When the Building Bridges Initiative (BBI) was launched and the promise made that we would soon have significant constitutional changes, I doubted that we would achieve any constitutional changes before 2022 – a critical timeline because of the general elections in August that year. I also doubted whether those who were rushing to speak about the imminent changes to the constitution had full appreciation of what it would really take to effect amendments to the 2010 constitution. Yet, some critical voices supporting the BBI even gave timelines of early to mid-2019 when Kenyans should expect the amendments to be in place.
Two years ago, I had both legal and political reasons to doubt why constitutional changes through the BBI process were an implausible improbability. I still hold most of those views but with the benefit of evidence, unlike two years back when my views were based mostly on logical deduction of what the constitution provides and anticipates on constitutional changes.
However, before I get into the reasons why constitutional changes before 2022 are highly improbable, a critical word about the nature of our constitution.
A people’s transformative constitution
The 2010 constitution is transformative. This nomenclature is critical. The constitution sought to overhaul instead of build on the past. The past was, in totality, undesirable and unsustainable. The constitution itself – and the process that brought it into being – contains many explicit and specific markers evincing its transformative nature.
First on process.
The 2010 constitution was drafted through a very participatory process. Critically, and as Yash Ghai argues, the 2010 constitution was the constitution the people imposed on the political elite. The level of participation facilitated by civil society and the Constitution of Kenya Review Commission (CKRC) and later the Committee of Experts (COE) was deliberate to ensure that significant content of the constitution derived from what the people wanted. In fact, desperate, last-minute attempts by Members of Parliament (MPs) to dilute the draft constitution through a raft of amendment proposals in Parliament failed, thanks to the ingenuity of the Constitution of Kenya Review Act 2018, which contained time-bound self-executing provisions to forestall any attempt at political subterfuge.
The 2010 constitution was drafted through a very participatory process. Critically, and as Yash Ghai argues, the 2010 constitution was the constitution the people imposed on the political elite.
The architecture of the constitution is additional evidence of its transformative nature. The constitution opens by underscoring the sovereignty of the people and the supremacy of the constitution, followed by national values and principles of governance, and then with a detailed and elaborate Bill of Rights. Unlike the former constitution, institutions of governance only feature in the middle part of the constitution – and not before it details, in Chapter Six, the integrity principles that regulate leadership. This is unlike the former 1969 constitution whose chapter arrangements consciously signalled a hierarchical president-centred state with the chapter on the presidency featuring very early on in the constitution in Chapter Two. In contrast, in the 2010 constitution, the executive is tucked away in Chapter Nine.
Additionally, the length and language of the 2010 constitution lends significant credibility to its mission of transformation. On length, the constitution is overly detailed, which signals a trust issue that Kenyans had, especially with lawmakers and the executive. The details were to ensure that lawmakers did not have much discretion to legislate on issues considered critical by the people (a sign of past constitutional trauma), given that under the former constitution lawmakers had, under the thumb of presidential patronage, been overly enthusiastic to amend the constitution and legislate on infinite retrogressive laws. On language, the constitution was drafted in the most plain and accessible English to dispel the past practice of making a constitution a document that is accessible mainly to lawyers and other elites in society. This accessibility creates a greater sense of ownership of the constitution by the people.
On implementation, the constitution attempted to insulate itself from executive manipulation by establishing and by extensively spelling out the institutions and rules of its implementation. To illustrate, the constitution created many independent bodies and commissions responsible for monitoring and enforcing implementation of varying aspects and granted courts extensive powers to adjudicate and enforce all constitutional aspects on any individual. While the executive may have now found a way to patronise most of those institutions through unmeritorious appointments, the institutions’ constitutional stature and powers still remain intact.
Finally, and critically, the content. There is a lot to discuss here, but I want to list four key features in the content of the constitution that points to its transformative nature: the centrality of the people; the ubiquity of values and principles of governance in every chapter of the constitution; the emphasis on the rule of law vis-à-vis the powers of the judiciary; and a very elaborate and onerous amendment procedure.
