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Kenya’s War on Graft: Reasons to be Wary

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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. This article aims to examine current anti-corruption efforts in light of similar efforts in the past in order to glean lessons and hopefully see what can be expected of current initiatives.

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State Capture: The Institutionalisation of Impunity in Kenya
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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.

The President

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.

Conclusion

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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Chege Waitara is a legal practitioner and commentator based in Nairobi.

Politics

COVID-19 and the Future of Democracy in Zimbabwe

The current COVID-19 pandemic has shown why pro-democracy movements in Zimbabwe should disentangle themselves from the fallacious promise of neoliberal democracy and the magic of the market. Democratic politics should be about delivering public goods and services, including quality healthcare, not about servicing markets.

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COVID-19 and the Future of Democracy in Zimbabwe
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The world has been teetering on the precipice ever since the outbreak of COVID-19 in Wuhan city in Hubei province, China. Since then, the disease has been classified as a global pandemic by the World Health Organisation (WHO), leading to countries adopting drastic measures to combat it.

In a majority of countries, state security institutions have been activated and deployed to help enforce the lockdown, and the stay-at-home and social distancing policies. Inasmuch as these strategies are practical measures to combat COVID-19, they have inadvertently created opportunities for authoritarianism. Jared Rodriguez aptly surmises the situation: “The pandemic creates extraordinary circumstances for restricting civil liberties, free speech and human rights while intensifying the possibilities of an emerging authoritarianism.

In countries like Zimbabwe, which are rife with authoritarianism, it seems the pandemic has provided a perfect opportunity to checkmate the ever nagging opposition and civic movement. The strategies adopted so far by the government point only to one goal: achieving unimpeded imperial rule for the incumbent.

The responses of the pro-democracy movement have been largely premised on a neoliberal framework to politics and state-craft despite the existing material and social conditions pointing otherwise. The pro-democracy movement has mainly pursued constitutional reformism and electoralism in an economy that is predominantly agrarian, informal, and dominated by natural resource extraction and the service industry. This brings into question these strategies, and more importantly, the future of democratic politics in Zimbabwe.

Democracy under threat

The COVID-19 pandemic has placed democracy under one of its biggest threats. Authoritarian strategies have become the de facto norm adopted by governments. Singaporean Minister of Foreign Affairs, Dr. Vivian Balakrishnan, makes an important observation on the three pillars that may make any country manage to respond effectively to Covid-19: “In fact, this is an acid test for every single country’s quality of healthcare, standard of governance and social capital. If any one of the pillars in the tripod is weak, it will be exposed, and exposed quite unmercifully by this epidemic.”

It is important to note that governance is one of the key pillars for the state’s capacity to respond effectively to COVID-19; a failure within that realm may mean disaster in the end. In this case, governance speaks to how public power and policy are deployed and used within the state. This poses questions on how public officials and institutions are operating and guiding their conduct in seeking to enforce laws meant to contain and suppress the spread of the virus. There have been widespread reports of heavy-handed approaches that have seen the rise of what Jared Rodriguez calls the “…support for pedagogical apparatuses of spectacularised violence, fear mongering and state terror…”, thus “creating fertile grounds for the cultivation and inclusion of authoritarian politics…”.

China instituted a total lockdown of the country that has been reported to have been accompanied by the erosion of people’s freedoms in the name of fighting the virus. Human Rights Watch has accused China of resorting to “automated tyranny”. Reason Foundation’s Shika Dalmia argues that beneath the veneer of China’s so-called impressive response to combat the virus, the Chinese authorities used a variety of tools to infringe on the privacy of people, including pharmacies to spy and collect data on customers, social platforms AllPay and WeChat to install tracking software on their users, and China Telecom colour-coded phones to screen people. It also paid close to 300,000 volunteers to spy on residents and report to the police, and rewarded neighbours to spy on each other. The police barged into homes to forcibly take away suspected COVID-19 patients.

China instituted a total lockdown of the country that has been reported to have been accompanied by the erosion of people’s freedoms in the name of fighting the virus. Human Rights Watch has accused China of resorting to “automated tyranny”.

These tactics mirror heavy surveillance of citizens in Nazi Germany. The reports of China building a hospital in 10 days whilst democracies such as the United States of America, United Kingdom and India dithered on responses inadvertently led to a discussion on which form of governance is better. The net effect has been lethal propaganda that created a fallacy of an efficient system, especially after reports of China building the hospital. Western media and scholars fell for this propaganda charm offensive that projected the Chinese system as efficient and superior while Western democracies were seen as slow and sloppy. For instance, Yale professor, Nicholas Christakis, ran a thread on Twitter praising China’s collectivist culture and authoritarian government as unprecedented and impressive.

Yet, the global media and leading scholars have been silent on how democracies like Taiwan, Iceland, South Korea and Germany have managed to successfully and effectively respond to combating COVID-19. In South Africa, President Cyril Ramaphosa undertook widespread consultations with a wide variety of key stakeholders, and cobbled a national consensus with the opposition, civil society, churches and business leaders. In addition, the country adopted an open and transparent information management system and tapped into expert scientists for advice. By the 9th 0f April, South Africa was reported to have increased its testing capacity of 5,000/day by six-fold after adding 60 more mobile testing units to the existing 7, combined with 180 testing sites and 320 testing units across the country.

Similarly, according to Don Reisinger, “Germany has had remarkably few Covid-19 deaths, which experts attribute partly to its high number of hospital beds and ICU beds”. Despite having a high numbers of people infected by the coronavirus, Germany has managed to lower its fatality rate, which in March 22 stood at 0.3 per cent. The death rate as of 29 March 2020 was much lower than that of China, Italy and many other countries around the world. Germany is stated to have “8.1 hospital beds per 1,000 people and 6.1 ICU beds per 1 000 people”, something highly remarkable in comparison to “Italy has 3.2 hospital beds per 1 000 and 2.6 ICU beds per 1 000”. It is these positive stories from democracies that have not gained prominence in comparison to the ones from the Benevolent Brutal Dragon’s propaganda.

Africa’s emerging trend of authoritarianism

Images of security forces beating and torturing civilians to enforce COVID-19 lockdowns in Africa have been dominating social media. Trevor Nnabugu of Ventures Africa, an online news site, provides a chronicle of human rights abuses in Rwanda, Kenya, South Africa and Nigeria. In these cases, security forces are accused of using indiscriminate and disproportionate force, including murder, rape, beatings and public humiliation, in a bid to enforce the lockdowns. The rising cases of police brutality in Africa, while not unique to the region, signify the tendency of our security apparatus to revert to the default logic of violence.

