Connect with us

Politics

Is the Kenyan Constitution on its Deathbed?

11 min read.

The undermining of the 2010 constitution by the Executive and an emasculated opposition that has failed to defend constitutionalism threaten to unravel thirty years of constitution-building in Kenya. Will the Kenyan constitution die as a result of this? The quick answer to this question depends almost entirely on who the country chooses to be president in 2022 and on who will be the two speakers of Parliament.

Published

on

Is the Kenyan Constitution on its Deathbed?
Download PDFPrint Article

2010 – 2020: Ten years of constitutional resilience

Most of the commentary about the first ten years of the Constitution of Kenya 2010 have largely revealed a constitution under siege. The assault on the constitution has intensified in the last eight years during Uhuru Kenyatta’s presidency. This is not surprising since it is an open secret that Uhuru has little regard for the constitution, for the rule of law and for constitutionalism.

Worse, in the last few years, formal organised opposition – a significant guard rail of the constitution – crumbled. With the rapport between Uhuru and Raila Odinga through the so-called handshake, the opposition, a significant buffer that previously gave Uhuru’s government a bit of pause on assaulting the constitution, was eliminated. It is therefore not surprising that Uhuru and Raila are making a concerted effort to amend the constitution largely to suit their personal and political interests.

There is no doubt that the constitution has performed sub-optimally in the last ten years, especially because of the antagonism from state officers and agencies. Still, it is remarkable that it has survived the first ten years of its birth, despite the consistent and sustained assault on it by Uhuru’s regime.

But how much longer can the constitution endure the intentional, well-orchestrated and nefarious scheme to kill it? Will the constitution last long enough to see the passing of another decade? Even if it does, what state of ruin will it be in? Are there obvious things that will accelerate its death or strengthen its resilience?

Why constitutions die

Professors Zachary Elkins, Tom Ginsburg and James Melton, who have conducted empirical studies on the endurance of constitutions, identify the key factors that help predict how long a constitution will last. However presented, the factors boil down to two things: the design of the constitution and the environment under which the constitution operates.

There are different ways to expand on each of these factors, but first a critical statistic on the average age a constitution. In their analysis of national constitutions enacted since 1789, Elkins, Ginsburg, and Melton found that national constitutions only lasted an average of seventeen years. Yes, 17. This is a depressing fact, especially when one looks at how much effort and time goes into bringing about a new constitution. For example, the 2010 Kenyan constitution was the result of more than thirty years of active and persistent citizen and civil society agitation. And this is not appreciating that even the initial constitutional tensions immediately after independence were the first signs of the need to bring about a home-grown and more responsive people-centred constitution.

Operating environment and design of the 2010 constitution

No doubt, the ruling class has poisoned the environment in which the 2010 constitution has operated since its promulgation. It started with President Mwai Kibaki who tried to subvert it by usurping the powers of constitutional agencies through the illegal nominations of the Chief Justice and the Director of Public Prosecutions. The courts had to step in to restrain him. Many times, he violated the transitional provisions of the constitution by failing to follow the procedures that required him to consult with the Prime Minister before making significant decisions affecting the state. Worse, and despite working under a constitution that stipulated national values of leadership to include inclusion, Kibaki continued to perpetuate nepotism and tribalism in the manner in which he chose high-level public officers.

But while Kibaki was bad at priming the environment under which the constitution operated, his successor, Uhuru, has been worse. Although Kibaki regularly flouted the constitution, he was often quick to walk back whenever he was called out on his transgressions – in a sense confirming that the constitution was the ultimate decider. Unfortunately, this has not been the case with Uhuru, who obstinately disregards the constitution, consistently ignores court orders and actively encourages other public officers to do the same. Worse, he has perfected many of the vices that the constitution intended to eliminate – centralisation of power; rule by law; unmeritorious and unprocedural appointments; corruption; fanning nepotism and tribalism; undermining decentralisation, name it. His has deliberately and fully contaminated the environment under which the 2010 constitution has operated for the last eight years.

