More than 200 people, among them senior government officials, principal secretaries and CEOs of state agencies, have been arrested, arraigned in court and charged with diverse criminal offences as a result of President Uhuru Kenyatta’s renewed war on graft.
On 22 July 2019, the Director of Public Prosecutions (DPP) ordered the arrest of and proffered charges against 28 senior government officials, among them Henry Kiplagat Rotich and Kamau Thugge respectively the Cabinet and Principal Secretaries of the National Treasury, the Principal Secretary of the Ministry of the East African Community, the Managing Director of the Kerio Valley Development Authority, a state corporation, and the Director of CMC di Ravenna, an Italian company. According to the DPP, investigations have established that the charged officials flouted procurement rules and abused their oath of office in awarding or otherwise ensuring that CMC di Ravenna secured the contract for the construction of the Arror and Kimwarer dams. The contractual amount is in the region of $600 million.
Prosecuting corruption in Kenya: A troubled past
From Kenya’s independence in 1963 to the establishment of the Kenya Anti-Corruption Authority in 1987, the duty to prosecute government corruption fell on the Office of the Attorney General (AG) who simultaneously happened to be the government’s chief legal advisor and chief legal defender. Requiring an office to prosecute its chief client yielded predictable results. Despite damning reports by the office of the Auditor and Controller General, as well as independent reports of the Parliamentary Public Accounts and Investment Committees, the AG remained resolutely intransigent towards bringing charges against government officials of any stripe, and outrightly protected senior government named in the reports.
In the Goldenberg scandal – an export compensation scam under the Daniel arap Moi regime that is estimated to have cost Kenya 10 per cent of her GDP – the AG at the time (and current Senator for Busia County), Amos Wako, failed to initiate proceedings for four years after the scandal came to light, and was only moved to do so by a suspension of International Monetary Fund (IMF) aid and the combined pressure of the Law Society of Kenya, donor nation governments and an increasingly outraged and assertive public.
Notwithstanding the said pressure, Wako used a variety of guises to impede the prosecution, including attempting to oust the jurisdiction of the High Court in the matter, numerous adjournments, withdrawing charges altogether and then being compelled by foreign pressure to reinstate them. The Minister of Finance at the time was never so much as charged and to date nobody has ever been convicted.
In the Goldenberg scandal, the AG at the time (and current Senator for Busia County), Amos Wako, failed to initiate proceedings for four years after the scandal came to light, and was only moved to do so by a suspension of IMF aid and the combined pressure of the Law Society of Kenya, donor nation governments and an increasingly outraged and assertive public.
Kenya then moved to break the prosecutorial monopoly of the AG. The Kenya Anti-Corruption Authority (KACA) was established in 1987 by the amendment of the Prevention of Corruption Act (Cap. 65) but was hampered by legal, administrative and budgetary constraints that appeared deliberate. Its first director, John Harun Mwau, was appointed 10 years after the establishment of KACA, for instance, and was shortly thereafter sacked by the president at the recommendation of a tribunal of inquiry after the director had obtained warrants of arrest against high ranking officials of the Treasury as well as the Kenya Revenue Authority.
It is noteworthy that Mwau was not conventionally qualified for his post nor was the process of his appointment subject to a transparent recruitment process. Indeed it is believed that the appointment was a quid pro quo in return for his dropping out as a presidential candidate. Nonetheless he was fired just as he appeared to make progress.
As such, whereas his successor Aaron Ringera was undoubtedly well qualified for the post, being a well-respected High Court judge, his appointment was nonetheless greeted with scepticism. Justice Ringera took office in 1997 and by 2000 KACA had been declared unconstitutional by the High Court before any of the cases it had instituted had been, the court finding that the existence of KACA infringed upon the constitutional powers of the offices of the Attorney General and the Commissioner of Police for two main reasons: first, that Justice Ringera, being a judge and simultaneously the head of an organ of the Executive, offended the doctrine of separation of powers; and second, that under section 26 of the Constitution (as it then was), the AG had the exclusive power to prosecute. The cases that KACA was handling were handed over to the AG. These cases were either not continued or ended up being dismissed by courts.
The demise of KACA led to widespread civic and international outrage. Following the general elections in 2002 – widely believed to be the first truly free elections of their kind in Kenya’s history – Mwai Kibaki was elected president on a broad reform mandate, key to which was fighting corruption. He established KACA’s successor, the Kenya Anti-Corruption Commission (KACC) in April 2003 by way of the enactment of the Anti-Corruption and Economic Crimes Act. Exactly one year later, in April 2004, KACC was to face an acid test following the coming to light of what would prove to be the new administration’s nemesis, the Anglo Leasing Scandal (Anglo Leasing).
Anglo Leasing was a government procurement scandal in which a diverse array of fraudulent entities were secretly and unlawfully awarded large security contracts, and subsequently failed to deliver goods or services or grossly overcharged for them. In total it was estimated that there were at least 18 such contracts with a total value of $721 million.
The scandal reached the highest levels of government and was well-documented by the whistleblower John Githongo, who was then the Permanent Secretary for Governance and Ethics. Githongo was a former Executive Director of Transparency International in Kenya and was widely regarded as a person of integrity. Indeed his appointment was intended by Kibaki to signal his seriousness in the fight against corruption. Githongo’s report implicated the president himself, his vice president as well as various cabinet ministers and permanent secretaries.
The consequences were limited. The newly established KACC cleared three cabinet secretaries of obstructing the investigation using the novel and startling legal innovation that the whistleblower was not an investigator as defined by law. Far from playing the role of an independent prosecutor, KACC either did not investigate the most culpable, or when it did, it resorted to technicalities in order to defeat the very purpose it was formed to serve.
Anglo Leasing was a government procurement scandal in which a diverse array of fraudulent entities were secretly and unlawfully awarded large security contracts, and subsequently failed to deliver goods or services or grossly overcharged for them. In total it was estimated that there were at least 18 such contracts with a total value of $721 million.
In what is likely to exert a chilling effect on the exposure of government scandals, Githongo has recently had judgement entered against him personally in the amount of $270,000 for defamation in a suit brought by Dr. Christopher Murungaru who as Minister of Internal Security at the time of the coming to light of Anglo Leasing, was perhaps the leading figure under investigation in the scandal. This is the latest in a long series of legal setbacks which Githongo has faced since doing Kenya the immense service of bringing Anglo Leasing to light.
The Executive: Questionable tactics
Prosecution is no easy task. Prosecuting economic crimes such as corruption is even more so. These crimes tend to be characterised by a high degree of sophistication in terms of commission as well as concealment. Payments to those concerned, for instance, may be in the form of ‘commissions’ by shadowy organisations to multiple offshore jurisdictions, which are hard to trace and whose illegality is difficult to prove.
Unlike other crimes, a disproportionate amount of evidence tends to be in the hands of those who are already suspects. Gathering such evidence takes a great deal of time and expertise, involving teams of professionals applying specialised forensic techniques. The suspects themselves tend to be wealthy and powerful. They are able to hire large teams of lawyers who take advantage of every legal loophole, technicality, adjournment, appeal and delay in their client’s favour. They are able to apply pressure to witnesses and even to those working within the prosecution. Cases are likely to drag on for a long period of time and a government that wishes to see quick results in the war against corruption would be ill-advised to rely on prosecution as its primary and most visible strategy.
The DPP and the Directorate of Criminal Investigations (DCI) have conducted much of the war on corruption as a drama played out in the public eye. Press releases are issued and persons high and mighty are arrested with great fanfare. These persons are arraigned in court in vast numbers, and when bail is granted, the DPP cries foul. One of the major reasons that inform opposition to bail by the DPP is that the accused may interfere with investigations. This then implies that investigations were incomplete at the time suspects were arrested. This working methodology appears to essentially be a public relations exercise that fundamentally undermines successful prosecution.
