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Borders versus People: Part III – Games within a Game

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In this final part of a three-part series, KALUNDI SERUMAGA explains why illegitimate power cannot rule legitimately, and remains permanently insecure in crisis or near failure. As a remedy, it seeks to clothe itself with the garments of legitimacy.

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Borders versus People: Part III – Games within a Game
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The peeping game

In 2017, some sharp-eyed IT managers at the African Union (AU) realized that bugging devices had been planted in the computer servers and conference rooms of the shiny new headquarters building. It was only inevitable that the Chinese were to be seen as prime suspects, given that it was them that had so kindly met the cost and physical labour of putting up the building.

In the ensuing debates, only then incoming AU chairperson, Rwanda’s president Paul Kagame, was unbothered.

“I don’t think spying is the specialty of the Chinese. We have spies all over the place in this world,” the chairman said. His only concern was that Africa had not got its act together. “We should have been able to build our own building.” but even then, he mused: “if you bring people to build for you, they may still spy on you.”

Such candour was refreshing, and brings another context about the mutual accusations of spying, subterfuge and intrigue being exchanged between the regimes of Rwanda and Uganda.

Mid-August regional media reports –to the extent that they can be relied upon, given the greatly partisan atmosphere- tell us that the mounting tension in the Uganda-Congo-Rwanda border region may have finally spilled over into open fighting, with Rwanda seeking to eliminate what it has been saying is an armed threat from a Uganda-backed rebel group based in the Democratic Republic of Congo (again), and led by former Kigali insiders.

A source close to the Kigali regime recently assured me that reports of the Rwanda Special Forces decimating a significant encampment of Rwandan National Congress (RNC) rebel forces are completely true, based on photographic evidence he claimed to have seen.

Since then: a frosty diplomatic process facilitated by the state of Angola, has sought to de-escalate tensions, by coaxing the presidents of the two countries into signing a 21st August Memorandum of Understanding. Its key points are: respecting mutual sovereignty; no acts of subversion in the territory of the other party, as well as third countries (read Congo); do nothing to create the impression of an interest in such destabilization, thereby eliminating all factors that may create such perception; and respecting the civic rights and freedoms of each other’s visiting citizens.

A source close to the Kigali regime recently assured me that reports of the Rwanda Special Forces decimating a significant encampment of Rwandan National Congress (RNC) rebel forces are completely true. His assertion is based on photographic evidence he claims to have seen.

The last clause is critical here. It clearly refers to the many Rwandan citizens that Kigali says are and have been held for long periods of time –some up to two years- by Uganda intelligence operatives, and subjected to inhuman treatment.

The Rwandan state, and its regional media allies point the finger squarely at Uganda’s historically notorious Chieftaincy of Military Intelligence (CMI).

The facts are that the CMI acquired this fearsome reputation well back in the early days of President Yoweri Museveni’s National Resistance Army (NRA) 1986 ascension to power. Known then as the Directorate of Military Intelligence (as its Rwanda counterpart is now called), it was the grinding stone against which many a rebellion, coup attempt and even simple civilian political agitation was ground to dust by very brutally efficient methods of murder, torture, deception, intrusion, and intimidation.

This accusation comes weighed down with a most striking irony: in those early days, the Directorate’s deputy Director was one Paul Kagame, still incarnate as an officer of the NRA.

All this tells us quite a few things.

First, that the accusation that CMI is illegally apprehending and then torturing Rwandans is entirely credible, given its history, particularly of the early days of basically physically crushing the armed resistance that had spring up in northern Uganda. These episodes are not particularly well-known, as the global human rights NGO police, and rising Ugandan corporate feminist movement and the Western diplomatic community seemed to see many opportunities in the freshly-minted NRA regime, and chose to simply “not see”, what was going on. In addition, in the subsequent decade, many of the regime insiders in Uganda who were to become leading opposition voices after the falling out, also seem to have difficulty in making specific references to this foundational period of the regime. This could well be because they were in positions where they were much better informed than others back then, to now claim ignorance.

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This focus on Rwandans could even be considered an act of inclusivity, given that CMI stood accused of torturing everyone else in the days when it was heavily staffed by Rwandans of various citizenship.

Secondly, it is entirely possible, and in fact quite logical, that Rwanda’s government would seek to maintain an information-gathering network inside Uganda. Given President Kagame’s reaction to the AU scandal, it would be naïve to assume that he did not see a need to also build a Rwandan “back door” in the Ugandan intelligence outfit he helped to build. This, as the AU chairman pointed out in that context, is how the spying game works.

 

 

 

By the same token it would be entirely logical and natural to assume that if the Rwanda regime is in fact deploying its spies to Uganda that the Ugandan regime’s security apparatus would endeavor to seek out and apprehend any such person.

Naturally, it would also be quite logical that the human resource of any such network would comprise Rwanda nationals, Uganda nationals of Rwandan descent, and of course even other Ugandan nationals seeking pecuniary or other gain.

So, for any Rwandan national to now find themselves captive of a Ugandan organization designed in part by his or her president, this is a very ironical kind of homecoming indeed, as clearly, those institutional habits did not begin only after (now President) Paul Kagame left.

Thirdly, given the long public record established by President Museveni in reneging on agreements -and also President Kagame’s knowledge of this from his time as a high-level enforcer of Museveni’s will during his own time as a Uganda regime apparatchik- observers would be wise to see the Luanda MOU as the latest stage in a continuing feud, as opposed to the beginning of its end.

The intelligence, combat and diplomatic shenanigans are therefore neither a cause nor a solution to this game; they are merely details in a game still being played out. We need to look deeper.

The labelling game

Since the difference between Ugandan and Rwandans –from throne to commoner- have never really been as real as the current Kigali-Kampala standoff have made it, there can be perhaps no greater illustration of the appearance of Birds fighting their reflection in a window pane. If anything, the dispute is a critical example of how similar the two political cultures –old and new- are.

The concept of Rwandan immigration to “Uganda” is a rather fluid one. Rwanda existed long before Uganda ever did, and before either colony was created. In some sense, anyone in south western Uganda could be considered Rwandan just as anyone in certainly northern Rwanda could be considered “Ugandan”.

And Rwandan indigenous communities are organized along lines followed also by communities in south and south-western Uganda, not to mention Burundi, right down to often having the same clans. There are families -some now quite prominent- in what is now south-western Uganda, whose ancestry can be traced to migration from Rwanda as far back as the 16th Century.

Perhaps we should therefore see the colonial project, and this neo-colonial one now being held together by these bickering presidents, as an interruption and distortion to those historical relations.

The concept of Rwandan immigration to Uganda is a rather fluid one. Rwanda existed long before Uganda ever did, and before either colony was created. In some sense, anyone in south-western Uganda could be considered Rwandan just as anyone in northern Rwanda could be considered Ugandan.

Subsequent to colonization, there were groups of people who migrated to Uganda, who were now being called Rwandan. The first known such group was a group of embattled aristocrats from the Rwandan royal court, who had to leave following an internal political upheaval. The eventually settled in Namutamba, mid-western Buganda.

There followed a few waves of economic migration, due to the growth of Uganda’s colonial economy. It should be noted that it was the district authorities in Western Uganda that first passed laws restricting migration from Rwanda, followed eventually by the colonial government as a whole.

The migrations culminated in the almost exclusively Tutsi influx that followed the 1959 Hutu “revolution” mentioned in part II.

Many prominent Ugandans can be traced to all these developments.

The actor-playwright Deborah Asiimwe, proprietor of the Kampala International Theatre Festival once told me of her grandmother whose speaks very fluent Luganda as a result of having lived in the Buganda royal court in the 1930s, where she had been expected to become a wife to then Kabaka Daudi Cwa, whose reign ended in 1939.

