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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

The Information Disorder Calls for Multidisciplinary Collaboration

The responses to the information disorder adopted in Kenya have been largely ineffective. Multidisciplinary stakeholders working collaboratively stand a higher chance of success and will result in a more informed audience that is less susceptible to mis- and disinformation.

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The Information Disorder Calls for Multidisciplinary Collaboration
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The information disorder (i.e., mis- and disinformation) pervasive on social media has arguably interfered with democratic processes across the world. As public authorities and political actors continue to embrace social media as a broadcast and civic engagement tool, the potency of manipulated narratives online is further entrenched. This is debatably truer in electoral contexts where issues are perhaps more emotive and divisive. For example, in the run-up to Kenya’s general elections, a notable amount of mis- and disinformation on social media was observable. As Wambui Wamunyu and June Okal noted, doctored images of crowds during political rallies, mild deepfake videos, doctored photos, and fake accounts passing off as political actors or mainstream media were just some of the categories of mis- and disinformation observable on social media. These observations tie in with earlier research by Odanga Madung and Brian Obilo, highlighting the practice of using bloggers for disinformation campaigns. During the actual elections, the EU Election Observer Mission also observed “manufactured amplification and coordination of messages online by fake accounts and malicious, bot-driven activity in support of the presidential candidates”.

The impact of the information disorder on democracies has been extensively discussed and will not be the subject of this article. Instead, this article focuses on the diverse responses which have been mooted and implemented in Kenya by policy makers, media, civil society, and social media platforms in response to the information disorder. In particular, this article argues that these responses are largely ineffective when used in isolation and suggests that collectives comprised of a broad range of multidisciplinary stakeholders working collaboratively are likely to have a higher chance at success. One such collective, Fumbua, was established in the run-up to the 2022 general elections in Kenya, and this article argues that the frameworks for collaboration it established can be repurposed to address the information disorder in numerous contexts.

Contextualizing the information disorder on social media

The proliferation of mis- and disinformation on social media is made easier by the fact that such platforms, by nature, enable peer-to-peer engagement with little to no gatekeeping. While this characteristic has also meant that these platforms have served to create room for civic engagement and act as an equalizer, such civic engagement is often undermined by the harmful content that is prevalent. In recognition of the potential for harm their platforms pose to democratic processes, numerous social media platforms have adopted policies and tools specifically designed to address election-related mis-and disinformation. Comparatively, the content moderation tools applied in the Global South have arguably been scant. For example, in Brazil, the individuals tasked with enforcing Twitter’s policies during the presidential election only got access to the necessary internal tools a day prior to the election, and only in a limited capacity. Twitter allegedly utilized automatic enforcement technology and third-party service providers. According to numerous commentators, it is not uncommon for content moderation efforts in the Global South to be below par. From automatic enforcement tools trained on datasets lacking in local context, to human content moderators facing the same challenge, these platforms’ efforts to curb the information disorder are handicapped from the outset. These challenges are exacerbated in electoral contexts. Recent developments have shown that it sometimes takes third parties such as researchers or civil society pointing out harmful content for platforms to act.

It is generally agreed that mis-and disinformation was prevalent on social media during Kenya’s August 2022 general election. For example, the EU Election Observer Mission indicated in its report that it had identified hundreds of misleading Facebook and Twitter profiles. Platforms triggered their civic integrity policies a few weeks prior to the election and set up information centres and moderately labelled misleading content. However, these labels were not consistently applied and were in fact only deployed during the election tallying process. Stakeholders seemingly lacked a clear solution to address the information disorder on social media. The lack of sustainable and scalable solutions is not unique to Kenya and the region. It is certainly a global problem and a key step in the right direction is securing more transparency from platforms in relation to their enforcement processes as this will enable stakeholders to co-create solutions. However, in the interim, the information disorder can be addressed by effecting incremental and sustainable changes to how media is produced and consumed. One way to accomplish this is through multidisciplinary collectives such as Fumbua.

Addressing the information disorder

Fumbua is a collective of media and media-related organisations which came together in the run-up of the 2022 general election with a view to addressing the information disorder as it relates to political campaigning. The efforts to address the information disorder in Kenya’s 2022 general election can largely be categorized into actions taken in anticipation of the mis- and disinformation (pre-emptive measures) and actions taken in response to the information disorder (reactive measures). Fumbua brought together organisations involved in both areas, such as fact checkers, “pre-bunkers” and traditional media. Both these reactive and pre-emptive measures are discussed below.

