. “After Yash had managed to unite the two sides, he found himself with a very difficult CKRC, riven with self-interest, corruption, people meeting with the president behind his back, people being paid off . . . which he had to mitigate on an ongoing basis,” says Githongo. Mistrust was so deeply embedded that Abubakar insisted on the verbatim recording of all meeting minutes. “It was the only protection against people who would change their views. Almost all our meetings were recorded verbatim with the exception of two to three of them, where it was so bad that people said to switch it off. Of course, that in itself was against what we had agreed.”

An early battle erupted over the Secretary of the Commission, who – according to both Abubakar and Ghai – was a severe alcoholic, incapable of discharging even the most basic of his duties. “The person was not fit for public office,” Abubakar remembers. When dismissal procedures started, however, Moi was against it, and he threatened to disband the entire CKRC. Ghai and others stood firm, making it clear that they were willing to walk away from the Commission if the Secretary was not dismissed. It worked. “It became so bad that when the other members realised that we were willing to disband, they backtracked and went to see Moi. They convinced him to give the Secretary a soft landing by appointing him to the Law Reform Commission,” Abubakar recalls.

Corruption and betrayal were significant issues, dogging Ghai throughout his time as head of the CKRC. Cottrell Ghai recalls this as a particular strain on Ghai. “Some of the commissioners were very nice, but others were lazy or corrupt. They were all a bit corrupt. That was all a big strain, constantly watching whether they were stealing. Yash would say, ‘I think I’m going to resign and then the next day, he would say, ‘It’s ok. I’ll carry on.’ The up and down was quite a strain.” Ghai agrees, attributing the onset of his diabetes to this period in his life.

Githongo also recalls Ghai’s stress and frustration. “Sometimes, he would rant and we would all sit and listen. And he would go on and on sometimes, talking about receipts and accounts, and then we would gently have to say, ‘Ok, let’s get back to the agenda.’ But he needed that outlet, that safe space to express himself.” Githongo explains that the kinds of problems he faced were new to him. “He is politically very savvy, but he had never functioned in a context where such avarice, corruption and greed were so blatant. It was even amongst people who were very respected legal scholars etc., and that seemed to really throw him. He was used to different types of problems.”

Abubakar remembers meetings in which members would try and build consensus around a certain issue. “Then you see a commissioner signal and leave the room. Then two or three people follow him. Then they would come back in and do a 180-degree turn on a position, or propose something that is inherently illegal. You could see from his facial expressions that he was angry, but there were few times when he would lose his temper. On a few occasions, he would just walk out of meetings.”

By the end, the process had taken a clear toll on Ghai. Recalls Githongo, “He has done some really difficult things. He has been in situations where guys would show up armed and he would have to negotiate with them to leave their AK-47s outside of the negotiation room. So he’s used to that, but this one is much more soul destroying. It’s avaricious, corrupt, deceitful and very money-oriented. That really threw him. He found himself interacting with some of the most respected law scholars, and he found himself completely stuck on issues like travel expenses. That took a toll. What was very clear to me is that Yash has not only put his whole mind and all his experience – which are both considerable – into this but he has put his whole heart into it. He would get very hurt by the betrayals, by the lies and by the realisation that he had been strung along.”

The Indomitable Yash Pal Ghai: The Hong Kong experience

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Ghai resigned in 2004, soon after returning to Hong Kong. Cottrell Ghai remembers being in Italy on vacation. “The internet was not that good. We had to use a dial-up connection, and after a lot of hassle he emailed his letter of resignation to the president from there.”

Despite all the challenges, Ghai does not regret accepting the job. “It meant a lot to me, especially because I had devoted a lot of my career to human rights.” He says that the chance to return home after having been “thrown out” was also significant. “In the long run, I feel it gave Kenya a new start. I don’t regret doing what I did. I met a lot of people, and I know so many more Kenyans than I would have otherwise known. It was really, really challenging, but I felt quite pleased in the end that I was able to bring some peace.”

There are still, however, elements that haunt him. “Our document was strongly parliamentary, and we were somewhat innovative about the role of the governor general in that context. I think people liked it. We were trying very hard to build a non-ethnic political system and many of those provisions are still in. I think a parliamentary system is better and more participatory; you have to be more careful as prime minister. Also, we hadn’t quite finished what we had wanted to do with devolution. I regret these two things very much indeed. The people who are now saying to change these elements are the ones who had not wanted it back then.”

In spite of the significant problems faced by Ghai and the CKRC, the Constitution of Kenya – finally promulgated in 2010 – is based largely on Ghai’s Bomas draft. For this reason, Ghai continues to be known as the “guru” and the “father” of the Constitution. One of his proudest achievements, and indeed one reason why the Constitution receives such widespread, international praise, is the Bill of Rights. “I am very proud of it,” Ghai says. “I think it’s a good document. It’s very people-oriented. There are a lot of methods through which they can take action, which they must be allowed to do. And I am particularly pleased about the Bill of Rights. If we are failing, it’s our fault. Our politicians have absolutely failed us, and now it’s up to us to solve it.”

Katiba Institute co-founder Waikwa Wanyoike agrees, describing the Bill of Rights as a personal reflection of Ghai’s thinking on human rights. Says Wanyoike, “He has a very strong connection to it. Even in terms of newer constitutions, I don’t think that we have any constitution that surpasses the Kenyan constitution, especially in terms of rights.” Wanyoike also credits Ghai for what he calls the uniquely “transformative” aspects of the Constitution. “What you get is an overthrow of the political order and the installation of a completely new political order which clearly spells out values and principles. That element of transformation is even more defining than any single chapter of the Constitution, and that was because of the design that he and the CKRC put in place, which was very, very participatory. It’s now very hard for the political class to try and trash what has been done.”