In Zambia, the Independent Broadcasting Authority (IBA) took no time to suspend the licence of Prime TV on the 9th of April 2020 on the basis that it was unpatriotic and threatening public safety after the media outlet refused to air the government’s COVID-19 commercials for free. Before that, the government had banned its officials from conducting business with and appearing on Prime TV broadcasts. It also barred Prime TV’s journalists from attending official events. In addition, on 27th March 2020, Top Star Communication Limited Company, a partly state-owned television signal carrier, informed Prime TV that it would stop carrying its broadcast in a bid to blackout the television as punishment for its consistent criticism of the ruling party, the Patriotic Front (PF). In all these acts, the hand of the state is quite visible in attempting to close an independent media that has always been critical of government.

Images of security forces beating and torturing civilians to enforce COVID-19 lockdowns in Africa have been dominating social media. Trevor Nnabugu of Ventures Africa, an online news site, provides a chronicle of human rights abuses in Rwanda, Kenya, South Africa and Nigeria.

A leading African Women’s Rights Activist, Nancy Kachingwe, quipped on Twitter: “Dear African leaders, a pandemic isn’t a war, it’s a public health crisis made worse by your failures to build strong public health systems you’ve not been attacked, you’ve been found wanting batons & beatings solve nothing…”

The tweet surmises the logic and attitude of African leaders, where every solution is perceived as a nail and that needs a hammer.

Dr David Ndii, in an interview with The Elephant, warned us extensively:

We have to guard, organise and push back against what I see as an opportunistic clawback of civil liberties in the days of disease emergencies, as well as human rights violations. And I have already talked about default police brutality, which is already the default of many of our states with a legacy of repressive regimes. So that is something which I think particularly organised civil society has to be very vigilant because you can see some of these people cynically even using this to suspend civil liberties. They have been trying to do it, even before coronavirus. So now they have this perfect excuse to do what they want.

Nowhere does this warning ring more true than in Africa, and more specifically in Zimbabwe. The beleaguered Harare regime has wasted no time to use the opportunity availed by COVID-19 to usurp legislative authority at the expense of promoting executive authority in a patently unconstitutional manner and to decimate the opposition and civil society.

Zimbabwe, the unrepentant child

On Friday, the 27th of March 2020, President Mnangagwa announced a 21-day national lockdown to be implemented starting from midnight of 30th March 2020. This move came after some dithering by the Harare authorities, which were heavily criticised for failing to prepare for an impending medical disaster.

The announcement of the lockdown was positively received and praised across the political divide, a rare moment in Zimbabwe’s political history. However, the positive vibe and bipartisan consensus, and the possibility of an elite cohesion towards cobbling a national response, was quickly lost. The Ministry of Information Secretary, Nick Mangwana, through his TL @nickmangwana forewarned what was to come: “The total lockdown to contain the spread of Covid-19 will start at midnight with the Government passionately calling on citizens to comply with the directive and instructions from security personnel deployed to enforce the law.”

Already the government was psyching itself into a combative mood. The Presidential Spokesperson, George Charamba, through his TL @jamwanda2, threatened the unleashing of the army in the low-income suburbs: “MaFACE angu ekumaGhetto, kindly note that pranks and drinking sprees in streets this evening will come to grief!!!! THE BOYS ARE BACK IN TOWN!!!!!!! Loosely translated: My friends from the low income suburbs, kindly note that pranks and drinking in streets this evening will come to grief!!!! THE BOYS ARE BACK IN TOWN!!!!!!!

Indeed, soldiers were deployed and immediately the cries of agony echoed all over the country, as videos of residents being either beaten or tortured by security forces started to circulate on social media.

The announcement of the lockdown was positively received and praised across the political divide, a rare moment in Zimbabwe’s political history. However, the positive vibe and bipartisan consensus, and the possibility of an elite cohesion towards cobbling a national response, was quickly lost.

In Karoi, Masvondo, a local resident, had to petition the court after some members of the Zimbabwe National Army allegedly barged into her homestead and assaulted everyone within her household under the guise of enforcing a lockdown. In Mutare, police burned agricultural produce headed for the markets, insisting that everyone should observe the stay-at-home instruction. Harare’s popular vegetable market, Mbare Musika had saddening stories of farmers and vegetable vendors, whose produce was getting rotten because of lack of access to the market.

The government had to recant some of its policy directives after there were huge outcries, even from its traditional support bases. The planning and implementation of the lockdown was not well thought-out, hence the disastrous results from the onset. As of 16th April, the Media Institute in Southern Africa-Zimbabwe (MISA-Zim) had recorded several cases of downstream vendors whose rights had been violated under the pretext of enforcing the lockdown.

Most journalists have been facing harassment over accreditation, despite the Zimbabwe Media Commission (ZMC) having acknowledged to have failed to approve the registration of journalists for the year 2020. Pursuant to that, the ZMC issued a communique that journalists’ 2019 accreditation had been automatically renewed and could be used for the year 2020. Despite this policy position of the authorities, the security services have been acting on the contrary and continue to harass journalists. Even the pro-government newspaper, the Herald, had to break with tradition and pen an editorial comment on the 13th of April 2020 rebuking and questioning the motives of the police. The Zimbabwean High Court also went further by barring the police’s heavy handedness.

The judiciary in Zimbabwe has also come under heavy criticism during the pandemic after issuing a judgment that has fundamentally reconfigured the opposition in Zimbabwe. Earlier on, the judiciary had issued a notice that it was suspending court processes and would only attend to urgent cases related to the implementation of lockdown measures. Bail hearings were suspended and even new cases were not going to be dealt with until after the end of the lockdown.

Interestingly, Dr. Thokozani Khupe, one of the claimants to the heir of the Movement for Democratic Change, tweeted on the 31st of March that the Supreme Court will deliver judgment on the long standing matter on the legitimate heir to the throne after the death of founding leader Morgan Tsvangirayi on the 14th of February 2018. What followed became an intriguing and choreographed series of events that cast further doubts on the independence of the judiciary.

Dr Alex Magaisa of Kent University in the United Kingdom gives a nuanced analysis of this drama in his Big Saturday Read blog. He summed it as compromised and selective. State security institutions have been heavily compromised and made partisan, and this has been very evident during their operations during COVID-19. Ever since the Supreme Court judgment, dramatic and bizarre events have followed, where the main opposition MDC Alliance has lost its elected representatives (Members of Parliament and Councillors) and party offices to a party that it contested against in the 2018 elections. A significant number of lawyers associated with the MDC Alliance have also been arrested and charged with spurious allegations. Three ladies from the youth assembly who dared to protest were abducted from police custody and sexually abused, and also later arrested for violating lockdown rules despite the government failing to come out clean on the abductors.

