Connect with us

Politics

Who is Policing the Police? Kenya’s Lame Duck Oversight Mechanism

19 min read.

Seven years after an independent oversight body was formed to monitor and investigate police misconduct and abuse, Kenyans are still suffering under the hands of an incompetent and uncaring police force that gets away with excesses with impunity. Has IPOA lived up to its promise?

Published

on

Who is Policing the Police? Kenya’s Lame Duck Oversight Mechanism
Download PDFPrint Article

I
First Impressions

 

On the right-hand corner at the top of Policing Lens, the Independent Policing Oversight Authority (IPOA)’s quarterly newsletter, two heavily padded policemen positioned inside the frame of a magnifying glass are holding shields branded ‘Police’. The duo have their baton-wielding fists raised in the air, poised to descend on a seemingly already subdued civilian lying motionless on the ground. This surreal image ushers one into IPOA’s world, a Freudian admission that the National Police Service (NPS) may not be as transformed from what it used to be when it was known as the Kenya Police Force – still deploying brawn in place of brain.

This disturbing yet at once candid logo subconsciously summarises IPOA’s statement of intent, which is that the statutory agency is not afraid of confronting the dark history and the not-so-squeaky-clean present day state of affairs within the police, an unflattering confession they are willing to make publicly. Conversely, the choice of IPOA’s optics could be (mis)construed as an act of concession, confirming that despite its far-reaching powers and mandate, IPOA, just like the overpowered civilian victim of police brutality, remains subdued by police excesses.

Yet the need for IPOA to live up to its full mandate cannot be gainsaid.

 

II
Waki, Alston and Ransley

During the 29 May 2009 United Nations Human Rights Council sitting in Geneva, Switzerland, Prof. Philip Alston, the then UN special rapporteur on extrajudicial, summary or arbitrary executions, faced a dilemma. Coming merely two months after his inaugural Kenya working tour, Prof. Alston was calling for the investigation of the Kenya Police Force in a case where it was suspected of involvement in the execution of two human rights defenders. But as he pushed for an investigation into the police, Prof. Alston regretted that as things stood at the time (and maybe as they still stand to date), it was impossible to investigate the police.

Prof. Alston wrote: ‘‘As there is, according inter alia to the report of the Commission of Inquiry into Post-Election Violence (CIPEV, pages 420-421), no existing independent unit capable of effectively and credibly investigating possible police misconduct in Kenya, we consider it imperative that an independent investigation be carried out with support from a foreign police force.’’

Prof. Alston was partly basing his observation on the October 2008 Commission of Inquiry into Post-Election Violence (CIPEV) report authored by Court of Appeal Judge Philip Waki, who chaired the CIPEV, otherwise referred to as the Waki Commission. Apart from pointing out the extent to which it was impossible to investigate the police for suspected police-inflicted deaths and injuries, the Waki Commission showed the extent to which the police were suspected of serious human rights violations during the 2007/2008 post-election violence, where one in every three of the 1,133 deaths documented by CIPEV were as a result of bullet wounds. These figures, though supported by morgue data, were disputed by the Commissioner of Police, Maj. Gen. Hussein Ali, who knew of only 616 deaths, emphatically telling CIPEV that only the police could give authoritative figures for those who died as a result of the post-election violence.

The Waki Commission showed the extent to which the police were suspected of serious human rights violations during the 2007/2008 post-election violence, where one in every three of the 1,133 deaths documented by CIPEV were as a result of bullet wounds.

It was under these circumstances that CIPEV recommended the establishment of an “Independent Police Conduct Authority” outside the police, with the legislative power and authority to investigate complaints against the police and police conduct. By the time Alston was suggesting international investigation of police killings, nothing had happened to implement CIPEV’s crucial recommendation, but his report now made it imperative to establish an independent police oversight agency to curtail future contemplation of seeking foreign investigative assistance.

As if pre-empting Prof. Alston’s May 29 presentation in Geneva on 7 May 2009, President Mwai Kibaki tasked Justice (retired) Philip Ransley to look into concerns raised by the other two Philips – Alston and Waki – by appointing him to chair the National Task Force on Police Reforms. Ransley’s Commission aimed ‘‘to examine existing policies and institutional structures of the police, and to recommend comprehensive reforms that would enhance effectiveness, professionalism and accountability in the police services.’’ Ransley was given 90 days, and in October 2009, having wrapped up his hearings, Ransley handed his report, which contained a whopping 200 recommendations, to the head of state.

