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State Capture: The Institutionalisation of Impunity in Kenya

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The 2010 Constitution promised a brave new Kenya with clean, robust, and efficient institutions. But this promise never materialised. WACHIRA MAINA shows how state institutions, including electoral and judicial bodies, have been deliberately weakened by a system designed to protect the corrupt.

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State Capture: The Institutionalisation of Impunity in Kenya
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As Dominic Burbidge argues in The Shadow of Kenyan Democracy, the point of the aggressive avarice of Kenya’s corrupt leaders is to maintain power and privilege. This depends not just on the effective control of the Presidency and the Treasury but also on a repurposing of the machinery of government into a “temporary zone for personalised appropriation”.

The object of this repurposing’ is to gut state resources for electioneering and thus maintain power. In this dispensation, politics is a zero-sum game of “competitive aggression” in which “the principal victim” is “the state itself” and politics is “a pursuit requiring ever faster forms of enrichment”. For state capture to succeed, four things must happen.

One, oversight institutions must be eviscerated and hollowed out. This means that the offices of Controller of Budget, the Auditor General, the Kenya National Commission on Human Rights and parliamentary committees must be totally compromised and wholly ineffectual in their oversight.

Two, law enforcement and rule of law institutions (the police, the judiciary, the Ethics and Anti-Corruption Commission and the prosecution agencies) must be weakened or captured and redirected as “weapons” with which to fight political opponents.

Three, the ordinary channels of political change and accountability through periodic elections must be blocked, either by compromising the electoral management body (EMB) or through violent intimidation of political opponents.

Finally, the space for countervailing institutions to function, especially civil society and the media, must be shrunk until these pose no threat to capture. Alternatively, these institutions are also compromised and redirected to the state capture agenda.

Capture technique 1: A compromised electoral management body

In the early 1990s, the primary method for controlling the electoral process was through use of public order laws, such as banning public meetings, arresting and detaining regime opponents, and control of the EMB through the President’s power to appoint commissioners. Once appointed, the commissioners were nominally independent, but were almost immediately compromised by being allowed to draw illegal payments and allowances.

A 1996 analysis of the Controller and Auditor General’s Report for 1993/1994 by the Institute of Economic Affairs showed that the chairman and commissioners of the Electoral Commission of Kenya (ECK) had been paid Sh38,443,800 (equivalent to Sh375 million today) in sitting allowances, subsistence allowances and accommodation. They were paid whether they were on duty or not, even on public holidays. They had also been allowed to use privately registered cars that had no work tickets.

Following the interparty parliamentary group reforms of 1997, opposition parties could nominate commissioners, which expanded the composition of the ECK. In theory, this should have made the ECK more independent, but there were two problems. First, the opposition, like the ruling party, appointed reliable political operatives in the expectation that they would protect its interests in the commission. Second, once the commissioners were in place, they realised they were independent of their appointing parties and that they had unlimited opportunities to “sell” their discretion and judgment to the ruling party. The result is that since 1997, the diversion of funds and fraudulent spending at the electoral management body has ballooned, not subsided.

As an AfriCOG study shows, between 1991 and 2007, the ECK received Sh15.8 billion to run elections. Of this amount, Sh1.9 billion was paid out to commissioners in irregular payments and allowances, unaccountable vehicle hire, unsupported and wasteful expenditure, and imprests that were not accounted for.

Yet huge as these amounts are, they are nothing compared to the wastefulness of the Interim Independent Electoral Commission (IIEC) and the Independent Electoral and Boundaries Commission (IEBC). If before 2007 corruption in the ECK entailed trimming and larding expenditure heads within the budget, the period since has been characterised by open and rapacious greed that is proportionately matched by a sharp deterioration in the quality of elections.

As an AfriCOG study shows, between 1991 and 2007, the ECK received Sh15.8 billion to run elections. Of this amount, Sh1.9 billion was paid out to commissioners in irregular payments and allowances, unaccountable vehicle hire, unsupported and wasteful expenditure, and imprests that were not accounted for.

That claim is quickly demonstrated. Following the post-election violence in 2007/2008, the Independent Review Commission (IREC), better known as the Kriegler Commission, recommended wide-ranging reforms to address what it described as institutionalised impunity. Yet, within months of Kriegler’s recommendations, the successor to the ECK, the IIEC, had reverted to type, becoming embroiled in corruption on a scale that the ECK had not touched. From that moment on, the EMB would not rely on illicit payments from the government; commission staff would rig the commission’s procurement processes to enrich themselves, knowing well that they would not be prosecuted or called to account if in the process they helped the ruling party.

In this first procurement scam, senior officials of the EMB were paid handsome kickbacks by Smith and Ouzman, a security printer based in the United Kingdom whom they had contracted for the purchase of electoral materials. In a subsequent UK criminal trial for corruption, it emerged that the officials of the company had paid up to £349,057 in bribes (over Sh45 million today, referred to as “chicken” by IIEC officials and commissioners) to secure the contract for the printing of materials for the by-elections following the 2007 election and the 2010 referendum. In return for these payments, IIEC provided Ouzman with information on rival bids to enable the company to inflate printing costs. Many IIEC officials, including the chair, Issack Hassan, were lavishly entertained by Ouzman during visits to the UK.

But “chickengate” was nothing compared to the wanton procurement corruption perpetrated by the new electoral commission, the IEBC, in 2013. Every item bought for that election was corruptly procured. The principal procurement for the electronic voter identification devices (EVID) was so tainted that the Public Procurement Administrative Review Board (PPARB) would have cancelled the contract were the election not so close.

The Board was giving its decision in Avante International Technology Inc. and 2 others v. The IEBC. The case had come before the Board on the main ground that the IEBC had ignored professional advice and awarded a tender worth $16,651,139.13 (Sh1,397,724,925.51) to Face Technologies, a South African company. To do this, the IEBC had unlawfully revised an unresponsive bid by Face Technologies to make it legal. In the words of the PPARB, the IEBC had been inexplicably “magnanimous in interpreting its tender documents” in favour of Face Technologies. The IEBC had not only acted with impunity, it had from the very first been “bent on awarding the [EVID] tender to Face Technologies”. In the Board’s view, the IEBC was “waving the card of public interest as its defence in the various breaches of the procurement law”.

But “chickengate” was nothing compared to the wanton procurement corruption perpetrated by the new electoral commission, the IEBC, in 2013. Every item bought for that election was corruptly procured.

The Board said that under different circumstances, it “would have [had] no hesitation [annulling] this tender”. However, it would not do so here because that would “certainly jeopardise the holding of the forthcoming general elections”.

The IEBC’s conduct was so egregious, that the Board recommended that the “Director General of the Public Procurement Oversight Authority carry out investigations pursuant to powers conferred by section 102 of the ACECA and take appropriate action”. A special audit on the procurement of electronic voting devices for the 2013 general election by the IEBC ordered by Parliament would later prove that what the PPARB had found in the pre-election litigation was just the tip of a monstrous iceberg. It turned out that all electronics purchased for the 2013 election had been procured irregularly.

The audit found that biometric voter registration kits had also been bought irregularly. Though the Treasury had appropriated money for this procurement, the IEBC had inexplicably borrowed commercially to buy the kits. This unusual method, which echoed some of the elements of the Anglo Leasing scandal, meant that the taxpayer would pay fees and interests that ought not to have been paid. More illegalities were committed in procuring the results transmission system. The system was never inspected on delivery, leaving its functionality doubtful on election day.

On receiving the audit report, the Public Accounts Committee was so outraged it recommended an anti-corruption audit and criminal investigation of all IEBC commissioners, the committees, and of the CEO James Oswago who, in addition, they said should not only be barred from holding public office but also surcharged for paying out Sh258 million to Face Technologies without a contract.

None of these recommendations were implemented, although Oswago was replaced in 2015 by Ezra Chiloba. Most scandalous, however, were the “hefty” undisclosed amounts that the IEBC commissioners were paid at the end of 2016 for “agreeing” to retire early to pave way for reforms ahead of the 2017 election. This sweetheart deal, put together by a bipartisan committee of Parliament, signalled that impunity would be rewarded rather than punished. Though the sums were not made public, the commissioners had argued that they were entitled to all their forward pay if they were going to leave before the end of their terms.