Blessed Mhlanga, one of Zimbabwe’s top journalists, through his TL @bbmhlanga on the 16th of April 2020, tweeted the case of Senator Tofa from the leading opposition Movement for Democratic Change Alliance who was barred by the police from donating humanitarian aid to the needy. In the same tweet, Mhlanga further claimed that the police went further to instruct millers not sell Honourable Tofa any mealie-meal. Earlier, on the 8th of April 2020, Honourable Caston Matewu of Marondera Central constituency claimed that the police in Marondera had refused his donation to fight COVID-19 on political grounds. Such stories are not surprising in Zimbabwe, where state security institutions have been compromised by the ruling party.

A close reading of these cases and many others show that the security services are using the logic of force to deal with purely civilian issues. A tweet by @matigary, a pro-government online troll, surmises the thinking in government: “SA military SANDF is kicking ass & bashing heads. I am inviting Dewa Mavhinga & his nywe nywe (talk too much) human rights crowd to test SANDF by defying the lockdown.”

This celebration of spectacularised violence within the security services’ response to public health issues, which are largely civilian, are very worrying and also indicate that Zimbabwe is still an unrepentant child, despite claims of a “New Dispensation” after the fall of Robert Mugabe.

An alert but limited pro-democracy movement

Zimbabwe has had an alert and very lively pro-democracy movement that has managed to successfully call out the government and ruling party whenever they fall out of line. This pro-democracy movement has been composed of the loose alliance of the main opposition, Movement for Democratic Change (MDC), and democracy and human rights advocacy NGOs.

For instance, during this COVID-19 lockdown, the Zimbabwe Lawyers for Human Rights (ZLHR) has been at the forefront of providing legal defence to human rights defenders, journalists and ordinary citizens who found themselves at the mercy of authorities. The ZLHR has also funded public interest litigation that has also seen the High Court directing the Ministry of Health to provide professional protective equipment (PPE) to health workers and roll out testing to the public. A significant number of NGOs and business and church leaders have also come to the fore, establishing charity platforms to mobilise humanitarian aid to support the vulnerable and refurbish medical centres and equip them with the necessary resources to mitigate the effects of the pandemic.

A close reading of the responses of the pro-democracy movement in Zimbabwe clearly shows that it is very active and vibrant but always gets checkmated by its limited approach in dissecting national questions. Civil society in Zimbabwe has hardly questioned the role of the state, focusing more on legalism and litigation to discipline the errant state. This has seen the promotion of civil liberties at the expense of material and cultural rights.

It is abundantly clear that from the foregoing observations that the current architecture of the state has put into sharp relief the limitations of the neo-liberal state and markets. The question therefore, that beckons is: How do post-liberation movements deal with the question of material rights and redefine themselves? This is the elephant in the room that the pro-democracy movement in Zimbabwe has to tackle.

The responses to COVID-19 require to be put in a broader structural framework that is historical and not only driven by the moment. As Dr. Balakrishnan cautioned, “But let me tell you as a doctor, these are things you cannot just build up overnight. It takes years and years of investment in people, in systems, in capacity.

A close examination will reveal that the countries that have managed to effectively respond to the pandemic are those with strong investments in public health. This brings us back to the question of the role of the state.

Civil society in Zimbabwe has hardly questioned the role of the state, focusing more on legalism and litigation to discipline the errant state. This has seen the promotion of civil liberties at the expense of material and cultural rights.

Zimbabwe’s economy has been largely agrarian, natural resource dependant, dominated by the service industry and characterised by high levels of informality and precarity. The labour force survey of 2014 estimated that 94.5 per cent of Zimbabweans earned their living in the informal sector. In 2017, artisanal/small-scale miners accounted for more gold output than large-scale miners. In 2012, the Environmental Management Agency of 2012 estimated their number to be around 500 000, a figure that should have grown by now.

In the 2018-2019 season, tobacco farmers recorded an all-time high yield of 258 million kilogrammes. Estimates put the number of small-scale farmers to between 80,000 and 90,000. Professor Brian Raftopoulos in his 2013 article, “Zimbabwean politics in the post 2013 election”, asserts that the country’s political economy had been reconfigured, giving rise to a new social base and thus calling for new forms of organising. This new social base is characterised by high levels of de-industrialisation and informality. The coming of the COVID-19 pandemic further problematises the role of the state and politics of public goods, especially in highly informalised economies like Zimbabwe. It’s quite clear that the issue of public goods can no longer be reduced to either the magic of the market or benevolent philanthropy and celebrity activism.

Looking ahead

It is patently clear that the COVID-19 response in Zimbabwe has seen an absent state. The state has largely relied on benevolent philanthropy and celebrity activism whilst looting the public purse. The Ministry of Health and NatPharm (the national pharmaceutical company, a public enterprise) have been embroiled in one looting scandal after another. An investigation and expose by two online websites, ZimLive and The Zimbabwe Morning Post, implicate high profile government officials and the president’s children in fleecing the treasury through overpricing of medical supplies under the guise of dealing with COVID-19-related emergencies. These corruption scandals even gained the attention of Interpol, the international police agency, after a two-week-old company got paid US$2million by the Zimbabwe government.

A close examination will reveal that the countries that have managed to effectively respond to the pandemic are those with strong investments in public health. This brings us back to the question of the role of the state.

Meanwhile, the opposition has failed to make the government accountable as it is embroiled in internecine fights arising from the Supreme Court judgment of 31st of March 2020. At best, the main opposition has managed to issue a series of press statements without showing any clear direction on how to move forward.

Looking ahead, Zimbabwe’s pro-democracy movement may need to learn from Professor Issa Shivji’s wise words extensively quoted below:

The contemporary neo-liberal discourse has one fundamental blind spot. It treats the present as if the present has had no history. The discourse on democracy in Africa suffers from the same blindness. The struggle for democracy did not begin with the postcold war introduction of multi-party system. The independence and liberation struggles for self‐determination, beginning in the postworld war period, were eminently a struggle for democracy. Neither formal independence nor the victory of armed liberation movements marked the end of democratic struggles. They continued, albeit in different forms…the great democratic struggles of the African people expressed in their independence and national liberation movements remain incomplete. The so-called democracy constructed on ahistorical and asocial paradigms of neo-liberalism are an expression of renewed imperial onslaught, which is profoundly anti‐democratic…

This would mean a return to a political economy for the pro-democracy movement in Zimbabwe, which should begin to articulate the democratic struggle within the lived realities of the cross-border trader, the vegetable and fruit vendor, the small-scale farmer, the artisanal miner, the slum dweller in Hopley, the informal taxi operator, the menial worker and all the subalterns within Zimbabwe’s informalised economy. Doing so means bringing in class analysis and social and economic justice-based solutions to the core of public policy.

