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.
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Lagos From Its Margins: Everyday Experiences in a Migrant Haven
From its beginnings as a fishing village, Lagos has grown into a large metropolis that attracts migrants seeking opportunity or Internally Displaced Persons fleeing violence.
Lagos, City of Migrants
From its origins as a fishing village in the 1600s, Lagos has urbanised stealthily into a vast metropolis, wielding extensive economic, political and cultural influence on Nigeria and beyond. Migration in search of opportunities has been the major factor responsible for the demographic and spatial growth of the city as Lagos has grown from 60,221 in 1872 to over 23 million people today. The expansion of the city also comes with tensions around indigene-settler dynamics, especially in accessing land, political influence and urban resources. There are also categories of migrants whose status determines if they can lay hold of the “urban advantage” that relocating to a large city offers.
A major impetus to the evolution of modern Lagos is the migration of diverse groups of people from Nigeria’s hinterland and beyond. By the 1800s, waves of migrants (freed slaves) from Brazil and Freetown had made their way to Lagos, while many from Nigeria’s hinterland including the Ekiti, Nupes, Egbas and Ijebus began to settle in ethnic enclaves across the city. In the 1900s, migrant enclaves were based on socio-economic and/or ethnicity status. Hausas (including returnees from the Burma war) settled in Obalende and Agege, while the Ijaw and Itsekiri settled in waterfront communities around Ajegunle and Ijora. International migrant communities include the Togolese, Beninoise and Ghanaian, as well as large communities of Lebanese and Indian migrants. The names and socio-cultural mix in most Lagos communities derive from these historical migrant trajectories.
A study on coordinated migrations found that, as a destination city, Lagos grew 18.6 per cent between 2000 and 2012, with about 96 per cent of the migrants coming from within Nigeria. While migration to Lagos has traditionally been in search of economic opportunities, new classes of migrants have emerged over the last few decades. These are itinerant migrants and internally displaced persons.
Itinerant migrants are those from other areas of Nigeria and West Africa who travel to work in Lagos while keeping their families back home. Mobility cycles can be weekly, monthly or seasonal. Such migrants have no address in Lagos as they often sleep at their work premises or in mosques, saving all their earned income for remittance. They include construction artisans from Benin and Togo who come to Lagos only when they have jobs, farmers from Nigeria’s northern states who come to Lagos to work as casual labourers in between farming seasons (see box), as well as junior staff in government and corporate offices whose income is simply too small to cover the high cost of living in Lagos.
While people from Nigeria’s hinterland continue to arrive in the city in droves, the wave of West African in-migration has ebbed significantly. This is mostly because of the economic challenges Nigeria is currently facing that have crashed the Naira-to-CFA exchange rates. As a result, young men from Togo, Ghana and Benin are finding cities like Dakar and Banjul more attractive than Lagos.
Aliu* aka Mr Bushman, from Sokoto, Age 28
Aliu came to Lagos in 2009 on the back of a cattle truck. His first job was in the market carrying goods for market patrons. He slept in the neighbourhood mosque with other young boys. Over the years, he has done a number of odd jobs including construction work. In 2014, he started to work as a commercial motorcyclist (okada) and later got the opportunity to learn how to repair them. He calls himself an engineer and for the past four years has earned his income exclusively from riding and repairing okada. Even though he can afford to rent a room, he currently lives in a shared shack with seven other migrants.
He makes between N5000 and N8000 weekly and sends most of it to his family through a local transport operator who goes to Sokoto weekly. His wife and three children are in the village, but he would rather send them money than bring them to Lagos. According to him, “The life in Lagos is too hard for women”.
Since he came to Lagos thirteen years ago, Aliu has never spent more than four months away from Sokoto at a time. He stays in Sokoto during the rainy season to farm rice, maize and guinea corn, and has travelled back home to vote every time since he came to Lagos.