Unlike other crimes, a disproportionate amount of evidence tends to be in the hands of those who are already suspects. Gathering such evidence takes a great deal of time and expertise, involving teams of professionals applying specialised forensic techniques.
Furthermore, those accused are often skilled political operatives, with established relationships within media. Charismatic and often able to appeal to ethnic loyalties, they can use the media as a tool to gain public sympathy and scuttle efforts at holding them accountable. In addition, early engagement of the media by the DPP as part of political theatre is likely to expose strategies and information prematurely, forewarning the accused. It must also be acknowledged that media organisations are corporate profit-making entities with interests of their own that may or may not align with the public interest.
Take for example the second National Youth Service (NYS) scandal. At one point there were 30 accused persons on one charge sheet in one case. Each was represented by at least one lawyer, and frequently by a team of lawyers. Each individual had to be put on their defence separately; each called and cross-examined their own witnesses. This takes about four days per witness. No country in the world can conduct a speedy trial, or even a fair one, under such circumstances. Even a matter as basic as a courtroom was a problem: there exists no courtroom in Kenya large enough to conduct this case, which had to be held in a ceremonial hall.
Unwieldy prosecution strategies have in the past been used as a guise under which the government appears to prosecute corruption while simultaneously taking steps to guard the prosecuted from legal culpability. During the Goldenberg scandal, the Attorney General, against the advice of his own Director of Public Prosecutions, framed more than 90 counts in one charge despite clear evidence that this would invalidate the charges, which is precisely what happened.
Given the difficulty of corruption investigation prosecution, cases should be restricted and prioritised based on pre-established criteria. Such criteria would include prosecuting the most senior figures, establishing judicial precedent and the probability of a successful outcome, for example, by targeting offences such as tax evasion that are relatively easier to prove.
Moreover, strategies such as plea bargaining and summary proceedings have proven useful in other jurisdictions as a means of shortening litigation and also gathering evidence of criminal activity that would otherwise be unavailable or require an enormous expenditure of surveillance and forensic resources.
Prosecuting corruption amounts to locking the stable door after the horse has bolted. Prevention is by a huge margin the better strategy, a large responsibility that lies with the Executive headed by the President. That we are experiencing corruption at all means that the Executive has failed to stop it and must now rely entirely on prosecuting those whom it has allowed to raid public coffers.
The Executive does not appear to have a coherent professional strategy to fight corruption. In the recent past, buildings on riparian land were brought down in a flurry of activity. Now there is sudden silence. This work has not been completed. Also forgotten is NYS 1, in which the central figure is now a governor. There needs to be a demonstrated professional understanding of corruption in Kenya and its underlying causes that drives the war on corruption; absent that the process will appear ad hoc and susceptible to being interpreted as a platform to selectively seize and exploit the weaknesses of political opponents.
The Executive does not appear to have a coherent professional strategy to fight corruption. In the recent past, buildings on riparian land were brought down in a flurry of activity. Now there is sudden silence.
Furthermore, the close relationship between the presidency and prosecutorial agencies is problematic. Factual independence of prosecutorial agencies from members of government is crucial towards the effectiveness of prosecution as an anti-corruption strategy. Components of factual independence include stable and widely applied legal foundations for the prosecution of crimes. As such, prosecutions ideally should emanate from an independent office exercising a constitutional and legal mandate independently, rather than following directions from any one office, however well meaning. Trust in the war on corruption and the legitimacy of the ruling regime as a whole could be undermined if it is perceived that those closely aligned to State House are unlikely to be prosecuted.
The blame game: The Judiciary
The Judiciary has been accused of granting bail with alarming ease to the high and mighty, while simultaneously denying the same benefits to ordinary citizens. Chicken thieves are subject to incarceration while those who have stolen millions roam this land free and unburdened.
The President himself, on the occasion of his Jamhuri (Republic) Day speech on December 12 2018, accused the Judiciary of granting “ridiculously low bail terms”. The Judiciary has been accused of misunderstanding the presumption of innocence and equating it with a presumption of virtue, being divorced from the aims of society in general and in particular being insensitive to the scourge of corruption. Indeed political actors have not shied away from accusing the Judiciary of outright collusion with accused persons. Individual judges have also been mentioned adversely in social media in ways ranging from the mildly disturbing to the downright scandalous.
It is germane to the President’s comments on “ridiculously low bail” that in the preceding week, top officials of the Kenya Pipeline Company (KPC) and the National Health Insurance Fund (NHIF), including Joe Sang, the Managing Director of KPC and Geoffrey Mwangi, CEO of NHIF, had been charged with abuse of office leading to the theft of billions of shillings. They were released on a bail of Sh2 million each. In July 2018, top officials of the Kenya Power Company, including the CEO Ken Tarus, his predecessor Ben Chumo and senior managers were similarly charged and released on bail terms of Sh1 million.
Where the Judiciary has been criticised for giving bail, no evidence has been proffered of the compelling reasons against it that the Judiciary ignored. Suspects have presented themselves to police stations and have attended court proceedings voluntarily. The purpose of bail is to secure attendance, not to act as some sort of premature punishment prior to conviction by its denial.
While it is still too early to pass definitive judgement on the effectiveness of this new wave of prosecution against corruption there is a key historical hurdle that Uhuru Kenyatta’s administration will have to overcome. The prosecution or lack thereof of Anglo Leasing suspects in a scandal that was enormously well-documented leads us to the inevitable presumption that that those crucial to the campaign of the next general election in 2022, either by dint of being sufficiently wealthy and willing to fund the election campaign or perceived as being able to guarantee key ethnic loyalties, will not be successfully prosecuted and that after the dust and fanfare settles those most culpable will not be held accountable. Shifting the blame to other institutions has already begun and is likely to continue.
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Arror & Kimwarer Dams Saga: Fighting Corruption or Realpolitik?
The cases at the Milimani Anticorruption Court provide few concrete answers amid claims that the investigations into the Arror and Kimwarer Dams projects are politically motivated to weaken Deputy President William Ruto who is running for the presidency.
A joint investigation by IrpiMedia and The Elephant
Soon after Uhuru Kenyatta and his deputy William Ruto secured a controversial second term in November 2017, investigations begun into the procurement and financing arrangements surrounding the Arror and Kimwarer dams in the Rift Valley county of Elgeyo Marakwet.
The dams had been commissioned years earlier, and billions had been paid out but there was nothing on the ground to show for either dam. The Kimwarer project has since been cancelled, the Arror one scaled down, and eight defendants today face charges of conspiring to defraud the government of nearly Sh60 billion. However, there have been claims that the investigations and prosecutions are politically motivated and aimed at weakening Deputy President William Ruto who is running to becoming Kenya’s fifth president. Just this week, during the presidential debate, Ruto essentially said the dams were casualties of the 2018 fallout with his boss. This has been many times denied by the Director of Public Prosecutions.
The two cases dealing with the dams at the Anti-Corruption Court in Milimani, Nairobi, focus on alleged irregularities in the tendering and contracting of the dams as well as alleged illegal payments made to two Italian companies. The crux of the ODPP’s case is that officials of Kerio Valley Development Authority and the national government colluded to grant CMC di Ravenna and its joint venture partner, Itinera S.P.A, a contract for the construction of the two dams for which they had not won the tender and that differed fundamentally from the terms advertised in December 2014, which called for proposals for the “funding, design, build and transfer” of the dams. The eight Kenyan officials in case No. 20 of 2019 and the 18 Italian companies and individuals in case No. 21 of 2019, are accused of executing a sleight of hand, initially pretending that the contractors would mobilize money from the Italian government to build the dams and then switching it to a commercial loan with the government as the borrower. Furthermore, instead of the borrowed money being deposited into the Consolidated Fund as the constitution prescribes, on the contrary, it was sent directly to the contractor. In the ODPP’s view, this is where the fraud arose.
