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Manufacturing a Crisis: How the Executive Is Failing the Judiciary

9 min read.

Efforts by Kenya’s Executive to undermine the Judiciary point to a regime that is intent on concentrating decision-making power within itself. Part of the reason why the Judiciary is under pressure is because Parliament is not playing its constitutionally-mandated role in checking the Executive’s power.

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Manufacturing a Crisis: How the Executive Is Failing the Judiciary
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On 8 June 2020, the head of the Judiciary in Kenya, Chief Justice David Maraga, publicly accused the Executive and President Uhuru Kenyatta of grave constitutional violations, including disregarding court orders, failing to approve the appointment of new judges, and generally acting in a manner likely to suggest that the president’s agenda was to diminish the stature of the Judiciary.

In mid-2019 the Judicial Service Commission (JSC) recommended 41 individuals to be appointed a judges to the president. The JSC is an independent constitutional commission that was created to ensure the independence and accountability of the Judiciary, to oversee judicial appointments, as well as to receive and investigate complaints against judges. The JSC was set up in response to a long history of the Executive’s dominance over the Judiciary.

To date, none of the 41 recommended individuals has been appointed. The Executive cites integrity questions as regards some of them, as well as sitting judges, saying that he is not a mere rubber stamp for the JSC. The Judiciary, on its part, maintains that under the 2010 Constitution of Kenya, the president has no power to refuse names recommended to him by the JSC, that the Executive is attempting to claw back powers taken away from it by the constitution, and that the delay in effecting the appointments is one of several measures the Executive has undertaken to undermine the Judiciary’s efficacy.

Legal commentators have pointed to the centrality of the Supreme Court in resolving election disputes and discerned intent by the Executive to fill the Judiciary with appointments that are more in line with its point of view. The Executive has defended its position by pointing the finger back saying that the Judiciary is the author of its own misfortunes, often citing a historical legacy of case backlogs, on the one hand, and delays in prosecution of corruption cases brought by the Executive, on the other.

Why is this happening now?

In a potent and unprecedented display of judicial independence and might, the Supreme Court of Kenya famously annulled the 2017 presidential election and ordered a re-run. The incumbent’s laudable acceptance of the judgement was nonetheless beset with ominous overtones directed at the Judiciary to the effect that there would come a time of reckoning. Subsequent behaviour and public statements by the Executive indicate a perception on its part that the Judiciary is a hotbed of activists rather than neutral arbiters. Furthermore the Executive has accused the Judiciary of being a hindrance to its efforts in fighting corruption, a matter this author has previously discussed.

Efforts by Kenya’s Executive to undermine the Judiciary point to a regime that is intent on concentrating decision-making power within itself. Part of the reason why the Judiciary is under pressure is because Parliament is not playing its constitutionally-mandated role in checking the Executive’s power.

Public spats between the two branches of government are surprising given the existence of formal mechanisms of communication. The National Commission on the Administration of Justice (NCAJ) is a high level co-ordination mechanism established by statute whose members include the Chief Justice, the Attorney General and the Director of Public Prosecution. That these parties have often chosen to ventilate their differences through the mass media is indicative of a communications breakdown.

Furthermore, as a result of the political détente between Uhuru Kenyatta and his main rival-turned-collaborator, Raila Odinga (popularly known as “the handshake”), there does not currently exist an effective opposition in Kenyan democracy. As a result, it would appear that the Judiciary is the last remaining institution capable of standing up to the Executive, keeping it honest and maintaining checks and balances. However, the Judiciary is not adept at playing political games. It communicates mainly through judgments which are long, complex and take a long time to emerge. As such, it is likely to suffer in any public conflict with the Executive, which has a well-oiled public relations machine adept at swaying public opinion.

Public spats between the two branches of government are surprising given the existence of formal mechanisms of communication…That these parties have often chosen to ventilate their differences through the mass media is indicative of a communications breakdown.

Surprisingly enough, a factor behind the current impasse could be that elections in Kenya, and indeed in Africa, have not consistently been free and fair. It has been argued that in order for a sitting regime to encourage judicial independence, two things need to happen. First, the regime needs to believe that elections will be held regularly. This happens in Kenya. Secondly, the incumbent regime needs to believe that it could be defeated in a subsequent election. Such a mentality is likely to exist if elections are ordinarily free and fair and widely regarded as such. Since the primary responsibility of ensuring this falls upon the Independent Electoral and Boundaries Commission (IEBC), which has been found wanting in the past, not only is the Judiciary bearing the burden of a weak Parliament, it is also bearing the brunt of a weak electoral body.

