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.
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.
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.
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:
- a) Hold the Police accountable to the public in the performance of their functions;
- 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
- 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.
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?
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.
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.’’
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.
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.
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).
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The Evolving Language of Corruption in Kenya
A cabal of politicos has appropriated the everyday language of hardworking Kenyans to camouflage their intentions to perpetuate corruption and state capture.
Andrew Ngumba had a curious way of explaining away institutionalized corruption every time he was accused of engaging in it. “In the days gone by, before the village elders arbitrated any pressing or thorny issue, they would be offered libation just before the deliberations and then thanked with a goat thereafter, as an appreciation for a job well done.”
Those who are old enough will remember Ngumba, who died in 1997, as the mayor of Nairobi from 1977–1980. He later became the MP for Mathare constituency, renamed Kasarani, from 1983–1986. Ngumba estate, off Thika highway, next to East African Breweries, is named after the canny entrepreneur-politician, who founded Rural Urban Credit Finance Limited, dubbed the “ghetto bank”. The finance house collapsed in 1984 and Ngumba sought political refuge in Sweden.
Just like your archetypal politician, the wily Ngumba would with characteristic panache then ask, “Was the libation and the goat a form of saying ‘thank you for your time’ to the elders, or was it just plain corruption?” His cheekiness aside, which Kenyan society was Ngumba describing? Pre-colonial, before the advent of British settlers and missionaries? Or was he referring to a pre-urban, rural-setting Kenya, before it was contaminated by colonialism, modern capitalism and corruption?
We can imagine what his answer to his own rhetorical question was. Of greater interest, is the way he chose to re-tell the socio-cultural anecdote, with the obvious intention of exonerating himself and like-minded politicians, when caught engaging in bribery and institutional corruption: he implicitly gave a nod to the nefarious activity by normalizing bribery, a vice previously unknown and unexperienced in the very society he was describing.
“Political elites [also] appropriate moral language and social norms to ‘conventionalise’ corruption, fashioning a vocabulary that takes the moral sting from opprobrium, corruption and its various forms,” says Wachira Maina in his report, State Capture – Inside Kenya’s Inability to Fight Corruption. “Corruption is ‘traditionalised’ and reframed as gift-giving or as a form of socially recognizable reciprocity. Corrupt practices are then expressed in the language of moral obligation. No moral wrong is involved when an official or politician from one’s village violates conflict of interest rules or other laws to provide some ‘token benefit’.”
But when is a gift a bribe and a bribe a gift? Let us take the example of the chief – village or otherwise. Until very recently, up to the late 1990s, the chief was a powerful creature bestowed with the powers of “life and death” over his subjects. Until just before the December 1997 general elections, the statutory powers of the chief were many times greater than those of any elected official that you can think of. With the Inter-Parties Parliamentary Group (IPPG) reforms, some of their powers were supposedly clipped.
Picture this: Two parties are squabbling over a land boundary. They must go to the chief for arbitration. On the eve of the arbitration, one of the parties, most probably the one who has encroached on his neighbour’s land, gets a brainwave and pays the chief a visit in advance, ostensibly to remind him of their big day. Because of the unwritten law that it is “culturally rude” to visit a chief “empty-handed”, the visiting party decides to “gift” the chief with whatever, as has happened from time immemorial. One can, without too much effort, imagine the possible outcome of the land tussle the following day.
Chiefs were not only very powerful, they happened to be some of the richest people wherever they reigned. Should we wonder why chiefs as public officials, for example, own some of the biggest chunks of land in their area of jurisdiction? At the grassroots level, a socio-cultural norm was deliberately subverted to allow open bribery and the establishment of institutionalized corruption.
As currently constituted in the country, chiefs are an invention of British colonial rule. They are part of the indirect rule that the colonial government imposed on Kenyans. When Kenya gained independence from the British in 1963, the post-independent government inherited the colonial indirect system of government — the whole kit and caboodle. With their “illegitimacy” and corruption networks carried over and sanctioned by the new African government, chiefs entrenched themselves even further by extending their corrupt patronage networks within the government bureaucratic structures.
During their “reign of terror”, which continues today, chiefs interpreted bribes as “gifts” that had to be given by “force of law”; any person with matters arising at the chief’s court knew that a “gift” had to be carried along. So, even though this form of corruption was covert and not dangerous to the existence of the state, it impoverished and terrorized the poor peasants.
Chiefs were not only very powerful, they happened to be some of the richest people wherever they reigned.
Corruption, as an evolving concept, was introduced into Kenya society by the British colonial government and, the civil service has been known to be the home of institutionalized state corruption since pre-independence Kenya. Think about it, the word corruption does not exist in the lexicons of Kenya’s ethnic communities. In the Kikuyu community, for instance, there is a specific lexicon that describes a thief and theft, but there is no word for corruption per se, because in African societies, corruption, a Western concept (and as defined today), was unknown in many African traditional societies.