That deal set the tone for the behaviour of the IEBC in 2017. Their attitude is already foreshadowed by their response to the recommendation of the Ethics and Anti-Corruption Commission (EACC) that the electoral management body bar 106 candidates for governor, MPs, and members of county assemblies from contesting the August 8 elections as they were unfit to hold office. None of the 106 were barred and 60 per cent of them were eventually elected.

No external audit has been done on the 2017 procurement, but an August 2018 IEBC internal audit of the 2017 general election provides damning evidence of how corrupt the electoral processes were. The internal audit reviewed 31 contracts worth Sh6.2 billion that the commission had signed. The auditors feared that taxpayers had not received value for money in ten contracts worth Sh4.6 billion.

As with previous corrupt dealings at the IEBC, the culprits were CEO Ezra Chiloba (suspended in 2018), the directorates of finance, ICT, supply chain management and legal and public affairs. The proposal to carry out the audit had generated serious internal conflict, forcing the commission to send its CEO, Mr Chiloba, on compulsory leave to allow for “a comprehensive audit of all major procurements relating to the 2017 general and fresh presidential elections”. Shortly thereafter, three commissioners – Consolata Maina, Paul Kurgat and Margaret Mwachanya – announced that they had no confidence in Mr Chebukati, the chair, and were resigning from the IEBC. They would later rescind their resignations.

As with the Smith Ouzman and Face Technologies cases, the IEBC seemed hell-bent on contracting particular firms. For example, the audit showed that the IEBC had awarded Safran Identity & Security a Sh2.5 billion contract to supply election technology for the repeat presidential election of 26 October 2017 on a Sh423.6 million performance guarantee that had expired two months earlier. At issue was not just the additional Sh2.5 billion contract that Safran Morpho received for the October 26 re-run, but also a further contract to reconfigure the 40,883 Kenya Integrated Elections Management System kits it had supplied for the August election.

Not surprisingly, Safran made hay while the irregularities sun shone. The IEBC paid Sh2.5 billion for the Safran system, two-thirds of what it had spent on the six elections involved in the August general election. Safran charged the IEBC Sh443.8 million for election day support, nearly double the Sh242.5 million it had paid for the same support in the general election. The internal audit concluded that a sum of Sh384.6 million that IEBC paid Safran for “programme and project management” was unnecessary and therefore wasteful.

As with the Smith Ouzman and Face Technologies cases, the IEBC seemed hell-bent on contracting particular firms. For example, the audit showed that the IEBC had awarded Safran Identity & Security a Sh2.5 billion contract to supply election technology for the repeat presidential election of 26 October 2017 on a Sh423.6 million performance guarantee that had expired two months earlier.

As in the 2013 election, many aspects of technology acquisition were corrupt and highly irregular. Airtel was contracted to supply 1,553 units of Thuraya IP SIMs loaded with data bundles for the results transmission system in the areas without 3G and 4G networks – 11,115 polling stations in all. The company could only supply 1,000 by election day. The additional 553 units were supplied after the election.

Oracle Technology Systems (Kenya) Ltd provided database and security solutions at a cost of Sh273.6 million without a signed contract. Scanad Kenya Ltd got the contract for the IEBC’s “strategic communication and integrated media campaign consultancy services”, even though its price was more than twice the Sh350 million budget earmarked by the IEBC. Africa Neurotech was contracted to install IEBC data centre equipment at a cost of Sh249.3 million, an amount almost double the IEBC budget of Sh130 million. The data centre equipment was not ready on election day.

Further details about the extent of impunity within the IEBC come from the lawsuits filed against it concerning the procurement of electoral equipment and materials just before the elections. In early 2017, the IEBC single-sourced Safran Morpho to provide election equipment, the same controversial French company with which the IEBC had negotiated a tripartite agreement to buy biometric voter registration (BVR) kits for the 2013 election. As in 2013, the IEBC argued that its single-sourcing decision was necessitated by the limited time left to comply with the election timetable, a problem that they said had been compounded by interminable litigation. Safran Morpho has a chequered history and due diligence might have ruled them out. In the USA, its subsidiary has been accused of misrepresenting the firm’s track record. In 2013, Safran was fined $630,000 by a French court after being found guilty of bribing public officials in Nigeria to win a Sh17 billion identity cards tender.

Given these experiences, the inevitable question then is: why are electoral management bodies in Kenya allowed to be this unaccountable? Who benefits from a criminalised EMB? The answer lies in the ability of the EMBs to give “state capture” formal legitimacy: so long as the country goes through the formalities of an election that international observers can say “broadly reflects” the will of the people (whatever that means), electoral management bodies can be rapacious in cannibalising their budgets and the governments they help put in power can be trusted to look the other way.

Capture technique 2: Undermining law enforcement

Effective law enforcement institutions, especially an effective and honest police service, a functional, independent and accountable judiciary, and a professionalised office of the Director of Public Prosecutions (DPP), are central to fighting corruption effectively. None of these institutions are wholly accountable or fully functional. The police remain unreconstructed and, if the evidence revealed by the police vetting exercise is anything to go by, also unrepentant.

The office of the DPP has been haphazard in prosecuting; it appears to be picking cases for prosecution for reasons that appear patently political, fumbling cases involving the “big fish” and generally being assiduous on those that involve “small fry”. The judiciary seemed on the mend after 2010 when the new constitution came into force but since then things have gone awry: judicial vetting failed to fully root out corruption, bribery has crept back and though some of the excesses of the past have not returned, a clean judiciary is still a long way off. On the whole, the government’s attitude to law enforcement is consistent with the logic of state capture: control and compromise the police and the DPP and weaken the harder-to-control judiciary.

The police: A vertically-organised criminal syndicate

It serves state capture if politicians are wilfully blind to police corruption. In Kenya, police “palm greasing” at traffic stops is so routine that drivers arrive with the bribe already folded, ready to be slapped onto the palm, or slipped into the pocket of the traffic cop. Presidents are often excused from the predations of the police but their responsibility and that of their government was explained many years ago by William of Pagula: “For, one who permits anything to take place that he is able to impede, even though he has not done it himself, has virtually done the act if he allows it.”

The stability of state capture rests on uniting the interests and fates of low-level operatives with those of their bosses. In the case of the police, recruitment into the police service is a grant of a preloaded cash machine. This, in part, is what the recent police vetting revealed. The vetting proved that what Sarah Chayes observed of Afghanistan is true of Kenya, namely that the conventional wisdom that corruption involves doling patronage downwards to juniors is wrong-headed. Instead, it is subordinate officials who pay off the top in return for “unfettered permission to extract resources for personal gain, and second, protection from repercussions”. The critical point is that this whole system depends on “faithful discharge, by senior officials, of their duty to protect their subordinates” and this implicit contract holds, “much as it does within the mafia, no matter how inconsequential the subordinate might be”.

The mechanics of police corruption can be seen in the police vetting exercise undertaken by the National Police Service Commission (NPSC). As one newspaper account sarcastically noted, top cops often seemed hard pressed to cite a major crime bust but the state of their bank accounts showed them to be men of great business acumen, a fact that would alone “put Kiganjo Police Training College at par with the region’s top business schools in producing entrepreneurs of note”.

The stability of state capture rests on uniting the interests and fates of low-level operatives with those of their bosses. In the case of the police, recruitment into the police service is a grant of a preloaded cash machine.

Officers’ bank records show deposits of hundreds of thousands of shillings monthly, mostly from “businesses” that they and their spouses own or from “convenient” sales of assets that they previously owned. Many were Jacks of all trades, running businesses that run the gamut from chicken farming, residential and commercial rentals and fish farming.

That no major shakeup of the police has followed from this much-publicised vetting shows that this high profile “stagecraft” was cynical “busywork” (both Chayes’ words) to manage the expectations of a disillusioned public. So, in the end, a hapless public finds itself caught between an abusive police service and a predatory government of which it is an accomplice. The police vetting process eventually petered out and left in its wake as much confusion as the interest it had piqued. Many of these entrepreneurial officers are still in the police force, still pursuing their sprawling business interests. Who benefits from a compromised and corrupt police force?

