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Unfair Trade: How Dutch Rose Growers Avoid Paying Taxes in Kenya

14 min read.

Dutch growers who dominate the flower sector in Kenya were already in the news because of environmental violations and poor employment conditions. Now, as investigative journalists Romy van der Burgh and Linda van der Pol found out, they are also being accused of avoiding taxation in Kenya while proudly wearing the “fair trade” badge.

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Unfair Trade: How Dutch Rose Growers Avoid Paying Taxes in Kenya
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A wide tarmac road winds around the freshwater Lake Naivasha, about a hundred kilometers away from the capital city of Nairobi. A stream of heavy traffic manoeuvres from one side of the road to the other in order to avoid the large potholes – sometimes half a meter deep. Drivers of matatus (minibuses) often prefer the dirt tracks on either side of the road, where the chance of a tyre blowout is less likely. Occasionally, individuals are spotted putting their lives at risk pushing a wheelbarrow with stones onto the road to seal a pothole.

The condition of Moi South Lake Road stands in contrast with the well-paved roads that branch from it and lead into fenced compounds manned by armed guards. The flag of Dutch professional football club, Feyenoord, flutters behind one of those gates. The flower farms that are nestled in between Moi South Lake Road and Lake Naivasha are mostly owned by Dutch farmers and appear to be in perfect condition.

In the Netherlands, rose cultivation has decreased spectacularly in recent decades. Between 2000 and 2019, the area under rose cultivation in the Netherlands dropped from 932 hectares to 200 hectares. Many Dutch growers moved their companies to African countries such as Kenya and Ethiopia. Labour, energy, water and land prices are lower in Eastern Africa than the Netherlands and the Eastern Africa climate is favourable for rose cultivation. Roses thrive in sunlight and warmth. The cut flower has since become the largest export product in Kenya and the sector offers work to 500,000 Kenyans. However, the flower industry in Kenya has faced criticism in recent years due to poor working conditions, the large-scale use of toxic pesticides, and the negative impact on the environment, including the pollution of Lake Naivasha.

In light of these past controversies, a new one arises: Flower companies are avoiding their tax liability in Kenya, the Dutch investigative journalism platform Investico revealed. A search through registrations and annual reports show us how flower companies are evading local taxes through export companies in the Netherlands and trusts located in tax havens such as the Cayman and British Virgin Islands, Liechtenstein and Jersey. Others sell their revenue to sister companies in Dubai for an artificially low price, which means that profits do not fall at the Kenyan farm, but at a foreign entity where the profit tax is also much lower than in Kenya.

Of the 32 companies we investigated, of which at least 13 have Dutch origins, 45 per cent can be linked to tax havens. Almost all Dutch growers who went to Kenya transferred part of their business to a Dutch company. Companies that set up an international group of several companies can transfer and settle profits and losses within that group. This way they can ensure that the profit is as low as possible in the country with the highest tax rate. Because Kenya has a high profit tax, this model is attractive for companies that operate there. The Netherlands has tax treaties with many other countries. This makes it easier to channel money through the Netherlands to a tax haven than from Kenya.

While the growers are avoiding paying tax in a country like Kenya, where 36 per cent of the population lives in poverty, they still call their business “fair trade”. In fact, more than half of all the companies that we investigated have a Fairtrade certificate. Fairtrade, a premium label that stands for fair trade between the West and African countries, presents a blind spot for tax avoidance. “Fair trade – that is an oxymoron,” says Alvin Mosioma, director of Tax Justice Network Africa. “There is nothing fair about this trade. Not to the workers who cut the flowers, nor to the government.”

***

In a small hall at Oserian Primary School in Naivasha, parents scramble to get hold of plastic chairs with “Oserian Church” written on the back of the chairs. They have been borrowed from a nearby church and placed in neat rows. During this ceremony, the ten best performing students of the national exam from last year are being honoured: one of them may even join the top five hundred students in the country and soon journalists will swarm around him for soundbites. But first the school principal opens the proceedings with a prayer and in one breath he thanks God and the Oserian flower company for the brilliance of the students.

Oserian is a huge company with Dutch roots: it was founded in 1969 by ex-marine Hans Zwager and is now one of the largest exporters of roses and cut flowers in Africa. A million roses are processed every day. A portion is transported by air to Schiphol to be traded at the auction in Aalsmeer (Netherlands); the rest is delivered directly to European supermarkets such as Sainsbury’s. More than four thousand employees work at the nursery, and hundreds at the rest of Oserian’s estate.

“Fair trade – that is an oxymoron,” says Alvin Mosioma, director of Tax Justice Network Africa. “There is nothing fair about this trade. Not to the workers who cut the flowers, nor to the government.”

Oserian is the banner of the Kenyan flower industry. It puts a lot of effort into conserving wildlife and on its grounds are schools, a hospital and houses for the staff. Founder Hans Zwager was decorated by recently deceased former president Daniel Arap Moi for his pioneering work in the Kenyan horticulture industry and for socially responsible entrepreneurship.

From the Moi South Lake Road there is a view of a palace with white spiers that protrude above the tree line. It once belonged to the colonial British family Delamère and is now occupied by the Zwager family.

“Oh, you disappear in life there,” says Fredrick, 46, a former employee of Oserian, as he digs into a plate of fish. Cafe Hollywood, located a few kilometres from the flower nursery, is full in the evening. The space is heated by charcoal mounds on which freshly caught tilapias are baked. “Oserian provides all facilities. When I was on vacation, I didn’t know where to look, as if there were no more worlds outside the company.”

For nearly twenty years, Fredrick ensured that the rose buds were fertilized. He now works for himself: he repairs and rents out bicycles. Fredrick initially worked for the flower company for 12,000 Kenya shillings (around 110 euros) a month, but people with that salary were slowly being phased out, he says. New employees earn half that amount. This figure is confirmed the next morning when we chance upon a new rose cutter at Oserian and give her a lift. She confesses that she only gets 59 euros for a month’s work. A third employee, whom we speak to when we deviate from the route during a tightly guided tour of the sorting center, speaks of the same amount – which is roughly equal to the minimum wage for unskilled personnel in Kenya. However, Mary Kinyua, the administrative director of Oserian, claims that the average salary of an Oserian worker is 167 euros.

In 2017, Oserian split the company on paper in two. Some activities, such as the packing of roses, were transferred to a new company. That company is evading the sector CAO (Collective Labour Agreement) that requires a salary of 10,000 shillings (91 euros). In practice, there appears to be little difference in employees from one or the other company. In the pale-green greenhouses, which extend as far as you can see, employees of both companies interact. Both groups do not come close to the living wage calculated by Hivos in Naivasha, which is 2.852 euros per year. Nevertheless, Fairtrade currently agrees with both the minimum wage and the sector CAO.