The information disorder can be addressed by effecting incremental and sustainable changes to how media is produced and consumed.

Mis- and disinformation has reportedly featured in Kenyan elections since 2013. Consequently, with each passing cycle, stakeholders have been able to understand its nature and develop solutions which are alive to Kenya’s specific context. Unfortunately, due to the rapidly evolving nature of mis- and disinformation practices, the solutions developed have often been reactive in that they seek to get rid of such harmful content or undo its effects after the fact. For example, by criminalizing false content through the Computer Misuse and Cybercrimes Act, by fact checking such content, by using labels to warn audiences of the nature of the content, and by obtaining the takedown of such content from social media sites.

Fact checking has perhaps been the most prevalent or visible response to the information disorder. It essentially entails systematically breaking down the validity of claims made by public officials, institutions, and political actors with a view to identifying whether the claim is factual or not. In Kenya’s elections, various fact-checkers were active. These included independent media, the fact-checking desks of mainstream media, and collectives or associations. To name a few, Africa Check, Africa Uncensored, Pesa Check, Media Council of Kenya, Kenya Editors Guild and The Star were involved in fact-checking claims made during the Kenyan elections. While fact-checking has increasingly become common, it would be improper to conflate its growing prominence with its ability to address the information disorder, especially when empirical evidence on the subject is divided. In highly politicized environments, it is unlikely that being exposed to verification of claims will affect an audience’s world view. This is more so the case where the objectivity and impartiality of the fact-checkers are in question. Fact-checkers often must compete with an audience’s confirmation bias and their credibility is often questioned due to the conflict their narrative poses to the world view of some audiences. This is not made easier by the fact that fact-checking is a difficult, time-consuming, and labour-intensive process which cannot compete with the speed at which false information is spread through social media. Add in the fact that false information more easily captures attention due to its ability to trigger negative emotions and one can understand why the utility and efficacy of fact-checking is limited. Fact-checking claims made through social media have also been especially difficult in Kenya due to the minimal and often performative support given to fact-checkers by social media platforms.

For fact-checking to be effective, it must offer an alternative narrative to that which it is disputing. The challenge is that such a narrative must exist in the first place and must be capable of being accepted by an audience. Where such a narrative exists, there is a risk that it may come with “political baggage” and as such be difficult to accept. In such cases, the efficacy of fact-checking is limited, and this is essentially the challenge faced by fact-checkers – purveyors of false information are not bound by the same rules. Despite all this, fact-checking has been found to positively affect audience beliefs notwithstanding pre-existing beliefs and whether an alternative narrative was presented. However, these credentials are limited as the effects on belief are weak and gradually becoming negligible. Additionally, they do not always translate to downstream effects (i.e., changing of votes).

For a long time, stakeholders seeking to curb the information disorder have found themselves on the back-foot, always responding after the fact. By the time interventions such as fact-checks, social media takedowns, and flags are deployed, harmful content has likely taken root. With this in mind, some pre-emptive solutions have been contemplated and used by stakeholders. These are discussed below.

While fact-checking has increasingly become common, it would be improper to conflate its growing prominence with its ability to address the information disorder.

As discussed earlier in this article, fact-checkers often face the challenge of having to overcome an audience’s inherent biases and the political baggage accompanying the alternative narratives they seek to put forth. In seeking to overcome this reactionary approach, Stephan Lewandowsky and Sander van der Linden argue that it may be more effective to inoculate audiences against harmful content by priming their minds to anticipate it. This has come to be referred to as prebunking, and it essentially entails exposing audiences to watered down versions of false or misleading content with a view to highlighting the tactics used by purveyors of such content. Prebunking efforts recognize that the information disorder may not necessarily be solved by disseminating more accurate information given that harmful content is often consumed in highly politicized contexts. Instead, these efforts seek to redesign information architecture through behavioural interventions (i.e., changing how audiences consume information). In Kenya, Stop Reflect Verify was the first publicly documented election-related prebunking program. It offered a misinformation quiz focused on the Kenyan elections.

While prebunking seemingly promises to reduce the reactionary nature of stakeholder efforts, there is insufficient proof that skills learned in prebunking programmes are applied in practical situations. Counterfactual thinking may be a useful strategy to incorporate into prebunking efforts. Counterfactual thinking involves stimulating an audience’s mind to consider alternative facts and hypotheses when presented with information in a bid to logically deduce the likely truth. The lack of consensus on the utility and efficacy of prebunking as an alternative to fact-checking points to the need for the deployment of multiple interventions in a coordinated fashion, and this is where multidisciplinary collectives such as Fumbua come in.