But while Kibaki was bad at priming the environment under which the constitution operated, his successor, Uhuru, has been worse. Although Kibaki regularly flouted the constitution, he was often quick to walk back whenever he was called out on his transgressions – in a sense confirming that the constitution was the ultimate decider.

Perhaps what has helped sustain the constitution is its design. No doubt, the 2010 Constitution was designed with the full awareness that the political elite will attempt to undermine it. A few illustrative design issues will make the point much better. These include the provisions on defending the constitution, including empowering any citizen to go to court and to petition other institutions, such as Parliament, to enforce it; and strong separation of power provisions, including setting up an independent Judiciary which can invalidate anything that is done by anyone outside the law. Other provisions include the creation of independent offices and commissions that are intended to be the front line enforcers of the constitution. Finally, and perhaps the most critical design aspect on the endurance of the constitution, is its provisions on amendments, which are complex, onerous and mostly impossible without critical national consensus.

Saving the constitution from premature death

If one was to obsess about the seventeen years statistic on the average life span of constitutions, it would suggest that the 2010 constitution is already past its mid age, with a great likelihood it will die before its 20th anniversary. However, the short life of national constitutions begs a much more important and forward-looking question – what could help save the 2010 constitution from possible early death?

I identify three things that need to be put into place if we are to save the constitution from premature death, and especially if we wish to see the constitution survive the next decade unscathed. Even if the constitution is amended, how can we ensure that the amendments will benefit Kenyans and not the political elites? Three things need to happen: (i) rebuilding confidence in the constitution; (ii) finding critical formal actors that believe in and can defend the constitution; and (iii) an implementation that delivers tangible constitutional goods to citizens.

Rebuilding confidence in the constitution

Perhaps the greatest threat to the constitution is the waning sense of confidence in it. There are fears that the constitution is taking too long to find stability. But we should have foreseen and prepared for this.

Kenya’s political life has been built on a scaffolding of simplistic narratives of messianic moments. It started with the struggle for independence, with a narrative that the coming of independence would obliterate Kenyans’ political and economic misery. Then there was the expectation that a change of guard from Jomo Kenyatta to Daniel arap Moi would be a turnaround opportunity for the country – and for a moment, Moi seemed to have fed that hope, especially by releasing political prisoners and developing a high-sounding but essentially hollow “Nyayo philosophy” of peace, love and unity. All this soon buckled under the weight of the lie for which the simplistic and feel-good “philosophy” was constructed.

The next messianic moment was in 1991 with the deletion of Section 2A from the 1969 Constitution which prohibited multipartyism. However, with the opposition politicians endlessly feuding, that messianic moment was also quickly lost.

Then in 2002 the country seemed to pin all its hopes for rejuvenation in the seemingly nationalistic alliance led by Mwai Kibaki. But Kibaki quickly killed the budding sense of nationalism as soon as he took over as president by denigrating the role that Raila Odinga and other key political actors were to play in the government. This disillusionment would – in less than five years – bring a people, who had been regarded as the most optimistic in the world in 2003, on the verge of civil war because of ethnicised political contestations.

But even the devastating events of the post-election violence of 2007/2008 were not sufficient to dissuade Kenyans from believing that there was still a chance for a magic wand moment. So, when the 2010 constitution was promulgated, many believed that this was the tool that would, with speed, transform Kenya politically and economically. The 2010 constitution was the ultimate political-legal messiah.

In many ways, placing overbearing hopes on the new constitution was not overly irrational. When fully implemented, this constitution has the potential to transform Kenya into an egalitarian society that places human dignity and social transformation for all at the centre. Devolution, even with all its infirmities in design and implementation, offers snippets of evidence of this. But because of the constitution’s social transformation potential, the political and economic elites, who thrive on an environment of lawlessness, have invested their last penny to undermine it.

But even the devastating events of the post-election violence of 2007/2008 were not sufficient to dissuade Kenyans from believing that there was still a chance for a magic wand moment. So, when the 2010 constitution was promulgated, many believed that this was the tool that would, with speed, transform Kenya politically and economically.