The second category of migrants are those who have been displaced from their homesteads in Northern Nigeria by conflict, either Boko Haram insurgency or invasions by Fulani herdsmen. The crises have resulted in the violent destruction of many communities, with hundreds of thousands killed and many more forced to flee. With many who initially settled in camps for Internally Displaced Persons (IDP) dissatisfied with camp conditions, the burden of protracted displacement is now spurring a new wave of IDP migration to urban areas. Even though empirical data on the exact number of displaced persons migrating out of camps to cities is difficult to ascertain, it is obvious that this category of migrants are negotiating their access to the city and its resources in circumstances quite different from those of other categories of migrants.
IDPs as the emerging migrant class in Lagos
According to the United Nations High Commission for Refugees, two of every three internally displaced persons globally are now living in cities. Evidence from Nigeria suggests that many IDPs are migrating to urban areas in search of relative safety and resettlement opportunities, with Lagos estimated to host the highest number of independent IDP migrants in the country. In moving to Lagos, IDPs are shaping the city in a number of ways including appropriating public spaces and accelerating the formation of new settlements.
There are three government-supported IDP camps in the city, with anecdotal evidence pointing to about eighteen informal IDP shack communities across the city’s peri-urban axis. This correlates with studies from other cities that highlight how this category of habitations (as initial shelter solutions for self-settled IDPs) accelerate the formation of new urban informal settlements and spatial agglomerations of poverty and vulnerability.
While people from Nigeria’s hinterland continue to arrive in the city in droves, the wave of West African in-migration has ebbed significantly.
IDPs in Lagos move around a lot. Adamu, who currently lives in Owode Mango—a shack community near the Lagos Free Trade zone—and has been a victim of forced eviction four times said, “As they [government or land owners] get ready to demolish this place and render us homeless again, we will move to another area and live there until they catch up with us.”
In the last ten years, there has been an increase in the number of homeless people on the streets of Lagos—either living under bridges, in public parks or incomplete buildings. Many of them are IDPs who are new migrants, and unable to access the support necessary to ease their entry into the city’s established slums or government IDP camps. Marcus, who came from Adamawa State in 2017 and has been living under the Obalende Bridge for five years, said, “I am still managing, living under the bridge. I won’t do this forever, my life will not end like this under a bridge. I hope to one day return to my home and continue my life”.
Blending in or not: Urban integration strategies
Urban integration can be a real challenge for IDP migrants. Whereas voluntary migrants are often perceived to be legal entrants to the city and so can lay claim to urban resources, the same cannot be said about IDPs. Despite being citizens, and despite Nigeria being a federation, IDPs do not have the same rights as other citizens in many Nigerian cities and constantly face stigmatisation and harassment, which reinforces their penchant for enclaving.
The lack of appropriate documentation and skillsets also denies migrants full entry into the socio-economic system. For example, Rebekah said: “I had my WAEC [Senior Secondary school leaving certificate] results and when Boko Haram burnt our village, our family lost everything including my certificates. But how can I continue my education when I have not been able to get it? I have to do handwork [informal labour] now”. IDP children make up a significant proportion of out-of-school children in Lagos as many are unable to get registered in school simply because of a lack of address.
Most IDPs survive by deploying social capital—especially ethnic and religious ties. IDP ethnic groupings are quite organized; most belong to an ethnic-affiliated group and consider this as particularly beneficial to their resettlement and sense of identity in Lagos. Adamu from Chibok said, “When I come to Lagos in 2017, I come straight to Eleko. My brother [kinsman] help me with house, and he buy food for my family. As I no get work, he teach me okada work wey he dey do.”
The crises have resulted in the violent destruction of many communities, with hundreds of thousands killed and many more forced to flee.
Interestingly, migration to the city can also be good for women as many who were hitherto unemployed due to cultural barriers are now able to work. Mary who fled Benue with her family due to farmer-herder clashes explained, “When we were at home [in Benue], I was assisting my husband with farming, but here in Lagos, I have my own small shop where I sell food. Now I have my own money and my own work.”