The late Dede Majoro (d. 1995), perhaps the most gifted guitarist this region has ever seen, also lived for a while in Buganda royal court in the reign of Kabaka Edward Muteesa (1939-1966), along with many of his siblings. Kabaka Muteesa provided them sanctuary after their father Silas Majoro (and former schoolmate at Buddo), a senior advisor to the deposed Rwandan King Kigeli (1936-2016), who had been assassinated by Belgian agents in their process of actively supporting the Hutu “revolution”. Dede’s sister, Grace Kaboyo was until recently one of President Museveni’s district commissioners.

Mr Robert Kalumba is a very visible public relations officer at Kampala City Council Authority, whose grandfather was granted a tidy parcel of land in Buganda by the sister of Edward Muteesa.

Another member of the Rwanda royal family who also fled to Uganda and married a Ugandan woman. They were to have a son who went on to marry one of Edward Muteesa’s daughters. He went on to become a very senior immigration officer. I went to school with him.

They were to have a son who went on to marry one of Edward Muteesa’s daughters. I went to school with him.

The deposed King Kigeli himself took refuge in Uganda for a while. As a child, I recall our mother pointing out to us his very tall frame walking along the street, as she drove us passed the apartment block he lived in, near the city centre.

In short, the problem has never been the presence of Rwandans in Uganda as such, since there have always been Rwandans in Uganda even before Uganda became Uganda (and then took parts of what was independent north Rwanda with it). The problem is the political culture that comes with that presence, given the historical record that continues to show that the biggest single persecutors and killers of Rwandans have always been other Rwandans.

In his play A Time of Fire Uganda writer Charles Mulekwa reflects on the common failing of political peoples fleeing war and persecution of actually bringing the causes of the war with them. It is a case of a refugee and migrant community that has “learned nothing, and forgotten nothing”, as was said of the early 1800s French Bourbon dynasty exile who, having taken back power in France, then proceeded to replicate all the political mistakes that had caused them to lose power in the first place.

It is a challenge of political culture of Rwanda. Of the stubbornness of old habits, which, as is said, die hard.

But where did it start?

The imposter game

In the biblical tale of Naboth’s vineyard, an unwitting King finds himself in possession of a vineyard he has coveted for a long time. It belonged to his neighbour Naboth, who had declined to sell it, as it was part of his own inheritance from his father, and according to Jewish custom could not be disposed of in such a way.

Wife Jezebel had her own plan to cheer up the frustrated monarch. She had Naboth framed, murdered, and his property seized. The King learns of this only when confronted by the Judges of his Kingdom. For them the real sacrilege is that beyond the murder, the perpetrator then assumes the place of the victim, in the form of claiming to be the rightful owner of his inheritance. This is the true meaning of the verse: “Have you killed and also taken possession?” (Kings 21:19), now colloquially known as the syndrome of “Naboth’s vineyard”.

In his play A Time of Fire, the Ugandan writer Charles Mulekwa reflects on the common failing of political peoples fleeing war and persecution to actually bring the causes of the war with them. It is a case of a refugee and migrant community that has “learned nothing, and forgotten nothing”…

In the biblical story, the King repents and atones. In the real world of African politics, many a murderous usurper has simply soldiered on regardless, with this disastrous game.

But now, the moment of truth is fast arriving, and we are all about to be found out.

With Uganda, the fraudulent nature of the three-decade-old government is better known and a lot more explicit.

In the case of Rwanda, we must begin with a similar usurpation, by one Kanjogera, dowager in the Royal House of Rwanda in 1896, who conspires with the encroaching Germans to have the then monarch murdered in favour of Musinga her own biological son. This is an event replete with the kinds of abominations that shocked the judges in Naboth’s case.

One Muhumuza, mother of the murdered monarch led the initial resistance to this usurpation.

Despite it having been seen as a movement among very ordinary people, Muhumuza became an adherent of the Nyabinghi movement.

Nyabinghi was the sovereign of the 16th Century kingdom of Karagwe, which name now lives on as a district in northern Tanzania.

She was murdered by her husband Ruhinda, king of the Mpororo just to the north, in his attempt to take over her throne.

Her spirit was to haunt him and his accomplices for years afterwards, and became the foundation of a “cult”, that passed it down the generations through initiating young women into its priesthood. The Nyabinghi belief-system soon spread to neighbouring regions, and was taken up by persons nursing deep grievances against existing authority, making it a target for state repression.

This became a particularly acute problem in pre-colonised Rwanda -which included what is now parts of south-western Uganda- where the various Kings had tried to stamp it out.

She can be said to be the African patron saint of the betrayed.

Naturally enough, the anti-colonial sentiments in Rwanda, sparked by Kanjogera’s allegedly German-backed coup, found a home among the Nyabinghi movement.

Having been inducted into the Nyabinghi priesthood, Muhumuza became the incarnation of the spirit of the long-dead queen. This set the stage for the showdown that sucked in the German, British and later Belgian colonial authorities.

“These fanatical women are a curse to the country.” One colonial official reportedly complained.

This was nothing unusual, except for the times it was dealing with. It is something of a tradition here to literally channel a long-passed on leader’s spirit when faced with an extreme leadership challenge.

During the 1953-1955 British exiling of Kabaka Muteesa, a man called Kiganira declared himself the reincarnation of Kibuuka, Buganda’s Achilles-like war-spirit, and began agitations that led to his arrest and execution.

The spirt of a long-dead Shona monarch Nehanda, also inspired the initial resistance to the British colonizing mission. It has been handed down to possess generations of women in particular family lines. At the time of the colonizing invasions, it was held by Charwe Nyakasikana, whose invocation of it was instrumental in the initial anti-colonial resistance, until she and her companion were captured by the British and hanged in 1898.

The colony of Rwanda comes into existence and is later inherited by Belgium. In that success, these imposed imposter states show that illegitimacy can be made to work. Kogonjera’s usurpation becomes an understanding of politics, and produces a form of white Pan-Africanism:

Muhumuza is captured by the colonisers and exiled to be held captive in colonial Kampala, until her passing in 1944.

The history game

The past matters. And this is why those in the present always seek to control it.

With the rise of later African nationalism, old tales of the initial German conquest, as well as current experiences of the apartheid system were mined to design a toxic mix of hate, and racist anthropology history which become an official mantra of PARMEHUTU, a party led by one Gregoire Kayibanda; a man until recently the private secretary to the Belgian head of the Roman Catholic Church in Rwanda. This Hate History lays the foundation of the Hutu “revolution” of 1959, that created the mass exodus of Tutsi into neighboring countries. Kayibanda becomes president, and Hate History remained taught.

His victory is cut short when his army chief of staff Juvenal Habyarimana, overthrows him and then allegedly has him and his wife starved to death while in detention (thus taking possession and then killing, in his case).

Similar betrayals dogged the rebellion organized from exile against this new set of imposters, and vicious, internecine conflict seemed to have characterized its journey all the way to victory over the Habyarimana regime.

With the rise of later African nationalism, old tales of the initial German conquest, as well as recent experiences of the apartheid system, were mined to design a toxic mix of hate, and racist anthropology-history, which become an official mantra of PARMEHUTU, a party led by one Gregoire Kayibanda, a man until recently the private secretary to the Belgian head of the Roman Catholic Church in Rwanda.

Historically, the monarchy had seemed to be the focal point around which all Rwandans within its ambit organised their various identities. There seemed to have been a push within the rebellion to put the monarchy question back on the table.

The standing accusation, best documented by the writer Timothy Kalyegira, is that those now in power in Kigali, first hijacked the initial rebellion, and the formation of RPF was in itself a usurpation of an earlier initiative organised by Rwandan exiles not embedded in the Uganda state, against the Rwandan Habyarimana regime that the current leadership of the RPF suppressed using their then high positions within the Ugandan NRA security apparatus. This initial initiative may have been known as inkotanyi.