Building in sustainability 

Periodically, civil society, media practitioners, and the donor community focus their efforts on election-related programmes in a collaborative manner (for example the media’s collaboration during presidential debates). In most cases, the collaboration does not survive the post-election period. As a result, these election stakeholders have to start anew during each election. A considerable amount of time and resources are dedicated to establishing the frameworks for collaboration, taking away from the potential impact these programmes may have. With collectives such as Fumbua, stakeholders are able to repurpose the goodwill that fostered collaboration during elections to continue to address the information disorder in other contexts. By sustaining the collaboration, stakeholders would be able to leverage on incremental gains and make a more impactful change. In relation to the information disorder, they would be better able to move towards how media is generated and consumed. The effect of this would be a more informed audience that is less susceptible to mis- and disinformation.

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The Next Emergency: Building Resilience through Fiscal Democracy

Crisis is the new constant and advocacy efforts should seek ways of growing public awareness through civic education.

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The Next Emergency: Building Resilience through Fiscal Democracy
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Are East African countries ready to face the next crisis or are they simply keen to go back to how things were? What does a new normal mean when speaking about public finance management (PFM)?

In continuing the struggle for structural transformation, economic justice efforts must work towards developing a new citizen and preparing for unpredictable or unforeseen events, more so those with extreme socio-economic and political consequences.

This is because, besides known challenges posed by existing inequalities, the COVID-19 pandemic has pointed out how “unusual circumstances such as man-made disasters, natural catastrophes, disease outbreaks and warfare … depress the ability of citizens to engage in economic activity and pay taxes as well as that of governments [capacity] to collect revenue [or] provide services”.

Such circumstances therefore demand more inclusion of human rights-based approaches in economic justice efforts to champion greater fairness within existing financial architecture.

Disasters should, therefore, not obliterate human rights but should heighten the need to respect, protection, and fulfilment of obligations through prioritizing expenditure on service delivery, as well as all elements of Economic, Social and Cultural Rights (ESCRs) to “boost the capacity of residents to withstand shocks” by improving coping mechanisms.

Promotion of fair taxes among other broader economic justice initiatives within PFM should consequently adapt towards championing ESCRS within the context of more disruptive and unexpected incidents. Crisis is constant in the new normal.

Fiscal democracy and civil protection: Recovery, resilience, and transformation

Currently, conversations on recovery are focused on tackling reduced tax collection; slowed growth; depressed formal or informal productivity; exploding unemployment; diminished remittances; persistent poverty; decline in energy access; and escalating food insecurity.

This emphasis seeks to reverse the effects of various lockdown policies that placed restrictions on businesses, mobility, movement within and across international borders, [plus] public gatherings. However, it speaks mostly of a desire to return to pre-COVID levels of economic activity while vital systems in tackling the next crisis such as water, education, or health remain unaddressed.

Economic justice initiatives should therefore embrace fiscal democracy and civil protection as goals or appendages in achieving the structural transformation agenda. This will then speak to the resilience, and transformation needed to ensure PFM works for Africans in good times or bad.

Understanding fiscal democracy takes the form of better prioritization, response to problems, and improved sanctions for mistakes in the revenue cycle.

Advocacy for increased domestic opportunities, promotion of childhood development, enhanced socio-economic mobility, support for workers, motivation of local entrepreneurship, diversification of public infrastructure from mega projects, as well as increased innovation through subsidized research and development should be at the heart of economic justice efforts.

Economic justice initiatives should therefore embrace fiscal democracy and civil protection as goals or appendages in achieving the structural transformation agenda.

Civil protection gives a new framework of planning by envisioning contexts or processes in which a series of unfortunate events can emerge, thus providing adequate responses without breaking the social contract.

Transformation therefore occurs when both go hand in hand so that public facilities are not overstretched in the event of crisis. Hence, in looking at the impact of Covid-19, across the East Africa region, we must ask ourselves: How transformative are the current recovery efforts underway? Will they offer a new resilience?

The salvage job: Economic sustainability through reliefs, guarantees, subsidies, and funds

Responses have clearly been driven by the urgency to overcome the pandemic and the need to forestall outright disaster or collapse. The “short-term rescue mode” has seen efforts to ensure vaccine access and bolstering of public health systems.