Need for targeted interventions for vulnerable Lagosians
“Survival of the fittest” is an everyday maxim in the city of Lagos. For migrants, this is especially true as they are not entitled to any form of structured support from the government. Self-settlement is therefore daunting, especially in light of systemic limiting factors.
Migrants are attracted to big cities based on perceived economic opportunities, and with limited integration, their survival strategies are inevitably changing the spatial configurations of Lagos. While the city government is actively promoting urban renewal, IDP enclaving is creating new slums. Therefore, addressing the contextualised needs of urban migrant groups is a sine qua non for inclusive and sustainable urban development.
“I am still managing, living under the bridge. I won’t do this forever, my life will not end like this under a bridge. I hope to one day return to my home and continue my life”.
There is an established protocol for supporting international refugees. However, the same cannot be said for IDPs who are Nigerian citizens. They do not enjoy structured support outside of camps, and we have seen that camps are not an effective long-term solution to displacement. There is a high rate of IDP mobility to cities like Lagos, which establishes the fact that cities are an integral part of the future of humanitarian crisis. Their current survival strategies are not necessarily harnessing the urban advantage, especially due to lack of official recognition and documentation. It is therefore imperative that humanitarian frameworks take into account the role of cities and also the peculiarities of IDP migrations to them.
Lagos remains a choice destination city and there is therefore need to pay more attention to understanding the patterns, processes and implications of migration into the city. The paucity of migration-related empirical data no doubt inhibits effective planning for economic and social development. Availability of disaggregated migration data will assist the state to develop targeted interventions for the various categories of vulnerable Lagosians. Furthermore, targeted support for migrant groups must leverage existing social networks, especially the organised ethnic and religious groups that migrants lean on for entry into the city and for urban integration.
*All names used in this article are pseudonyms
It’s a Nurses’ Market Out There, and Kenyans Are Going For It
Nurses are central to primary healthcare and unless Kenya makes investments in a well-trained, well supported and well-paid nursing workforce, nurses will continue to leave and the country is unlikely to achieve its Sustainable Development Goals in the area of health and wellbeing for all.
Nancy* is planning to leave Kenya. She wants to go to the United States where the nursing pastures are supposedly greener. I first met Nancy when the country was in the throes of the COVID-19 pandemic that tested Kenya’s healthcare system to breaking point. She was one of a cohort of recently graduated nurses that were hastily recruited by the Ministry of Health and thrown in at the deep end of the pandemic. Nancy earns KSh41,000 net with no other benefits whatsoever, unlike her permanent and pensionable colleagues.
When the then Labour and Social Protection Cabinet Secretary Simon Chelugui announced in early September 2021 that the government would be sending 20,000 nurses to the United Kingdom to help address the nursing shortage in that country, Nancy saw her chance. But her hopes were dashed when she failed to raise the KSh90,000 she needed to prepare and sit for the English language and nursing exams that are mandatory for foreign-trained nurses. Nancy would also have needed to pay the Nursing Council of Kenya KSh12,000 for the verification of her documents, pay the Kenya Medical Training College she attended KSh1,000 in order to get her exam transcripts, and apply for a passport, the minimum cost of which is KSh4,550 excluding the administrative fee. Nancy says that, contrary to then Health Cabinet Secretary Mutahi Kagwe’s disputed claims that a majority of applicants to the programme had failed the English language test, most nurses simply could not afford the cost of applying.
Of the targeted 20,000 nurses, the first 19 left Kenya for the UK in June 2022. But even that paltry figure represents a significant loss for Kenya, a country where the ratio of practicing nurses to the population is 11.66 per 10,000. The WHO considers countries with less than 40 nurses and midwives for every 10,000 people to not have enough healthcare professionals. Nearly 60 per cent of all healthcare professionals (medical physicians, nursing staff, midwives, dentists, and pharmacists) in the world are nurses, making them by far the most prevalent professional category within the health workforce. Nurses offer a wide range of crucial public health and care services at all levels of healthcare facilities as well as within the community, frequently serving as the first and perhaps the only healthcare provider that people see.