Dutch flower farmers moved to Africa because of the prosperity that was promised. But in Kenya that landscape has since changed considerably; flower cultivation is also in decline there. “My sixteen hectares in the Netherlands yields more than the seventy in Kenya,” says flower farmer Arie van den Berg, who is farming both in the Netherlands and in Kenya. Dutch roses in Europe are still available for a few euros every Valentine’s Day at the florist, but African roses are sold at Lidl (a European supermarket chain) for a dumping price of 1.99 euros per bunch. Sometimes auction prices are so low that it is more beneficial to destroy a load of roses than having to pay for the flight costs to send it to the auction in the Dutch Westland that revolves around horticulture.

Competition is increasing worldwide and African countries are trying to outdo each other: Ethiopia has begun to compete by offering so-called tax holidays – and there is no question of a minimum wage at all. Another problem is the tax, which is high in Kenya for foreign entrepreneurs: the corporation tax is 37.5 per cent. In a market where every cent counts, some companies do everything they can to get out of that tax burden.

A few years ago, in 2012, Oserian FC and Karuturi Sports football teams, sponsored and named after two competing rose nurseries, competed against each other in the Premier League, the highest football division in Kenya. The “derby of Naivasha” was a crowd puller. Barely two years after this high point, fortunes took a dramatic turn and the players of Karuturi Sports had to hang up their boots in 2014. The Karuturi site has since been abandoned. The vacant greenhouses stretch hundreds of meters. The iron structures occupy one’s view for as far as the eye can see, interrupted only by the occasional individual plucking a stray rose from the wild growing plants in the abandoned greenhouses.

Dutch flower farmers moved to Africa because of the prosperity that was promised. But in Kenya that landscape has since changed considerably; flower cultivation is also in decline there.

Five years after the bankruptcy, a former employee still lives in a hut at the entrance of the company premises – hoping that he will be paid the three-month wages that he is owed, plus his accrued pension. “In the last months before the nursery closed, the working conditions were terrible. There was no longer any protection against the pesticides and the face masks we had on were not even really suitable for dust, let alone poison,” he says.

But the closure of Karuturi was not due to its pesticide use. The company was found guilty of evading more than 18 million euros in taxes. Although Karuturi and the tax authorities came to a settlement of 4 million euros, it turned out to be enough to bankrupt the company. Roses were systematically exported at an extremely low price to their own company in Dubai, from where they were further distributed throughout the market. The Kenyan branch turned into a loss, while the branch turned green figures in the Emirates. But Karuturi paid no tax on this profit: the United Arab Emirates have no income, profit, or dividend taxes and no import duties on transit goods. While 37.5 per cent tax is charged in Kenya, tax in Dubai is 0 per cent.

Dubai is a new tax haven. Free zones, where the official language is English and foreign entrepreneurs may be the full owners of a company, are advancing. Three Dutch nurseries in Kenya have already found a home in the Emirates, according to various annual reports from the Dutch Chamber of Commerce, including the large Oserian, which opened a logistics center, Airflo FZE (Free Zone Enterprise), at Dubai airport.

In addition to low taxes, Dubai offers far-reaching confidentiality to business owners: annual reports are not mandatory and requesting them is impossible. That is why we cannot verify whether Oserian applies the same rulebook as Karuturi. Karuturi was ultimately unsuccessful because it had to disclose more information as a listed company in India. The Dutch companies do not have to disclose financial records to the public because they are not registered on the stock exchange.

***

We track the offshore trade and walk of Dutch companies for the first time via the FlowerCompanies.com database, founded by a Dutch entrepreneur. Out of 21 African companies, the country of establishment does not state Kenya or Ethiopia, but the Cayman Islands, a sunny place, but without a single mega farm.

“No idea why this is, how crazy. This is a bug in the website,” the founder says when we have him on the line. After a few hours, the addresses were removed from the website, but we discovered through other means that the majority of those companies do indeed have branches in tax havens such as the Cayman Islands. It is more difficult to prove that they pay little or no tax in Kenya.

By law, all Kenyan residents have the right to request data from government agencies and private companies. Because we are not Kenyan residents, a tax law student in Nairobi helped us to view annual reports of Dutch growers in Kenya. During his first visit to the Kenya Chamber of Commerce, he was summoned to communicate his choices via the internet. During his second visit, he was only given an empty file. During his third visit, he finally got the Oserian file. He paid more than six euros for inspecting it.

Taking photos is not allowed at the Chamber of Commerce and security cameras dissuade visitors from doing so. Our “informant” is reluctant to use a hidden camera. Calling the Netherlands, he browses through the book, which contains an independent Deloitte audit, in which Oserian’s revenue for 2013 is estimated at 2.7 million euros. Below the line, only 3,910 euros of profit remains on their own financial statements, of which Oserian paid just under 1,041 euros to the tax authorities.

We wrote, in accordance with the law, a letter to the Kenya Chamber of Commerce, asking for copies of the file – but the papers that the Kenyan student saw a few days before suddenly got “lost”. The company also refuses to transfer any information about its finances.

The Zwager family, owner of Oserian, built a whole web of companies around the nursery that together cover the entire chain, from breeding to sales and distribution. A company in the Netherlands is concerned with “sales and marketing of cut flowers”. The Dutch company of Peter Zwager generated a gross turnover of 47 million euros in 2010. Most employees, according to the LinkedIn reference, simply work from Kenya. That cannot be otherwise, because there are no workplaces in Amsterdam: the company was transferred to Align trust office.

The ultimate stakeholder in all these “Dutch” companies is Mavuno Group Holding Company Establishment, a trust in tax haven Liechtenstein, which is again managed by a trust office. No country in Europe charges as little tax as Liechtenstein, and above all, it is not open to public scrutiny. The only two shareholders that we identify are a company at the same address in the principality, and one near the picturesque harbour of Road Town, the capital of the British Virgin Islands, which in turn owns a whole range of companies, including a Florida real estate company.

Other branches of Oserian also end up vanishing in the smoke of vague shareholders and directors on tropical islands where neither annual reports nor ultimate owners are made public. We identify New Zealand, the Bahamas and Jersey.

“We do not sell anything in Liechtenstein, we do not trade there, we certainly do not get a tax advantage there – it is just a trust,” explains administrative director Mary Kinyua. “The owner of Oserian, Peter Zwager, puts his assets in.” When asked why Oserian in Kenya only makes about 2,000 euros in profit, she has no answer.