This can be framed as a continuation of Kanjogera’s coup: usurpation upon usurpation, and a legacy of illegitimate political inheritances.

The most prominent example of this of course would be the assassination of (former NRA bush war veteran, and Uganda government deputy minister of Defence) Col. Fred Rwigyema who, as first field commander of the RPF invasion, suffered the ignominy of being shot dead within 24 hours of crossing into his country.

Illegitimate power cannot rule legitimately, and remains permanently insecure, in crisis or near failure.

It is often aware of this, and as a remedy, seeks to clothe itself with the garments of legitimacy. Kanjogera commits regicide, but then seeks refuge in a “neo-traditionalist” gambit of continuing the same monarchy in the form of her son, so as to hide behind the legitimacy of a throne, despite having just desecrated it.

And given the chance, imperial power will always seek to enter a society, and tilt the balance of power away from the most legitimate in favour of the least legitimate, which must then depend on it to one extent or another. This remains the story of Africa’s domination.

Nearly every historic victory of rebel organisations on our continent holds a record of being tempted by Western powers to reach for absolute power, where a peace-making coalition may have worked more in the mass interest instead.

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In Ethiopia, Meles Zenawi’s minority Tigrayan People’s’ Liberation Front was able to militarily dominate the broader anti-Mengistu resistance, and subsequent regime, through the significant logistical resources delivered to it under the cover of Western famine relief, once the West realized that Mengistu’s days were numbered.

Museveni’s NRA dragged out the Nairobi 1985 Nairobi Peace TalkS for months on end while using material support channeled by the West through the notorious LONRHO corporation to increase the size of the army nearly ten-fold, before storming the capital.

All Africans are advised: look again at your resident liberators; how exactly did they come to power?

This is essentially a crisis of legitimacy. For both sides. Illegitimate power cannot rule legitimately, and remains permanently insecure, in crisis and in need of self-validation.

It is often aware of this, and as a remedy, seeks to clothe itself with the garments of legitimacy. Yoweri Museveni’s National Resistance Army brought an exceptional level of illegitimacy to our politics in the way it seized power in 1986, through series of opportunistic exploitation of every old and current political grievance it could harness, and has held on to it. As mentioned in part II, it came carrying the seeds of the Rwanda Patriotic Front in its womb.

The 1993 wholesale invasion of Rwanda by the RPF was therefore –amongst other things- the exportation of that habit of illegitimacy to another country. As said, this was to be the fate of the DRC, even later.

The strategic resources game

This long and twisted story continues. It will create new approaches to known facts, and then bring unknown facts into creation.

I insist that this remains a struggle to be the principal conduit -broker, even- through which to channel the latest generation of strategic minerals, to Western corporations.

This is not just an African story. In the history of the conflicts of the modern world, certain zones stand out as having suffered from the accident of being located where strategic resources were to be found. Before the DRC, there was Western Europe and the Middle East.

Underneath the usual romanticisation of European conflict lies the story of coal and iron. Until perhaps the 1960s, the Alsace-Lorraine region, which lies where the lands of France and Germany meet, held the largest known deposits of iron ore in the world. Together with the abundant supplies of the coal in the neighbouring regions, this created the opportunity for the bulk production of perhaps the most significant material to the emergent industrial revolution: steel.

Three significant wars linked to this region have been fought in Western Europe: the Franco-Prussian war of 1870-1871 which ended with a German occupation; the 1914-1918 British-German war in France; and the 1939-1945 British-French-American-Russian war against Germany and Japan that left much of the continent and beyond devastated.

This is not just an African story. In the history of the conflicts of the modern world, certain zones stand out as having suffered from the accident of being located where strategic resources were to be found. Before the DRC, there was Western Europe and the Middle East.

This recurrent conflict was only suspended for the last eighty years with the creation of a trade mechanism that enabled countries from all parts of the continent to access those and later other resources for their domestic industries, without having to also physically control the territory.

This mechanism was named the European Coal and Steel Commission, which became the European Economic Commission, which became the European Commission, and which is now known today as the European Union. Its core function is to prevent the buildup of the economic pressures that lead to war.

From the 1890s, the military forces of Western Europe and increasingly, the United States and underwent an extensive debate regarding the relative advantages of continuing to rely on steam-powered engines fueled by the burning of coal, over the emergent liquid fuels. By 1912, the liquid fuels camp had won the debate: oil was easier to excavate, transport, store and deliver. It was scalable, yielded more energy per unit, and did not require the maintenance of a global network of “coaling stations” dependent of a small fleet of labour-intensive “coaling ships” supplying their navies.

It did however, require the establishment of a guaranteed supply. This is how the entire middle east, with its vast, accessible oilfields, increasingly became the focus of rival empires seeking to gain a foothold on this strategic reserve.

The British navy, for example, decided to strategically switch from coal in the period just before the 1914-1918 war.

The subsequent dismantling of the Turkish Ottoman empire, leading to the carve up of its Arab dominions into the unstable oil-producing region known today, is one visible result.

Then came the dawn of nuclear energy, particularly its use in warfare, heralded by the 1945 American destruction of the Japanese cities of Hiroshima and Nagasaki. Atomic weapons were being developed by all sides during that war. They came as the logical outcome of the war’s increasing dependence on widespread destruction of cities and the civilian hinterland as a way of hampering the physical capacity of the enemy to maintain war. An atomic bomb offered the opportunity to impose strategic paralysis on an enemy through wiping out an entire city with one devastating operation.

A person no less than Albert Einstein, a refugee from Hitler’s Germany, as well as pioneer of nuclear science was among the voices that advised the then US President to ensure it got and stayed ahead in the coming nuclear arms race, by developing the first bomb before Germany, or anyone else did. For this, they advised, the US was going to need a reliable supply of good quality Uranium.

“The United States has only very poor ores of uranium in moderate quantities” they warned in a 1939 letter: “There is some good ore in Canada and the former Czechoslovakia, while the most important source of uranium is Belgian Congo.”

This is where the fate of what we now know as the DRC was sealed. In retrospect, it was clear that Patrice Lumumba barely stood a chance. As early as 1947, the newly formed US Central Intelligence Agency had already dispatched agents to establish the viability of Uranium supply from Congo, and how to work with Belgian mining corporations there, to secure it. A truly independent Congo was seen as a threat to that objective, with US president Eisenhower even developing something of a personal obsession with Lumumba,

“The Shinkolobwe stockpile was about 200 times purer than average uranium sources at the time.” Notes Kenyan journalist Parselelo Kantai, who has researched this subject extensively.

What followed is not just known history, but a continuing story.

Western capitalism still holds a vision for the future: a fully automated world, in which goods and services are made, sorted and delivered by unmanned machinery, and paid for electronically.

This means an administrative layer of control and co-ordination. The vision therefore, is for a fully wired world, centralized around digital, online control, tracking everything from production levels, to individual consumer preferences.

This is the essence of the 5G “fourth industrial revolution”: digital technology stepping up to a level of broad-span interconnectivity primed to a speed and versatility previously unseen.

We are encouraged to think of a “cloud”, but this whole information infrastructure is not ephemeral. It requires physical warehousing and relies therefore on earth-bound space and technologies: wires, server farms hosting acres of capacity, routing stations, transmitters, communication devices and the like.

Three materials among many, are absolutely critical to all of this: copper, coltan and fiberglass. Of the three, Coltan is the most highly valuable. It makes the heat-resistant circuity in all devices. Its global trade expected only to expand exponentially as the 5G revolution takes root.

And once again, the unfortunate Democratic Republic of Congo finds itself as the primary future source for all this bounty. DRC may hold the single largest known reserves (estimated by some to be up 60% of the global supply) of the mineral.