The growing shortage of nurses in the UK has been blamed on the government’s decision to abolish bursaries and maintenance grants for nursing students in 2016, leading to a significant drop in the number of those applying to train as nurses. Consequently, the annual number of graduate nurses plummeted, reaching the current low of 31 nurses per 100,000 people, below the European average of 36.6 and half as many as in countries like Romania (96), Albania (82) and Finland (82). Facing pressure to recruit 50,000 nurses amid collapsing services and closures of Accident & Emergency, maternity and chemotherapy units across the country, the UK government decided to once again cast its net overseas. Established in 1948, the UK’s National Health Service (NHS) has relied on foreign healthcare workers ever since staff from the Commonwealth were first brought in to nurse back to health a nation fresh out of the Second World War.
The UK government’s press release announcing the signing of the Bilateral Agreement with Kenya states that the two countries have committed “to explore working together to build capacity in Kenya’s health workforce through managed exchange and training” and goes as far as to claim that “with around only 900 Kenyan staff currently in the NHS, the country has an ambition to be the ‘Philippines of Africa’ — with Filipino staff one of the highest represented overseas countries in the health service — due to the positive economic impact that well-managed migration can have on low to middle income countries.”
It is a dubious ambition, if indeed it has been expressed. The people of the Philippines do not appear to be benefiting from the supposed increase in capacity that the exchange and training is expected to bring. While 40,000 of their nurses worked in the UK’s National Health Service last year, back home, according to Filipino Senator Sonny Angara, “around 7 of 10 Filipinos die without ever seeing a health professional and the nurse to patient ratio in our hospitals remains high at 1:50 up to 1:802”.
Since 2003 when the UK and the government of the Philippines signed a Memorandum of Understanding on the recruitment of Filipino healthcare professionals, an export-led industry has grown around the training of nurses in the Philippines that has attracted the increased involvement of the private sector. More nursing institutions — that have in reality become migrant institutions — are training nurses specifically for the overseas market, with the result that skills are matched to Western diseases and illnesses, leaving the country critically short of healthcare personnel. Already, in 1999, Filipino doctors had started retraining as nurses and leaving the country in search of better pay.
It is difficult, then, to see how the Philippines is an example to emulate. Unless, of course, beneath the veneer of “partnership and collaboration in health”, lies the objective of exporting Kenyan nurses with increased diaspora remittances in mind – Kenyans in the UK sent KSh28.75 billion in the first nine months of 2022, or nearly half what the government has budgeted for the provision of universal health care to all Kenyans. If that is the case, how that care is to be provided without nurses is a complete mystery.
Already in 1999, Filipino doctors had started retraining as nurses and leaving the country in search of better pay.
For the UK, on the other hand, importing nurses trained in Kenya is a very profitable deal. Whereas the UK government “typically spends at least £26,000, and sometimes far more, on a single nurse training post”, it costs only £10,000 to £12,000 to recruit a nurse from overseas, an externalization of costs that commodifies nurses, treating them like goods to be bought and sold.
However, in agreeing to the terms of the trade in Kenyan nurses, the two governments are merely formalizing the reality that a shortage of nurses in high-income countries has been driving the migration of nurses from low-income countries for over two decades now. Along with Ghana, Nigeria, South Africa and Zimbabwe, Kenya is one of the top 20 countries of origin of foreign-born or foreign-trained nurses working in the countries of the OECD, of which the UK is a member state.
Faced with this reality, and in an attempt to regulate the migration of healthcare workers, the World Health Assembly adopted the WHO Global Code of Practice on the Recruitment of Health Personnel in May 2010. The code, the adherence to which is voluntary, “provides ethical principles applicable to the international recruitment of health personnel in a manner that strengthens the health systems of developing countries, countries with economies in transition and small island states.”
Article 5 of the code encourages recruiting countries to collaborate with the sending countries in the development and training of healthcare workers and discourages recruitment from developing countries facing acute shortages. Given the non-binding nature of the code, however, and “the severe global shortage of nurses”, resource-poor countries, which carry the greatest disease burden globally, will continue to lose nurses to affluent countries. Wealthy nations will inevitably continue luring from even the poorest countries nurses in search of better terms of employment and better opportunities for themselves and their families; Haiti is on the list of the top 20 countries supplying the OECD region.