Indeed, as Wachira observes in his report released in 2019, “corruption has been a persistent problem in Kenya since before independence, but it has flourished and put down robust roots since the country’s return to multiparty politics in 1992.”
What is corruption? For the longest time, corruption has been defined in the binary fashion of either petty or grand corruption. Political scientists have variously described corruption as an act in which the power of public office is used for personal gain. In other words, the misuse of public resources by state officials for private gain. Corruption has also been described as behaviour that deviates from the formal rules of conduct governing the actions of someone in a position of public authority or trust.
The benefits of corruption are either economic — when an exchange of cash occurs — or social, in the case of favouritism or nepotism. Hence, grand corruption, sometimes referred to as political corruption, involves top government officials and political decision makers who engage in exchanges of large sums of illegally acquired money. Petty corruption involves mid- or low-level state officials, who are often underpaid and who interact with the public on a daily basis.
In his concise report, Wachira notes that “a generation of reforms has not dented the corruption edifice or undone its rhizome-like penetration into the body politic of Kenya.” Why? “Part of the problem is conceptual: How we name corruption and how we understand its character,” points out the constitutional lawyer.
These simple but loaded terms of “petty” and “grand” corruption present a false dichotomy, says Wachira. “Petty” suggests that the corruption is merely an irritant, something people do to speed up things or evade a long queue — a way of “lubricating the system. “The term suggests an expedient with trivial effect, considered case by case. In fact, that characterization is deeply mistaken. . . . Most important, it becomes a fee, because it guarantees that what was initially a free service is no longer so. From a macro-economic perspective, its distortionary effect could be as at least as impactful as grand corruption,” writes Wachira.
That is why petty corruption in Kenya has long been baptized chai, meaning tea, or kitu kidogo, which means something small. It is daily language that is used to camouflage an illegal act by likening it to one of Kenya’s best-known pastimes — drinking tea. Civil servants demand chai from the public in order, they argue, to grease the bureaucratic wheel, which oftentimes revolves very, very slowly and needs to be lubricated for it to move. Chai and Kitu Kidogo have become interchangeable, because “something small” also connotes a kind of “lubricant” that “hastens” service delivery.
The police, especially traffic cops, who are synonymous with petty corruption, have perfected the language of chai-taking more than any other state official such that when Kenyans conjure bribe giving, the first person who immediately comes to mind is the policeman.
The State Capture report says, “Indeed language is in a parlous condition when the bribe a judge takes to free a dangerous criminal is named chai, like a nice ‘cuppa’ tea between intimates.”
During their “reign of terror”, which continues today, chiefs interpreted bribes as “gifts” that had to be given by “force of law”.
The report further states that, “the term ‘grand’ on the other hand can also be misleading if grand suggests debilitating to the state. Implicit in the term is the notion of a corrupt deal of significant size, involving senior officials and high-ranking politicians. Such corruption involves large-scale stealing of state resources and, the theory goes, it erodes confidence in government, undermines the rule of law and spawns economic instability.”
In Kenya, grand corruption has involved such mindboggling money schemes as the Goldenberg and Anglo-Leasing scandals and more recently, the Eurobond scandal. These mega-scams are a result of collusion between state officials and politicians, who over time have formed powerful corruption cartels that have proved inextinguishable.
Why does this corruption on a massive scale not cause moral outrage or shock in the public? Why is it not obvious to all? “There are cases in which the term ‘grand’ corruption fails to communicate the moral shock and magnitude that seems implicit. ‘Grand’ then becomes merely an audit term that simply describes financial scale,” says Wachira. “If that conclusion is right, it would then explain the frequent lack of moral outrage about widespread theft in government, with the result that there will be cases in which characterising corruption as petty or grand implies nothing about its impact or the social and political levers one can push to eliminate it.”
“Grand corruption” in Kenya today has evidently surpassed the current nomenclature; the staggering sums of money stolen have numbed the people’s sensibilities to shock and have refused to register in their psyche. How, for example, can the president have the audacity of treating Kenyans to shock therapy by telling them that KSh2 billion is stolen from the state coffers every 24 hours? That kind of pillage can no longer be termed as corruption, let alone grand corruption. A more appropriate language has to be found; and there can be no other word for it other than theft.
The State Capture report problematizes the matter of the naming of state plunder and discusses at length what could be the problem with language that seeks to explain the massive haemorrhage of state resources orchestrated by unscrupulous individuals. The report notes that corruption in Kenya has been described as a malignant tumour that hampers the government from governing properly “The problem of naming [corruption] is then compounded by medical or sociological language that pathologises corruption. . . . Therein lies the problem: Anti-corruption programmes ‘pathologise’ the relationship between corruption and the state, deploying medical terms like ‘cancer on the body politic,’ ‘a disease that we must cure’ or ‘a pervasive ill’ potentially responsive to curative interventions.
Even when the language used is sociological rather medical, the pathological dimension stays. Corruption is ‘a perverse culture’ or ‘negative norm’. Both the medical and the sociological language mobilise a deep-seated ‘conviction that there is something pathological – an illness – within [Kenya] politics and culture’. This suggests that what the reformers must do is ‘to identify this pathology’ and formulate a diagnosis that examines the Kenyan society and brings to the surface the ‘fissures and contradictions’ that explain the graft.
