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State Capture: The Institutionalisation of Impunity in Kenya

18 min read. 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

Zimbabwe’s Trauma: Impunity, Disappearances and Torture

11 min read. TINASHE L. CHIMEDZA explores how state-sanctioned violence – a remnant of colonialism and the country’s liberation war – has become normalised in Zimbabwe.

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Zimbabwe’s Trauma: Impunity, Disappearances and Torture
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Taking the latest protests engulfing Zimbabwe since the 16th of August 2019, the article looks at how state repression against the opposition and the brutal crackdown on civil society activists are remnants of the country’s historic liberation war days. Instead of ‘smashing’ the colonial-settler brutal state security apparatus, the post-colonial nationalist class re-fashioned it and used its Chinese/Russian trained officers to build a total surveillance state that abducts, kidnaps, tortures, kills, and brutalises citizens, especially those belonging to the opposition.

This article gives the example of three activists who were abducted, tortured, and some who disappeared and points to how the state security apparatus has remained outside the bounds of accountability, and is funded heavily through budget and extra-budget means. To achieve its political ends, the ruling class is deliberately tiptoeing around much needed legislative and political reforms set out by the 2013 Constitution, which was won after a decade of political contest.

The article ends by pointing out that the opposition has qualitatively changed from the ‘old guard’ like Morgan Tsvangirai to a new younger and more impatient leadership under Nelson Chamisa. Add to this, the explosive concoction of unemployed, poor working-class conditions, economic informality, urban slums and the ruling political class, already suffering from intra-party factional fights, has a real political contest on its hands – in Zimbabwe a hungry man is very angry.

State-sponsored abductions, kidnapping and torture  

Three people.

The first. Tonderai Ndira.

A young activist belonging to the opposition Movement for Democratic Change (MDC) led by the former Prime Minister of Zimbabwe, Morgan Tsvangirai. He was an activist from the poor working-class neighbourhood of Mabvuku-Tafara, a few kilometres east of Harare that was a hotbed of opposition activism.

When they came for him, it was just before dawn on the 14th of May 2008. Just weeks from an election. In the cover of darkness. They rammed in into the house. No warrant. Just brutal force. They were almost a dozen of them, some clad in balaclavas, brandishing the infamous AK-47s in front of his wife and two young kids. He had no chance. Outnumbered. Outgunned. Dazed in his sleep. His wife and children screaming and all caught up in the maelstrom. They dragged him out with only his underwear. That was the last time his family saw him alive. As soon as the wife realised what had happened, she alerted neighbours, the party leadership and human rights activists. The search began and it led nowhere. After a few days those searching for ‘Dread’ Tonde turned to hospitals.

When they finally found him, it was a harrowing scene. They discovered his body by mistake on the Parirenyatwa morgue. Tonderai’s body had been left to rot in an open field in Goromonzi, which is rumoured to have the intelligence torture chamber built under Ian Smith in the 1960s. His bones were broken in several places. His jaw bone was shattered. There were multiple stab wounds. His tongue had been cut out. There was a bullet wound through the heart indicating that he was shot at close range. His skull had been clobbered with what looked like a blow from a steel hammer. It was an extra-judicial sadistic cold-blooded murder. His almost decomposing torso had evidence of extreme torture.

His wife would only identify him from a ring he had. His father had problems identifying his son. It is likely that they would have drugged him to make him unconscious, cuffed his hands, tied his legs, put the dreaded hoodie around his neck and then severely tortured him. They knew he was a fighter and they would have come prepared. Morgan Tsvangirai called the murder ‘callous’ at the funeral and a researcher, Sam Wilkins, would conclude in the Journal of Southern African Studies (Volume 39, December 2003) that Tonderai Ndira was ‘legendary’, a ‘peacemaker’, a ‘street fighter’, ‘charismatic’, ‘visionary’ and a ‘comedian’.

When they finally found him, it was a harrowing scene. They discovered his body by mistake on the Parirenyatwa morgue. Tonderai’s body had been left to rot in an open field in Goromonzi, which is rumoured to have the intelligence torture chamber built under Ian Smith in the 1960s.

It would later emerge that the violence of May, June, July and August in 2008 was a well-coordinated military operation, that the commanders who executed the coup of 2017 were in control and that the current president, Emerson Mnagagwa, was the anchor of that unprecedented mayhem. They wanted to send a message to the core activists of the MDC that the state was watching and to strike fear. By the time that orgy of violence was over in 2008, the MDC would allege that over 500 of its activists had been murdered and some had just simply disappeared. Since then there are rumours that just outside Marondera, less than 100 km to the east of Harare, there is a dam where locals claim ruling party activists tied ropes and granite stones around opposition activists and threw them to sink to the bottom.

The second, a young radical journalist. Itai Dzamara.

He was vociferous about the socio-economic collapse in Zimbabwe. Itai was daring. He had been arrested, beaten up and roughed up a few times. Despite this, he kept going back to Africa Unity Square in the middle of Harare not far from the Munhumutapa Government complex and right adjacent to the Parliament building. With a few comrades they had started what was called Occupy Africa Unity Square Movement. Sometimes they slept there, sometimes they held placards but they kept going back.

The nation was starting to notice and the opposition leader made a visit. What was initially an inconvenience for the Robert Mugabe regime was becoming a rallying point. They went for him first with the usual propaganda and when that didn’t seem to deter him, they finally went for his neck. Itai had become a vocal critic of the Mugabe-led government. He was arrested. He was beaten up and detained on several occasions. His protest message was simple: ‘FAILED MUGABE MUST STEP DOWN’.