“Member States should discourage active recruitment of health personnel from developing countries facing critical shortages of health workers.”
Indeed, an empirical evaluation of the code four years after its adoption found that the recruitment of health workers has not undergone any substantial policy or regulatory changes as a direct result of its introduction. Countries had no incentive to apply the code and given that it was non-binding, conflicting domestic healthcare concerns were given the priority.
The UK’s Department of Health and Social Care (DHSC) has developed its own code of practice under which the country is no longer recruiting nurses from countries that the WHO recognizes as facing health workforce challenges. Kenya was placed on the UK code’s amber list on 11 November 2021, and active recruitment of health workers to the UK was stopped “with immediate effect” unless employers had already made conditional offers to nurses from Kenya on or before that date. Presumably, the Kenyan nurses who left for the UK in June 2022 fall into this category.
In explaining its decision, the DHSC states that “while Kenya is not on the WHO Health Workforce Support & Safeguards List, it remains a country with significant health workforce challenges. Adding Kenya to the amber list in the Code will protect Kenya from unmanaged international recruitment which could exacerbate existing health and social care workforce shortages.”
The WHO clarifies that nothing in its Code of Practice should be interpreted as curtailing the freedom of health workers to move to countries that are willing to allow them in and offer them employment. So, even as the UK suspends the recruitment of Kenyan nurses, they will continue to find opportunities abroad as long as Western countries continue to face nurse shortages. Kenyan nurses will go to the US where 203,000 nurses will be needed each year up to 2026, and to Australia where the supply of nursing school graduates is in decline, and to Canada where the shortage is expected to reach 117,600 by 2030, and to the Republic of Ireland which is now totally dependent on nurses recruited from overseas and where working conditions have been described as “horrendous”.
“Adding Kenya to the amber list in the Code will protect Kenya from unmanaged international recruitment which could exacerbate existing health and social care workforce shortages.”
Like hundreds of other Kenyan-trained nurses then, Nancy will take her skills overseas. She has found a recruitment agency through which to apply for a position abroad and is saving money towards the cost. She is not seeking to move to the UK, however; Nancy has been doing her research and has concluded that the United States is a much better destination given the more competitive salaries compared to the UK where nurses have voted to go strike over pay and working conditions. When she finally gets to the US, Nancy will join Diana*, a member of the over 90,000-strong Kenyan diaspora, more than one in four of whom are in the nursing profession.
Now in her early 50s, Diana had worked for one of the largest and oldest private hospitals in Nairobi for more than 20 years before moving to the US in 2017. She had on a whim presented her training certificates to a visiting recruitment agency that had set up shop in one of Nairobi’s high-end hotels and had been shortlisted. There followed a lengthy verification process for which the recruiting agency paid all the costs, requiring Diana to only sign a contract binding her to her future US employer for a period of two years once she had passed the vetting process.
Speaking from her home in Virginia last week, Diana told me that working as a nurse in the US “is not a bed of roses”, that although the position is well paying, it comes with a lot of stress. “The nurse-to-patient ratio is too high and the job is all about ticking boxes and finishing tasks, with no time for the patients,” she says, adding that in such an environment fatal mistakes are easily made. Like the sword of Damocles, the threat of losing her nursing licence hangs over Diana’s head every day that she takes up her position at the nursing station.
“The nurse-to-patient ratio is too high and the job is all about ticking boxes and finishing tasks, with no time for the patients.”
Starting out as an Enrolled Nurse in rural Kenya, Diana had over the years improved her skills, graduating as a Registered Nurse before acquiring a Batchelor of Science in Nursing from a top private university in Kenya, the tuition for which was partially covered by her employer.