Mutunga agrees, especially with regard to the Bill of Rights. “Our Bill of Rights is the most modern in the world. It has borrowed from the progressive development of human rights from the world over . . . I am proud of it, too. In my writings I have called the jurisprudence envisioned by the Constitution ‘indigenous, rich, robust, progressive, decolonised, and de-imperialised.’ I see the constitution as rejecting and mediating the status quo that is unacceptable and unsustainable in its various provisions. If implemented, I have always argued, it could put the country in a social-democratic trajectory and act as a basis of further progressive social reform . . . if we have the political leadership committed to its implementation. It seems, however, that Kenyans as parents have given this ‘baby’ to a political leadership that cannot be trusted to grow and breathe life into it.”

Githongo also laments the nature of Kenya’s leaders, who he believes are incapable of implementing the Constitution with any sincerity. “On paper, our Bill of Rights is extremely progressive, but life is breathed into the Bill of Rights by leaders agreeing to be accountable and surprising their people by saying, ‘I can’t do this because it is wrong.’ Our guys make every effort to show that the Bill of Rights doesn’t apply to them. If you are poor, then you can die anytime; the Bill of Rights doesn’t apply to them. It hasn’t come to life for the majority of Kenyans.”

On the other hand, Githongo believes that Ghai’s work on the Constitution ensured that – despite everything – it continues to offer hope. He says, “We still have a hugely corrupt and dangerous elite that will do anything to continue looting and raping this country, but Yash wrote this Constitution so they can’t mess with certain things.”

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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

Beyond Political Freedom to Inclusive Wealth Creation and Self-Reliance

Malawi can alleviate poverty and become a model for development and democracy by investing in and improving the quality of human capital, the quality of infrastructure, and the quality of institutions.

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Beyond Political Freedom to Inclusive Wealth Creation and Self-Reliance
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The Tonse Alliance that made history in June by winning the rerun of the presidential election, the first time this has happened in Africa. It represented a triumph of Malawian democracy, undergirded, on the one hand, by the independence of the judiciary, and on the other, by the unrelenting political resilience and struggles of the Malawian people for democratic governance. In short, we can all be proud of Malawi’s enviable record of political freedom. However, our democratic assets are yet to overcome huge developmental deficits. Our record of economic development and poverty eradication remains dismal, uneven, and erratic.

Malawi’s persistent underdevelopment does not, of course, emanate from lack of planning. In 1962, Dunduzu Chisiza convened “what was perhaps the first international symposium on African Economic Development to be held on the continent”. It brought renowned economists from around the world and Africa. In attendance was a young journalist, Thandika Mkandawire, who was inspired to study economics, and rose to become one of the world’s greatest development economists. I make reference to Chisiza and Mkandawire to underscore a simple point: Malawi has produced renowned and influential development thinkers and policy analysts, whose works need to be better known in this country. If we are to own our development, instead of importing ready-made and ill-suited models from the vast development industry that has not brought us much in terms of inclusive and sustainable development, we have to own the generation of development ideas and implementation.

I begin, first, by giving some background on the county’s development trajectory; and second, by identifying the three key engines of development – the quality of human capital, the quality of infrastructure, and the quality of institutions – without which development is virtually impossible.

Malawi’s development trajectory and challenges

Malawi’s patterns of economic growth since independence have been low and volatile, which has translated into uneven development and persistent poverty. A 2018 World Bank report identifies five periods. First, 1964-1979, during which the country registered its fastest growth at 8.79%. Second, 1980-1994, the era of draconian structural adjustment programmes when growth fell to 0.90%. Third, 1995-2002 when growth rose slightly to 2.85%. Fourth, 2003-2010, when growth bounced to 6.25%. Finally, 2011-2015, when growth declined to 3.82%. Another World Bank report, published in July 2020, notes that the economy grew at 3.2% in 2017, 3.0% in 2018, an estimated 4.4% in 2019, and will likely grow at 2.0% in 2020 and 3.5% in 2021.

Clearly, Malawi has not managed to sustain consistently high growth rates above the rates of population growth. Consequently, growth in per capita income has remained sluggish and poverty reduction has been painfully slow. In fact, while up to 1979 per capita GDP grew at an impressive 3.7%, outperforming sub-Saharan Africa, it shrunk below the regional average after 1980. It rose by a measly 1.5% between 1995 and 2015, well below the 2.7% for non-resource-rich African economies. Currently, Malawi is the sixth poorest country in the world.

While the rates of extreme poverty declined from 24.5% in 2010/11 to 20.1% in 2016/17, moderate poverty rates increased from 50.7% to 51.5% during the same period. Predictably, poverty has a gender and spatial dimension. Women and female-headed households tend to be poorer than men and male-headed households. Most of the poor live in the rural areas because they tend to have lower levels of access to education and assets, and high dependency ratios compared to urban dwellers, who constitute only 15% of the population. Rural poverty is exacerbated by excessive reliance on rain-fed agriculture and vulnerability to climate change because of poor resilience and planning. In the urban areas, poverty is concentrated in the informal sector that employs the majority of urban dwellers and suffers from low productivity and incomes, and poor access to capital and skills.

While the rates of extreme poverty declined from 24.5% in 2010/11 to 20.1% in 2016/17, moderate poverty rates increased from 50.7% to 51.5% during the same period. Predictably, poverty has a gender and spatial dimension.