The current COVID-19-induced response of the state has shown why the pro-democracy movement should disentangle itself from the fallacious promise of neoliberal democracy and the magic of the market. Only when and until the pro-democracy movement in Zimbabwe realises that democracy needs to shift from just fighting for civil liberties to articulating how public goods and services can be rescued from the profit motive to bring about a better quality of life to humanity can it checkmate the reigning authoritarianism. This is the same way that the liberation movement was able to checkmate the Rhodesian Gulag State, despite its last leader, Ian Smith, proclaiming that “never in a thousand years”, will there ever be black rule.

Professor Shivji’s wisdom is instructive here:

The struggle for democracy is primarily a political struggle on the form of governance, thus involving the reconstitution of the state. No one claims that democracy means and aims at social emancipation. Rather it is located on the terrain of political liberalism so, at best, creating conditions for the emancipatory project. This is important to emphasize in light of the hegemony of neoliberal discourse, which tends to emasculate democracy of its social and historical dimensions and present it as an ultimate nirvana.

The question is: What would state reconstitution look like? Is it a return to socialism, the democratic developmental state or the social democratic state? The answer lies in any path that straddles through any of those types of state or their combination.

However, it is clear from the foregoing that the neoliberal state is not the solution. To respond to the rising authoritarianism, the pro-democracy movements need to return democratic politics to the core of delivering public goods and services and not servicing profits and the market. Doing so may mean designing critical intellectual projects meant to push back nationalist authoritarianism, increasing public ligation on the enforcement of the expanded bill of rights in the 2013 Constitution, building people’s movements anchored in collective action and solidarity around public goods rather than electoralism, and shying away from oligarchic tendencies.

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Were the Kariobangi North Evictions Legal or Illegal?

The forced and brutal eviction of thousands of people from a low-income settlement in Nairobi at the height of a curfew has raised questions about what owning land means in a city where the procedures to acquiring property are notoriously dicey and confusing, and often dependent on a patronage system.

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Were the Kariobangi North Evictions Legal or Illegal?
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I went to Kariobangi North Sewerage settlement on 4 June, exactly a month after the dawn demolitions took place, and long after the tell-tale signs of the raid had been erased. On 4 May, at the height of a dusk-to-dawn curfew across the country, 8,000 people had been evicted from this settlement. The eviction was widely condemned but the authorities seemed unmoved by the plight of the evictees.

The chaos and commotion had ebbed away and life in Korogocho slum, one of the more than 200 informal settlements in Nairobi, had resumed its rhythmic motion. It was bustling with humanity – coronavirus or no coronavirus. Few people wore face masks; many more did not even bother to social distance. The Korogocho Market, the heartbeat of Korogocho ghetto, was a beehive of activity, with buyers and sellers haggling over prices of every imaginable merchandise.

“Without Korogocho Market there is no Koch [short for Korogocho]”, said Mwaura, my 24-year-old interlocutor, a Kenyatta University Bachelor of Education student who grew up in Grogan, one of the nine villages that make up Korogocho, but who now resides at Korogocho B. “Grogan, where my parents live, is now my gichagi [my rural home],” he explained.

People like Mwaura, whose parents came to the city in a wave of rural-urban migration (pushed by the colonial forces of the tumultuous 1950s) have always remained squatters after having been uprooted from their ancestral homes.

“The market breathes life into Korogocho area. “You can practically find anything you want at the market. It attracts customers from far and wide,” said Mwaura. The market has been embedded into the Korogocho peoples’ lives: Korogocho slum was the market and the market was Korogocho. “The market defines the Korogocho people – the best and the worst of the Korogocho people are found here – the market is a melting crucible of Korogocho’s hopes and aspirations.”

On the morning of 4 May, at about 5.30 a.m., David Maina Ngugi, an early riser, was having his cup of morning tea when his mobile phone rang. It was from his friend, who told him to quickly get out of the house because the bulldozers had moved in. When he came out, after hastily waking up his wife, the rumbling excavators had started their work in their conventional style of flattening everything on site.

Accompanying the bulldozers were an assortment of armed-to-the teeth regular police, Administration Police and the General Service Unit (GSU), a paramilitary outfit infamous for its brutal incursions. “I think in total they were about 350 policemen,” said the 72-year-old Ngugi. “They’d come to ensure the four bulldozers executed their work with minimal interruption.”

The people waking up from their slumber watched the morning raid in utter disbelief. Uncharacteristically, they did not put up a fight, perhaps because they were too shocked by the surprise morning attack. Instead, they watched as their houses were being crushed to the ground. “Very few people salvaged their properties The dawn raid caught many people half-asleep and by the time they were waking up to the day’s realities, local hoodlums had also moved in to help themselves to anything that they could lay their hands on,” said Ngugi.

Mzee Ngugi, who owned four iron-sheet shacks, said he barely saved much from the rubble: “My iron sheets, steel doors and metal windows were stolen by thugs. I couldn’t restrain them; I was all alone and they were like a pack of wolves, so I just stood aside and watched.”

Accompanying the bulldozers were an assortment of armed-to-the teeth regular police, Administration Police and the General Service Unit (GSU), a paramilitary outfit infamous for its brutal incursions. “I think in total they were about 350 policemen,” said the 72-year-old Ngugi. “They’d come to ensure the four bulldozers executed their work with minimal interruption.”

Despite his age, Ngugi’s body is still strong. “I’m used to walking a lot. I’d walk from here to Allsopps,” he said. Allsopps area is at the junction between Outer Ring Road and Thika super highway. The distance between Kariobangi North and Allsopps is about seven kilometres. The latter is called Allsopps because East African Breweries Limited (EABL) used to have a plant at the corner of where these two roads meet, separate from the main beer plant in the Ruaraka area that manufactured Allsopps beer. The name stuck even after the EABL closed the plant many years ago.

“In the morning I’d do push-ups and physical fitness, but these demolitions have crushed my spirit,” said Ngugi. “At 72 years, I’ve been made to start all over again, but where do I even start from now?” The old man said he had sunk his meagre savings and pension into buying four plots in the area through the Kariobangi Sewerage Farmers Self-help Group. “I’d hoped my sunset years would be spent here because I did not have any other place I called home.”

When I met Ngugi, he had just acquired a 10 by 10 rental room in Korogocho B, next to the wall of Daniel Comboni Primary School. He told me that after the eviction, he sent his wife to a family friend’s home in Grogan village. “The demolition separated families. I’ve not seen my wife for three weeks, even though we speak on phone. I couldn’t immediately get someone who would house the two of us together.”