Now, let me go back to what I set out to discuss: the improbability of constitutional amendments through the BBI process.
The time and constitutional tethers on BBI
There are at least three fundamental reasons why constitutional amendments before 2022 are an improbability. First, our constitution provides a complex and onerous amendment procedure for any consequential amendment. Second, and because of this complex and onerous amendment procedure, for any amendment to succeed, a broad and genuine political consensus is required. The third reason is more technical and relates to the fact that our constitution explicitly creates checks against unconstitutional constitutional amendments, including those that affect the basic structure of the constitution.
Let me try to elaborate a bit more on each of these.
A complex and onerous amendment procedure
Articles 255 to 257 expressly stipulate the procedures necessary to effect constitutional amendments. Three possibilities are contemplated:
- The first amendment process is a simple one that only involves Parliament. This process, provided for under Article 256, allows for constitutional amendments through parliamentary approval. This procedure is reserved for minor, non-structural and mostly non-controversial amendments. However, even though the least demanding procedurally, the process is still quite elaborate. For example, it requires significant public participation, including ensuring that there is a three-month public consultation period between the time a constitutional amendment bill is tabled in the National Assembly or the Senate and its debate and consideration. Additionally, for a constitutional amendment to succeed, it must be supported by two-third members of each House of Parliament– a critical number that requires significant parliamentary mobilisation.
- The second amendment process involves more controversial amendments that touch on a subject that requires both the passage of amendments by Parliament through two-thirds support and a referendum. As I will discuss later, there are imponderable number of amendments that require passage through a referendum.
- The third amendment process through a popular initiative is the most onerous. The first step requires the sponsor of the amendment to collect, and have the Independent Electoral Boundaries Commission (IEBC) to verify that at least one million registered voters support the amendment. Once verified, the Bill is sent to the County Assemblies with a requirement that more than half of them approve it for it to be eligible for consideration by Parliament. The Okoa Kenya Bill of 2016 sponsored by the Coalition for Reform and Democracy (CORD) with so much fanfare failed at this first step. Thirdway Alliance’s Punguza Mzigo Bill of 2019 failed at the second step when only one County Assembly supported it. An amendment bill through a popular initiative still requires consideration by Parliament and has to meet the procedural hurdles required of amendment bills going through the other two processes except for one exception – if Parliament fails to pass a popular initiative bill, then the bill is put to a vote in a referendum. Regardless, even when a popular initiative bill is passed by Parliament but deals with an issue stipulated to require a referendum, it must still be voted for in a referendum.
The mandatory time needed to effect a constitutional amendment is lengthy. The timeline for passing a non-controversial Parliament-only amendment is at least seven months from the date the bill is first tabled in Parliament. This is because, beside the usual administrative processes a bill has to go through, there is the extra requirement that each house must wait for at least ninety days between the first and second reading of a constitutional amendment bill in order to facilitate thorough public participation. In legislative politics, seven months is a lifetime. It is impossible for sponsors of the bill to guarantee, from the outset, that initial support or consensus they procured for an amendment would be sustained for that long. This has been the fate of endless constitutional amendment bills introduced in Parliament to amend the 2010 constitution.
The role of courts in amending the constitution
There is another factor that makes the amendment process even more onerous and time-consuming – the courts. Courts have the power to look at whether the sponsors of a constitutional amendment have complied with the necessary constitutional procedure for each relevant step.
While it is unlikely that courts would interfere with amendments that are before Parliament – by, for example issuing orders to stall the parliamentary process – still the uncertainty that litigation presents becomes a hiccup in the process. This was the lesson MPs learnt, and through the hard way, in 2013 when they introduced a constitutional amendment bill that sought to take them out of the designation of state officers. The MPs had mistakenly thought that the amendment would allow them to raise their salaries and perks unfettered by the Salaries and Remuneration Commission. The Commission for the Implementation of the Constitution sued, requesting the court to declare the proposed amendments unconstitutional. Although Justice Lenaola, who decided the matter, did not restrain Parliament from its efforts to amend the constitution, his judgment was clear that if Parliament passed a constitutional amendment through a process that was non-compliant with the constitution, the court would invalidate the amendment. After the judgment, Parliament quietly abandoned the amendment bill. I still return to the role of courts when I discuss unconstitutional constitutional amendments below.