In his report, Wachira goes on to say, “The medical perspective that implies that the state has gone awry and can be put to rights with an appropriate intervention is pervasive. Implicit in the diagnosis and the proposed cure is the thought that the state is constructed for some legitimate — or benign — purpose that has been perverted by corruption.”
Joseph G. Kibe, a Permanent Secretary in six different ministries in the 1970s, was once interviewed about his experience working as a top government bureaucrat, many years after his retirement in 1979. Said Kibe, “In those days, I could see some kind of low-level corruption starting to creep in, especially involving clerks. For instance, in the Lands Office, they would remove one file and hide it away from where the index shows it is and wait until the owners of the land wanted to conduct a transaction at which point they would ask for a bribe.”
The same low-level corruption has been rampant in the corridors of justice. The low-paid court clerk in the magistrate’s court “disappears” a case file so that he can solicit a bribe to enable the miraculous re-appearance of the “lost” file.
“A generation of reforms has not dented the corruption edifice or undone its rhizome-like penetration into the body politic of Kenya.”
The former PS, who went on to work for Transparency International (TI) Kenya Chapter, said in 2004, “Corruption had crept into ministries, departments and government corporations and was likely to entrench itself unless it was stopped. With corruption you give up development because all resources you have, only a little will do good. A lot will be taken away for personal use.”
Because the patronage networks created by the civil service and the political class have ensured that corruption is profitable and has high returns, it has become extremely difficult to fight the vice. “The difficulties of fighting corruption lie in the union of corruption and politics; a union in which, at least since Goldenberg scandal, a power elite has captured the state, especially the Presidency and the Treasury and repurposed the machinery of the government into a ‘temporary zone for personalised appropriation’” says Wachira.
State capture is a term that was popularized in South Africa, a country that since its independence 27 years ago, has witnessed some of the biggest state scandals since the end of Apartheid. “What is at play in Kenya [today] is ‘state capture’ defined as a political project in which a well-organised elite network constructs a symbiotic relationship between the constitutional state and a parallel shadow state for its own benefit”, explains the State Capture report.
The success of the state capture rests on the ability of a small group of powerful and rich operatives to take over and pervert the institutions of democracy, while keeping the façade of a functioning democracy. Thus, oversight institutions are weakened; law enforcement is partisan and in the pockets of the politicians; civic space is asphyxiated; free elections are frustrated and are typically won by the most violent or the most corrupt, or those who are both violent and corrupt. Arrest and indictments are often the precursor of inaction, not proof of official will to fight corruption.
“Corruption eats at the moral fabric of the nation,” once said Harris Mule, one of the finest PSs to have served at Kenya’s Ministry of Finance. “Positive norms and traditions, once appropriated by the corrupt, instantly transform themselves into curses. Take the uniquely Kenyan institution of Harambee, as an example. It has been changed from what was once a positive manifestation of the culture of philanthropy and community service, into a political tool that fails to deliver what it promises.”
Mule further said, “Corruption causes poverty by promoting unfair distribution of [the] national income and inefficient use of resources. Poverty and inequality in turn breed discontent and can cause national instability. The political implications of sharp economic inequalities are potent.” The former PS was clear in his mind that corruption was the art of “transferring state assets into private hands at the expense of the public interest and purse.”
Harambee, which means, “pulling together”, was a noble idea that tapped into the egalitarian and altruistic nature of African society, that of pooling their meagre resources together for the public good. It was very popular throughout the 1970s and 1980s and to a lesser extent in the 1990s. When Mwai Kibaki came to power in 2003, his government instituted a probe into the now much-maligned popular group effort. Wachira explains that,
As the report of the Task Force on Public Collections or Harambees showed clearly, politicians are the largest donors to ‘charitable’ causes — churches, schools, higher education and funerals are firm favourites — to which they give fortunes that are many times more that their own legitimate incomes. Such charity is, in truth, a bait and switch ploy: once moral institutions buckle to the lure of corruption money, the corrupt buy absolution and are free to dip deeper into the public coffers.
Both the Jomo Kenyatta and Daniel arap Moi regimes misused the Harambee spirit for self-aggrandizement. Mzee Kenyatta, who hardly gave any money towards any Harambee effort and if he did, it was a symbolic sum, expected Kenyans to contribute to his Harambee causes, which were baptized all manner of noteworthy names. The monies were not accounted for and nobody would dare ask how the funds raised were spent, whether they were spent on the causes for which they had been contributed. In many instances, the money collected went to line the pockets of Mzee’s friends.