The self-help group

The Kariobangi Sewerage Farmers Self-Help Group was formed in the mid-1990s and given the name farmers because the first people who started frequenting the sewerage plant were women who would farm bananas, sugar cane, yams and other root tubers right next to the sewerage.

“The City Council of Nairobi, which owned the plant, allowed us women to farm on a section of the sewerage area in the evenings, from 4 p.m. to 6 p.m,” said Mary Wambui Kamau. “The women were the first people to be allocated plots at the sewerage by the City Council officials who worked at the site because they had already developed a rapport with the officials.” Wambui said she first started farming in the area in 1996.

The 75-year-old lady said that to be old and poor in Nairobi was like being cursed and forgotten. A former employee of the defunct City Council of Nairobi, she had acquired two plots at the sewerage site and built her semi-permanent houses with her pension. “I bought my two plots for Sh600 each, quite an amount for people like me then, because I used to earn Sh320 per month and paid Sh90 as house rent. With her seven children (three later died) and a husband who did not have a permanent job and was landless, she believed that buying the sewerage plot was the wisest decision she had ever made.

Wambui grew up in Ndondori in what is today Nakuru County. “I was a little girl during the state of emergency period of the 1950s. [The British colonial government instituted the emergency between 1952 and1959] and my father was a squatter. Forced to flee from Ndondori, he found himself in Lari [today in Kiambu County]. In short, my father struggled throughout his life and never owned land.”

Wambui married early, at the age of 20. With her husband, she moved to Nairobi to eke out a living and start a family. “Rift Valley had been always a volatile region and so my hubby said we try our luck in the city where we didn’t always have to look behind our back.” Her husband died in 2004.

When the women corps who farmed the sewerage land grew and became big, the sewerage officials asked them to form a group, explained Wambui. This way it would be easier to engage in, mobilise for and push their agenda. To give weight to their agenda, they decided to buy plots of land within the sewerage area. They approached Adolf Muchiri, then the MP for Kasarani. Until 2012, the Kariobangi sewerage area was in Kasarani constituency; today, it is in Embakasi North, but government and social services are still run from the Kasarani DC’s offices.

“Muchiri backed our idea and we would have our meetings at the sewerage site. Later we moved those meetings elsewhere,” said Wambui. “Even as Muchiru backed our idea and said he would lend us political support, we continued to engage the sewerage officials, since, anyway, they were our gateway to owing a piece of the earth of the city council land.”

By the time the Nairobi Water and Sewerage Company (NAWASCO) came to run the sewerage site in 2004, Kariobangi Sewerage Farmers Self-help Group was already in existence and allocated land adjacent to the Kariobangi light industries.

“The self-help group already had 370 members by the time the Nairobi County provided a surveyor to demarcate the land about two years ago,” said Ngugi. The 370-member group was settled on 11 acres of the 25-acre sewerage land. Of these 370 members, “Kikuyus formed the largest chunk of the group. They possibly constituted about 70 per cent of the members, followed by Somalis, then Kambas, then a small group of Luos,” said Ngugi. The mzee said the plots were divided into 24 by 50 sizes and claimed that all this work was done by the Nairobi County government.

“When I got my two plots, I gave them to my sons,” said Wambui. In 2010, one of her sons, who worked at the nearby Kariobangi light industries, started living at the sewerage area with his family of four. Wambui then moved to Kariobangi A village, where I found her and some of her grandchildren. She told me that her son and grandchildren had moved in with her after being evicted. “Since coming here, we’ve been attacked two times by robbers who saw him bring along some of his items that he had salvaged,” she said.

Wambui claims that the self-help group had been issued with a group title by the Nairobi County and the county was even in the process of issuing individual titles. But there were some hitches: The self-help group has been in a tug of war with the Jua Kali Light Industries group over the allotment of plots at the sewerage site, a case that is in court. “It is true we’ve been having a long- running court case with the Jua Kali group,” said Wambui, “but we have the documents and they don’t have them and that is the difference.”

Wambui claims that the self-help group had been issued with a group title by the Nairobi County and the county was even in the process of issuing individual titles.

The sudden turn of events has broken her resolve to have a better life in her sunset years. “At 75, what else do I expect in life? I thought I’d live out the remaining years of my life in peace, but now I’ve been thrown into turmoil. I voted for Uhuru Kenyatta twice, in a very difficult area, where we are surrounded by hostile opposition. Yet at my age I woke up at 2 a.m. to queue for him and this is what I get in return? Is it that Uhuru is not aware of our plight, or now that we’re done with voting, he’s through with us?”

Missing papers

But 70-year-old Nyina wa John (John’s mother), a veteran of the sewerage plots’ acquisition and chairlady of the self-help group, has a slightly different story to tell. “What some of the afflicted families have narrated to you is correct. But as far as I’m concerned, the only incorrect information they did not tell you is that all that documentation and paperwork they are talking about had never been legalised. If it had, I would have been the first one to know and even be in possession of the rightful said documents of the land. As it is, I’m not aware of any [bona fide and legal] title deed issued to Kariobangi Self-Help Farmers Group. I’m aware that the group was even paying land rates to City Hall. That’s okay. You can pay rates. Paying rates doesn’t translate to owning the land.”

The chairlady’s assertions were corroborated by Daniel Kirugo. Kirugo is the senior chief of Muthua village in Uthiru location. I first met him in 2006 at the Kariobangi sewerage area. He was the second chief to have been posted to the area. “I know the history of the sewerage [land] very well. It is unfortunate what happened to the people, but the crux of the matter is, the self-help group’s papers are not legal. I’d know because I’ve kept in touch with some of the people who live there, the self-group’s wrangles with Jua Kali Light Industries group notwithstanding.”

The dispute between the Kariobangi Sewerage Farmers Self-Help and the Jua Kali Light Industries group led by Rashid Kaberere and one Kinyua introduced the dreaded Mungiki in the acquisition of the sewerage land. They both hired the young men to defend and fight off each other. For their work, the proscribed Mungiki group was rewarded with several plots at the sewerage site, which were dished out to them by both parties.

“Many of these Mungiki youth later sold their plots to Somalis,” said Kirugo. “Somali buyers were also involved because they had the money to finance the case in court. Another reason why the Somalis came to own the sewerage land is because they would pay double or even thrice the going market price of the plots.” That is how Isaak Aden became the chairman of the self-help group.

Hence, the majority of the Kikuyus at the site had ceased being landlords; they became tenants. How and why? “Because they sold their pieces of land to Somalis who paid a premium [for the plots],” said mzee Ngugi. “Money is good and anybody who gives you the kind of money you’ve been wishing to have becomes first priority and that’s how Somalis came to be landlords here.”

