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COVID-19 and the Future of Democracy in Zimbabwe

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

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

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

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

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

Democracy under threat

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

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

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

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

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

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

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

Africa’s emerging trend of authoritarianism

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

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

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

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

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

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

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

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

Zimbabwe, the unrepentant child

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An alert but limited pro-democracy movement

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

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

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

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

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

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

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

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

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

Looking ahead

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

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

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

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

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

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

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

Professor Shivji’s wisdom is instructive here:

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

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

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

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The author is PhD fellow at the university of Johannesburg, South Africa

Politics

African Continent a Milking Cow for Google and Facebook

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

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

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

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

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

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

Brick and mortar

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

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

‘Their revenue comes from me’.

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

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

Facebook revenue by user geography

Facebook revenue by user geography

Irish Double

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

Moustapha Cisse, Africa team lead at Google AI

Moustapha Cisse, Africa team lead at Google AI

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

Google Ghana is an ‘artificial intelligence research facility’.

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

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

Cash-strapped countries

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

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

Cost to public

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

‘A tax paying people is a questioning people’

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

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

Interior view of the Facebook office in Johannesburg, South Africa

Interior view of the Facebook office in Johannesburg, South Africa

Waiting for the Finance Minister

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

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

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

Comment

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

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

This article was first published by our partner ZAM Magazine.

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An Unlikely Alliance: What Africa and Asia can teach each other

Once African and Asian leaders looked towards each other for guidance. What possibilities can a renewed cross-continental solidarity offer?

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An Unlikely Alliance: What Africa and Asia Can Teach Each Other
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When independent Congo’s first prime minister, Patrice Lumumba, was assassinated in 1962, over 100,000 people protested in Beijing Workers’ Stadium. Thousands more protested in New Delhi and Singapore.

When Sudan lacked a formal plaque at the 1955 Bandung Conference, where the leaders of Asia and Africa declared the Third World project, India’s Jawaharlal Nehru wrote “Sudan” on his handkerchief, ensuring Africa’s then largest country a seat.

It was a time when Asia and Africa, home to almost 80 percent of humanity, found kinship in their shared trauma and conjoined destiny. Both were always spoken of in tandem. Martin Luther King Jr.’s “Letter from a Birmingham Jail,” drew inspiration from what he saw overseas: “The nations of Asia and Africa are moving with jet like speed toward gaining political independence.”

Too often we forget that the most defining event of the 20th century was not World War II or the Cold War, but the liberation of billions in Asia and Africa between the 1950s and 1980s as citizens of almost 100 new-born countries.

It also marked the revival of an ancient, pre-European connection. Historically, Asia and Africa were enmeshed centers of wealth and knowledge and the gatekeepers of the most lucrative trade routes. The Roman Empire’s richest region was North Africa, not Europe. A severe trade imbalance with South Asia forced Roman emissaries to beg spice traders in Tamil Nadu to limit their exports.

Western Europeans left their shores in desperation, not exploration, in the 1500s to secure a maritime route to the wealthy Indian Ocean trading system that integrated Asia and Africa. Somali traders grew rich as middlemen transiting coveted varieties of cinnamon from South Asia to Southern Europe. The Swahili coast shipped gold, ivory, and wildlife to China. Transferring the world economy to the Atlantic first required Portugal’s violent undoing of the flow of goods and peoples between Asia and Africa.

In Bandung, Indonesia’s Sukarno declared “a new departure” in which peoples of both continents no longer had “their futures mortgaged to an alien system.”

Yet that departure became a wide divergence that is complex to comprehend. Over the last few years, I’ve shuttled between the megacities of Asia to East and Central Africa. I also grew up in four Asian countries—India, Thailand, Philippines, and Singapore—and lived through Southeast Asia’s exponential rise.

The gap between Africa and East Asia, including Southeast Asia, is perplexing because we share much in common—culture, values, spirit, and worldview. I’m reminded of this in Somalia, Sudan, Uganda, or Ghana, where I’ve felt an immediate sense of fraternity.

It’s now a familiar story: 70 years ago, African incomes and literacy rates were higher than East Asia, then an epicenter of major wars. But in one generation, East Asia achieved wealth, human development, and standards of living that rival a tired, less relevant Western world.

