Tax avoidance, tax evasion, tax heavens, illicit financial flows and global tax governance are real buzzwords that have come to dominate current international political and financial domains. Tax avoidance, understood as the use of the so-called ‘loopholes’ in the tax legislation to reduce one’s tax payments increasingly tops news charts. The recent Pandora Papers, EU’s blacklist of 17 tax havens, Paradise Papers and the Panama Papers are among the starkest examples. Recent waves of tax dodging scandals including those of tax evasion – the use of unlawful means to escape paying tax – pushed many governments globally towards implementing various structural changes to taxation systems. Moreover, there is a growing call towards making the ‘fight’ against the exploitation of tax regulations ‘a global effort’ and the Organisation for Economic Co-operation and Development’s (OECD), Tax Inspectors Without Borders and the Declaration on Automatic Exchange of Information are amongst the most prominent measures of this kind.
In a recent study that explored anti-fraud initiatives in nine countries on the African continent, measures to address the drainage of revenue featured strongly. What is particularly interesting is the fact that many actors, private, governmental and supranational, including those in the West, seem to be especially active in encouraging change and acting as ‘advisories’ to governments and business on the African continent. This article will use the findings of the study to outline some of the interventions, paying particular attention to the actors involved. The article will then look closer at the OECD’s initiative, and close with some questions and thoughts regarding the findings and the North-South dynamic that prevails.
According to one estimate, US$240bn is lost in tax revenue every year due to various forms of tax avoidance and evasion, with the majority of losses in low- and lower middle-income countries. As shortages in funding of developmental projects persist and countries struggle to meet the financial requirements needed to achieve Sustainable Development Goals (currently the investment gap in developing countries is around US$2.5 trillion), experts worldwide highlight that the tax loses are unjustifiable and if addressed, can be used to facilitate the delivery of the SDGs. In recent years, many initiatives emerged across the Global South to raise awareness of the problem, involving governments, supranational organisations such as EU, UNDP and OECD to name a few, businesses, and rights advocacy groups such as Tax Justice Network and others. Several countries in the Global South have been applauded for their efforts to keep up with the tax reform that prevails in parts of the Northern hemisphere.
Having looked at anti-fraud initiatives in South Africa, Ghana, Botswana, Nigeria, Tanzania, Kenya, Malawi, Rwanda and Zambia several trends emerge, some of which were outlined in previous blogs on roape.net. One trend that has not been discussed is the nature of the initiatives aimed at tackling various forms of tax evasion and avoidance and importantly the actors that are driving these measures. The types of initiatives aimed at addressing tax loss, range, amongst others, from education-led awareness raising campaigns on the importance of tax contributions and the harm that tax evasion and avoidance has on the health of the economy, the use of automation and digital technologies to increase tax collections and to facilitate the transfer of information on local, national and global levels, amendments in the legislation, and intercountry cooperation. The actors involved include domestic and foreign governments, businesses (consultancies and banks in particular), supranational organisations, development agencies, and advocacy and civil society groups. To explore these measures further, a number of examples will be given below, paying special attention to the actors driving and implementing such initiatives.
Who is pushing for crackdowns on tax fraud?
Private businesses, especially consultancies and banks, are active advocates for lawful taxation contributions across the studied countries. For instance, Deloitte Consulting launched the Tip-Offs Anonymous Hotline both in Botswana and Malawi aimed at deterring financial fraud, including tax evasion and tax avoidance. According to the Managing Director of the Botswana Development Corporation, ‘Tip-Offs Anonymous line is put in place as a deterrent to fraud and promotes a culture of zero tolerance towards these crimes.’ In another initiative, Tallinn-based multinational company Nortal is assisting Botswana in creating a ‘new tax management solution’ which will replace the existing system entirely. Costing around €8 million, it will provide new risk management solutions and ‘should boost overall economic growth in Botswana, reduce the tax gap and increase transparency while reducing costs.’ PricewaterhouseCoopers Ghana while commenting on the Ghana’s new 2018 budget has advised the government to implement changes to strengthen revenue collection, including, among others, the use of mobile payment technology, targeting debt management, minimising the fiscal gap, and ‘increased investment in agriculture value chains and in growth enhancing infrastructure including radical structural transformation to ensure export diversification.’