Ransley asked for, among other things, terminological change seeking the establishment of the National Police Service (NPS), a change from the scandal-ridden Kenya Police Force. The idea was to shift the mindset of the police towards civilians, a change from always resorting to force in the course of duty to one of offering a professional service. This was to also influence civilians’ perception of the police, from that of antagonism to one of co-operation and collaboration. Ransley similarly asked for the setting up of the National Police Service Commission (NPSC), tasked with overseeing the human resource component of the NPS, starting from recruitment, appointments, promotions, and general welfare of the police, away from the Public Service Commission (PSC), which previously handled these responsibilities.

More importantly, and in responding to Alston’s and Waki’s concerns, Ransley recommended the establishment of the Independent Policing Oversight Authority (IPOA), a civilian body mandated by law to keep the proposed NPS in check. In imagining an ideal scenario, Ransley envisioned an IPOA to watch over financial spending by the NPS; ensure the NPS adhered to international best practices in policing; receive and initiate investigations into complaints on police misconduct; monitor, review and audit police investigations; as well as coordinate other institutions on issues of police oversight, among other things.

 

III
The Resistance

That Ransley’s task force completed its work within 90 days and submitted its report soon thereafter came as a surprise to sceptics, including those within the diplomatic corps. This was evidenced in a WikiLeaks cable originating from the US embassy in Nairobi, which read:

‘‘…However, several prominent persons have expressed doubts about the government’s motives in establishing the PRC. They note that the PRC’s short 90-day mandate is far too little for such a massive task and that Police Commissioner Hussein Ali will act to thwart all but superficial reforms. We share some of these doubts, but will take a wait-and-see approach, recognizing that the PRC provides an opportunity – the only one at this time – for much-needed police reform. The UK shares our doubts, but will support the commission financially by paying for a UK and a Commonwealth police expert to serve on the PRC. If the GOK acts to implement real reform we are positioned to support the effort with funds….’’

The Americans and the British might have had valid reasons to second guess the intentions in setting up the Ransley task force, referred to erroneously in the WikiLeaks cable as the Police Reform Commission (PRC). A few months earlier, before the appointment of Ransley and his team on 7 May 2009, the then powerful Minister of State for Internal Security and Provincial Administration, Prof. George Saitoti, had placed a mischievous announcement in the Kenya Gazette, Notice Number 8144 of September 2008. The alert was about a Police Oversight Board, a proposed agency populated by presidential appointees, which the minister wanted domiciled in his ministry, and whose members – named in the gazette notice – the minister had powers to dismiss at will. This therefore meant that the mandate to oversee the police would remain within the state, under the same ministry as the police, a bad attempt at pseudo self-regulation. Prof. Saitoti’s actions seemed pre-emptive.

At around the same time, the non-statutory Kenya Human Rights Commission (KHRC), among others, was busy singing the chorus of the establishment of a civilian police oversight body. In fact, the KHRC had gone as far as drafting a bill proposing the creation of the Police Oversight Board, a name and concept which the minister appropriated. The difference was that the KHRC was proposing an autonomous civilian agency, while the minister wanted to create an appendage of the police within his portfolio. It was these sorts of cat-and-mouse games that eroded credibility on efforts by the state towards police reforms, setting the stage for doubting Thomases as Ransley got working.

Further, in revelations contained in the aforementioned WikiLeaks cable, Prof. Saitoti was reported to have told the US Assistant Secretary of State for Africa, Johnnie Carson, that what was needed in police reform was ‘‘evolution, not revolution’’. The minister had also been quoted – utterances he denied having ever made – saying that only “normal reforms are required [like] looking into the welfare of officers, adequate facilities to increase the morale and efficiency” of the police. This strategy, of doing cosmetic reforms by focusing on the more bureaucratic end of things as opposed to delving into the more substantive questions of police violations, is one which would later be used to keep IPOA distracted from its core mandate.

 

IV
The Inaugural Term

On 27 August 2010, almost a year after Ransley’s task force submitted its report to President Mwai Kibaki, Kenya promulgated a new constitution. With the new legal regime in place, and staying true to Ransley’s recommendations, Parliament passed the IPOA Act (Act No. 35 of 2011), legislation which paved way for the establishment of the Independent Police Oversight Authority (IPOA). This was a huge milestone. Other than South Africa’s Independent Police Investigative Directorate (IPID), there remains no other policing oversight agency in Africa.