The causes and characteristics of Malawi’s underdevelopment are well-known. The performance of the key sectors – agriculture, industry, and services – is not optimal. While agriculture accounts for two-thirds of employment and three-quarters of exports, it provides only 30% of GDP, a clear sign of low levels of productivity in the sector. Apparently, only 1.7% of total expenditure on agriculture and food goes to extension, and one extension agent in Malawi covers between 1,800 and 2,500 farmers, compared to 950 in Kenya and 480 in Ethiopia. As for irrigation, the amount of irrigated land stands at less than 4%.

Therefore, raising agricultural productivity is imperative. This includes greater crop diversification away from the supremacy of maize, improving rural markets and transport infrastructure, provision of agricultural credit, use of inputs and better farming techniques, and expansion of irrigation and extension services. Commercialisation of agriculture, land reform to strengthen land tenure security, and strengthening the sector’s climate resilience are also critical.

In terms of industry, the pace of job creation has been slow, from 4% of the labour force in 1998 to 7% in 2013. In the meantime, the share of manufacturing’s contribution to the country’s GDP has remained relatively small and stagnant, at 10%. The sector is locked in the logic of import substitution, which African countries embarked on after independence and is geared for the domestic market.

Export production needs to be vigorously fostered as well. It is reported that manufacturing firms operate on average at just 68 per cent capacity utilisation. This suggests that, with the right policy framework, Malawi’s private sector could produce as much as a third more than current levels without needing to undertake new investment.

After independence, Malawi, like many other countries, created policies and parastatals, and sought to nurture a domestic capitalist class and attract foreign capital in pursuit of industrialisation. The structural adjustment programmes during Africa’s “lost decades” of the 1980s and 1990s aborted the industrialisation drive of the 1960s and 1970s, and led to de-industrialisation in many countries, including Malawi. The revival and growth of industrialisation require raising the country’s competitiveness and improving access to finance, the state of the infrastructure, the quality of human capital, and levels of macroeconomic stability.

Over the last two decades, Malawi has improved its global competitiveness indicators, but it needs to and can do more. According to the World Bank’s Ease of Doing Business, which covers 12 areas of business regulation, Malawi improved its ranking from 132 out of 183 countries in 2010 to 109 out of 190 countries in 2020; in 2020 Malawi ranked 12th in Africa. In the World Economic Forum’s Global Competitiveness Index, a four-pronged framework that looks at the enabling environment – markets, human capital, and the innovation ecosystem – Malawi ranked 119 out of 132 countries in 2009 and 128 out of 141 countries in 2019.

Access to finance poses significant challenges to the private sector, especially among small and medium enterprises that are often the backbone of any economy. The banking sector is relatively small, and borrowing is constrained by high interest rates, stringent collateral requirements, and complex application procedures. In addition, levels of financial inclusion and literacy could be greatly improved. The introduction of the financial cash transfer programme and mobile money have done much to advance both.

Corruption is another financial bottleneck, a huge and horrendous tax against development. The accumulation of corruption scandals – Cashgate in 2013, Maizegate in 2018, Cementgate and other egregious corruption scandals in 2020 – is staggering in its mendacity and robbery of the county’s development and future by corrupt officials that needs to be uncompromisingly uprooted.

Malawi’s infrastructure deficits are daunting. Access to clean water and energy remains low, at 10%, and frequent electricity outages are costly for manufacturing firms that report losing 5.1% in annual sales; 40.9% of the firms have been forced to have generators as backup. The country’s generating capacity needs massive expansion to close the growing gap between demand and supply. Equally critical is investment in transport and its resilience to contain the high costs of domestic and international trade that undermine private sector development and poverty reduction.

Digital technologies and services are indispensable for 21st century economies, an area in which Malawi lags awfully behind. According to the ICT Development Index by the International Telecommunications Union, in 2017 Malawi ranked 167 out of 176 countries. There are significant opportunities to overcome the infrastructure deficits in terms of strengthening the country’s transport systems through regional integration, developing renewable energy sources, and improving the regulatory environment. Developing a digitally-enabled economy requires enhancing digital infrastructure, connectivity, affordability, availability, literacy, and innovation.

Malawi’s infrastructure deficits are daunting. Access to clean water and energy remains low, at 10%, and frequent electricity outages are costly for manufacturing firms that report losing 5.1% in annual sales.

The services sector has grown rapidly, accounting for 29% of the labor force in 2013 up from 12% in 1998. It is dominated by the informal sector which is characterized by low productivity, labor underutilization, and dismal incomes. The challenge is how to improve these conditions and facilitate transition from informality to formality.

Enablers and drivers of development

The challenges of promoting Malawi’s socio-economic growth and development are not new. In fact, they are so familiar that they induce fatalism among some people as if the country is doomed to eternal poverty. Therefore, it is necessary to go back to basics, to ask basic questions and become uncomfortable with the county’s problems, with low expectations about our fate and future.

From the vast literature on development, to which Thandika made a seminal contribution, there are many dynamics and dimensions of development. Three are particularly critical, namely, the quality of human capital, the quality of infrastructure, and the quality of institutions. In turn, these enablers require the drivers embodied in the nature of leadership, the national social contract, and mobilisation and cohesiveness of various capitals.

