On June 26, 2019, in a landmark verdict, the National Environment Tribunal (NET) halted the construction of Kenya’s first proposed coal-fired electricity-generating plant in Lamu, ruling that the National Environment Management Authority (NEMA) had failed to do an adequate environmental and social impact assessment (ESIA) of the plant. Specifically, the public’s views had not been included in the ESIA study, and the ESIA itself had failed to incorporate several important environmental impacts of the proposed plant.
This judgement is a massive victory for environmental campaigns in Kenya, where too often, large political interests tend to prevail. Members of deCOALonize, the umbrella coalition group against the coal industry in Kenya that filed an appeal at NET in 2016, have had to deal with the propagation of “fake news”, intimidation, the convenient shuffling of Kenyan bureaucratic systems, and much more, which makes their win truly noteworthy. What makes this verdict even more incredible is that other environmental campaigns challenging the adequacy of the ESIA on similar, large Chinese-funded infrastructure projects, such as Save Nairobi National Park (NNP), for example, which have been branded by the government as crucial for development, have not achieved similar success.
Many researchers have questioned the need for a coal plant in the first place in Kenya when the country currently faces a power surplus. Further they argue that at the moment Kenya actually is generating a surfeit of electricity. In fact, many thermal plants in Thika and along the Athi river are currently idle. Although proponents of coal argue that more energy generation capacity is needed to meet projected demand in the future, international experts, such as Daniel Kammen from Berkeley, have shown that coal is not the cheapest technology to meet future energy needs. Very recently, the Institute for Energy Economics and Financial Analysis also produced an independent study questioning the economics of building a coal plant in Kenya.
Therefore the real question with these large infrastructure projects, is not development at what cost, but at what cost to whom?
The proposed Lamu coal plant is a Sh200 billion project that serves powerful private commercial interests (such as Centum Investments and Gulf Energy Kenya, which joined forces as Amu Power, the developer of the project) who have well-known connections to the very top of the executive branch of Kenya. These connections are reflected in the favourable terms and conditions of the power purchase agreement (PPA) between the Government of Kenya and the developers. The PPA essentially commits the government to buying electricity from the plant for the next 25 years at a favourable price (regardless of whether the electricity is used or needed). Coal is expected to arrive from South Africa to power the Lamu coal plant.
The Government of Kenya has repeatedly stressed that the Lamu plant will provide jobs for the community. However, like with the other large Chinese-financed infrastructure projects, most of the labour comes from China. The fact that most of the fishing community near the Lamu coal plant do not have a secondary education means that most of them are not qualified to be able to work at the plant, although their livelihoods will be most affected by the pollution from the plant.
The proposed Lamu coal plant is a Sh200 billion project that serves powerful private commercial interests who have well-known connections to the very top of the executive branch of Kenya.
Therefore, it is unlikely that the community would have benefited from the construction of this plant.
Furthermore, most of the community around the plant already have electricity from solar PV, and therefore there is no need of electricity from the plant. Importantly, and as stated several times in the NET judgement, the community was not involved in the decision to build the coal plant in Lamu and deCOALonize members were not invited to meetings held by Amu Power; the meetings were held in locations difficult to reach by most of the community. Therefore, their interests were not represented in the siting and planning of the plant.
Interestingly, we were told by a deCOALonize organiser that a few years previously, a coal plant was slated to be sited in Kilifi. However, the county government there is powerful, and the plan was ultimately dropped. The decision to locate a coal plant in Lamu, one of Kenya’s most marginalised counties with much less political power, does not appear, in light of this, to be accidental. The community in Lamu is well aware of this and spoke about how few roads in the North-West region of Kenya are tarmacked and low literacy rates prevail. A lot of large extractive projects have been initiated in the region. In addition to the Lamu Port and Lamu-Southern Sudan-Ethiopia Transport Corridor (LAPSSET) and the Lamu coal plant, natural gas exploration has been underway on Pate island. (It has only recently been abandoned.)
Given all of the many obstacles the campaign has had to face, how has deCOALonize managed to be so successful?
This is the central question of this article. It is important to document victories in Kenya. Too often, we only hear stories of failure and corruption. We need to challenge these hegemonic narratives by detailing how Kenyans have been winning critical battles for change.
Now, although deCOALonize won its case in court, campaigners have cautioned that the battle against the Lamu coal plant is not over. Amu Power can conduct a new ESIA and apply for a new licence, which means a new fight will ensue. The lead lawyer for deCOALonize, Lempaa Suyianka, only a few days ago was arrested on an arguably flimsy charge, and although he was released, his phone was impounded by the police. This event does not bode well for the campaign, and members of the public must continue to be vigilant to ensure that deCOALonize members do not suffer the wrath of powerful interests embroiled in this case.
In addition, the Lamu coal plant is only one of the many mega infrastructure projects in Lamu. LAPSSET, and the building of the Lamu-Garissa-Isiolo road are still underway, and have caused a lot of damage to the region, with many farmers displaced by access roads without being granted compensation, as well as acres of mangroves in the area being cleared. The public must continue to fight for the people of Lamu to ensure that compensation is disbursed to the people affected.
Still, the deCOALonize’s recent court win has set a new precedent for environmental cases in Kenya and warrants further examination. In order to do this, we first list the strategies deCOALonize activists used, as well as the challenges the campaign faced.
deCOALonize runs a transparent campaign and uploads videos of court proceedings, documents and press reports on its website.
Kenyan scholar Nanjala Nyabola’s much-acclaimed book, Digital Democracy, Analogue Politics, charts how social media tools such as Twitter are creating spaces for Kenyans to protest and create new narratives. deCOALonize has leveraged these tools successfully to raise awareness at the local, national and international levels.
Some activists believed that the awareness about the coal projects they had generated at the international level through sustained posts on social media, participation in climate summits and street demonstrations would lead to divestment by external organisations, which would lead to the Lamu coal plant project stalling. The Industrial and Commercial Bank (ICBC) of China has agreed to finance 75 per cent of the Lamu coal plant to the tune of $2 billion, but the Government of Kenya needed to find a backer for the remaining 25 per cent needed. deCOALonize’s campaign has been successful in influencing the African Development Bank and the Standard Bank of South African, both of which have pulled out of financing the project. However, General Electric (GE) is still considering investment in the project
In addition, deCOALonize has presented evidence to UNESCO about the impact the coal plant would have on Lamu, which is a World Heritage Site. UNESCO has also recently come out strongly against the construction of the coal plant.
Partners of the campaign also believed that awareness at the national level was important. Activists said they did this to prevent the government from shifting the construction of the coal plant to another county. They particularly focused on holding a variety of public forums, photography exhibitions, protests, and other events in Nairobi, the political centre. They were successful in getting some progressive politicians, such as Boniface Mwangi, to make stopping coal part of their political campaigns.
Furthermore, at public events organisers connected the plans for building the Lamu coal plant with the broader theme of energy justice. Ordinary Kenyans are affected by the economics of the energy sector. Kenya Power and Lighting Company (KPLC) holds a monopoly on electricity transmission through the national grid. It’s cartel-like practices of inflating electricity bills at random and giving poor services have resulted in campaigns such as #SwitchOffKPLC in 2018 that have unleashed a massive backlash against the company. Cries for energy justice have made energy a topic that people are paying close attention to, and therefore, there was hope that this would catalyse a national backlash against the Lamu coal project.
One of the major tactics the government deployed in its war against deCOALonize was misinformation to the community. High-level leaders promised the community jobs and compensation, glossing over the deleterious impacts of coal. For example, Deputy President Ruto assured the community of Lamu that the coal plant would not have any impact on their health, despite evidence to the contrary.
The Kenyan government even went as far as branding Save Lamu, a member of the deCOALonize coalition, as a terrorist organisation. Save Lamu received several grants from international agencies to continue its work in fighting for the rights of the residents in Lamu affected by the building of the Lamu port and coal plant. The government claimed that the money was sent to Save Lamu to conduct terrorist activities, and ransacked their offices. The government accused Save Lamu of being involved in the 2014 massacre carried out by Al Shabaab in Mpeketoni and Pormoka in Lamu County to discredit them. It is a testament to the deep ties Save Lamu has with the community. It is still a trusted and valued organisation in the area. Save Lamu’s partnership with organisations able to provide legal representation was also crucial for it to contest these charges.
Amu Power also repeatedly stressed that it would be using the best coal technology available to reduce the environmental impacts of the coal plant. It tried to build connections with the local community by installing a water tank near the farms, among other small projects, which we witnessed first-hand when we went to Lamu.
The Kenyan government even went as far as branding Save Lamu, a member of the deCOALonize coalition, as a terrorist organisation.
However, official documents collected by deCOALonize activists have indicated that Amu Power — the special purpose vehicle formed by the developers to own and operate the Lamu coal plant – was given the right to import equipment that did not meet quality standards and a waiver on the need to pay taxes on construction. This has made many activists wonder whether, despite Amu Power protestations about taking measures to reduce adverse environmental impacts, in reality equipment from old coal power plants in China was being exported to and dumped in Kenya. Indeed, when we spoke to an activist at the actual proposed site of the coal plant, we were told that although Amu Power said they were going to use cooling technology, such as “once through cooling systems”, which they tried to sell to the community as cutting edge, when in fact this was not the case. The activist told us that he knew the details about these technologies through his conversations with communities affected by coal plants in Gujarat, India.