However, rather than looking to South Africa, IPOA heavily borrowed its architecture from the UK’s Independent Office for Police Conduct (IOPC), formerly the Independent Police Complaints Commission (IPCC). This was possibly a direct result of the input by the British expert seconded to the Ransley task force, as explicitly intimated in the WikiLeaks cable. Consequently, IPOA’s objectives were outlined in Section 5 of the Act thus: 

  1. a) Hold the Police accountable to the public in the performance of their functions;
  2. b)  Give effect to the provision of Article 244 of the Constitution that the Police shall strive for professionalism and discipline and shall promote and practice transparency and accountability; and
  3. c) Ensure independent oversight of the handling of complaints by the Service.

In adhering to the Act’s requirements on the hiring of the IPOA board, the president, through Kenya Gazette notices 6938 and 6939 of 22 May 2012, appointed IPOA’s inaugural chairman and the agency’s board members, who were all sworn in on 4 June 2012. Ransley’s team had outlined the composition of the board to include two persons with experience in public administration, alongside individuals with knowledge in financial management, corporate management, human rights, and one with experience in religious leadership. The board’s chairperson had to be someone qualified to be appointed a judge of the High Court of Kenya.

Further, in revelations contained in the aforementioned WikiLeaks cable, Prof. Saitoti was reported to have told the US Assistant Secretary of State for Africa, Johnnie Carson, that what was needed in police reform was ‘‘evolution, not revolution’’.

As fate would have it, Macharia Njeru, currently a member of the Judicial Service Commission (JSC), who had served as a member of the Ransley task force, was picked as IPOA’s first chairman. One would have imagined that having been part of the Ransley team, Njeru would hit the ground running, having had the advantage of being one of the agency’s draftsmen. However, by the end of his board’s six-year term, Njeru’s team came under heavy criticism,for what was considered an utterly dismal performance, especially by victims of police excesses.

 

V
The Numbers

During its inaugural term, IPOA received an average of four serious complaints a day. As a result, the common refrain against the agency was that of the almost 10,000 cases of police misconduct reported to it, IPOA had only secured a paltry three convictions. These were: High Court Criminal Case No. 41 of 2014 (Republic Vs Inspector of Police Veronicah Gitahi and Police Constable Issa Mzee, and Criminal Appeal No. 23 of 2016 (Inspector of Police Veronicah Gitahi and Police Constable Issa Mzee Vs Republic), and High Court Case No. 78 of 2014 (Titus Ngamau Musila).

Pundits argue that strictly speaking, these were two convictions. In the first case, two police officers were convicted, thereafter appealing the ruling. They lost at the appellate court, a development which saw IPOA count the double loss by the officers as two wins on its part.

During its inaugural term, IPOA received an average of four serious complaints a day. As a result, the common refrain against the agency was that of the almost 10,000 cases of police misconduct reported to it, IPOA had only secured a paltry three convictions.

By 30 April 2018, when the inaugural board’s mandate was just coming to a close, the agency had received a total of 9,878 complaints. These were both from members of the public and from within the police service. Of these, 5,085 were classified as needing to be investigated. The rest, as per IPOA’s breakdown of the numbers, were referred to the Internal Affairs Unit of the National Police Service (748 cases), IPOA’s inspections and monitoring directorate (364 cases), the National Police Service (249 cases), the National Police Service Commission (319 cases), the Kenya National Commission on Human Rights (41 cases), Officers Commanding Police Stations (370 cases), the Directorate of Criminal Investigations (289 cases), and another 312 cases were shared between the Ethics and Anti-Corruption Commission, the National Land Commission, and the Commission of Administrative Justice (Office of the Ombudsman).

Of the 5,085 cases meant for investigations, 752 were reported to have been investigated and completed, 458 were closed preliminarily, 72 were still under investigation, 76 were under legal review by IPOA, 103 were forwarded to the Office of the Director of Public Prosecutions, 11 were sent to the Ethics and Anti-Corruption Commission, with 6 referred to the National Police Service. Furthermore, 459 complaints were dismissed as falling outside IPOA’s mandate, 1,642 cases were closed for what IPOA terms ‘‘withdrawal by complainants; matters before Court; not actionable; and insufficient information.’’ 64 cases were before the courts.