Once in the US, however, her 20 years of experience counted for nothing and she was employed on the same footing as a new graduate nurse, as is the case for all overseas nurses moving to the US to work. Diana says that, on balance, she would have been better off had she remained at her old job in Kenya where the care is better, the opportunities for professional growth are greater and the work environment well controlled. But like many who have gone before her, Diana is not likely to be returning to Kenya any time soon.
*Names have been changed.
Why Azimio’s Presidential Petition Stood No Chance
In so far as the court had nullified the 2017 elections, the evidential threshold required for any subsequent electoral nullification was going to be substantially high for any petitioner.
Even before the 9 August general election, it was expected that the loser of the Kenyan presidential contest would petition the Supreme Court to arbitrate over the outcome. Predictably, the losing party, Azimio La Umoja-One Kenya Coalition, petitioned the court to have William Ruto’s win nullified on various procedural and technical grounds. Azimio’s case was predicated on, among others, three key allegations. First, that William Ruto failed to garner the requisite 50 per cent plus one vote. Second, that the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati had announced the outcome without tallying and verifying results from seven constituencies. Finally, that the commission could not account for 250,000 votes that were cast electronically.
As we know, Azimio lost the case as the judges dismissed all the nine petitions that the party had filed, unanimously finding that William Ruto had won fairly.
Adjudicating electoral fallouts
Since its inception in 2010, the Supreme Court has played a decisive role in adjudicating fallouts linked to contentious presidential politics in Kenya, with the court deliberating on the outcome of three out of the four presidential elections held after its inauguration. Prior to this, the losing party had no credible institutional mechanism of redress and electoral disputes were generally resolved through mass political action (as in 2007) or consistent questioning of the legitimacy of the winner (as in 1992 and 1997).
The Supreme Court’s presence has, therefore, been crucial in providing losers with an institutionalised mechanism to channel dissent, with the court operating as a “safety valve” to diffuse political tensions linked to presidential elections. It is, hence, impossible to conceive of the relatively peaceful elections held in 2013, 2017 and 2022 without the Supreme Court whose mere presence has been key in discouraging some of the more deadly forms of political rivalry previously witnessed in Kenya.
While the Azimio leadership were right to petition the court in the recent election, first because this successfully diffused the political tensions among their supporters, and second because the court was expected to provide directions on IEBC conduct in future elections, it was clear that Raila Odinga’s relentless petitioning of the court in the previous two elections, and the nullification of the 2017 elections, was in essence going to be a barrier to a successful petition in 2022.
In so far as the court had nullified the 2017 elections, the evidential threshold required for any subsequent electoral nullification was going to be substantially high for any petitioner. The relentless petitioning of the court and the nullification of the 2017 elections had in essence raised the bar for the burden of proof, which lay with the petitioner(s) and, therefore, reduced the probability of a successful petition.
The Supreme Court’s presence has been crucial in providing losers with an institutionalised mechanism to channel dissent.
The reason for this is both legal and political. Legal in the sense that the IEBC is expected to conduct the elections under the law, which, among other issues, requires that the electoral process be credible and the results verifiable before any certification is made, otherwise the election is nullified, as was the case in 2017. It is political because the power to select the president is constitutionally, hence politically, delegated to the Kenyan people through the ballot, unless electoral fraud infringes on this, again as was the case in 2017.
The court in its deliberation must, therefore, balance the legal-political trade-off in its verdict in search of a plausible equilibrium. For instance, while the majority of Azimio supporters had anticipated a successful petition based on the public walkout and dissent by the four IEBC commissioners, it seems that the decision to uphold the results displayed the court’s deference to political interpretation of the law by issuing a ruling that did not undermine the Kenyan voters’ right to elect their president.
While the settlement of legal-political disputes by a Supreme/Constitutional court is a common feature across democracies, and continuously being embedded in emerging democracies like Kenya, it does seem that in this election, the political motivations for upholding the vote outweighed the legal motivations for nullifying it. In essence, the court demonstrated its institutional independence by ruling against the Kenyatta-backed Azimio candidate due to insufficient evidence.