The initial contracting model selected was Engineering, Procurement, Construction and Financing where the contractor also arranges financing for the project through tie-ups with financing institutions. They can be useful when contractors have better access to low-cost financing, including state-provided export-import financing. However, the Parliamentary Service Commission has noted that these contracts are vulnerable to abuse and in 2019 parliament suspended 20 dam projects, including Arror and Kimwarer, saying “Kenyans [were] not getting value for money in this model”.
According to the ODPP, the tendering process for the two dams was riddled with irregularities. In an affidavit sworn in February 2020 on behalf of the DPP, Police Constable Thomas Tanui states that, unlike the Arror dam, the Kimwarer project had not been approved by the Cabinet, as required by the 2013 Public Private Partnership Act (PPA). Further, in the course of the process, the tender documents for CMC di Ravenna were illegally altered at least twice to switch CMC’s joint venture partners from South Africa’s AECOM to a company only known as MWH, and then again to Itinera S.P.A. And while it was Italy-based CMC di Ravenna that made the bid, the tender was awarded to South Africa-based CMC di Ravenna, a different legal entity with whom KVDA signed Memoranda of Understanding regarding the two dams in December 2015 and February 2016 that were meant to end with the signing of concessional contracts within 8 months.
However, the MOUs expired without the concessional contracts being signed and instead, on 5 April 2017, the KVDA signed commercial contracts for the construction of both dams with the Italian CMC di Ravenna and its joint venture partner Itinera S.P.A. for a total combined amount of US$501.8 million, including 10 per cent contingencies that had not been negotiated for under the concessional agreements.
In his affidavit, PC Tanui avers that the dam projects were conceived as concessionary projects under the PPA but were surreptitiously converted into a commercial instead of a concessional contract. However, what the ODPP means by “concessional contract” and how that differs from a commercial contract is not clear. There’s no mention of a “concessional contract” in the PPA which defines a concession as “a contractual licence . . . entitling a person who is granted the licence to make use of the specified infrastructure or undertake a project and to charge user fees, receive availability payments or both”. While the law allows government agencies to “enter into a project agreement with any qualified private party for the financing, construction, operation, equipping or maintenance” of infrastructure, none of the 15 types of public private partnership arrangements it lists in its second schedule seem to fit what KVDA had initially advertised.
However, perhaps what the ODPP refers to as a “concessional contract” is a reference to the way the project was to be funded. According to press reports and Richard Malebe’s petition, the initial charges alleged that the national government and KVDA officials as well as the Italian companies conspired to “entered into a commercial loan facility agreement disguising it as a government-to-government loan guaranteed by the Italian Government . . . ‘while knowing the tender document contained in the request for proposals for the development of the dams project was a concessional agreement where the intended concessionaire was to be the borrower and financier and not the Government of Kenya’”. In essence, by substituting the commercial contract for the concessional one, rather than an arrangement where Government only paid once the dams were delivered, with the contractor and financiers assuming all the risk, it was the public that was left holding the baby when things went wrong. If anything, the Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.
A Treasury press statement dated 28 February 2019, signed by one of the accused, former Cabinet Secretary Henry Rotich claims that the financing agreement for the two dams was “government-to-government” with the Italian government—represented by the 100 per cent owned Servizi Assicurativi Del Commercio Estero (SACE)—providing “insurance cover and financial support” amounting to close to 88 per cent of the total loan amount, with a consortium of four banks led by Intesa Sanpaolo said to provide the rest. The statement details “the Conditions Precedent”, which were payments apparently required before funds could be released to the government and the contractor. These include €7.83 million (Sh951 million) in fees and commissions and €94.2 million (Sh11.4 billion) in credit insurance to cover lenders for both dams. In addition, another US$75.2 million (Sh9 billion), or 15 per cent of the total contract sum for both dams was paid out to the contractor.
The Kenyan public paid to insure the banks against government default, which insurance the ODPP says was illegally single-sourced.
The Treasury claims these fees and advances were provided for and paid from the loan from SACE and the banks, not Exchequer funds. This aligns with a November 2019 note by SACE to the Italian foreign ministry which states that the agreement required the “payment of the sums due by the Contracting Authority to the CMC-Itinera joint venture through direct disbursement by the lenders on a current account of the contractor opened outside the State of Kenya” —a violation of the Kenyan constitution which requires all sums borrowed by the government to be deposited in the Consolidated Fund. However, according to both CMC-Itinera and a confidential analysis by the ODPP seen by The Elephant, the advance payment was for a total of €66.6 million (Sh8.09 billion), a discrepancy of nearly Sh1 billion. (It should be noted that the National Treasury appears to have entered into a facility contract with lenders in Euros, and payments appear to have been made in the same currency, even though the commercial contracts were in US dollars, which exposed taxpayers to losses through changes in the exchange rates. In this article, we have used the current exchange rates to reflect the amounts in Kenya Shillings.)
Further, according to business journalist Jaindi Kisero, SACE does not appear in the external debt register which raises doubts as to whether they were indeed the main lender. Also, the November 2019 note by SACE to the Italian foreign ministry says the insurance guarantee was “in favor of the Lenders for the entire amount financed”, which seems to say that all the money came from the banks. The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them. It argues that the insurance premium was fraudulent because if the funds came from SACE, as the agreements suggest, it would have been a government-to-government loan which would require no insurance. It concludes that “payments made by GoK were made with the intention to siphon money from the country in the disguise of advance payment, insurance premium and commitment fees”.
Deputy President Ruto has claimed that only Sh7 billion was in question and that the government had a bank guarantee that protected every penny. The Treasury statement seems to back him up, at least as far as the guarantee is concerned, claiming the advance payment was backed by “a bank/insurance guarantee” which would be called “if the contractor is unable to deliver the service to the Government or runs bankrupt”. And in February 2022 Regional Development Principal Secretary Belio Kipsang told Parliament that Heritage Insurance and Standard Chartered Bank had respectively issued insurance guarantees for the advances paid to the CMC Ravenna-Itinera joint venture for Arror (Sh4.1 billion) and Kimwarer (Sh3.6 billion). He said the government had already recalled the Arror guarantee and was planning to do the same regarding Kimwarer, whose guarantee expires in June 2023. However, it is again unclear from his statement what currency the guarantees are in: dollars, euros or shillings. If in shillings, then it seems that up to Sh1.3 billion may not be covered.
The ODPP analysis says that while the agreements make it clear that SACE was one of the financiers, the agency did not act as a party to them.
It is unclear exactly how much Kenya stands to lose given the discrepancies in the currencies used. In total, according to the ODPP, €168.5 million (Sh20.5 billion) was paid between 4 May 2017 and 7 November 2018 to cover the insurance premium, various fees as well as the advance payments. The statement from the Treasury, as noted above, puts this figure at €102 million and US$75.2 million for a total of Sh23.5 billion at current rates. In addition, the external debt register lists Kenyans as being on the hook for the entire loan amount of €578.4 million (Sh70.3 billion) which stands to be repaid until November 2035. Yet it does not seem that any further disbursements have been made by the banks to the companies beyond the insurance premium, fees and commissions and the advance payment. Why the full loan amount would be reflected as drawn down in the debt register is a mystery. It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.
The cases at the Milimani Anticorruption Court provide few concrete answers. There are currently two cases, consolidated from the initial four—two cases for each dam dealing separately with charges of financial and procedural irregularities. Each of the four initial cases had numerous defendants including directors of companies based in Italy who refused to come to Kenya to take plea, occasioning long delays. Eventually, all the cases were consolidated into two, with Case 20 of 2019 having 8 accused persons based in Kenya, and Case 21 of 2019 dealing with the alleged crimes of 18 Italian individuals and companies. This arrangement has allowed the Kenyan cases to proceed with the first witness out of 57 taking the stand in November last year.