When they went for him it was in broad daylight. Witnesses said they saw an all-terrain vehicle circling the barbershop. Itai Dzamara was convinced that it was a vehicle that belonged to the intelligence services. In the poor urban streets of Glen Norah, the expensive car, the well-fed men and the guns stuck out like a sore thumb. They pounced on him stealthily, accusing him of being a ‘cattle rustler’. The kidnappers cuffed him, threw him into the vehicle and sped off. The vehicle had no number plates. They were armed with the infamous AK-47s. It was a signature state-sanctioned operation.

The nation was starting to notice and the opposition leader made a visit. What was initially an inconvenience for the Robert Mugabe regime was becoming a rallying point. They went for him first with the usual propaganda and when that didn’t seem to deter him, they finally went for his neck.

Since then the young journalist has never been seen. The ruling political class said the journalist had arranged his own abduction. His wife and two kids were left in the horror and constant trauma that they too could be targeted by the state security. Since then accusations and counter-accusations have flown around. The state propaganda even went as far as claiming that Itai Dzamara had organised his own kidnapping. It would later take a High Court application and several pleadings in Parliament for the police to even feign some level of investigation into the disappearance.

The third, a human rights activist. Jestina Mukoko.

She now chairs the NGO Human Rights Forum. She was the Director of Zimbabwe Peace Project (ZPP). Jestina had also worked for Radio Voice of the People whose studio in Harare was bombed in the middle of the night in August of 2002. The printing press of the Daily News had suffered a similar fate days after Professor Jonathan Moyo had declared that it was time to “put a final stop to this madness”.

While ZPP is a small organisation, they had devised a network of peace activists across the country who document political violence and they filed detailed reports of who was doing what, when, how and against whom. The security apparatus was watching and they feared the concrete evidence that ZPP was slowly and meticulously gathering. They went for her in the dead of the night. In the cover of darkness, with no warrant, no identification cards, bundled her into a car in a nightdress, firearms openly displayed, drove off into the night and definitely not to a police station.

She would later testify that she was blindfolded on several occasions, threatened with execution, severely beaten with a piece of iron and horse pipe under her feet until they were swollen (falanga method) and interrogated almost daily by people who were demanding ZPP documents. By the time they were done, in three weeks’ time, she mysteriously appeared at court charged with ‘recruiting’ or ‘attempting to recruit’ young men to ‘undergo military training’ in order to commit ‘insurgency, banditry, sabotage or terrorism in Zimbabwe’. When she challenged the prosecution in the Constitutional Court, the court stayed the prosecution and the learned judges were stating the following:

It is clear from the facts that at the time the State security agents kidnapped the applicant from home and later detained her at the secret place, they did not have reasonable suspicion of her having committed the criminal offence she was later charged with. They then used torture, inhuman and degrading treatment during interrogation to extract from her information or evidence on which they expected that the public prosecutor would act as a basis of a reasonable suspicion of her having committed the criminal offence with which she was then charged. (Judgment No. SC 11/12 Const. Application No. 36/09)

Jestina Mukoko, supported by the Zimbabwe Lawyers for Human Rights (ZLHR) sued the Ministry of Home Affairs and was awarded damages. The people behind the unlawful abduction and torture were never exposed or prosecuted. She would later write a book titled The Abduction and Trial of Jestina Mukoko: The Fight for Human Rights in Zimbabwe chronicling the most sordid and chilling details of Zimbabwe’s ‘shadowy’ state.

Jestina Mukoko’s and the pattern of abductions of activists reads like the scripts from colonial Rhodesia, apartheid South Africa or the scenes described in The Gulag Archipelago by Aleksander Solzhenitysn. In defence of its class position and the ruling networks, Zimbabwe’s state security apparatus has flourished, with largesse straight from the state. The country’s presidents have shown no appetite for making them accountable.

Trauma and tactics of war: Impunity and unaccountability

In the 1980s, the then president, Robert Mugabe, appointed the Chihambakwe Commission to investigate the now infamous killings called Gukurahunnd, by the 5th Brigade of the Zimbabwe National Army (ZNA). The commission report was never published.

The current president appointed the Motlanthe Commission to investigate the 1st of August 2017 killings in Harare just after the elections of July 2017. The recommendations of the commission remain unimplemented. Prosecutions have happened. In an interview with the Zimbabwe Television Network (ZTN), the Chief of the Defence Forces, Commander Valerio Sibanda, blamed a ‘third force’ and claimed after that after one year investigations are continuing. But once in a while the president revealed openly the way the state, party and military have become deliberately conflated:

We must be respected. We are the majority. We are the people. We are the government. We are the army. We are the army. We are the Air Force. We are the army. We are the police. We are everything you can think of. We determine who can do mining in Zimbabwe. We determine who can construct a railway line in Zimbabwe. We determine who can build a road in Zimbabwe. No other party can do so. (President Emerson Mnagangwa, 8th of May 2019)

But to learn how this came to be we have to look into the history of the liberation national liberation movement in Southern Africa. Liberation wars were a very, very messy affair. Comrades turned on comrades, colonial governments infiltrated liberation movements and, in extreme cases, used targeted assassinations to eliminate leaders.

In the midst of that maelstrom, liberation movements developed very cruel and brutal means of dealing with opponents. These divisions went to the heart of the movements and the nationalists became paranoid. Those with political ambition exploited the lapses and fanned ethnic and regional differences. The contradictions were captured in a former liberation army commander’s autobiography written by Wilfred Mhanda: Dzino: Memoirs of A Freedom Fighter (2011) and also in Fay Chung’s Reliving the Second Chimurenga: Memories from Zimbabwe’s Liberation Struggle (2006)

In the liberation camps itself, faction turned against faction with fatal consequences. This security paranoia spilled over into the independence era and the nationalists found a network of state institutions, detention facilities and torture tactics that had been developed by the settler-colonial regime. To the very brutal, totally vicious security apparatus left by white colonial-setter colonial Rhodesia, the national liberation movement added lessons from China and Russia who had often trained both the military and intelligence officers.