“This is super signing. It is very clear that we are trying to evade taxes here,” says Vincent Kiezebrink of the Research Foundation for Multinational Enterprises (SOMO) when we present the drawn-up corporate structure of Oserian. “It looks like she can try to get the most out of it,” he chuckles. “All tax ports come by. You don’t need so many havens to evade tax. Many large companies nowadays invest in their public image: they no longer settle in the Bahamas but in lesser known tax havens such as Ireland or Cyprus, because they still claim to levy about 15 per cent tax. I do not see that consciousness here. It would not surprise me if this company thinks: ‘The closer to zero, the better.’”

We wrote, in accordance with the law, a letter to the Kenya Chamber of Commerce, asking for copies of the file – but the papers that the Kenyan student saw a few days before suddenly got “lost”.

A world full of crafty lawyers and accountants unfolds around emigrating farmers who show them around in Kenya and, where necessary, help them with agricultural land and tax constructions. The fulcrum in this is the law firm Raffman Dhanji Elms & Virdee based in Nairobi. On its website, the law firm states: “The Firm has been heavily involved in advising the flower and horticultural industries over the last decade in particular with foreign investment into this country and the methods to acquire land and the corporate structures required. This has led to joint ventures between Kenyan and overseas investors and the protecting and balancing of the respective interests.”

Controversial city lawyer Guy Spencer Elms was one of the three names given to us. He was once infamously associated with a multitude of corruption scandals in Kenya. Nonetheless, he has never been convicted and maintains in his defence of a plot by a criminal cartel to always paint his image in a bad light. Guy Spencer Elms says he arranges the tax planning of various Dutch nurseries himself, and he also helps farmers with agricultural land transactions. When we present him with the offshore constructions, he says: “People immediately think of something bad like hearing about a trust in Liechtenstein or the British Virgin Islands, but often it is just a way of’ estate planning. Trusts are not necessarily a bad thing “.

***

“Tax is Life!” reads the slogan celebrating 100 years of income tax in Kenya. The luxurious Safari Park Hotel in Nairobi is the location of the tax conference organised by the University of Nairobi. Joan, a student, takes a credit note from her bag, and points to the 16 per cent VAT. “This is why I think tax is so important. Taxes can pull Kenya out of the mud,” she says.

Students speak of tax obligations in glowing terms; they see it as the future. Where that change must take place is something that everyone agrees with: the government. Tax guru Attiya Waris, a professor of tax law, points out the loopholes in tax collection throughout Africa. According to the OECD, Africa misses 46 billion euros in tax revenues every year from evasive multinationals. The United Nations estimates that amount to be 92 billion euros. Waris did research for a long time on flower companies in the country. “Kenya transfers its land to foreign companies, but the profit they make falls elsewhere. It is not a win-win situation,” she says.

Other branches of Oserian also end up vanishing in the smoke of vague shareholders and directors on tropical islands where neither annual reports nor ultimate owners are made public. We identify New Zealand, the Bahamas and Jersey.

The Dutch company Berg Roses received 1.8 million in income tax with retroactive effect. The company was accused by the Kenyan tax authorities of conspiring with its parent company in the Netherlands. The Kenyan branch would sell most of its flowers for extremely low prices to the parent company in the Netherlands so that the profit is not realised in Kenya, but in the Netherlands.

The lawsuit is still ongoing because Van den Berg challenged the matter. “We ensure that we make fifty percent profit in Kenya and fifty percent in the Netherlands. We think that is fair. If we lose this case, it will be the death blow for our company.” Van den Berg knows of companies that channel the profit away to offshore trusts and, according to him, we never hear about it.

“Not only in the sector, but also in government is it only in terms of profit, not what is good for the country,” says tax expert Waris at the end of the celebration. She pulls her colourful scarf a little tighter around her shoulders and continues in a whisper when a duo of armed guards walk past. It should be a moral obligation to pay taxes in a country whose land, water and people you use, she says.

But monitoring the flower industry often leaves much to be desired because business and the political elite are intertwined – a euphemism for corruption. That became clear, for example, in the Paradise Papers – leaked files from the law firm Appleby – which show that Sally Jemngetich Kosgei, the former Head of Civil Service, and owner of a flower nursery in Kenya, bought a luxurious apartment in London through an offshore company based in Mauritius. Kosgei told the International Consortium of Investigative Journalists (ICIJ) that she bought the apartment with her personal funds.

Fair trade organisations do not see tax ethics as their responsibility. The cover page of a recent issue of Fairtrade International is adorned with a photo of the Waridi Limited nursery, which is almost entirely in the hands of a company in the Virgin Islands. Almost all Dutch nurseries in Kenya are in possession of the Fair Trade quality mark, which stands for good conditions.

According to the OECD, Africa misses 46 billion euros in tax revenues every year from evasive multinationals. The United Nations estimates that amount to be 92 billion euros.

“Oserian sells 14 per cent of its production as a Fair Trade rose,” says Tara Scally, the spokesperson for Fair Trade Netherlands. Part of the proceeds from Fair Trade roses, which are often more expensive, are returned to a pot that employees of the farm can dispose of themselves: for example, they invest it in education or in the salary of a doctor.

Fairtrade’s focus is on the position of farmers and workers, says Scally. Tax constructions are not part of this. Moreover, tax research requires a lot of specialist knowledge and financial resources, she adds. She fears that companies will no longer participate in the programme if they are required to disclose what is in their books. “The consequence may be that workers lose part of their income. We would rather not see that.”

A ridiculous line of reasoning, counters Alvin Mosioma, founder and director of Tax Justice Network Africa. “Wear a Fair Trade label while not paying your taxes? That is an oxymoron.” Mosioma regards Fair Trade as a marketing gimmick:

“People don’t buy a rose with blood on it. Social responsibility is part of the brand of these companies. They build hospitals, schools. That gives the consumer who buys such a rose a good feeling – the idea that they are making a contribution to the development of such a country. Nothing is further from the truth. These people work under very precarious conditions for a minimum wage. It is rather paternalistic: you give them jobs, and a school. But you also buy people around with it. They are happy with such an investment. ‘Look,’ they say to the government, ‘this company takes care of us, the government does not do that’. No, that’s because the government has no money for that, and also because the same companies are engaged in aggressive tax evasion.”

This article was previously published in the Dutch language in the Netherlands in the following papers/ online: (frontpage) daily paper Trouw, weekly paper De Groene Amsterdammer and online investigative journalism platform Investico

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Romy van der Burgh (@BurghRomy) is an investigative freelance journalist. Linda van der Pol (@lindapolski) is a cultural historian and a freelance journalist based in The Netherlands.