One strange thing about the cases filed by the ODPP is that while they allege a conspiracy to defraud the government through the commercial agreements, there is little indication of the other side of that coin: how did the individuals involved benefit from the scheme? No one is charged with paying or receiving a bribe and there has been little evidence produced so far to warrant the many press allegations of corruption and kickbacks. According to a report in the East African Standard, Sh450 million was “wired by the Treasury to Italian firm CMC di Ravenna . . . was sent to an account in London then Dubai and later to Nairobi”. One of the report’s writers, Roselyne Obala, would later add that the same Sh450 million was part of a larger payment of over Sh600 million and that it was paid to an account in Barclays Bank in Nairobi. However, none of this is in the charges preferred at the Anti-Corruption Court. Further, it is unclear whether “over KSh600 million” refers to the much larger advance payments which, in any case, was (illegally) transferred directly by the banks in London to the companies. Further, the absence of prosecutions within Italy, which has a law criminalizing Italian companies paying bribes to public officials abroad in return for contracts, suggests that there is no evidence that a bribe was paid in this case.
There have been allegations raised that the prosecution of the dam cases was politicised, targeting allies of Deputy President William Ruto. In October last year, Rotich instituted a petition at the Milimani High Courts questioning why the DPP left out key personalities involved in the tendering process such as the former Attorney General Githu Muigai, solicitor general Njee Muturi and former Environment CS Judi Wakhungu. Rotich has also argued that he was not responsible for procurement of the tenders and was not the accounting officer at Treasury. “It is absurd that the respondents chose to charge me while the Attorney General is not charged in this respect. This is an indication of selective prosecution that cannot stand the test of objectivity and fair administration of action,” he argued in the petition. Others have pointed to the dropping of charges against members of the KVDA Tender Committee as well as some of Rotich’s co-accused, former Treasury PS Kamau Thugge and Dr Susan Koech, a former PS in the Environment Ministry, as proof of malicious prosecution.
It is also noteworthy that Kenya has refused or failed to make any repayments on the moneys already disbursed.
Regarding the latter accusation, it is notable that many of the former accused have actually become witnesses so it may just be a case of the DPP using the small fry to net the “big fish”. However, when it comes to why the former AG, the solicitor-general, and the various ministers who oversaw KVDA between 2014 and 2019 are not in the dock, the answers are not so convincing.
A bigger source of discontent is the lack of similar prosecutions over similar projects. For example, the contract over the Itare Dam in Nakuru, also in the Rift Valley, features the same set of characters—SACE, CMC di Ravenna, Intesa San Paolo, BNP Paribas—and was the first dam awarded to the Italians in 2014. After advance payments of Sh4.3 billion were paid out, the project appears to have collapsed. As Nakuru Senator Susan Kihika noted in February 2019, “It . . . seems as if there is no equal treatment of all the projects across the country.”
In 2013, CMC had signed a consultancy contract with Stansha Limited, owned by Stanley Muthama, the MP for Lamu West, in which Stansha pledged to help CMC in its bid for tenders for the construction of Itare Dam, which is under the Rift Valley Water Services Board, and Ruiru II Dam under the Athi Water Service Board, for a fee of 3 per cent of the contract value. For Itare, it came to Sh330 million. According to the ODPP analysis, on 25 November 2015, a Stanley Muthama identified as “Staff CMC Kenya office” participated in a high-level “clarification meeting” with KVDA officials regarding the tender for the Arror dam, one of the decisive meetings for the award of the contract. Among those at the meeting were Paolo Porcelli and Gianni Ponta, two CMC officials the ODPP has charged, among others, for having “conspired to unlawfully have the services of CMC di Ravenna-ITINERA JV procured by KVDA for the development of Arror and Kimwarer multipurpose dams”. There is however no Stanley Muthama being prosecuted by the ODPP in the Kenyan case and no suggestion of any wrongdoing with regard to the contracts.
There, however, seems to be a pattern emerging where CMC di Ravenna—which has been in economic turmoil for four years; in 2018 it owed creditors €1.5 billion euros—receives advance payments for projects it does not thereafter complete. In Nepal, a US$550 million contract for the construction of a hydroelectric plant was terminated in 2019 and the company ordered by an Italian court to return €15 million to a bank in Nepal that had financed the project. CMC had not warned the Nepalese bank of its financial problems and had not even begun the work.
In Kenya, though, the two Italian firms have also claimed the cases were politicised and lacked grounds. In December 2020, they filed a suit at the International Court of Arbitration at the International Chamber of Commerce claiming they were victims of power politics between President Uhuru and his deputy William Ruto. They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations and are demanding US$115 million (KSh13.7 billion) in compensation for the cancellation of the contracts.
A bigger source of discontent is the lack of similar prosecutions over similar projects.
“It seems hardly coincidental that the highest ranking official to be investigated and charged in the criminal proceeding is Kenya’s Treasury CS Mr Henry Rotich, an ally of Mr Ruto,” stated the court document as reported in Business Daily. They claim that allegations of impropriety did not surface until two years after the contracts were signed and that KVDA had admitted that the projects had been politicised with an intention of terminating them.
In notes sent to the Italian Foreign Ministry, the joint venture complains of “delays in the payment of fees [by Kenya] to the Agent Bank with the risk of blocking future disbursements”. The companies blame the failure of the project to get off the ground on the failure by KVDA to deliver the necessary land, a claim repeated by Deputy President Ruto during the presidential debate in July. They also claim that import permit exemptions had not yet been issued.
President Kenyatta has also reportedly tasked AG Paul Kihara and Head of Public Service Joseph Kinyua to negotiate with the joint venture to seek an amicable settlement although it is curious that Kenya would seek to pay off the very companies it accuses of conspiring to defraud it. The country has, however, trodden this route before. In 2014, President Kenyatta ordered payment of Sh1.4 billion to briefcase companies for termination of contracts to supply telecommunication equipment and bandwidth spectrum, part of the Anglo Leasing scam where billions were paid to fictitious companies for security-related contracts.
Further, in May last year, SACE wrote to the AG, the Treasury and the Ministry of Foreign Affairs saying that Kenya could get a partial refund of its insurance premium but only if it committed to paying off the banks on whose behalf the country had taken out the policy. And the letter included a not-so-subtle hint that Kenya’s relationship with Italy was on the line.
They alleged that the cancellation of the tender was a ploy to weaken Deputy President Ruto’s 2022 presidential aspirations.
In brief, it seems clear that there were serious irregularities during the tendering and contracting for the two dams. KVDA tendered the projects under the PPA for a concessional arrangement but awarded a commercial contract under the Public Procurement and Disposal Act to a legally different entity from that which had won the tender without beginning the process afresh. Further, the arrangements to transfer money directly from commercial banks to the contractor seem clearly illegal and the shift from a concessional arrangement to a commercial one probably means Kenyans ended up paying more—including for unnecessary insurance. However, no money appears to have been paid out directly from the Exchequer, although the fees, commissions and advance payments have accrued a debt of up to Sh23.5 billion (at current exchange rates), less than a third of which may be covered by bank/insurance guarantees. Assuming the debt register is mistaken when it lists the entire loan amount, and that the guarantees by Standard Chartered Bank and Heritage Insurance are eventually honoured, Kenyans would still be, when we eventually get round to paying it, out of pocket by around Sh13.5 billion, the sum of the insurance premium (part of which we may get back), the various fees and commissions, and the exchange rate costs. As noted, no one has been accused of actually pocketing bribes. It also does not seem like either Kenya or the banks are pursuing a refund of the money paid to the joint venture in the Italian courts.