As of March 2019, the total number of cases reported to IPOA stood at 12,781, with 136 cases taken to court. In a mark of progress, three more convictions have been added to IPOA’s tally since the new board took office in September 2018. It goes without saying that the new board is to a large extent building on the groundwork done by their predecessors, meaning by the end of the six-year mandate, IPOA’s second board should have better figures in comparison.

By any account, IPOA’s 2012–2018 numbers are mind-boggling, its paltry three convictions not doing much in terms of building confidence within the aggrieved civilian population. As a matter of fact, naysayers will be forgiven for thinking the numbers being thrown around are all a well-choreographed game of smoke and mirrors, a case of motion without movement.

However, the question one may want to ask is, was IPOA set up for failure from the word go?

 

VI
The Bureaucracy

While listening to Macharia Njeru campaigning to be picked as the male representative of the Law Society of Kenya in the Judicial Service Commission, it became obvious that the one talking point IPOA’s inaugural chairman wouldn’t let go of was that he had successfully built an institution from scratch.

Njeru’s exit message as his term came to a close was on how much he, his board and IPOA’s senior staffers had worked in putting in place systems. There was talk of financial management awards, all bureaucratic shenanigans – not unimportant but neither were they IPOA’s core mandate. There was certainly need for institution building, but at what expense did this happen? Did Njeru’s team sacrifice IPOA’s primary oversight responsibility at the altar of corporatism, or was it a trap set for him from the word go – to keep him busy paper pushing and not allow his team adequate time and resources to focus on police misconduct?

When looking at IPOA’s founding financials – an annual budget of Sh96 million (US$ 960,000) in 2012/2013 – it is clear that from the beginning one of the ways the state wished to put the agency on a tight leash was by limiting its budgetary allocations. Seeing that the agency needed to build from the bottom up – hire premises, recruit and train staffers, establish regional offices, among other day-to-day operational logistics, it was evident that with a paltry financial allocation, the board would be kept busy micromanaging budget line items as police violations went through the roof. For instance, it is astonishing to note that in 2013, IPOA could only hire an initial staff of six people.

Possibly seeing that the agency had fallen into the institution-building-at-the-expense-of-its-core-mandate trap, IPOA’s budget eventually grew to Sh696 million in 2017/2018 and Sh800 million in 2018/2019, barely Sh1,000 (US$10) per complaint per day, and definitely an insignificant amount of money considering the scope of oversight expected of the agency. By the time Njeru’s team was leaving, IPOA had acquired a total of 27 motor vehicles – a number one might find laughable, seeing that IPOA’s operations needed to cover the entire country – and had a staff roster of a mere 143 employees. How was such an institution, even if perfectly structured, capable of overseeing a National Police Service that recruited an average of 10,000 police officers on an annual basis? Would IPOA ever be fit for purpose?

In 2014, the board developed a four-year strategic plan to coincide with its 2018 exit. The plan was built around four pillars, namely compliance by the police with human rights standards; restored public confidence and trust in police; improved detention facilities; a functional Internal Affairs Unit (IAU) of the National Police Service; and a model institution on policing in Africa. In its usual brick and motor state of mind, IPOA reported that ‘‘it is pleased that the National Police Service has secured an office for the IAU, and indications are that the Unit will be operational by August 2018.’’ Other than that, it is anyone’s guess as to whether any of the other targets were satisfactorily achieved under the strained circumstances the agency was operating under.

 

VII
The Backlash

By all means, IPOA’s inaugural term had too many moving parts that kept the agency busy, thereby making it drop the ball on many occasions regarding delivery of its core mandate to civilians, who continue to suffer in the hands of rogue elements within the National Police Service. According to Wangui Kimari of the Mathare Social Justice Centre (MSJC), and as has become a common refrain in Kenyan society today, vitu kwa ground ni different (reality bites). For starters, IPOA is not perceived as a friend of the civilians, thanks to its one-size-fits-all bureaucracies.

‘‘Victims of police brutality and families of those killed by the police in places like Mathare and Korogocho are weary of going to report their complaints to IPOA for many reasons,’’ Wangui told me when we met in Nairobi. ‘‘Some of them are broke, they cannot even afford bus fare, yet they are expected to go to IPOA’s intimidating head office to make a statement. Once at IPOA, the majority of the complainants, who are either illiterate or semi-literate, will always be harassed for either not filing their complaints properly or for leaving out crucial information. It is in filling these gaps that trusted grassroots organisations such as the social justice centers come into the picture, but even after lodging the complaints properly, the long periods of time which lapse before IPOA moves on the cases is discouraging to the victims and their families.’’