My point is simple: once a strategic resource of the future has been identified, then the region that has them is in for decades, if not centuries of war and destabilization. Control the DRC (or at least part of it), and you control the oils and uraniums of the future. Welcome back to the new Alsace-Lorraine or middle east. Or the old Congo.

As I said in part II of this series, no place deserves a break from this relentless plunder as does the DRC.

Key government figures in Uganda and Rwanda have long been accused of orchestrating this plunder. First directly, during their respective armies’ invasions and occupation there, and then late indirectly, through the proxy militias they propped up and left behind.

Three materials, among many, are absolutely critical to all of this: copper, coltan and fibreglass. Of the three, coltan is the most valuable; it is used to make heat-resistant circuits in all digital devices. Its global trade is expected to expand exponentially as the 5G revolution takes root.

Despite furious denials, these accusations have been given substance by both the United Nations, as well as a whole host of campaigning organisations. And the fact remains that hundreds of thousands of Congolese, including children, are now living and dying as exploited artisanal miners of the ore of these and other precious minerals.

But once dug up and loaded, this valuable cargo has to go somewhere. Who talks to whom? Who gets to be the middleman? Whose borders will have to be crossed -or closed- to settle those questions?

The answer lies in the answers to those questions.

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Kalundi Serumaga is a social and political commentator based in Kampala.

Politics

No War, No Peace: Life and Death in Eritrea

Thirty years after Eritrea gained independence from Ethiopia, there has hardly been any meaningful development in this small nation in the Horn of Africa. On the contrary, the government’s authoritarian policies have undermined democracy and forced young people to flee the country.

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No War, No Peace: Life and Death in Eritrea
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Eritrea was an Italian colony from 1890 to 1941. Following the defeat of Italian forces by the Allied Forces during World War Two, Britain occupied Eritrea until its federation to Ethiopia in 1952. However, by 1962 Emperor Haile Selassie had annexed Eritrea, declaring that it was part of Ethiopia, and in this way ending the federation.

In 1961, a year before the annexation, the Eritrean Liberation Front (ELF) started an armed struggle for independence from Ethiopia. The armed struggle continued for 30 years against successive Ethiopian regimes until 1991, when the Eritrean People’s Liberation Front (EPLF), who had replaced the ELF, defeated the Ethiopian forces in Eritrea. Eritrea became formally independent following a United Nations-supervised referendum in 1993.

From the beginning, the EPLF (now the People’s Front of Democracy and Justice – PFDJ)’s strategy for achieving liberation and national unity was for it to dominate all social, political, and economic spaces. The PFDJ implemented a highly centralised and opaque two-track system of administration: an unseen, powerful inner circle of elites; and public structures that projected an image of egalitarian self-sufficiency. This centralised and opaque model of governance continues today.

Since liberation, PFDJ has banned all opposition parties and treats all non-mass-movement organisations (i.e. independent civil society) with suspicion; hence there are no independent national civil society organisations in the country. Without any consultation, the PFDJ has nationalised all land; it has established a unitary form of government, and it has changed the administrative boundaries within the country. Despite these totalitarian tendencies, in 1994, the PFDJ, as the Provisional Government of Eritrea, set up the Constitutional Assembly to draft the Constitution. The task was completed in 1997. But the Constitution remains unimplemented.

Border dispute

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

The EEBC delivered its border decision on 13th April 2002, placing the town of Bademe, the flashpoint of the border conflict, on the Eritrean side. The Ethiopian government contested the allocation of Bademe to Eritrea. Therefore, a situation of “no war, no peace” ensued between the two countries as President Isaias Afewerki refused any dialogue on the issue because the parties had agreed that the decision of the EEBC was final and binding.

President Isaias Afwerki, who is also the chair of the PFDJ, took advantage of the strained relationship with Ethiopia to:

  1. indefinitely postpone the implementation of the 1997 Constitution as well as the general elections;
  2. arrest and disappear dissenters, especially University of Asmara students and the members of the government known as G15 who promoted a democratisation process (2001);
  3. close the independent media and arrest journalists (2001);
  4. abolish the Eritrean National Assembly (i.e. the Eritrean Parliament) (2002);
  5. maintain a high level of militarisation of the country.

To maintain a high level of militarisation, the government vertically integrated the National Service to the National Development Programme (i.e. the Warsay Yikaalo National Development Programme) and to Education. This integration allows the Eritrean government to move students into the National Service and the National Development Programme from high schools (i.e. Grade 12) and indefinitely extends the period of service of the conscripts, hence taking full control over the working population.

In 1998, hostilities and war between Eritrea and Ethiopia resumed over border demarcation issues, particularly in the town of Bademe. By December 2000, the two countries signed the Algiers Peace Agreement and established the Eritrea Ethiopia Border Commission (EEBC) to determine the limits of their shared border.

Through the integration of the National Service into the Warsay Yikaalo National Development Programme and Education, the government has limited the citizenship rights of conscripts who while in service cannot: legally obtain a mobile phone or SIM card; get or renew a business licence; access land; and access travel documents and exit visas. Deserters or objectors are denied any rights and cannot access state services. Thus, the official Eritrean concept of citizenship is intrinsically linked to conscription and the fulfilment of National Service duties.

The National Service is a combination of military training and civil service, working for little pay in non-military activities such as agriculture, the construction of roads, houses and buildings and mining. The Warsay National Development Programme relies on the deployment of te National Service (Warsay) and defence personnel (Yikaalo) as a labour force. The programme operates under the umbrella of the Ministry of Defence.

Since 2003, the government has closed the University of Asmara (the only university in the country). It has also required that all Eritrean students complete Grade 12 at the Sawa military training camp. Students who have not completed their final year of secondary school at Sawa and have not sat for the National School Certificat, cannot access college education. The PFDJ has replaced Asmara University with regional colleges, which are administered jointly by an academic director and a military director.

National Service conscripts work for an indefinite period on development projects, the administration of ministries and local authorities, as well as in PFDJ-owned businesses. Such work is carried out for very little pay and in conditions that a UN Commission of Inquiry on Human Rights in Eritrea described as “forced labour”.

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa. The government will not issue an exit visa to any Eritrean above the age of five, irrespective of their situation (i.e. family reunification, health, etc.)

The government’s control over the Eritrean people is a political, social and economic process of deprivation and human rights violations for which it refuses to take any responsibility. It is systematically impoverishing the population. Therefore, Eritrean youth face having to choose between the life of slave labour or exile. They describe their situation as slavery: “[The] situation in Eritrea and long time ago with slaves is the same. We build the houses of the elites without money. We work on farms of government officials for no money. If you are educated, they deploy you to anywhere…for a short time, you can tolerate it…but this is for life.”

Faced with accusations of human rights violations, the government reverts to “threat” mode. It labels any reference to human rights violations as “lies” and “ploys” of its enemies to undermine the state. The PFDJ Head of Political Affairs, Mr Yemane Gebreab, dismissed the findings of the Commission of Inquiry on Human rights by saying: “….[it is] really laughable……There is no basis to the claims of the Commission of Inquiry…”

The Eritrean authorities’ control over the people includes the restriction of movement both internally and externally. Therefore, all Eritreans aged five and above cannot leave the country without an exit visa.

In addition to taking control over the working population, the government also took control of the economic sectors, including finance, import and export, transport and construction. It has achieved control over the economic sphere through a process of unfair competition with private business, facilitated by the fact that it does not pay taxes and does not comply with labour, environmental, and other regulatory requirements. Also, as the regime has control over the working population, it has unlimited access to a large pool of free labour, effecting a net transfer of the workforce away from the private sector. This policy of moving human resources to labour sites identified and controlled by the government has crippled the private sector, especially the agricultural industry, which still relies to a large extent on subsistence farming.