The shockingly inept response by many Western countries to a historic pandemic has only amplified calls for Africa to abandon the Western model and learn from its once closest allies. A new book titled Asian Aspiration: How and Why Africa Should Emulate Asia, hit stores this year, co-authored by former Nigerian and Ethiopian heads of state. An op-ed in Kenya’s Star newspaper even prior suggested Kenyans shift their gaze from the supposed advancement of Westerners to “the progress of our comrades in the East.”

The incessant idea that Africa’s future lies in models not of its own making can be patronising. But Africa can indeed learn from the successes and pitfalls of East Asia, the world’s most economically dynamic region also built from scratch, while imparting wisdom of its own.

Many who previously pondered this gap came up with multiple theories, but often ignored a simple reality: Africa’s geography. Like Latin America, Africa is bedeviled by a predatory power to its north that siphons capital, talent, labor, and hope. By contrast, East Asia, even with several U.S. bases, is an ocean away from the United States and a 12-hour flight from Western Europe.

Europe’s proximity to Africa also cultivated a perennial barrier to development: the Western aid industry. Whether I’m in Haiti or Chad, the sheer domination of Western NGOs, development agencies, aid convoys, and all manner of plunder masquerading as goodwill—$40 billion more illicitly flows out of Africa than incoming loans and aid combined—is something I never saw even 25 years ago in Southeast Asia. Industries look for growth opportunities. Developed societies with robust public systems in East Asia offer few for saviors. The streets of Bangkok and Hanoi are lined with Toyotas and tourists, not wide-eyed youths in armored vehicles guided by white burden. The development industry and most of its participants I’ve had the misfortune of meeting are toxic. Large swaths of Africa remain under occupation of a different kind.

For much of the 20th century, Africa also faced a virulent settler colony in its south which destabilized the region and was so hateful of Black Africans that its mercenaries set up a series of bogus health clinics to surreptitiously spread HIV under the guise of charitable healthcare.

East Asia’s settler colony, Australia, was never able to replicate South Africa’s belligerence. It did lay waste to Papua New Guinea (where it continues to imprison asylum-seekers) but Australia never invaded or occupied Indonesia or the Philippines.

Another fallacy explaining African inertia is poor leadership. Leadership is paramount, but Africa produced a generation of independence era leaders whose values and decency the world desperately needs today. All were killed or overthrown by the West—because Africa is a far deeper reservoir of resources than East Asia.

South Korea, Singapore, and Taiwan are not resource rich. Thailand was never even colonized. An Asian country afflicted by similar conditions to Africa is mineral-rich Myanmar, closed to the wider world and progress for decades. Showcases of democracy aside, its kleptocratic, authoritarian political culture, like many African countries, was inherited from British rule. George Orwell’s less referenced book Burma Days, a recount of his time as a police officer in colonial Burma, called the British Empire “a despotism with theft as its final object.”

Resources prevented African leaders from towing a middle road that kept Western powers happy while investing in their society. The choice was resource nationalism or authoritarian acquiescence “with theft as its final object.” It was either Lumumba or Mobutu.

East Asian success stories worked within the global capitalist system and conducted deft diplomacy to placate Western superiority complexes while fortifying relationships with the rest of the global South. At independence, Singapore dispatched diplomats around the world, including several African countries, to build trade ties. Its manufacturing companies provided cassette tapes for Sudan’s then booming music industry. It hired Israeli advisors to train its military while staying in the good books of neighbors and Arab partners who stood with the Palestinians. These maneuvers are only possible when you aren’t sitting on $24 trillion worth of minerals.

Geography aided East Asia. Colonial borders, with a few exceptions, resembled some form of community that came before the nation-state. Consider both the Malay and Korean Peninsulas. Thailand’s borders, while amended as concessions to imperial powers, conformed largely to the cultural and linguistic boundaries of ancient Siam.

Africa’s artificial borders concocted nation-states with no experience as a community of any kind. The nation-state model creates fissures even in Europe, with the Yugoslav wars and constant, violently suppressed demands for statehood by the Basques and Catalans in Spain, not to mention a referendum by the Scots. Partitions across Africa, a special kind of cartographic violence, congealed animosity for generations.