In a word, IPOA’s operations are not fit for purpose since its user experience remains wanting.

According to Gacheke Gachihi, an MSJC activist, IPOA needs to have its tentacles in places such as Mathare, which record some of the highest numbers of extrajudicial killings. It is public knowledge that informal settlements in Nairobi have well-known killer cops, some whom go as far as parading their past, present and future conquests on social media. To Gacheke, the fact that IPOA does not have outposts in places like Mathare shows its top-bottom approach to oversight, where instead of going to the ground, the agency keeps to its air-conditioned offices.

‘‘IPOA needs to come and be in the midst of the people who need it most,’’ Gacheke told me. ‘‘Their presence here can work as a deterrent to rogue police officers. If they think residents of Mathare flood their registry, they will be surprised at the many cases which go unreported.’’

According to Gacheke Gachihi, an MSJC activist, IPOA needs to have its tentacles in places such as Mathare, which record some of the highest numbers of extrajudicial killings. It is public knowledge that informal settlements in Nairobi have well-known killer cops, some whom go as far as parading their past, present and future conquests on social media.

In the opinion of some front line human rights aficionados who wished to remain anonymous – they do not wish to sanitise IPOA’s arrogance with a comment – IPOA’s biggest shortfall has been its opacity. They claim IPOA behaves as if it is ignorant of the fact that for it to succeed it needs to operate within an ecosystem comprising all kinds of stakeholders nurtured by trust. It is this sense of indifference from IPOA, they say, which has resulted in disengagement by human rights defenders, who are getting completely disinterested in IPOA’s work processes. ‘‘They never answer calls or reply to emails,’’ one of them told me. ‘‘It is a complete disgrace.’’

The other battle on IPOA’s plate is that of perception. Wangui told me that when she brought mothers and widows of victims of extrajudicial killings to IPOA’s open day, the majority of them did not want to come close, since they considered IPOA as part of the National Police Service. ‘‘They wouldn’t go to the IPOA stand,’’ Wangui told me, ‘‘because to them, hao ni polisi.’’

 

VIII
The Missing Repository

According to leading human rights lawyer Sam Mohochi – previously executive director of the Independent Medico-Legal Unit (IMLU) and immediate former executive director of the Kenyan Section of the International Commission of Jurists (ICJ-K) – any suspicious death, and particularly death at the hands of or while in the custody of the police or of a prison officer, should automatically trigger a Magistrate’s Inquest under Sections 386 and 387 of the Criminal Procedure Code. In Mohochi’s view, IPOA should therefore be the undisputed repository for all such cases in instances where the police are involved, such that IPOA either exonerates or implicates them.

‘‘All custodial deaths should result in an inquiry being instituted,’’ Mohochi told me in Nairobi. ‘‘But you will notice that as things stand, IPOA does not comply with provisions of the law.’’

‘‘If you look at most cases of extrajudicial killings in Kenya, unless the family or other actors complain, no automatic legal action occurs,’’ Mohochi told me. ‘‘But two, now bring in IPOA. All such cases are automatically expected to be referred to IPOA, directly, by the police. That then means that in IPOA’s progress reports, the agency should always indicate how many such cases have been forwarded to it, by the police. Unfortunately, if you look at IPOA’s progress reports, they are completely silent on that. Yet that would have been the repository where you could keep tally of extrajudicial killings, irrespective of whether investigations are complete or not. That way, there could be a credible tally of encounter killings by the police, reported by the police. What we mostly have are statistics of cases reported by victims, against the police.’’

In Mohochi’s opinion, the ideal situation in cases where police bullets have been used to either harm or kill civilians should be that the Officer Commanding Station (OCS) who is in charge of the police in a given jurisdiction should be the one to forward any suspicious police action to IPOA as a measure of accountability. This means that if the police abuse their powers in a locality and the OCS does not report it to IPOA, then the agency should have punitive measures in dealing with such a non-compliant OCS.

And if dealing with an OCS gets cumbersome – which should not be the case since IPOA has statutory powers – then IPOA should at the very least have its own investigators stationed at every police station in order for the agency to get first-hand accounts of police excesses, which are then forwarded to the agency’s legal and investigative units. Failure to do this, Mohochi says, will result in the majority of police violations to go unreported; even if they get reported, there will always be the evidential challenge since the police, in protecting each other, will neither secure the crime scene nor get witness statements of their own volition.