Anti-corruption commissions a waste of public money

Since President Uhuru Kenyatta announced his new anti-corruption drive, the Ethics and Anti-Corruption Commission (EACC) has become busy. However, neither the EACC nor its forerunners have demonstrated the will to fight corruption. Since its establishment under the 2010 Constitution, the EACC has never exercised the authority that Kenyans would like to see it exercise. Some of the problems of its ineffectiveness have to do with its own sloppiness: poor investigations, underhand investigatory methods and a penchant for the dramatic gesture. That has also been compounded by lack of political support and internecine conflict between the commission and the office of the DPP.

The combination of its own weaknesses and lack of political support means that the EACC is rarely taken seriously. As already noted, its 2017 recommendation that the IEBC bar 106 candidates was ignored. The EACC blames the IEBC for this debacle; in truth, both commissions have been ineffectual and are often implicated in corruption themselves.

The modus operandi of the EACC, which has damaged its credibility and undermined its ability to lead the fight against corruption, is to launch an investigation in the glare of publicity and make sweeping claims that it is generally unable to later substantiate. The question is why successive anti-corruption commissions have been allowed to continue operating in this manner. The answer is another question: who benefits from this?

The judiciary: Partly reformed and easy to sway for state capture purposes

As the ill-fated indictment and prosecution of Kamlesh Pattni in the 1990s Goldenberg scandal showed, the judiciary was a central pillar of the repressive and corrupt dispensation replaced by the 2010 Constitution. By the year 2000 the judiciary was universally condemned as both corrupt and incompetent. The few honest judges faced myriad problems: lack of research support; poor record keeping occasioned by insufficient stenographers and electronic recording devices; a huge and ever-growing backlog of cases; biased and politicised allotment of benefits to judicial officers, especially cars and houses; and highly politicised appointments and promotions awarded by the President, nominally with the advice of the Judicial Service Commission (JSC), but in practice, at his own discretion.

The combination of its own weaknesses and lack of political support means that the EACC is rarely taken seriously. As already noted, its 2017 recommendation that the IEBC bar 106 candidates was ignored. The EACC blames the IEBC for this debacle; in truth, both commissions have been ineffectual and are often implicated in corruption themselves.

Shortly after the election of President Mwaii Kibaki in 2003, the then Minister for Justice, Kiraitu Murungi, launched what he termed “radical surgery” – a high profile process of identifying and purging corrupt judges and magistrates from the judiciary. It soon proved neither radical nor surgical. The reforms were based on an investigation carried out by a former law partner of the justice minister. Thus, congenitally politicised, radical forgery failed to mollify critics who saw it as a Kibaki plot to remove President Daniel arap Moi’s judicial cronies to make room for friends of the new government, rather than a root and branch reform of Kenya’s decrepit judiciary. This criticism was overdone. However, the minister’s best intentions had no base in statute and without this radical surgery merely mortgaged judicial reforms to the factionalism that was then tearing apart the ruling coalition.

Eventually, over 80 magistrates and 23 judges were removed for corruption-related reasons, but by 2006 not a single judge had been found guilty by any of the many tribunals established to investigate them. In one particularly notorious case involving Justice Philip Waki, who would later lead the investigation into the 2007/2008 post-election violence, the tribunal was scathing about the methods that Justice Aaron Ringera had used: unsafe reliance on clearly unreliable witnesses; failure to talk to the affected judge and overlooking innocent explanations related to the claims made. More importantly, radical surgery left many judges in place who would be later be dismissed as unfit to hold office.

The result of this unsatisfactory purge was that there was still much left to do when the 2010 Constitution came into force. The constitution adopted a two-pronged approach to dealing with corruption and judicial failure. The first was institutional design and the second was vetting of incumbent judges and magistrates.

The institutional reforms reorganised the powers, functions and composition of the judiciary, strengthened the JSC and created a Supreme Court. Vetting was based on Article 23 of the Sixth Schedule to the Constitution and the Vetting of Judges and Magistrates Act. The aim of vetting was to clean up the judiciary, partly to create a more accountable judiciary by removing the bad apples and partly to provide a transitional justice mechanism that would eliminate institutionalised impunity.

Once it got going the vetting proved (as the police vetting was to subsequently prove) both ineffectual and inadequate; ineffectual, because the vetting mechanism was congenitally defective in that some aspects of vetting were challenged in court and heard by judges who were themselves yet to be vetted. It is not surprising then, that the effect of this litigation was to constrict the wide mandate and discretion initially given to the Vetting Board. In addition, the timetable for vetting was hopelessly optimistic and had to be extended several times through amendments to the law. The resulting legislative delays slowly punctured the Vetting Board.

In theory, the vetting helped to clean out the courts, but it is hard to know what to make of statistics. It seems as though there were, in effect, two vetting processes: vetting as understood by the Vetting Board and vetting as interpreted by the courts. One out of every three first instance decisions made by the Board was reversed on review in both the High Court and the Court of Appeal. Among the magistrates, about 45 per cent of the Vetting Board’s first instance decisions of unsuitability were reversed.

The Vetting Board would eventually run into more serious problems: the “scope of vetting” was dramatically reduced by the Supreme Court. The Supreme Court said that the Board could only vet judges and magistrates for conduct that occurred between the date of appointment and 27 August 2010, the day the 2010 Constitution was promulgated. This had far-reaching consequences. All the decisions of the Vetting Board that found judges and magistrates unsuitable on account of acts committed before they were appointed, or for acts committed after 27 August 2010, were effectively nullified.

The Board was now obliged to send all cases related to the post-August 2010 period to the JSC. In the end, judicial vetting never met its twin objectives of cleaning up the judiciary and fully restoring public confidence in the courts. That it failed to clean the judiciary explains the persistence of judicial corruption and resistance to reforms – periodically explained as “cartels fighting back”. That vetting failed to restore public confidence explains why the judiciary gets lukewarm public support when it is dismissed by politicians as “activist” or “captured by NGO or opposition interests”.

Why did vetting fail to achieve its purposes? To begin with, the vetting law was too restrictive. In retrospect, the law could have been more robust than it was. One of its main weaknesses was that it gave no immunity to people who had ever given or been asked for a bribe by a judicial officer. Without immunity from prosecution, witnesses had effectively been denied the means with which to prove corruption. That left the Board with the unenviable task of inferring bribery from unexplained deposits in the judges’ and magistrates’ bank accounts, very much like in the police vetting exercise.

Secondly, the Supreme Court’s formalistic reading of the Vetting Act (i.e. limiting the relevant period of acts committed between appointment and the constitution’s effective date) undermined the broad purpose of the statute, which was to remove undesirable individuals from the judiciary. That decision created more problems than it solved. One, it allowed judicial officers known to be unfit to continue in office, which itself was a serious blow to public confidence. Two, it introduced unnecessary unevenness – some might even say discrimination – into the vetting process for those who had already been vetted. Three, it saddled the JSC with what in effect were vetting decisions, thereby mixing transitional justice issues, which is what the vetting was about, with the core mandate of the JSC, which is more prospective.

Thirdly, it was wrong in principle that many aspects of the vetting process were litigated before judges who had not themselves been vetted, that is, before judges with a personal stake in limiting how deep and wide the vetting went. This eroded public confidence in the integrity of the vetting exercise although the reason for vetting in the first place was the need to restore public confidence in the courts.

Why did vetting fail to achieve its purposes? To begin with, the vetting law was too restrictive…One of its main weaknesses was that it gave no immunity to people who had ever given or been asked for a bribe by a judicial officer. Without immunity from prosecution, witnesses had effectively been denied the means with which to prove corruption.

Fourthly, the Vetting Board compounded its own problems. It decided that in deference to the seniority of judges of the Court of Appeal it would sit en banc, that is, as a full bench rather than in small panels of three, when it came to scrutiny of the judges of that court. The result was bizarre: the Board would sit in one capacity to vet a particular judge and if that judge was dissatisfied with that decision, he would then seek a review, which would be heard by the same full panel of the Vetting Board. Some lawyers saw no problem with this, arguing that the Board’s review power was no different from the power of an apex court to review its own decisions. Yet again, the question was whether the public would appreciate what seems on the face of it to be a rather otiose legal argument and whether this did anything for the public’s confidence in the vetting exercise.

The result of these partial measures is that the judiciary retains many of its bad old ways, which are now being used to undermine “the good guys”. The government now blames corruption in the judiciary as the greatest barrier to anti-corruption reforms, discounting the shoddy, compromised investigations often carried out by the police, and the ineffectual and often politically targeted prosecutions by the State Law Office. As with the other aspects of law enforcement, the question is: who benefits when the courts are perceived as compromised or untrustworthy?