Despite the sustained misinformation, deCOALonize has been extremely successful in making information available to the respective local communities. They did so through holding public meetings in local languages, regularly updating their website and making resources and short summaries publicly available. Members of the coalition have recorded the court proceedings, and held events that were made accessible via Facebook live, so that the community knew what was happening.
Providing a pipeline of information from the community to the courtroom: Engaging the community proactively
Importantly, local organisations, such as Save Lamu and the Centre for Human Rights and Civic Education (CCHRCE), have been able to channel community concerns into the courtroom and to react quickly.
For example, we learnt when were in Lamu that when the community reported that an access road was being built through their farms to connect the proposed coal plant site with that of the port without an ESIA being carried out, the representative of deCOALonize on the ground was able to feed this information to the legal team, who went to NET to get a stop order for the road. This pipeline of information proved to be extremely important as the local branch of NEMA in Mokowe town in Lamu County (where the coal plant has been slated to be built) was often kept in the dark about such constructions. Instead, for mysterious reasons, officials not based in Lamu were often responsible for making decisions that would affect Lamu. deCOALonize’s information intervention was crucial in bringing government regulators on the same page.
Save Lamu has also been able to engage the community to map natural resources in Lamu to better understand the impacts of proposed projects on different groups of people, such as the Bajun, the Sanye, the Aweer and Swahili communities, so that they can speak with one voice. CCHRCE has mapped perceptions of the community whose land is part of the mining area. They have also mapped the community resources, such as schools and hospitals, currently on the land to document the costs of razing this area.
Such engagement has been extremely useful in both communities learning about the impacts of coal as they had no experience with this fuel previously. Women in Kitui experimented with using coal to heat their sufurias and noted that it caused their sufurias to melt. Both Save Lamu and CCHRCE took community members and members of their respective County Assemblies (MCAs) to other countries, such as South Africa, so they could see for themselves the impact of coal on the site. They have created a documentary on these visits to archive this knowledge. All of this has led to a true grassroots movement against coal.
Importantly, we learned that these exchanges have allowed for the transnational sharing of resources and knowledge. For example, South African activists helped facilitate some connections between climate experts and activists from Lamu in order to bolster their case in court.
deCOALonize members have come strongly out for renewable energy as an alternative to coal.
Lobbying the government at multiple levels
President Uhuru Kenyatta gave speeches about his ambitions to move Kenya 100 per cent to renewable energy by 2020. There was hope that this would lead to the halting of plans to build the coal plant as Kenya couldn’t possibly become 100 per cent reliant on renewable energy if it still depended on coal. This hope was bolstered by the National Electrification Strategy released in 2018, which explicitly supported decentralised renewable energy technologies.
However, despite President Kenyatta’s pronouncements about renewable energy in Kenya, Kenya’s Power Generation and Transmission Master Plan 2015-2035 states that coal will have a place in Kenya’s future. Moreover, the Kenyan energy regulator had approved the coal-fired Lamu plant.
The contradictions made by various levels of government fueled uncertainty and anxiety in the campaign. Nevertheless, deCOALonize engaged with different government officials to try and gain their support against the coal industry in Kenya. For example, their conversations with the former Minister of Environment, Judy Wakhungu, led to her opposing the proposed coal plant publicly.
The campaign also engaged with the county government because they recognised the power that the county government had in approving the allocation of land for the coal plant, as well as to putting pressure on the national government to abandon such projects.
In order to educate county government officials about the potential effects of coal mining, deCOALonize facilitated county government officials going to visit communities that lived near coal plants so that they would understand the true impacts of such projects. They tried to get the officials to understand the effect such a construction could have on tourism, an important source of income in Lamu. Importantly, Samia Omar, the Trade, Tourism, Culture and Natural Resources Executive, publicly resigned after voicing her opposition to the Lamu plant.
However, despite President Kenyatta’s pronouncements about renewable energy in Kenya, Kenya’s Power Generation and Transmission Master Plan 2015-2035 states that coal will have a place in Kenya’s future.
When we were in Lamu, we heard from multiple independent sources that many tourists demanded their money back when they were promised pristine clear waters to snorkel in, but instead found the water in long-time snorkeling spots muddied because of all the construction in Lamu.
The engagement with the county government, plus Natural Justice and Save Lamu’s transparency and efforts to bring all government bodies on the same page, have resulted in county government officials walking out of meetings with the National Land Commission and LAPSSET when they found out that acres of land were claimed without them being notified. Thus deCOALonize’s strategy has been productive
CCHRCE has been doing great work, teaching the community how to avail of the various constitutional means at their disposal to petition the government and be heard. CCHRCE plays an important role in Kitui, imparting civic education.
Fighting for due procedure to be followed in court
This set a precedent for external costs to be considered for any large project. deCOALonize’s recent victory on June 26, 2019 has set an important precedent for the carrying out of environmental and social impact assessments for projects in East Africa.
The fight in court was not easy. The judiciary and the bureaucracy faced extensive political interference. In Kenya, the executive branch of the state has the most control over shaping patronage networks through its power of disbursing bureaucratic appointments and resources. Kenya has a long history of corruption scandals. Joe Khamisi’s explosive book, Looters and Grabbers: 54 Years of Plunder by the Elite, 1963-2017, details in painstaking detail the systematic pillaging of the country by people right at the top.
The advent of devolution has restructured the institutional landscape. However, efforts to “get the institutions right” have been foiled by flaws in the current legal processes, corruption, low institutional capacity, as well as the lack of cooperation of formal administrative mechanisms. Other researchers have found that devolution, instead of putting a stop to corruption, might only have led to a new mindset of “its everyone’s turn to eat”.
Activists we spoke to told us that NET is a politicised organization with its own agenda. Court files have mysteriously been misplaced. Court dates and places were changed at the last moment, making it very difficult for the organisers. This happened multiple times when the court members coming from Mombasa said at the last minute that they were indisposed. For example, on May 9, 2019, NET, without warning, postponed the much-awaited judgement. Petitioners from Lamu had spent time and money to travel to Nairobi to hear the judgement and had to wait a month to receive the judgement. The most costly incident happened when Save Lamu paid for the flights for international consultants to fly to Nairobi to testify against the plant, and the hearing was postponed at the very last moment.
In addition, since 2017, Parliament has proposed an amendment to the Environment, Management and Coordination Act (EMCA), such that even if an appeal is filed against a project in court, such a legal proceeding will not automatically halt the project, as was the case earlier. A separate appeal would need to be filed to prevent the project from proceeding. Activist Omtatah filed an objection. It is yet to see whether these amendments will go through. This meant that if Amu Power was able to raise the remaining 25 per cent of the project financing, the construction of the coal plant could go ahead. This highlights the importance of the other tactics that deCOALonize has deployed in its fight against the Lamu coal plant.
There have been other complex ways in which the legal process has been thwarted. Because elites in the county, especially those from Nairobi, were aware of the impending coal project before the local residents, they bought land from the residents at throw-away prices, knowing full well that once the project started they would receive compensation for their newly bought land. We heard a similar story about land in Kitui. On visiting some of the newly bought plots in Lamu, we saw that some of the owners had erected make-shift structures that they termed as “hotels” and “restaurants” in order to increase the amount of compensation they would receive.
This created a tension in the community, as many of the new landowners wanted the project to go through to obtain compensation. On speaking to residents of Mokowe county, we were told that in many cases there were many irregularities in the documenting of the area of affected farms by the National Land Commission to allocate appropriate compensation (as the community did not have formal land tenure), resulting in land being allocated to elites/outsiders not from the area.
There have been other complex ways in which the legal process has been thwarted. Because elites in the county, especially those from Nairobi, were aware of the impending coal project before the local residents, they bought land from the residents at throw-away prices, knowing full well that once the project started they would receive compensation for their newly bought land.
The process of allocating compensation for land in Kenya is a complicated one, and more monitoring of current processes and institutions is required. Lamu, in particular, has been subject to many land grabs in the past.
This is Kenya
In an article published in The Elephant, Keguro Macharia dissects the phrase, “This is Kenya”. He describes it as a site of “violation and exhaustion” – a tool used by the rich to perform the “gatekeeping” function of naturalising a system that marginalises the poor and a tool used by the poor to express frustration at an opaque system that repeatedly denies them anything but the most meagre of existences. In other words, “This is Kenya” draws a granite boundary between what can be fought, and possibly changed, and that which cannot. This granite box contains new more equitable realisations of Kenya from bursting through.
As we spoke to deCOALonize activists to learn about the different strategies they were using to fight coal, despite their success, we inevitably got the response: “This is Kenya”. Their use of the phrase indicated that they perceived the limits of the space in which they could mount their opposition. The interior of the bounds of “This is Kenya”, or the space in which they operated, corresponded to ensuring that mechanisms of due procedure as specified by the Constitution and the laws were followed by bureaucrats and the courts. The space outside of this, separated by “This is Kenya”, comprised one that was moulded and shaped by powerful political interests over which the activists had no control. And yet, this distinction was in many ways artificial.