The government’s control and domination of the economy have not increased economic activity or productivity. The economy is stagnating, further weakening the private sector and restricting economic opportunities for Eritreans.

Notwithstanding PFDJ’s rhetoric, Eritrean youth experience the state as an albatross around their necks. They understand the state in terms of spy networks; as a human rights violator curtailing civil, political, and economic rights and as the as the source of torture and deprivation. They see it as the source of all restrictions and deprivations. This is the reason why they flee the country.

Peace Agreement with Ethiopia and its aftermath

In April 2018, the Ethiopia Prime Minister Abiy announced the acceptance of the EEBC decision, in particular the allocation of the flashpoint town of Bademe to Eritrea. In this way, he started a process that led to the signing of the Ethiopia Eritrea Peace Agreement in July 2018, thus ending two decades of “no war, no peace”. The land borders opened to much jubilation in 2018. However, by April 2019, the Eritrean government had closed them all. So far, the only achievements of the Peace Agreement are the reopening of embassies and telecommunication lines and the resumption of flights.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country. Soon after the signing of the Peace Agreement, the Eritrean Catholic priest Aba Teklemichael pointed to the sweeping reforms implemented by Prime Minister Abiy in Ethiopia, and urged the Eritrean government to also undertake necessary reforms in Eritrea and to democratise the government. By Easter 2019, the Eritrean Catholic bishops were also calling for a constitutional government and the rule of law. They also encouraged the government to release political prisoners and start a process of reconciliation within the country. However, to date there have been no reforms in the country, a state of affairs confirmed by the UN Special Rapporteur on Human Rights in Eritrea who at the start of this year reported that she had: “ ……no tangible evidence of a meaningful and substantive improvement in the situation of human rights in Eritrea”.

The signing of the Peace Agreement immediately raised expectations that there would be a normalisation of relations between the two states. It also raised expectations regarding reforms within Eritrea that would lead to a reduction in the number of Eritrean youth fleeing the country.

The ongoing peace process is not transparent; it has mostly remained an elite political level agreement unable to deliver on the economic front or to resolve the issue of Bademe as both Prime Minister Abiy and President Isaias Afewerki have marginalised the Tigray People’s Liberation Front (TPLF) for political motives. The Eritrean government has increasingly identified the Tigray State and the Tigray People’s Liberation Front (TPLF) as an existential threat to Eritrea, thus justifying the maintenance of a high level of militarisation. Consequently, Eritrean youth continue to flee the country. In 2018, UNHCR ranked Eritrea as the ninth-largest refugee-sending state in the world.

Ailing health sector

The totalitarian agenda of the Eritrean government did not spare the health sector either. The task of reconstructing the Eritrean health system after the liberation struggle and following the 1998-2000 Eritrea-Ethiopia border war was monumental. It was an undertaking that the late and former Minister of Health Saleh Meki undertook with passion, commitment, and zest from 1997 to 2009 when Ms Amina Nurhussein replaced him.

In his efforts rebuild the Eritrean health system, Saleh Meki sought to establish strategic partnerships with critical international health institutions, private practitioners, faith-based organisations, such as the Catholic Church, as well as professional members of the Eritrean diaspora. The former Minister of Health carried on with his efforts despite the enormous pressure to conform to the dictates of President Isaias Afwerki, and the concerns generated by the closure of international non-governmental organisations, as well as the restriction of movement imposed on all organisations working in the country. Against all the odds, he re-established the medical school known as the Orotta Medical School.

Saleh Meki died on 2nd October 2009. Soon after his death, all the medical missions of international organisations that he had worked so hard to bring to Eritrea ended. By 2011 the Eritrean Government forced the closure of all private medical clinics. And, by 2018 a total of 29 Catholic health facilities providing maternal and child health support and serving some of the more remote communities in the country were closed. The seizure and closure, of the Catholic health facilities was carried out in complete disregard to the health and safety of the patients, most of whom were left to fend for themselves.

There was no clear justification for the closure of the private health facilities. However, the closure of the Catholic health facilities was justified as an enforcement of the 1995 Proclamation to standardise and articulate religions institutions (Proclamation No 73 of 1995). The Proclamation prohibits religious bodies from engaging in social and welfare services. This position is contested by all faith-based organisations, especially since there was no consultation in the development of the law. The Eritrean Catholic bishops’ communication with the government on the seizure and closure of their health facilities point out that the facilities operated by abiding with all the requirements of the Ministry of Health.

Poor COVID-19 response

The closure of health facilities has reduced the number of available beds and the overall capacity of the health system. Hence, Eritrea, with a score of 0.434, was ranked 182nd out of 189 countries by the 2019 Human Development Index. The low Human Development Index combined with a hospital bed capacity of 7 beds for 10,000 people, and no available data as to the number of health professionals (i.e. doctors and nurses) available per 10,000 people, suggests that the situation might be even more dire. And the poor connectivity of the country (i.e. mobile phones, internet, broadbands) means that the country’s capacity to deal with pandemics such as COVID-19 is low.

The low capacity of the Eritrean health system to deal with the COVID-19 pandemic was also of concern to the diaspora Eritrean Healthcare Professionals Network (EHPN), which urged the Eritrean government to immediately implement the World ealth Orbanization (WHO) and Centre for Disease Control (CDC) guidelines and advisories to contain the pandemic. EHPN expressed concern that the country lacks the necessary prerequisites to implement hygiene measures because: “There is a shortage of water, disinfectants, laboratories that carry out diagnostic tests and medical professionals, including nursing and technical staff. There is also a lack of functioning intensive care units with adequate ventilation equipment needed to properly treat patients. The reality is that many Eritreans will not be able to seek and obtain medical treatment in their homeland or neighbouring countries. In short, the Eritrean health system is not adequately prepared for COVID 19.”

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The government’s willingness to reject donations has, however, launched a COVID-19 appeal among citizens. The appeal is remarkable for the lack of information as to how the funds raised will be used. There is no single COVID-19 emergency response bank account designated for the appeal; hence, in the diaspora, funds are collected in different foreign bank accounts set up by Eritrean embassies. Consequently, there is a real danger that the funds will never enter the country and will disappear into the government’s opaque offshore financial system. Also, there is no information as to how the Ministry of Health will use the funds. Reports by Eritrean human rights activists say the appeal is coerced, confirming the lack of transparency and accountability of the fundraising process.

There is also no transparency in the COVID-19 data that the Eritrean government is providing. It reported the first four COVID-positive cases on the 21st and 23rd of March. One patient was an Eritrean national resident in Norway, and the other three positive patients were Eritrean nationals returning from Dubai. Because of these events, by 26th March, the government banned all commercial passenger flights for two weeks. It also closed schools. And, by 1st April, it imposed COVID-19 lockdown measures.

Fears regarding the poor state of the Eritrean health system were further heightened when the Eritrean government refused COVID-19 emergency supplies donated by the Chinese billionaire Jack Ma and his Alibaba Group. Mr Hagos “Kisha” Gebrehiwet, the head of Economic Affairs in the ruling PFDJ, justified the rejection of Jack Ma’s donation by saying that it was unsolicited.

The lockdown measures did not include the closure of the Sawa military training camp or the release of political prisoners. The government has recently released 27 Christian prisoners, who were imprisoned without charge or trial for as long as sixteen years. Their release is conditional on their family lodging their property deeds with the government as a guarantee that the people released will not leave the country.

While maintaining a strict lockdown, the Eritrean government has allowed mass gatherings to celebrate the graduation of the 33rd round of Sawa military training camp graduates as well as the transfer of Grade 12 conscripts to the facility.