Kenya’s anti-corruption efforts: Motion without movement

Given this analysis, it is clear that the latest anti-corruption efforts can be summarised as the “tried, tested and known-to-be ineffective” approaches of the past. This means that although it is good to have an energetic public prosecutor in office and that the EACC has bestirred itself, this won’t be enough. The lynchpin of the government’s approach to fighting corruption is, like the Goldenberg scandal, high profile arrests followed by quick indictments.

Some people are impressed that some big names have already been scalped: former Sports Cabinet Secretary, Hassan Wario, former Principal Secretaries Lillian Omollo, Richard Ekai and Richard Lesiyampe, present and former Kenya Power bosses Ken Tarus and Ben Chumo, Kenya Railways boss, Atanas Maina, chairman of the National Land Commission, Mohammed Swazuri and senior managers at the National Cereals and Produce Board. These arrests have generated much excitement but this excitement is premature. Kenya’s prosecution-driven anti-corruption strategy has always been rather benign; it is “capture-mark-release”, a bit like the ecological methods of estimating the population in an ecosystem. It is never meant to harm the corrupt.

This is Part 2 of an abridged version of State Capture: Inside Kenya’s Inability to Fight Corruption, a report published by the Africa Centre for Open Governance (AfriCOG) in May 2019.

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Wachira Maina is a constitutional lawyer based in Nairobi, Kenya.

Politics

What Ails the Cashew Nut Sector in Kenya?

The lack of a focused policy since the 1990s has pushed the cashew nut sector into perennial decline. The sector’s disintegration started when the state-owned Kenya Cashewnut factory ollapsed in 1997 – a time when the political environment was not inclined to rescue a sector that had been a lifeline for thousands of Kenya’s coastal residents.

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What Ails the Cashew Nut Sector in Kenya?
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Lake Kenyatta Cooperative Society (LKCS) in Mpeketoni in Lamu – perhaps the only remaining cooperative society in Kenya’s coast region formed by cashew nut farmers in the 1970s – once collected 9,000 metrics tonnes of cashew nuts from its members during the sector’s heydays in the 1980s. Currently, despite boasting a membership that has stretched to over 6,000, the cooperative does not expect to collect anything beyond 300 tonnes this year. This is the volume it managed to collect in the last calendar year.

From a peak harvest of over a total of 36,000 tonnes in the late 1970s, when the cashew nut sector was at its highest peak, the sector is today struggling to even produce 11,000 tonnes.

Cashew nut farming and processing was once a thriving undertaking in Kenya. After nationalising the economy shortly after independence, the government of Jomo Kenyatta took full control of the cashew nut sector, which was dominated by Mitchell Cotts, a shipping giant. In 1975, the government formed Kenya Cashewnut Limited (KCL) and established a large-scale processing factory in Kilifi, with a capacity to process 15,000 metric tonnes of cashew nuts per year.

The National Cereals and Produce Board (NCPB), one of the shareholders of the newly created KCL, was granted legal monopoly to buy all the cashew nuts from farmers. Other shareholders of KCL were the Industrial and Commercial Development Corporation (ICDC), the Industrial and Development Bank (IDB) and the Kilifi District Cooperative Union (KDCU).

Farmers were organised into many cooperatives across the coast – big ones such as LKCS and KDCU and also small ones. To be able to pay farmers in time for cashew nuts collected, KCL pre-financed NCPB. The factory would determine its raw material requirements and the excess would be exported in shell to India. Essentially, the factory guaranteed a stable farm gate price and provided a predictable and reliable market.

In post-independence Kenya, market stability saw the sector expand production from about 5,000 tonnes in 1965 to over 36,000 tonnes in the late 1970s and early 1980s. In 1982, KCL made a net profit of Sh26 million (US$325,000), up from Sh3 million (US$37,500) in 1975 – nearly a ten-fold increase in just seven years.

At its peak, the KCL cashew nut factory employed over 4,000 people. During this period, coastal residents were able to send their children to good schools, raise their incomes, and develop local micro-economies.

Dwindling fortunes

Those heydays didn’t last for long though. In the 1980s, President Daniel arap Moi and his cronies started engaging in rent-seeking from parastatals in order to sustain a regime that was under threat.

By 1989, KCL got caught up in governance and financial challenges, and in February 1990, it rendered a large chunk of its employees jobless. At the same time, powdery mildew disease (PMD), which had not been witnessed before, hit crop yields and production. The resultant dwindling economic fortunes of KCL meant that it could not provide extension services to the cashew nut farmers, which spelt doom for the sector.

In post-independence Kenya, market stability saw the sector expand production from about 5,000 tonnes in 1965 to over 36,000 tonnes in the late 1970s and early 1980s. In 1982, KCL made a profit of Sh26 million (US$325,000), up from Sh3 million (US$37,500) in 1975 – nearly a ten-fold increase in just seven years.

When the disastrous 1990s’ World Bank-led Structural Adjustment Programmes (SAPs) hit the country, they found an already struggling cashew nut sector. By November 1992, the Parastatal Reform Programme Committee (PRPC) recommended the sale of 65 per cent of the shares the government held in KCL through NCPB, ICDC and IDB.

The PRPC recommended that Kilifi District Cooperative Union (KDCU), the owner of the remaining 35 per cent of the shares, be granted pre-emptive rights to buy the 65 per cent government shares. A parliamentary committee would later discover that partly due to the high cost involved in buying these shares, the three main directors of the KDCU had decided to strike a deal with some of President Moi’s closest business friends.

A Ministry of Agriculture report in 2009 noted that with a value of Sh141.2 per share, the 65 per cent share of the government was valued at Sh78 million (US$1.34 million). Debts acquired by the KCL in previous years that were owed to NCPB, ICDC, the Treasury, and the Italian government amounted to over Sh118 million (US$2.03 million). The company also owed Sh33 million (US$0.56 million) in redundancy payments to former employees. In total, the KDCU would have had to invest roughly US$4 million to finance the acquisition of the company – money it did not have. This is how private money was used to buy government shares in KCL.

In 2000, the Public Investments Committee (PIC) recommended that the factory be handed back to the farmers. The same year, a subsequent cashew nut report tabled in Parliament by PIC noted that the factory’s shares were illegally acquired by Moi’s cronies, including the president’s personal secretary, Joshua Kulei, who was accused of having defrauded the farmers.

A Ministry of Agriculture report in 2009 noted that the actual majority shareholders had the KDCU appoint themselves as the management agents of the factory, which was renamed Kilifi Cashew Nut Factory Limited (KCFL), and which was under the management of P.K. Shah, who took complete de facto control of the day-to-day business of the factory.

In 1996, the KDCU received a loan of Sh2 million (US$ 35,000) from its main owner, Kenya Plantations and Products Limited, to purchase raw cashew nuts (RCN) – which it secured with its 23 per cent shares, valued at a much higher Sh28.07 million in 1992 – as collateral for the loan. When it failed to pay back the loan, these shares were transferred to private investors.

Eventually, in 1997, KCL collapsed under its financial and operational burden. Unable to service an outstanding loan of about Sh95 million, Barclays Bank placed the factory under KPMG- managed receivership in 2000, and on 8 May 2002 sold all its assets, including the plant and machinery, to Millennium Management Limited (MML) for Sh58 million (US$ 0.97)

In just a few years, the marketing monopoly that the NCPB enjoyed and the logistical machinery it had put in place to procure cashews came a cropper. The board completely withdrew from marketing cashew nuts. This decision led to the disappearance of key functions, such as financing cooperatives and reliably supplying KCL with affordable raw cashew nuts.

The lack of a focused policy in the last three decades has pushed the cashew nut sector into a perennial multi-year production and profit decline. The sector’s decline and disintegration started when the state-owned KCL collapsed in 1997 – a time when the political environment was not inclined to rescue a sector that had been a lifeline for thousands of Kenya’s coastal residents.

New players  

With the stake of the factory diminished, and the end of its monopoly in cashew nut matters, exporters of raw cashew nuts emerged. These exporters were able to offer significantly higher and faster payments due to the high rebates they enjoyed for exporting raw materials that would in turn create jobs in the importing countries.

