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Boko Haram: The Psychology of a Murderous Sect

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SANYA OSHA delves into the mindset of a sect that has embarked on a path of death and destruction in north-eastern Nigeria in the name of Islam.

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Boko Haram: The Psychology of a Murderous Sect
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Perhaps the most singular act of terror that thrust Boko Haram into the global spotlight was the 2014 mass abduction of 276 girls from the Government Secondary School in Chibok, Borno State. A global outcry ensued that Boko Haram, for the most part, ignored. Although some of the girls managed to escape (57 of the girls managed to flee in 2016) to freedom, all of them were most probably molested in various ways. including sexually. This brazen act gave rise to an international outcry under the hashtag #BringBackOurGirls.

However, this unfortunate incident is not the first act of Boko Haram’s distressing trail of terror randomly targeting and slaughtering students. On July 6, 2013, 42 students at the Government Secondary School in Mamudo were killed. In the same year, on September 29, about 50 students were murdered during an attack on the College of Agriculture, Gubja. The Nigerian president, Muhammadu Buhari, assumed the presidency based on widespread expectations that he would be able to curb the spiralling activities of Boko Haram.

The Boko Haram Reader: From Nigerian Preachers to the Islamic State (2018), edited by Abdulbasit Kassim and Michael Nwankpa, is a broad compendium of texts culled from video recordings, lectures, numerous rants and different interpretations of the Islamic faith based on the Holy Qu’ran and the teachings of the Prophet Mohammed. These various texts provide a panorama through which to read the psychology of Boko Haram, the terrorist sect operating mainly in Chad, Cameroon, and Niger, and which has been pulverising the north-eastern parts of Nigeria for a decade.

The supposed mind of Boko Haram is terrifying to say the least because it contains its own self-exculpatory and complete justification regarding what it recognises as its manifest destiny, which upholds the mass slaughter of perceived infidels – in short, the waging of total war against all of those it considers to be enemies of Islam. In this self-contained and self-absorbed fundamentalist cocoon, the idea of toleration, compromise and alterity is deemed to be anathema and idolatrous, and therefore worthy of the wrath and vengeance of a jihad.

If Boko Haram views its enemies with utter disgust and contempt, it then becomes possible to follow a rigid mindset down an unforgiving path of death and destruction to all infidels. Jihad, all through and through, is deemed a supreme necessity.

Faith by dogma

Most of the teachings of Muhammed Yusuf, who was killed by Nigerian law enforcement authorities in 2009, and the current Boko Haram leader, Abubakar Shekau, are what form the key tenets of the sect. Boko Haram denounces the Nigerian state and its constitution, together with all its organs and agencies of governance. It also disapproves of Christianity, Judaism, Western education, and secularism, that is, anything that does not fall within an insufferably narrow radius of its definition of Islam. And through exhortations and inexorable doses of indoctrination, the sheer blindness of dogma becomes clearly evident.

There is also a powerful anti-Semitic streak in the numerous public pronouncements of the leaders of Boko Haram. Sometimes this antipathy is conflated with an equally virulent dislike for Europeans, who are dismissed in the following terms by Yusuf:

“It does not escape any Muslim, upon whom Allah has bestowed understanding, the severity of the Jews’ and Christians’ enmity towards the Muslims. They will never stop their onslaught on Islam and Muslims day and night. They have taken different measures and attempted to find every means to wreak havoc on the Muslims. They want to remove the Muslims from their religion of truth towards the abyss of misguidance. They fought Muslims with weapons for many years during the time of colonial rule. Then they came to teach the lessons of scepticism, in the minds of Muslims, scepticism about their religion, their Qu’ran and their Prophet Muhammed.” (p.17)

The quotation above reveals a chronic persecution complex to which the sect always resorts in justifying its mayhem and carnage and which it employs in describing what it perceives to be its unacceptable plight within the shores of Nigeria:

“Now, they have also killed children, burnt and roasted them. In the face of all these killings, they still claim that we do not have power to do anything. It is a condition. Is it until they finish their killings? There is nothing that will prevent these killings except jihad in Allah’s path, but they said they will not allow us. They made all efforts to perceive us by taking reports about us to the SSS [State Security Service]. They will inform the SSS to be careful about us.” (p.115)

Nothing best defines the modus operandi of Boko Haram than the constant infliction of faith by dogma. Once the power of dogma takes hold, it becomes impossible to view the world through an alternative lens, or at least, without the risk of death. At times, Boko Haram tries to portray itself as a victim tearing asunder swathes of north-eastern Nigeria and other countries in the region and it is apparent that its intention has never been to live in peace with its neighbours and those who subscribe to different belief systems. Its beliefs are couched in a sordid, monochrome hue that forbids the admission of alterity, non-conformity or dissent. It is as such against all that we have to come to historically define as civilisation and what we understand it to mean today.