There is another factor that makes the amendment process even more onerous and time-consuming – the courts. Courts have the power to look at whether the sponsors of a constitutional amendment have complied with the necessary constitutional procedure for each relevant step.
Broad support and genuine consensus
The complexity and onerous demands to enact constitutional amendments were tools that the drafters of the constitution used to ensure that any proposed constitutional amendments enjoyed broad and multi-partisan and multi-sectoral support. The lengthy timeline needed to successfully pass constitutional amendments underlines the need for broad and genuine civic and political consensus-building. Because constitutional changes are high-stake issues, sustaining civic and political support that is based either on intimidation or political convenience is mostly untenable. Essentially the type of proposals that can weather the onerous amendment procedures and lengthy amendment processing timelines would be of the nature that address a genuine, enduring and people-centric issue.
There is another reason why broad support and consensus that go beyond the political elites is necessary to achieve constitutional amendments. Article 255 spells out amendments that must be subjected to a referendum, including on critical and significant issues, such as the territory of Kenya, the independence of the judiciary and the Bill of Rights.
The complexity and onerous demands to enact constitutional amendments were tools that the drafters of the constitution used to ensure that any proposed constitutional amendments enjoyed broad and multi-partisan and multi-sectoral support.
The list in Article 255 may seem unexpansive, but in reality and substance, it is a very elastic and nearly imponderable list. Regardless, most of the critical provisions that politicians would be keen to amend (judging from the Okoa Kenya Bill and the initial BBI report) would demand a referendum. This is because the politicians’ proposals have always oscillated around amendments relating to the supremacy of the constitution, the sovereignty of the people, the nature of or term of the president, national values, the functions of Parliament, the independence of the judiciary or devolution, all of which are enumerated as requiring passage through a referendum. Thus the kind of changes that politicians wish for to be able to create a power-sharing matrix that allows as many of them to be on the trough at the same time call for a referendum.
A referendum not only adds to the timelines, but presents other complexities. These include the need for significant financial outlay to fund the referendum, as well as the high possibility of political volatility and unsettling political and economic paralysis triggered by the referendum campaigns. These factors should be consequential in determining how much push BBI should expect from the state – and Kenyans’ goodwill – especially given the financial disruption that COVID-19 has imposed on the economy.
Those wielding executive political or “handshake” power might easily haggle for support for the amendments from the political elites by, for example, doling out political positions and financial handouts or through political intimidation. Yet these tactics are likely to be ineffective in procuring voters’ acquiescence. To be sure, without the certainty that a critical mass of voters will readily support proposed amendments makes a push for constitutional amendments tentative, illogical, unwise, and a fragile political gamble.
Importantly, when such a gamble is being taken so close to a constitutionally-ordained general election date, it is likely an unworthy venture. That is likely to be the fate of BBI. Essentially, by the time (if) the process has fully matured for a referendum, it will likely be too close to August 2022, forcing Raila Odinga to choose between a campaign for the presidency or a campaign to change the constitution. I can bet what his choice will be – as I can easily bet that if he decides to straddle both, it will likely be the surest way to lose both the referendum and the presidency. And for Uhuru Kenyatta, overseeing a general election and a referendum close to each other will only be politically sensible if he wants to be prime minister – an obvious political minefield.
Unconstitutional constitutional amendments and the basic constitution structure doctrine
A much more technical and unpredictable issue poses additional significant risks to the anticipated BBI amendments. Again, going by the initial reports and credible political rhetoric, the changes proposed are likely to affect at least two critical areas: the system of governance to introduce either a parliamentary system or a fused presidential and parliamentary system; and changes to help neuter the judiciary because of its consistent fidelity to the 2010 constitution and for arrogating itself the guard rail role to push back against the executive’s push towards authoritarianism.