The biggest obstacle to a clearer understanding of what is happening with regard to the Arror and Kimwarer dams is the political whirlwind around it. Adding to the confusion is the language employed—terms like scam and kickbacks—suggesting that the officials involved pocketed bribes, whereas they are not actually accused of any of that. Further, journalists have tended to report the story much like the proverbial blind men of Hindustan—each accurately describing a part of the elephant’s anatomy, but not able to grasp the entire animal., It is to be expected that, even after the general election, the controversy surrounding the Arror and Kimwarer dams will continue to generate more political heat while shedding very little light.
Election 2022: Will the Incoming Leaders Deliver the Promises of Devolution to the People of North-Eastern Kenya?
The leadership is simply not investing in priority areas. The livestock sector, the main source of livelihood and the economic mainstay of the region remains highly underinvested.
Kenyans will go to the polls on 9 August to elect their representatives at the national and county levels. The upcoming elections are the third in Kenya under the 2010 constitution that introduced devolution. Instituted in 2013, devolution sought to bring government closer to the people by devolving political and economic resources to Kenya’s 47 county governments, to better address the local needs of Kenyans.
Just like the rest of Kenya, the residents of the three north-eastern counties of Garissa, Wajir, and Mandera where I was born and brought up, will once again go to the polls to elect their representatives: governors, members of county assembly, women representatives, members of the national assembly, and senators. Those who will be elected will be in charge of managing devolved resources at the county level for the next five years.
In the last decade, devolution could potentially have transformed the lives of the people of north-eastern Kenya but, unfortunately, this has not happened, despite the accrual of substantial funds and political power; the billions of Kenya shillings that have gone into the region have not brought improvements. On the contrary, some sectors such as healthcare and water service provision, have seen a decline or remained the same despite billions of Kenya shillings being pumped into these sectors in the last 10 years. Northeastern Kenya remains one of the most underdeveloped regions in Kenya, lagging behind the rest of Kenya in almost all development indicators, and the people are among the poorest in the country. The majority lack access to basic services and infrastructure such as water and healthcare, good roads and electricity.
The lack of progress in the last ten years is largely attributed to poor governance and the massive theft and misappropriation of public resources by elected leaders, the region’s elites and public officials. All indications are that massive graft, corruption, and misallocation of political and economic resources have stunt the region’s ability to take advantage of devolution and catch up with the rest of Kenya. Resources meant for the population are being misappropriated and the leadership has nothing to show for the ten years after devolution existence; blatant theft and embezzlement of public funds and misgovernance have been its defining characteristic in the last ten years.
This article is a review of devolution in north-eastern Kenya ten years after its inception. It focuses on the three north-eastern counties of Garissa, Wajir and Mandera and is a reflection of the writer’s assessment of devolution in north-eastern Kenya over the last ten years. The situation described above is similar elsewhere in the larger northern Kenya in the counties of Marsabit, Isiolo, Tana River, Samburu, Turkana, and West Pokot, but this piece focuses exclusively on the three north-eastern counties.
The lack of progress in the last ten years is largely attributed to poor governance and the massive theft and misappropriation of public resources by elected leaders, the region’s elites and public officials
Disclaimer: By highlighting the failures of devolution and how it has not delivered for the people of north-eastern Kenya, the writer is by no means advocating for the previous Nairobi-based centralised governance system where resources were shared only by a few at the centre (1963-2013), a system that had neglected and marginalized the region for far too long, denying it investments, the cause of the current predicament the region faces today.
The current failure of devolution in northern Kenya is partly tied to the failure at the centre; the ills of the centre have been replicated at the periphery. Under the Jubilee government, the national government has since 2013 experienced astronomical levels of corruption and theft of public funds affecting public sector institutions than any other time in Kenya’s history. National state oversight institutions mandated to fight corruption at both levels of government have been unable or unwilling to effectively carry out their oversight duties. Also, of importance to note is that, the widespread allegations of corruption and misappropriation of public funds are not unique to the counties of north-eastern Kenya but are also reported across most of the country’s 47 counties and this has greatly demoralized Kenyans.
Blatant theft of public resources
In north-eastern, county officials and leadership, including governors, executives and other public officials are stealing from the people. Over the years, the office of the Auditor General has exposed massive misappropriation of resources and irregular procurement rules. General public perception in the region is that the leaders are not serving the people’s interests, but are only enriching themselves with the resources they have been entrusted with, with impunity and zero accountability. As a consequence, the electorates have given up and resigned themselves to their fate, leaving it to God to will punish the thieving elites in the hereafter.
Over the last decade, and during the tenure of the last two county administrations, the elected governors have turned the north-eastern counties into family “fiefdoms” and “small monarchies” similar to Middle East monarchies where those who benefit most are the immediate family members, close friends and cronies. Nepotism and favouritism have become widespread, and governors and their appointed county executives use relatives, including extended family members and close friends as proxies to siphon off public resources meant to benefit citizens. Across the three counties, the governors and other senior county public officials have put close family members and relatives on the county payroll as ghost workers who have no job descriptions, actual portfolios or offices. Individuals who have previously never worked in any major capacity and have little experience are given high paying public jobs only because they belong to the right families or know the right people.
Governors, county executives and elected local leaders also use proxies and companies owned by friends and close family members to obtain lucrative multimillion contracts. For the five years the governor and the county executives are in charge, they and their proxies remain inaccessible and out of reach of the ordinary mwananchi.
A small portion of the loot is laundered in the region. Much of the looted money is laundered in major cities such as Nairobi and Mombasa, where the county leadership uses the ill-gotten wealth to invest in residential properties and shopping malls. County governors and their executives have bought houses, apartments and palatial homes worth hundreds of thousands of US dollars in Nairobi’s upscale residential areas such as Kilimani, Kileleshwa, Lavington, Parklands, Karen, Spring Valley and others. One favourite estate among senior Somali county officials from northeastern is the South C neighbourhood, where a high number of county executives live and operate from, instead of their respective county headquarters. They either pay high monthly rents or have bought expensive apartments and houses. The Eastleigh neighbourhood the looted public money is “reinvested” in businesses in the form of shopping malls. Some use the looted public resources to marry second and third wives or to purchase vehicles worth many times their annual salaries as county officials, while others have used the plundered money to go to Mecca on pilgrimage and “contribute” to religious causes such as building mosques and Islamic madarasa schools. Governors, specifically, have moved some of their ill-gotten wealth abroad, especially to the Middle East and Turkey. Other favourite destinations include Dubai and Turkey where the governors have bought palatial holiday homes and apartments in cities such as Ankara, Dubai, Abu Dhabi, and elsewhere.
All north-eastern governors have offices in Nairobi where they spend a ood part of their time instead of operating from their county headquarters. Governors and county executive members also hold county executive meetings in Nairobi instead of the county headquarters. You will also find that many county officials such as executive members, chief officers and members of county assemblies are ever present in Nairobi, operating from the city instead of operating from their respective county headquarters.
The current failure of devolution in northern Kenya is partly tied to the failure at the centre; the ills of the centre have been replicated at the periphery. Under the Jubilee government, the national government has since 2013 experienced astronomical levels of corruption and theft of public funds affecting public sector institutions than any other time in Kenya’s history.