From 1st April to 18th April, the Eritrean government reported 39 COVID positive cases, all linked to Eritreans visiting or returning from their travels. Then, for two months, there were no new cases reported. After that, the number of COVID-positive cases increased, and by the 12th of October, Eritrea reported a total of 414 COVID-positive patients and 372 recoveries.

Though the government makes repeated references to quarantine centres, it has not shared a list of the centres, their location or capacity. It is also not reporting the daily number of COVID tests. Nor has it reported any COVID-related deaths or any community transmission of the virus. It continues to attribute all the new COVID cases to Eritreans returning through “irregular land and sea routes” from Ethiopia, Sudan, Djibouti and Yemen. But there is no explanation as to why so many nationals are travelling despite the government’s strict lockdown procedure that prohibits all movement between towns and that restricts te movement of any vehicles, including buses and taxis, which require movement permits. Such permits are not easy to obtain.

Finally, there are only five incidents of Ministry of Information reporting the number of individuals tested or in quarantine:

  1. 3,000 quarantined – 8th May 2020;
  2. 5,270 quarantined – 3rd June 2020;
  3. 7,158 nationals returned through irregular land and sea routes. Not clearly stated but the implication is that they were all quarantined – 14th June 2020;
  4. 18,000 citizens allegedly returned through irregular land and sea routes. This movement occurred in the last four months. Again, not clearly stated but the implication is that they were all quarantined – the 12th October 2020;
  5. 41,100 tests – 12th October 2020.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The COVID lockdown in Eritrea, like in other countries, has brought economic activities to a standstill. The difference between Eritrea and other countries is that the Eritrean economy was already on its knees before the lockdown and the Eritrean government has not made any attempt – beyond extorting donations from its citizens – to alleviate the suffering of the people with economic support packages. Consequently, Eritreans are hungry and desperate and have started to ignore strict lockdowns. They are on the streets selling all kinds of goods. Women are out in the streets, making tea and cooking food for sale. Family and friends describe Asmara, the capital city, as full of mobile tea shops.

In a recent report, the Eritrean Ministry of Information asserted that the rate of COVID infection in the country was “a paltry 0.02%”, based on one (1) positive result during 4659 random tests done in Asmara”. The data shared by the government (41,100 tests and 414 COVID-positive cases) suggests that the rate of infection is just 1 per cent.

The Eritrean Afars have, through the Red Sea Afar Human Rights Organisation (RSAHRO), issued a press statement, describing their situation under lockdown as a: “… siege imposed by the Eritrean regime on the citizens of the region.”. They warn of the danger of hunger in their area. They also describe confiscation of boats, camels and supplies by the military, closed health centres, unprepared quarantine centres, as well as lack of medical supplies. The human rights organisation also accuse General Tekle Manjus of confiscating trucks of emergency food sent from Asmara for distribution among the Afar.

The Afar coastal area is not the only area in danger of hunger. The information from Eritrea is that hunger is very real all over the country. The government media and social media accounts do not report the danger of hunger or any of the difficulties that the people are facing during this COVID-19 emergency. Their postings give the impression that Eritrea is doing just fine.

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The Search for a Puppet Chief Justice

The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results.

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The Search for a Puppet Chief Justice
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Anxiety over who will replace Chief Justice David Maraga exploded into the public domain on Friday, October 16, 2020, when a member of the Judicial Service Commission (JSC) alleged a plot to delay the recruitment process. Macharia Njeru, one of the two representatives of the Law Society of Kenya (LSK) to the JSC, claimed in a public statement that the Chief Justice and a few others were “hellbent on derailing the orderly recruitment of his successor and leaving the institution of the Judiciary in a crisis of leadership”.

LSK immediately dissociated itself from Macharia’s position and asserted that the “state capture of the Judiciary and the Judicial Service Commission would not be executed through its representatives”.

The parliamentary Justice and Legal Affairs Committee had earlier failed to prevail on Justice Maraga to take early terminal leave, and subsequently published a proposal to change the law on when to begin recruitment of a new Chief Justice. The Chief Justice will officially retire on January 12, 2021, when he turns 70, but he is expected to take leave on December 15, 2020.

Powerful individuals in the country’s politics cannot wait to see Justice Maraga’s back because of his surprising show of spine. On September 1, 2017, the mild-mannered and soft-spoken jurist led a four-judge majority of the Supreme Court to annul the presidential election in a decision that reverberated across the globe. Last month, Justice Maraga advised the President to dissolve Parliament for failing enact laws to increase representation of women in national elected leadership on the strength of a High Court declaration and six petitions.

Between the two monumental decisions, the Chief Justice has called out the President over judiciary budget cuts, disregard for court orders and verbal attacks on the institution he leads.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric. None of these backhanded actions have brought the politically powerful any satisfaction, hence the abiding desire to find a more user-friendly Chief Justice.

Vacancies in the Judiciary can only be advertised fourteen days after they open up, according to the law, which means that the Chief Justice, who also chairs the JSC, plays no role in recruiting his successor. Previously, individuals in the presidency unsuccessfully sought to influence who becomes Chief Justice since the Constitution of Kenya, on its promulgation in 2010, retired Justice Evan Gicheru in February 2011. At the time, President Mwai Kibaki nominated the Court of Appeal’s Justice Alnashir Visram for Chief Justice without inviting applications or conducting interviews. He was countermanded by the newly-constituted JSC, which then conducted one of the most brutal public interviews for the position before choosing civil society icon and law scholar Willy Mutunga.

Justice Maraga’s name conjures up odium and foreboding in state organs at the executive and legislative levels, expressed through punitive budget cuts in the Judiciary, disregard of courts’ authority, and derisive rhetoric.

Dr Mutunga’s transparent recruitment freed him from the usual baggage that would accompany a political appointment to lead the transformation of the judiciary into an independent, publicly accountable institution [Full disclosure: I was communication advisor in the Office of the Chief Justice from 2011 to 2015]. By the time Dr Mutunga chose to retire a year early in June 2016, he had trebled the number of judges to increase efficiency, built confidence and secured the highest funding ever for the institution. He also ring-fenced decisional independence that would enable courts to act as a check on executive and legislative power.

After the Supreme Court upheld the 2013 presidential election, an internal corruption investigation in the Judiciary sucked the institution into a confrontation with the National Assembly, which petitioned the President to appoint a tribunal to investigate six members of the JSC. A five-judge High Court bench neutered the tribunal before it could sit and presented the first contest between Dr Mutunga and President Uhuru Kenyatta.

President Kenyatta would play possum with a list of 25 judge nominees presented to him by the JSC, first appointing 11 and then keeping the other 14 in abeyance for a year. An amendment to the law to require the JSC to send the President three names from which he could choose the Chief Justice was struck down on account of unconstitutionality.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament. By the time interviews for Dr Mutunga’s replacement began in September 2016, the Executive was disoriented and unable to muscle its substantial vote strength in the JSC for a single candidate.

Although the presidency nominates two non-lawyers as members of the JSC in addition to the Attorney General and a nominee of the Public Service Commission, thus controlling 36 per cent of the vote, the Judiciary has five members – the Chief Justice as chair and one representative each for the Supreme Court, the Court of Appeal, the High Court and the magistrates – and has 45 per cent voice. The Law Society of Kenya’s two representatives – 18 per cent – provide an important swing vote for the Executive or the Judiciary whenever there is no consensus.

Justice Maraga of the Court of Appeal emerged as the dark horse in the three-month search for the Chief Justice on the strength of his electoral law jurisprudence. Earlier attempts to name Supreme Court judge Jackton Ojwang as acting Chief Justice were abandoned. Justice Ojwang trailed fellow Supreme Court judge Smokin Wanjala, Kenyan-American law professor Makau Mutua, and constitutional law expert Nzamba Kitonga.

When Dr Mutunga wanted to retire, the President declined to meet him, and the Speaker of the National Assembly refused to respond to his request to address Parliament.