During Moi’s time, Harambee was used by civil servants, especially chiefs, to solicit bribes and favours from people calling into government offices for services that are meant to be free. A citizen visiting a chief’s office to obtain a personal identification document would be presented with a card for a Harambee by the chief and his subordinates. If you wanted to be served at the Ministry of Lands for example, you would be presented with a Harambee card by a junior officer acting on behalf of his boss. Yours was not to question the authenticity of the card, why a public office was presenting a Harambee card to and all sundry, or why it was “mandatory” to contribute before being served in a public office. If you did, you would be called an “enemy of development” and labelled anti-Nyayo.
Why does this corruption on a massive scale not cause moral outrage or shock in the public?
Just after the Narc party was swept into power in 2003, the country witnessed a “citizen’s jury” at work: it exposed and sometimes went as far as making citizens’ arrests of errant police officers caught engaging in bribery. But what happened to citizens’ arrests? It was just a matter of time before the citizens themselves caved in and returned to offering the same bribes to the very same police officers. Why? Because they realized belatedly that to fight institutionalized corruption in Kenya, there must be goodwill and concerted effort from the government: the fish rots from the head and the fight against corruption must begin at the top.
Since 2013, corruption seems to have acquired a new word to camouflage it – hustler. Under the Jubilee government, “hustler” has come to describe tenderpreneurs masquerading as the toiling masses. It is the new lexicon that has been adopted by a cabal of people intent on raiding government coffers, a cabal that has appropriated the everyday language of Kenyans who eke out a living the hard way. It is the latest socio-cultural jargon that has been unleashed on the political landscape by a network of politicos intent on acquiring state power so that, in their turn, they can perpetuate state capture.
Pan-Africanism in a Time of Pandemic
Solidarity conferences have been replaced by aid conferences called by “donors”. What we need is a Pan-African conference organised by movements and individuals committed to human development.
There was a time, in the last century, when the under-privileged of the world shared a common understanding of the causes of their condition. Today the causes manifest in vaccine Apartheid. That the COVID-19 pandemic should find most African countries with less than one doctor and less than ten beds per a thousand of their population shows the failure of the development efforts of the past 60 or so years. The same countries all struggle with unsustainable debt, which is still being paid during the pandemic and has been increased by the COVID debt. When the global emergency was declared in January 2021, development partners began to hoard personal protective equipment. When vaccines became available a year later, there was insufficient production capacity to meet world needs. The same development partners rejected the option of allowing African countries to manufacture the vaccines on the continent. They hoarded their supplies until they were nearly expired before donating them to African countries.
In the 1950s, there would have been a different reaction. By then, African and Asian countries were moving inexorably towards independence. Organised by Indonesia, Myanmar (now Burma), Ceylon (now Sri Lanka), India, and Pakistan, African countries attended the Bandung Conference of 1955 with economic and social development in mind. Then as now, China and the United States were on opposite sides of the Cold War and each sought to influence Africa while Africa sought non-alignment in order to freely pursue her development goals.
For one week in Bandung, Indonesia, twenty-nine African and Asian heads of state and other leaders discussed the formation of an alliance based on five principles: political self-determination, mutual respect for sovereignty, non-aggression, non-interference in internal affairs, and equality. The ten-points in the communiqué released after the conference became the governing principles of the non-aligned movement and they included self-determination, protection of human rights, the promotion of economic and cultural cooperation, and a call for an end to racial discrimination wherever it occurred. The alliance began to disintegrate when India and Yugoslavia shunned the radical stand against Western imperialism, leading to the organisation of a rival non-aligned conference in 1965. The 1965 conference was postponed.
While there was no follow-up to Bandung, the ideals it stood for were being espoused by other formations. On the African continent, the Casablanca Group—the precursor to the Organisation of African Unity (OAU)—had a membership of five African states: Egypt, Ghana, Guinea, Mali, Libya, and Morocco. The All-African Peoples’ Conference (AAPC) took place in Cairo in 1958 after the founder, Uganda’s John Kale, was inspired by his attendance at the Afro-Asian Peoples’ Solidarity Conference the previous year. It was a meeting representing peoples and movements and not just states. The conference demanded the immediate and unconditional independence of all the African peoples, and the total evacuation of the foreign forces of aggression and oppression stationed in Africa.
The All-African People’s Conference recommended African co-operation in the interest of all the Africans, denounced racial discrimination in South, East and Central Africa, and demanded the abolition of apartheid in South Africa, the suppression of the Federation of Nyasaland (Malawi) and Rhodesia (Zimbabwe), and independence for the two countries.
The Afro-Asian People’s Solidarity Organisation (AAPSO) organised a conference in Cuba in 1957. The 500 delegates to the AAPSO conference represented national liberation movements as well as states and after a number of such gatherings, AAPSO resolved to include Cuba and Latin America in its membership. Thus was the organisation of Solidarity with the People of Asia, Europe, Africa and Latin America (OSPAAAL) born.
The activities of OSPAAAL included financial support for the anti-colonial struggle in Palestine and for South Africa’s Africa National Congress (ANC). American aggression towards Cuba and its blockade of Vietnam were denounced and global solidarity was shown to political activists under threat of arrest. The movement solidified in the 1966 Tricontinental Conference in Havana, Cuba. The Solidarity movement established a think tank, the Tricontinental Institute for Social Research which produced educational materials in the form of newsletters, articles and the now iconic revolutionary art. This work continues to this day.