So while Africans were marginally better off at independence than East Asians, structurally they actually did not have a head start. But Africa still thrived in the 1970s. It is only now reaching average income levels akin to half a century ago. To dismiss the continent’s record since independence as a perennial failure is a historically illiterate point of view. Its cultural output and musical dynamism were astonishing—arguably unrivaled—during this era. Liverpool and Manchester? Try Luanda and Mogadishu.

Africans were well aware of the right course but were thwarted more viciously than East Asia’s most developed states. Perhaps the West is more tolerant of Asian success because of racial hierarchies, just as the US parades Asian-American affluence as a symbol of the universality of the US-led Western model but violently responds to the smallest hint of actual wealth creation in Black-American communities.

Now, amid a precarious coming decade, East Asia indeed offers prescriptions for not only natural allies like Africans but societies worldwide seeking transformation in record time.

First off, it’s all about networks. Do the rules of your country facilitate local, regional, and international networks? A new Harvard study concluded that brisk business travel has the single biggest impact on building networks, diffusing knowledge, and birthing new industries. Europe’s own development benefited from its small land space, which tailored expansive, tight-knit networks that rapidly spread ideas revolutionizing everything from the sciences to football tactics.

Frequent trips to any major city in East Asia connect you to lucrative networks half a world away. Business travel (at least before the chaos of coronavirus) to East Asia is accessible, affordable, and hassle-free. The right infrastructure and laws—state-of-the-art airports, good accommodations, low-cost, high-speed telecommunications, rapid transportation links and whole scale visa liberalization—are needed to accommodate network-building travelers of every stripe and budget. African countries should follow suit, and streamline business travel, which would allow African travelers to build dense regional and continental networks—currently a tough ask when pre-pandemic flights from Nairobi to London were far cheaper than to neighboring capitals.

Since the 1980s, the Anglo-American West, ideologically intoxicated by deregulation, abdicated their society’s fate to self-interested individuals and free markets alone. East Asian countries enacted hardcore capitalist policies but never bought into this demented idea. The US and UK spent the last four decades dismantling their states; East Asian countries meanwhile reinforced their capacity with vast investments in education, telecommunication, and especially healthcare.

Thailand abandoned the neoliberal approach to healthcare in the early 2000s for a private-public model that guaranteed universal coverage and secured its place as the first country in Asia to eliminate HIV transmission from mother to child. Both Singapore and Hong Kong have the most efficient healthcare systems in the world. Sharply guided public health policies underwrote East Asia’s masterful management of COVID-19. Vietnam and Laos had zero deaths from coronavirus while Germany, somehow a celebrated success story in the Western press, has over 9,000 deaths.

Recently, Kenya sought Thailand’s expertise in revamping a typically price-gouged private healthcare system. Ethiopia invited Vietnamese telecommunication companies to make its systems reliable, fast, and, like much of Southeast Asia, affordable.

In the Nigerian and Kenyan corners of Twitter, “The Singapore Solution” resonates. People yearn for a Lee Kuan Yew figure. Lee once told an Indian audience that Singapore’s model cannot be adopted by India, which, according to him, “is not a real country…Instead it is thirty-two separate nations that happen to be arrayed along the British rail line.”

The same can be said about Nigeria and Kenya. Singapore is an entrepot state of a few million at the gateway to the Malacca Straits, the world’s busiest shipping lane, with deep ancestral ties to China and India, the world’s richest economies for 1,800 of the last 2,000 years.

Each country’s trajectory is highly contingent on a set of unique circumstances and should never be applied wholesale. With the immense benefit of hindsight, Africans can choose from the best, most fitting lessons from the region, while staying vigilant of and mitigating many pitfalls.

For every one of me, inheritors of East Asia’s boom, there are, like New York City and London in the early 1900s, millions trapped as cheap labor servicing endless growth, forced to compete over scraps in unforgiving cities. East Asian inequality is nauseating. South Korea has the highest elderly poverty rate in the OECD, with almost half of its senior citizens condemned to destitution rather than retirement. Only disparities that torture the soul can create award-winning films like Parasite.

This is a feature, not a bug, of East Asia’s rapid growth. Opening up to global capitalism inevitably instills hierarchies and racialized aspirations. When I see advertisements for new luxury condominiums, possibly the most prevalent hoardings in Southeast Asia, it’s an image of a white man with his East Asian wife and mixed-race child. The message is clear. As Frantz Fanon wrote, “you are rich because you are white, you are white because you are rich.”