The Somalis put up semi-permanent houses, which they rented to some of the very Kikuyus who had sold them the plots of land. “The upcoming stone houses were built by Somalis because they were the presumed landowners and because they could afford to put up better structures,” added Ngugi.

“I had three plots at the sewerage,” said a man who asked me not to reveal his identity, “and it is my considered opinion the self-help group didn’t have proper documentation. All the papers they claim to have and refer to were issued by the City Council of Nairobi pre-1998, during the reign of Zipporah Wandera, the then town clerk. The subsequent mayors were never involved in the sewerage matters. For such a matter to acquire the seal of authenticity, it should involve the top echelons of the city authorities. As it is, it seems the matter was only discussed by sewerage officials and some partisan people at the City Hall.

“Orders from above”

Whether the self-help group’s papers had been legalised or not notwithstanding, Ngugi told me the self-help group’s leadership had even engaged Nairobi Water and Sewerage Company (NAWASCO) officials. “They were mum, claiming the demolition orders came from above. Next we visited the District Officer’s office in Kasarani, where the stock-in-trade answer was the same: ‘Orders from above’”.

Pleading for strict anonymity, because he is not authorised to speak to journalists, a top NAWASCO official said that the people had to be booted out ostensibly because the government had been given a Sh3 billion grant by the World Bank to expand and refurbish the sewer and water system of Nairobi county. All the Nairobi wastage used to drain at the Kariobangi sewerage site until Ruai sewerage was built to complement the Kariobangi one. The Kariobangi sewerage has six gargantuan septic tanks, but with the growing city population occasioned by all the real estate developments that have taken place in the last 40 years, the septic tanks became overwhelmed.

The Somalis put up semi-permanent houses, which they rented to some of the very Kikuyus who had sold them the plots of land. “The upcoming stone houses were built by Somalis because they were the presumed landowners and because they could afford to put up better structures,” added Ngugi.

I wound up my visit to Korogocho by visiting Mary Njoroge, a vendor at Korogocho Market. Her stall overlooks the eastern flank of the Kariobangi sewerage. No sooner had the dwellers been ferreted out than a stone wall was erected all around the sewerage land. On that eastern flank, the wall was as high as 12 feet, raised by the heavier nine by nine stone. “My house used to be inside the wall. It’s amazing how life can take a turn for the worse, so suddenly,” she said

Njoroge, who is in her early 50s, had lived in the sewerage area for 10 years. Her last child was born there.

Taking time to talk to me, away from her customers, Njoroge said life that life was cruel and full of contradictions: “Can you believe I was one of Uhuru’s major campaigners in this area? Kariobangi sewerage was a Jubilee zone and we fought tooth and nail to protect his votes. Look now where some of us are languishing – in the cold, with zero prospects.”

Protecting Jubilee votes meant walking the length and breadth of Korogocho and exhorting all the Kikuyus to not sleep on the day of voting, first on August 8, and then on October 26, 2017. “We’d have expected that the government would defend us and not expose us to the vagaries of the weather and coronavirus.”

During the week that their structures were demolished, heavy rain pounded Nairobi County. Many former Kariobangi North Sewerage dwellers, including small children, slept out in the cold.

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Saba Saba At 30: The Gains We Have Lost

The 30th Saba Saba anniversary comes at a time of great political apprehension, with the country in the throes of an economic meltdown and in the midst of a coronavirus pandemic. With the elections that will determine who will be Kenya’s next president just two years away, the country is slipping back into those bad, black days of Moi and Moism.

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This Tuesday the 7th of July 2020 marks the 30th anniversary of the infamous and bloody Saba Saba Day (seventh day of the seventh month) upheavals that are still etched in the memory of the many Kenyans old enough to vividly recall those heady days of the struggle for the second liberation. It was a day of infamy, as President Daniel arap Moi, now deceased, unleashed his security apparatus on hapless, innocent Kenyans, killing and maiming many of them for daring to call for a return to multipartyism.

Three days prior, on 4 July 4 1990, Kenneth Matiba and Charles Rubia, former Kanu government cabinet ministers who had fallen out with Moi (both now deceased), and Raila Odinga—who had just returned from self-exile in Oslo, Norway—had been arrested on the orders of President Moi. The 4th of July is America’s Independence Day. Kenyan political analysts have always wondered whether it was mere coincidence or a conspiracy between Moi and the American government to have the trio arrested on the very day America would be celebrating its much vaunted independence day. Did the American government have something to do with their arrests? “Why would the Americans, who were friends of the three, allow Moi to detain them on their big day”, Augustine Njeru Kathangu, one of the architects of Saba Saba, has always wondered.

The Saba Saba demonstrations heralded the beginning of week-long urban riots that came to symbolise the determination of Kenyans to maintain their demands for an increased democratic and political space that had been throttled by a dictatorial Moi and a despotic Kanu party. The mounting pressure brought to bear on Moi was such that he was forced to quickly constitute a Kanu Review Committee (referred to as the Committee), which immediately started its work on 25 July 25 1990.

The formation of the Committee by the beleaguered President was, ostensibly, to seek Kenyans’ views on the current state of the country’s politics. But the truth of the matter was that Moi was trying to buy time as he figured out how he was going to acquiesce to plural politics without losing face. Chaired by the then Vice President George Saitoti, the Committee was peppered with Kanu loyalists such as Nicholas Biwott, Peter Oloo Aringo, Shariff Nasir, Elijah Mwangale and Mwai Kibaki, among others.

The Committee visited nine towns during the month of August: Eldoret, Embu, Garissa, Nairobi, Kakamega, Kisumu, Mombasa, Nakuru and Nyeri. It visited Nairobi twice; on July 25 and on 23 and 24 August1990. Among the more bizarre recommendations that the Committee made was “that Kenya should continue in its tradition of one-party democracy. That all leaders in every sphere of life particularly religious leaders, politicians, lawyers, journalists and other professionals, should cease their confrontational stance and adopt a positive attitude towards issues in order to build a more peaceful and prosperous Kenya”.

With these sorts of recommendations, a contemptuous Moi and dyed-in-the-wool Kanu party mandarins, it was obvious that Kenyans’ agitation for a return to multiparty politics was destined to continue to be bloody and confrontational.