For the next decade, Cuba provided support to the armed struggle for independence in Angola, Mozambique, Guinea Bissau and Equatorial Guinea, and to South Africa’s ANC. Fidel Castro was a familiar face on the diplomatic circuit and received Julius Nyerere of Tanzania, and other leaders, in Havana.
The United States government was caught between the expectations of its allies, the former colonial powers and those of the soon-to-be independent countries whose alliance it sought. The civil rights movement in the United States was a thorn in its side as it appealed to Africans in the Independence movement. America chose her traditional allies and neo-colonialism put down roots.
Regardless of that, leaders of African and American movements interacted, learning from each other; Julius Nyerere, Kenneth Kaunda, and a number of other leaders of the day met Kwame Nkrumah at Ghana’s independence celebrations in 1957. Martin Luther King was also there. Reflecting on the cost of freedom and mentioning Egypt, Ethiopia, South Africa, Uganda, Nigeria, Liberia and Kenya, King later wrote, “Ghana reminds us that freedom never comes on a silver platter. It’s never easy. . . . Ghana reminds us of that. You better get ready to go to prison.” Following a visit to Nigeria in 1960, King reported,
I just returned from Africa a little more than a month ago and I had the opportunity to talk to most of the major leaders of the new independent countries of Africa and also leaders of countries that are moving toward independence [. . .] they are saying in no uncertain terms that racism and colonialism must go for they see the two are as based on the same principle, a sort of contempt for life, and a contempt for human personality.
Today Dr King would probably have added predatory debt to that list.
Malcolm X visited Egypt and Ghana in 1959 and met Gamal Abdel Nasser and Kwame Nkrumah. In 1964, he spoke at the OAU conference in Egypt. He went to Tanzania and to Kenya where he met Oginga Odinga and Jomo Kenyatta. Back in New York Malcolm X related his experience: “As long as we think—as one of my good brothers mentioned out of the side of his mouth here a couple of Sundays ago—that we should get Mississippi straightened out before we worry about the Congo, you’ll never get Mississippi straightened out.” Prophetic words. Just this month the President of the United States warned against a “Jim Crow assault” on the voting rights of people of colour and the under-privileged that were won in 1965 after a long and hard civil rights struggle.
By the time the Bandung Conference was taking place, Frantz Fanon had already published Black Skin, White Masks and was to follow it up with A Dying Colonialism and The Wretched of the Earth. Walter Rodney’s How Europe Underdeveloped Africa would appear in 1972. There was an explosion of global awareness of Africa. Musicians like Miriam Makeba, Hugh Masekela, Letta Mbulu, and Caiphus Semenya and others became known in Europe and America as they raised awareness about apartheid. African fashion became the signature of the civil rights movement. On the African continent, the Second World Black and African Festival of Arts and Culture (Festac77) was held in Lagos, attracting 59 countries. Exhibits ranged from David Aradeon’s African architectural technology to work by the Chicago Africobra arts collective. The welcome given to the American diaspora contingent at the venue is testament to the sense of oneness that prevailed at the time.
Yet here we are in the new millennium facing identical existential crises. Palestine has lost over half the territory it had in 1966. The televised ethnic cleansing taking place in the country is openly supported by American aid. The Republic of South Africa has found that the end of apartheid may only have been the beginning of the struggle for human development. The country is just emerging from three days of looting and burning by impoverished citizens. Cuba is still under a US embargo and there was even an attempt to blockade medical supplies being shipped to Cuba for the fight against COVID.
Cold War tensions between China and the West have been revived with the United State’s growing opposition to China’s Belt and Road Initiative. China has remained faithful to the non-interference principle, to the extent of transacting business with African leaders without regard to that other principle, the observance of human rights.
While most African countries are nominally independent, this has not brought development as they had envisaged it. Now, as in 1966, the main economic activity is the export of raw commodities. Africa’s Asian partners in the Bandung Communiqué have long since moved out of the realm of what used to be called “The Third World”. Malaysia, at number 62 out of 189 countries listed on the Human Development Index, is ranked as a Very High Human Development Country. Indonesia, the host of the Bandung Conference, is in the High Human Development category, with a ranking of 107. India, which abandoned the spirit of Bandung, is a medium human development country (ranked 131) while Yugoslavia ceased to exist. Only eight African countries are highly developed, while 30 fall in the Low Human Development category. Within that category, Uganda slipped down one place in 1997 and is ranked 159.
Solidarity conferences have been replaced by aid conferences called by “donors”. They are no longer organised by activists like the Moroccan Mehdi Ben Barka who, together with Chu Tzu-chi of the People’s Republic of China, organized the Tricontinental Conference (Ben Barka was abducted and “disappeared” in 1965 before the conference took place.) or John Kale. Recent conferences have been organised by European heads of state or United Nations bodies. India and China organise their own conferences for Africa, having transitioned to the ranks of developed countries. Attending delegates are the residual wretched.