Why is this the case? How are elites able to steal with impunity? The stealing that happens in the counties mostly happens through the flouting of public procurement rules, inflating the price of projects and at times even budgeting for non-existent projects. Kenya has been plagued by corruption since independence, but corruption and blatant theft of public resources has become commonplace since 2013 when the Jubilee Party led by Uhuru Kenyatta came to power. Under the Jubilee government, corruption cases involving the blatant theft of billions of shillings of taxpayers’ money have become the norm since 2013. Pervasive institutional corruption at the centre has spread to the periphery through devolution and, therefore, political and economic devolution to Kenya’s 47 counties has only enabled the creation of another cadre of corrupt elites with the ability, through elections, to capture institutions and resources. What used to happen at the centre has been replicated at the county levels through devolution; county leaders plunder everything from nationally devolved county funds to donor contributions. They take for themselves and their proxies the most lucrative contracts. Development projects in the region have become contractor- and vendor-driven with the governors, deputy governors, county executives and elected members of county assemblies being the biggest beneficiaries.
The looting of public resources has largely been successful and continues unbated due to weak government oversight institutions such as the anti-corruption agency, the Ethics and Anti-Corruption Commission (EACC), the Department of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (DPP). The lack of effective anti-corruption mechanisms and political will at the national level to fight graft plays a major role in fuelling graft and theft at all levels of government. Inessen ce, there is little to no risk of being held accountable and this explains why the leaders are unafraid. Not a single culprit who has stolen from the people in the last ten years is behind bars because of what he or she has done, despite large-scale corruption and mismanagement.
Poor service delivery
The mismanagement, graft and elite capture of county resources has resulted in poor service delivery to the people of north-eastern counties. A major challenge is that the leadership is unable to prioritize development that would transform and improve service delivery. Despite the billions in investment – cumulatively, the three counties received close to Shs100 billion in devolved funds over the last ten years – there is nothing much to show for it. Also, the leadership is simply unwilling to prioritize and invest in areas of public need where the impact would be greatest. Instead, funds are spent as they come in poorly thought-out contractor-driven “development” projects. As a consequence, crucial sectors such as livestock and water, healthcare, and education provision, where the needs of the population lie, have been ignored and, in some instances, the quality of services has deteriorated compared to the period before devolution.
In the counties, the easiest way to steal public funds is through infrastructure projects that are of no benefit to people, such as repairing a rural road that does not actually require refurbishment. Millions in resources have been poured into the construction of structures that now lie idle. For instance, it is quite common to build a structure in a certain village and label it “a health centre” or “a market” even as it remains unoccupied and abandoned. No health workers, equipment and drugs are deployed to the structure to make it an operational health facility. Office blocks are also be built which then remain unoccupied.
To symbolize misplaced priorities, the leadership has invested millions in ultra-modern office blocks, and residences for the leadership, instead of fighting poverty and investing in critical infrastructure such as water, healthcare and fodder for livestock at this time of severe drought.
The leadership is simply not investing in priority areas. The livestock sector, the main source of livelihood and the economic mainstay of the region remains highly underinvested. The recent response to the drought emergency is a testament to the ineffectiveness of the county leadership in responding to emergencies and assisting people at a time of need. Last year alone, millions of head of livestock died after water pans and grasslands dried up following a severe drought season. The drought is even now ongoing. Had the county and national governments intervened and provided needed water and fodder for the livestock, the deaths of millions of head of livestock, which are people’s livelihoods, could have been prevented. The pastoralists had no one to turn to as the response from both counties and the national government was lacklustre; the pastoralists had to fend for themselves, buying water for their livestock from private water vendors at an exorbitant cost. On average, one water truck cost between KSh10,000 and Sh50,000 depending on the distance from water sources, which in many cases are at the county headquarters. I witnessed residents of Wajir County who live far from the county headquarters having to wait for “their turn” to receive water supplied by trucks contracted by the county government. In one village less than 50 kilometres from Wajir town, residents had to wait more than 14 days for their turn to receive water. And when the one truck arrived at the village of 300-plus residents, it could only provide water for the people but not their livestock. In many of the less accessible villages in Wajir, help from the county government never arrived.
To symbolize misplaced priorities, the leadership has invested millions in ultra-modern office blocks, and residences for the leadership, instead of fighting poverty and investing in critical infrastructure such as water, healthcare and fodder for livestock at this time of severe drought.
North-eastern is most water-stressed region in Kenya, the number one hurdle that the people of the north-eastern face. Obtaining drinking water for both people and their livestock is a major challenge. Unfortunately, the region’s leadership has not been willing to find a sustainable solution to the perennial water shortage, the most common response to “alleviate” the water problem in the last decade being the construction of expensive water pans and boreholes. The big ugly holes dotting the landscape serve as temporary rain water reservoirs, but do nothing to solve the perennial water problem in the region. The leadership prefers them because they are easy to implement as they do not involve much technical skill and are normally constructed at inflated cost. Water pans are not a sustainable long-term solution as they dry up almost immediately at the onset of the dry season.
Ten years after devolution, and after receiving billions of shillings annually including in allocations for the water sector, residents of Mandera County headquarters do not have access to running water in their homesteads. The Mandera leadership has been unable to tap the waters of River Daawa, which flows through the county headquarters for most of the year. The county residents rely largely on commercial water vendors.
The World Bank-funded Water and Sanitation Project meant to connect households to piped water, provide community water points, and improve sanitation services in Wajir Town, the Wajir County headquarters, is failing largely because of lack of county leadership, and elite competition for contracts related to the project.
Half of the homesteads in Garissa Town do not have access to running water. Those that do have access to water benefited from a water project that was undertaken in the town during President Mwai Kibaki’s 2003-2007 administration. This means that from 2013 to 2022 the Garissa County leadership has not done much to expand water provision. This is despite River Tana flowing right through Garissa Town to drain into the Indian Ocean.
The health sector is an area that has seen a deterioration in services during devolution. Hospitals and health centres have been incapacitated from lack of staff, lack of adequate medical equipment and essential supplies such as drugs and laboratory reagents.
The three main referral hospitals in the region are run down. Public health facilities have collapsed to the extent that they do not offer basic services such as CT Scans; citizens are forced to seek such services in private facilities at exorbitant prices. When medical equipment such as MRI machines and CT Scans break down, the authorities take months to have them fixed. As an example, when the MRI machine at Garissa’s main referral hospital broke down, it took the administration months to have it repaired. On a visit to Wajir Referral Hospital in Wajir town, I found that the hospital did not have staplers to pin papers together, staff in the maternity ward were using bandages to tie papers together, a situation that persisted throughout the period of one week that I visited a sick relative in the hospital’s maternity wing. Upon enquiry, I was informed by the staff that this had been the situation for weeks. They also told me that it was common for them to run out of other basic essentials such as cotton wool.
A call to the people of north-eastern counties
This is a wakeup call and a public appeal to the people of north-eastern Kenya to elect people of integrity in the upcoming election on 9 August. It is only the electorate who can stand up to and liberate their counties and resources from the thieving “leaders” who have captured and appropriated the county resources. The electorates should give priority to electing leaders of integrity who have a good track record. It is time to reverse the misgovernance and misappropriation of public resources of the last ten years.
Statutory government oversight institutions such as the EACC, DCI and the DPP have spectacularly failed to rescue the counties from the thieving elites. Despite the wanton theft and loss of billions, the corrupt are walking free and are not held accountability. On the contrary, they flaunt their ill-acquired wealth in front of the poor citizenry they have stolen from.
No single public official has been apprehended and convicted for stealing and misappropriating public resources in the last ten years. However, we should not lose hope. Hopefully, the next national government that will be elected in Nairobi in August will prioritize the fight against corruption and theft of public resources, and reform and empower anti-corruption agencies.
In the meantime, the citizens of north-eastern should not give up and resign themselves to their fate, but rather, use the power of the ballot to vote in good leaders who will serve them.
Kenya’s Internally Displaced: An Enduring Colonial Legacy
Whoever between Raila Odinga and William Ruto takes the presidency of this country after 9/8 must find the moral courage to finally break with a colonial legacy that has relegated thousands of our co-citizens to a life of unending misery and despair.