In the midst of that maelstrom, liberation movements developed very cruel and brutal means of dealing with opponents. These divisions went to the heart of the movements and the nationalists became paranoid. Those with political ambition exploited the lapses and fanned ethnic and regional differences.

Zimbabwe’s current president was in charge of that state security apparatus, which was fanned across the country and embedded into society, from overt intelligence officers in every district office to covert intelligence officers across the major institutions across the country ranging, from universities and straight into hotels. The current First Lady is a former intelligence officer deployed in the hospitality sector. The country has become a total Stalinist surveillance society.

Trashing or fulfilling the Constitution of 2013?

As Zimbabwe’s political class pushes the country to the brink, the Constitution of 2013 has become a new battleground pitting the ruling party against the opposition led by Nelson Chamisa. The government is engaged in a very deliberate process of watering down the liberal rights regime introduced by the Constitution of 2013. On the other hand, the opposition has started to push back, arguing that the ruling political class is delaying reforms and making sure the old political landscape of authoritarianism is entrenched. This was captured well by journalist Hopewell Chinono:

We have a newish constitution, newish because it is now six years old. It was put to a national vote through a referendum and agreed upon by the whole country. Up to now the laws of our country have not been aligned to that constitution which was put in place just a few months before the current President became Minister of Justice in August of 2013. He held this Justice portfolio until November of 2017 when he subsequently became the country’s President, so he is aware of what needs to be done to fix this issue, all he needs is the political will to do it. (Nehanda Radio, 15 June 2019)

Zimbabwe’s nationalist-military class is also building and serving conspiracy stories in large doses. At some point they blame the opposition for not joining a state-directed dialogue process; at another time they blame ‘foreign nationals’ of training bandits, at another time they arrest civil society activists for attempting to ‘subvert an elected government’ and yet another time they blame the collapse to ‘sanctions’. The Sunday Mail, a government-controlled paper, continues with this line, stating that “Government and security officials have been consistently warning that the there is a ‘third hand’ behind the disturbances that have been plaguing Zimbabwe since the July 30 2018 elections.” (18 August 2019).

The president preaches reform but only tinkers with the Public Order Security Act (POSA), promises media reform and opening up the media landscape but appeals a judgment by the High Court that the public broadcaster is biased. The president promises a crackdown against corruption but appoints the wife of the Minister of Foreign Affairs and one of his key allies as Chair of Zimbabwe Anti-Corruption Commission (ZACC).

The charade then consists of a few arrests of bureaucrats and a minister but totally ignores a damning disclosure by the Ministry of Finance, in Parliament, that they do not have paperwork to account for US$3billion disbursed under the ‘command agriculture’ programme. Command agriculture superintended by the military continues to be funded from the budget and was arguably used as an open cheque to fund the military coup of November 2017. The president preaches ‘austerity for prosperity’ but charters luxury jets. But this state of affairs is driving a new wave of despair and more protest.

Winds of protest: The qualitative change in the opposition

In February of 2016, the leader of the main opposition, Morgan Tsvangirai, passed on after a battle with cancer. Initial instability in the party has quietened down. But there is also another qualitative change in the opposition. The MDC Alliance leadership is now dominated by former student leaders. These former student leaders are not afraid of protests; most of them have been tortured, detained in jails before, some have been charged of ‘treason and subversion’, some have been exiled before and they all share strong levels of solidarity. They have no links to the liberation movement and they have a long-running disdain for the ruling political class.

The MDC Alliance have started a national mobilisation process aimed at having rolling mass protests. While the High Court stopped the initial protest on the 16th of August 2019 and the police issued ‘prohibition orders’, Nelson Chamisa, the leader of the opposition, stated that they will not backing down, saying the following:

7/15.Throughout the course of history no oppressed people have achieved freedom by complying with the dictates of an unjust system. They have challenged it. This is the historic task of our people our generation. The system a vicious machinery but the people have a valiant spirit.

15/15.In the days, weeks and months ahead, peaceful action is our force. To the people who will come out to express themselves we say it’s important to exercise your rights and to do so peacefully. (Nelson Chamisa, Twitter posts, 17 August 2019)

The United Nations has estimated that close to 5 million people will need food aid in the 2019-2020 farming season. In urban areas, the socio-economic crisis is radicalising unemployed youth and the routine deployment of police, army and security services is putting the national psyche on knife’s edge.

Electricity is gone two-thirds of the day, cholera and typhoid is stalking the urban populace, jobs are nowhere to be found, inflation is spiralling out of control, fuel shortages are the new normal, income is fast collapsing, unions are threatening strikes and the ruling party is beset by far-reaching factional contests. If one were to place a finger on the nation’s urban areas one can feel the intense palpitations of a nation-state hurtling on auto-pilot and the political class is preaching to itself about ‘third force’ conspiracies.

The political class would do well to heed that warning by Bob Nester Marley –in Zimbabwe a hungry man is an angry man.

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The Rebels Within: The Politics of Kieleweke and Tanga Tanga in Central Kenya

12 min read. Dissent is brewing in President Uhuru Kenyatta’s Kikuyu strongholds, which has allowed Deputy President William Ruto to gain support in the region.

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The Rebels Within: The Politics of Kieleweke and Tanga Tanga in Central Kenya
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The fracas that took place in Gitui Catholic Church in Murang’a County on September 8, 2019, is a harbinger of the political battles that are going to be fought in Central Kenya and the larger Mt Kenya region by the fractious Jubilee Party antagonists.

“The battle for the soul of the Kikuyu vote is on and what we witnessed in Murang’a was a proxy war being waged by two factional camps, split by succession politics that are intent on capturing the Kikuyu vote ahead of the 2022 general elections,” said a Central Kenya politician who requested for anonymity.