The Supreme Court’s annulment of the presidential election in September 2017 produced voluble complaints from President Kenyatta, who threatened unspecified action against the Judiciary. The independence of the Judiciary, represented in the person of the Chief Justice, has clearly rankled President Kenyatta and his supporters. He subsequently began a systematic reorganisation of the Executive’s representatives to the JSC by picking a judiciary insider, Court of Appeal president, Kihara Kariuki, to replace Attorney General Githu Muigai. Even before the terms of public representatives Winnie Guchu and Kipng’etich Bett were midway, he recalled them and replaced them with Prof Olive Mugenda and Felix Koskey. And then he declined to gazette the re-election of Mohammed Warsame as Court of Appeal representative to the JSC. Judge Warsame was finally seated without re-taking oath courtesy of a court decision that obviated the need for his election to be gazetted. He joined the judiciary column led by the Chief Justice, Deputy Chief Justice Philomena Mwilu, who had been elected to represent the Supreme Court, and Justice David Majanja, who represents the High Court.

Fears have been rife that the election of the magistrates’ representative to replace Chief Magistrate Emily Ominde in December and the replacement of LSK woman representative Mercy Deche could provide an opportunity for the Executive to support pliant candidates, in addition to Macharia Njeru.

It is likely that urgent attempts to start the Chief Justice’s recruitment could exclude the two representatives of the magistrates and the LSK, thus denying the panel two critical voices. Voting strength in the JSC could also be significantly altered if some of the commissioners apply for the Chief Justice’s position. For one, it is not clear if the 62-year-old Deputy Chief Justice Philomena Mwilu, who already represents the Supreme Court in the JSC, will act as chairperson of the commission once Justice Maraga leaves.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Political horse-trading with Parliament is a necessity for nominees to the position of Chief Justice and Deputy Chief Justice to be confirmed during vetting. Often, politicians view the Chief Justice’s position as one of the spoils to be traded during ethno-regional deal-making. So far, the Chief Justice’s position has been occupied by a kaleidoscope of Kenyans – including many ethnic and religious colourations.

The law only provides for the Deputy Chief Justice to act as Chief Justice “[i]n the event of the removal, resignation or death” and only for a period not exceeding six months pending the appointment of a new one. It remains to be seen if legal experts will argue that retirement is not equivalent to removal, resignation or death. Should Justice Mwilu also throw her hat in the ring for the top job, she would not be able to cast a vote as a JSC member.

Another JSC member who has to weigh between voting and chasing the job is 66-year-old Justice Kihara Kariuki, believed to be a front-runner to succeed Chief Justice Evan Gicheru in 2011 but has bided his time, rising to President of the Court of Appeal before accepting to serve as Attorney General. Meanwhile, Justice Mwilu has been embroiled in petitions seeking her removal from office since the Supreme Court annulled the presidential election. Two years ago, the Director of Public Prosecutions and the Director of Criminal Investigations launched a highly publicised effort to arrest and charge her with corruption before the High Court discharged her and advised that complaints against her be first have been processed through the JSC. Justice Mwilu has since tied the JSC in legal knots over the involvement of the Attorney General and one other member in hearing the complaint against her, claiming that they have shown bias.

Although the Constitution allows a Chief Justice to serve for a maximum of 10 years, the practice so far has been to choose individuals who are close to the retirement age, with the effect that those chosen preside over only presidential petitions from one election cycle before they reach the retirement age of 70. If appointments continue to be short-term to limit the pain individuals can inflict on the institution, candidates in their mid-60s appear to be chosen to navigate the 2022 election and leave before the 2027 one.

Although voting is an important factor in choosing the next Chief Justice, qualification is probably more important. And the public scrutiny candidates are subjected to, complete with court oversight when required, means that a naked attempt to install a puppet would backfire.

Although the Supreme Court’s Justice Smokin Wanjala gave a good showing at the 2016 interviews and was ranked second, his age – 60 – means that if appointed, he would hold the job for 10 years. Law scholar Makau Mutua, 62, who was ranked third in the 2016 interviews for Chief Justice, could also give the job another try, as would former Attorney General Githu Muigai, who would similarly be hampered by fears of serving out the 10 years in the post.

The Executive’s frustration with the Judiciary has been expressed as blame for the slow pace of corruption cases, where the courts are criticised for not pulling their weight to deliver quick convictions. The most evident sign of frustration has been the President’s refusal to appoint 41 individuals nominated by the JSC as Court of Appeal and High Court judges. The law does not permit the JSC to reconsider its nominees after the names have been submitted to the President, except in the case of death, incapacity or withdrawal of a nominee. Last week, judge designate Harrison Okeche died after a road traffic accident before he could be sworn in because the President has not published the names as expected. It remains to be seen how the JSC responds.

Chief Justices chair the Judicial Service Commission, and preside over the Supreme Court, which decides the presidential election petitions. Besides the very constrained and collegial power in these two sites, the Chief Justice also exercises administrative power in empanelling High Court benches for constitutional references, and posts judges – powers shared with the President of the Court of Appeal and the Presiding Judge of the High Court.

A Chief Justice cannot direct judicial officers – from the lowliest magistrate to the Supreme Court judge – on how to decide a matter. Much of the power she or he wields is moral and symbolic. The emotional energy invested in controlling the recruitment of the next Chief Justice could turn out to be a source of great frustration when administrative fiat and bench-fixing do not deliver the anticipated results for those seeking a puppet Chief Justice.

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African Continent a Milking Cow for Google and Facebook

‘Sandwich’ helps tech giants avoid tax in Africa via the Netherlands and Ireland.

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Algorithmic Colonisation of Africa
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Google’s office at the airport residential area in Accra, Ghana, sits inside a plain white and blue two-storey building that could do with a coat of paint. Google, which made more than US$ 160 billion in global revenue in 2019, of which an estimated US$ eighteen billion in ‘Africa and the Middle East’, pays no tax in Ghana, nor does it do so in most of the countries on the African continent.

Google Street View of the building registered as Google's office in Accra

Google Street View of the building registered as Google’s office in Accra

It is able to escape tax duties because of an old regulation that says that an individual or entity must have a ‘physical presence’ in the country in order to owe tax.  And Google’s Accra office clearly defines itself as ‘not a physical presence.’ When asked, a front desk employee at the building says it is perfectly alright for Google not to display its logo on the door outside. ‘It is our right to choose if we do that or not’. A visitor to the building, who said she was there for a different company, said she had no idea Google was based inside.

Facebook is even less visible. Even though practically all 250 million smartphone owners in Africa use Facebook, it only has an office in South Africa, making that country the only one on the continent where it pays tax.

Brick and mortar

The physical presence rule in African tax laws is ‘remnant of a situation before the digital economy, where a company could only act in a country if it had a “brick and mortar” building’, says an official of the Nigerian Federal Inland Revenue Service (FIRS), who wants to remain anonymous. ‘Many countries did not foresee the digital economy and its ability to generate income without a physical presence. This is why tax laws didn’t cover them’.

Tax administrations globally have initiated changes to allow for the taxing of digital entities since at least 2017. African countries still lag behind, which is why the continent continues to provide lucrative gains for the tech giants. A 2018 PriceWaterhouseCoopers report noted that Nigeria, Africa’s largest economy, has seen an average of a thirty percent year-on-year growth in internet advertising in the last five years, and that the same sector in that country is projected, in 2020, to amount to US$ 125 million in the entertainment and media industry alone.

‘Their revenue comes from me’.

William Ansah, Ghana-based CEO of leading West African advertising company Origin 8, pays a significant amount of his budget to online services. He says he is aware that tax on his payments to Facebook and Google escapes his country through what is commonly referred to as ‘transfer pricing’ and feels bad about it. ‘These companies should pay tax here, in Ghana, because their revenue comes from me’, he says, showing us a receipt from Google Ireland for his payments. During this investigation we were also shown an advert receipt from a Nigerian Facebook ad that listed ‘Ireland’ as the destination of the payment.