The long-awaited rains are finally here and yesterday’s dry, cracked black cotton soil that we here call kagenyo has turned into a gluey, slippery mess that sticks three inches thick to the soles of your shoes. I am struggling to keep my sneakers on as I make my way up the path to Wanjĩra’s* homestead.
Wanjĩra greets me at her gate and stands there, not showing any signs of inviting me in. Her handshake is firm and her manner brisk, a big woman in a body fed mainly on stodge. Clearly, Wanjĩra is waiting for me to get to the point of my visit so, in the manner of country people, and to break the ice, I begin by observing that, thank God, the rains are finally here. Wanjĩra turns her head, points her chin at the field behind her wooden cottage and says that she’s wondering whether she should bother to start over again. She had planted the early-maturing Pioneer variety of maize seed in anticipation of the long rains but nothing had come of that and the shoots had died in the ground, beaten down by the unyielding sun. Will the rains be sufficient this time round? There follows an awkward silence; where does one begin when one is intruding on the already difficult lives of those displaced by politically instigated violence?
I had learnt only recently that there were internally displaced people living not five kilometres down the road from me, further inland, and I determined to find out their circumstances, concerned that there could be desperate cases—like those I had found at Shalom—living within my community. That is how I ended up at Wanjĩra’s gate, led there by her orphaned niece, a twenty-something young woman with an infant strapped to her back.
Wanjĩra was born and raised in Londiani, Kericho County. Like many Kikuyus of his generation, Mũreithi, Wanjĩra’s father, had been uprooted from his home in Mũrang’a and moved to a colonial village under the colonial government’s villagisation programme that, by the end of 1955, had “relocated some one million Kikuyu into 804 fortified, policed and concentrated villages from their scattered homesteads that were in turn demolished”. From here, having been fingerprinted and with a mbugi around his neck, “no longer a shepherd but one of the flock”, Mũreithi was removed from the kiugũ, the cattle pen, as Wanjĩra sardonically described the village, shoved onto the back of a lorry and transported to Londiani on the other side of the country, never again to return to Mũrang’a. Mũreithi’s final destination was a settler’s farm where he earned a monthly wage of two shillings and fifty cents as a farm labourer. He married and brought up Wanjĩra and her siblings on that pittance but was never able to find the wherewithal to buy land of his own when independence came. A son had done well enough to purchase a quarter-acre in Karamton, Nyandarua County, and this is where Mũreithi was buried when he died.
Born in 1958 and now with a family of her own, Wanjĩra worked in the Londiani Forest planting trees in exchange for permission to grow crops in the clearings, while also slowly building up a herd of 38 cattle that she would graze in the forest. But the violence that broke out following the 2007 general election would prove to be the final straw for Wanjĩra and her family; she and her husband gathered up their eight children and fled Londiani. When the couple married, Wanjĩra’s father-in-law had made room on his one-acre piece of land for the couple to establish a home and raise a family. But beginning in early 1992, the family’s hold on life became increasingly tenuous as the clashes that broke out in late 1991 in Tinderet in Nandi District spread like wild fire to Londiani and other parts of the Rift Valley. The family hunkered down and survived the onslaught but found their lives once again threatened by the politically motivated ethnic violence that followed in the wake of the December 1997 elections. They survived that spate of violence too and carried on with their lives.
But a decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death. Living under constant threat of violence took its toll on Wanjĩra’s parents-in-law and both died within months of each other. Hardly were they buried on their one acre but Wanjĩra and her Kikuyu neighbours were surrounded by hostile youths blowing cow horns and wielding bows and arrows. The herd she had so painstakingly built over time was driven away before her very eyes and her home was razed to the ground. Wanjĩra and her family fled without a backward glance, her husband with three arrow wounds in his side.
A decade later, starting in April of 2007, Wanjĩra says that they began receiving anonymous written demands that they move away or face certain death.
Unlike the many displaced who ended up at the Nakuru Show Ground where disease was rife and the hardship beyond endurance, Wanjĩra and her husband took their family to Gatundu North. Someone had told them that they could live and grow their food inside Kieni Forest in exchange for providing labour to plant trees. From 2008 to 2013, the family joined those who had moved into the forest following the 1992 clashes, living under plastic sheeting in a river valley inside the forest, co-existing with marauding elephants as best they could until the government sent in the General Service Unit to evict them. Following a stand-off, the 805 families squatting in the forest were eventually paid 400,000 shillings each by the government in lieu of land, and it is this payment that enabled Wanjĩra and her husband, together with four other families that had also taken refuge in Kieni Forest, to buy land in Ndaragwa in Nyandarua County.
Like much of the land in this part of Nyandarua County that borders Laikipia East, the land on which Wanjĩra and her family finally settled had been occupied by a British settler in colonial times. The 3,400-acre ranch was eventually sold in 1964 to a group of Kenyans who ran it commercially for almost two decades, growing wheat and keeping livestock, before they subdivided the land among themselves. Over time, some of the owners have further subdivided their farms, bequeathing the parcels to their offspring or selling them to those like Wanjĩra’s family looking for land on which to (re)settle.
Just a kilometre or so down the road from Wanjĩra’s homestead, one such landowner sold some 30 acres of his land to the government to be subdivided amongst victims of the 2007/2008 post-election violence, each family receiving two and a quarter acres. Waithiageni does not know exactly how old she is. Ndiathomire, she tells me, I did not go to school. But she thinks she was about eight years old when her father moved the family from Mũrang’a to what was then Kisumu District. Waithiageni’s father had left his family behind and moved to Nakuru to work on a settler’s farm. Come independence, he applied to be resettled on the Koru Settlement Scheme and moved his family there.
Waithiageni now lives by herself in a corrugated iron shack by the side of a dusty track, having been chased off her father’s 20 acres at Koru and losing her only son in the 2007/2008 post-election chaos. To survive, the now elderly Waithiageni depends on casual work, when it can be found, and on the kindness of her neighbour Nyagũthiĩ, a mother of two grown-up daughters who escaped the violence at Londiani in late 2007.
A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves. The closest source of water is a trek downhill to the Pesi River, the nearest school miles away and the health centre further beyond. No matatu comes this way and a boda boda ride to the trading centre along the Nyeri-Nyahururu road will set you back 300 shillings, a day’s wage in these parts. The 25,000 shillings they had each received to build a home and the 10,000 shillings start-up capital did not stretch far enough and eight of the twelve families left within the year to find a more hopeful livelihood elsewhere.
Kenya is a state party to the Great Lakes Pact, one of the few international agreements that address displacement in a comprehensive and holistic manner. Kenya domesticated the Pact’s Protocol on the Protection and Assistance to Internally Displaced Persons through an act of parliament on 31 December 2012. It establishes a legal framework for the protection of IDPs through the incorporation of the United Nations Guiding Principles on Internal Displacement into domestic law.
A government vehicle dropped Waithiageni and her neighbours off in this shrubland in 2014, leaving them to get on as best as they could with no shelter and nowhere to relieve themselves.
Specifically, Section 9 of the IDP Act foresees that “The Government shall create the conditions for and provide internally displaced persons with a durable and sustainable solution in safety and dignity. . .” and that, among others, the following conditions for durable solutions shall apply: long-term safety and security; enjoyment of an adequate standard of living without discrimination; access to employment and livelihoods; and access to effective mechanisms that restore housing, land and property.
In November 2013, Nelson Ributhi Gaichuhie, then Chairperson of the Departmental Committee on Administration and National Security, made a statement in parliament to the effect that the government had fully complied with Section 9 (3) of the IDP Act, saying that those affected had been provided with relief food and decent housing. However, to put it in Kenyan parlance, things on the ground are different. Eight years after they were dumped by the government in their new “home”, Wathiageni and her neighbours still live in what can only be described as hovels lacking even the most basic of amenities. Eight long years on, the government has yet to undertake the necessary surveying to allow for subdivision of the land into individual parcels and so, unable to work their land, and without title, they live huddled together on a bare patch by the roadside, walking miles each day in search of casual labour on other people’s farms.