The camps are led by President Uhuru Kenyatta and his Deputy William Samoei Ruto. Fronted by their respective protégés, the factions are known by their signature monikers – Kieleweke (it shall [soon] be evident) and Tanga Tanga (the roving group). Although President Uhuru has not come out openly to associate with the @Kieleweke group, which is being fronted by one Ngunjiri Wambugu, the flip-flopping Nyeri Town MP, his deputy, no doubt, has made it known that he is the de facto Tanga Tanga leader, a label he proudly carries.

The church lent itself as a perfect scene on a Sunday afternoon for the antagonists to outdo each other as they sought to prove to their respective masters that were ready and willing to wage a proxy battle on their behalf. As it will soon be evident, Murang’a County, sandwiched between Kiambu and Nyeri counties, is the very ground where the battle for the much-coveted Kikuyu electorate will be viciously fought.

If the Kieleweke group has smelt dissent and infiltration of enemies in what they consider to be their unrivalled turf, the Tanga Tanga group, in its roving mission, has stumbled upon a restless electorate, anxious and willing to be wooed by a ready suitor. The electorate has sniffed a one-time opportunity to prove (to its sister counties) that it too can also ascend to the highest echelons of political power and it should not be taken for granted.

The Kieleweke group, this time led by nominated MP Maina Kamanda – a man who now carries the label KYM (kanda ya moko, Kikuyu for a hatchet man) – “sneaked” into Kiharu constituency, an unacceptable political tourism into another MP’s territory without his prior notice. As Uhuru’s man on the ground, he had carried Sh1 million to be donated to the church on behalf of the president. Getting whiff of Kamanda’s meandering into his constituency, Ndindi Nyoro, the greenhorn Kiharu MP, who today is described as the “Murkomen” of Central Kenya, burst into the church to let Kamanda know that he was the sheriff in town and that others could not appear in his turf without his prior knowledge and permission.

“The ensuing kerfuffle between Nyoro and the elderly Kamanda inside the church was, as unfortunate, the proxy battles being fought elsewhere in the country by the Jubilee factional wings,” said a Mt Kenya politician who has known Kamanda for well over three decades. “We were with Kamanda in the opposition politics in the 1990s and one time I and another Central Kenya MP went to bail him out in Embu town after former President Daniel arap Moi ordered that he be locked in a police cell for his utterances.”

If the Kieleweke group has smelt dissent and infiltration of enemies in what they consider to be their unrivalled turf, the Tanga Tanga group, in its roving mission, has stumbled upon a restless electorate, anxious and willing to be wooed by a ready suitor.

The politician told me he has been calling Kamanda’s mobile phone number to no avail. “He has refused to pick my call…just as well…because I wanted to tell him that the September 8 ugly scene was beneath him. As a senior politician, he should have known better than to engage in such like shenanigans.”

But the Mt Kenya politician reserved the harshest barbs for both the Catholic Church’s leadership and the parish priest, Fr John Kibuuru. “That priest is a vagabond. For him to have allowed the politicians to desecrate the offertory was a cardinal sin to, especially us Catholics. The offertory is where we go to offer our supplications, it is a sacrosanct place – how dare he let vagabonds like him defile the holy sanctuary?”

The politician, a staunch Catholic known for his morning mass and an unfailing Sunday service attendance wherever he is, reminded me: “I have never conducted my politics inside the precincts of the church for all the 30-something years I have been in politics. The Church can bare me out…you can bare me out. If and when I want to meet the electorate, who form part of the congregation, I ask it we meet outside the church, after the priest is done with the mass. I’ve always respected the sanctity of the church.”

It was useless for Bishop John (Maria) Wainaina, of Murang’a diocese who also oversees the Kirinyaga diocese to issue a belated decree the day after, ordering politicians to keep off the church’s sanctum, said the politician. “The pulpit should not, at all times, be a place for politicians to address the electorate – the politicians have their forums to do that – and the church’s rostrum is not one of them.” The politician accused Fr Kibuuru of being partisan on the current succession politics and for letting himself be dined and wined by politicians.

“For my church, I’m sorry to say it has lost its direction: the clergy is no longer the light of the laity. For that ugly scene to have taken place in a Catholic church shows you just how lowly the Catholic church leadership in Kenya has sunk. Priests nowadays do what they feel like doing. The bishops cannot reign in on the priests because they themselves are no better.”

He added that the Catholic Church has been infiltrated by ethnic baronial politics, which has chosen to serve the interests of political power brokers. The politician said the church in general, in Kenya has ceded ground to the politician because of greed for money and power.

Gitui Catholic Church is on your way to Kangema and some of the congregants told me that Kamanda’s coming to Kiharu without notifying Nyoro was disrespectful and uncalled for. “Kamanda should know we have an MP whom we elected ourselves, he shouldn’t stomp here like it’s his area, Nyoro is young, but he is ours.” The Kiharu residents let it be known to me that “after all, Kamanda is not from here, he is from Nyandarua, if he wants to be elected, there is Nyandarua for him if Nairobi has become too hot for him to handle.”

The 36-year-old excitable Ndindi Nyoro has been riding on the crest of a popular wave since that hullabaloo with Kamanda. His electorate right now think of him as a local hero for standing up to Kamanda and for expressing his political stand – which at the moment gels with the electorate: dissatisfaction with President Uhuru’s disastrous politics.

Ndindi’s Kiambugi Mixed Secondary schoolmates remember him as a feisty young man who dreamt of one day being an important (wealthy) man. A relative of Ngenye Kariuki, Ngenye refers to Nyoro as his grandson. He campaigned for Ngenye in 1997 when he run for the same Kiharu seat, as a student. “He was very active, organising for Ngenye’s supporters to be ferried in trucks to his rallies and exclusive meetings,” said one of his schoolmates. Ngenye won the seat on a Safina ticket and Ndindi four years later transitioned to Kenyatta University. Kiambugi Mixed Secondary School later on was transformed into a boys’ only high school.