East Asia may not have the levels of violent, heartless racism on brazen display in Western societies, but the 1990s were a turning point. East Asians began to look down on those modernization taught them to distrust. You don’t go from mourning an assassinated Congolese leader by the thousands to treating African expatriates as diseased in one generation without a drastic, very recent shift.

Some Westerners, like washed up drunks screaming profanities at a bar, might be tempted to repeat the mantras falsely underlining their sense of superiority to make preposterous demands of such young countries pieced together overnight. They might ask, “Well what of democracy? Human rights? Freedom of the press? Free markets?” These are all wonderful things, if they actually existed.

Not a single Western country was a democracy during its development. Western Europe had a fascist government in Spain until 1975. France and Britain fought horrific wars to deny Algeria and Kenya independence even after defeating Nazism. You can’t be a democracy when you deny democracy to others. European colonies were run as totalitarian dictatorships and lasted well into the late 20th century.

Freedom of the press? Try criticizing Israel in the mainstream US or German media.

Human rights? Europe lets migrants drown by the thousands in the Mediterranean. Australia has offshore camps for asylum seekers where abuse and rape are rampant. The US has kids in cages and its cops murder young Black men for sport.

Free markets? Both the US and Britain were viciously protectionist societies that relied on massive state intervention, and overwhelming military force, to mint its corporations.

The marriage of free markets to supposedly liberal democracy gave us Brazil’s Jair Bolsonaro, India’s Narendra Modi, the Philippines’ Rodrigo Duterte, and kept war criminal Benjamin Netanyahu as Israel’s longest serving leader. The Western liberal order, Indian writer Pankaj Mishra meticulously reveals, is an “incubator for authoritarianism” because it’s premised on fairy tales.

An open society, a vibrant marketplace, and a respect for human dignity are of course worthy and necessary goals. More representative forms of government, hopefully devised by us rather than imported from Cornwall, England, will arrive. We need not be “Jeffersonian Democrats”; we can surely do better than a system championed by slave owners. As Deng Xiaoping said when China opened up after its century of humiliation, “Let some people get rich first,” which should be interpreted as a call to enrich societies as a whole before succumbing to obnoxious Western moralizing about values they rarely practice themselves.

Advancement need not only be predicated on economic growth and democratic politics and Africa need not only be the student and Asia the mentor. Asia has much to learn from Africa’s grand investments in culture in its earliest days. Aside from Vietnam, whose communist government funded the arts, and South Korea, which subsidized its K-Pop industry, most East Asian countries pay little attention to their cultural prowess on the world stage.

When kids in Djibouti listen to songs on their phone, it’s Somali music or Nigerian hits. Hop in a taxi in Accra or Khartoum and you hear that country’s sound. Africans listen to their own music. Southeast Asia does not. The richest music is derided as a pastime of lower classes, unfit for well-heeled urban elites. Talent gets lost in the never-ending roster of cover bands for top 40 American pop.

In Jakarta’s many behemoth malls, “you will not hear Indonesian music,” wrote journalist Vincent Bevins. “You will not hear Japanese music, or anything from Asia… It will all have been packaged and sold in the USA.” It’s the same story anywhere in the region.

This may seem trivial, but a country’s image is vital to any lasting progress. In a world no longer able to “identify with, let alone aspire to, Hollywood’s white fantasies of power, wealth and sex,” wrote Fatima Bhutto in New Kings of the World: Dispatches from Bollywood, Dizi, and K-Pop, “a vast cultural movement is emerging from the global South… Truly global in its range and allure, it is the biggest challenge to America’s monopoly of soft power since the end of the Second World War.”

African countries laid the foundations in the ‘70s to fill this vacuum. Their image will be defined in the next decades by their stellar music, set to be in our lifetimes the global staple and standard. Independent labels and corporate players like UMG and Sony, now with headquarters in Lagos and Abidjan, have ensured unprecedented international access to Africa’s abundance of music, past and present.

African literary festivals have also blossomed, adding to an impressive six percent growth in the industry. It’s only a matter of time before small and multinational publishing houses scout a new cadre of young African writers to make household names, as they did in South Asia. Africa hosts over 35 annual literary festivals, even in struggling cities like Mogadishu, while East Asia only enjoys 21.