Also troubling is the fact that Boko Haram refuses to acknowledge the possibilities inherent in inter-religious and intercultural dialogue and instead is confined to a tunnel vision that perennially absolves it of responsibility and culpability for wrongdoing and violence committed in its name. If groups and communities outside its fold bear the brunt of its random violence, they in turn are responsible for it. In other words, apart from the impossibility of entering into a dialogue with it, it further turns logic upon its head by the unprecedented scale of its capacity for violence.

Most of the teachings of Muhammed Yusuf, who was killed by Nigerian law enforcement authorities in 2009, and the current Boko Haram leader, Abubakar Shekau, are what form the key tenets of the sect. Boko Haram denounces the Nigerian state and its constitution, together with all its organs and agencies of governance.

As mentioned earlier, another unlikely twist in this violent logic is Boko Haram’s constant ability to cast itself as victim – a victim of the Federal Republic of Nigeria, and a victim of the mindless violence of the Nigerian army which kills, maims and rapes Boko Haram’s adherents. Boko Haram approaches the same Nigerian authorities it labels anti-Islam in a voice that appears conversant with the rules of reason as it recounts its woes, hoping to perhaps soften the infidel heart of the Nigerian state. So where it is possible that deceptive and cheap populism might work, then it is best to employ it. Here, it also becomes apparent that power is the ultimate goal of Boko Haram, a kind of power that defined the ethos established by the Taliban of Afghanistan.

Boko Haram adopts uncertain strategies of accommodation and half-hearted dialogue when it is obvious that it is losing momentum and it is somewhat vulnerable. But this ploy is exactly what it is, a ploy to deflect attention from its vulnerability in order to regain larger grounds and further entrench itself. But in between periods of ascendancy, redundancy and vulnerability, it never fails to shift its rhetoric from tones of accommodation to unbridled absolutism accordingly.

Muhammed Yusuf, who founded Boko Haram in 2002, is variously described as somewhat erudite, eloquent and analytical. Arguably, his extrajudicial murder by Nigerian law enforcement operatives was badly planned and misguided because it drove the Islamist movement underground where it was able to re-group, re-arm and radicalise itself and then embark on its own murderous rampage against the Nigerian state. The psychotic disposition of Abubakar Shekau, who came to prominence after Yusuf’s death, propelled Boko Haram into depths of maniacal depravity that entailed casualised beheadings, public humiliations and floggings of supposed wrongdoers, public executions, amputations, mass rape, kidnapping and human trafficking, slavery and the generalised infliction of pain and trauma on an unprecedented scale.

Under such unimaginably agonising conditions, it is often difficult to see the movement attracting a sizeable following as it roams about the wilds of multiple national jurisdictions on its killing sprees, fuelled, for the most part, by what appears to be maniacal glee aimed against non-believers. The traumatised lives and shattered dreams it leaves in its wake cannot be described by mere words. Even amid the involuntary acceptance that comes with deeply lodged trauma, those forlorn faces brazenly etched by Boko Haram’s wrath seem to ask how Allah could allow this to happen. What is the meaning of this hellish madness? When will this abominable nightmare end?

In leaving behind such a disconcerting trail of mayhem and trauma, Boko Haram has demonstrated that it isn’t a sect that builds or transforms society. It promises to establish a holy society of the faithful at the expense of the mass extermination of infidels; it also promises entry into paradise for its adherents who die in the pursuit of jihad. But eventually, people would have to figure out this spectre of gloom and despair. They would be led to ask: How many lives must be extinguished in order to create a society of supposed purity? Rather than attain allegorical purity, desolate landscapes are left littered with discarded limps, fragments of skull and flesh and abject, mangled bodies. This must be Shekau’s most piercing legacy.

Fanaticism and paranoia  

Wole Soyinka, in his book, The Climate of Fear, correctly notes that a major shift in Nigeria’s surge towards Islamic fundamentalism occurred after the May 2003 general elections when the northern state of Zamfara, shortly followed by nine other states, adopted the Sharia legal code, in effect, questioning the secular character of the Nigerian federation. Boko Haram can be regarded as being part of, as Soyinka writes, “the principal agents of the season of rhetorical hysteria that now seek to bind and blind the world within our climate of fear?” (p.67)

The not altogether unsurprising after-effect of mass scale terrorism is that it instigates excessive paranoia, which in turn leads to equally violent reprisals in the so-called free world as we have observed in the United States, which describes “othered” political and ideological adversaries as “The Evil Empire” or “The Axis of Evil”.