We unsurprisingly learnt that the boundaries implied by “This is Kenya” belies the fact that outside politics seeps into this interior politicised bureaucracy and legal system. What is the point of documenting how a politicised bureaucracy and an imperfect legal system are actually experienced and navigated? Does this mean documenting the same tired corruption scandals?
Well, for one, in this case deCOALonize actually won this critical battle in court! We hope that by detailing how this heroic campaign managed to win, we can prevent ourselves from being boxed in by “This is Kenya”, and instead see deCOALonize’s victory in court as “This too is Kenya!”
Moving On or Business as Usual? Contemplating a Post-Museveni Uganda
9 min read. Is the West’s renewed interest in promoting human rights in Uganda a genuine attempt at bringing about democracy and eliminating corruption, or is it based on the commercial interests of a superpower intent on reducing China’s influence in Africa?
The Western media is taking notice of growing agitation for regime change in Uganda at a level comparable to the 1980s when Yoweri Museveni was referred to as a “a young handsome guerilla” on ITV News and featured in a British documentary filmed in the Luwero Triangle. Even as the then President Milton Obote was denying the existence of a rebel threat in Uganda, British journalist William Pike was interviewing Museveni in the bush. Pike later became a mobiliser for international support for the National Resistance Army (NRA) between 1984 and 1986.
In the past two years, the international mainstream media have regularly covered the phenomenon that is the People Power movement. With the help of social media, the movement’s leader, Robert Kyagulanyi, better known as Bobi Wine, has been noted as a leader of the future by two influential Western publications and has won multiple leadership awards on the African continent. As result, the failings of the 33-year-old National Resistance Movement (NRM) government have been under the global spotlight.
In his latest interview with Al Jazeera, Kyagulanyi appealed to the international community and investors to deal with Uganda and not with President Museveni. As the 2021 presidential and parliamentary elections draw near, foreign debt is coming to the fore in Uganda’s political discourse. Where human rights abuse once dominated, managerial failures in government and poor budget outcomes are gaining increasing attention. A series of events in 2018 and 2019 highlighted the impact of debt distress and managerial incompetence on service delivery.
Corruption and incompetence are no longer simply a drag on development but are bringing public institutions to a standstill. Special audits of thirteen out of fourteen regional referral hospitals show persistent drug stock-outs, understaffing and crumbling infrastructure. (The ICU at Jinja Hospital was shut down due to lack of batteries.).
In his latest interview with Al Jazeera, Kyagulanyi appealed to the international community and investors to deal with Uganda and not with President Museveni. As the 2021 presidential and parliamentary elections draw near, foreign debt is coming to the fore in Uganda’s political discourse.
Yet the health sector was unable to spend Shs.171 billion ($46,367,125.02) allocated to wages and construction and had to return the funds to the Treasury. Shs150 billion ($40,520,625.00) of that was external funding. Reasons given point to institutional failures, and inability to organise recruitment and procurement in time (Budget Monitoring and Accountability Unit, 2019).
In the education sector, the Makerere University strike was a reaction to the government’s inability to cover operational costs, and to the university increasingly relying on fees paid by private students. Ten years ago it was estimated that Shs.600 billion ($162,191,100.00) a year was lost through government procurement fraud alone. Professor Nuwagaba, a Makerere University lecturer and author of the study, estimated that the amount lost was enough to cover all of Makerere University’s student fees for two years.
The latest statistics from the primary education sector show the rate of literacy and numeracy fell from 39 per cent to 33 per cent. With a primary school drop-out rate of 60 per cent, this means that most of those who do not complete primary school education are insufficiently literate or numerate to go on to existing skills training institutions. Loans for skills training and higher education worth $100 million expired, with just a little over 50 per cent utilised and the rest returned to source. An application for a new $45 million has been tabled in Parliament.
Global climate right for change
The global climate is right for political change. By Executive Order 13818 (2017) the Trump administration declared global corruption and human rights violations “a national emergency” with respect to serious human rights abuses and corruption globally, which constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. The Magnitsky Act has since been invoked against senior army personnel while the former Inspector General of Police has been publicly designated under Section 7031(c) of the FY 2019 Department of State, Foreign Operations, and Related Programs Appropriations Act for human rights abuses.
Elsewhere in Africa, five Congolese officials of the DRC’s electoral commission and one from the Constitutional Court had visa restrictions placed on them and were publicly designated for electoral fraud. Together with military officials, they have also been identified as having undermined democracy by violating Congolese citizens’ rights to peaceful assembly, and freedom of expression.
Other publicly designated officials include Kenya’s former Attorney General Amos Wako, Cameroon’s Inspector General of the Cameroonian Gendarmerie, Colonel Jean Claude Ango, Malawi’s former Minister of Home Affairs, and current Special Advisor on Parliamentary Affairs, Uladi Basikolo Mussa due to involvement in significant corruption (a charge that Wako has denied). Exiled former president of the Gambia, Yahya Jammeh is also designated in an undated notice.
Since October 2019, Tanzania’s opposition politician Tundu Lissu and the Justice for All South Sudanese movement have retained a Canadian firm in the area of human rights abuses. Amsterdam & Partners offered its services to the embattled Bobi Wine after the torture the state subjected him to in 2018.
During their press conference, Robert Amsterdam denounced Uganda’s history of political violence and the use of $500 million worth (his figure) of US weaponry in carrying out that violence, saying the West cannot ignore it any longer.
The question is how closely multinational commercial interests are aligned with the long-term interests of the political movements, parties and individuals they now support.
The language of the Executive Order implies that to be actionable, the violations must be a threat to American global interests. By implication, if those interests can be secured by means other than sanctioning human rights violators, then violators need not be sanctioned. Yet in order to end impunity African opposition politicians and activists are clamouring for sanctions on serving officials like foreign minister Sam Kutesa cited in the Patrick Ho bribery case.
In an interview with Aly Khan Satchu in October 2018, Amsterdam described his firm’s work as “litigation in global markets” around both political and commercial matters. He portrayed foreign investor and domestic governance issues as being intertwined.
The question is how closely multinational commercial interests are aligned with the long-term interests of the political movements, parties and individuals they now support.
Amsterdam described the Chinese Belt and Road Initiative (BRI) as predatory lending and neo-colonial, a choice of phrase that would appeal to post-colonial Africa and Asia. He said that the initiative had “prohibited the growth of representative democracy…and given some autocrats a new lease on life.” [Amsterdam video @9:48] Explaining that China uses its surpluses from exporting manufactured goods to “colonise” the rest of the world. Amsterdam warned that “the debt trap is very real”.
He mentioned Hambantota, the port that Sri Lanka lost to China as a result of a debt default in 2018. In the same year, the Auditor General revealed that Uganda too has contracted loan agreements with China that surrender sovereign immunity over territory in the event of default.
The phrase “predatory lending” had been used earlier by the sixteen U.S. congressmen who wrote to the Secretaries of State and the Treasury in August 2018, demanding action to disrupt what they described as China’s bid to dominate the global economy. What is of concern to the Congressmen is that 23 out of 68 BRI countries are said to be at risk of debt distress. Defaulting BRI countries are expected to seek IMF bail-outs, meaning a portion of America’s investment in the IMF (the largest shareholding) would be transferred to China.
The portrayal of Uganda’s governance deficits and Western foreign political and commercial interests as organically related issues is not convincing. The exit plan being signaled for President Museveni is less about human rights abuses about which the world has known for over 30 years and more in aid of preserving existing power and trade relations between Uganda and the United States.
In his latest interview (Al Jazeera, November 2019) Kyagulanyi appealed to the international community and international investors, in particular, to hold the Ugandan administration accountable for human rights abuses and corruption. He urged them not to focus only on business relations but to be united with Uganda by values such as “democracy, respect for human rights…zero tolerance of corruption”. Ugandan activists are aware of the debt-trap and welcome sanctions.
However, in his interview with Sachu, Amsterdam seemed to be suggesting that perpetrators be given a Get Out of Jail card. Apart from floating the idea of an easy exit for Museveni, he stated that sanctions would only “hand over” countries to China (because Chinese foreign policy does not enforce its anti-foreign bribery laws). He gave Myanmar as an example. Sanctioned for the Rohingya genocide, Myanmar allegedly fell profoundly under Chinese influence.
He is again at odds with African activists when he advises his clients to avoid the U.S. Foreign Corrupt Practices Act by denominating their foreign contracts in currencies other than dollars to avoid the New York-based SWIFT money transfer system. Corruption, some of the proceeds of which pass through the SWIFT system, costs the African continent billions of dollars a year. The US Department of Justice recovered $30 million from Vice President Teodorín Obiang in 2014. France recovered (and confiscated) $35 million from him in 2017.
Uganda’s corruption circles are at least as big as Equatorial Guinea’s. There are over 100 ministries and statutory agencies and many more presidential appointees. Museveni himself is rumoured to have stashed away $5 billion in illicit earnings. This figure is difficult to confirm but following the recent ‘#fishrot’ disclosures in which the Namibian Minister of Justice is filmed soliciting a bribe of $200,000 in return for allocating fishing rights to an Icelandic firm, Samherji, it is possible that during Museveni’s thirty years at the helm – when he oversaw the country’s privatisation programme – he amassed a lot of wealth.