Between 2013 and 2017, Ndindi Nyoro, served as the Constituency Development Fund (CDF) manager for Kiharu under Irungu Kangata. When Kangata decided to go for the senator seat, there was understandably a mutual agreement between them that Nyoro should “take over” from Kangata. Today, Nyoro has publicly identified his politics with those of Deputy President William Ruto, claiming that he is the best suited to “take over” from President Uhuru who is serving his last second term. His Kiharu constituents seem to largely agree with him…for now.

The Matiba factor

Kiharu constituency is famous for being at one time represented by the irrepressible Kenneth Stanley Njindo Matiba, the rambunctious politician who was detained by President Moi in 1990 and never recovered from his stroke till his death in April 2018. Matiba still evokes nostalgic emotions from Murang’a residents, who still view him as the president they never had. It is a “grudge” they carry against their cousins from both Kiambu and Nyeri counties, albeit surreptitiously.

The general election of November, 1979 called by a new President Moi, who had taken over from Mzee Jomo Kenyatta, who had died on August 22, 1978, saw an energetic, bold and young Matiba enter the race for Kiharu, then known as Mbiri, armed to the teeth with the latest statistical data on the constituency. Fresh from being the managing director of East African Breweries Limited (EABL), Matiba waged a political battle pitted against the “mighty” Gikonyo Kiano, which Kiano, until his death in April 2003, was never to recover from.

In an era when statistics as an effective campaign tool was unheard off, Matiba came to Mbiri with data that laid bare the geographical, socio-political and economic facts of the constituency: gender composition, household incomes, number of graduates, population density, the area’s topography, voting patterns, I mean…name it. With these facts, Matiba, with military precision, combed the length and breadth of Mbiri, and floored Gikonyo, the first post-independence Minister of Trade and Commerce, in a battle royal that is the stuff of political legends.

When the son of Njindo entered the presidential race in 1992, it was not the same Matiba who, more than a decade before, had entered constituency elective politics as a corporatist, dare-devil, intelligent and sharp man. Although the presidential race was won by the incumbent Moi, Murang’a people to date believe that Matiba won that election, in which he ran alongside Ford Kenya’s Jaramogi Oginga Odinga and the Democratic Party’s Mwai Kibaki.

However, it was Kibaki’s entering the presidential race in 1992 that still rankles the Murang’a folks: Had he not run, the Kikuyu vote would not have been split and, therefore, Matiba would easily have romped home, many of them believe. It is something they will not say loudly, but it is still a chip on their shoulder after all these years.

Kiharu constituency is famous for being at one time represented by the irrepressible Kenneth Stanley Njindo Matiba, the rambunctious politician who was detained by President Moi in 1990 and never recovered from his stroke till his death in April 2018. Matiba still evokes nostalgic emotions from Murang’a residents, who still view him as the president they never had.

“The people of Murang’a County break no bones when they insist they have supported both Kiambu and Nyeri people to ascend to the presidency. But those same people have yet to reciprocate the gesture,” said a former Nairobi city councillor from Dagoretti. “This feeling of ‘abandonment and betrayal’ by their cousins, was aggravated in 2017, when the Murang’a moguls ceded control of Nairobi to a ‘lay about and nonentity’ through Uhuru’s carelessness and cowardly politics.”

The former councillor, who keeps tabs with the Rwathia Group, the influential and richest group of Kikuyu men who since independence have controlled the business and politics of Nairobi city, said the moguls seethe with anger against President Uhuru for the loss of the Nairobi County governor’s seat to Mike Mbuvi Sonko in 2017. “That is all we had asked from Uhuru, to allow us to have Nairobi, but even that he could not deliver,” confided the moguls to my councillor friend.

“The Murang’a people have smelt an opportunity and they are ready to seize it,” said the former councillor. “Uhuru is not going to be a factor insofar as 2022 succession politics are concerned: no Kikuyu voter, much less the political elite, is going to listen to him – he has done his call of duty and as it is, they are not amused with his performance,” the former councillor said.

The Raila factor

The anger against President Uhuru among the Kikuyu electorate makes Ruto seem like the only viable alternative. “It is going to take a near miracle for President Uhuru to persuade the Kikuyus to listen to him. The Kikuyu rebellion against the Kenyatta Family this time is real.”

The Kikuyus are plotting to vote for William Ruto as a protest vote and teach President Uhuru a lesson, said one of the richest magnates in Murang’a. “Raila will never rule this country. If Uhuru thinks we will be swayed by his belated shaking of hands with that ‘mad man’, he has another thing coming. Uhuru has overseen the systematic destruction of the Kikuyu economy – he was supposed to protect it, instead, what has he done? He has presided over its deliberate collapse. Is that not why he is sending Kamanda to us? Because he cannot dare venture into Central Kenya or anywhere near Mt Kenya region?”

The Murangá magnate said, “The Kikuyu people will frustrate Raila’s presidential efforts until he grows so old that he will not have the stamina to run. We are waiting for that Uhuru to come and tell us about the handshake. We will tell him our minds.” If by supporting Ruto, the Murangá people can attempt a stab at the presidency so be it, said the tycoon. He said that President Uhuru spent half of his presidential campaigns demonising Raila, so much so that, to now point the Kikuyu people to his direction is to really mock them. “Has Uhuru come back to the Kikuyu people to undo the damage?” he asked.