By buying through middlemen – who became the sector’s main players – the new market structure undermined the role of cooperative societies that had enjoyed state-sanctioned market support. They could not survive and all but collapsed.

The first main processor, Wondernut Ltd, came into the country in 2003. Kenya Nut Company (KNC), owned by Pius Ngugi, and Equatorial Nuts, owned by Peter Munga, which predominately deal in macadamia nuts from the Mount Kenya region where their factories are based, made forays into processing cashew nuts as well.

In just a few years, the marketing monopoly that the NCPB enjoyed and the logistical machinery it had put in place to procure cashews came a cropper. The board completely withdrew from marketing cashew nuts. This decision led to the disappearance of key functions, such as financing cooperatives and reliably supplying KCL with affordable raw cashew nuts.

With the Kilifi Cashew Nut Factory (partially revived by MML) and the later entry of another Central Province macadamia processor, Jungle Nuts, the number of active cashew processors in Kenya had expanded to five.

Even so, these five processors had to compete with the well-established exporters of raw, unprocessed nuts who had gained favour with farmers due to their market flexibility and higher prices. In the 2007/8 season, for instance, exporters of raw cashew nuts went on a buying spree that saw the share of processed export nuts drop by over 20 per cent that season. This posed a huge threat to local processors.

Despite a total ban on the export of raw cashew nuts in 2009 (which nut processors had called for) the industry has gone horribly wrong in the last decade. In their call to the government to ban exports, the nut processors argued that the ban would allow them an opportunity to gather enough harvest to enable them to utilise their excess installed processing capacity.

A baseline survey that had been done on the crop in 2009 by the Institute of Development and Business Management Services (IDS) on behalf of the Micro Enterprises Support Programme Trust (MESPT), a value chain government initiative, had revealed a sector reeling in distress.

This is the situation that the sector found itself in 2009 when the Nut Processors Association of Kenya (NutPAK) – the result of processors pulling together resources – was formed to lobby for the industry’s protection, with a keen focus on the export ban.

Despite a total ban on the export of raw cashew nuts in 2009 (which nut processors had called for) the industry has gone horribly wrong in the last decade. In their call to the government to ban exports, the nut processors argued that the ban would allow them an opportunity to gather enough harvest to enable them to utilise their excess installed processing capacity.

William Ruto, the current Deputy President who was then the Minister of Agriculture, met stakeholders in the cashew nut industry at Pwani University in Kilifi in March 2009. He ordered a Cashew Nut Revival Task Force (CNRTF) on 9 April 2009 to submit a report by the end of April and to come up with recommendations on measures to be taken to revive the cashew industry. John Safari Mumba, the former Managing Director of KCL and former MP for Bahari Constituency, and then the Chairman of the Kenya Cashew Growers Association, led the four-member task force.

When the task force finally submitted its report based on views it received from various players, it recommended banning the export of raw nuts.

That same year, Ruto heeded their call and pronounced an export ban on RCN after the four-member task force hastily collected views from the industry’s key players. On 16 June 2009, barely one month after the task force’s report had been submitted, Ruto published “The Agriculture (Prohibition of Exportation of Raw Nuts) Order, 2009” banning the export of raw cashew and macadamia nuts.

The government also announced that all nuts would be sold through the NCPB, which was then struggling to buy maize from farmers. It would later sell the produce to processors.

The population of cashew nut trees then stood at about 2 million, with 20 per cent of them beyond the production age and more trees projected to graduate to the unproductive age bracket in just a couple of years. Inadequate crop husbandry, the IDS study further revealed, saw farmers exploit less than a half of the total crop’s potential.

A disorganised nut market that followed the exit of KCL and the coming up of new entrants (largely exporters of RCN who relied mainly on brokers), affected the growth of the crop’s production and productivity since these traders would only emerge during the harvest season and did nothing to promote the crop. The exporters of RCN shifted base to neighbouring Tanzania, one of the world’s leading producers of cashew nuts that exports most of its nut produce raw.

Cashew nut woes

Fast forward to the 2010s. A statistic by the Nut and Oil Directorate shows that the area under cashew nut production went down from 28,758 hectares in 2015 to 21,284 hectares in 2016. Production also declined from 18,907 tonnes to 11,404 tonnes in the same period, with the value of the crop recording Sh398 million compared to Sh506 million in 2015. This was attributed to crop neglect and logging of cashew nut trees for charcoal and to pave way for other crops.

In the absence of farmers’ groups, a poorly structured NCBP and lack of enough collection centres in the cashew catchment areas, NCPB was not able to buy the nuts, so middlemen continue to dominate the scene to date.

To address these shortcomings, the sector’s stakeholders, led by the Provincial Director of Agriculture, formed a multi-sectoral task force to lead in revitalising the sector. Its other members included NutPAK, Cashew Nuts Growers Association and Kenya Agricultural Research Institute (KARI), which was to lead in production expansion.

The task force set out a cashew nuts revival programme that included increased production, streamlining the marketing system to rid the sector of middlemen and setting up minimum farm gate prices, among other measures. However, due to financial challenges, especially for the growers association, the team’s initiatives were not realised.

In the absence of farmers’ groups, a poorly structured NCBP and lack of enough collection centres in the cashew catchment areas, NCPB was not able to buy the nuts, so middlemen continue to dominate the scene to date.

The matter was made worse in 2013 when the agriculture function was devolved and the task force initiatives lost the support of the Ministry of Agriculture, which dealt a devastating blow to its programmes. Unfortunately, the foundation it had sought to build since 2010 was not transitioned to county governments in cashew catchment areas after devolution.

The county governments have continued to under-fund the cashew nut sector and lack strong policy guidelines to promote the sector. Last year, Kwale County allocated only Sh1.5 million to promote procurement of cashew seedlings in a programme that was being funded by the European Union (EU) to increase production in Lamu, Kwale and Kilifi counties. The EU injected Sh240 million through Ten Senses Africa, which was meant to plant 333,333 trees in each of the three cashew-producing counties.

The main processors have scaled down operations in the cashew nut sector. Most of them are located in the Mount Kenya region, where they have mainly focused on macadamia nuts. The ban on the export of raw cashew nuts favoured the macadamia sector, which has recorded a five-fold increase to reach a production of 50,000 metric tonnes per year.

The industry has thus been left to new entrants but there are strong indications that it still has potential, if well supported. In 2019, for instance, the total estimated area under cashew growing was reported to be 22,686 hectares, which is a marginal improvement from the 22,655 hectares reported in 2018, due to efforts to plant new seedlings.

The sector’s revival

The COVID-19 pandemic has simply worsened the cashew export market. This decline has been exacerbated by rare new pests, and a disorganised free-for-all market that has dampened supplies for cashew cooperatives and nearly sealed the sector’s fate.

LKCS’s chairman, David Njuguna, doubts that the cooperative will be able to offer a farm gate pre-2019 price of Sh30 a kilo once the farmers dispose of the harvest they are still hoarding. According to his estimates, a highly compromised cashew nut quality this year means that farmers will only be able to recover 34 per cent from their entire harvest. This can be attributed to poor crop husbandry, thanks to the low price the crop has been fetching, thus denying farmers the capacity to profitably commercialise the sector.

Mumba led a task force in 2009 that formulated seven clear recommendations that were to be carried out before the ban was effected:

  1. To revive the cashew nut industry, the Ministry of Agriculture should first establish a cashew nut revitalisation desk with immediate effect to coordinate the task report’s recommendations;
  2. The ministry should with immediate effect establish a regulatory apex body for the development of the cashew nut industry to be named the Kenyan Cashew Nut Development Authority (KECADA);
  3. KECADA should initiate the process of formulating a cashew nut policy independent from other crops;
  4. Immediately following the formation of KECADA, regulation for a minimum farm gate price should be put in place;
  5. The government, in conjunction with KECADA, should establish funds to support farm input subsidies, as well as guarantees for public-private partnerships financing cashew farmers;
  6. Former farmers’ cooperatives should be revived; and
  7. Most importantly, only once these recommendations have been put in place (particularly the minimum price), should the government consider implementing an export ban on raw cashew nuts, which should be reviewed regularly regarding its effects.

By putting together the right structures and policies, both the national and county governments can bring this important cash crop back to its former glory.