Moreover, businesses are particularly active in initiating measures to address counterfeiting and substandard produce. It is important to note that counterfeiting, tax evasion and avoidance are closely interlinked. It is more difficult to obtain the legislated amount of tax from counterfeited and unlicensed products, and in addition it has a negative impact on those brands whose products are being replicated. International firms such as Southern Graphics Systems (SGS) operating in Kenya, Sproxil in Tanzania and Bureau Veritas in all of the studied countries, offer services to business and individuals, and cooperate with governmental agencies on strengthening quality checks and identify counterfeited produce. Technology is often adopted in these measures. An interesting example is that of collaboration between the Human Development Innovation Fund, UK’s Department for International Development and the firm Sproxil. The initiative involves the introduction of Mobile Product Authentication technology to help verify counterfeit produce in pharmaceuticals and educate individuals on health risks associated with such products.
National governments have featured strongly as those pushing for strengthening of the tax regulation, so all the nine studied countries contained a government-led initiative related to taxation. To highlight the variety and scale of these initiatives a few examples provides powerful illustration: declarations of crackdowns on tax misconduct by the country’s presidents in the case of Tanzania; registering taxpayers at the district level in an effort to address the problem at grass-roots level, and the adoption of Electronic Billing Machines in Rwanda; amendments to national legislation to specifically tackle tax-avoidance as in South Africa. More aggressive measures in Nigeria whose Federal Inland Revenue Service have threated to deny access to banking facilities for those companies that don’t join taxation register.
In Ghana, measures to combat tax evasion and avoidance are initiated by a number of actors, including the Ghana Investment Promotion Council with an initiative to develop a ‘beneficiary ownership regime’ aimed at identifying owners of companies, particularly in the extractives industries. In a more recent initiative, the Ghana Revenue Authority planned to use the Point of Sale (PoS) devices to strengthen tax collection and improve monitoring of revenue. There seems to be widespread support for this measure, including from Price Waterhouse Coopers Ghana. Kenya’s efforts focused on Small and Medium Enterprises, where the Kenya Revenue Authority seeks to address the issue at grassroots level and work closely with county authorities to integrate the SMEs into the taxation system. Malawi Revenue Authority keeps up with the trend of using technology, in particular electronic payment systems to encourage tax payers and prevent evasion and avoidance.
Finally, Botswana focused on tackling tax avoidance by identifying ‘multinational tax dodgers’ and has joined OECD’s framework on Base Erosion and Profit Shifting. According to a state official, ‘Botswana is […] obliged to conform to these standards and that may mean amendment of tax legislation where necessary.’ In the words of the same official, ‘Botswana’s tax system will be put under scrutiny whether it conforms to international best practice which should in turn boost investor confidence and hence it has the potential to attract investment by credible investors.’
The involvement of foreign actors, including governmental bodies is extensive across the studied countries. UK’s DFID has been particularly active in offering assistance, having spent over £32 million on tax system improvements overseas in 2015, and £26 million in 2016. Out of the 9 studied countries, seven (Ghana, Nigeria, Tanzania, Kenya, Malawi, Rwanda and Zambia) received assistance from the British government. For example, in 2015, Ghana and the HMRC partnered with the Ghana Revenue Authority to develop their expertise on tax legislation, compliance and data privacy. This agreement is part of a wider, OECD backed ‘global standard’ for an automatic exchange of information of tax payer’s data scheduled for 2018. According to International Development Secretary Justine Greening, ‘the UK is committed to helping developing countries get their tax systems in order so that as their economies grow they are able to increasingly fund their own health and education programmes and reduce aid dependence.’