An easy exit for Museveni in the interests of a “smooth transition” could jeopardise the hoped for recovery of stolen funds. Robert Mugabe estate includes $10 million in cash, not an insignificant amount in a country where child delivery in hospitals is done by candlelight and a unit of blood costs $120.00, the equivalent of a doctors’ monthly salary or just over two month’s pay for a teacher.
Service delivery default or debt default?
More divergences of interest can be expected post-Museveni. A key issue for Ugandans in the inevitable transition will be the status of Uganda’s foreign debt. By 2021 debt servicing will have risen to at least 65 per cent of revenue (Auditor General 2018).
In the event that the NRM regime is dislodged in the 2021 elections, expectations for more and better service delivery will be high as they were in post-apartheid South Africa. South Africa elected to pay the apartheid debt and as a result, twenty years later, 40 per cent of the population lives below the poverty line. Access to social housing, electricity, running water and other services in the quantities and to the standards promised during the anti-apartheid struggle is still limited for at least half the population.
An easy exit also implies the inheritance of unsustainable debt, whether or not contracted in return for bribes, and regardless of whether it was put to developmental use or stolen. Without a debt audit carried out by an independent body, the repudiation of illegal, illegitimate and odious debt, and the recovery of misappropriated funds, the new government will not be able to meet service delivery expectations without taking on yet more debt. Service delivery will be the casualty. Zimbabwe cleared its debt to the IMF circa 2016. However latest statistics show undernourishment in Zimbabwe is 51.3%, up from 50.9% in 2016 when the IMF debt was cleared.
Post-Mugabe Zimbabwe discovered that it was unable to get new IMF financing without clearing the $5 billion owed to the African Development Bank and World Bank, and without securing financing commitments from development partners to whom money is owed.
Uganda’s corruption circles are at least as big as Equatorial Guinea’s. There are over 100 cabinet ministers and many more presidential appointees, in addition to Museveni, who is rumoured to have stashed away $5 billion in illicit earnings.
The legal status of the Museveni debt, and therefore the obligation to repay it, has been challenged by Dr Kizza Besigye on the grounds that it is odious – contracted at a time when the government was waging war against the people of Uganda. There is ample legal precedent for repudiation of odious debt.
To the extent that payment of the Museveni debt would force the State to continue to default on its obligation to meet the basic needs of its citizens, it is illegitimate. As in Zimbabwe, undernourishment in Uganda has been rising for over a decade. Infant and maternal mortality remain high.
Legally, if the Museveni debt can be shown to be odious or that it was contracted with the lenders’ knowledge or expectation that the government lacked the capacity to manage or repay it and was in any case inclined to steal it (as with the Mozambique tuna bonds), a case can be made for repudiation.
There are several examples of debt being successfully repudiated. In 2007 Norway established the precedent for repudiating debt which is neither illegitimate nor odious on the grounds that “repayment may be subject to broader considerations of the equities of the debtor-creditor relationship” (UNCTAD).
The legal status of the Museveni debt, and therefore the obligation to repay it, has been challenged by Dr Kizza Besigye on the grounds that it is odious – contracted at a time when the government was waging war against the people of Uganda.
The Tsarist debt owed by Russia was significantly reduced after payment demands were repudiated. The German and Prussian debt used to colonise Poland was repudiated in 1919. Commercial loans made by the Royal Bank of Canada to fallen dictator Tinoco were repudiated by Costa Rica. Germany repudiated Austrian debt in 1938, and the Franco–Italian Conciliation Commission ruled that Italy was exempt from debt incurred during war waged by a previous regime (1947). (Source: The Concept of Odious Debt in International Law, UNCTAD.)
Debt mismanagement continues in Uganda. The long-awaited health insurance scheme – the National Minimum Healthcare Package (NMHCP) – was tabled in Parliament in August 2019. The maternal health component of it will be financed under the World Bank’s Health Systems Strengthening Project through a loan of $130 million even though $45 million was wasted when the first attempt to design the NMHCP scheme in 2003 came to nothing. The World Bank’s evaluation stated the reasons stemmed from failures within the World Bank itself, including unrealistic design timetables, lack of a monitoring and evaluation (M&E) framework, and little appreciation of the political economy of the reform programme.
There are tens of projects such as these dating back to the initial Economic Recovery Programme of 1987 for which loans were contracted, commissions were paid, disbursements often not completed, some money stolen and outputs only partially delivered, if at all.
The recovery of public funds lost in this way provides ample scope for alliances between opposition groupings across Africa. It remains to be seen whether Ugandans will be able to leverage the West’s new-found willingness to put the well-being of her citizens on the table and negotiate agreements that will prioritise service delivery over investor interests after Museveni’s departure. The pressure on them to do the opposite will be massive.
Kenya’s War on Graft: Reasons to be Wary
10 min read. Unwieldy prosecution strategies have in the past been used as a guise under which the government appears to prosecute corruption while simultaneously taking steps to guard the prosecuted from legal culpability. This article aims to examine current anti-corruption efforts in light of similar efforts in the past in order to glean lessons and hopefully see what can be expected of current initiatives.
More than 200 people, among them senior government officials, principal secretaries and CEOs of state agencies, have been arrested, arraigned in court and charged with diverse criminal offences as a result of President Uhuru Kenyatta’s renewed war on graft.
On 22 July 2019, the Director of Public Prosecutions (DPP) ordered the arrest of and proffered charges against 28 senior government officials, among them Henry Kiplagat Rotich and Kamau Thugge respectively the Cabinet and Principal Secretaries of the National Treasury, the Principal Secretary of the Ministry of the East African Community, the Managing Director of the Kerio Valley Development Authority, a state corporation, and the Director of CMC di Ravenna, an Italian company. According to the DPP, investigations have established that the charged officials flouted procurement rules and abused their oath of office in awarding or otherwise ensuring that CMC di Ravenna secured the contract for the construction of the Arror and Kimwarer dams. The contractual amount is in the region of $600 million.
Prosecuting corruption in Kenya: A troubled past
From Kenya’s independence in 1963 to the establishment of the Kenya Anti-Corruption Authority in 1987, the duty to prosecute government corruption fell on the Office of the Attorney General (AG) who simultaneously happened to be the government’s chief legal advisor and chief legal defender. Requiring an office to prosecute its chief client yielded predictable results. Despite damning reports by the office of the Auditor and Controller General, as well as independent reports of the Parliamentary Public Accounts and Investment Committees, the AG remained resolutely intransigent towards bringing charges against government officials of any stripe, and outrightly protected senior government named in the reports.
In the Goldenberg scandal – an export compensation scam under the Daniel arap Moi regime that is estimated to have cost Kenya 10 per cent of her GDP – the AG at the time (and current Senator for Busia County), Amos Wako, failed to initiate proceedings for four years after the scandal came to light, and was only moved to do so by a suspension of International Monetary Fund (IMF) aid and the combined pressure of the Law Society of Kenya, donor nation governments and an increasingly outraged and assertive public.
Notwithstanding the said pressure, Wako used a variety of guises to impede the prosecution, including attempting to oust the jurisdiction of the High Court in the matter, numerous adjournments, withdrawing charges altogether and then being compelled by foreign pressure to reinstate them. The Minister of Finance at the time was never so much as charged and to date nobody has ever been convicted.
In the Goldenberg scandal, the AG at the time (and current Senator for Busia County), Amos Wako, failed to initiate proceedings for four years after the scandal came to light, and was only moved to do so by a suspension of IMF aid and the combined pressure of the Law Society of Kenya, donor nation governments and an increasingly outraged and assertive public.
Kenya then moved to break the prosecutorial monopoly of the AG. The Kenya Anti-Corruption Authority (KACA) was established in 1987 by the amendment of the Prevention of Corruption Act (Cap. 65) but was hampered by legal, administrative and budgetary constraints that appeared deliberate. Its first director, John Harun Mwau, was appointed 10 years after the establishment of KACA, for instance, and was shortly thereafter sacked by the president at the recommendation of a tribunal of inquiry after the director had obtained warrants of arrest against high ranking officials of the Treasury as well as the Kenya Revenue Authority.
It is noteworthy that Mwau was not conventionally qualified for his post nor was the process of his appointment subject to a transparent recruitment process. Indeed it is believed that the appointment was a quid pro quo in return for his dropping out as a presidential candidate. Nonetheless he was fired just as he appeared to make progress.
As such, whereas his successor Aaron Ringera was undoubtedly well qualified for the post, being a well-respected High Court judge, his appointment was nonetheless greeted with scepticism. Justice Ringera took office in 1997 and by 2000 KACA had been declared unconstitutional by the High Court before any of the cases it had instituted had been, the court finding that the existence of KACA infringed upon the constitutional powers of the offices of the Attorney General and the Commissioner of Police for two main reasons: first, that Justice Ringera, being a judge and simultaneously the head of an organ of the Executive, offended the doctrine of separation of powers; and second, that under section 26 of the Constitution (as it then was), the AG had the exclusive power to prosecute. The cases that KACA was handling were handed over to the AG. These cases were either not continued or ended up being dismissed by courts.