As for Wanjĩra’s family, the 400,000 shillings that it finally received in compensation was just about enough money to buy two acres of land and put up a small wooden structure to house the family of ten. After years of ill health compounded by the hellish living conditions in Kieni Forest, Wanjĩra’s husband died in 2016 and was buried on his land. Her first-born son followed soon after. Her seven surviving children are now grown and two have established their homes on the family’s land. Wanjĩra says that, having lost everything in Londiani, rebuilding what the family lost without resources seems like an insurmountable challenge. On a neighbouring farm is a neatly tended field with onions planted in zai pits. Wanjĩra tells me the land is leased by a farmer with the means to bring water up from the Pesi River about a kilometre away. Wanjĩra hasn’t those means; she must wait for the rains.
The second of the Great Lakes Pact’s ten protocols that is particularly relevant to the internally displaced is the Protocol on the Property Rights of Returning Persons that requires member states to provide legal protection for the property of the displaced and establish legal principles on the basis of which they are able to recover their property. But while the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government appears to have thrown in the towel even before it has started. The following statement from Gaichuhie to parliament makes clear that the government has no plans to ensure that those who lost land and property recover them or are adequately compensated:
“Some of them have title deeds. Very few of them have not been able to go back to where they were living. But I can tell you that most of the IDPs were business people in major towns. That is why the Government has decided that rather than wait to buy land and give it to somebody who had a big supermarket in town, it would give such individuals Kshs400,000 to start businesses. So, not all the IDPs had land. Some of them were businessmen. Some had land for which they did not have title deeds”
The IDP Act became operational in 2013 but the constitution of the National Consultative Co-ordination Committee (NCCC), the body tasked with implementing the Act, was only gazetted in October 2014 and the Chair of the committee appointed in November 2014. Patrick Githinji, who had been appointed to the committee as one of the two IDP representatives foreseen in Section 12 (3)(i) of the Act, and with whom I spoke at length on the 3rd of August 2022, explains that the committee commenced its work in April 2015, and its first task was to vet the internally displaced still living in 65 camps across the country with a view to compensating them and shutting down the camps. This task was accomplished by mid-2016 and—with the exception of Muhu Camp in Nyandarua County and Donga Farm in Subukia in Nakuru County, because the land bought by the government for the resettlement of these IDPs is in dispute—all the camps were closed and 11,000 households were paid 200,000 shillings each, the government having argued that it could no longer afford the 400,000 shillings it had paid to Wanjĩra’s family and others in 2014.
While the IDP Act requires it to ensure “access to effective mechanisms that restore housing, land and property”, the government seems to have thrown in the towel even before it has started.
The next task of the committee was to ensure the compensation of the so-called Integrated IDPs (that is, those living dispersed among communities, whether with relatives or friends or in rented accommodation in urban or peri-urban areas) who numbered 193,000 households according to government records. They were offered a paltry 10,000 shillings in compensation which they turned down. Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households. Of these, 30,000 households were never paid, the government having recalled the funds from the disbursing banks. As it turns out, Wanjĩra and Waithiageni are the lucky ones.
According to an undated confidential report of the Refugee Consortium of Kenya available online, the NCCC is no longer operational. This is confirmed by Githinji who says that although the term of the first NCCC was to end in December 2017, by September of that year the NCCC secretariat had been shut down and seconded staff recalled to their respective ministries.
Together with other members of the National IDPs Network-Kenya, Githinji eventually petitioned the Senate in October 2020, alleging that there were attempts to repeal the IDP Act. In their petition, the group also claimed that land bought by the government to resettle IDPs had been illegally allocated to non-IDPs or grabbed by individuals, and that many IDPs continue to languish in makeshift tents. They also accused the government of refusing to release the funds due to Integrated IDPs because of identification errors introduced into the records by the government’s own officials, and lamented that there was no government authority at whose door they could lay these claims.
Further negotiations raised the sum to 50,000 shillings but in the end, the government reviewed the list, reducing the number of integrated IDPs to be compensated to 83,000 households.
Upon receipt of the petition, the Senate invited the group to appear before the Senate Committee on Lands, Environment and Natural Resources chaired by Sen. Mwangi Githiomi in November 2020, where, following a two-hour meeting, they were advised to table a fresh petition using the Senate’s guidelines. This they did and it was agreed that the group would again meet with the Senate Committee after the Christmas recess, in February 2021. They have no news since.
By the time the IDP Act was enacted in December 2012, another 112,000 people had joined the ranks of the internally displaced, followed by a further 55,000 in 2013, over 220,000 in 2014 and over 216,000 by mid-2015 (even as the NCCC was finally sitting down to its task), most of them victims of inter-communal violence. Meanwhile, as recently as October 2021, members of the National IDPs Network-Kenya were appealing to President Uhuru Kenyatta to finalise the resettlement and compensation process for those IDPs that were forced to flee their homes in 2007/2008 before the end of his term. Both President Kenyatta and his Deputy William Ruto had made numerous promises on the campaign trail in the run-up to the March 2013 general election—while facing charges of crimes against humanity at the International Criminal Court in the Hague—that all the displaced would be resettled within the first 100 days of their administration if they were elected.
In the face of government inaction, some of the Integrated IDPs who were denied compensation in 2017 have converged on Kianjogu, in Laikipia County, occupying land that was purchased by the government for IDP resettlement but never subdivided. They arrived in March/April of this year from Nyeri, Nairobi, Uasin Gishu and other counties across the country and are living in Kianjogu much as they did when they were first forced to flee their homes, massed together in unsanitary conditions and refusing to yield to threats from the government.
It would appear that the IDP Act was cynically enacted for the sole purpose of creating a vehicle—the NCCC—to facilitate the closure of the tens of camps strewn across the country and disband their residents; out of sight out of mind. If that is the case, then the government has circumvented its duty not only to address the plight of generations of IDPs, but to also provide assistance and protection to the newly displaced, and to put in place structures and measures to prevent further internal displacement. The outgoing government of Uhuru Kenyatta and his deputy William Ruto has instead chosen to perpetuate the generational suffering of Kenyans who were first forcibly evicted or were caused to leave their homes by the brutal and inhumane rule of the British colonial government.
Over the century since the Maasai were forcibly removed from their lands in the central Rift Valley in 1904/1905 to make way for white settlers, successive regimes have overseen the destitution of hundreds of thousands of Kenyan families. In the post-independence era, many have been forced to leave their homes by politically instigated violence where community is set against community, or by drought, famine, man-made disasters such as the Solai Dam tragedy and development-induced displacement. These hundreds of thousands of our co-citizens exist in the shadow of our lives and many lie in unmarked graves awaiting increasingly illusive justice.
The new government must, therefore, and with great urgency, operationalize the IDP Act and revive and properly reconstitute the NCCC so that it can continue with the arduous task of ensuring that durable and sustainable solutions are found for all the internally displaced. In finally beginning to properly address the plight of the internally displaced, the incoming government will not be without resources: in particular, a policy paper drawn up by the Internal Displacement Monitoring Centre dissects the IDP Act and makes concrete recommendations that, if applied, will equip the nation with an internal displacement response system that is fully operational.
It is unacceptable that over the almost sixty years of Kenya’s independence, successive leaders have built on the colonial legacy of dispossession and destitution of Kenyans. Whoever takes the helm after the 9 August general election must find the moral courage to put an end to the suffering of these Kenyans who, as much as anyone else in this country, have a right to expect a life lived in safety and in dignity.
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