Politics

The Myth That Is Plastic Waste Recycling in Kenya

The quantities of recycled plastic in Kenya remain insignificant, but the long-term ecological cost of disposing plastic waste in the environment will be immeasurable.

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The Myth That Is Plastic Waste Recycling in Kenya
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One aspect of modern Kenyan urban living that takes getting used to are the regular, well-timed garbage collection days. Miss your day and you will have to keep the trash a week longer awaiting the next collection date when the beaten-up lorries full of garbage labour through city estates in mid-morning collecting the waste produced by city dwellers.

Should you find yourself in the central business district at around midnight, you may run into these rickety trucks collecting food waste from city restaurants, discarded cartons from offices, and empty drink cans from the city’s clubs that they ferry to the few landfills scattered around the city.

The barely roadworthy trucks are part of the more than 205 lorries working at the city’s many collection points in a hectic bid to keep Nairobi County hygienic. So profitable is the waste collection business that private contractors and cartels have infiltrated the trade.

In Nairobi alone, the county’s garbage collection service is complemented by nearly 150 private sector waste operators who also serve this city of over 4 million residents. Private investments have done a lot but not nearly enough to address the garbage crisis that plagues Kenya’s towns and cities.

Kenya’s urban households produce the bulk of the country’s solid waste, including a major share of the estimated 24 million plastic bags that are used and discarded every month. A significant portion of the plastic waste ends up in dumpsites alongside scrap metal, paper materials, glassware, and medical and toxic waste. Plastic waste constitutes a significant portion of this trash, and poses the biggest challenge to solid waste management in Kenya.

According to the International Union for Conservation of Nature (IUCN), 73 per cent of all plastic waste generated in Kenya goes uncollected. The National Environment Management Authority (NEMA) reports that between 2 and 8 per cent of the plastic waste is recycled while the rest is disposed of at dumpsites such as Dandora and Ruai in Nairobi, Kachok in Kisumu, and Kibarani at the coast. In Mombasa alone, some 3.7 kilogrammes of per capita plastic waste end up in the ocean, contributing to the 1,300 billion pieces of plastic that find their way into the Indian Ocean every year. Experts estimate that there will be more plastic than fish species in all the oceans globally by 2025.

Kenya banned plastic carrier bags in 2017, at the same time that the United Nations Environment Programme was launching the Clean Seas campaign to reduce marine litter. From June 2020, visitors entering game reserves, forests, beaches, protected areas and conservancies are no longer allowed to carry plastic water bottles, cups, cutlery, plates, drinking straws, and packaging within the protected areas.

On the production end, there are industry-led plastics initiatives such as the Kenya Plastic Action Plan and the creation of the Kenya Extended Producer Responsibility Organization (KEPRO), whose mandate is to ensure that plastics are mapped, ferried, sorted, and where possible, put back into circulation. Given the low garbage collection rates, and the even lower sorting rates, recycling has been misleadingly touted as the key to managing plastic waste.

For context, the cumulative global plastic waste produced since 1950 is estimated at 8.3 billion tonnes — half of which was produced in the last 13 years alone — at an average of 300 million tonnes annually.

In Kenya recycling doesn’t work    

Recycling has its limitations. Despite being cited as a major solution to the problem of plastic waste, a solution that has been taken up by 34 of the 54 African states,  numerous reports have proven that it costs more to recycle than to dispose of the waste. That of course begs the question: costlier for whom?

While disposing plastic is cheaper than recycling, the long-term ecological cost to Kenyans living close to landfills and downstream is provably much higher. Kenyan plastic manufacturers are in the business for profit and, for the most part, recycling does not offer them value for money.

According to Kenya’s PET plastic industry’s joint self-regulation effort, once plastic waste enters the recycling conveyer, it is assembled and packed into bales that are sold as industrial goods and sent to the dozens of recycling plants around the country to be sorted by quality, industrial variety, texture and colour. The waste is then shredded, sanitized, melted down, and moulded into smaller, smoother plastic pellets.

These pellets, known as nurdles, are bought and once again melted down and fashioned into other plastic products, ready for re-use by industries. This form of recycling is the optimal pathway for plastic waste, but it rarely is feasible. Recycling plastic waste is a lengthy and costly process that is avoided by many plastic producers.

To put it in context, less than 45 per cent of Nairobi’s overall waste is recycled, most of it undergoing what is referred to as down-cycling, open recycling, or cascaded recycling.

Cascaded recycling refers to the process of using recycled plastic waste to make an item of a lower quality than the original product. These items typically have reduced recycling potential, which destines them for the landfill after use. Models of cascaded recycling in Kenya’s informal settlements therefore turn the triangular recycling loop into a one-way direction to an incinerator or landfill.

Recycling plastic waste is a lengthy and costly process that is avoided by many plastic producers.

Global research led by plastics expert Dr Roland Geyer claims that only 9 per cent of all the plastic waste ever produced has been recycled. Kenya’s cascaded recycling rates are harder to quantify but an authoritative plastics report states that only 14 per cent of global plastic packaging waste was collected for recycling in 2013. Only 8 per cent of that amount was down-cycled, of which 4 per cent atrophied during the process while only 2 per cent was recycled into a product of equal or higher value.

Even locally, recycling plastic is a costly process and sorting it, many experts assert, is unfeasible, which means that there is no way out when dealing with plastic waste other than banning the production and use of plastics.

Kenya and the global dumping of plastic waste 

The non-feasibility of recycling plastic waste has been an open secret among plastics industry insiders since as far back as the 1970s. As early as 1973, senior executives of plastics multinationals had already ruled out plastic waste recycling on a large scale. Instead, these multinationals paid for misleading big-budget advertisements extolling the virtues of plastic products, and lying about the ease with which plastics could be recycled for other uses, while also placing the responsibility of recycling or disposing plastic waste on the end-user. However, the mounds of plastic waste that are now an eyesore in many urban areas belie the claim that recycling is the solution.

Old industry memos and library archives show that as far back as the mid-1980s Kenyan scholars like Kamau Hezron Mwangi had begun to call for a serious look into the efficacy of recycling  while, in the mid-1990s, researcher Dr J.N. Muthotho and his team demanded for greater research across specific plastic products supply chains. The growing concerns linked to plastic products, their quality, disposability and the economics of the industry paint an image of an industry that has always been well aware of the problems caused by plastic waste but has lacked the motivation to address the issue. In an increasingly consumerist society, plastic has continued to be affordable, readily available, cheap, convenient, and yet very difficult to dispose of.