The quality of human capital encompasses the levels of health and education. Since 2000, Malawi has made notable strides in improving healthcare and education, which has translated into rising life expectancy and literacy rates. For the health sector, it is essential to enhance the coverage, access and quality of health services, especially in terms of reproductive, maternal, neonatal, and early child development, and public health services, as well as food security and nutrition services.

The introduction of free primary education in 1994 was a game changer. Enrollment ratios for primary school rose dramatically, reaching 146% in 2013 and 142% in 2018, and for secondary school from 44% in 2013 to 40% in 2018. The literacy rate reached 62%. But serious challenges remain. Only 19% of students’ progress to Standard Eight without repeating and dropout rates are still high; only 76% of primary school teachers and 57% of secondary school teachers are professionally trained. Despite increased government expenditure, resources and access to education remain inadequate.

Consequently, in 2018 Malawi’s adult literacy was still lower than the averages for sub-Saharan countries (65%) and the least developed countries (63%). This means the skill base in the country is low and needs to be raised significantly through increased, smart and strategic investments in all levels of education. Certainly, special intervention is needed for universities if the country, with its tertiary education enrollment ratio of less than 1%, the lowest in the world, is to catch up with the enrollment ratios for sub-SaharanAfrica and the world as a whole that in 2018 averaged 9% and 38%, respectively.

Human capital development is essential for turning Malawi’s youth bulge into a demographic dividend rather than a demographic disaster. Policies and programmes to skill the youth and make them more productive are vital to harnessing the demographic dividend. Critical also is accelerating the country’s demographic transition by reducing the total fertility rate.

As for infrastructure, while the government is primarily responsible for building and maintaining it, the private sector has an important role to play, and public-private-partnerships are increasingly critical in many countries. It is necessary to prioritise and avoid wish lists that seek to cater to every ministry or constituency; to concentrate on a few areas that have multiplier effects on various sectors; and ensure the priorities are well-understood and measurable at the end of the government’s five-year term. Often, the development budget doesn’t cover real investment in physical infrastructure and is raided to cover over-expenditure in the recurrent budget.

The quality of institutions entails the state of institutional arrangements, which UNDP defines as “the policies, systems, and processes that organizations use to legislate, plan and manage their activities efficiently and to effectively coordinate with others in order to fulfill their mandate”. Thus, institutional arrangements refer to the organisation, cohesion and synergy of formal structures and networks encompassing the state, the private sector, and civil society, as well as informal norms for collective buy-in and implementation of national development strategies. But setting up institutions is not enough; they must function. They must be monitored and evaluated.

Human capital development is essential for turning Malawi’s youth bulge into a demographic dividend rather than a demographic disaster. Policies and programmes to skill the youth and make them more productive are vital to harnessing the demographic dividend.

The three enablers of development require the drivers of strong leadership and good governance. Malawi has not reaped much from its peace and stability because of a political culture characterised by patron-clientelism, corruption, ethnic and regional mobilisation, and crass populism that eschews policy consistency and coherence, and undermines fiscal discipline. Malawi’s once highly regarded civil service became increasingly politicised and demoralised. Public servants and leaders at every level and in every institutional context have to restore and model integrity, enforce rules and procedures, embody professionalism and a high work ethic, and be accountable. Impunity must be severely punished to de-institutionalise corruption, whose staggering scale shows that domestic resources for development are indeed available. To quote the popular saying by Arthur Drucker, “organisational culture eats strategy”.

Also critical is the need to forge social capital, which refers to the development of a shared sense of identity, understanding, norms, values, common purpose, reciprocity, and trust. There is abundant research that shows a positive correlation between the social capital of trust and various aspects of national and institutional development and capabilities to manage crises. Weak or negative social capital has many deleterious consequences. The COVID-19 pandemic has made this devastatingly clear – countries in which the citizenry is polarised and lacks trust in the leadership have paid a heavy price in terms of the rates of infection and deaths.

Impunity must be severely punished to de-institutionalise corruption, whose staggering scale shows that domestic resources for development are indeed available. To quote the popular saying by Arthur Drucker, “organisational culture eats strategy”.

The question of social capital underscores the fact that there are many different types of capital in society and for development. Often in development discourse the focus is on economic capital, including financial and physical resources. Sustainable development requires the preservation of natural capital. Malawi’s development has partly depended on the unsustainable exploitation of environmental resources that has resulted in corrosive soil erosion and deforestation. Development planning must encompass the mobilisation of other forms of capital, principally social and cultural capital. The diaspora is a major source of economic, social and cultural capital. In fact, it is Africa’s largest donor, which remitted an estimated $84.3 billion in 2019.

In conclusion, Malawi’s development trajectory has been marked by progress, volatility, setbacks, and challenges. For a long time, Malawi’s problem has not been a lack of planning, but rather a lack of implementation, focus and abandoning the very basics of required integrity in all day-to-day work. Also, the plans are often dictated by donors and lack local ownership so they gather the proverbial bureaucratic dust.

Let us strive to cultivate the systems, cultures, and mindsets of inclusion and innovation so essential for the construction of developmental and democratic states, as defined by Thandika and many illustrious African thinkers and political leaders.

This article is the author’s keynote address at the official opening of the 1st National Development Conference presided by the State President of Malawi, His Excellency Dr. Lazarus Chakwera, at the Bingu International Convention Centre, Lilongwe, on 27 August, 2020.

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Kenya’s Gulag: The Dehumanisation and Exploitation of Inmates in State Prisons

Kenyan prisons today carry the DNA of their forebears – the colonial prisons and Mau Mau detention camps. They are about brutalising prisoners into submission and scaring the rest of society into compliance with the state. And like their colonial predecessors, they are also sites of forced labour.