The India–Africa Forum Summit (IAFS) inaugurated in 2008 is scheduled to be held once every three years. The France-Africa Finance Summit is an initiative of French President Emmanuel Macron whose various remarks about Africa on his tour of the continent were perceived as racist and disparaging.
At the Forum on China-African Cooperation (FOCAC) in Johannesburg in 2015, China offered US$60 billion in development assistance, US$5 billion in the form of grants and the rest in loans. Attendance by African heads of state was higher than for the most recent African Union Conference; only six did not turn up (but were represented).
Attending delegates are the residual wretched.
The following year FOCAC was held in Beijing. On the first day, members of the American Congress issued a statement condemning China’s predatory lending to African and Asian countries. They argued that the recipient countries eventually wound up needing to be bailed out by the IMF, mostly with American money, thereby transferring American capital to China. For his part, the beleaguered president of economically battered Zimbabwe received the offer of another US$60 billion with fulsome gratitude, saying President Xi Jinping was doing what “we expected those who colonised us yesterday to do.”
The International Development Association for Africa: Heads of State Summit held on 15 July 2021 was a World Bank exercise. The agenda, according to their website, was “to highlight the importance of an ambitious and robust 20th replenishment of the International Development Association.” In other words, it was about increasing members’ debt. These days “cooperation” means aid – with strings attached – not solidarity. This year there will also be a virtual African Economic Conference (AEC) to discuss “Financing Africa’s post COVID-19 Development”. It is organised by the United Nations Development Programme, the African Development Bank and the Economic Commission for Africa.
Of the original anti-colonial activist countries of the 1960s, most Asian countries are in a position to offer solutions to economic questions; they compete in the global arena manufacturing pharmaceuticals and agricultural technology. China has mastered all of the foregoing as well as dominating foreign infrastructural development investment. The African bloc stands alone in not being organised enough to participate in the global discourse except as receivers of aid.
It is true that together with Latin American countries, resource-wealthy African countries have endured Western-engineered coups d’état and other debilitating interference but the dynamism of Gamal Abdel Nasser, Patrice Lumumba, Kwame Nkrumah and Amilcar Cabral is missing. In its place is the renewed use of the once hated colonial public order laws to quell dissent against corruption and repression.
These days “cooperation” means aid – with strings attached – not solidarity.
Two decades after Lumumba’s assassination, the less wealthy Burkina Faso lit the path to self-sufficiency before the country’s radical president, Captain Thomas Sankara, was assassinated with French connivance. Three months earlier, Sankara had called for the repudiation of debt at an Organisation of African Unity Conference. The delegates were stunned as can be seen from the expression on the late Kenneth Kaunda’s face.
The last African-Asian Conference organised by Africa may or may not be more of a memorial than the birth (re-birth?) of the solidarity movement. On the 50th anniversary of the original Bandung Conference, in 2005, Asian and African leaders met in Jakarta and Bandung to launch the New Asian-African Strategic Partnership (NAASP). They pledged to promote political, economic, and cultural cooperation between the two continents. An interesting outcome was their communiqué to the United Nations General Assembly and the Security Council concerning the development of Palestine. On the cultural front, there is talk of a third Festac.
Then there is Cuba, host of the 1966 Tricontinental Conference. Cuba ranks as a high human development country and has the highest doctor-patient ratio in the world—more than double the concentration in the US—and the most hospital beds per 10,000, nearly double what is available in the US. Cuba also has the highest pupil-teacher ratio in the world. Out of necessity due to the economic embargo imposed on it, and being unable to import fertilisers, Cuba pioneered vermiculture, a technique now in use globally. The country manufactures 80 per cent of its vaccines and has five COVID-19 vaccine candidates (two are being used under emergency licence like AstraZeneca, J&J and the other Western products). While Western pharmaceutical manufacturers took an early decision to bar Africa from manufacturing its vaccines on intellectual property grounds, Cuba is willing to transfer its technology to countries that need it. Funds should have been no object as the African continent is awash with COVID Emergency Response funds borrowed from the World Bank and the IMF. This is the kind of development that has been sought for the last sixty-plus years.
The dynamism of Gamal Abdel Nasser, Patrice Lumumba, Kwame Nkrumah and Amilcar Cabral is missing.
But Africa is not talking to Cuba about developing vaccine capacity. African leaders are waiting for UNICEF, appointed by the World Bank, to procure Western-made vaccines for them with funds they shall have to repay. In Uganda, delivery is expected in six months. Meanwhile, Norway and others are donating small amounts of vaccine, hardly enough to cover the twenty-nine million Ugandans that will give us immunity. The Indian-manufactured brand, AstraZeneca, is not recognised in Europe and will prevent recipients travelling there.