Ending Kenya’s relationship with plastic

A radical behavioural shift by producers, packaging firms and end-users is required in order to rid the Kenyan environment of plastic pollution. The ban on plastic carrier bags has had an estimated 80 per cent efficacy rate. Industry insiders including manufacturers and distributors now say that the ban should be extended to disposable tableware, plastic straws, plates and cutlery.

The mounds of plastic waste that are now an eyesore in many urban areas belie the claim that recycling is the solution.

This, the stakeholders say, will reduce the amount of single-use plastic in landfills, reduce waste, minimize animal deaths, improve human safety, and save our water systems. However, a concerted effort is needed to ban single-use plastic bottles, plastic straws, and plastic packaging and replace them with organic, biodegradable plastic (BDP) alternatives.

Most BDP products in the Kenyan market are made of thermoplastic starch that uses a polyester similar in material strength to plastic. Currently there is only one manufacturer in the country. However, researchers are coming closer to finding organic alternatives to plastics.

Reimagining a post-plastic country

In Kenya, the stakeholders have to begin to reimagine new models of ridding the country of plastic waste in the everyday life and habits of Kenyan citizens. Nairobi and its environs alone is estimated to produce between 2,400 and 3,000 tonnes of general waste every single day, an estimated 20 per cent of which is plastic waste.

“People don’t want to stop using plastic. It is cheap and easy to use so I understand why people like [it]”, says Kinuthia, an unlicensed collector in Uthiru.

A consumer culture that creates an ever-increasing demand and use of plastic products ought to be overhauled, reimagined, and refashioned.

Even within economic circles, the focus on GDP as a measure of economic progress while ignoring the social, ecological and cultural impacts is increasingly frowned upon. As far back as the late 1980s, the World Bank President Barber Conable recognised that the ecological cost of economic production has to be accounted for. “Current calculations ignore the degradation of the natural-resource base and view the sales of nonrenewable resources entirely as income . . . A better way must be found.” he wrote.

Kenya’s plastic producers and importers have to begin to consider how to shift the society away from plastic products and integrate the alternatives in the marketplace. Kenyans have the opportunity to have a national conversation around local plastic producers and importers, if we are to work effectively towards phasing out all plastic products sold in the market.

With imports valued at an estimated US$883 million, Kenya’s plastics sector has a critical duty to phase out plastic products so as to, at the very least, ensure that the end-user does not have to choose between affordability, disposability, and sustainability of the packaging when making a purchasing decision.

The plastic waste crisis calls for Kenyans to design products with their life cycle and their end in mind at the outset. Therefore, designing products with their utility and disposal in mind is critical. For example, utilizing snap-together parts in appliances minimizes the use of screws, making the end product easier to disassemble, recover, and recycle at the end. This evolution in design proactively shapes the journey of a product in order to ensure that as much material as possible is recycled back into the production conveyer.

Even within economic circles, the focus on GDP as a measure of economic progress while ignoring the social, ecological and cultural impacts is increasingly frowned upon.

On 24 March 2021, Kenya’s Centre for Environment Justice and Development (CEJD) held a consultative forum with 24 grassroots Civil Society Organisations in the waste management sector with support from Break Free From Plastic. The members used the existing legislative framework that bans single-use plastic carrier bags in the country to launch the CSOs for Zero Plastics in Kenya network that integrates the input of stakeholders in the affected sectors. Still, this push by CSOs towards a wider ban seems to have created a policy tension between the National Environment Management Authority (NEMA) and multi-nationals that rely on plastic products for packaging.

In 2018, NEMA tried to extend the ban on plastic carrier bags to single-use plastic containers such as bottles made of PET. However, the companies involved in the production of PET products instead proposed a self-regulated, industry-led solution under PETCO.

Despite NEMA’s pledge in 2018 to make PETCO membership mandatory for all plastic industry players, its membership remains voluntary. This lapse has slowed the acceptance of membership by stakeholders and by industry players and minimized compliance. Kenya currently has eight PET converters, but only one of them is a PETCO member. Moreover, an estimated 900 bottling plants use PET containers but only eight (1 per cent) are members of PETCO.

The future of a post-plastic Kenya requires consolidation of existing industry efforts, ramping up scientific research on alternatives, a shift in consumer behaviour and robust incremental policies in enforcing the bans and restrictions. Only then can Kenya secure its ecology, manage the diverse interests of the stakeholders involved and still manage its ecological health with posterity in mind.

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Politics

Microplastics: the Destruction of Marine Life and the Blue Economy

Even as Kenya’s land-based resources continue to shrink because of a rapidly growing population, microplastic pollution of Kenya’s Indian Ocean is putting in jeopardy the country’s maritime resources.

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Microplastics: the Destruction of Marine Life and the Blue Economy
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Five scientists, Joyce Kerubo, John M. Onyari and Agnes Muthumbi from the University of Nairobi, Deborah Robertson-Andersson from the University of Kwa Zulu Natal, and Edward Ndirui Kimani from the Kenya Marine and Fisheries Research Institute (KMFRI), undertook a research study last year that returned a harsh verdict of a high presence of microplastics (MPs) in Kenya’s Indian Ocean.

MPs are plastic pellets, fragments, and fibres that enter the environment and are less than 5mm in dimension. The primary sources of MPs are vehicle tyres, synthetic textiles, paints, personal care products, and plastic products that have disintegrated into tiny particles because of environmental turbulence.

The study by the five scientists, Microplastic Polymers in Surface Waters and Sediments in the Creeks along the Kenya Coast, Western Indian Ocean (WIO), identified four polymer types in Kenya’s Indian Ocean. High-density polythene is the most abundant at 38.3 per cent, followed by polypropylene (34.6 per cent), low-density polythene (27.1 per cent), and medium density polythene (17.1 per cent). The research findings were published in the European Journal of Sustainable Development Research on 18 October 2021.

The concentration of MPs in the surface waters along the Kenyan coastline was higher compared to other parts of the world, the study warned. The findings of the study also confirmed those of previous studies on the presence of MPs in Kenya’s Indian Ocean.

The scientists also cautioned that the documented information on the specific polymeric composition of these particles in seawater and in the sediments along the Kenyan coast was insufficient. The findings, the study offered, demonstrated the extent of exposure to MPs in Kenya’s ocean ecosystems, therefore justifying policy intervention in the management and disposal of plastic waste, and the protection of the ocean’s rich biodiversity for sustainable development.

It drew testing samples from three creeks: Tudor and Port Reitz in Mombasa County and Mida in Kilifi County. Tudor Creek covers an area of approximately 20 square kilometres and is fed by two seasonal rivers—Kombeni and Tsalu—that originate around Mariakani, about 32 kilometres northwest of Mombasa. The two seasonal rivers collect runoff containing plastic and other waste from the mainland and discharge it into the creek.