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Why Cash Transfers Are an Efficient Method of Reducing Food Insecurity

With high levels of mobile phone and internet penetration, coupled with advanced digital technologies in the financial sector, Kenya has favourable conditions for cash transfers to the most vulnerable populations. However, corruption and lack of reliable data on beneficiaries can derail efforts to make all Kenyans food secure during and after the COVID-19 pandemic.

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Why Cash Transfers Are an Efficient Method of Reducing Food Insecurity
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As governments across the globe continue to grapple with the economic effects of COVID-19, many are faced with the additional burden of guaranteeing food security for millions of their citizens. Restrictions in movement and other social distancing measures adopted to contain the spread of the virus have put a significant strain on food supply chains, both at production and distribution links. As a result of this, millions have been pushed to the brink of hunger. The United Nations estimates that up to 265 million people will face acute food shortage by December 2020, a sharp increase from earlier predictions of 135 million people. A disproportionate share of these people live in low- and middle-income countries where shock-responsive social safety nets are inadequate or poorly managed.

In Kenya, long before the World Health Organisation (WHO) declared COVID-19 a global pandemic, an estimated 1.3 million Kenyans were already facing acute food shortage as a result of prolonged droughts, extended long rains well into the harvesting season and a locust infestation not witnessed in a decade.

On 13th March, after the country reported its first case of the virus, the government instituted containment measures in the interest of public health. This further disrupted food supply chains and consequently put a strain on the country’s food systems. Stay at home advice, a night curfew, closure of non-essential social spaces and social distancing requirements have reduced economic activity resulting in job and income losses. The resultant reduced household purchasing power further propelled more households into crisis food shortage.

Further, and with schools closed, millions of students who benefit from school feeding programmes are losing out on this benefit, with parents having to fully take on an all-day feeding responsibility. The World Food Programme (WFP) now projects that a total of 5 million Kenyans will require food and livelihood assistance as a result.

Three months into the pandemic, we can already see a deacceleration of philanthropic acts to provide food supplies to the most vulnerable populations compared to the early days of the pandemic, an indication that private charity, while important, is not adequately prepared to address the need and is not sustainable. Given the uncertainty of when a vaccine will get to the market and when we will see the resumption of normalcy, it is expected that millions will require food assistance and government and private philanthropy will need to better coordinate this assistance and ensure that households remain food secure during this pandemic.

Food packages vs cash transfers

According to the Kenya Food Security Steering Group, despite the adverse climatic shocks, Kenya’s food availability remains stable as a result of a favourable harvest due to above average short rains towards end of the year in most agricultural areas. COVID-19, however, presents a challenge of affordability for many households, who no doubt will require food assistance.

However, how can governments, development agencies and philanthropists provide this assistance in a manner that provides choice, flexibility, and dignity to those that need it and in line with their individual circumstances?

Three months into the pandemic, we can already see a deacceleration of philanthropic acts to provide food supplies to the most vulnerable populations compared to the early days of the pandemic, an indication that private charity, while important, is not adequately prepared to address the need and is not sustainable.

How do we put people at the centre of this assistance by not only providing food, but promoting financial inclusion of the poorest and most vulnerable during this pandemic? How do we ensure that the nutritional needs and requirements of the vulnerable are not generalised and reduced to a few food and other household items? How do we move away from paternalistic tendencies that have long viewed hunger as a question of charity rather than one of justice? Who decides what food items a given household requires in comparison to the rest?

These questions require reflection on the forms and manner in which food assistance can be provided. Should we provide households with food packages or should we provide cash transfers?

In determining a suitable approach, we will need to be cognisant of the unique challenges COVID-19 throws into this long-standing debate of food packages vs cash transfers in development circles. Firstly, and from an epidemiological standpoint, there is a need to reduce social contact as much as possible to ensure food distribution does not become a conduit for virus transmission. Secondly, it is worth noting that the pandemic is causing involuntary stay-at-home, therefore disengaging many from meaningful economic activities, and thereby creating COVID-induced dependency.

This group is particularly of concern given that there is no telling how long they will require assistance even when restrictions are eased. As such, cash transfers remain a lifeline for many as they allow people to navigate through the pandemic and rebuild their lives after the crisis. Thirdly, given the reduced household purchasing power and the resultant decreased demand in household and food items, cash transfers can be an effective tool in turning food need into an effective food demand to sustain supply chains, particularly among downstream smallholder farmers. This, however, needs concerted efforts to ensure distributional links, particularly to small open-air markets, as a majority of lower-income households in urban areas depend on these markets for their food supplies.

Interventions to ensure that households remain food secure will, therefore, need to provide households with flexibility and choice in determining food and other household items that meet their unique circumstances. Choice will need to be devolved to the household level and not left to the imaginations of benefactors – government or private.

Cash transfers have proven to do exactly this by increasing household expenditure, particularly food expenditure, thereby enabling households to meet their unique and diverse dietary requirements, improved health and nutritional outcomes and other outcomes, such as savings and investments. The 2015/16 Kenya Integrated Household Budget Survey (KIHBS), for instance, shows that food remains a high expenditure item at the household level, with 33.5 per cent of cash transfers received from within Kenya used on food items, only preceded by education, at 44.6 per cent.

However, food consumption is higher in rural households compared to education spending, at 38.9 per cent and 38.2 per cent, respectively. Further, the survey shows a higher proportion of food expenditure in female-headed households compared to male headed households, especially in the rural areas, at 41.8 per cent and 35.2 percent, respectively.

In addition to providing beneficiaries with choice, cash transfers have a positive spillover effect of stimulating local markets to the benefit of downstream local producers and retailers. However, in determining amounts for disbursement, it is worth ensuring these are informed by household food consumption rates to sufficiently cover food needs.

Granted, food packages bear the benefit of cushioning beneficiaries against commodity price spikes, especially where markets are disintegrated and retail prices are vulnerable to erratic price changes. But on the flip side, they often limit dietary diversity and may fail to respond to disparate nutritional needs across households, especially those with infants, young children, lactating mothers, pregnant women, and the elderly. Food packages normally contain food items with long shelf life (i.e. cereals, rice, maize, wheat flour, salt, cooking oil and other household items), often leaving out short shelf life items, such as milk and other dairy products, that have essential nutrients for household members with unique nutritional requirements.

The 2015/16 Kenya Integrated Household Budget Survey (KIHBS), for instance, shows that food remains a high expenditure item at the household level, with 33.5 per cent of cash transfers received from within Kenya used on food items, only preceded by education, at 44.6 per cent.

Administratively, food packages present logistical challenges in distribution, and depending on the approaches of distribution, may be inconsistent with measures to curb the further spread of the virus. For instance, social distancing measures require minimal social contact, yet distribution of food packages require social proximity, which makes these packages possible conduits for virus transmission.

Additionally, food packages are prone to mismanagement by those responsible for distribution. When factored in, the cost of corruption may significantly impact the overall cost of food distribution. For instance, a 2011 World Bank review of India’s Public Distribution System (PDS) showed that 58 per cent of food did not reach the intended beneficiaries.

In contrast, because cash transfers are distributed through mobile money, not only are the administrative costs of this form of assistance reduced, but cash transfers provide a transparent framework for distribution, thereby minimising misappropriation.

Cash transfers have their limitations too. Targeting of the most deserving beneficiaries may be a challenge where accurate identification and validation of beneficiaries is hampered by lack of reliable data.

Strong digital infrastructure

Kenya’s ICT sector has rapidly grown over the years, placing the country’s mobile phone and internet penetration at 91 per cent and 84 per cent, respectively, which is above Africa’s average of 80 per cent and 36 per cent, respectively. Although variations exist in mobile ownership between rural and urban populations, at 40 per cent and 60 percent respectively, Kenya still fairs relatively well in reaching rural populations. On the gender front, more females (10,425,040) than males (10,268,651) own a mobile phone, according to the 2019 Kenya Population and Household Census.

Kenya’s digital payment infrastructure is equally advanced, making it a global leader in mobile money usage. Data from the Central Bank of Kenya shows that as by December 2019, there were 58 million active mobile money accounts and 242,275 mobile money agents across the country. In 2019, Kenyans transacted a total of Sh4.35 trillion (almost half the country’s GDP) through their mobile phones. According to the KIHBS 2015/16, mobile money transfer was used more by households in rural areas compared to those in urban areas, at 46.2 per cent and 38.9 per cent, respectively, an indication of the effectiveness of mobile money- enabled cash transfers in reaching the most vulnerable.