Economic engines inevitably slow. Southeast Asia in particular must emulate African pride in its own music and related expressions of culture to seize on openings left behind by a once omnipotent cultural hegemony in full retreat. South Korea understood this early and enjoys a powerful, beloved global brand molded by pop music and films, not per capita income.

Even if Africa and Asia swap carefully selected approaches, ultimate success is only possible from a unity akin to the 1955 Bandung Conference. When we again mingle and ally, when we mourn each other’s dead, when we scribble names on napkins as acts of solidarity, we will again realize our lasting success. The final phase to complete the process of decolonization will have to be done jointly, in unison, or never at all.

This post is from a new partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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Fear and Loathing in Kenya’s Parliament

Parliament’s failure to enact laws to bring women into elected national leadership has only exposed its soft underbelly, revealing a combination of narcissism and incompetence.

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Fear and Loathing in Kenya’s Parliament
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A month before Chief Justice David Maraga advised the president to dissolve parliament, legislators were toying with plans to delete the constitutional requirement that would include women in national political leadership.

“You cannot compel citizens to elect either men or the other gender,” said Justin Muturi. Speaking at a parliamentary retreat, the Speaker of the National Assembly appeared to have lost whatever empathy he previously harboured for affirmative action legislation to promote women’s participation in elected leadership in June 2016.

Following the CJ’s September 21 advice, Muturi mobilised the Parliamentary Service Commission, which he chairs, to mount a court challenge against it. He remarked: “The clamour to pass legislation to ensure [the] two-thirds gender principle potentially violates the sovereign will of the electorate at least to the extent that such legislation will demand top-ups or nominations of women”.

Jeremiah Kioni, who chairs the Constitution Implementation Oversight Committee, told the parliamentary retreat that politicians only agreed to include the clause on the inclusion of women in elective leadership in the 2010 constitution “to stabilise the country and cool tempers”.

Unknown to many at the time of the retreat debate, the Speakers of the National Assembly and the Senate had received an August 3 letter from Chief Justice David Maraga informing them that he was considering six different petitions asking him to advise the president to dissolve parliament as provided for in the constitution. The letter followed up on a 25 June 2019 one inquiring about the progress made by Parliament in enacting laws to increase women’s participation in leadership.

In August, Muturi cautioned members of parliament that there was a real risk of dissolution over failure to enact the law on including women in leadership, but since Maraga delivered his coup de grâce on September 21, the Speaker has gone on the warpath.

Although the constitution – which was passed by 68.6 per cent adult suffrage in August 2010 – gave parliament independence, it contains a suicide clause giving the president the power of dissolution should it fail to enact laws that bring the constitution into application. The clause kicks in if the High Court certifies and declares that parliament has failed to pass a law within the required timelines.

The constitutional provision requiring that no gender should constitute more than two thirds of any elective or appointive body has been successfully implemented in county assemblies, but it has remained a sticking point at the national level. Elections for the National Assembly and the Senate in 2017, and the subsequent allocation of special seats, gave women only 23 per cent of the share of legislative leadership at the national level – a 9 per cent improvement on the 2013 elections.

A 2018 National Democratic Institute survey of gender participation in politics found that “[w]omen who had served in specially nominated positions, for example, were more likely to win an election than those who had never held office at all”.

A combination of political chicanery, slothful self-interest and duplicitous male chauvinism has repeatedly thwarted efforts to create an inclusive national legislature. The laws required to cash the promissory note given to women when the country passed the Constitution have never been passed because neither the National Assembly nor the Senate has been able to muster the two-thirds quorum required to debate a constitutional amendment.

The National Gender and Equality Commission documents the Journey to Gender Parity in Political Representation, noting the four floundering attempts to enact laws that would increase the number of women in national legislatures.

In each instance, the bills proposed to become law had already been developed off-site, complete with a costing of what each option would mean for the taxpayer, and all that was required of MPs was for them to show up and make the quorum for the bills to come under consideration.