On the economic front governments “Have sought debt relief, implemented corporate tax deferrals plus exemptions, made direct citizen transfers and interest rate adjustments. [They have also] implemented guarantees and subsidies, liquidity support and food relief … [with] examples of support for micro, small and medium enterprises (MSMEs). Cash transfers and other safety nets for poor and vulnerable populations are critical for an integrated … response. While not transformational, they are building blocks for a basic level of resilience to external shocks.”

The fact that these efforts are not transformational must motivate the infusion of a justice quotient in recovery efforts. This will enable a movement beyond an emergency-oriented recovery that recognizes existing modern challenges such as climate change, population growth, scarce resources, man-made or natural calamities.

In the case of tax justice, to make the linkages that will establish economic sustainability in East Africa, it is important to understand the effect of recovery efforts in relation to public debt; the tax burden on individuals or households; illicit financial flows; harmful tax practices; economic growth; and resource distribution.

Recognizing the prevalent debt crisis even before the pandemic struck is important in informing economic justice movements and their activities. Concerns were looming over the fact that 40 per cent of Sub-Saharan African countries were in or at high risk of debt distress. Between 2010 and 2018, public debt in East Africa grew rapidly as shown in Figure 1.

Figure 1 – National Debt to GDP Ratio

Source: Individual Country Central Banks

Source: Individual Country Central Banks

In this time, East African Community (EAC) governments failed to mobilize sufficient revenue despite an overall increase in taxes. The situation was therefore exacerbated by COVID-19, the consequence being that these countries are now stuck in a situation where they must tax more to bridge revenue gaps.

Basically this, first and foremost, creates a context of unfair tax policies in the region that burden their respective citizens, does not enhance service delivery, and is exclusionary in how debt repayment strategies are developed.

Lack of open debate about a country’s fiscal priorities within the existing PFM system neglects the needs of youth who constitute the majority of the population among other segments of society, curtails ideas on how to increase resources needed to provide for new economic opportunity(ies) and respond to the next emergency.

Recognizing the prevalent debt crisis even before the pandemic struck is important in informing economic justice movements and their activities.

Secondly, an environment or ecosystem of illicit financial flows (IFFs) that constitutes the formation of International Financial Centres (IFCs) in Kigali and Nairobi plus the signing of numerous Double Taxation Agreements (DTAs) continues to perpetuate itself thereby providing loopholes within the tax architecture that undermine efforts at domestic revenue mobilization (DRM) because the monies going out of countries are so massive, outweighing Overseas Development Assistance (ODA).

This is thanks to “Constitutionalism [among other legal questions] plus demands to implement new public finance management principles, growth in trade and services across countries in the region or with other countries across the globe, and discovery of natural resources requiring more inflows of foreign direct investments (FDI).”

On average IFFs accounts form 6.1 per cent of Sub-Saharan Africa’s Gross Domestic Product (GDP) thereby impeding economic development and sustainability. For instance, since 2011, Kenya is estimated to lose KSh40 billion annually “as government, local firms and multinationals engage in fraudulent schemes to avoid tax payments”. As of 2021, The State of Tax Justice Report indicates this has grown to an estimated KSh69 billion annually at current exchange rates.

Third, growing account deficits and rising external debt are heavily limiting to economic growth. Increased spending on debt repayment is restricting prioritization on essential public goods and services while borrowing remains one of the key sources of budget financing.

In as much as Kenya cancelled its recent pursuit of another Eurobond, the about-turn towards borrowing domestically following a surge in yields within international markets because of the Russia-Ukraine war is still going to punish the country’s citizens by squeezing them out of access to credit.

Lastly, the debt burden is disempowering the citizen. Rising public debt may result in poor public participation in the management of fiscal policy, and weak structures for keeping governments accountable. This is further worsened by limited access to information on debt or public spending. Moreover, there is weak oversight by parliaments as executives take full control of processes.

Policy-making processes during cascading crises: Fiscal Consolidation, Special Drawing Rights, and Open Government

By understanding that crisis is constant, and that it is likely to manifest as confluence events — merging risks of mitigatable disaster(s) — or major confluence events, that is, the combination of potentially unmitigated risk(s) at any one point in time, how does policy making at such a time help to prepare for the emergency next time?