An additional possible change is on devolution, dangled as a carrot either to appease voters by increasing the minimum amount of funds constitutionally transferred to counties or as a strategy to buy off the support of governors by creating a third tier of government which the retiring governors will believe is theirs to superintend.
Certainly I could be off the mark with the above predictions, but the bottom line is that after so much hype, it is hard to see what consequential amendments BBI would propose that will not, in form or substance, at least significantly alter the system of governance under the 2010 constitution.
But first a clarification on what unconstitutional constitution amendments and basic structure doctrine entails. The notion of basic structure holds that a constitution, like a multi-storey building, has varying architectural features. Some of these features (chapters or provisions) could be removed or substituted without affecting the structural integrity of the building. But there are basic or fundamental features that cannot be removed or substituted without compromising a building’s foundational and structural integrity. In the constitution, the basic or fundamental features or provisions constitute the basic structure of the constitution. The rule then is that provisions or features that constitute the basic structure of the constitution are unamendable. The only way to replace them is by overhauling the entire constitution.
The concept of unconstitutional constitutional amendments is broader. It encompasses the aspect of the basic structure of the constitution – which tend to deal with substantive content of the constitution – as well as the processes the constitution provides for its amendment. Where the constitution requires a certain procedure to be followed in its amendment, the consequence of non-compliance with any aspect of the procedure results in an unconstitutional constitutional amendment. Both concepts are central in determining the constitutionality and validity of any amendments made to the Kenyan constitution. But let’s start with the basic structure doctrine.
Essentially, by the time (if) the process has fully matured for a referendum, it will likely be too close to August 2022, forcing Raila Odinga to choose between a campaign for the presidency or a campaign to change the constitution.
Already Kenyan courts have accepted that certain features of the constitution constitute its basic structure, including the national values and principles of governance. Importantly, the court in the case pitting MPs against the Salaries and Remuneration Commission was emphatic and precise that it would declare invalid any constitutional amendments that interfere with the basic structure of the constitution. Additionally, in that case, the court demonstrated that it would thoroughly interrogate any constitutional amendment to be sure that in no way does it affect the basic structure or interfere with the internal coherence of the constitution. This approach allows the court – as it should – significant leeway to invalidate constitutional amendments created for political convenience or which are just a patchwork to facilitate selfish ends.
The logic of intertwining the basic structure doctrine and the concept of unconstitutional constitutional amendments is readily available. The latter insists on the need for those sponsoring an amendment to the constitution to ensure that they strictly adhere to constitutional processes of amendments, including observing the relevant mandatory timelines, ensuring adequate and effective public participation, including observing a mandatory 90-day constitutional hiatus between the first and second reading of the bill, among other more technical procedural requirements. Failure to comply with any of the enumerated or derivative normative requirements exposes any constitutional amendment to the risk of being invalidated by the court.
The true fate of BBI
Critically, the concept of unconstitutional constitutional amendments and the confirmation that Kenya’s 2010 constitution contains a basic structure has one significant implication for BBI or any other substantial amendments that may be proposed. The implication is that any substantial amendments that Parliament forces through without the involvement of the people through a referendum will be invalid.
This means that the efforts that Uhuru Kenyatta and Raila Odinga are currently involved in of whipping parliamentarians into line through carrot-and-stick tactics in preparation of stifling parliamentary dissent against BBI amendments may all end in nought. The true fate of BBI amendments hinge on time and the people.
African Continent a Milking Cow for Google and Facebook
‘Sandwich’ helps tech giants avoid tax in Africa via the Netherlands and Ireland.
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.
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.
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.
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’.
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.
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’.
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 2019. This leaves US$ eighteen billion for Africa and the Middle East.
This article was first published by our partner ZAM Magazine.
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?
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.
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.
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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