The Conscious Era began to wind down with the accession of leaders of independent African states more interested in the instant gratification of cash inflows than in the principles of the past. Yoweri Museveni had the opportunity to learn from the Cuban model when he met Castro in the early months of his rule. As it turned out, he was only wasting El Comandante’s time. Despite condemning his predecessors’ SDR177,500,000 debt to the IMF during the Bush War, Museveni’s SDR49,800,000 structural adjustment facility was signed on 15 Jun 1987—he had been in power for just eighteen months. Since then he has extended his credit to SDR1,606,275 (US$2,285,199.26) from the IMF alone. New debt to the World Bank (contracted since 2020) amounts to US$468,360,000.00. A separate COVID Debt owed to the World Bank amounts to US$300 million so far while over US$31 million is owed to the African Development Bank. These funds have not been used to purchase vaccines.
The Black Lives Matter movement has echoes of the Black Power movement of the 1960s. The movement is strong on showing solidarity with persecuted activists and victims of racism through online campaigns. BLM chapters are in solidarity with Ghanaian activists. Like the Tricontinental Institute, BLM has made attempts to educate, for example via the Pan-African Activist Sunday School. What is needed is another Pan-African conference organised by movements and individuals committed to human development.
Protests, Chaos and Uprisings: Lessons from South Africa’s Past
The recent riots are an attempt to force change after years of neglect by a state that has remained aloof and uninterested in the economic and social dispossession of the African majority.
The current upheavals across South Africa are ostensibly in response to former President Jacob Zuma’s arrest (or surrender) on 8 July 2021. But contrary to the misinformation in circulation, Zuma was not arrested on charges of corruption, racketeering and for diverting state assets and resources to a circle of cronies including the Gupta family. His reluctance to appear before the Zondo Commission led Deputy Chief Justice Raymond Zondo, the Chair, to issue a warrant for Zuma’s arrest for contempt of court.
Protest politics in South Africa have a long history and protests have been deployed differently at different historical moments. Whereas protests were an important vehicle during the fight against apartheid, their resurgence and propulsion to the centre of the struggles in post-apartheid South Africa has come as a surprise to many. These so-called “service delivery protests” are said to be caused by community dissatisfaction with municipal service delivery and to lack of communication between councils and councillors on the one hand, and citizens on the other.
The African National Congress-led (ANC) government has been facing growing protests associated with economic contraction, and the dual pressures of a recessionary environment and rising unemployment. But while their grievances may be valid, citizens’ protests have been perceived as having a negative impact on government programmes, businesses, investor confidence and jobs. Indeed, the ongoing service delivery protests could be regarded as a self-defeating strategy in those areas that are more susceptible to them, mostly the municipalities located in the peri-urban areas.
Historians and experts argue that these types of riots are not merely random acts of violence or people taking advantage of dire circumstances to steal and destroy property. They are, instead, a serious attempt to force change after years of neglect by politicians, media, and the general public.
This article takes a historical view of South Africa’s current upheaval and suggests that this moment has been a long time coming.
Service delivery in historical context
The pre-1994 era was prone to mass protests and defiance campaigns, some sporadic but most coordinated by social movements. They include the two defiance campaigns of 1952 and 1989, in Gauteng, the PAC (Pan Africanist Congress) defiance campaigns that led to the Sharpeville and Langa massacres in 1960 and, of course, the 1976 Soweto student uprisings. These coordinated mass protests had a clear aim — the abolition of the apartheid laws which were central to racial segregation, white supremacy and the oppression of the majority black population.
The violent service delivery protests, which are mostly prevalent at the local government level, have been associated with the results of apartheid: marginalisation of the majority black population with regard to basic needs, including housing, clean drinking water, proper sanitation, electricity, and access to healthcare and to infrastructure. After the end of apartheid, the new democratic government led by the ANC inherited an unequal society and was confronted with protests against lack of basic services and systemic corruption at local government level. Some scholars and analysts have suggested that such unrest epitomises the dispossession of African people, precluding them from complete liberation in their own land and subjecting them to continued subjugation by their white counterparts.
The ongoing service delivery protests could be regarded as a self-defeating strategy in those areas that are more susceptible to them.
Various communities throughout the country have resorted to violent riots, destroying schools, libraries and the houses of underperforming local government councillors. One opinion is that service delivery protests are exacerbated in the informal settlements where poverty and unemployment are high, and where there is a lack of technical and managerial skills within municipalities beset by corruption, poor financial management, and a lack of accountability on the part of local councillors and municipal officials.
Public protests did not feature as prominently during the initial part of the Mandela administration (1994–1999). The relative lull in public protests following the inauguration of the Mandela presidency in 1994 might have been a result of three key factors. One aspect is the negotiated settlement that gave rise to what is often characterised as a democratic dispensation, popularly and quite falsely described as a new era for South African people but which rapidly descended into mass frustration. In the neo-liberal euphoria of the “new democratic South Africa”, the strategic power of mass protest action that had helped to remove the apartheid regime struggled to find a new footing. Protests were suddenly viewed as acts against the state and were vigorously discouraged by an ANC government that was increasingly detached from the broader population. The ANC-led administration preferred to mobilise mass movements as cheerleaders of government programmes and as a result, when protests did take place, they were often state-managed to be peaceful, media-friendly events.