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The influx of the Mau Mau transformed the prison population in Kenya from one predominantly made up of recidivist petty criminals and tax defaulters to one composed largely of political prisoners, many of whom had no experience of prison life and who brought with them new forms of organisation.

Prison life was harsh, with its share of brutalities and fatalities. Between 1928 and 1930, about 200 prisoners in Kenya died. According to British historian David Anderson, “Kenya’s prisons were already notably violent before 1952 [when the Mau Mau uprising began], more violent than other British colonies.”

However, the incorporation of prisons and detention camps into the “Pipeline” (the system developed by the colonial state to deal with the Mau Mau insurgents and to try and break them using terror and torture) inevitably led to the institutionalisation of the methods of humiliation and torture.

As Anderson notes, “Most of the staff in both the Prison Service and in the [Mau Mau] detention camps were Africans. Some were even Kikuyu. They certainly ‘learned’ these methods during their periods of early employment.” He goes on to say that “those who ran the service by the 1960s and early 1970s were all men who had been recruited and trained during the Mau Mau period”. He thinks it “very likely that these individuals practiced what they had learned as cadets and trainees in the 1950s…I think the Mau Mau experience certainly hardened Kenya’s prison system and introduced a greater range of punishments and harsher treatment for prisoners as a consequence of the conditions off the Emergency”.

Compare, for example, this account of the treatment of Mau Mau detainees in the 1950s published in Caroline Elkins’ book, Britain’s Gulag: The Brutal End of Empire in Kenya:

Regardless of where they were in the Pipeline (the system of camps established for deradicalizing Mau Mau detainees and prisoners), roll call meant squatting in groups of five with their hands clasped over their heads. The European commandants would then walk through the lines, counting and beating the detainees. “The whole thing was just so ridiculous,” recalled one former detainee from Lodwar. “Whitehouse [the European in charge] would just count us over and over again.”

It bears stark similarities to this account published in the Daily Nation about conditions in Kenyan prisons 65 years later:

Omar Ismael, 64, a former Manyani inmate who served nine years till his exoneration in 2017, says he woke up at 5am, despite his advanced aged. They then squat in groups of five to be counted and checked by guards. “My knees are still hurting to date. I have a joint problem too as a result,” he says. He says they had at least six head counts per day. The first one at 5am, followed by 10am, noon, 4pm, 6pm and 7pm.

Kenyan prisons today carry the DNA of their forebears – the colonial prisons and Mau Mau detention camps. They are about brutalising prisoners into submission and, along with the police and military, scaring the rest of society into compliance with the state. They are places of dehumanisation, abandonment and retribution. And like their colonial parents, they prefer to employ the least educated. (At present, out of a staff complement of 22,000, the Kenya Prison Service only has about 700 graduate officers.) As of 2015, according to the World Prison Population List prepared by the Institute for Criminal Policy Research, Kenya has incarcerated more of its citizens per 100,000 population than any other country in Eastern Africa with the exception of Rwanda and Ethiopia.

Notably, about 50 per cent of Kenya’s 54,000 prisoners are pre-trial detainees or those held in remand as they await trial – people legally considered innocent. By comparison, the median proportion of pre-trial prisoners in Africa is 40 per cent and nearly 30 per cent globally. In Eastern Africa, only Uganda and Ethiopia have a higher proportion of pre-trial detainees than Kenya. As in colonial times, pre-trial detention is driven by two factors – the need to extract resources from the populace and the subjugation of the native through criminalisation of ordinary life.

In 1933, submissions to the Bushe Commission provided some flavour of how the threat of arrest and imprisonment was ever-present among the natives.

Relates one Ishmael Ithongo:

Once I was arrested by a District Officer on account of my hat because I did not see him approaching. He came from behind and threw it down. I asked him why because I did not know him. He called an askari and asked for my name. It was in a district outside. He asked me, “Don’t you know the law here that you should take off your hat when you see a white man?” Then he asked me, “Have you got your kipandi?’ I said “No, Sir.” So I was sent to prison… When an askari thinks that you look smart he asks if you have your kipandi. I have seen natives who are going to church in the morning who have changed their coat and forgotten their kipandi. They meet an askari. “Have you got your kipandi?” “No.” “Ah right” and they are marched off to prison.

This will sound familiar to many Kenyans today whose encounters with the police often begin with demands for the production of the kipande (ID card) and end with a stint in overcrowded police cells. However, there are some differences. An audit of pre-trial detention by the National Council on the Administration of Justice found that police generally arrested and charged people for petty offences, with close to half of those arrests occurring over weekends. Most releases from police custody also happened over the weekend with no reason recorded for two-thirds of those releases. Further, only 30 percent of all arrests actually elicited a charge, the vast majority for petty offences. This implies that most police detentions today are something of a catch-and-release programme designed to create opportunities to extract bribes rather than labour.

However, for those who get incarcerated, matters are somewhat different. The exploitation of prisoners’ labour continues. Like the Mau Mau detainees, they are required to work for a token amount determined by the government, which, unlike its colonial ancestor, does not even pretend that the 30 Kenyan cents per day is meant as a wage, with the Attorney-General declaring in court that “prison labour is an integral component of the sentence”. The courts have held that it is entirely compatible with the protection of fundamental rights for the Prison Service to do this as well as to deny convicts basic supplies such as soap, toothpaste, toothbrushes, and toilet paper. Apparently, the conditions the convicts are experiencing cannot be called forced labour and servitude because, the strange reasoning goes, “the Constitution and the Prisons Act do not permit forced labour or servitude”.