For example, what does Kenya’s fiscal consolidation programme — which comprises of reforms to improve oversight, monitoring, and governance of state-owned enterprises; improved transparency of fiscal reporting; and comprehensive information of public tenders awarded including beneficial ownership information of awarded entities — have to do with preparing for the next series of cascading crises?

Several emergency relief funds have been established to address the impact of COVID-19, such as the Rapid Credit Facility, the Catastrophe Containment and Relief Trust, and the Debt Service Suspension Initiative (DSSI).

However, these efforts are not likely to unlock the existing “trilemma” of solving the health plus economic crisis and meeting development targets while dealing with a tightening fiscal space. This is because they are stuck in the present circumstances with no consciousness of how much the challenge is likely to prevail into the future.

East African Community governments, in this time, failed to mobilize sufficient revenue, despite an overall increase in taxes.

Adopting fiscal democracy not only provides a new agenda determining organizing principles, but it has the potential for establishing a new citizenship through further entrenchment of human rights-based approaches in economic justice, and commitment to open government principles.

It will also anticipate and prevent the disaster capitalism witnessed during the COVID-19 pandemic. Many African countries seem to be in a constant state of crisis, thus allowing for IFFs through PFM malfeasance that locks corruption and fraud into procurement through bid rigging or collusion.

Principals of public participation, demands for accountability, championing non-discrimination, advocacy for empowering programing, and legitimacy through the rule of law should set standards on beneficial ownership while open contracting, open data for development, legislative openness, improving service delivery, access to information, and access to justice will help build resilience in government.

A call to civic education: Revenue rights and obligations

Somewhere along the way, capacity building and training programming took prominence over civic education. Advocacy efforts should look for ways to bring back more popular public awareness. Denial of resources for these kinds of activities has been a major blow for PFM advocacy among other activist efforts.

Civic education will re-establish links between individual claims to service delivery and assigned duties in the fulfilment of public demands. Citizens will be able to identify how the problem manifests and engage on the immediate, underlying or root causes of an issue.

Rising public debt may result in poor public participation in the management of fiscal policy, and weak structures for keeping governments accountable.

It will also allow them to establish the patterns of relationships which may result in the non-fulfilment of rights or absconding of obligations. This will enable them to assign appropriate responsibility by identifying the relevant authorities. It will keep an eye on resources through participating in decision making.

Governments and political leadership should therefore work to improve their communication capabilities in engaging the public so that once this new citizenry is involved, they can work together to achieve representative priorities for action.

This article is based on a presentation and comments made at the African Forum and Network on Debt and Development (AFRODAD), Eastern and Southern Africa Regional Debt Conference, Towards strengthening accountability and transparency around public debt management and the use of IMF Special Drawing Rights (SDRs) in Eastern and Southern Africa, 20–21 June 2022, Nairobi, Kenya.

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‘They Cannot Represent Themselves, They Must Be Represented’

Beyond service delivery, refugee-led organizations are increasingly involved in advocacy yet the current set-up within the field of humanitarian governance continues to relegate them to the role of mere beneficiaries.

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Ever since it appeared in the epigraph of Edward Said’s influential critique of Western “experts”, Orientalism, Marx’s dismissal of the French peasantry has come to stand for everything wrong with a certain type of condescending political crusade: elites speaking on behalf of groups viewed as incapable of articulating their own interests.

Commonly known in the humanitarian world as “saviourism”, this patronizing tendency is entrenched within the field of displacement governance, where highly placed individuals employed by donor agencies regularly devise policies on behalf of downtrodden communities whose circumstances are remote from their own.

The dramatic rise to prominence of RLOs (Refugee-led Organizations) presents an important challenge to the paternalism of this order.

Within a short space of time since 2018 when an historic summit in Geneva was convened by refugee leaders from across the world, demands for “a seat at the table” have been recognized at the highest level. In 2019, the UN invited RLO representatives to its own Global Refugee Forum. In 2020, Canada announced an advisory role for a former refugee to observe its international protection meetings; Germany and the USA have since followed suit, underlining the growing acknowledgement of the legitimacy and significance of refugee leadership.

On the surface, these developments would seem to suggest the RLO phenomenon is a rare example of successful “localization”—the transfer of resources and decision-making power to stake-holding communities.

Yet little is known about the regional trajectories of RLOs. This despite the fact that local (or “glocal”) actors in the Global South laid the foundations for the aforementioned developments on the world stage. Without data on the impact of RLOs in camps, settlements and cities where their most important work takes place, their contributions and the obstacles they face remain poorly understood.