Surrounding Tudor creek are several densely populated informal settlements that include Mishomoroni and Mikindani that may add MPs to the ocean. According to the study findings, the majority of the MPs were fibrous materials from textiles and ropes, probably from wastewater from washing clothes and from fishing activities.

Other key facilities that could contribute to the pollution include shipping activities at the Port of Mombasa, meat processing at Kenya Meat Commission (KMC), Coast General Hospital, Container Freight Stations (CFSs) and Kipevu Power Station. Before it was rehabilitated, Mombasa County Government dumped a lot of waste at Kibarani, near the two creeks and just next to the ocean.

Tudor Creek recorded the highest pollution, also as a result of rain runoff from Kongowea market and Muoroto slums, and Mikindani sewage effluent. Moreover, according to the study, which could, however, not determine the proportions, many industries on Mombasa Island release their effluent into the sea, increasing MPs in sediments.

Mida Creek was used as a control in the study as it does not have river inflows. In addition, the creek is in a marine reserve that forms part of the Watamu Marine National Park and Reserve. However, MPs from different polymers were found in sediment and surface water samples from all the sites—including Mida Creek which is within Watamu National Marine Reserve—which the researchers had thought to be safe from pollution by industrial effluent, sewage disposal, and fishing activities.

Many industries on Mombasa Island release their effluent into the sea, increasing MPs in sediments.

The study attributed the pollution at Mida Creek to high tourism activities, boat and dhow fishing activities, densely populated villages such as Dabaso, Ngala, and Kirepwe and the mangrove vegetation cover of tall trees that binds soil particles thus favouring the accumulation of MPs.

According to a United Nations Environment Programme (UNEP) report released in March 2019, plastic—which makes up a sizable proportion of marine pollution—can now be found in all the world’s oceans, but concentrations are thought to be highest in coastal areas and reef environments where the vast majority of this litter originates from land-based sources.

In Kenya, daily plastic consumption is estimated at 0.3 Kilograms per person. In 2018, Kenya imported between 45,000 and 57,000 metric tonnes of plastic.

Earlier in 2020, KMFRI had carried out its own study—Microplastics Pollution in Coastal Nearshore Surface Waters in Vanga, Mombasa, Malindi and Lamu, Kenya—that painted an even gloomier picture of MP pollution.

The four sampling locations represented the South coast, Mombasa and the North coast of Kenya’s coastal nearshore waters, and looked into considering fishing, recreation, and industrial activities, as well as the municipal effluent that finds its way into these target areas.

The objective of the study was to assess the abundance MPs and their composition in Kenya’s coastal near-shore waters during the two rainy seasons at the Kenyan coast: the north-east monsoon which runs between November and March, and the south-east monsoon which runs from April to October.

The results showed a widely varied distribution of MPs between the two seasons, with the overall highest concentrations occurring during the south-east monsoon when surface runoff from rainwater and from effluent from the major towns is high.

As confirmed in other research studies, the concentrations recorded by KMFRI, were quite high compared to other parts of the world. This provided baseline data for MPs, showing that population, anthropogenic activities and seasonal variations a play key role in influencing pollution by MPs.

Total MP concentrations in all the study areas during the north-east and the south-east monsoon seasons ranged between 83 MPs/m³ and 8266 MPs/m³ and between 126 MPs/m³ and 12,256 MPs/m³ respectively, with a mean of 3228 MPs/m³. The highest microplastic levels were found in Mombasa at 12,256 MPs/m³ during the south-east monsoon season, where runoff and effluent due to heavy rains are thought to be the primary source. The next highest levels were found in Malindi, occurring during the south-east monsoon season, because of inflows from River Sabaki.

Boat activities and tourism during the north-east monsoon season and runoff from the town during the south-east monsoon season mostly affected Lamu, while fishing activities, as well and runoff from the town, could be responsible for the abundance of MPs recorded in Vanga.

Solid waste management remains an enormous challenge in coastal towns, with Mombasa County facing the biggest challenge due to a burgeoning population. Although most of the solid waste generated in the county is organic—largely from households, hotels, restaurants and agricultural produce markets, the largest being Kongowea and Marikiti—plastic takes up a significant share.

In its County Sessional Paper No 01 of 2019, Mombasa County estimated daily waste production at 2,200 tons, 68 per cent of which is organic. Approximately 18 per cent of this waste is plastics, cardboard, paper and metals.

Other inorganic waste such as e-waste, construction waste and junk makes up an estimated 14 per cent of the waste generated. Public and private health facilities generate an estimated 2 to 3 tonnes of biomedical waste daily.

Solid waste management remains an enormous challenge in coastal towns, with Mombasa County facing the biggest challenge due to a burgeoning population.

Most of the solid waste generated is disposed in undesignated open grounds—in VOK, Kwa Karama, Kadongo, Junda, Saratoga, and Mcheleni. It is disposed in the same form as it is generated without being recycled or reused. Disposal of solid waste in the open has continuously had a negative environmental health impact through the contamination of water sources.

Moreover, with the limited investment in solid waste recycling and recovery systems, disposal methods in the county have been a contributor to public nuisance.

There are two designated dumpsites, namely Mwakirunge in Kisauni and Shonda in Likoni. However, these dumpsites are poorly managed and do not respect the prescribed environmental health standards while Mombasa County government’s budgetary allocation for solid waste management is not sufficient to meet the desired results.

MPs are harmful to human health, experts say. The ingestion of MPs by species at the base of the food web causes human food safety concerns, as little is known about their effects on the food that finally lands on our menu.

The minuscule size of MPs renders them invisible to filter-feeding fauna, leading to unintentional ingestion. In a study published in December 2020 in the Africa Journal of Marine Science, W. Awuor, Agnes Muthumbi and Deborah Robertson-Andersson confirmed the presence of MPs in marine life. The study investigated MPs in oysters and in three species of brachyuran crabs.

They did sampling in eight stations distributed between three sites—Tudor, Port Reitz and Mida Creek—in January and February 2018, during low spring tide. The sample comprised 206 crabs and 70 oysters.

The study identified MP fibres of different colours—red, yellow, black, pink, orange, purple, green, blue—as well as colourless ones. Colourless fibres were the most prevalent, comprising at least 60 per cent of the total MPs. The mean lengths of the MP fibres were between 0.1 and 4.2 mm.

The study exposes MP pollution along the Kenyan coast and its uptake by marine fauna, and thus strengthens the case for better control of plastic waste in the ocean. “Marine plastic litter pollution is already affecting over 800 marine species through ingestion, entanglement and habitat change,” said the head of UN Environment’s coral reef unit, Jerker Tamelander, in 2019.