Soyinka argues that “fanaticism remains the greatest carrier of the spores of fear, and the rhetoric of religion, with the hysteria it so readily generates, is fast becoming the readiest killing device of contemporary times.” (p.76)

In addition, intolerable social and economic conditions can degenerate into a much deeper social malaise whereby the possibilities for toleration, dialogue and compromise become notoriously undermined and are replaced by escalating paranoia, unbridled violence, despair and despondency on all sides.

In such contexts, the fabric of civilised existence becomes frayed as brutal Hobbesian realities, or what Soyinka terms “the psychopathology of the zealot” (p.103), take hold. Of course, Soyinka reminds us that this inimical psychopathology bears no relation to the Universal Declaration of Human Rights. Instead the implacable credo of the fanatic ultimately leads to the chilling equation: “I am right, you are wrong, and therefore you are dead.”

If W.E.B. Dubois had argued that the question of race would be the central issue of the 20th century, Soyinka, on his part, argues that religion is the main socio-political conundrum of the 21st century. He concludes by stating that “the zealot is one that creates a Supreme Being, or Supreme Purpose, in his or her own image, then carries out the orders of that solipsistic device that commands from within, in lofty alienation from, and utter contempt of, society and community.” (p.118)

The leaders of Boko Haram do nothing to disguise the sect’s fanaticism. They denounce names of month, such as January and July, as the cognomens of idols. Furthermore, Western education must be rebuked as unbelief; the same goes for the national constitution. Polytheism is regarded as a sin that goes contrary to nature and the entire world itself. Nothing explains the dominance of polytheism in world affairs than the American defeat and occupation of Iraq. This development has meant that the United States seeks to dictate what happens in Iraq regarding matters of land, and foreign and domestic affairs, including having a hand in the appointment of those who run these various spheres. Unbelievers can thus not be allowed to manage the national affairs of those who remain faithful.

The intellectual arbiters of radical and extremist Islamic thought posit that there are three main categories of knowledge: knowledge that corroborates the strictures of the Qu’ran; knowledge that contradicts the teachings of the Qu’ran; and finally knowledge that neither confirms nor contradicts the dictates of the Qu’ran. This view lends the realm of knowledge a totalitarian cast; meaning everything is already known, discovered, and therefore nothing in relation to knowledge is exploratory or open-ended.

If W.E.B. Dubois had argued that the question of race would be the central issue of the 20th century, Soyinka, on his part, argues that religion is the main socio-political conundrum of the 21st century.

Inquiry and experimentation, which are fundamental aspects of the knowledge-making enterprise, then become unnecessary. Everything is known hence nothing is left to be discovered in the present physical world, not to mention the ever-contested domain of metaphysics. Indeed a universe so irreversibly compartmentalised, so absolute in its conceptual finality is akin to a nameless and infinite continuum of death; a form of death that needs to be constantly actualised through motions and mechanisms of ceaseless terror.

Freezing up of history

Boko Haram is undoubtedly against democracy and freedom of expression; many violent incidents and massacres have occurred on account of perceived insults to the Prophet Mohammed. Also, any form of collaboration with the Nigerian state is regarded as an act of infidelity to the “true” principles of Islam and must therefore not be condoned. Yusuf, the founder of sect, who even in death continues to serve as its guiding light, reasons thus:

“Why is it that whenever these events happen, they would say: “Sorry, you should exercise patience, wait for what the government will do or let us plead to the government to take measures.” Always that is what they say. Then Allah made me to understand that it is not like that. What will stop them from insulting the Prophet or killing the Muslims is jihad. But how are we going to carry out the jihad? With whom are we going to carry out the jihad? Allah made me to understand that first and foremost, we must embark upon the preaching towards Islamic reform. Then, we will have to be patient until we acquire power. This is the foundation of the preaching towards Islamic reform. It is founded for the sake of jihad and we did not hide this objective from anyone.” (p.94)

Boko Haram’s most distinctive hallmark is its complete discomfort with the modern world and the entire project of modernity itself. As Yusuf hinted in the excerpt above, it is against the nation, the idea of constitutionalism, an entire spectrum of modern institutions, the notion of democracy, polytheism, atheism, the modern conception of law and order, technological progress and even gender equality. Within this broad dragnet, the idea of human rights gets questioned, undermined and ultimately abandoned because in respect to the Sunni (practice), any form of deviation from the faith warrants utter repudiation, and in the final analysis, death.