Having worked for an international organization as a migration specialist in Kenya and visited Uganda, I’m struck by the vibrancy of RLO mobilization in both countries, as well as the persistent challenges they face. Their successes and their struggles reflect the specificities of displacement governance in East Africa and the surrounding regions—the Great Lakes and Horn of Africa. Tanzania, Kenya and Uganda each host some of the largest refugee populations in the world. Conditions and regulatory frameworks vary and are far from perfect for RLOs in these countries. For the most part, however, they shoulder their “burdens” without succumbing to the anti-immigrant xenophobia rife in more affluent nations. Presidents Museveni of Uganda and Kagame of Rwanda each have lived experience of exile, a fact that reflects a certain acceptance of displacement as a mundane reality rather than an alarming aberration.

This context has important implications for the political agency of refugees. For whilst their participation in public life remains limited and is at times curtailed, RLOs in this region are particularly dynamic and advanced. It is no coincidence that Ugandan RLOs, where refugees enjoy freedom of mobility and association, have played a leading role in the movement for refugee participation in Africa. Studies have identified between 20 and 30 such groups operating in Kampala, home to some 80,000 refugees. The precise number is difficult to ascertain given that RLOs vary in size and visibility.

Defined loosely as organizations established and led by refugees, RLOs include well-established NGOs with transnational networks, funding partnerships and global profiles such as HOCW (Hope of Children and Women Victims of Violence), whose capacious premises in Kampala are not so different from the national or indeed international NGO offices that I have visited in Asia and Africa.

It is no coincidence that Ugandan RLOs, where refugees enjoy freedom of mobility and association, have played a leading role in the movement for refugee participation in Africa.

At the other end of the spectrum, RLOs can be small, informal, community-based “self-help” groups that operate without donor funding or formal membership. Between these two poles are medium-sized operations that lack substantial funding but are registered and possess formal membership structures.

A recent study by refugee researchers, which identified 63 RLOs in Uganda and 138 in Kenya, claimed beneficiaries report positive experiences with RLOs because they treat them with greater dignity and understanding of their needs than larger humanitarian agencies. Service delivery is adapted to local conditions and as a result, targeted towards the needs of groups and individuals. It also tends to be less bound by bureaucratic rules, reaching the newly arrived who lack documentation—often the most vulnerable.

More than mere service-delivery, RLOs are increasingly engaged in advocacy. HOCW’s Congolese founder, John Bolingo Ntahira, contributed to the inaugural Global Refugee Summit in 2018, and remains on the Global Refugee Network’s steering committee, underlining East African RLOs’ pivotal role in driving the international movement for refugee representation in policy-making.

Together with a handful of other pioneering RLO leaders, Bolingo set up RELON (Refugee-Led Organizations Network) in 2017, a network headquartered in Kampala that has branched out into other African countries.

Expanding through international gatherings and leveraging connections in the African Union are high priorities for RELON, which is keen to develop a continental voice. It has campaigned successfully in host countries on issues such as refugees’ access to vaccines, travel documents, and the registration of SIM cards.

This penchant for building solidarities across borders and working at multiple scales of governance holds the key to the innovative potential of RLOs. As transnational actors with diasporic links and cosmopolitan sensibilities, refugee leaders I met are well-travelled, well-networked and inclined towards Pan-African solutions. Unlike many career diplomats who might claim the same, the continental coalitions they build are comprised of people with lived experience of the challenges faced in exile—individuals like Bolingo who shared a home with 70 compatriots in an old bus converted into a make-shift shelter in the early 2000s.

This penchant for building solidarities across borders and working at multiple scales of governance holds the key to the innovative potential of RLOs.

Who better to address the interests of displaced persons than men and women who have themselves experienced or witnessed mortal threats, precarious border-crossings and destitution first-hand, and who still dwell among refugee communities?

***

The UNHCR has taken various strides toward enabling meaningful RLO participation, such as issuing innovation awards to RLOs for their work during the pandemic and piloting small grants. More generally, the working relationship between RLOs and big players within the international humanitarian order expands daily with new initiatives documented on social media amidst smiles and handshakes. The former wish to project themselves as legitimate actors on the world stage, in close proximity to the latter, who in turn find it increasingly incumbent upon them to demonstrate awareness of the importance of RLOs.