“Waste continues to leak from land, and coral reefs are on the receiving end. They also trap a lot of fishing gear and plastic lost from aquaculture. With the effects of climate change on coral reef ecosystems already significant, the additional threat of plastics must be taken seriously.”

According to UNEP, there remains a significant lack of knowledge on the true impact of plastics on the reef environment, including the level of concentrations of MPs across coral reef eco-regions in order to understand the scale of the issue in a standardised manner.

“Marine plastic litter pollution is already affecting over 800 marine species through ingestion, entanglement and habitat change.”

Concerns about ocean pollution have been raised at a time when the country is looking at the Blue Economy as the country’s next economic growth frontier. In effect, Kenya’s land-based resources have been shrinking because of a rapidly growing population and it is therefore prudent for the government to shift the focus to the country’s ocean resources spread over an area of 245,000 km², or 42 per cent of the country’s total land mass.

Kenya has from the outset not been keen on growing the maritime sector. Even Kenya’s first independence economic blueprint, African Socialism and its Application to Planning in Kenya, published in 1965, failed to anchor the Blue Economy in the country’s economic growth agenda, despite its significant role in transporting 95 per cent of the country’s global transactions.

The Western Indian Ocean has resources worth more than KSh2.2 trillion in annual outputs, with Kenya’s share standing at about 20 per cent of this figure. The marine fishing sub-sector alone had an annual fish potential of 350,000 metric tonnes worth KSh90 billion in 2013. However, the region only yielded a paltry 9,134 metric tonnes worth KSh2.3 billion during that year.

In 2018, the then Agriculture Cabinet Secretary, Mwangi Kiunjuri, said that by failing to fully exploit the Blue Economy, Kenya was losing over Sh440 billion annually. But if the opportunities offered by the Blue Economy are to be exploited, a policy intervention in the management and disposal of plastic waste is urgently required to protect the ocean’s rich biodiversity for sustainable development.

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Politics

Western Sahara: Africa’s Last Colony

Meriem Naïli writes about the continuing struggle for the independence of Western Sahara. Occupied by Morocco since the 1970s, in contravention of the International Court of Justice and the UN. The internationally recognised liberation movement, POLISARIO, has fought and campaigned for independence since the early 1970s. Naïli explains what is going on, and the legal efforts to secure the country’s freedom.

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Western Sahara: Africa’s Last Colony
Photo: Freepik/natanaelginting
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The conflict over Western Sahara can be described as a conflict over self-determination that has been frozen in the past three decades. Western Sahara is a territory in North-West Africa, bordered by Morocco in the north, Algeria and Mauritania in the east and the Atlantic Ocean to the west. A former Spanish colony, it has been listed by the UN since 1963 as one of the 17 remaining non-self-governing territories, but the only such territory without a registered administrating power.

Since becoming independent from France in 1956, Morocco has claimed sovereignty over Western Sahara and has since the late 1970s formally annexed around 80% of its territory, over which it exercises de facto control in contravention of the conclusions reached by the International Court of Justice (ICJ) in its advisory opinion of October 15, 1975, on this matter. The court indeed did not find any “legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory” (Western Sahara (1975), Advisory Opinion, I.C.J. Reports 1975, p.12).

On 14 November 1975, the Madrid Accords – formally the Declaration of Principles on Western Sahara – were signed between Spain, Morocco, and Mauritania setting the conditions under which Spain would withdraw from the territory and divide its administration between the two African states. Its paragraph two reads that “Spain shall immediately proceed to establish a temporary administration in the territory, in which Morocco and Mauritania shall participate in collaboration with the Jemâa [a tribal assembly established by Spain in May 1967 to serve as a local consultative link with the colonial administration], and to which the responsibilities and powers referred to in the preceding paragraph shall be transferred.”

Although it was never published on the Boletin Oficial del Estado [the official State journal where decrees and orders are published on a weekly basis], the accord was executed, and Mauritania and Morocco subsequently partitioned the territory in April 1976. Protocols to the Madrid Accords also allowed for the transfer of the Bou Craa phosphate mine and its infrastructure and for Spain to continue its involvement in the coastal fisheries.

Yet in Paragraph 6 of his 2002 advisory opinion, UN Deputy Secretary General Hans Corell, reaffirmed that the 1975 Madrid Agreement between Spain, Morocco, and Mauritania “did not transfer sovereignty over the Territory, nor did it confer upon any of the signatories the status of an administering Power, a status which Spain alone could not have unilaterally transferred.”

The war

The Popular Front for the Liberation of Saguia el-Hamra and Rio de Oro (POLISARIO) is the internationally recognised national liberation movement representing the indigenous people of Western Sahara. Through the self-proclaimed Sahrawi Arab Democratic Republic (SADR), it has been campaigning since its creation in May 1973 in favour of independence from Spain through a referendum on self-determination to be supervised by the UN. A war broke out shortly after Morocco and Mauritania’s invasion in November 1975. Spain officially withdrew from the territory on 26 February 1976 and the Sahrawi leadership proclaimed the establishment of the SADR the following day.

In 1984, the SADR was admitted as a full member of the Organisation of African Unity (now the African Union), resulting in Morocco’s decision to withdraw the same year in protest. Morocco would only (re)join the African Union (AU) in 2017. The admission of the SADR to the OAU consolidated the movement in favour of its recognition internationally, with 84 UN member states officially recognising the SADR.

In the meantime, to strengthen its colonization of the territory, Morocco had begun building what it later called “le mur de défense” (the defence wall). In August 1980, following the withdrawal of Mauritanian troops the previous year, Morocco sought to “secure” a part of the territory that Mauritania had occupied. Construction of the wall – or “berm” – was completed in 1987 with an eventual overall length of just under 2,500km.

A “coordination mission” was established in 1985 by the UN and the OAU with representatives dispatched to find a solution to the conflict between the two parties. After consultations, the joint OAU-UN mission drew up a proposal for settlement accepted by the two parties on 30 August 1988 and would later be detailed in the United Nations Secretary General’s (UNSG) report of 18 June 1990 and the UN Security Council (UNSC) resolution establishing United Nations Mission for the Referendum in Western Sahara (MINURSO).

Since 1979 and the surrender of Mauritania, around 80% of the territory has remained under Morocco’s military and administrative occupation.