Another factor is that militant apartheid-era civic society formations were demobilised, which effectively weakened opposition to unpopular government policies and even brought newer NGOS into sharp disagreement with the government. Finally, the adoption of the pro-poor Reconstruction and Development Programme (RDP), which was aimed at redistributing wealth, was well received as a pacifying measure. However, in 1996, less than 24 months after the introduction of the RDP, the Growth, Employment and Redistribution (GEAR) macro-economic policy was adopted, signalling a shift to neoliberalism that prioritised the interests of big business over those of poor citizens. The adoption of GEAR led to the immediate loss of the few economic benefits citizens had received under the apartheid system.
Various social formations including the labour movement and civil society organisations accused the government of “selling out the people’s mandate”. Cost recovery was an essential part of GEAR, and this soon pitted indigent citizens against the government. While the shift to GEAR marked a radical change in how the government approached delivery of services and generated criticism from various quarters, it did not immediately trigger mass protest action mainly because the organisations championing workers’ and ordinary citizens’ rights were in alliance with the ANC. But the grounds were laid for future public protests.
In the neo-liberal euphoria of the “new democratic South Africa”, the strategic power of mass protest action that had helped to remove the apartheid regime struggled to find a new footing.
Some point to the FIFA World Cup (June–July 2010) as a tipping point. The country’s working poor came out in protest, angered by the commercialisation of municipal services and escalating poverty. Other factors that have been the cause of the so-called service delivery protests include the rising costs of basic services (clean drinking water, sanitation and electricity) as a result of the implementation of orthodox market policies, forced demolitions of informal settlements, disparities between luxury stadia and impoverished neighbourhoods and the gentrification brought on by the World Cup which has made inner-cities inaccessible to low-income informal traders.
This contradictory socio-economic policy framework has produced a highly fragmented regulatory structure, which has further compounded the socio-spatial unevenness of contemporary South Africa. The protracted low growth after the 2014 crash of commodity prices and various political scandals undermined the credibility of the ANC leadership. The national difficulties reverberated at the local level; after ruling Johannesburg for over two decades, the ANC lost the city to a coalition of opposition parties in 2016. The new mayor, Herman Mashaba, a self-styled libertarian entrepreneur, announced his commitment to “pro-poor” investments and to ending the arm’s length approach of municipal service providers.
Analysing the rationale behind the provision of basic services may help to clarify the uneasy categorisation of South African social policies and political discourse with respect to the neoliberal paradigm.
The current situation
In the first quarter of 2021, amidst the social and economic devastation wrought by the COVID-19 pandemic, the South African Treasury announced, and subsequently defended, its decision not to increase the country’s extensive social grant payments — that now reach 18 million impoverished citizens — above inflation. Treasury officials have argued that a bigger increase in social welfare protection is simply not currently feasible given the country’s rapidly rising public debt — which has now breached the 80 per cent of debt-to-GDP ratio threshold — and investor demands for fiscal consolidation. This type of fiscal restraint is unfolding in a context of heightened wealth inequality and an official unemployment rate now above 30 per cent.
And, as is often the case — whether they have been peaceful, organised, or not — protesters have been largely viewed as looters, rioters and thugs. Feelings of righteous anger following a year of lockdown, precarious livelihoods, escalating state aggression, and hostile and often deadly policing are bound to have been co-opted by thuggish elements. But the dangerous shades of ethno-nationalism that originally seemed to fuel the riots cannot be left unexamined as they have an impact on how we think about the protests, just as terms like “uprising” and “upheaval” offer ways to think about the unrest as indications of a far deeper social, economic and political rupture.
The adoption of GEAR led to the immediate loss of the few economic benefits citizens had received under the apartheid system.
Reducing the unrest to a “looting spree” also averts attention from a state that has for 27 years been aloof and not interested in recalibrating the economic and social dispossession of the African majority. While President Ramaphosa seems lethargic and tone-deaf, he is no different from his predecessors in insisting on market-led policies, foreign-investor largesse and failed non-distributive economic policies. Add to this the small matter of the “missing” R500 billion. In April 2020, a stimulus package of 500 billion rand was announced. The money was meant to augment the existing social safety net that provides 11.3 million South Africans with monthly assistance for food and other social services. The Auditor-General has described the expenditure as irregular, noting the wrongful diversion of some of the funds to state employees through contracts. To date, the hectoring tone adopted by most public officials regarding this matter shows no sense of irony or self-awareness that their own hands are dirty.
Many analysts and observers inside and outside South Africa have predicted this moment for over fifteen years, evoking the Arab Spring as a cautionary tale. South Africa is not the only country going through a seismic shift. Haiti, Cuba, Swaziland, Zimbabwe, Myanmar, Mozambique and Hong Kong are all facing profound upheavals. But while South Africa elicits deep sentiments across the world, it is not immune to the complexities of state formation, fractured class interests and a leadership vested in maintaining the status quo.
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