Yet, beneath the surface of these exchanges lies a simmering tension. Several refugee leaders I interviewed made allegations of bad faith against powerbrokers in the humanitarian field, accusing them of condescension and placing obstacles in their path: actively undermining their access to funding and/or oppressively “micro-managing” them in exploitative unequal “partnerships”, and excluding and patronizing them at every turn.

“Our ‘big brothers’ don’t want to recognize us,” said a key figure in Kenya bitterly. He is convinced that those who currently control the purse strings “fear” losing privileged positions over organizations such as his own. Others who stopped short of explicit accusation made their sentiments known through body language: brows furrowed, jaws clenched at the mere mention of the behemothic agencies, donors and organizations that comprise the humanitarian establishment.

A 2020 article by Oxford researchers lifts the lid on the history of this encounter with sordid allegations against at least one UNHCR IP (Implementing Partner), InterAid, which stands accused of setting up a fake CBO (Refugee Now) run by its own staff to create false evidence of “community” engagement. If the truth of such matters is difficult to verify, their legacy of mistrust and grievance is clear.

At a conference on localization last March in Nairobi during NGO week, refugee leaders and their allies lamented the lack of structural transformation when it comes to funding flows and decision-making in the humanitarian field. Attendees and speakers included Jean Marie Ishimwe, founder of Youth Voices Community, a Kenyan RLO, and INGOs such as Trócaire, an Irish charity committed to localization.

Frustration that growing RLO visibility during the pandemic has failed to alter mind-sets and bottom lines when it comes to partnerships and budgets was palpable. RLOs complained of being instrumentalized or ignored altogether by most big donor agencies and their IPs. Too often, they said, “inclusion” takes the form of tokenism: invitations to participate in activities typically expect them to mobilize their communities for the realization of projects that have already been designed. Offers of “capacity-building”, meanwhile, rarely consider the pedagogical potential of RLOs, whose local knowledge and lived experience of displacement is often lacking among so many of their expat counterparts employed by international and national NGOs. They lamented the lack of multi-year funding for the development of their administrative capacity, a gap that leaves them unable to hire or retain qualified professionals that might boost their ability to attract funding independently, reinforcing their dependency on larger organizations.

Frustration that growing RLO visibility during the pandemic has failed to alter mind-sets and bottom lines when it comes to partnerships and budgets was palpable.

None of this will surprise observers of localization given the almost complete failure to implement the “Grand Bargain” of 2016, which promised to funnel a quarter of humanitarian funds directly to national and local actors within the field of humanitarian governance but delivered a mere 0.5 per cent of tracked funding in 2019.

***

The hesitancy of large donors to fund RLOs stems at least in part from genuine constraints. RLOs, they say (in private), can be too small and unprofessional to manage and effectively spend large grants that require complex financial auditing. A related concern is the perception that RLOs are unstable given the changing personal trajectories of staff and/or founders, whose individual asylum and resettlement claims can mean suspending operations mid-way through funding cycles. Then there is concern about the potentially distortive impact of funding RLOs, whose ethnic, religious and/or national affiliations arguably make them unsuitable for serving broader, diverse refugee publics.

My own inquiries confirmed what researchers have already documented: that none of these charges should be dismissed, because each contains a grain of truth.

Most RLOs do begin as CBOs catering for specific ethnic and national groupings; oftentimes they possess limited administrative capacity. Those that do manage to grow in size and ambition do indeed tend to be headed by well-educated men. Moreover, it is not unknown for the personnel of RLOs to be resettled in the course of funding cycles. I also heard several references to “founder’s syndrome”, a psychological disorder among some egoistic individuals who struggle to detach their personal interests from those of the organization they have established.

In view of such challenges, some of the most enthusiastic supporters of refugee leadership are seeking to bridge the gap between RLOs and the powerbrokers that perpetuate their exclusion constructively.

COHERE, an INGO with offices in Kampala and Nairobi, has thrown its full weight behind putting refugee-led organizations “in the driving seat”. It does this through training and advice to RLOs on how to attract funds, how to implement and document project work effectively, and how to plan strategically in the longer term. If in its advocacy COHERE counters prejudice among RLO-sceptics, much of its daily work addresses donors’ concerns through corrective measures that acknowledge the need for work on all sides.

Some of the most enthusiastic supporters of refugee leadership are seeking to bridge the gap between RLOs and the powerbrokers that perpetuate their exclusion constructively.