Advocacy and civil society groups are actively gaining ground in running of campaigns to raise awareness on illicit financial flows. One of the widely known organisations is Tax Justice Network (TJN) which offers research, analysis and advocacy on tax evasion and avoidance, as well as The Global Tax Alliance for Tax Justice (a spin off from TJN), which brings together civil society organisations and activists working with this issue. Numerous regional organisations such as Tax Justice Network Africa, run national and grass roots level events. Among its initiatives is the Stop Bleeding Africa Campaign which joined various stakeholders in an attempt to drive one Africa-wide response. Numerous national organisations and civil-rights activists are promoting awareness as part of this initiative, for example the recent campaign in Ghana in collaboration with Ghanaian based Integrated Social Development Centre and Tax Justice Network. Numerous international charities also do extensive work organising initiatives and raising awareness on this issue, and include amongst others Transparency International, Action Aid, and Oxfam.
As was mentioned above, OECD has been an active player in introducing measures to address leakages of tax, and some argue, has been pivotal in the setting of certain international taxation standards. Tax Inspectors Without Borders, a joint initiative with UNPD launched in 2013 is aimed at providing technical assistance to developing countries to enhance their capacity to obtain tax contribution from multinational companies. Currently, technical assistance is being offered to 18 African states, in some cases partnered with actors such as UK’s HMRC, African Tax Administration Forum, Germany’s Federal Ministry of Finance, Netherlands’ Tax and Customs Administration, the World Bank Group, the French Direction Générale des Finances Publiques (DGFiP), USAID and others.
What has come to be known as the ‘Global Forum on Transparency and Exchange of Information for Tax Purposes’ was rolled out in the 2000s and includes 148 members, both OECD and non-OECD members. The Exchange of Information on Request, and most recently the Declaration on Automatic Exchange of Information (AEOI) have been the two core initiatives. These frameworks are now regarded as the new standard and currently over 100 countries have signed up to the declaration. The core idea is to allow for easier and timely transmission of financial information (gathered by financial institutions such as banks) about a country’s residents living overseas with the aim of greater transparency and prevention of tax evasion and avoidance, while suggesting that the existence of tax heavens may come to an end. The countries can sign multilateral (there are currently 98 signatories) or bilateral agreements, as we have seen between Ghana and the Netherlands. Countries are free to chose with which countries to exchange information.
Are we on the right track?
The examples outlined above would suggest that various actors recognise the need to address illicit financial flows and implement different measures to raise awareness (even if driven by profit motives), and put in place mechanisms to prevent tax dodging and allow for greater transparency. However, what is critical to note is that a number of the actors involved in pushing for anti-tax evasion and avoidance, may themselves be culpable for similar abuses of the tax legislation. For example, Deloitte, and other accountancy firms such as PwC were acting as advisories and helped companies such as Blackstone avoid paying tax as we have seen in the Paradise Papers. Moreover, a group of consultancy firms that have become known as ‘the big four’, PwC, Deloitte, EY and KPMG, are known to use their positions to lobby for certain regulations and in some cases employees of these firms are known to take up roles at the OECD and in national governments to push for their client’s interests. Furthermore, numerous international banks were discovered to make use of tax heavens to hide their profits, such as Barclays which declared profits of €557m in Luxembourg but only paid €1m in tax.
These are just some of the examples, where the ‘advisories’, are in fact the ones making use of the loopholes in legislation, while at the same time offering advice to countries in the Global South on how to better manage their taxes (see on this phenomenon John Christensen’s analysis in David Whyte and Jörg Wiegratz’s book here). What is important to note there is that such ‘advice’ often informs policy and legislation within those countries and here, one cannot fail to notice the characteristically unequal North-South dynamic.
While OECD’s initiatives are, one might argue, an important step towards greater transparency, and have even been deemed as ‘revolutionary’, commentators are calling for scrutiny of some of the organisation’s measures. In the case of Tax Inspectors Without Borders – a joint OECD/UNDP initiative – following a review of its operation it was discovered that leadership for the three of its pilot projects in Rwanda, Ghana and Senegal originated from donor countries, which was against the original formulation of the initiative.