Worse, those hell-bent on immobilising the constitution have done so by conjuring up and feeding a narrative that it is an idealistic and unrealistic charter. Because they wield power, they have used their vantage points to counter most of the salutary aspects of the constitution. Uhuru Kenyatta’s consistent and contemptuous refusal to follow basic requirements of the constitution in executing the duties of his office, including his endless defiance of court orders, stands out as the most apt example here.

Yet all this is calculated to create cynicism among Kenyans about the potency of the constitution. Hoping that the cynicism will erode whatever goodwill Kenyans have towards the constitution, the elites believe that they can fully manipulate or eliminate the constiution entirely and replace it with laws that easily facilitate and legitimise their personal interests, as did Jomo Kenyatta and Moi.

Still, this constitution is unique because of the participatory manner through which it was developed and the fact that it is a consensus document for the people and not – as was with all past constitutions – a pact between the political and economic elites. The people’s goodwill towards it still seems inordinately firm.

Regardless, to give the constitution more authority, it is important to eliminate the growing sense of cynicism towards it and regenerate confidence amongst Kenyans about its the potential as a social transformation charter. A significant part of that regeneration must come from recruiting new critical formal actors who believe in and are committed to the implementation of the 2010 constitution.

Recruiting formal supporters of the constitution

The 2010 Constitution of Kenya survived the last ten years largely because of the Judiciary, some Chapter 15 Commissions and independent offices (especially the now defunct Commission for the Implementation of the Constitution), the Office of the Auditor General, the Kenya National Commission on Human Rights, and the first Salaries and Remuneration Commission (SRC). It has also survived because of a few vigilant citizens – leading among them being Okiya Omtatah Okoiti. Equally, there have been numerous civil society organisations that have sustained citizens’ mobilisation for the support of the constitution and relentlessly pushed for its implementation.

Ironically, two of the primary state organs created by the constitution – that is the Executive and Parliament – have posed the greatest threat to the constitution. Worse, Uhuru has been on a nefarious campaign to weaken even the key formal institutions that have been pro-constitution – especially the Judiciary and Chapter 15 commissions and independent offices. Presently, he has found a way to fully capture Chapter 15 institutions through a warped process of hiring commissioners and heads of independent offices to capture those institutions, thus isolating the Judiciary as the only state agency that is largely committed to constitutionalism.

But it is too much (and quite unfair) to expect the Judiciary to be the only state agency that shoulders the burden of trying to keep the constitution alive. Kenyans must find ways to generate sustained support for the constitution from other state officers and agencies.

If the constitution has a chance of surviving the next ten years, it must have additional state agencies who unequivocally believe and support it. The starting point must be the Executive. There is no doubt that if the next president (post-2022) is not a strong defender of constitutionalism, the 2010 constitution will likely irretrievably wither. Even if the document survives, we will not only have the situation that Prof. Okoth Ogendo aptly described as “constitution without constitutionalism”, we will be left with just a shell – a constitution without any pulse.

Why is the president so critical? Although the 2010 constitution dispersed power as much as possible, it still gave the resident a significant responsibility. Article 131 states that the president is the symbol of national unity. This requires him or her to be the first at respecting, upholding and safeguarding the constitution and the rule of law, as well as promoting and enhancing the unity of the nation. Hence, while there are many checks on the powers of the president, in practice he still wields significant legal, political and symbolic influence on all aspects of governance. If the next president leads at disrespecting or showing utter contempt for the constitution – as has been the case with Uhuru – the chances that the constitution will survive will be negligible.

Following the promulgation of the constitution in 2010, Parliament showed mixed results on its conviction on constitutionalism. But for all its faults, the 10th Parliament did a lot to help set up the infrastructure that the constitution needed for its implementation. This included laws and approval of persons to critical offices – including the Chief Justice and Chapter 15 commissioners who strongly believed in the rule of law. The then Speaker of Parliament, Kenneth Marende, also helped greatly to give Parliament some institutional integrity.