To further deepen reach and ensure vulnerable populations, such as the elderly, women and remote populations, are reached, there is a need for the government and mobile phone operators to temporarily relax the know-your-customer requirements, and ensure all targeted individuals/household are facilitated to access cash transfers through mobile money.

These advancements provide a strong digital infrastructure that when effectively deployed can support a massive cash transfer programme to ensure households are adequately cushioned during this pandemic. Given the time lag in collecting socio-economic data at the national level, a lag that may not quickly correspond to the changing socio-economic characteristics of the population, data from mobile and internet usage offer a quick and verifiable option of targeting the most vulnerable and therefore making them food insecure.

In 2019, Kenyans transacted a total of Sh4.35 trillion (almost half the country’s GDP) through their mobile phones. According to the KIHBS 2015/16, mobile money transfer was used more by households in rural areas compared to those in urban areas, at 46.2 per cent and 38.9 per cent, respectively…

Combined, mobile phone use and historical mobile money transactions provide massive data, which when carefully analysed, prove a useful resource for assessing the socio-economic standing of individuals, and therefore accurately determining individuals who most qualify for assistance.

Additionally, technology offers a robust and trusted framework that when optimally utilised limits leakages that are often associated with traditional methods of cash disbursement. For one, they make visible households that qualify for cash transfers and when disbursements are due. The predictability they offer also enables households to know when to expect cash and therefore plan better for both food and other household expenditure.

Constraints

Effective mobile-enabled cash transfer programmes rely on rich verifiable data that accurately capture the changing socio-economic positions of citizens. Employment and income status of citizens need to be regularly updated to ensure they accurately capture the most deserving. While the government has over the years invested in collecting socio-economic data through the national census, most recently during the 2019 Kenya Population and Household Census, as well as digital registration of citizens during the Huduma Namba registration, there is a need to build on to these databases, and regularly update the same for purposes of establishing robust social welfare systems.

COVID-19 and its impact on household well-being is perhaps bringing to the fore the value of big data in building such systems and cushioning livelihoods through evidence-based social protection policies, particularly as far as these policies are meant to guarantee household food security. The ability of applying these lessons will determine how prepared governments are in fighting the next pandemic and food security challenges, especially as climate change continues to threaten food security systems.

In the immediate term, and as the government props up its cash transfer programme, there is a need for community-based participatory approaches in assessing the most vulnerable and needy households to ensure efficient utilisation of funds. Relying on community social capital is an effective way of determining households that were vulnerable prior to COVID-19 and those that have become dependent as a result of the pandemic.

Corruption

A pandemic itself, corruption is a systemic problem in Kenya, with proven ability to cripple noble initiatives aimed at benefiting the poor. Worse, this problem has significantly reduced trust levels between the government and citizens and has limited citizens’ participation in governance matters. There is, therefore, a need to build safeguard measures in cash transfer programmes to minimise avenues for leakages. This should include digitised and transparent targeting criteria, citizen-led participatory monitoring and oversight, as well as effective complaint mechanisms.

Corruption thrives in information asymmetry. Therefore, automated platforms that make information accessible to the public on who qualifies for transfers, how much they are eligible for, and the frequency of distribution (with all data privacy protocols observed) provide a better bet in bridging this gap.

Information and communication technologies (mobile-enabled transfers coupled with digitised social safety net frameworks) have the potential effect of limiting the discretionary powers of public officers in determining who benefits. This reduces human intervention in the process, thereby limiting opportunities for cash diversion for personal gain. The technologies, when properly managed, can also minimise political manipulation, capitalisation and clientelism to the advantage of the political class. This, however, is dependent on a strong commitment by the government in ensuring cash for disbursement is made available in the first instance. More importantly, citizens will need to push for structured collective social accountability mechanisms, such as social audits and citizens reports, and will need to actively participate in holding public officials accountable.

Corruption thrives in information asymmetry. Therefore, automated platforms that make information accessible to the public on who qualifies for transfers, how much they are eligible for, and the frequency of distribution provide a better bet in bridging this gap.

Given the uncertainty of COVID-19’s staying power, and its disruption to food supply chains, there is no doubt that food security will remain a key concern that requires better coordinated approaches in feeding those who are most vulnerable. The approaches and manner in which this is done will need to take into consideration the unique challenges the pandemic presents.

With advanced digital technologies, particularly in the financial sector, Kenya is well ahead of many countries in the developing world and well prepared to deepen cashless assistance as it works to contain the spread of the disease. Perhaps this is the litmus test for the government’s ability to rise up to the challenge of walking the talk on ensuring its food security and nutrition commitment under the Big Four Agenda.

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Curfews, Lockdowns and Disintegrating National Food Supply Chains

The disruption of national food supply chains due to COVID-19 lockdowns and curfews has negatively impacted market traders, but it has also spawned localised – and more resilient – supply chains that are filling the gap in the food system.

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Curfews, Lockdowns and Disintegrating National Food Supply Chains
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Our stomachs will make themselves heard and may well take the road to the right, the road of reaction, and of peaceful coexistence…you are going to build in order to prove that you’re capable of transforming your existence and transforming the concrete conditions in which you live.” – Thomas Sankara, assassinated leader of Burkina Faso

 On July 6, 2020, Kenya’s President Uhuru Kenyatta announced phased reopening of the country as the government moved to relax COVID-19 restrictions. That day found me seated in a fishmonger’s stall in Gikomba market, located about five kilometres east of Nairobi’s Central Business District (CBD) and popularly known for the sale of second-hand (mitumba) clothes. The customer seated next to me must have received a text message on her mobile phone because she began howling at the fishmonger to tune in to the radio, which was playing Benga music at the time. It was a few minutes after 2 p.m.

“I order and direct that the cessation of movement into and out of the Nairobi Metropolitan Area, Mombasa County and Mandera County, that is currently in force, shall lapse at 4:00 a.m. on Tuesday, 7th July, 2020,” pronounced the president on Radio Jambo.

The response to this news was cathartic. The female customer, on hearing the words “cessation of movement shall lapse” ululated, and burst out in praise of her God – “Nyasaye” – so loudly it startled the fishmonger. The excited customer jumped on her feet and started dancing around the fish stalls, muttering words in Dholuo. Nyasacha, koro anyalo weyo thugrwok ma na Nairobi, adog dala pacho. Pok a neno chwora, chakre oketwa e lockdown. Nyasacha, iwinjo ywak na. Nyasacha ber.” Oh God, I can now leave the hardship of Nairobi and go back to my homeland. I have not seen my husband since the lockdown measures were enforced. Oh God, you have heard my prayers. Oh God, you are good to me.

“She, like most of us are very happy that the cessation measures have been lifted. Life was becoming very hard and unbearable,” said Rose Akinyi, the fifty-seven year old fishmonger, also known as “Cucu Manyanga” to her customers because of her savvy in relating to urban youth culture. “Since the lockdown, business has been bad. Most of my customers have stopped buying fish because they have either lost their sources of income while others have been too afraid of catching the coronavirus that they have not come to make their usual purchases,” explained Akinyi.

Gikomba market is also Nairobi’s wholesale fish market.  Hotels, restaurants, and businesses flock there to purchase fresh and smoked fish from Lake Victoria and Lake Turkana. But with the government regulations to close down eateries, fish stocks have been rotting, lamented Akinyi. She has had to reduce the supply of her fish stocks in response to the low demand in the market.

“With the re-opening of the city, I plan to travel to my home county of Kisumu and go farm. At least this way I can supplement my income because I don’t see things going back to normal anytime soon,” she explained.

Two days later, I found my way to Wakulima market, popular known as Marikiti. The stench of spoilt produce greets you as you approach the vicinity of the market, Nairobi’s most important fresh produce market. News of the president’s announcement had reached the market and the rush of activity and trade had returned.

Gikomba market is also Nairobi’s wholesale fish market.  Hotels, restaurants, and businesses flock there to purchase fresh and smoked fish from Lake Victoria and Lake Turkana. But with the government regulations to close down eateries, fish stocks have been rotting, lamented Akinyi.