The public speeches of its key leaders are usually apocalyptic, often bearing secretive and intense messages meant only for the faithful. Boko Haram’s credo contains a total repudiation of the idea of historical progress or movement; in other words, everything lies frozen in time, untouched by technological innovation or, as mentioned earlier, the accoutrements of modernity and so on. This is the kind of blind faith that consummates itself through the fatal consumption of the non-believer.

Conceptually, Boko Haram promotes a freezing up of history and social movement. Therefore, the idea of progress, which is integral to human evolution, science and technology, is completely anathema. Once this is well understood, the necessity to kill, maim and plunder on a mass scale and at a global level becomes perhaps slightly less difficult to digest even though it doesn’t make it any more palatable.

Boko Haram’s violent onslaughts against the Nigerian state, and by extension, nation, stems from the fact that it views the Nigerian constitution as being an infringement on the law of Allah. Allah is the sole provider and arbiter of the law and any other laws that do not bear His seal of approval are considered instances of apostasy inviting the retribution of a jihad, which in this case, is a multi-faceted form of cleansing (religious, social, cultural, political and psychological) until the law and the reign of Allah are imposed.

This conception of Islam is, to put it rather harshly, totalitarian since it offers strict injunctions on all aspects of human life, with the laws of Allah, the Qu’ran and the Sunni (practice) of the Prophet, in conjunction, being the guide and unchangeable framework through which life must be lived. Shekau describes the constitution as “a collection of man-made laws”, and therefore the product of the minds of unbelievers.

Boko Haram considers it its supreme duty to launch an all-out war on those considered to be idolaters or even “moderate” adherents of Islam. Yet it considers it an act of grave injustice for state authorities to attempt to curb its violence by employing violent means.

If Boko (Western education) is Haram (forbidden), then the possibilities for conservation become highly constrained. In the absence of dialogue, violence and death become the norm and this is a reality and an outcome that the sect accepts wholeheartedly. Consequently, this is what makes the sect not only a formidable threat to the Nigerian nation but to all nations as they currently exist everywhere. Its version of Islam then replaces the nation as it seeks to expand its power and borders until it attains a borderless state.

In accomplishing the complete Islamisation of Nigeria and also of countries surrounding its north-eastern border, Boko Haram has run into a strategic impasse regarding how it intends to treat Muslims who are sceptical or half-heartedly committed to its uncompromising version of Islam. This impasse has created different factions within its ranks that have obviously impeded its overall organisational momentum and may possibly make it more difficult for Nigerian authorities to deal with the splintering that results in various often opposing sub-sects.

One of the central strengths of The Boko Haram Reader lies in presenting Boko Haram through its own words with lucid translations (by David Cook and Abdulbasit Kassim) of Hausa, Kanuri and Arabic texts of its leaders. In this manner, we wind our way through the unfiltered mind of Boko Haram, as it seemingly unself-consciousnessly spews its rigid interpretation of Islam, the Nigerian political landscape and also the combustible civilisational fissures that define contemporary global politics. Its view of the world might be warped but for its adherents and sympathisers, it has managed to assemble a consistent hodgepodge of beliefs, opinions and Islamic and educational texts by which it is able to convince itself of its piety.

Unfortunately, there is hardly any instance of Boko Haram entertaining the possibilities of accommodation in relation to the Nigerian state. As noted earlier, in moments of vulnerability or periods of retreat, it might soften its rhetoric or modify its hardline stance. But these must be regarded as momentary withdrawals, tactical feints until it can regain its momentum in the gory march towards the Islamisation of Nigeria.

However, this mission extends beyond Nigerian Muslims in order to forge strategic alliances with Islamic brethren and shaykhs in the Maghrib, the warriors in the Islamic state of Mali, the jihadis based in the embattled territories of Somalia, the equally beleaguered brethren in Libya, the shaykhs in the splintered nation of Afghanistan, brothers and shaykhs in the maimed nation of Iraq and the Levant, fellow jihadis in Yemen, brothers in the sundered state of Palestine and all the other places where Allah’s children endure oppression.