The last effort at passing the gender law had been stepped down from the order paper in November 2018 over fears that there would be lack of quorum to consider it since it touched on the constitution. The bill was the product of painstaking negotiation, bargaining, and deal making involving over 50 organisations and that had lined up President Uhuru Kenyatta, political party leaders Raila Odinga and Kalonzo Musyoka.

When the proposed law was put to the National Assembly in February 2019, the headcount came in at 174 MPs – 59 short of the 233 required to consider a law relating to the constitution. Earlier, under the hammer of the High Court in 2016 to pass a similar law, Speaker Muturi innovated a way to get round the requirement for constitutional amendment law proposals to wait 90 days, fast-tracked the bill through the 11th Parliament – only for it to fail because there was no quorum to consider it.

Frustrations over the repeated failure to pass laws that promote women’s increased participation in elective politics have triggered a record number of court petitions. The most consequential of these is the petition filed by the Centre for Rights Education and Awareness, from which the High Court issued a declaration that parliament had indeed failed to perform its duty to enact a law to promote the participation of women in national elective leadership.

The Speaker of the National Assembly lost an appeal against the 2017 High Court decisionordering parliament to enact the law providing for inclusive leadership within 60 days.

Last year, on 5 April, the Court of Appeal observed that the repeated failure to get a quorum to pass the law “does not speak of a good faith effort to implement the gender principle”, noting that Parliament had already exhausted the option of extending for a year the deadline for enacting the gender law.

That decision confirmed parliament’s failure to perform its duty, and within two months inspired five petitions requesting the Chief Justice to advise that it be dissolved. The Law Society of Kenya lodged its petition with the Chief Justice in June this year.

Ken Ogutu, who teaches law at the University of Nairobi, analogises the current dilemma to a construction project where the main contractor has completed the main structure of a new house and a subcontractor is then left to do the finishing to ensure the house is completed to the required standards. “The main contractor gives the subcontractor a schedule of the finishing he must do and by when, and if the subcontractor fails to complete these tasks within the specified timelines, he is fired and a new one hired to do the work”.

Parliament has argued that it has passed all the other laws and should not be punished for not enacting the gender inclusion laws.

The Chief Justice’s advice to dissolve Parliament will likely expose the institution’s hidden weaknesses. Its failure to enact laws to bring women into elected national leadership has only exposed its soft underbelly, revealing a combination of narcissism and incompetence.

Beneath the shining veneer of success, evident in the passage of 47 out of the 48 laws required to implement the constitution as outlined in its Fifth Schedule, there is plenty of evidence that parliament is still stuck in the old constitutional order. Some argue that parliament has been the weak link in turning Kenya into a constitutional democracy.

Since 2011, Kenya Law Reports has documented 48 statutes or amendments to the law that the courts have struck down for being unconstitutional. Eight of the controversial laws struck down by the High Court or the Court of Appeal relate to the management of competition in elections.

Judges sitting singly or in panels of three in the High Court, or in the Court of Appeal, have struck down parliament’s attempts at power grabs by avoiding public participation and making laws that violate the constitution. It is even more worrying that the 48 are only those laws that citizens or organisations have challenged, meaning that there could be a great deal of unconstitutionality hidden in other laws.

For example, commenting on the attempt to sinecure seats for political party leaders in the election law, appellate judges Festus Azangalala, Patrick Kiage and Jamilla Mohammed wrote in their judgment: “[F]ar from attaining the true object of protecting the rights of the marginalized as envisioned by the constitution, the inclusion of Presidential and Deputy Presidential candidates in Article 34(9) of the Elections Act does violence to all reason and logic by arbitrary and irrational superimposition of well-heeled individuals on a list of the disadvantaged and marginalized to the detriment of the protected classes or interests”.

Other judges have described some of the legislative attempts as “overreach” or “no longer [serving] any purpose in the statute books of this country”. Judge Mumbi Ngugi, commenting on the anti-corruption law passed by parliament, remarked: “The provisions […], apart from obfuscating, indeed helping to obliterate the political hygiene, were contrary to the constitutional requirements of integrity in governance, were against the national values and principles of governance and the principles of leadership and integrity in . . . the Constitution . . . [and] entrenched corruption and impunity in the land”.