“Moi’s Kanu dictatorship was not ready for changes, but the people had smelt an opportunity and they were willing to push ahead with political reforms”, said Kathangu. A former army man and a devout Catholic who never misses the morning mass wherever it might find him, Kathangu had been planning for the Saba Saba day for two months together with four other people,

“We started planning for the Saba Saba from May”, recalled Kathangu. “I had an office at Musa House on the third floor, on Landhies Road, where we would meet and plan how we were to mobilise for the big day”. Kathangu’s four other compatriots were: Edward Oyugi, a former Kenyatta University don and detainee; Ngotho Kariuki, a tax consultant, university don and ex-detainee; George Anyona, the political firebrand, former MP and ex-detainee; and Kariuki Kathitu, a university don.

Of the five, Kathitu is the least known of those who were associated not only with the planning of that first Saba Saba, but also, more generally, with the second liberation of the 1990s. “Raila joined us much later. Raila is my friend, but I’ve always referred to him as a witness to the Saba Saba movement. He was much more involved with the Forum for the Restoration of Democracy movement formed in 1991, than Saba Saba, which his father Jaramogi Oginga Odinga and others such as James Orengo, Martin Shikuku and Salim Bamahriz, helped form”.

“Matiba joined us later after he had read the public mood correctly, but also after falling out with Moi publicly”, said Kathangu. “Matiba had had an interesting special relationship with Moi. They had been great friends. When Matiba was the Permanent Secretary for Education, he used to coach Vice President Moi in the evenings, on the proper usage of the English language, mostly on the spoken English. So they knew each other well. Moi had been Matiba’s good student. But when Moi became the president in 1978, his man in Murang’a was Julius Kiano. Matiba’s entry into politics and his routing out of Moi’s man in Mbiri constituency was always going to create a problem between the two.”

Kathangu told me that it was Matiba who recruited Rubia. “Rubia was initially not in the movement for change, but his friend who was an area mate—they both came from the larger Murang’a—invited him along and that’s how Rubia, who had also been facing political frustrations from Moi, joined the opposition. Matiba came looking for us after he was disgraced by Moi. Matiba was a man who once he made up his mind, it was difficult to persuade him otherwise”.

Matiba’s falling out with Moi was triggered by Moi’s open rigging of the Mlolongo (queue voting) elections in 1988 in his Kiharu (former Mbiri) constituency. “Matiba’s queue was the longest for all to see, yet Moi decided it was the shortest so that he could prop up his friend Kiano who Matiba had beaten hands down. Matiba hit the roof, he had captured his entire election process on the video. It was clearly evident Moi was rigging Matiba openly. And that was the beginning of the political problems between Moi and Matiba.”

Boisterous and oftentimes overconfident, Matiba went ahead together with Rubia to declare the return of multiparty politics in Kenya without the agreement of Kathangu and his friends. “He had jumped the gun, that’s not how we had planned to do it, but hey, since Matiba had already let the cat out of the bag, we went along, we didn’t deny them, neither did we deny that that is what we all along been planning to do”, observed Kathangu. “It was one of the first of the mistakes that Matiba would make as we fought for the second liberation”.

Although taken aback by Matiba’s pronouncements, Kathangu and his friends still went ahead to mobilise for Saba Saba day. “Our intentions were to mobilise people to congregate on the sacred grounds of Kamukunji. We’d coordinated and mobilised people from different parts of the country to travel to Kamukunji. People were to come from Githurai, Limuru, Kisumu, Mombasa, Murang’a, Nakuru and the other major towns in the country.”

To start off the day, and as a curtain raiser, the organisers planned football matches at the Kamukunji Grounds in the morning. “The matches were to be supervised by Kathitu and they were to help attract and assemble people at the grounds. At around 1p.m. Anyona and I drove into the grounds to see for ourselves what was going on. When the people saw us—they had been waiting on the wings around Gikomba Market, in Majengo and Shauri Moyo estates—they started moving into the grounds.” The organisers had hired buses to ferry people from upcountry and those buses had arrived in the morning.

“A police officer who later I came to learn was called Cheruiyot—I can’t remember his first name—and who had also camped at Kamukunji Grounds, apparently spotted us entering the ground”, reminisced Kathangu. “Once he saw us and once the people saw us enter the grounds and followed us, Cheruiyot called for extra support and soon combat police came. They beat people mercilessly with their batons and killed many youths with their live bullets”. As the police beat people in Kamukunji Grounds, word got around in parts of the country that mayhem had broken out in Nairobi and consequently, there were riots in Githurai, Limuru, Kisumu and Mombasa”. Kathangu observed that Moi ordered the arrest of more than 3,000 youths for the simple reason that they had supported the political changes being called for by opposition leaders.

Senior Counsel Paul Muite recalls the events of the day vividly: “My friend, the American ambassador to Malawi George Trail, had come to see me in my office at Electricity House in the city centre. He was from the US on his way to Malawi. Trail had been the No. 2 at the US embassy in Nairobi and we had become friends. Mohamed Ibrahim, a lawyer and today a judge of the High Court of Kenya had also passed by to see me on a legal matter. I’d planned after finishing with the two, I head to Karen Country Club to play golf. So I asked them we leave early to beat the lunch hour traffic jam”. He was going play golf with F.T. Nyamu, a Nyeri tycoon who later became the MP for Tetu constituency.

“It is at the club that my wife called me to tell me Matiba and Rubia had been carted away by the police”, said Muite. “In those days if police took you away, you knew you were headed for detention. After I parted with Ibrahim, the police, who had seen me leave my office with him [Moi had always stationed police to watch Muite’s sixth-floor office at the lifts area and on the ground floor], followed him and asked him to tell them where I had gone. Ibrahim didn’t know I’d gone to play golf. When Ibrahim told them he didn’t know my whereabouts, they didn’t believe him”. The police had detention orders with them and as they were talking to Ibrahim, they placed the detention order book on the table and he saw that the first detention sheet was signed and had Paul Muite’s name. The other order was not signed and didn’t have any name. “What the police did was fill the order with Ibrahim’s name and that’s how Ibrahim was detained on the spot by the police”.

Moi also ordered the arrest of Gitobu Imanyara and John Khaminwa, who together with Ibrahim became the most prominent lawyers to be detained Moi during the crackdown on the Saba Saba movement. Gibson Kamau Kuria, who had been detained in 1986, went to hide at the American embassy which then was under Smith Hempstone’s watch. Muite, who had all along ben staying at his house in Karen, escaped the crackdown, all because the police didn’t think he was “hiding” in his own house. “Hempstone piled pressure on Moi to release the lawyers, Imanyara, Khaminwa and Ibrahim and Muite, but Moi was in a dilemma, his government didn’t know where Muite was, so how was he going to also release him?”, said Muite.

It is then that Moi pleaded with Muite to come out of hiding and meet him at State House with an apology for inciting the Saba Saba day riots. “Moi blamed me for the riots and had asked me to write him an apology letter. I didn’t but I still went to meet him”.