Why is this concerning?

The current situation has a variety of potential consequences, none of which are particularly appealing. It negatively impacts the performance of the Judiciary. If judges are not appointed and sufficient finances are not availed, this exacerbates the existing case backlog and undermines the existing process of institutional reform within the Judiciary. If court orders are not obeyed, this undermines pubic confidence not only in the Judiciary but in the institutional framework established by the constitution. If the political class is encouraged to ventilate grievances outside of the constitution, this is likely to lead to civil strife, particularly come election time.

The Executive will find its war on corruption more difficult since judicial independence is an essential tool to keep bureaucrats and politicians in line, particularly when to do so overtly would be politically costly or even just expensive in terms of expenditure of manpower and finances required for oversight.

The Law Society of Kenya (LSK) was and remains a key actor in establishing the rule of law in Kenya. Political wars could split the LSK, resulting in a division of the bar along political lines. In the latest campaign, Nelson Havi cast himself as the anti-establishment candidate and defeated his main rivals, Maria Mbeneka and Charles Kanjama. The period preceding the election resembled a political campaign, with large sums spent on slick PR campaigns by candidates who represented opposing sides of the political divide. A live debate among the candidates was held on national media prior to the vote. A divided bar would undermine a key player in the struggle for democracy and accountability in Kenya.

The way forward

There is nothing particularly surprising about the current tension between the Judiciary and the Executive. Indeed, it might be argued that such tensions from time to time are healthy and that without them the Judiciary would not be doing its job.

When politicians criticise the Judiciary, they often demonstrate a lack of knowledge of the law. Indeed, rarely will a politician even bother to state the section of the law that they allege the Judiciary to have violated. Furthermore, there is always the tacit implication that the rule of law should be subordinate to the objectives of the Executive branch. This perspective returns Kenya to colonial times when the Judiciary existed to serve the purposes of the Executive. It was treated as an arm of the civil service. This view was further cemented during the Jomo Kenyatta and Daniel arap Moi regimes prior to the promulgation of the Constitution in 2010. The Executive would do well to realise that the Judiciary does not exist to offer services to it. It exists to pass judgements in accordance with the law.

Generally speaking, the Judiciary enforces individual rights, while Parliament exists to provide negotiated solutions to social issues. In enforcing individual rights, the question arises “against whom?” As Kenya is finding out, individual rights need to be enforced not only against other individuals but frequently against the government itself. In early May 2020, for instance, the government evicted more than 7,000 people from the Kariobangi informal settlement in Nairobi after giving a two-day notice and notwithstanding the existence of a court order barring the eviction pending the hearing of a case brought by a local civic group. The interim court order was not an unintended consequence of the system; it is a feature that was very deliberately designed to be part of it.

The Judiciary can help the Executive achieve its aims, particularly where these are difficult to obtain politically. A good example is the war on corruption. The alliance, however, needs to be one borne of separation of powers. Increased authoritarianism by the Executive will not help and neither will judicial activism.

It must be said, however, that the Executive, in making claims of judicial activism, has not satisfactorily demonstrated whether and how the Judiciary has failed to enforce or has gone against the letter and spirit of the constitution or whether the constitution perhaps needs to be amended.

Parliament, the IEBC and the BBI

Part of the reason why the Judiciary is under pressure is because Parliament is not playing its role in checking Executive power. Whereas courts may be better at enforcing individual rights, legislatures are better at negotiating conflicting values. If the court renders something unconstitutional, there is then a burden on Parliament to see whether that thing is in the public interest and requires legislative change or not.

Upon the successful conduct of free and fair elections (a duty given to the IEBC), it is Parliament that bears the primary responsibility of representing the people of Kenya. However, parliamentarians of both houses are disinclined to be overly concerned with their constituents simply because they owe their positions to state largesse dispensed during lavish campaigns. The problem begins before the election though, at the stage of political party primaries, which resemble a process of nomination rather than election and are characterised by widespread irregularities, candidate intimidation and outright bribery.

The Judiciary can help the Executive achieve its aims, particularly where these are difficult to obtain politically. A good example is the war on corruption. The alliance, however, needs to be one borne of separation of powers. Increased authoritarianism by the Executive will not help and neither will judicial activism.

Thus, from the very beginning, parliamentarians are ill-equipped to play a representative role. A large proportion of Kenya thus feels marginalised at the national level. This is exacerbated by the incumbent’s legitimacy issues arising from the conduct of the last election. This gap in representation is real and is what the Building Bridges Initiative (BBI) seeks to fill.