The many forays by Deputy President Ruto’s team into the heartland of the Kikuyu domain is because he has established that the people are divided and are not speaking in one voice, said a one-time senior civil servant from the Mt Kenya region. “He knows the President’s core constituency is bitter with him and because he [Uhuru] is unsure of their retribution against him, he has dilly-dallied going home. So the DP has taken advantage of this lacuna to make inroads into the region and is consistently preaching a message that entrenches their hatred for Raila Odinga.”

A poll survey conducted recently by a professional research group showed that if presidential elections were to be held today, William Ruto would win by 45 per cent countrywide, and in the Mt Kenya region, he would garner a very strong support. The poll’s sample size, significantly larger than the usual 3000 people, was picked across the 47 counties. The somewhat surprising poll results dissuaded the firm from publishing its findings and making them public. Ruto is considered an incumbent, and therefore a frontrunner, and the only person who has explicitly said he would be gunning for the presidency come 2022. His is not only a brand name, but he has name recognition across the country.

To tame the deputy’s presidential ambitions and to curtail his perceived inroads into Central Kenya and the larger Mt Kenya region, his political nemeses in the Jubilee Party have been making his interlocutors lives’ in the region, difficult.

The Kikuyus are plotting to vote for William Ruto as a protest vote and teach President Uhuru a lesson, said one of the richest magnates in Murang’a. “Raila will never rule this country. If Uhuru thinks we will be swayed by his belated shaking of hands with that ‘mad man’, he has another thing coming…”

“The hauling of the Kiambu governor to court and making him spend some days in police cells over corruption charges is part of the handshake’s efforts to throttle the DP’s penetration of the area,” said the former senior civil servant. “When he was thrown into custody at the Industrial Police Station cells, Ferdinand Waititu (Kiambu Governor) was visited at night by a Jubilee Party mandarin allied to President Uhuru’s wing who mocked him by telling him ‘to now call the DP’ to bail him out.” The mandarin allegedly warned Waititu that he was going to pay for his cavorting with the Deputy President.

Governor Waititu apparently is not the first Central Kenya politician to be “punished” by the “handshake team” for not toeing the line: “The first to be tamed was the deleterious Gatundu South MP Moses Kuria, who immediately after the swearing-in of President Uhuru Kenyatta for his second term in November 2017, was seen as Ruto’s point man in Central Kenya. He was slapped with an unpaid tax accumulated over the years that effectively cooled his heels,” said the former senior civil servant.

Yet, according to the senior civil servant, it was Governor Ann Mumbi Waiganjo, formerly known as Ann Waiguru, who had to be quickly nipped in the bud because she was thought to be running ahead of herself. Immediately after being confirmed as the Governor of Kirinyaga, after a protracted court battle filed by her opponent, former Gichugu MP and 2013 presidential contender, Martha Wangari Karua, it is alleged that Governor Ann Mumbi Waiganjo went around telling and whispering to anybody who cared to listen that she was primed to be Deputy President William Ruto’s running mate come 2022.

“The Kirinyaga governor was therefore seen as a possible and viable teammate of Ruto in his search for a deputy from the all-important Mt Kenya region,” said the former civil servant. “To stop forthwith that talk that apparently was interpreted as rallying the larger Mt Kenya region in the direction of the Deputy President’s team 2022, the governor was aptly reminded of the National Youth Service (NYS) mega scandal that took place in 2016 when Ann Waiguru was the Cabinet Secretary for Devolution.”

The sudden change of tune by the Kirinyaga governor is not out of step, said my source: “That today she is singing the ‘handshake tune’ is not as a result of a Damascus moment, the realisation that after all, it isn’t a good idea to be a deputy president of Kenya. It is the flexing of power of the opposing sides within the Jubilee Party at play.”

Since her change of tune regarding local and national politics, the governor has had to face the wrath of some of her constituents: Last month, when she went to open a market in Kagumo town, she was jeered by a mob that she claimed was paid to do so. Paid to do so, because it told her off over her support of “the handshake” and the Building Bridges Initiative (BBI).

Kagumo town in Kirinyaga Central constituency is the hotbed of Kirinyaga County politics. And this is not the first time the governor was being chased away from Kagumo: When she was campaigning for the governor’s seat, she was also one time ferreted out of the town. It took the intervention of Purity Wangui Ngirici, then campaigning for the Women Representative seat, to help her navigate around Kirinyaga County.

“It is Ngirici who held Ann’s hand in a manner of speaking and showed her the ropes in Kirinyaga,” said one of Karua’s chief campaigners. “Waiguru didn’t know the nooks and crannies of the county – it was Ngirici who showed her around. Remember Ngirici was always a William Ruto person: the helicopter she was campaigning in – which was emblazoned with her name Wangui – was lent to her by Ruto.” Purity Wangui Ngirici hails from one of the two most powerful families in Mwea: Mbari ya Douglas, (the clan of Douglas) and Mbari ya Mkombozi (the clan of the saviour). She is married to Ngirici, who is the son of the late spy master James Kanyotu.

Ngirici, who is in her late 40s, is the Women’s Rep, but by and large she controls the politics of Kirinyaga: three-quarters of all the elected MCAs owe allegiance to her. To checkmate her, the governor equally nominated her loyalist MCAs to counterbalance Ngirici’s force. Ngirici has trashed the handshake and has been telling the Kirinyaga electorate that the BBI’s motive is to unload Raila onto them by creating additional executive positions.

In Ngirici, Ruto has a powerful ally in the county. It is, therefore, not improbable to imagine where Ngirici’s politics are headed: in 2022 Ann Mumbi Waiganjo will have a worthy opponent for the governor’s seat. And if all factors remain the same, it is also not too difficult to imagine whose drumbeats she will be beating: William Ruto’s.