In terms of the AEOI (Automatic Exchange of Information) one of the main concerns is the need for reciprocity meaning that it is required for a country to be able to collect and send information if it is to receive information in return. The issue here is the lack of capacity, infrastructure and resources in some Southern countries to do this, thus this would automatically exclude them from participating in the framework at least in the immediate future. Moreover, even if a country matches reciprocity requirements, another concern within the framework is the fact that countries are able to choose with whom to exchange information and this has been compared to a dating game. For example, even if country X wants to receive information from country Y, they will only be able to do this if country Y approves. An example is the US, which is a major player on the taxation arena and a country where many tax heavens are safely hidden. The States has for a long time imposed automated exchange of information on countries where their citizens reside, without participating in turn and is refusing to take part in the AEOI.
A final aspect to mention here is the fact that the framework is reliant on financial institutions to record and verify residency information of their customers in order to transfer the requested information to the correct country. The concern is that there are ways – for example, making an investment – to gain residency in certain countries, use that information to register in a bank but not reside and conduct financial transactions in the country in question. So, fraudsters may continue to evade and hide tax in other locations without risk of being unmasked.
In this blogpost I have summarised some of the initiatives to address tax evasion and avoidance by numerous actors on the African continent and draw attention to frameworks that are presented as ‘international standards.’ The initiatives vary in type, scale, and the actors involved. It also suggests that the initiatives are underpinned by various drivers, whether commercial, political or other. There is a degree of hypocrisy on the side of some ‘advising’ actors where they are directly involved in or are facilitating financial crime. OECD’s initiative, while potentially beneficial, has loopholes and seems to disadvantage Southern countries.
While a growing body of literature is currently emerging surrounding illicit financial flows, as well as around the nature of global tax governance as a whole, there is not enough evidence to suggest that the ‘global fight’ is indeed not a ‘global flight’ driven by certain powerful entities and interest groups to avoid paying tax. Given that the issue has universal significance and undermines the development of many countries in the Global South, more research (and campaigning) is needed in order to understand the nature of these initiatives, the forces behind them, and the unequal North-South dynamic that prevails.
This article was published in the Review of African political Economy (ROAPE).
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.
Is Somalia’s Quest for Membership of the EAC Premature?
Somalia must first ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the East African Community.
The current members of the East African Community (EAC) are Tanzania, Kenya, Uganda, Rwanda, Burundi, and South Sudan. The Somali Federal Government, under the leadership of Hassan Sheikh Mohamud, has expressed a strong interest in joining the EAC, sparking questions among Somali citizens as to whether the country is ready to join such a large and complex regional bloc.
During President Hassan Sheikh Mohamud initiated Somalia’s pursuit of EAC membership during his previous term as a president from 2012 to 2017. However, little progress was made during his first term and, following his re-election, President Hassan reignited his pursuit of EAC membership without consulting essential stakeholders such as the parliament, the opposition, and civil society. This unilateral decision has raised doubts about the president’s dedication to establishing a government based on consensus. Moreover, his decision to pursue EAC membership has evoked mixed responses within Somalia. While some Somalis perceive joining the EAC as advantageous for the country, others express concerns about potential risks to Somalia’s economic and social development. President Hassan has defended his decision, emphasising that Somalia’s best interests lie in becoming a member of the EAC.
To assess Somalia’s readiness to join the EAC, the regional bloc undertook a comprehensive verification mission. A team of experts well versed in politics, economics, and social systems, was tasked with evaluating Somalia’s progress. The evaluation included a thorough review of economic performance, trade policies, and potential contributions to the EAC’s integration efforts. During this process, the team engaged with various government institutions and private organisations, conducting comprehensive assessments and discussions to gauge Somalia’s preparedness.
One of the key requirements for Somalia is demonstrating an unwavering commitment to upholding principles such as good governance, democracy, the rule of law, and respect for human rights. Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Successful integration into the EAC would not only elevate Somalia’s regional stature but would also foster deeper bonds of cooperation and shared prosperity among the East African nations. While this is a positive step towards regional integration and economic development, there are several reasons for pessimism about the potential success of Somalia’s membership in the EAC.