Why does the BBI exist? Primarily as a response to the crisis of legitimacy that President Uhuru Kenyatta suffered subsequent to the last general election, its nullification and the opposition boycott of the re-run. In its Introduction, the BBI report states that Kenyans are weary (and presumably also scared) of divisive politics, and of tense and violent elections that produce a winner who is unacceptable to a large portion of voters.

Returning to Parliament: the constitution may have been reformed. However, the current statutory (as opposed to constitutional) regime that we inherited not only from the past regime but going back all the way to the colonial regime remains largely intact. The colonial legal regime was meant to exercise a high degree of control over the governed. It granted a large degree of discretion to administrators, such as chiefs, that the Judiciary could not touch. Upon independence, successive regimes found such a legal order convenient to their purposes and have sought to retain it. Therefore, there remains a large legislative agenda incumbent upon Parliament to bring Kenyan laws in line with a constitution that returns power back to the people. As may be observed, the more authoritarian a regime is, the more it will seek to establish a compliant Parliament that ignores this responsibility.

Parliament has been ceding key functions to the Executive. Importantly, the critical role of budget-making has increasingly been abdicated to the Executive. It may be expected that without oversight, the Executive would tend towards greater and greater spending. Indeed, what has been witnessed is a huge and growing public debt, inflated and unrealistic revenue collection targets, and consequent pressure on the Kenya Revenue Authority to be as aggressive as possible in raising revenue.

If Parliament abdicates its role in checking the Executive, and leaves this role entirely to the Judiciary, it sets the stage for excessive judicial intervention and renders the Judiciary more prone to attacks of overreaching. This has happened elsewhere. Following the Brexit vote in the United Kingdom, the High Court ruled that the power to begin the process of exiting the European Union lay with Parliament and not the Prime Minister. Tabloid newspapers, inevitably pro-Brexit, saw this as a delaying tactic and labelled three judges as enemies of the public. This undermines constitutionalism as a whole.

Parliament needs to play a bigger role in evaluating the constitutionality of legislation, particularly where this legislation is of great political impact or when there is a conflict between the Judiciary and the Executive. Parliament has a large budget (some say too large) and it seems fair that some of this money be directed towards the kind of research and technical expertise it would take to explore these questions more fully.

If Parliament abdicates its role in checking the Executive, and leaves this role entirely to the Judiciary, it sets the stage for excessive judicial intervention and renders the Judiciary more prone to attacks of overreaching. This has happened elsewhere.

The implications of a weak Parliament go well beyond putting pressure on the Judiciary; they undermine democracy as a whole.

The politics of patronage as a whole, of which both the ruling party and the opposition are guilty, means that areas vote as a bloc and remain resolutely divided between the opposition and the government, almost always on tribal lines. The politics of patronage entrenches ethnic divisions, discourages independent thinking and prevents powerful leaders from being challenged in their own backyards by their own supporters.

Conclusion

The 27th of August 2020 marks ten years since the promulgation of the 2010 constitution. Now is an appropriate time to reflect on whether the Executive has honoured its constitutional mandate in its relationship with the Judiciary.

The foregoing discussion shows that the current tension is to be expected, given Kenya’s past and the powers and duties imposed upon the Judiciary by the constitution. Moreover, there are constitutional means of addressing the conflict that have not been used so far. Again, this is to be expected, given that the constitutional regime is relatively young and its strictures and institutions are yet to come naturally to a political class that often equates faithfulness to the constitution with an attack on its freedom to act.

It is clear that there is a consistent attack by the Executive upon the Judiciary through a variety of means, including the targeting of individual judges for recrimination, the withholding of funds, the failure to abide by the decisions of the Judicial Service Commission, and the disregarding of court orders. This is extremely concerning when seen in light of the fact that in two years, the country will hold a general election. The attacks are likely to result in a chilling effect upon the resolve of the Judiciary to hold the Executive accountable to free and fair elections.

The undermining of public confidence in the Judiciary is likely to result in a public less likely to side with it in a public relations battle rigged in favour of the Executive. Time and again, this country has witnessed that the alternative to judicial arbitration of electoral disputes is violence. If President Uhuru Kenyatta considers peace in Kenya a priority, his administration must obey the constitution and foster judicial independence.

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Chege Waitara is a legal practitioner and commentator based in Nairobi.

Politics

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.

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It’s a Nurses’ Market Out There, and Kenyans Are Going For It
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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.

Kenya had 59,901 nurses/midwives in 2018, rising to 63,580 in 2020. Yet in 2021, Kenya was proposing to send almost a third of them to the UK to “address a shortfall of 62,000 in that country”.