The demise of KACA led to widespread civic and international outrage. Following the general elections in 2002 – widely believed to be the first truly free elections of their kind in Kenya’s history – Mwai Kibaki was elected president on a broad reform mandate, key to which was fighting corruption. He established KACA’s successor, the Kenya Anti-Corruption Commission (KACC) in April 2003 by way of the enactment of the Anti-Corruption and Economic Crimes Act. Exactly one year later, in April 2004, KACC was to face an acid test following the coming to light of what would prove to be the new administration’s nemesis, the Anglo Leasing Scandal (Anglo Leasing).
Anglo Leasing was a government procurement scandal in which a diverse array of fraudulent entities were secretly and unlawfully awarded large security contracts, and subsequently failed to deliver goods or services or grossly overcharged for them. In total it was estimated that there were at least 18 such contracts with a total value of $721 million.
The scandal reached the highest levels of government and was well-documented by the whistleblower John Githongo, who was then the Permanent Secretary for Governance and Ethics. Githongo was a former Executive Director of Transparency International in Kenya and was widely regarded as a person of integrity. Indeed his appointment was intended by Kibaki to signal his seriousness in the fight against corruption. Githongo’s report implicated the president himself, his vice president as well as various cabinet ministers and permanent secretaries.
The consequences were limited. The newly established KACC cleared three cabinet secretaries of obstructing the investigation using the novel and startling legal innovation that the whistleblower was not an investigator as defined by law. Far from playing the role of an independent prosecutor, KACC either did not investigate the most culpable, or when it did, it resorted to technicalities in order to defeat the very purpose it was formed to serve.
Anglo Leasing was a government procurement scandal in which a diverse array of fraudulent entities were secretly and unlawfully awarded large security contracts, and subsequently failed to deliver goods or services or grossly overcharged for them. In total it was estimated that there were at least 18 such contracts with a total value of $721 million.
In what is likely to exert a chilling effect on the exposure of government scandals, Githongo has recently had judgement entered against him personally in the amount of $270,000 for defamation in a suit brought by Dr. Christopher Murungaru who as Minister of Internal Security at the time of the coming to light of Anglo Leasing, was perhaps the leading figure under investigation in the scandal. This is the latest in a long series of legal setbacks which Githongo has faced since doing Kenya the immense service of bringing Anglo Leasing to light.
The Executive: Questionable tactics
Prosecution is no easy task. Prosecuting economic crimes such as corruption is even more so. These crimes tend to be characterised by a high degree of sophistication in terms of commission as well as concealment. Payments to those concerned, for instance, may be in the form of ‘commissions’ by shadowy organisations to multiple offshore jurisdictions, which are hard to trace and whose illegality is difficult to prove.
Unlike other crimes, a disproportionate amount of evidence tends to be in the hands of those who are already suspects. Gathering such evidence takes a great deal of time and expertise, involving teams of professionals applying specialised forensic techniques. The suspects themselves tend to be wealthy and powerful. They are able to hire large teams of lawyers who take advantage of every legal loophole, technicality, adjournment, appeal and delay in their client’s favour. They are able to apply pressure to witnesses and even to those working within the prosecution. Cases are likely to drag on for a long period of time and a government that wishes to see quick results in the war against corruption would be ill-advised to rely on prosecution as its primary and most visible strategy.
The DPP and the Directorate of Criminal Investigations (DCI) have conducted much of the war on corruption as a drama played out in the public eye. Press releases are issued and persons high and mighty are arrested with great fanfare. These persons are arraigned in court in vast numbers, and when bail is granted, the DPP cries foul. One of the major reasons that inform opposition to bail by the DPP is that the accused may interfere with investigations. This then implies that investigations were incomplete at the time suspects were arrested. This working methodology appears to essentially be a public relations exercise that fundamentally undermines successful prosecution.
Unlike other crimes, a disproportionate amount of evidence tends to be in the hands of those who are already suspects. Gathering such evidence takes a great deal of time and expertise, involving teams of professionals applying specialised forensic techniques.
Furthermore, those accused are often skilled political operatives, with established relationships within media. Charismatic and often able to appeal to ethnic loyalties, they can use the media as a tool to gain public sympathy and scuttle efforts at holding them accountable. In addition, early engagement of the media by the DPP as part of political theatre is likely to expose strategies and information prematurely, forewarning the accused. It must also be acknowledged that media organisations are corporate profit-making entities with interests of their own that may or may not align with the public interest.
Take for example the second National Youth Service (NYS) scandal. At one point there were 30 accused persons on one charge sheet in one case. Each was represented by at least one lawyer, and frequently by a team of lawyers. Each individual had to be put on their defence separately; each called and cross-examined their own witnesses. This takes about four days per witness. No country in the world can conduct a speedy trial, or even a fair one, under such circumstances. Even a matter as basic as a courtroom was a problem: there exists no courtroom in Kenya large enough to conduct this case, which had to be held in a ceremonial hall.
Unwieldy prosecution strategies have in the past been used as a guise under which the government appears to prosecute corruption while simultaneously taking steps to guard the prosecuted from legal culpability. During the Goldenberg scandal, the Attorney General, against the advice of his own Director of Public Prosecutions, framed more than 90 counts in one charge despite clear evidence that this would invalidate the charges, which is precisely what happened.
Given the difficulty of corruption investigation prosecution, cases should be restricted and prioritised based on pre-established criteria. Such criteria would include prosecuting the most senior figures, establishing judicial precedent and the probability of a successful outcome, for example, by targeting offences such as tax evasion that are relatively easier to prove.
Moreover, strategies such as plea bargaining and summary proceedings have proven useful in other jurisdictions as a means of shortening litigation and also gathering evidence of criminal activity that would otherwise be unavailable or require an enormous expenditure of surveillance and forensic resources.
Prosecuting corruption amounts to locking the stable door after the horse has bolted. Prevention is by a huge margin the better strategy, a large responsibility that lies with the Executive headed by the President. That we are experiencing corruption at all means that the Executive has failed to stop it and must now rely entirely on prosecuting those whom it has allowed to raid public coffers.
The Executive does not appear to have a coherent professional strategy to fight corruption. In the recent past, buildings on riparian land were brought down in a flurry of activity. Now there is sudden silence. This work has not been completed. Also forgotten is NYS 1, in which the central figure is now a governor. There needs to be a demonstrated professional understanding of corruption in Kenya and its underlying causes that drives the war on corruption; absent that the process will appear ad hoc and susceptible to being interpreted as a platform to selectively seize and exploit the weaknesses of political opponents.
The Executive does not appear to have a coherent professional strategy to fight corruption. In the recent past, buildings on riparian land were brought down in a flurry of activity. Now there is sudden silence.
Furthermore, the close relationship between the presidency and prosecutorial agencies is problematic. Factual independence of prosecutorial agencies from members of government is crucial towards the effectiveness of prosecution as an anti-corruption strategy. Components of factual independence include stable and widely applied legal foundations for the prosecution of crimes. As such, prosecutions ideally should emanate from an independent office exercising a constitutional and legal mandate independently, rather than following directions from any one office, however well meaning. Trust in the war on corruption and the legitimacy of the ruling regime as a whole could be undermined if it is perceived that those closely aligned to State House are unlikely to be prosecuted.
The blame game: The Judiciary
The Judiciary has been accused of granting bail with alarming ease to the high and mighty, while simultaneously denying the same benefits to ordinary citizens. Chicken thieves are subject to incarceration while those who have stolen millions roam this land free and unburdened.
The President himself, on the occasion of his Jamhuri (Republic) Day speech on December 12 2018, accused the Judiciary of granting “ridiculously low bail terms”. The Judiciary has been accused of misunderstanding the presumption of innocence and equating it with a presumption of virtue, being divorced from the aims of society in general and in particular being insensitive to the scourge of corruption. Indeed political actors have not shied away from accusing the Judiciary of outright collusion with accused persons. Individual judges have also been mentioned adversely in social media in ways ranging from the mildly disturbing to the downright scandalous.
It is germane to the President’s comments on “ridiculously low bail” that in the preceding week, top officials of the Kenya Pipeline Company (KPC) and the National Health Insurance Fund (NHIF), including Joe Sang, the Managing Director of KPC and Geoffrey Mwangi, CEO of NHIF, had been charged with abuse of office leading to the theft of billions of shillings. They were released on a bail of Sh2 million each. In July 2018, top officials of the Kenya Power Company, including the CEO Ken Tarus, his predecessor Ben Chumo and senior managers were similarly charged and released on bail terms of Sh1 million.
Where the Judiciary has been criticised for giving bail, no evidence has been proffered of the compelling reasons against it that the Judiciary ignored. Suspects have presented themselves to police stations and have attended court proceedings voluntarily. The purpose of bail is to secure attendance, not to act as some sort of premature punishment prior to conviction by its denial.
While it is still too early to pass definitive judgement on the effectiveness of this new wave of prosecution against corruption there is a key historical hurdle that Uhuru Kenyatta’s administration will have to overcome. The prosecution or lack thereof of Anglo Leasing suspects in a scandal that was enormously well-documented leads us to the inevitable presumption that that those crucial to the campaign of the next general election in 2022, either by dint of being sufficiently wealthy and willing to fund the election campaign or perceived as being able to guarantee key ethnic loyalties, will not be successfully prosecuted and that after the dust and fanfare settles those most culpable will not be held accountable. Shifting the blame to other institutions has already begun and is likely to continue.