‘‘IPOA should issue a circular to all police stations,’’ Mohochi told me, ‘‘that should any case of extrajudicial killings occur, they need to be notified immediately. Failure to do so, even IPOA’s own investigators will not find it easy investigating a non-cooperative police service.’’

Further, Mohochi told me, what IPOA is doing – documenting police violations and prosecuting rogue officers – is something that was already being done by non-state actors. However, the establishment of IPOA was meant to scale things up in terms of convictions, something which is not happening. In Mohochi’s recollection, police officers have been jailed before IPOA came into place, but IPOA was meant to act as a bigger deterrent through higher conviction rates. If this is not attainable, Mohochi fears that IPOA will not be serving the purpose it was founded for.

 

IX
The Evidence Puzzle

Over the years, and as intimated by Mohochi, insufficient evidence has remained one of the prominent bottlenecks in litigating against police violations in cases of extrajudicial killings. For the most part, aside from entities such as the Independent Medico-Legal Unit (IMLU), who were for a long time the go-to place for independent, credible autopsies, especially in public interest cases, attempts to prosecute the police either by IPOA or other actors have run into headwinds for lack of admissible evidence on the cause and circumstance of death. As such, the passing of the National Coroners Service Act of 2017 came as a huge relief for both human rights defenders and evidence-based agencies such as IPOA. This meant that in the event of any suspicious deaths, then there would be a legally mandated entity which would take up the matter, preserve the evidence, institute an inquiry, after which prosecutorial steps can follow.

According to the Kenya National Commission on Human Rights (KNCHR) handbook on the Act, much as the Kenyan version of the coroner’s office will not be quasi-judicial, as an important starting point, the Act establishes a framework for investigations and determination of the cause of reported unnatural deaths in the country. Some of the anticipated quick wins are that obstruction of investigations, bearing false witness, and refusal to comply with directions from the coroner will be things of the past.

Further, the Act provides immunity from civil and criminal prosecution, or any other administrative action for that matter, for those who give evidence to the coroner. This is a huge improvement from the current reliance on Sections 385-387 of the Criminal Procedure Code, which provide for an inquest in cases of suspicious deaths, but does not have the sorts of far-reaching powers provided by the Act. Unfortunately for IPOA and its civilian complainants, and in that typical Kenyan self-sabotage fashion, since the signing of the Act into law in July 2017, it remains gathering dust, and is still not operationalised.

 

X
The Recruitment Charade

However, after everything is said and done, one of IPOA’s persisting headaches remains the almost always scandalous police recruitment exercise. It goes without saying that if the National Police Service keeps filling its ranks with individuals not suited for policing, then no matter what interventions IPOA resorts to, its in-tray will forever remain full of cases of police misconduct by rogue officers, persons who were never fit to be part of the service from the word go. To date, no matter what IPOA or other statutory watchdog agencies like the Kenya National Commission on Human Rights (KNCHR) do, the problem of shoddy police recruitment has kept recurring, courtesy of the now perfected selective application of recruitment guidelines.

For starters, recruitment of police officers is the sole prerogative of the National Police Service Commission (NPSC), as recommended by the Ransley task force. However, the law allows the NPSC some discretion, through which it can delegate this responsibility to the Inspector General of Police. This, however, should not be a recipe for subpar recruitment, because the recruitment process should be strictly guided by the NPSC’s Legal Notice No. 41 of 2015. The legal regulations contain general provisions, recruitment categories, gender, regional and ethnic balance requirements, functions of the NPSC in the recruitment, advertising timelines and positions to be advertised for, contents of the advertisement, composition of recruitment panels, calendar of activities for the entire recruitment process, determination of successful candidates, disqualifications, a complaints management system, training schedule and issuance of certificates upon appointment, and submission of the recruitment report to Parliament.

More importantly, Regulations 11-15 of the Legal Notice prescribe a two-tier recruitment process, where in the initial stage, interested candidates submit applications to the NPSC, which having considered education qualifications, gender and ethnic balance, et cetera, is then required to shortlist three times the number of prospective officers it wishes to enlist at each of the recruitment centers. These names are then meant to be shared with the public so that any objections about the recruitment of any individual can be brought forth. Thereafter, the NPSC is supposed to conduct verification of documents as well as medical and physical aptitude examinations. Taking into consideration how rigorous the process should be, from the time of advertisement of vacancies to when the new recruits report to training, Regulation 17 of the Legal Notice provides for a 90-day period for completion of the recruitment cycle.