Like Google, Facebook does not provide country-by-country reports of its revenue from Africa or even from the African continent as a whole, but the tech giant reported general revenue of US$ sixty billion as a whole from ‘Rest of the world’, which is the world minus the USA, Canada, Europe and Asia.

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

The specific transfer pricing construction Google and other tech giants such as Facebook use to channel income away from tax obligations is called an ‘Irish Double’ or ‘Dutch Sandwich’, since both countries are used in the scheme. In the construction, the income is declared in Ireland, then routed to the Netherlands, then transferred to Bermuda, where Google Ireland is officially located. Bermuda is a country with no corporation tax. According to documents filed at the Dutch Chamber of Commerce in December 2018, Google moved US$ 22,7 billion through a Dutch shell company to Bermuda in 2017.

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

An ongoing court case in Ghana — albeit on a different issue — recently highlighted attempts by Google to justify its tax-avoiding practices in that country. The case against Google Ghana and Google Inc, now called Google LLC in the USA, was started by lawyer George Agyemang Sarpong, who held that both entities were responsible for defamatory material against him that had been posted on the Ghana platform. Responding to the charge, Google Ghana contended in court documents that it was not the ‘owner of the search engine www.google.com.gh’; that it did not ‘operate or control the search engine’ and that ‘its business (was) different from Google Inc’.

Google Ghana is an ‘artificial intelligence research facility’.

Google Ghana describes itself in company papers as an ‘Artificial Intelligence research facility’. It says that its business is to ‘provide sales and operational support for services provided by other legal entities’, a construction whereby these other legal entities — in this case Google Inc — are responsible for any material on the platform. Google Ghana emphasised during the court case that Ghana’s advertising money was also correctly paid to Google Ireland Ltd, because this company is formally a part of Google Inc.

Rowland Kissi, law lecturer at the University of Professional Studies in Accra describes Google’s defence in the Sarpong court case as a ‘clever attempt’ by the business to shirk all ‘future liability of the platform’. Kissi is cautiously optimistic about the outcome, though: while the case is ongoing, the court has already asserted that ‘the distinction regarding who is responsible for material appearing on www.google.com.gh, is not so clear as to absolve the first defendant (Google Ghana) from blame before trial’. According to leading tax lawyer and expert Abdallah Ali-Nakyea, if the ‘government can establish that Google Ghana is an agent of Google Inc, the state could compel it to pay all relevant taxes including income taxes and withholding taxes’.

Cash-strapped countries

Like most countries, especially in Africa, Nigeria and Ghana have become more cash-strapped than usual as a result of the COVID 19 pandemic. While lockdowns enforced by governments to stop the spread of the virus have caused sharp contractions of the economy worldwide, ‘much worse than during the 2008–09 financial crisis’, according to the International Monetary Fund, Africa has experienced unprecedented shrinking, with sectors such as aviation, tourism and hospitality hardest hit. (Ironically, in the same period, tech giants like Google and Facebook have emerged from the pandemic stronger, due to, among others, the new reality that people work from home.)

With much needed tax income still absent, many countries have become even more dependent on charitable handouts. Nigeria recently sent out a tweet to ask international tech personality and philanthropist, Elon Musk, for a donation of ventilators to help weather the COVID 19 pandemic: ‘Dear @elonmusk @Tesla, Federal Government of Nigeria needs support with 100-500 ventilators to assist with #Covid19 cases arising every day in Nigeria’, it said. After Nigerians on Twitter accused the government of historically not investing adequately in public health, pointing at neglect leading to a situation where a government ministry was now begging for help on social media, the tweet was deleted. A government spokesperson later commented that the tweet had been ‘unauthorised’.

Cost to public

The criticism that governments often mismanage their budgets and that much money is lost to corruption regularly features in public debates in many countries in Africa, including Nigeria. However, executive secretary Logan Wort of the African Tax Administration Forum ATAF has argued that this view should not be used to excuse tax avoidance. In a previous interview with ZAM Wort said that ‘African countries must develop their tax base. It is only in this way that we can become independent from handouts and resource exploitation. Then, if a government does not use the tax money in the way it should, it must be held accountable by the taxpayers. A tax paying people is a questioning people’.

‘A tax paying people is a questioning people’

Commenting on this investigation, Alex Ezenagu, Professor of Taxation and Commercial Law at Hamad Bin Khalifa University in Qatar, adds that in matters of tax avoidance by ‘popular multinationals such as Facebook and Google, it is important to understand the cost to the public. If (large) businesses don’t pay tax, the burden is shifted to either small businesses or low income earners because the revenue deficit would have to be met one way or another’. For example, a Nigerian revenue gap may cause the government to increase other taxes, Ezenagu says, such as value added tax, which increased from five to seven and a half percent in Nigeria in January. ‘When multinationals don’t pay tax, you are taxed more as a person’.

Nigeria has recently begun to tighten its tax laws, thereby following in the footsteps of Europe, that last year made it more difficult for the digital multinationals to use the ‘Irish Double’ to escape tax in their countries. South Africa, too, in 2019 tailored changes to its tax laws in order to close remaining legal loopholes used by the tech giants. These ‘could raise (tax income) up to US$ 290 million a year’ more from companies like Google and Facebook, a South African finance source said. With US$ 290 million, Ghana’s could fund its flagship free senior high school education; Nigeria could fully fund the annual budget (2016/2017 figures) of Oyo, a state in the south west of the country.

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

Nigeria’s new Finance Act, signed into law in January 2020, has expanded provisions to shift the country’s focus from physical presence to ‘significant economic presence’. The new law leaves the question whether a prospective taxpayer has a ‘significant economic presence’ in Nigeria to the determination of the Finance Minister, whose action with regard to the tech giants is awaited.

In Ghana, digital taxation discussions are slowly gaining momentum among policy makers. The Deputy Commissioner of that country’s Large Taxpayer Office, Edward Gyamerah, said in a June 2019 presentation that current rules ‘must be revised to cover the digital economy and deal with companies that don’t have traditional brick-and-mortar office presences’. However, a top government official at Ghana’s Ministry of Finance who was not authorised to speak publicly stated that, ‘from the taxation policy point of view, the government has not paid a lot attention to digital taxation’.

He blamed the ‘complexity of developing robust infrastructure to assess e-commerce activity in the country’ as a major reason for the government’s inaction on this, but hoped that a broad digital tax policy would still be announced in 2020.” Until the authorities get around to this, he said he believed that, ‘Google and Facebook will (continue to) pay close to nothing in Ghana’.

Comment

Google Nigeria did not respond to several requests for interviews; Google Ghana did not respond to a request for comment on this investigation. Neither entities responded to a list of questions, which included queries as to what of their activities in the two countries might be liable for tax, and whether they could publish country by country revenues generated in Africa. When reached by phone, Google Nigeria’s Head of Communications, Taiwo Kola Ogunlade, said that he couldn’t speak on the company’s taxation status. Facebook spokesperson Kezia Anim-Addo said in an email: ‘Facebook pays all taxes required by law in the countries in which we operate (where we have offices), and we will continue to comply with our obligations’.

Note: The figure of eighteen billion US$ as revenue for Google in ‘Africa and the Middle East’ over 2019 was arrived at as follows. Google’s EMEA figures for 2019 indicate US$ 40 billion revenue for ‘Africa, Europe and the Middle East’ all together. According to this German publication, Google’s revenue in Europe was 22 billion in 2019This leaves US$ eighteen billion for Africa and the Middle East.

This article was first published by our partner ZAM Magazine.

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