Notably, about 50 per cent of Kenya’s 54,000 prisoners are pre-trial detainees or those held in remand as they await trial – people legally considered innocent…In Eastern Africa, only Uganda and Ethiopia have a higher proportion of pre-trial detainees.

Like in colonial times, the beneficiaries of this prison industrial complex are the state and those who control it. Remandees and convicts are liable to be put to work cleaning officials’ compounds and there have been persistent rumours of them being compelled to provide free labour for the private benefit of prison officers and other well-connected government officials, as is the case in Uganda.

While in 1930 earnings from convicts’ labour accounted for a fifth of the total cost of the Prisons Department, the official goal today, as declared by the Ministry of Interior, is for the Department to transform into a “financially self-sustaining entity”. To achieve this, President Uhuru Kenyatta has created the Kenya Prisons Enterprise Corporation with the aim of “unlocking the revenue potential of the prisons industry” and to “foster ease of entry into partnership with the private sector”.

This basically entails deeper exploitation of prisoners’ labour. And even though Kenyatta speaks of improving remuneration, it is notable that this is not a free exchange. Whatever the courts might say, it is clear that the state and its owners feel entitled to the labour of those they have incarcerated, much like their predecessors (the colonial regime and the European settlers) once felt entitled to African labour.

This will sound familiar to many Kenyans today whose encounters with the police often begin with demands for the production of the kipande (ID card) and end with a stint in overcrowded police cells. However, there are some differences. An audit of pre-trial detention…found that police generally arrested and charged people for petty offences, with close to half of those arrests occurring over weekends.

In this regard, the attitude is very like that of the white settler in Kiambu, Henry Tarlton, who told the 1912 Native Labour Commission regarding desertion by African workers that “this is my busiest season and my work is entirely upset, and it is hardly surprising if I am in a red-hot state bordering on a desire to murder everyone with a black skin who comes within sight”. Another white settler, Frank Watkins, in a letter to the East African Standard in 1927 boasted of his “methods of handling and working labour”, which included “thrash[ing] my boys if they deserve it”.

This brutality, especially directed towards African males, was paired with forced labour from the very onset of the colonial experience. (Brett Shadle, Professor and Chair of the Department of History at Virginia Tech, notes that the settlers were much more reticent about their violence on African women, which tended to be sexual in nature.) These settlers were already pushing the colonial state to institute unpaid forced labour on public works projects in the reserves (which it eventually did) as a means of driving Africans to wage employment for Europeans.

But it was within the prison system and Mau Mau detention camps that the practice of forced labour found its full expression. According to Christian G. De Vito and Alex Lichtenstein, “Conditions inside the detention camps created in Kenya in the 1910s and 1920s and in the prison camps opened in 1933 depended on the assumption that forced labour, together with corporal punishment, could actually serve as the only effective forms of penal discipline.” The influx of Mau Mau detainees, they explained, overwhelmed the system “since police repression by far exceeded the capacity of the already overcrowded prisons, and the colonial government decided to establish a network of camps, collectively called the ‘Pipeline’, characterized by violence, torture, and forced labour.”

These are the footsteps in which the Kenyan state is walking. Nelson Mandela once said that a nation should not be judged by how it treats its highest citizens but by how it treats its lowest ones. By that measure, the current Kenyan state is no different from its colonial predecessor.

“It is also worth thinking about what happens to the prison at the end of colonialism,” says Prof Anderson. “There is no movement for prison reform in Kenya after 1963 – rather the opposite: the prison regime becomes harsher and is even less well funded than it was in colonial times. By the end of the 1960s, Kenya is being heavily criticised by international groups for the declining state of its prison system and the tendency to violence and abuse of human rights within the system.”

Prof Daniel Branch stresses that “post-colonial prisons urgently need a history. The Mau Mau period rightly gets lots of attention, but there’s very little by scholars on the post-colonial period”.

It is critical, as Kenya marks a decade since the promulgation of the 2010 constitution, that we keep in mind Mandela’s words and ask whether, if at all, it has changed how those condemned by society – “our lowest ones” – are treated. That will, in the end, be the true measure of our transformation.

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The Myth of Unconditionality in Development Aid

Based on interviews and ethnographic fieldwork in Western Kenya, Mario Schmidt argues that local interpretations of Give Directly’s unconditional cash transfer program unmask how the NGO’s ‘myth of unconditionality’ obscures structural inequalities of the development aid sector. Schmidt argues that in order to tackle these structural inequalities, cash transfers should be ‘ungifted’ and viewed as debts repaid and not as gifts offered.

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The New York Times praises the US-American NGO GiveDirectly (GD), a GiveWell top charity, for offering a ‘glimpse into the future of not working’ and journalists from the UK to Kenya discuss GD’s unconditional cash transfer program as a revolutionary alternative in the field of development aid. German podcasts as well as international bestsellers such as Rutger Bregman’s Utopia for Realists portray grateful beneficiaries whose lives have truly changed for the better since they received GD’s unconditional cash and started to invest it like the business people they were always meant to be. At first glance, GD indeed has an impressive CV.

Since 2009, the NGO has distributed over US$160 million of unconditional cash transfers to over tens of thousands of poor people in Kenya, Rwanda, Uganda, the USA and Liberia in an allegedly unbureaucratic, corrupt-free and transparent way. Recipients are ‘sensitized’ in communal meetings (baraza), the cash transfers are evaluated by teams of internationally renowned behavioral economists conducting rigorous randomized controlled trials (RCTs) and the money arrives in the recipients’ mobile money wallets such as the ones from Mpesa, Kenya’s celebrated FinTech miracle, without passing through the hands of local politicians.