Deployment of MINURSO

The Settlement Plan agreed to in principle between Morocco and POLISARIO in August 1988 was submitted to the UNSC on 12 July 1989 and approved in 1990. On 29 April 1991, the UNSC established MINURSO in resolution 690, the terms of reference for it being set out in the UNSG’s report of 19 April 1991. The plan provided for a cease-fire, followed by the organisation of a referendum of self-determination for which the people of Western Sahara had to choose between two options: integration with Morocco or plain and simple independence.

In this regard, it provided for the creation of an Identification Commission to resolve the issue of the eligibility ofSahrawi voters for the referendum, an issue which has since generated a great deal of tension between the two parties. A Technical Commission was created by mid-1989 to implement the Plan, with a schedule based on several phases and a deployment of UN observers following the proclamation of a ceasefire.

Talks quickly began to draw up a voters list amid great differences between the parties. POLISARIO maintained that the Spanish census of 1974 was the only valid basis, with 66,925 eligible adult electors, while Morocco demanded inclusion of all the inhabitants who, as settlers, continued to populate the occupied part of the territory as well as people from southern Morocco. It was decided that the 1974 Spanish census would serve as a basis, and the parties were to propose voters for inclusion on the grounds that they were omitted from the 1974 census.

In 1991, the first list was published with around 86,000 voters. However, the process of identifying voters would be obstructed in later years, mainly by Morocco which attempted to include as many Moroccan settlers as possible. The criteria for eligibility had sometimes been modified to accommodate Morocco’s demands and concerns. Up to 180,000 applications had been filed on the part of the Kingdom, the majority of which had been rejected by the UN Commission as they did not satisfy the criteria for eligibility.

Consequently, the proclamation of “D-Day”, to mark the beginning of a twelve-week transition period following the cease-fire leading to the referendum on self-determination, kept being postponed and eventually was never declared.

The impasse

Following the rejection by Morocco of the Peace Plan for Self-Determination of the People of Western Sahara (known as Baker Plan II) and the complete suspension of UN referendum preparation activities in 2003, Morocco’s proposal for autonomy of the territory under its sovereignty in 2007 crystallised the stalemate [the Peace Plan is contained in Annex II of UNSG report S/2003/565, and available here].

The Baker Plan II had envisioned a four or five-year transitional power-sharing period between an autonomous Western Sahara Authority and the Moroccan state before the organisation of a self-determination referendum during which the entire population of the territory could vote for the status of the territory – including an option for independence. It was ‘supported’ by the UNSC in resolution S/RES/1495 and reluctantly accepted by POLISARIO but rejected by Morocco.

The absence of human rights monitoring prerogatives for MINURSO has emerged as an issue for the people of Western Sahara as a result of the stalemate in the referendum process in the last two decades. MINURSO is the only post-Cold War peacekeeping operation to be deprived of such prerogatives.

Amongst the four operations currently deployed that are totally deprived of human rights monitoring components (UNFICYP in Northern Cyprus, UNIFIL in Lebanon, UNDOF in the Israeli-Syrian sector and MINURSO), MINURSO stands out as not having attained its purpose through the organisation of a referendum. In addition, among the missions that did organise referendums (namely UNTAG in Namibia and UNAMET in East Timor), all had some sort of human rights oversight mechanism stemming from their mandates.

On 8 November 2010, a protest camp established by Sahrawis near Laayoune (capital of Western Sahara) was dismantled by the Moroccan police. The camp had been set up a month earlier in protest at the ongoing discrimination, poverty, and human rights abuses against Sahrawis. When dismantling the camp, gross human rights violations were reported – see reports by Fédération internationale des ligues des droits de l’Homme (2011) and Amnesty International (2010).

This episode revived the international community’s interest in Western Sahara and therefore strengthened the demand by Sahrawi activists to “extend the mandate of MINURSO to monitor human rights” (see Irene Fernández-Molina, “Protests under Occupation: The Spring inside Western Sahara” in Mediterranean Politics, 20:2 (2015): 235–254).

Such an extension was close to being achieved in April 2013, when an UNSC resolution draft penned by the US unprecedentedly incorporated this element, although it was eventually taken out. This failed venture remains to date the most serious attempt to add human rights monitoring mechanisms to MINURSO. Supporters of this amendment to the mandate are facing the opposition by Moroccan officials who hold that it is not the raison d’être of the mission, and it could jeopardize the negotiation process.

What’s going on now?

At the time of writing, the people of Western Sahara are yet to express the country’s right to self-determination through popular consultation or any other means agreed between the parties. The conflict therefore remains unresolved since the ceasefire and has mostly been described as “frozen” by observers.

On the ground, resistance from Sahrawi activists remain very much active. Despite the risks of arbitrary arrest, repression or even torture, the Sahrawi people living under occupation have organised themselves to ensure their voices are heard and violations are reported. Freedom House in 2021 have, yet again, in its yearly report, rated Western Sahara as one of the worst countries in the world with regards to political rights and civil liberties.

Despite a clear deterioration of the peace process over the decades, several factors have signalled a renewed interest in this protracted conflict among key actors and observers from the international community. A Special Envoy of the AU Council Chairperson for Western Sahara (Joaquim Alberto Chissano from Mozambique) was appointed by the Peace and Security Council in June 2014. This was followed by Morocco becoming a member of the AU in January 2017.

More recently, major events have begun to de-crystalise the status quo. The war resumed on 13 November 2020 following almost 30 years of ceasefire. Additionally, for the first time, a UN member state – the US – recognised Morocco’s claim to sovereignty over the territory. Former US President Trump’s declaration on 10 December 2020 to that effect was made less than a month after the resumption of armed conflict. It has not, however, been renounced by the current Biden administration. As this recognition secured Morocco’s support for Israel as per the Abrahamic Accords, reversing Donald Trump’s decision would have wider geopolitical repercussions.

In September 2021, the General Court of the European Union (GCEU) issued decisions invalidating fisheries and trade agreements between Morocco and the EU insofar as they extended to Western Sahara, rejecting Morocco’s sovereignty. This decision is the latest episode of a legal battle taking place before the European courts.

The Court of Justice of the European Union (CJEU), had previously reaffirmed the legal status of Western Sahara as a non-self-governing territory, set by the UN in 1963 following the last report transmitted by Spain – as Administering Power – on Spanish Sahara under Article 73 of the UN Charter. The Court rejected in December 2016 any claims of sovereignty by Morocco by restating the distinct statuses of both territories.

The last colony in Africa remains largely under occupation and the UN mission in place is still deprived of any kind of human rights monitoring. In the meantime, the Kingdom of Morocco has been trading away peace in the form of military accords and trade partnerships. This situation must end – with freedom, and sovereignty finally won by Western Sahara.

This article was first published by ROAPE.

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