The low quality of laws emanating from parliament since the promulgation of the constitution in 2010 arises from several factors, among them competence gaps and self-interest, and despite the inclusion of an entire chapter on integrity in the constitution, the country’s politics is weighed down by poor political hygiene. Similarly, the law on qualification for election as a member of parliament sets a very low threshold while the one for recalling elected leaders is impossible to apply.

Data aggregated from the parliamentary website shows that 72 per cent of all members of the National Assembly are university graduates, but many of the qualifications listed appear to be shotgun degrees from notorious religious institutions acquired in the nick of time to clear the hurdle for election. The modest intellectual heft of members in the National Assembly especially makes the institution unsuited for the task of navigating a Western-style democracy in the design of the constitution.

Some 40 MPs have law degrees, but the Kenya Law Reform Commission, the Attorney General’s office, and various interest groups carry out much of the legislative drafting. Parliament is then often left with the duty of playing rubber stamp.

At moments of national crisis, legislative initiative has tended to emanate from outside parliament, whose members are then invited to endorse whatever deal has been agreed. Cases in point from recent history include the resolution of the stalemate over changing the composition of the Independent Electoral and Boundaries Commission in 2017, and the political détente in the aftermath of the putative 2017 presidential election.

In a global first of game-warden-turned-poacher, the Public Accounts Committee, Kenya’s parliamentary watchdog, was disbanded over allegations of corruption. The Conflict of Interest Bill was only published last year and is yet to reach the floor of parliament. It was not the only instance of members of parliament literally feathering their nests. Legislators have been most voluble in defending the benefits they feel entitled to, and clinging onto the control of the constituency development fund, which they have turned into a pot of patronage.

The constitution refashioned parliament as an independent institution with law-making, oversight and budgeting powers. The institution has not acquitted itself in watching over public institutions and spending, often playing catch-up with reports of the Auditor General. Its lax fiscal management and oversight has resulted in the country’s debt stock growing from Sh1.78 trillion in 2013 to the current Sh6.7 trillion. Only this year, the Sh500 billion contract for the construction of the standard gauge railway using Chinese loans was found to have been illegal.

Its review of the annual reports from the judiciary and the 14 constitutional commissions has been lacklustre, with the worst case being the parlous state of the Independent Electoral and Boundaries Commission. One of the concerns raised about dissolving parliament is around the readiness of the commission to undertake nationwide parliamentary elections, given that four of the seven commissioners have resigned and have not been replaced, and that the institution does not have a sufficient budget to undertake its work.

Another anxiety around the dissolution of parliament has been that the electorate would not cure the gender imbalance in the national legislature through an election. That anxiety is a misapprehension.

On 20 April 2017, in deciding a case filed by Katiba Institute, Justice Enock Mwita ordered that political parties formulate rules and regulations to bring to life the two-thirds gender principle during nominations for the 290 constituency-based elective positions for members of the National Assembly and the 47 county-based elective positions for members of the Senate within six months. He added that if they failed to do so, the IEBC should devise an administrative mechanism to ensure that the two-thirds gender principle is realised within political parties during nomination exercises for parliamentary elections.

The August 2017 High Court judgment requires the IEBC to ensure that party lists contribute to the realisation of the gender principle. The decision has not been appealed or vacated. Given the parliament’s proclivity to pursue the interests of its members in increasing their pay even when not allowed to do so, it is not unlikely that MPs, detained by their own fear of political competition, have refused to see how affirmative action legislation would increase women’s participation in politics.

For now, the Chief Justice’s advice to the president to dissolve parliament has been challenged in court by two citizens, with Judge Weldon Korir certifying that the case raises constitutional questions that need to be adjudicated by an uneven number of judges. It is not unlikely that the matter could go all the way to the Court of Appeal, meaning that the earliest a final position could be settled is February next year.

The dissolution saga will likely highlight the distance yet to be covered in realising the parliament Kenyans wanted to establish through the constitution. Although parliament has a five-year term, it can be extended in times of war or emergency for a period of one year each time, for a maximum of one year. The corollary is that its term can be shortened if it fails to live up to constitutional expectations.

Bereft of any real power or competence and unable to cut the umbilical cord binding it to the executive, parliament will be President Uhuru Kenyatta’s poodle waiting on his charity. And as the president concludes the political calculation of the costs and benefits of dissolving parliament, the country will be assessing its legislature’s performance not just on gender but on everything else.

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