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.

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Politics

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.

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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.

Relentless petitioning

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.

Missed opportunity

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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Politics

GMOs Are Not the Only Answer

In a country where agricultural production is dominated by smallholders, the decision to allow genetically modified crops and animal feeds into Kenya as a means of combatting perennial hunger ignores other safer and more accessible alternatives such as Conservation Agriculture.

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GMOs Are Not the Only Answer
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Newly elected President William Ruto has, to use a much abused expression, hit the ground running. I am, however, not certain that he is running in the right direction. On 3 October 2022, during the second meeting of his recently (and unconstitutionally) constituted cabinet, Ruto announced that his government had authorized the cultivation and importation of genetically modified crops and animal feeds, sweeping aside the grave concerns raised by Kenyans and lifting a ten-year ban with the stroke of a pen.

The decision was made at a time when Kenya is facing the worst drought in four decades that has left over four million people facing starvation. According to President Ruto, the adoption of GMOs is the solution to the recurring cycles of drought and famine that Kenyans have been increasingly experiencing.

I shall not go into the merits and demerits of what some call Frankenfoods here. However, it seems to me that Ruto’s decision is driven solely by the political imperative to bring down the price of maize through cheap imports of GM maize following the withdrawal of the maize subsidy.

Already, back in November 2018, the Route to Food Initiative (RTFI), the Kenya Biodiversity Coalition (KBioC), the Africa Biodiversity Network (ABN) and Greenpeace Africa had issued a joint statement raising “concerns over recent disconcerting developments in the country, that [suggest] the Government has made [a] unilateral decision to adopt genetically modified crops”, and adding that “an all-inclusive nationwide discourse through public participation, which addresses whether the technology is appropriate for us, is being circumvented”.

The group also voiced their suspicion that the report of the Task Force to Review Matters Relating to Genetically Modified Foods and Food Safety that was set up by the Ministry of Health in 2013 was being withheld because it was against the adoption of GM foods. This suspicion may well be founded since, in making the announcement, State House said that the decision to lift the GMO ban was “made in accordance with the recommendation of the Task Force”, while failing to make the so-called Thairu report—which was submitted in 2014—available for public scrutiny.

The cabinet said that in reaching its decision to lift the ban it had also referred to reports of the European Food Safety Authority, among others.

The European Union’s policy on GMOs “respects the right-to-know by ensuring clear labelling and traceability of GMOs. This requires reliable methods for the detection, identification and quantification (for authorised GMO) in food, feed, and the environment”. There is zero tolerance for unapproved GMOs and stringent regulation of products originating from or containing GMOs.

A detailed risk analysis and the availability of a validated method for locating, identifying, and quantifying GMOs in food or feed are prerequisites for authorization. For any GM launch, biotech businesses that want to market their product in the EU must submit an application. A very precise way of detecting each unique GMO is included in the application dossier.

The terms of reference of the government’s GMO task force included, among others, assessing Kenya’s infrastructural capacities to monitor genetically modified products in the country; assessing the adequacy of qualified human resource capacity to monitor research, use and importation of genetically modified products into the country; and recommending approval procedures for imports of GM foods.

If we are to look only at the procedures established by the National Biosafety Authority for the importation of GM products into the country, then we may conclude that Kenya lacks the infrastructural and qualified human resource capacity to monitor their research, use and importation. In effect, an entity wishing to import a GM product into the country is merely required to provide the particulars of the supplier, the nomenclature of the GMO, proof that the GMO has been registered in the exporting country, its use in the country of origin, its intended use in Kenya, a summary risk assessment, methods and plans for safe handling, storage, transport and use, and the emergency response foreseen in the event of an accident with the GMO. The second of the two-page the application document is reserved for the applicant’s signature before a commissioner for oaths, a magistrate or a judge. Means of detection of GMOs are not mentioned.

It would seem then that Ruto’s government has fully devolved the responsibility for Kenya’s biosafety and biosecurity to the authorities of foreign nations. This is very frightening when you consider, for example, that the European Union Regulation EC304/2003 allows EU companies to produce and export to other countries pesticides that are banned or restricted in the EU. This double standard is the reason why active ingredients which have been withdrawn in the EU find their way to Kenya, poisoning our bodies and our environment, and destroying our biodiversity.

Maize is not the only ugali

The lifting of the ban on GMOs may have sounded the death knell for Kenyan small-scale maize growers; GM maize is to be found on the international markets at prices that defy all competition, which will now prove to be a boon for well-connected maize-importing cartels.