This ability to imagine and uphold a transnational vision of Islam, this interrogation of the possibilities for the establishment of a globalised Islam, is what makes Boko Haram so menacing. Its leaders are no parochial ignoramuses merely intent on a return to medieval savagery and anti-intellectualism. True, its intellectual traditions, or better still, preferences, may be highly selective but part of its vision and mission is the unfettered unfurling of an Islamised world organised through the law of Allah, the injunctions of the Qu’ran and the Sunni (practice) of the Prophet Mohammed. Undoubtedly, this would make it seem hermetic in its structure and constitution but it is also able to provide everything a true believer requires to navigate the temptations and obstacles of the unIslamised world while it struggles to impose its own version of the world. Boko Haram’s world would obviously also include brothers and shaykhs in Chechnya, Kashmir, the Arabian Peninsula, Algeria and Azerbaijan.

In accomplishing the complete Islamisation of Nigeria and also of countries surrounding its north-eastern border, Boko Haram has run into a strategic impasse regarding how it intends to treat Muslims who are sceptical or half-heartedly committed to its uncompromising version of Islam.

Micheal Nwankpa, one of the editors of the volume writes, that “a military approach to Boko Haram (armed combat) would not be suitable; rather, a criminal justice and law enforcement approach in addition to limited political concessions would represent the right counter-response” (p.285). It is difficult to fathom how this constitutes the most appropriate remedy for an organisation that construes the Nigerian nation as one led by unbelievers, an idolatrous constitution and an infidel army. Nwankpa himself admits that Boko Haram has spurned numerous entreaties for dialogue with the Nigerian government.

Due to its uncompromising stance, it is hard to see it aligning itself with the traditional leadership structures of northern Nigeria together with modern political elites in the region. Boko Haram repudiates the northern political elites because of their affiliation to a secularist state and hence at this juncture, it is quite impossible to see any alliance, or more appropriately, agreement being forged.

Shekau increasingly became a murderous, remorseless and heartless figure extolling kidnapping and hostage-taking, child soldiers and female sexual enslavement in the name of his psychopathic faith. He is crude, anti-intellectual and the opposite of the more suave and eloquent Yusuf. The multiple employment of twelve-year-old girls as suicide bombers, the awful event of the Chibok school girls’ kidnapping that outraged the world, the merciless and odious decapitation of adversaries and perceived non-believers, the instigations of widespread social chaos, violence and death across different national boundaries, the utter lack of civility in the conduct of war and the absolute disregard for human life already offers up an extremely vivid picture of hell on earth. But if this is the price to be paid to breach paradise, then nothing can assuage the memory or protracted agonies wrought by this relentlessly bleak and violent dystopia.

Nwankpa mentions a number of counterterrorist measures to check the advances of Boko Haram, which has been described as the West African Islamic state. The sect has evolved into a transnational succubus with various resources and networks available to it in enforcing its reign of death. So perhaps when it is in recession in north-eastern Nigeria, for instance, it could suddenly assume resurgence in say, Cameroon or Chad or Niger, which are all countries where it has adherents and has also managed to wreak a trail of death and destruction in its wake.

Nonetheless, Nwankpa explains why Boko Haram has not captured global consciousness in the way ISIS or al Queda have done. Boko Haram largely pursues a local(ist) agenda without having done significant and direct harm to global political and economic interests. In this sense, it is seen as pursuing the jihadist path trodden by Usman dan Fodio, who established the first great West African Islamic kingdom in 1804.

Boko Haram, at the zenith of its political and territorial powers between 2014 and 2015, never managed to create a viable Islamic state on the captured territories of north-eastern Nigeria. In addition, in political terms, rather than attract new adherents amongst die-hard Muslims, it has only succeeded in repelling them because apart from what appears to be its unalloyed nihilism and insufferable taste for violence and vengeance, it had very little else to offer.

In spite of these significant shortcomings, it is apparent that neither the Nigerian nor the Cameroonian government has the capacity to extinguish the murderous rage fuelling Boko Haram to ever more shocking depths of terror.

In view of such a dire prognosis, two approaches immediately come to mind: newer ways of living and coping with international terror would have to be found; and secondly, government authorities need to devise more integrated as well as multi-pronged approaches in deciding what forms of terror are likely to have global impact on a scale of priorities, and on that basis, initiate plans of action.

In an age when the whole of humanity trembles under constant threat, and basic humanism is sorely tested, post-traumatic stress disorder a widespread reality. Every effort ought to made without recourse to the textbook terrorism of professional terrorists (and that’s the hard part) to re-establish and retain what makes us simply and truly human.

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Sanya Osha is a philosopher, novelist and poet living in Pretoria, South Africa. His most recent publications include the novels, An Underground Colony of Summer Bees (2012), and On a Sad Weather-Beaten Couch, the volume of poetry, A Troubadour’s Thread (2013), and the work of scholarship, Dani Dabudere’s Afrikology (2018).

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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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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