Who is Policing the Police? Kenya’s Lame Duck Oversight Mechanism
19 min read. Seven years after an independent oversight body was formed to monitor and investigate police misconduct and abuse, Kenyans are still suffering under the hands of an incompetent and uncaring police force that gets away with excesses with impunity. Has IPOA lived up to its promise?
On the right-hand corner at the top of Policing Lens, the Independent Policing Oversight Authority (IPOA)’s quarterly newsletter, two heavily padded policemen positioned inside the frame of a magnifying glass are holding shields branded ‘Police’. The duo have their baton-wielding fists raised in the air, poised to descend on a seemingly already subdued civilian lying motionless on the ground. This surreal image ushers one into IPOA’s world, a Freudian admission that the National Police Service (NPS) may not be as transformed from what it used to be when it was known as the Kenya Police Force – still deploying brawn in place of brain.
This disturbing yet at once candid logo subconsciously summarises IPOA’s statement of intent, which is that the statutory agency is not afraid of confronting the dark history and the not-so-squeaky-clean present day state of affairs within the police, an unflattering confession they are willing to make publicly. Conversely, the choice of IPOA’s optics could be (mis)construed as an act of concession, confirming that despite its far-reaching powers and mandate, IPOA, just like the overpowered civilian victim of police brutality, remains subdued by police excesses.
Yet the need for IPOA to live up to its full mandate cannot be gainsaid.
Waki, Alston and Ransley
During the 29 May 2009 United Nations Human Rights Council sitting in Geneva, Switzerland, Prof. Philip Alston, the then UN special rapporteur on extrajudicial, summary or arbitrary executions, faced a dilemma. Coming merely two months after his inaugural Kenya working tour, Prof. Alston was calling for the investigation of the Kenya Police Force in a case where it was suspected of involvement in the execution of two human rights defenders. But as he pushed for an investigation into the police, Prof. Alston regretted that as things stood at the time (and maybe as they still stand to date), it was impossible to investigate the police.
Prof. Alston wrote: ‘‘As there is, according inter alia to the report of the Commission of Inquiry into Post-Election Violence (CIPEV, pages 420-421), no existing independent unit capable of effectively and credibly investigating possible police misconduct in Kenya, we consider it imperative that an independent investigation be carried out with support from a foreign police force.’’
Prof. Alston was partly basing his observation on the October 2008 Commission of Inquiry into Post-Election Violence (CIPEV) report authored by Court of Appeal Judge Philip Waki, who chaired the CIPEV, otherwise referred to as the Waki Commission. Apart from pointing out the extent to which it was impossible to investigate the police for suspected police-inflicted deaths and injuries, the Waki Commission showed the extent to which the police were suspected of serious human rights violations during the 2007/2008 post-election violence, where one in every three of the 1,133 deaths documented by CIPEV were as a result of bullet wounds. These figures, though supported by morgue data, were disputed by the Commissioner of Police, Maj. Gen. Hussein Ali, who knew of only 616 deaths, emphatically telling CIPEV that only the police could give authoritative figures for those who died as a result of the post-election violence.
The Waki Commission showed the extent to which the police were suspected of serious human rights violations during the 2007/2008 post-election violence, where one in every three of the 1,133 deaths documented by CIPEV were as a result of bullet wounds.
It was under these circumstances that CIPEV recommended the establishment of an “Independent Police Conduct Authority” outside the police, with the legislative power and authority to investigate complaints against the police and police conduct. By the time Alston was suggesting international investigation of police killings, nothing had happened to implement CIPEV’s crucial recommendation, but his report now made it imperative to establish an independent police oversight agency to curtail future contemplation of seeking foreign investigative assistance.
As if pre-empting Prof. Alston’s May 29 presentation in Geneva on 7 May 2009, President Mwai Kibaki tasked Justice (retired) Philip Ransley to look into concerns raised by the other two Philips – Alston and Waki – by appointing him to chair the National Task Force on Police Reforms. Ransley’s Commission aimed ‘‘to examine existing policies and institutional structures of the police, and to recommend comprehensive reforms that would enhance effectiveness, professionalism and accountability in the police services.’’ Ransley was given 90 days, and in October 2009, having wrapped up his hearings, Ransley handed his report, which contained a whopping 200 recommendations, to the head of state.
Ransley asked for, among other things, terminological change seeking the establishment of the National Police Service (NPS), a change from the scandal-ridden Kenya Police Force. The idea was to shift the mindset of the police towards civilians, a change from always resorting to force in the course of duty to one of offering a professional service. This was to also influence civilians’ perception of the police, from that of antagonism to one of co-operation and collaboration. Ransley similarly asked for the setting up of the National Police Service Commission (NPSC), tasked with overseeing the human resource component of the NPS, starting from recruitment, appointments, promotions, and general welfare of the police, away from the Public Service Commission (PSC), which previously handled these responsibilities.
More importantly, and in responding to Alston’s and Waki’s concerns, Ransley recommended the establishment of the Independent Policing Oversight Authority (IPOA), a civilian body mandated by law to keep the proposed NPS in check. In imagining an ideal scenario, Ransley envisioned an IPOA to watch over financial spending by the NPS; ensure the NPS adhered to international best practices in policing; receive and initiate investigations into complaints on police misconduct; monitor, review and audit police investigations; as well as coordinate other institutions on issues of police oversight, among other things.
That Ransley’s task force completed its work within 90 days and submitted its report soon thereafter came as a surprise to sceptics, including those within the diplomatic corps. This was evidenced in a WikiLeaks cable originating from the US embassy in Nairobi, which read:
‘‘…However, several prominent persons have expressed doubts about the government’s motives in establishing the PRC. They note that the PRC’s short 90-day mandate is far too little for such a massive task and that Police Commissioner Hussein Ali will act to thwart all but superficial reforms. We share some of these doubts, but will take a wait-and-see approach, recognizing that the PRC provides an opportunity – the only one at this time – for much-needed police reform. The UK shares our doubts, but will support the commission financially by paying for a UK and a Commonwealth police expert to serve on the PRC. If the GOK acts to implement real reform we are positioned to support the effort with funds….’’
The Americans and the British might have had valid reasons to second guess the intentions in setting up the Ransley task force, referred to erroneously in the WikiLeaks cable as the Police Reform Commission (PRC). A few months earlier, before the appointment of Ransley and his team on 7 May 2009, the then powerful Minister of State for Internal Security and Provincial Administration, Prof. George Saitoti, had placed a mischievous announcement in the Kenya Gazette, Notice Number 8144 of September 2008. The alert was about a Police Oversight Board, a proposed agency populated by presidential appointees, which the minister wanted domiciled in his ministry, and whose members – named in the gazette notice – the minister had powers to dismiss at will. This therefore meant that the mandate to oversee the police would remain within the state, under the same ministry as the police, a bad attempt at pseudo self-regulation. Prof. Saitoti’s actions seemed pre-emptive.
At around the same time, the non-statutory Kenya Human Rights Commission (KHRC), among others, was busy singing the chorus of the establishment of a civilian police oversight body. In fact, the KHRC had gone as far as drafting a bill proposing the creation of the Police Oversight Board, a name and concept which the minister appropriated. The difference was that the KHRC was proposing an autonomous civilian agency, while the minister wanted to create an appendage of the police within his portfolio. It was these sorts of cat-and-mouse games that eroded credibility on efforts by the state towards police reforms, setting the stage for doubting Thomases as Ransley got working.
Further, in revelations contained in the aforementioned WikiLeaks cable, Prof. Saitoti was reported to have told the US Assistant Secretary of State for Africa, Johnnie Carson, that what was needed in police reform was ‘‘evolution, not revolution’’. The minister had also been quoted – utterances he denied having ever made – saying that only “normal reforms are required [like] looking into the welfare of officers, adequate facilities to increase the morale and efficiency” of the police. This strategy, of doing cosmetic reforms by focusing on the more bureaucratic end of things as opposed to delving into the more substantive questions of police violations, is one which would later be used to keep IPOA distracted from its core mandate.
The Inaugural Term
On 27 August 2010, almost a year after Ransley’s task force submitted its report to President Mwai Kibaki, Kenya promulgated a new constitution. With the new legal regime in place, and staying true to Ransley’s recommendations, Parliament passed the IPOA Act (Act No. 35 of 2011), legislation which paved way for the establishment of the Independent Police Oversight Authority (IPOA). This was a huge milestone. Other than South Africa’s Independent Police Investigative Directorate (IPID), there remains no other policing oversight agency in Africa.
However, rather than looking to South Africa, IPOA heavily borrowed its architecture from the UK’s Independent Office for Police Conduct (IOPC), formerly the Independent Police Complaints Commission (IPCC). This was possibly a direct result of the input by the British expert seconded to the Ransley task force, as explicitly intimated in the WikiLeaks cable. Consequently, IPOA’s objectives were outlined in Section 5 of the Act thus:
- a) Hold the Police accountable to the public in the performance of their functions;
- b) Give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
- c) Ensure independent oversight of the handling of complaints by the Service.
In adhering to the Act’s requirements on the hiring of the IPOA board, the president, through Kenya Gazette notices 6938 and 6939 of 22 May 2012, appointed IPOA’s inaugural chairman and the agency’s board members, who were all sworn in on 4 June 2012. Ransley’s team had outlined the composition of the board to include two persons with experience in public administration, alongside individuals with knowledge in financial management, corporate management, human rights, and one with experience in religious leadership. The board’s chairperson had to be someone qualified to be appointed a judge of the High Court of Kenya.