In 2015 and after finalizing a pilot program in the Western Kenyan constituency Rarieda (Siaya County), GD decided to penetrate my ethnographic field site, Homa Bay County. On the one hand, they thereby hoped to enlarge their pool of potential beneficiaries. On the other hand, they had planned to conduct further large-scale RCTs (one RCT implemented in the area, studied the effects of motivational videos on recipients’ spending behavior). To the surprise of GD, almost 50% of the households considered eligible for the program in Homa Bay County refused to participate. As a result, the household heads waived GD’s cash transfer which would have consisted of three transfers amounting to a total of 110,000 Kenyan Shillings (roughly US$1,000).

In order to understand what had happened in Homa Bay County and why so many households had refused to participate, I teamed up with Samson Okech, a former field officer of Innovations for Poverty Action (IPA) who had conducted surveys for GD in Siaya. Samson had been an IPA employee for over ten years and belongs to the extended family I work with most closely during fieldwork. During our long qualitative interviews with recipients of GD’s cash transfer and former field officers as well as Western Kenyans who refused to be enrolled in the program, the celebratory reports by journalists and scholars were replaced by a bleaker picture of an intervention riddled with misunderstandings and problems.

Before I offer a glimpse into what happened on the ground, I want to emphasize that I am neither politically nor economically against unconditional cash transfers which, without a doubt, have helped many individuals in Western Kenya and elsewhere. It is not the what, but the how against which I direct my critique. The following two sections illustrate that a substantial part of Homa Bay County’s population did not consider GD’s intervention as a one-time affair between themselves and GD. In contrast, they interpreted GD’s program either as an invitation into a long-term relationship of patronage or as a one-time transfer with obscured actors.

These interpretations should make us aware of ethical problems entailed in conducting social experiments (see Kvangraven’s piece on Impoverished Economics, Chelwa’s and Muller’s The Poverty of Poor Economics or Ouma’s reflection upon GD’s randomisation process in Western Kenya). They can also crucially encourage us to think about ways of radically reconfiguring the political economy of development aid in Africa and elsewhere.

Instead of framing relations between the West and the Rest as relations between charitable donors and obedient recipients, in my conclusion I propose to ‘ungift’ unconditional cash transfers as well as development aid as a whole. Taking inspiration from rumors claiming that Barack Obama, whose father came from Western Kenya, has created GD in order to rectify historical injustices, I suggest rethinking cash transfers as reparations or debts repaid. Consequently, recipients should no longer be used as ‘guinea pigs’ but appreciated as equal partners and autonomous subjects entitled to reap a substantial portion of the value produced in a global capitalist economy that, historically as well as structurally, depends on exploiting them.

Why money needs to be spent on ‘visible things’

Those were guidelines on how to use the money. It was important that what you did with the money was visible and could be evaluated’, William Owino explained to us after we had asked him about a ‘brochure’ several other respondents had mentioned. One of the studies on the impact of GD’s activities in Siaya also mentions these brochures. In order to ‘emphasize the unconditional nature of the transfer, households were provided with a brochure that listed a large number of potential uses of the transfer.’ 

When being asked which type of photographs and suggestions were included in these brochures, respondents mentioned photographs of newly constructed houses with iron sheets, clothes, food and other gik manenore (‘visible things’). When we inquired further if the depicted uses included drinking alcohol, betting, dancing or other morally ambiguous goods and services, the majority of our respondents dismissed that question by laughing or by adding that field officers had also advised them against using the money for other morally dubious services such as paying prostitutes or bride wealth for a second or third wife.

One of our respondents in Homa Bay took the issue of gik manenore to its extreme by expressing the opinion that GD’s money must be used to build a house with a fixed amount of iron sheets and according to a preassigned architectural plan so that GD, in their evaluation, would be able to identify the houses whose owners had benefited from their program quickly and without much effort. Such practices of ‘anticipatory obedience’ are also implicitly at work in the rationalizations of another respondent. He expected that GD’s field officers who had asked him questions about what he intended to do with the money during the initial survey – questions whose answers had, in his opinion, qualified him to receive the cash transfer – would one day return to see if he had really used the money according to his initially stated intention. The logic employed is clear: The ‘unconditional’ cash transfers needed to be spent on useful and, if possible, visible and countable things so that GD would return with further funds after a positive evaluation.

Recipients understood the relation with GD not as a one-off affair, but as an entrance into a long-term relation of fruitful dependency. In contrast to GD which, like most neoliberal capitalists, understands unconditional cash as a context-independent techno-fix, the inhabitants of Homa Bay framed money as an entity embedded in and crystallizing social power relations.

From such a perspective, free money is not really free, but like Marcel Mauss’ famous gifts, an invitation into a ‘contract by trial’ which has the potential to turn into a long-term relationship benefitting both partners if recipients pass the test and reciprocate with obedience. While some actors framed the offer of unconditional cash as a test that could lead into an ongoing patron-client relationship between charitable donors and obedient recipients, others, the majority who refused to accept GD’s offer, interpreted it as a direct exchange relation with unseen actors.