Regrettably, that cannot be said of the two current speakers of Parliament or the parliamentarians of the 12th Parliament. In fact, in 12th Parliament we have seen an institution that is so keen to supplicate at the feet of the president that it has fully eroded the enormous institutional power the constitution gives it and has fully compromised on its role as a check on the Executive.

Hence, for the constitution, what will be worse than a president who does not believe in constitutionalism will be the continuation of the unholy alliance between Parliament and the Executive. Yet, if Parliament was to fully appreciate its power of fostering the entrenchment of constitutionalism and its primary role of being the critical check on the Executive, the 2010 constitution would not only have a chance at survival, but would also likely deliver the tangible transformation it intends.

In a nutshell, it is unlikely that the Judiciary alone will be able to save the constitution in the next decade. In fact, it is unlikely that left as the lone ranger that fights for the constitution, the Judiciary itself will survive or manage to maintain any modicum of professionalism and independence. All this is to say that 2022 is a critical year for the 2010 constitution. A great deal of its survival largely depends on the persons who becomes president and who are the speakers in Parliament.

Implementation of the constitution must yield tangible goods

This takes me back to constitutional cynicism. Having executive and parliamentary leadership that believes in the 2010 constitution and constitutionalism will be key – but citizens’ patience of trying to relate a constitution to their economic and social welfare is running thin. This is not because people have no ability to do so since, even with all its infirmities, they have been able to see how the patchwork implementation of devolution has brought about tangible transformation.

This is sad for at least a couple of reasons. First, the national government has been undermining devolution either directly or indirectly by undermining county leadership, by failing to devolve sufficient funds or by undermining county functions through function-hogging or recentralisation.

In a nutshell, it is unlikely that the Judiciary alone will be able to save the constitution in the next decade. In fact, it is unlikely that left as the lone ranger that fights for the constitution, the Judiciary itself will survive or manage to maintain any modicum of professionalism and independence.

Second, the leadership has also undermined the most critical pillar of the 2010 constitution, which is on social and economic transformation. There are few constitutions in the world that have detailed what the state must do in order to bring about equitable social transformation as does Kenya’s constitution. Yet, the government has refused or failed to follow through on the roadmap provided by the constitution, opting instead on ad hoc, politically inspired, unsustainable and mostly badly thought-out and short-lived programmes designed to benefit only a few.

The operating environment that will save the constitution

And it is back to where we started – constitutional design and the operating environment as the two overarching factors that dictate the survival of a constitution. For the last ten years, the constitution has operated under a toxic environment – with most of the toxicity coming from the Executive. Parliament (especially the 11th and 12th) surrendered most of its authority to the Executive and hence failed miserably at defending the constitution. The complete capture of all the independent offices and commissions by the Executive has mostly left the Judiciary as the sole state institution struggling, albeit now in a wobbly way, to defend the constitution.

Constitutional design contributed greatly to the survival of the 2010 constitution in the last ten years. But design alone will not save it for the next ten years. Whether it dies or not will now largely depend on whether our next heads of the Executive and Legislature are believers of constitutionalism and whether they are keen to provide the constitution with the enabling environment that the people intended for it to thrive.

Support The Elephant.

The Elephant is helping to build a truly public platform, while producing consistent, quality investigations, opinions and analysis. The Elephant cannot survive and grow without your participation. Now, more than ever, it is vital for The Elephant to reach as many people as possible.

Your support helps protect The Elephant's independence and it means we can continue keeping the democratic space free, open and robust. Every contribution, however big or small, is so valuable for our collective future.

By

Waikwa is a constitutional lawyer and co-founder of Katiba Institute.

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.

Published

on

It’s a Nurses’ Market Out There, and Kenyans Are Going For It
Download PDFPrint Article

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.

Continue Reading

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.

Published

on

Why Azimio’s Presidential Petition Stood No Chance
Download PDFPrint Article

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.

Continue Reading

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.

Published

on

GMOs Are Not the Only Answer
Download PDFPrint Article

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.

Continue Reading

Trending