On the peripheries of Mt Kenya region, other Ruto allies include the Kikuyu MP Kimani Ichungwá, Kandara MP Alice Wahome, Kiharu MP Ndindi Nyoro and Bahati MP Kimani Ngunjiri. “These are relatively young MPs (of course apart from Kimani) in age and politics. They are pragmatic enough to know where their political bread is buttered; not with Uhuru, but with Ruto…so it’s nothing personal,” said a Jubilee Party politician from Mt Kenya.

In an area where 70 per cent of the incumbent MPs are thrown out every five years, these MPs are closely reading the signs on the wall – and the signs on the wall currently in the Mt Kenya region are that William Ruto is the man to beat.

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Will the New Competency-Based Curriculum Lead to Declining Educational Standards in Kenya?

8 min read. The newly rolled-out education system will not live up to the aim of transforming education in Kenya. Collective efforts are, therefore, needed to save Kenya’s education system from vested business interests and international agencies with hidden agendas.

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Will the New Competency-Based Curriculum Lead to Declining Educational Standards in Kenya?
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Research findings recently released by the Kenya National Union of Teachers (KNUT) show that Kenyan schools are woefully unprepared to implement the Competency-Based Curriculum (CBC) that is set to replace the so-called 8-4-4 system. The report comes at a time when the country is grappling with issues of curriculum review and the reform process, teacher training and recruitment, the formulation and implementation of a national education policy and the implementation of CBC. The research, conducted by KNUT, looked into issues of teacher preparedness, the availability and adequacy of teaching materials, the level of engagement between teachers and parents, as well as the challenges faced by head teachers and teaching staff in implementing CBC.

KNUT concludes that the implementation of CBC has been hurriedly undertaken while the majority of teachers have not been sufficiently trained in CBC content and teaching methods. It adds that most pre-primary teachers, as well as those for grades one to three have not received any training whatsoever while those that did attend training workshops were inadequately trained by trainers and facilitators who were themselves incompetent in the delivery of the CBC approach.

The research also found that the training sessions were poorly conducted and that their effectiveness fell well below expectations, hindering the ability of teachers to design, assess, and evaluate the delivery of lessons and learners’ outcomes. The report also notes that the resources and infrastructure required for learning, assessment and capacity-building in the CBC approach—which are completely different from those in use in the current system—are non-existent or inadequate at best. Parents and other stakeholders have not been involved in the reform process nor have public awareness campaigns been conducted following the roll-out of CBC.

The CBC system and design

Formal education was introduced in Kenya during the British colonial era and between 1964 and 1985 the education cycle comprised seven years of primary school, four years of secondary school, two years of high school, and three years of university education. The 8-4-4 system of education—eight years of primary school, four years of secondary school and four years of university education—was introduced in January 1985 to address concerns that the basic education previously provided lacked the necessary content to promote widespread sustainable self-employment.

The Kenyan primary school curriculum is approved for all public schools and most private schools—with the exception of international schools, which usually offer the British or American curriculum. The subjects studied at the primary level are English, Kiswahili, Mathematics, Science, Social Studies, Religious Education, Creative Arts, Physical Education and Life Skills. Pupils take a national examination at the end of the primary cycle with the results of the Kenya Certificate of Primary Education (KCPE) determining placement in secondary school.

In a major departure from the 8-4-4 system, the proposed CBC system was launched in 2017 and is designed to comprise two years of pre-primary education, six years of primary education, three years of junior secondary education, three years of senior secondary education and three years of university.

The Kenyan CBC is designed with the objective that at the end of each learning cycle every learner will be competent in the following seven core competency areas: communication and collaboration; critical thinking and problem-solving; imagination and creativity; citizenship; learning to learn; self-efficacy; and digital literacy.

CBC places emphasis on competence development rather than on the acquisition of content knowledge. This effectively means that the teaching and learning process has to change its orientation from rote memorisation of content to the acquisition of skills and competencies useful for solving real-life problems. Teaching methods include role-play, problem-solving, projects, case studies, and study visits, among other learner-centred strategies, and the teacher is expected to switch from the role of an expert to that of a facilitator who guides the learning process. Learners are expected to take responsibility for their own learning through direct exploration and experience while their teachers are expected to design effective learning activities geared towards the development of specific competencies.

Moreover, the revised curriculum requires teachers to frequently assess their students using assessment methods, such as portfolios, classroom or field observation, projects, oral presentations, self-assessments, interviews and peer assessments. Teachers are also required to change from a norm-referenced to a criterion-referenced judgment of learners’ capabilities or competencies to determine their progress. Finally, teachers are supposed to provide continuous, timely and constructive feedback to inform their students about the strengths and weaknesses of their performance since instruction and learning are reviewed and modified based on the feedback.

CBC places emphasis on competence development rather than on the acquisition of content knowledge. This effectively means that the teaching and learning process has to change its orientation from rote memorisation of content to the acquisition of skills and competencies useful for solving real-life problems.

It is clear, therefore, that the introduction of CBC in Kenyan schools calls for a comprehensive change in the instructional approach in terms of teaching, learning and assessment, and this requires changes in teacher training programmes in order to equip teachers (both pre-service and in-service) with the competencies that will enable them to effectively handle the challenges associated with CBC implementation in schools.

However, Kenya initiated the implementation of the Competency-Based Curriculum in 2017 in the absence of any research-based evidence on the effectiveness of the new system. Despite the challenges and shortcomings identified by the internal and external evaluations of the pilot study on CBC implementation, the government went ahead with the national roll-out of CBC in January 2019.

Prior to its adoption and roll-out, no comprehensive survey of international best practices was conducted and nor was there any research to support the argument that the CBC framework is more effective than the current learning outcomes-based curriculum framework. The needs assessment was not properly conducted. The summative evaluation, which was conducted in 2009, cannot be the basis for reforming the curriculum in 2018. The entire process was dominated by foreign consultants with no experience in curriculum reform in Kenya. The involvement of teachers, university lecturers, and prominent local experts was minimal.