Herein lies the difference between COHERE and reactionary big players dragging their feet on localization: Where the latter use RLOs’ weaknesses as justification to prolong a status quo in which the former can only ever be “beneficiaries”, tokens and symbols in projects they design themselves, the former view them as obstacles that can and must be removed to create a more level playing field.

A glimpse at COHERE’s network provides strong evidence of RLOs’ ability to grow and develop in ways critics seem reluctant to acknowledge. In Kampala, I visited Bondeko Refugee Livelihoods Centre, founded by a Congolese priest now resettled in Canada. Far from parochial, its young staff and membership was diverse in terms of gender and ethnicity: many of those it supports are from Burundi and Rwanda, and like many refugee businesses in Kampala, it even provides employment for Ugandan citizens. The founder’s resettlement seems not have had adverse consequences.

***

As an expat employed by an international organization engaged in advocacy, refugee leaders’ critiques of the humanitarian sector’s paternalism can feel close to the bone. When they fume against the condescension of do-gooders who represent their interests without walking in their shoes, are they talking about me?

None of the refugee leaders I interviewed for this article said so (explicitly), and it would be easy enough to join them in pointing fingers elsewhere. More challenging than “speaking the truth to power”, however, is speaking it to oneself: to admit that the entrenched privilege they seek to dismantle includes my own.

To the legions of foreign “experts” whose postings in the Global South involve analysing, shaping or influencing policies that do not directly affect us, RLOs pose questions we should be asking ourselves everyday about our long-term presence and role in the Global South. Above all: What are we doing to devolve power and resources to present and future generations of stakeholders?

Signatories of the Charter 4 Change such as COHERE and Trócaire have committed to channelling a quarter of humanitarian funding directly to national and/or local NGOs. But many larger bureaucratized entities with decades of heritage and established identities have shown little urgency in adapting to a world in which refugees are partners rather than beneficiaries. Despite many words and some (limited) deeds, commitment to structural reform remains unproven and there is scant evidence of the soul-searching that should be taking place.

For African NGOs, a different kind of self-reflection may be required. Although “local” in terms of registration, these tend to be staffed by highly educated professionals hailing from host country elites, among whom lived experience of exile is rare. It is easier for them to attract donor funding than RLOs, which can cause resentment and rivalry. One refugee leader I interviewed seethed as he recounted rebuffing an invitation from a national NGO to participate in a project as a beneficiary: “We’ll get our own funding to work on this issue,” he scoffed, insisting he could have implemented the same project more effectively.

Devota Nuwe, acting Co-Director of The Refugee Law Project, a highly respected national NGO based in Kampala, has occasionally found herself on the receiving end of such sentiments in the course of her career as a displacement specialist. The kinds of remarks directed at her and her colleagues by individual refugee leaders aggrieved at salaried professionals whose job it is to support them suggest a frankness rarely directed against INGO workers. (“Those clothes you’re wearing, it’s because of us!”).

What such sentiment fails to acknowledge is that there are contexts in which refugees cannot easily represent themselves—in which they must be represented by non-refugees. Defending or appealing on their behalf in courts of law, for example, is specialized work that requires qualified professionals acquainted with the host country’s legal system and political context.

Perhaps this explains Nuwe’s relaxed attitude towards the rise of RLOs, whom she and her colleagues have welcomed into their industry, despite the occasional criticism that comes their way. “There’s room for all of us,” she chuckles, when I ask her if she ever gets anxious about the prospect of a competitive threat from individuals who openly tell her they should be in her place.

In truth, national NGOs that enjoy the trust of their stakeholders have nothing to fear from the rise of RLOs. The same can be said of INGOs already cooperating in partnerships with RLOs, in which each plays a distinct but complementary role to achieve common objectives.

In truth, national NGOs that enjoy the trust of their stakeholders have nothing to fear from the rise of RLOs.

Indeed, there is something to be said for UN Secretary-General Ban Ki-moon’s oft-cited commitment to making humanitarian action “as local as possible, as international as necessary”. The trouble with the current setup is that it under-utilizes the potential of refugees, and is far more international than it needs to be. In the words of John Bolingo Ntahira: “No one understands refugees’ problems better than we do”. Those of us who profess expertise on displacement would do well to acknowledge this basic fact and its transformative potential.

This article is part of a series on migration and displacement in and from Africa, co-produced by the Elephant and the Heinrich Boll Foundation’s African Migration Hub, which is housed at its new Horn of Africa Office in Nairobi.

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