Further, in revelations contained in the aforementioned WikiLeaks cable, Prof. Saitoti was reported to have told the US Assistant Secretary of State for Africa, Johnnie Carson, that what was needed in police reform was ‘‘evolution, not revolution’’.
As fate would have it, Macharia Njeru, currently a member of the Judicial Service Commission (JSC), who had served as a member of the Ransley task force, was picked as IPOA’s first chairman. One would have imagined that having been part of the Ransley team, Njeru would hit the ground running, having had the advantage of being one of the agency’s draftsmen. However, by the end of his board’s six-year term, Njeru’s team came under heavy criticism,for what was considered an utterly dismal performance, especially by victims of police excesses.
During its inaugural term, IPOA received an average of four serious complaints a day. As a result, the common refrain against the agency was that of the almost 10,000 cases of police misconduct reported to it, IPOA had only secured a paltry three convictions. These were: High Court Criminal Case No. 41 of 2014 (Republic Vs Inspector of Police Veronicah Gitahi and Police Constable Issa Mzee, and Criminal Appeal No. 23 of 2016 (Inspector of Police Veronicah Gitahi and Police Constable Issa Mzee Vs Republic), and High Court Case No. 78 of 2014 (Titus Ngamau Musila).
Pundits argue that strictly speaking, these were two convictions. In the first case, two police officers were convicted, thereafter appealing the ruling. They lost at the appellate court, a development which saw IPOA count the double loss by the officers as two wins on its part.
During its inaugural term, IPOA received an average of four serious complaints a day. As a result, the common refrain against the agency was that of the almost 10,000 cases of police misconduct reported to it, IPOA had only secured a paltry three convictions.
By 30 April 2018, when the inaugural board’s mandate was just coming to a close, the agency had received a total of 9,878 complaints. These were both from members of the public and from within the police service. Of these, 5,085 were classified as needing to be investigated. The rest, as per IPOA’s breakdown of the numbers, were referred to the Internal Affairs Unit of the National Police Service (748 cases), IPOA’s inspections and monitoring directorate (364 cases), the National Police Service (249 cases), the National Police Service Commission (319 cases), the Kenya National Commission on Human Rights (41 cases), Officers Commanding Police Stations (370 cases), the Directorate of Criminal Investigations (289 cases), and another 312 cases were shared between the Ethics and Anti-Corruption Commission, the National Land Commission, and the Commission of Administrative Justice (Office of the Ombudsman).
Of the 5,085 cases meant for investigations, 752 were reported to have been investigated and completed, 458 were closed preliminarily, 72 were still under investigation, 76 were under legal review by IPOA, 103 were forwarded to the Office of the Director of Public Prosecutions, 11 were sent to the Ethics and Anti-Corruption Commission, with 6 referred to the National Police Service. Furthermore, 459 complaints were dismissed as falling outside IPOA’s mandate, 1,642 cases were closed for what IPOA terms ‘‘withdrawal by complainants; matters before Court; not actionable; and insufficient information.’’ 64 cases were before the courts.
As of March 2019, the total number of cases reported to IPOA stood at 12,781, with 136 cases taken to court. In a mark of progress, three more convictions have been added to IPOA’s tally since the new board took office in September 2018. It goes without saying that the new board is to a large extent building on the groundwork done by their predecessors, meaning by the end of the six-year mandate, IPOA’s second board should have better figures in comparison.
By any account, IPOA’s 2012–2018 numbers are mind-boggling, its paltry three convictions not doing much in terms of building confidence within the aggrieved civilian population. As a matter of fact, naysayers will be forgiven for thinking the numbers being thrown around are all a well-choreographed game of smoke and mirrors, a case of motion without movement.
However, the question one may want to ask is, was IPOA set up for failure from the word go?
While listening to Macharia Njeru campaigning to be picked as the male representative of the Law Society of Kenya in the Judicial Service Commission, it became obvious that the one talking point IPOA’s inaugural chairman wouldn’t let go of was that he had successfully built an institution from scratch.
Njeru’s exit message as his term came to a close was on how much he, his board and IPOA’s senior staffers had worked in putting in place systems. There was talk of financial management awards, all bureaucratic shenanigans – not unimportant but neither were they IPOA’s core mandate. There was certainly need for institution building, but at what expense did this happen? Did Njeru’s team sacrifice IPOA’s primary oversight responsibility at the altar of corporatism, or was it a trap set for him from the word go – to keep him busy paper pushing and not allow his team adequate time and resources to focus on police misconduct?
When looking at IPOA’s founding financials – an annual budget of Sh96 million (US$ 960,000) in 2012/2013 – it is clear that from the beginning one of the ways the state wished to put the agency on a tight leash was by limiting its budgetary allocations. Seeing that the agency needed to build from the bottom up – hire premises, recruit and train staffers, establish regional offices, among other day-to-day operational logistics, it was evident that with a paltry financial allocation, the board would be kept busy micromanaging budget line items as police violations went through the roof. For instance, it is astonishing to note that in 2013, IPOA could only hire an initial staff of six people.
Possibly seeing that the agency had fallen into the institution-building-at-the-expense-of-its-core-mandate trap, IPOA’s budget eventually grew to Sh696 million in 2017/2018 and Sh800 million in 2018/2019, barely Sh1,000 (US$10) per complaint per day, and definitely an insignificant amount of money considering the scope of oversight expected of the agency. By the time Njeru’s team was leaving, IPOA had acquired a total of 27 motor vehicles – a number one might find laughable, seeing that IPOA’s operations needed to cover the entire country – and had a staff roster of a mere 143 employees. How was such an institution, even if perfectly structured, capable of overseeing a National Police Service that recruited an average of 10,000 police officers on an annual basis? Would IPOA ever be fit for purpose?
In 2014, the board developed a four-year strategic plan to coincide with its 2018 exit. The plan was built around four pillars, namely compliance by the police with human rights standards; restored public confidence and trust in police; improved detention facilities; a functional Internal Affairs Unit (IAU) of the National Police Service; and a model institution on policing in Africa. In its usual brick and motor state of mind, IPOA reported that ‘‘it is pleased that the National Police Service has secured an office for the IAU, and indications are that the Unit will be operational by August 2018.’’ Other than that, it is anyone’s guess as to whether any of the other targets were satisfactorily achieved under the strained circumstances the agency was operating under.
By all means, IPOA’s inaugural term had too many moving parts that kept the agency busy, thereby making it drop the ball on many occasions regarding delivery of its core mandate to civilians, who continue to suffer in the hands of rogue elements within the National Police Service. According to Wangui Kimari of the Mathare Social Justice Centre (MSJC), and as has become a common refrain in Kenyan society today, vitu kwa ground ni different (reality bites). For starters, IPOA is not perceived as a friend of the civilians, thanks to its one-size-fits-all bureaucracies.
‘‘Victims of police brutality and families of those killed by the police in places like Mathare and Korogocho are weary of going to report their complaints to IPOA for many reasons,’’ Wangui told me when we met in Nairobi. ‘‘Some of them are broke, they cannot even afford bus fare, yet they are expected to go to IPOA’s intimidating head office to make a statement. Once at IPOA, the majority of the complainants, who are either illiterate or semi-literate, will always be harassed for either not filing their complaints properly or for leaving out crucial information. It is in filling these gaps that trusted grassroots organisations such as the social justice centers come into the picture, but even after lodging the complaints properly, the long periods of time which lapse before IPOA moves on the cases is discouraging to the victims and their families.’’
In a word, IPOA’s operations are not fit for purpose since its user experience remains wanting.
According to Gacheke Gachihi, an MSJC activist, IPOA needs to have its tentacles in places such as Mathare, which record some of the highest numbers of extrajudicial killings. It is public knowledge that informal settlements in Nairobi have well-known killer cops, some whom go as far as parading their past, present and future conquests on social media. To Gacheke, the fact that IPOA does not have outposts in places like Mathare shows its top-bottom approach to oversight, where instead of going to the ground, the agency keeps to its air-conditioned offices.
‘‘IPOA needs to come and be in the midst of the people who need it most,’’ Gacheke told me. ‘‘Their presence here can work as a deterrent to rogue police officers. If they think residents of Mathare flood their registry, they will be surprised at the many cases which go unreported.’’
According to Gacheke Gachihi, an MSJC activist, IPOA needs to have its tentacles in places such as Mathare, which record some of the highest numbers of extrajudicial killings. It is public knowledge that informal settlements in Nairobi have well-known killer cops, some whom go as far as parading their past, present and future conquests on social media.
In the opinion of some front line human rights aficionados who wished to remain anonymous – they do not wish to sanitise IPOA’s arrogance with a comment – IPOA’s biggest shortfall has been its opacity. They claim IPOA behaves as if it is ignorant of the fact that for it to succeed it needs to operate within an ecosystem comprising all kinds of stakeholders nurtured by trust. It is this sense of indifference from IPOA, they say, which has resulted in disengagement by human rights defenders, who are getting completely disinterested in IPOA’s work processes. ‘‘They never answer calls or reply to emails,’’ one of them told me. ‘‘It is a complete disgrace.’’