The Saba Saba movement gave momentum to the first multiparty political rally held at the hallowed Kamukunji Grounds on 16 November 1991by the opposition leaders of the fledgling and nascent Forum for the Restoration of Democracy (FORD), So determined were FORD leaders that they told Moi they were going to hold the meeting “with or without a licence”. Aware of the mounting pressure, internally and externally, Moi grudgingly allowed the meeting to go ahead.

Kenyans were itching for a second liberation, to free themselves from the political stranglehold that had culminated in the sham 1988 mlolongo elections. Buoyed by the winds of change sweeping through eastern Europe—the advent of glasnost (openness and transparency) and perestroika (restructuring), the disintegration of the Union of the Soviet Socialist Republics (USSR), the collapse of the Berlin Wall in 1989—Kenyans seized the moment to challenge Moi and his brutal Kanu party, the supposedly baba na mama (father and mother) of all Kenyans as Kanu party stalwarts liked to put it

On the third anniversary of Saba Saba in July 1993, pro-democracy and reformist clergyman Timothy Njoya observed at the All Saints Cathedral in Nairobi that, “If we can have Moi Day as a national day to thank Moi for the contributions he made to himself, we can also have Saba Saba declared a national day to mark the contribution the martyrs of multiparty movement made to the Kenyan civilisation”. Twenty-seven years after Njoya made that remark, is it time to again reconsider his proposition?

How has Kenya faired 30 years after Moi sent the paramilitary General Service Unit (GSU) to brutally quell a people’s desire to congregate at the Kamukunji Grounds in the sprawling Eastlands area, home to the Fanonian wretched of the earth?

Going down memory lane to recapture those heady days, I spoke to Gacheke Gachihi, a founder-member of Bunge la Mwananchi (the people’s parliament), founder of the Mathare Social Justice Centre (MSJC) and above all, a long-time member of that urban underclass of Huruma which bore the brunt of state brutality. Gacheke is a child of the Saba Saba protests and the reformist political forces that came to define the upheavals of that time. Originally from Molo, he came to the city as a child and was swept up in the political agitation that was taking place in the urban slums.

“Although I was only 12, I was very much aware of what was happening politically”, said Gacheke. “I knew there was something wrong with the country’s politics, because I’d just come from an area that had suffered political violence and was palpable with political fears, tensions and great suspicions”. Now 42, Gacheke observes that his home area of Molo was a theatre of ethnic violence from where many people were internally displaced. “There was a lot of genocidal talk then”.

I asked Gacheke, whether the country had learned anything from the Saba Saba day and what those like him—activists who were initiated into politics by the tumultuous 1990s and the runs-ins with the state’s organs of violence—thought of the anniversary. “The anniversary comes at a time when the country is polarised by the politics of succession of 2022. If Saba Saba was agitating for increased political space in 1990, in 2020 Saba Saba should be reminding us Kenyans of the necessity to vigilantly protect the freedoms that have been gained over the years, fought through blood and great sacrifice”.

Gacheke said that in the 1990s, the youths fought hard to be heard, to exist and to hopefully break the barriers of ethnic consciousness and balkanisation. Now it looks like we’re slipping back into those bad, black days of Moi and Moism. “The youth of this country has never been able to act together, to forge a united front and capture political power and help change the trajectory of politics”. The youth caught in the vicious web of disillusionment and dispossession, nevertheless continue to be easy prey for politicians whose only agenda is to perpetuate their hold on power. It is a paradox of politics that today’s champions of political agitation were yesterday’s champions of political of status quo.

Independent researcher and political analyst Jeremiah Owiti was a political science University of Nairobi (UoN) student in 1990. “Politics then were hot and exciting. Kenyans looked forward to political changes that would meaningfully impact their lives. The people were hopeful and optimistic. Not anymore.”, said Owiti. The two biggest political protagonists today—President Uhuru Muigai Kenyatta and William Ruto who now threaten to tear the country apart—were apolitical when the first Saba Saba protests took place. Uhuru was barely 30 and Ruto barely 24 years old.

Owiti said Uhuru’s friends cut across the ethnic divide, he is a nominal catholic, while Ruto is a fervent revivalist born-again evangelical Christian. “Today, Uhuru, surrounded by Kikuyu sub-nationalists, has become a master [at] evoking tribal emotions and openly calling the Kikuyus to first mobilise on ethnic bases. Similarly, Ruto has become a master of rhetoric and subterfuge, rallying the Kalenjin people to see themselves first as Kalenjin and secondly as Kenyans”.

The behaviour of the two, who were never part of the political reform movement, completely negates the cardinal lessons of Saba Saba, said the analyst. “The very essence of the Saba Saba movement was to fight for political pluralism, not political sub-nationalism as now being espoused by Uhuru and his political-friend-now-turned-nemesis. Their retrogressive brand of politics—whichever way you look at it—is a tragic throw-back to the days of Moi-ism and Kanu-ism. The crux of the matter is that both were tutored by Moi and therefore, they do not know what it is to be a political reformer and what apolitical reforms are all about”.

The analyst said Ruto deems himself a latter-day reformer, anchoring and extolling his reform credentials on the doing, rather than on the talking: “I am a reformer because I act, I don’t talk”, Ruto likes to remind anybody who cares to listen.

Owiti said Saba Saba epitomises the struggle by Kenyans to free themselves from the shackles of the politics of balkanisation, ethnic sub-nationalism and the monolithic politics of us vs them. “Unfortunately even with the promulgation of the new constitution, which was supposed to usher in a new political dispensation, the politics that is being played by both Uhuru and Ruto, champions of ethnic jingoism, does not augur well for the epochal succession politics of 2022”.

The researcher said that, by seeking to congregate at the historical Kamukunji Grounds in 1990, the Kenyan people were saying that the constitution was the supreme law of the land and if it did not allow them to assemble, it needed to be overhauled.

The 30th Saba Saba anniversary comes at a time of great political apprehension, with the country in the throes of an economic meltdown and in the midst of a coronavirus pandemic, and the elections that will determine who will be the country’s next president just two years away. The succession politics have already split the ruling Jubilee party into two diametrically opposed camps and made President Uhuru Kenyatta one of the most unpopular presidents Kenya has ever had.

“All the changes we fought for have been reversed”, observed Kathangu. “We’d hoped for an empowered society—economically, politically and socially. We’d also hoped to have a sustainable education system that did not constantly change after every five years. We too had hoped that the land question would be fundamentally addressed. Land is still a big problem in this country and unless and until we solve it, Kenyans will not rest easy”.

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