Unfortunately, the NPSC and the Inspector General of Police have continued practising their traditional one-day recruitment exercises, where they focus not on intellectual aptitude, as the two-tier processes envisions, but give prominence to physical attributes. Aside from that, flawed advertisement processes, lack of public participation, cases of bribery and patronage, and the locking out of observers – who are mandated by law to have access to the entire recruitment process – continue to be the order of the day.

In July 2014, the newly established IPOA took a bold step by taking the NPSC to court after it observed incidents of corruption, fraud and massive irregularities during recruitment. IPOA sought for nullification of the entire exercise, prayers which were granted by the High Court. On appeal, IPOA’s victory was upheld by the Court of Appeal under Petition No. 390 of 2014 and Civil Appeal No. 324 of 2014 (The Recruitment Decisions). According to those in the know, the government did not look at IPOA’s actions favourably, resulting in reported cases of not-so-subtle intimidation, with strong attempts at creating factions within the IPOA board.

Unfortunately, the NPSC and the Inspector General of Police have continued practising their traditional one-day recruitment exercises, where they focus not on intellectual aptitude, as the two-tier processes envisions, but give prominence to physical attributes.

In a sad turn of events, neither the NPSC nor the Inspector General of Police seemed to have learnt their lesson. Two years later, the Kenya National Commission on Human Rights (KNCHR) released a comprehensive report titled ‘‘DisService to the Service: Report of the Monitoring of the 2016 Recruitment of Police Constables to the National Police Service’’, in which it extensively observed that police recruitment continued being marred with serious irregularities characterised by interference from the executive arm of government and a total disregard of the two-tier process, which is meant to attract a higher calibre of trainee officers.

In one of its pleadings, the KNCHR wrote, ‘‘The continuous lack of adherence to follow the two-tier process means that achieving professionalism within the National Police Service will remain a pipe dream. The recruitment process serves as the point of entry into the service, and thus any attempts at professionalising the service should begin at this level.’’

Therefore under the prevailing circumstances, where regulations are ignored at will by the highest organs of the state, IPOA will remain a lame-duck mitigating force inside a garbage-in garbage-out setup.

 

This report is a criminal human rights reporting project of Africa Uncensored and the Institute of War and Peace Reporting (IWPR).

Avatar
By

Isaac Otidi Amuke is a Kenyan writer and journalist.

Politics

No War, No Peace: Life and Death in Eritrea

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

Published

on

No War, No Peace: Life and Death in Eritrea
Download PDFPrint Article

Eritrea was an Italian colony from 1890 to 1941. Following the defeat of Italian forces by the Allied Forces during World War Two, Britain occupied Eritrea until its federation to Ethiopia in 1952. However, by 1962 Emperor Haile Selassie had annexed Eritrea, declaring that it was part of Ethiopia, and in this way ending the federation.

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

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

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

Border dispute

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Peace Agreement with Ethiopia and its aftermath

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

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

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

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

Ailing health sector

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

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

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

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

Poor COVID-19 response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue Reading

Politics

The Search for a Puppet Chief Justice

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

Published

on

The Search for a Puppet Chief Justice
Download PDFPrint Article

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Former Deputy Chief Justice Nancy Baraza, 63, has expressed a desire to return Although the Supreme Court’s Justice Smokin Wanjala gave a good showing at the 2016 interviews and was ranked second, his age – 60 – means that if appointed, he would hold the job for 10 years. Law scholar Makau Mutua, 62, who was ranked third in the 2016 interviews for Chief Justice, could also give the job another try, as would former Attorney General Githu Muigai, who would similarly be hampered by fears of serving out the 10 years in the post.

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

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

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

Continue Reading

Politics

African Continent a Milking Cow for Google and Facebook

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

Published

on

Algorithmic Colonisation of Africa
Download PDFPrint Article

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

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

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

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

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

Brick and mortar

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

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

‘Their revenue comes from me’.

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

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

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

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

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

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

Google Ghana is an ‘artificial intelligence research facility’.

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

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

Cash-strapped countries

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

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

Cost to public

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

‘A tax paying people is a questioning people’

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

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

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

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

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

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

Comment

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

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

This article was first published by our partner ZAM Magazine.

Continue Reading

Trending