“Since the lockdown, business has been dire to say the least,” complained one Robert Kharinge aka Mkuna, a greengrocer and pastor in a church based in Madiwa, Eastleigh. Robert, who sells bananas that he gets from Meru County, noted that “business has never been this bad in all my twenty years as a greengrocer. Now, I’ve been forced to supplement my income as a porter to make ends meet. Before COVID-19, I would sell at least 150 hands of bananas in a day. Today, I can barely sell five hands,” he explains.

Robert, who is also a clergyman, leans on his faith and is hopeful that things will get back to normal since the cessation of movement has been lifted. He also hopes that the county government of Nairobi will finally expand the Marikiti market to cater for the growing pressure of a city whose population is creeping towards five million.

A short distance from Robert’s stall and outside the market walls stands Morgan Muthoni, a young exuberant woman in her early twenties selling oranges on the pavement. Unable to find space in the market, she and a number of traders have opted to position themselves along Haile Selassie Avenue, where they sell produce out of handcarts.

“When President Uhuru announced the cessation of movement in April, our businesses were gravely affected,” Muthoni says as attends to customers. “I get my oranges from Tanzania and with the lockdown regulations, therefore, produce hasn’t been delivered in good time despite what the government has been saying. Before COVID-19, I would get oranges every two days but now I have to wait between four and five days for fresh produce. My customers aren’t happy because they like fresh oranges and I’m now forced to sell them produce with longer shelf life.”

COVID-19 vs the Demand and Supply of Food
With the prior government lockdowns in Nairobi and Mombasa’s Old Town, which have large populations and are key markets for various food products, the government had to ensure that people in those areas were not cut off from essential goods and services. It was also the mandate of the government to shield farmers and manufacturers of the goods from incurring heavy losses because of the restrictions. Despite good attempts by the authorities to introduce measures that allowed the flow of goods to populated areas affected by the lockdown, there were several reports of police harassment.

“Truck drivers are complaining that they are been harassed by the police for bribes at the police stops, which is gravely affecting our businesses. The police, with their usual thuggery, are using this season of corona to mistreat and extort truck drivers to pay bribes in order to give them way at police checks even if they have adhered to the stipulated regulations,” complained Muthoni.

The movement of goods is further complicated by the disjointed health protocols. “We also hear that because Magufuli’s Tanzania has a different policy towards COVID-19, trucks drivers are taking longer at the border because they need to be tested for coronavirus before they are allowed to pass. But we don’t know how true these reports are. For now, we believe that things will get better since the cessation has been lifted. If God is for us, who can be against us?” Muthoni concludes.

Divine intervention is a recurring plea in these distressed economic times, but unlike Muthoni and Robert, who remain hopeful, this is not the case for Esther Waithera, a farmer and miller based in Mwandus, Kiambu, about 15 kilometres from Nairobi. Kiambu, with its fertile rich soils, adequate rainfall, cool climate, and plenty of food produce, is a busy and bustling administrative centre in the heart of Kikuyuland.

After the president’s announcement of the quasi-lockdown and curfew, Waithera has been spending her afternoons selling fresh produce from her car that is parked opposite Kiambu mall on the weekends and in Thindigwa, a splashy middle-class residential area off the busy Kiambu Road, on weekdays.

“Before COVID-19, I used to supply fresh farm produce to hotels and restaurants across the city. But now I have been forced to sell my produce from my car boot because if I don’t, my produce will rot in the farm. My husband runs the family mill and even that has been doing badly since the coronavirus came to plague us. We have had to decrease our milling capacity and the cost of maize flour to adjust to new market prices as demand reduces.”

After the president’s announcement of the quasi-lockdown and curfew, Waithera has been spending her afternoons selling fresh produce from her car that is parked opposite Kiambu mall on the weekends and in Thindigwa, a splashy middle-class residential area off the busy Kiambu Road, on weekdays.

Maize is Kenya’s staple food and Kenyans rely on maize and maize products for subsistence but, “Kenyans are going hungry and many households are skipping meals to cope with these harsh times,” explains Waithera.

Waithera, who is a mother of three children, doesn’t seem hopeful about the future. “This government that we voted for thrice has let us down. They have squandered the lockdown and have caused economic harm without containing COVID-19. Now we are staring at an economic meltdown, a food crisis and a bleak future for our children.”

A devout Christian of the evangelical persuasion, Waithera deeply believes that “God is punishing the country and its leaders for its transgressions because they have turned away from God and taken to idol worship and the love for mammon”. And like the biblical plagues, “the recent flooding, the infestation of desert locusts and the corona pandemic are all signs from God that he has unleashed his wrath on his people unless we repent our wrongdoings and turn back to God”, laments a bitter Waithera.

For Joyce Nduku, a small-scale farmer and teacher based in Ruiru, this new reality has provided her with opportunities for growth. She acknowledged that her sales have increased during the COVID-19 pandemic, saying, “I now have more customers because there are not enough vegetables available in the market from upcountry”.

Localised and more resilient food systems

At a time when regular food supply chains have not been assured, some food markets have closed, mama mbogas (women vegetable vendors) are out of business, and the cessation of movement is deterring travel, Nduku attributes her increased food production to meet the growing demand to a business model that lays emphasis on a localised food system and short food supply chains.

Approaching food production through a localised food system, she says, “gives me local access to farm inputs”.

She adds, “I get my manure from livestock keepers within my locale and my seeds from local agrovets. I have direct access to my consumers, removing middlemen who expose my produce to unsafe and unhygienic handling and high logistical and transport costs. Hence I’m able to increase the access to safe and affordable food.”

Agriculture, forestry and fishing’s contribution to GDP in 2019 was 34.1 per cent, according to the Kenya National Bureau of Statistics’ Economic Survey 2020. Another 27 percent of GDP is contributed indirectly through linkages with other sectors of Kenya’s economy. The sector, the survey revealed, employs more than 56 percent of the total labour force employed in agriculture in 2019. It also provides a livelihood (employment, income and food security needs) to more than 80 percent of the Kenyan population and contributes to improving nutrition through the production of safe, diverse and nutrient dense foods, notes a World Bank report.

Yet, in a matter of weeks, Nduku tells me, “COVID-19 has laid bare the underlying risks, inequities, and fragilities in our food and agricultural systems, and pushed them close to breaking point.”

These systems, the people underpinning them, and the public goods they deliver have been under-protected and under-valued for decades. Farmers have been exposed to corporate interests that give them little return for their yield; politicians have passed neoliberal food policies and legislation at the peril of citizens; indigenous farming knowledge has been buried by capitalist modes of production that focus mainly on high yields and profit; and families have been one meal away from hunger due to untenable food prices, toxic and unhealthy farm produce and volatile food ecosystems.

Nduku firmly believes that the pandemic has, however, “offered a glimpse to new, robust and more resilient food systems, as some local authorities have implemented measures to safeguard the provision and production of food and local communities and organisations have come together to plug gaps in the food systems.”

Food justice

Many young Kenyans have also emerged to offer leadership with more intimate knowledge of their contexts and responded to societal needs in more direct and appropriate ways. If anything, Nduku tells me, “we must learn from this crisis and ensure that the measures taken to curb the food crisis in these corona times are the starting point for a food system transformation”.

The sector, the survey revealed, employs more than 56 per cent of the total labour force employed in agriculture in 2019. It also provides a livelihood (employment, income and food security needs) to more than 80 per cent of the Kenyan population…

To achieve the kind of systematic transformation Kenya needs, we must “borrow a leaf from Burkina Faso’s revolutionary leader Thomas Sankara”, Nduku adds. Sankara emphasised national food sovereignty and food justice, advocated against over-dependence on foreign food aid, and implemented ecological programmes that fostered long-term agro-ecological balance, power-dispersing, communal food cultivation, and the regeneration of the environment, which remain powerful foundations for food justice today.

Indeed, we must also not rely on discrete technological advances or conservative and incremental policy change. We must radically develop a new system that can adapt and evolve to new innovations, build resilient local food systems, strengthen our local food supply chains, reconnect people with food production, provide fair wages and secure conditions to food and farm workers, and ensure more equitable and nutritious food access for all Kenyans.

Importantly, Nduku emphasises, “We must start thinking about the transformation of our food systems from the point of view of the poorest and those who suffer the greatest injustice within the current framework of our food systems.” This will provide a much more just, resilient and holistic approach to food systems transformation.

This article is part of The Elephant Food Edition Series done in collaboration with Route to Food Initiative (RTFI). Views expressed in the article are not necessarily those of the RTFI.

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