Supreme Court power grab
A counterfactual outcome where the evidential threshold for the nullification of presidential results is low would foster a Supreme Court power grab, in lieu with the 2017 nullification, by marginalising the sovereign will of Kenyans to elect their president.
In many ways, nullification of the results would also have incentivised further adversarial political behaviour where every electoral outcome is contested in the Supreme Court even when the outcome is relatively clean, as in the case of the 2022 elections.
It is this reason (among others) that we think underlined the Supreme Court justices’ dismissal of Azimio’s recent petition. The justices ultimately dismissed the evidence presented by the petitioners as “hot air, outright forgeries, red herring, wild goose chase and unproven hypotheses”, setting a clear bar for the standard of evidence they expect in order to deliberate over such an important case in the future.
In essence, the court demonstrated its institutional independence by ruling against the Kenyatta-backed Azimio candidate due to insufficient evidence.
Since the earth-shaking nullification of the 2017 elections, the Supreme Court transcended an epoch, more political than legal by “invading” the sovereign space for Kenyans to elect their president, thereof setting a precedence that any future successful petition to contest a presidential election requires watertight evidence.
In a sense, Azimio were victims of Odinga’s judicial zealotry and especially the successful 2017 petition. In so far as the evidence submitted to the Supreme Court by Azimio in 2022 was at the same level or even lower than the 2017 base, their case at the Supreme Court was very likely to be dismissed and even ridiculed as the justices recently did.
The precedent set by the 2022 ruling will, actually, yield two positive political outcomes. First, it will in the future weed out unnecessary spam petitions that lack evidence and rather increase needless political tensions in the country. Second, it has signalled to future petitioners, that serious deliberations will only be given to petitions backed by rock-solid evidence.
From the recent ruling, it is evident that the judgement fell far below the precedent set in 2017. The 2017 Supreme Court ruling that the IEBC should make the servers containing Form 34A publicly available, was crucial in improving the credibility of the 2022 elections, by democratising the tallying process. At a minimum, the expectation was that the justices would provide a directive on the recent public fallout among the IEBC commissioners with regard to future national tallying and announcement of presidential results.
By dismissing the fallout as a mere corporate governance issue, the justices failed to understand the political ramifications of the “boardroom rupture”. What are we to do in the future if the IEBC Chair rejects the results and the other commissioners validate the results as credible?
Additionally, by ridiculing the petitioners as wild goose chasers and dismissing the evidence as “hot air”, the justices failed to maintain the amiable judicial tone necessary to decompress and assuage the bitter grievances among losers in Kenya high-octane political environment.
In a sense, Azimio were victims of Mr Odinga’s judicial zealotry and especially the 2017 successful petition.
The Supreme Court ought to resist the temptations of trivializing electoral petitions, as this has the potential of triggering democratic backsliding, where electoral losers might opt for extra-constitutional means of addressing their grievances as happened in December 2007. It is not in the petitioners’ place to ascertain whether their evidence is “hot air” or not, but for the court to do so, and in an amiable judicial tone that offers reconciliation in a febrile political environment.
The precedent set by the 2017 ruling that clarified the ambiguities related to the IEBC’s use of technology to conduct elections, set an incremental pathway towards making subsequent elections credible and fair, and increased public trust in the key electoral institutions in Kenya.
The justices, therefore, need to understand that their deliberations hold weight in the public eye and in the eyes of political leaders. Therefore, outlining recommendations to improve the IEBC’s conduct in future elections is a bare minimum expectation among Kenyans. In this case, while they provided some recommendations, they failed to comprehensively address the concerns around the walk-out by the four IEBC commissioners.
At the minimum, chastising the IEBC conduct was necessary to consolidate the electoral gains made thus far but also recalibrate institutional imperfections linked to how elections are to be conducted and, especially, contestations around the role of the commissioners in the national tallying of results in the future.
This article is part of our project on information and voter behaviour in the 2022 Kenyan elections. The project is funded by the Centre for Governance and Society, Department of Political Economy, King’s College London.
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