But maize, a staple in the majority of Kenyan households, is a relatively recent arrival on our national menu, becoming a major staple during the First World War when disease in millet led to famine.

As Noel Vietmeyer observes in the foreword to the first volume of Lost Crops of Africa,

“Lacking the interest and support of the authorities (most of them non-African colonial authorities, missionaries, and agricultural researchers), the local grains could not keep pace with the up-to-the-minute foreign cereals, which were made especially convenient to consumers by the use of mills and processing. The old grains languished and remained principally as the foods of the poor and the rural areas. Eventually, they took on a stigma of being second-rate. Myths arose—that the local grains were not as nutritious, not as high yielding, not as flavorful, nor as easy to handle. As a result, the native grains were driven into internal exile. In their place, maize, a grain from across the Atlantic, became the main food from Senegal to South Africa.”

But with initiatives such as the Busia County Biodiversity Policy, which recognises the role that biodiversity can play in addressing food insecurity, the tide is turning and Kenyans are rediscovering and embracing the culinary habits of our forebears. You would think then that the GMO decision will not, in the main, affect the choices we make in the foods we consume. That those of us a tad squeamish about eating foods that have been genetically interfered with can opt out.

Were it that simple.

Many Kenyans are unaware that the Seed and Plant Varieties Act Cap 326 of 2012 prohibits farmers from sharing, exchanging or selling uncertified and unregistered seeds. Yet, to mitigate against the effects of perennial droughts and the escalating costs of hybrid seeds, community seed banks have been conserving indigenous seeds—that are demonstrably more climate-resilient—for sale during the planting season, in contravention of the law and at the risk of a one million shilling fine, or two years’ imprisonment, or both. Criminalising a system through which small-scale farmers acquire 90 per cent of their planting material does not augur well for Kenya’s food security, or for our biodiversity. Small-scale farmers are fighting back, however, with a group from Machakos recently going to court to challenge the legislation. It remains to be seen who between David and Goliath will prevail.

But maize, a staple in the majority of Kenyan households, is a relatively recent arrival on our national menu, becoming a major staple during the First World War when disease in millet led to famine.

What is clear is that Kenya’s David, while remaining impoverished over the decades since independence, is the mainstay of the country’s agriculture in terms of productivity. The Economic Survey (2021) of the Kenya National Bureau of Statistics reports that,

“The share of marketed agricultural output for small farms increased marginally to 73.3 per cent in 2020. This is a reflection of the continued dominance of the smallholder sector in the marketing of agricultural produce during the year under review. The value of sales through small farms increased by 9.4 per cent from KSh 341.4 billion in 2019 to KSh 373.6 billion in 2020. Similarly, the value of sales by large farms increased by 8.9 per cent from KSh 125.0 billion in 2019 to KSh 136.1 billion in 2020.”

The survey defines large farms as those above 20 hectares.

The small-holder has consistently outperformed the large-scale farmer despite government policies that have since the 70s viewed smallholders as without agency beyond adopting technologies that are presented as capable of transforming agriculture and building livelihoods. The adoption of GMOs is likely to be yet another of these technologies that, together with unjust seed legislation, will increase rather than decrease Kenya’s food insecurity.

President Ruto worries about food insecurity but fails to consider the very ready solution available to his administration and recommended in the Agricultural Policy (2021) of the Ministry of Agriculture, Livestock, Fisheries and Cooperatives, namely, conservation agriculture.

The Food and Agriculture Organisation (FAO – also quoted in Ruto’s decision to lift the GMO ban) recommends conservation agriculture as it is a sustainable system of production that conserves and enhances natural resources; enhances biodiversity; assists in carbon sequestration; is less labour and fertilizer intensive; improves the health of soils; and increases yields over time.

Criminalising a system through which small-scale farmers acquire 90 per cent of their planting material does not augur well for Kenya’s food security, or for our biodiversity.

The very promising results obtained among the small-scale farmers that have adopted the system following training under the FAO beginning in 2015 show that the government would do well to promote conservation agriculture among smallholders as a means of mitigating both against food insecurity and the effects of climate change, rather than hastily reaching for GM technologies that the country is ill-equipped to safely handle.

But clearly, the president is not on the same page as his Ministry of Agriculture and so, like others, I can only conclude that Ruto’s lifting of the GMO ban is for the benefit of the seed multinationals and their clients, the large-scale farmers who have taken over most of the productive land to grow cash crops for export, leaving small-scale farmers to exploit marginal lands for the production of food crops for local consumption. And for the benefit of maize-importing cartels.

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