Why money is never free

‘People in the market and those I met going home told me it is blood money’, Mary, a 40-year old mother remembered. After she had been sampled, Mary had never received money from GD but failed to understand why and believed the village elder had ‘eaten’ her money. She further told us that rumors about ‘blood money’ circulated in church services and funeral festivities. ‘Blood money’ refers to widespread beliefs that accepting GD’s cash implied entering into a debt relation with unknown actors such as a local group sacrificing children or the devil.

Comparable rumors playing with the well-known anthropological trope of money’s (anti)-reproductive potential circulate widely in Homa Bay: Husbands who wake up only to see their wives squatting in a corner of the room laying eggs, a huge snake that lives in Lake Victoria and vomits out all the money GD uses, mobile phones that can be charged under the armpit or find their way into the recipient’s bed if lost or thrown away (many people allegedly threw their phones away in order to cut the link to GD), money that replenishes automatically or a devilish cult of Norwegians that abducts Kenyan babies and transports them to Scandinavia where they are adopted into infertile marriages.

All of these rumors, which are epitomized in a phrase some recipients considered to be GD’s slogan, Idak maber, to idak matin – (‘You live well, but you live short’) – revolve around the same paradox: Money initially offered with no strings attached, but whose reproductive potential will soon demand blood sacrifice or lead to a fundamental change in one’s own reproductive capacities.

Local attempts to ‘conditionalize’ GD’s unconditional cash as well as rumors about tit-for-tat exchanges with the devil undermine GD’s assumption that their cash transfers are perceived by recipients as unconditional. This has two consequences. On the one hand, it questions the validity of studies trying to prove that the program was successful as an unconditional cash transfer program. On the other hand, it urges us to focus on the unintended consequences caused by GD’s intervention. While Western Kenyans who have given consent to participate in the intervention invested their hopes in an ongoing charitable relation with GD, those who have refused to participate – as well as some who did – have been haunted by fear and anxiety triggered by situating GD’s activities in a hidden sphere.

All this raises ethical and political questions about GD’s intervention in Homa Bay County. Did GD, an actor that is neither democratically elected nor constitutionally backed up, have the right to intervene in an area where almost 50 % of the population refused to participate? Did the program really reach the poorest members of society if accepting the offer depended on understanding the complex networks of NGOs that constitute the aid landscape? Should it not be considered problematic that a US-American NGO uses whole counties of an independent country as laboratories where they experimentally test the feasibility of unconditional cash transfers in order to assure their donors that recipients of unconditional cash ‘really’ do not spend donations on alcohol and prostitutes?

Apart from raising these and other ethical and political questions, the reactions of the inhabitants of Homa Bay County can be understood as mirrors reflecting a distorted but illuminating image of the development aid sector. Narratives about women laying eggs and satanic cults sacrificing children exemplify an awareness of the fact that, on a structural level, the development aid sector is shot through with inequalities and obscure hierarchical power relations between donating and receiving actors. At the same time, recipients’ anticipatory obedience to use the cash on ‘visible things’ unmasks a system that appears overwhelmed by the necessity to constantly evaluate projects in order to secure further funding.

By ‘conditionalizing’ cash transfers as long-term patronage relations or tit-for-tat exchanges with the devil, inhabitants of Homa Bay unmask GD’s ‘myth of unconditionality’ and thereby relocate GD into the wider development aid world in which they have never been equal partners.

Why we must ‘ungift’ development aid

‘I think it was because of Obama’, a former colleague of Samson who had administered the surveys of GD in Siaya County told me while we enjoyed a meal in a restaurant along Nairobi’s Moi Avenue after I had asked him why the rejection rates of GD’s program in Siaya had been so low. According to rumors that circulated widely during GD’s first years in Siaya, Barack Obama, whose father came from a village in Siaya County, had teamed up with Raila Odinga, an almost mythical Luo politician, in order to channel US-American funds ‘directly’ to Western Kenya, i.e. without passing through the Central Kenyan political elite who had – in 2007 as well as 2013 – ‘stolen’ the elections from Raila.

As a consequence, at least some recipients did not agree with interpretations of the cash transfers as market exchanges with shadowy actors or invitations into long-term relationships of patronage. Rather, they conceptualized the transfers as reparations originating in Obama’s attempt to recoup losses accumulated by the Luo community due to political injustices provoked by the actions of what many consider to be a corrupt Kikuyu elite. This conjuring of a primordial ethnic alliance between Obama and Western Kenyans might strike many as chimerical.

Be that as it may, we should acknowledge that the rumor of Obama’s intervention situates the cash transfers in a social relation between two equals who accept their mutual indebtedness and act accordingly by putting things straight. By reinterpreting GD as a clandestine operation invented by their political leaders, Barack Obama and Raila Odinga, inhabitants of Siaya portray themselves as belonging to a community of interdependent equals whose members are entitled to what the anthropologist James Ferguson has called their ‘rightful share’.

How would development aid look like if we dared to transfer this idea of a community whose members acknowledge their equality and mutual indebtedness to our global economic system? One way to redeem the fact that we all live in a highly connected capitalist economic system spanning the whole globe and depending on exploiting a huge portion of the global community would be to follow in the footsteps of the inhabitants of Siaya and rebrand cash transfers as reparations being paid for historical and structural injustices.

By way of conclusion, I want to suggest the idea of ‘ungifting’ development aid, i.e. to reframe it as a duty and to accept that recipients of cash transfers have the right to receive their share of the value produced by the global capitalist economic system. Consequently, cash transfers should be considered as debts repaid and not as gifts offered.


Names of individuals in this article have been anonymized.

This article was first published in the Review of African Political Economy.

Names of individuals in this article have been anonymized.

 

 

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