Moreover, an illegality was committed at the time of rolling out CBC for pre-primary and Standards One to Three as there was no Sessional Paper to guide the process and, furthermore, no review of the existing education system had been undertaken by an Education Commission prior to the roll-out. Pilot testing of the curriculum was hurriedly done over a few short months and without appropriate syllabus or pupils’ books and teachers’ guides.

It must also be pointed out that the introduction of technical and vocational courses in the school curriculum is a serious mistake as the purpose of basic education is not to train students but to make them trainable. Empirical studies show that competency-based models are mainly applicable to vocational education and training due to the emphasis placed on standards of competence in occupational sectors. Competence is the possession and demonstration of knowledge, understanding, skills, attitudes and behaviour required to perform a given task to a described standard. The concept is therefore more useful in vocational education since the emphasis is on the ability of the student to perform a set of related tasks with a high degree of skills, and a particular competency can be broken down into its component parts through task analysis.

Prior to its adoption and roll-out, no comprehensive survey of international best practices was conducted and nor was there any research to support the argument that the CBC framework is more effective than the current learning outcomes-based curriculum framework.

The adoption of CBC in Kenya—as in some other African countries, such as Botswana, Senegal and South Africa—may be explained in part by the current tendency of some international agencies to favour such pedagogies. In most of the countries concerned, however, attempts to institutionalise child-centred pedagogy in schools and teacher-training institutions have been inconclusive and, indeed, no country in the world has successfully implemented CBC. It is therefore a disturbing development that the member countries of the East African Community have—according to Sessional Paper No. 14 of 2012—adopted a common policy of harmonising education systems and training curricula that will shift focus from the standard curriculum design to the CBC and assessment approach.

Tanzania introduced CBC in secondary schools in 2005 and in primary education in 2006. Back in 2001 the Ministry of Education and Culture had asked for education to be treated as a strategic agent in the creation of a well-educated nation. The ministry anticipated developing an education system that would enable Tanzanians to be sufficiently equipped with the knowledge needed to competently and competitively solve the development challenges facing the nation.

However, a 2012 study on the implementation of the competency-based teaching in schools in Tanzania established that CBC had not been well implemented and more efforts needed to be devoted to the development of tutors’ and principals’ understanding of the CBC approach. Other studies conducted to assess CBC implementation in Tanzania have confirmed that there is very minimal use of the CBC teaching approach in schools and that more than 80 per cent of the teachers lack a proper understanding of the approach and continue to use traditional knowledge-based teaching and learning methods, with assessment methods remaining the same as those used in assessing knowledge-based teaching and learning, while the teaching approach continues to be teacher-centred.

Hidden agendas

The role of education in the development process cannot be over-emphasised. There is substantial empirical evidence of the crucial role of education in poverty reduction, human development, job prospects for individuals and the broader social-economic development of nations. In other words, education plays a key role in the transformation of societies. Unfortunately, the impact of education in sub-Saharan African countries has been minimised because African countries have often been put under pressure to adopt unrealistic reforms by a small number of nameless and faceless experts working in international organisations, such as the United Nations Educational, Scientific and Cultural Organisation (UNESCO), the United Nations Population Fund (UNFPA), the United Nations International Children’s Fund (UNICEF), the International Monetary Fund (IMF), and the World Bank, who have a hidden agenda and normally exert their influence indirectly from behind the scenes.

Curriculum reform is necessary if we want to improve the quality of education in Kenya. However, curriculum reform should be based on the needs of learners and society and on best international practices and standards. It is an orderly, planned sequence in which curriculum specialists, teachers, university lecturers who have undertaken advanced academic studies in curriculum development and other local education experts—including the Ministry of Education professional staff who have extensive experience in curriculum development, implementation and evaluation—assist in conducting a needs assessment identifying a problem, finding a solution, conceptualising the required curriculum, planning and designing a reformed curriculum, pilot-testing the revised curriculum on a small scale, then implementing it nationally.

Unfortunately, the views of the Ministry of Education and the team of local consultants and foreign experts have tended to dominate decisions about the ongoing curriculum reform process. The prominent role of UNICEF—and not UNESCO—in the reform process raises fundamental questions about the agenda of the donor.

Curriculum reform is an improvement or change of the curriculum for the better. It involves the development and utilisation of the curriculum in new and unique ways that will enhance the attainment of higher levels of achievement for students. Curriculum reform is mainly concerned with changes in the content and organisation of what is taught. Many people and organisations, including teachers’ unions, professional bodies, religious organisations, students, teachers, curriculum specialists, quality assurance and standards officers, educational administrators and community leaders concerned with matters of education often seek to bring reforms to the school curriculum.

Curriculum reform is necessary if we want to improve the quality of education in Kenya. However, curriculum reform should be based on the needs of learners and society and on best international practices and standards.

In most African countries—and Kenya is no exception—curriculum developers are the gatekeepers who critically assess the different proposals for curriculum reform and make recommendations for the changes to be made to subject panels and academic boards. The authority for the decision to change the curriculum rests with the Academic Boards of Curriculum Development. Many educators, including those from Kenya, are now rejecting the externally-driven approach to education reform. They propose instead an interactive and participatory approach which involves—and begins with—an evaluation by classroom teachers and district education personnel. This ensures that the views of the people closest to the process of teaching and learning are taken into account.

Based on the findings of the research conducted by KNUT, it is fair to conclude that the implementation of CBC has not lived up to the aim of transforming education in Kenya. Collective efforts are, therefore, needed to save Kenya’s education system not only from vested business interests and local cartels, but also from international agencies and non-governmental organisations with hidden agendas. The Ministry of Education should commission highly educated and experienced curriculum developers and evaluators to produce a high-quality curriculum which is relevant to the Kenyan child and to the needs of the country.

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