The other battle on IPOA’s plate is that of perception. Wangui told me that when she brought mothers and widows of victims of extrajudicial killings to IPOA’s open day, the majority of them did not want to come close, since they considered IPOA as part of the National Police Service. ‘‘They wouldn’t go to the IPOA stand,’’ Wangui told me, ‘‘because to them, hao ni polisi.’’
The Missing Repository
According to leading human rights lawyer Sam Mohochi – previously executive director of the Independent Medico-Legal Unit (IMLU) and immediate former executive director of the Kenyan Section of the International Commission of Jurists (ICJ-K) – any suspicious death, and particularly death at the hands of or while in the custody of the police or of a prison officer, should automatically trigger a Magistrate’s Inquest under Sections 386 and 387 of the Criminal Procedure Code. In Mohochi’s view, IPOA should therefore be the undisputed repository for all such cases in instances where the police are involved, such that IPOA either exonerates or implicates them.
‘‘All custodial deaths should result in an inquiry being instituted,’’ Mohochi told me in Nairobi. ‘‘But you will notice that as things stand, IPOA does not comply with provisions of the law.’’
‘‘If you look at most cases of extrajudicial killings in Kenya, unless the family or other actors complain, no automatic legal action occurs,’’ Mohochi told me. ‘‘But two, now bring in IPOA. All such cases are automatically expected to be referred to IPOA, directly, by the police. That then means that in IPOA’s progress reports, the agency should always indicate how many such cases have been forwarded to it, by the police. Unfortunately, if you look at IPOA’s progress reports, they are completely silent on that. Yet that would have been the repository where you could keep tally of extrajudicial killings, irrespective of whether investigations are complete or not. That way, there could be a credible tally of encounter killings by the police, reported by the police. What we mostly have are statistics of cases reported by victims, against the police.’’
In Mohochi’s opinion, the ideal situation in cases where police bullets have been used to either harm or kill civilians should be that the Officer Commanding Station (OCS) who is in charge of the police in a given jurisdiction should be the one to forward any suspicious police action to IPOA as a measure of accountability. This means that if the police abuse their powers in a locality and the OCS does not report it to IPOA, then the agency should have punitive measures in dealing with such a non-compliant OCS.
And if dealing with an OCS gets cumbersome – which should not be the case since IPOA has statutory powers – then IPOA should at the very least have its own investigators stationed at every police station in order for the agency to get first-hand accounts of police excesses, which are then forwarded to the agency’s legal and investigative units. Failure to do this, Mohochi says, will result in the majority of police violations to go unreported; even if they get reported, there will always be the evidential challenge since the police, in protecting each other, will neither secure the crime scene nor get witness statements of their own volition.
‘‘IPOA should issue a circular to all police stations,’’ Mohochi told me, ‘‘that should any case of extrajudicial killings occur, they need to be notified immediately. Failure to do so, even IPOA’s own investigators will not find it easy investigating a non-cooperative police service.’’
Further, Mohochi told me, what IPOA is doing – documenting police violations and prosecuting rogue officers – is something that was already being done by non-state actors. However, the establishment of IPOA was meant to scale things up in terms of convictions, something which is not happening. In Mohochi’s recollection, police officers have been jailed before IPOA came into place, but IPOA was meant to act as a bigger deterrent through higher conviction rates. If this is not attainable, Mohochi fears that IPOA will not be serving the purpose it was founded for.
The Evidence Puzzle
Over the years, and as intimated by Mohochi, insufficient evidence has remained one of the prominent bottlenecks in litigating against police violations in cases of extrajudicial killings. For the most part, aside from entities such as the Independent Medico-Legal Unit (IMLU), who were for a long time the go-to place for independent, credible autopsies, especially in public interest cases, attempts to prosecute the police either by IPOA or other actors have run into headwinds for lack of admissible evidence on the cause and circumstance of death. As such, the passing of the National Coroners Service Act of 2017 came as a huge relief for both human rights defenders and evidence-based agencies such as IPOA. This meant that in the event of any suspicious deaths, then there would be a legally mandated entity which would take up the matter, preserve the evidence, institute an inquiry, after which prosecutorial steps can follow.
According to the Kenya National Commission on Human Rights (KNCHR) handbook on the Act, much as the Kenyan version of the coroner’s office will not be quasi-judicial, as an important starting point, the Act establishes a framework for investigations and determination of the cause of reported unnatural deaths in the country. Some of the anticipated quick wins are that obstruction of investigations, bearing false witness, and refusal to comply with directions from the coroner will be things of the past.
Further, the Act provides immunity from civil and criminal prosecution, or any other administrative action for that matter, for those who give evidence to the coroner. This is a huge improvement from the current reliance on Sections 385-387 of the Criminal Procedure Code, which provide for an inquest in cases of suspicious deaths, but does not have the sorts of far-reaching powers provided by the Act. Unfortunately for IPOA and its civilian complainants, and in that typical Kenyan self-sabotage fashion, since the signing of the Act into law in July 2017, it remains gathering dust, and is still not operationalised.
The Recruitment Charade
However, after everything is said and done, one of IPOA’s persisting headaches remains the almost always scandalous police recruitment exercise. It goes without saying that if the National Police Service keeps filling its ranks with individuals not suited for policing, then no matter what interventions IPOA resorts to, its in-tray will forever remain full of cases of police misconduct by rogue officers, persons who were never fit to be part of the service from the word go. To date, no matter what IPOA or other statutory watchdog agencies like the Kenya National Commission on Human Rights (KNCHR) do, the problem of shoddy police recruitment has kept recurring, courtesy of the now perfected selective application of recruitment guidelines.
For starters, recruitment of police officers is the sole prerogative of the National Police Service Commission (NPSC), as recommended by the Ransley task force. However, the law allows the NPSC some discretion, through which it can delegate this responsibility to the Inspector General of Police. This, however, should not be a recipe for subpar recruitment, because the recruitment process should be strictly guided by the NPSC’s Legal Notice No. 41 of 2015. The legal regulations contain general provisions, recruitment categories, gender, regional and ethnic balance requirements, functions of the NPSC in the recruitment, advertising timelines and positions to be advertised for, contents of the advertisement, composition of recruitment panels, calendar of activities for the entire recruitment process, determination of successful candidates, disqualifications, a complaints management system, training schedule and issuance of certificates upon appointment, and submission of the recruitment report to Parliament.
More importantly, Regulations 11-15 of the Legal Notice prescribe a two-tier recruitment process, where in the initial stage, interested candidates submit applications to the NPSC, which having considered education qualifications, gender and ethnic balance, et cetera, is then required to shortlist three times the number of prospective officers it wishes to enlist at each of the recruitment centers. These names are then meant to be shared with the public so that any objections about the recruitment of any individual can be brought forth. Thereafter, the NPSC is supposed to conduct verification of documents as well as medical and physical aptitude examinations. Taking into consideration how rigorous the process should be, from the time of advertisement of vacancies to when the new recruits report to training, Regulation 17 of the Legal Notice provides for a 90-day period for completion of the recruitment cycle.
Unfortunately, the NPSC and the Inspector General of Police have continued practising their traditional one-day recruitment exercises, where they focus not on intellectual aptitude, as the two-tier processes envisions, but give prominence to physical attributes. Aside from that, flawed advertisement processes, lack of public participation, cases of bribery and patronage, and the locking out of observers – who are mandated by law to have access to the entire recruitment process – continue to be the order of the day.
In July 2014, the newly established IPOA took a bold step by taking the NPSC to court after it observed incidents of corruption, fraud and massive irregularities during recruitment. IPOA sought for nullification of the entire exercise, prayers which were granted by the High Court. On appeal, IPOA’s victory was upheld by the Court of Appeal under Petition No. 390 of 2014 and Civil Appeal No. 324 of 2014 (The Recruitment Decisions). According to those in the know, the government did not look at IPOA’s actions favourably, resulting in reported cases of not-so-subtle intimidation, with strong attempts at creating factions within the IPOA board.
Unfortunately, the NPSC and the Inspector General of Police have continued practising their traditional one-day recruitment exercises, where they focus not on intellectual aptitude, as the two-tier processes envisions, but give prominence to physical attributes.
In a sad turn of events, neither the NPSC nor the Inspector General of Police seemed to have learnt their lesson. Two years later, the Kenya National Commission on Human Rights (KNCHR) released a comprehensive report titled ‘‘DisService to the Service: Report of the Monitoring of the 2016 Recruitment of Police Constables to the National Police Service’’, in which it extensively observed that police recruitment continued being marred with serious irregularities characterised by interference from the executive arm of government and a total disregard of the two-tier process, which is meant to attract a higher calibre of trainee officers.
In one of its pleadings, the KNCHR wrote, ‘‘The continuous lack of adherence to follow the two-tier process means that achieving professionalism within the National Police Service will remain a pipe dream. The recruitment process serves as the point of entry into the service, and thus any attempts at professionalising the service should begin at this level.’’
Therefore under the prevailing circumstances, where regulations are ignored at will by the highest organs of the state, IPOA will remain a lame-duck mitigating force inside a garbage-in garbage-out setup.
This report is a criminal human rights reporting project of Africa Uncensored and the Institute of War and Peace Reporting (IWPR).
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