Somalia must also showcase a vibrant market economy that fosters regional trade and collaboration.
Somalia has faced significant challenges due to prolonged conflict and instability. The decades-long civil war, coupled with the persistent threat of terrorism, has had a devastating impact on the country’s infrastructure, economy, governance systems, and overall stability.
The following fundamental factors raise valid concerns about Somalia’s readiness to effectively participate in the EAC.
Infrastructure plays a critical role in regional integration and economic growth. However, Somalia’s infrastructure has been severely damaged and neglected due to years of conflict. The country lacks adequate transportation networks, reliable energy systems, and while communications infrastructure has improved, internet penetration rates remain low and mobile networks – which are crucial for seamless integration with the EAC – can be unavailable outside of urban centres. Rebuilding such infrastructure requires substantial investments, technical expertise, and stability, all of which remain significant challenges for Somalia.
Political stability and governance
The EAC places emphasis on good governance, democracy, and the rule of law as prerequisites for membership. Somalia’s journey towards political stability and effective governance has been arduous, with numerous setbacks and ongoing power struggles. The lack of a unified government, coupled with weak state institutions and a history of corruption, raises doubts about Somalia’s ability to meet the EAC’s standards. Without a stable and inclusive political environment, Somalia may struggle to effectively contribute to the decision-making processes within the regional bloc.
Economic development and trade
Somalia’s economy has been heavily dependent on the informal sector and faces substantial economic disparities. The country needs to demonstrate a vibrant market economy that fosters regional trade and collaboration, as required by the EAC. However, the challenges of rebuilding a war-torn economy, tackling high poverty rates, and addressing widespread unemployment hinder Somalia’s ability to fully participate in regional trade and reap the benefits of integration.
Somalia continues to grapple with security challenges, including the presence of extremist groups and maritime piracy. These issues have not only hindered the country’s development but also pose potential risks to the stability and security of the entire EAC region. It is crucial for Somalia to address these security concerns comprehensively and to establish effective mechanisms to contribute to the EAC’s collective security efforts.
Economic Disparity and Compatibility
Somalia’s economy primarily relies on livestock, agriculture, and fishing, which may not align well with the more quasi-industralised economies of the other EAC member states. This mismatch could result in trade imbalances and pose challenges for integrating Somalia into the regional economy. For instance, according to the World Bank, Somalia’s GDP per capita was US$447 in 2021 whereas it is US$2081 for Kenya, US$1099 for Tanzania, and US$883 for Uganda. Furthermore, Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
This divergence in economic structures could lead to trade imbalances and impede the seamless integration of Somalia into the regional economy. The substantial economic gap between Somalia and other EAC member states suggests a significant disparity that may hinder Somalia’s ability to fully participate in the EAC’s economic activities. Additionally, Somalia has yet to demonstrate fiscal or economic discipline that would make it eligible for EAC membership. While Somalia has a functioning Central Bank and the US dollar remains the primary mode of financial transactions, the risk of integration lies with the other EAC members; cross-border trade would occur in an environment of instability, posing potential risks to the other member state.
Somalia faces significant economic challenges, including capital flight that drains resources from the country, contributing to its status as a consumer-based economy.
While these fundamental challenges remain, it is important to acknowledge the progress Somalia has made in recent years. This includes the gradual improvement in security conditions, the establishment of key governmental institutions, and the peaceful transfer of power. One can also argue that many of these fundamental economic, infrastructure, political instability, and security concerns exist across the East African Community. However, what makes Somalia unique is the scale of the challenges it faces today. Somalia has adopted a federal political structure, which has not worked well so far. This level of fragmentation and civil political distrust makes Somalia’s case unique. More than ever, Somalia needs meaningful political and social reconciliation before it can embark on a new regional journey.
The absence of an impact assessment by the relevant ministries in Somalia is alarming. Without this assessment, it becomes challenging to make informed decisions about the potential benefits of joining the EAC and the impact on our economy and society. Conducting this assessment should be a priority for Somalia’s ministries to ensure a comprehensive evaluation of the potential benefits and risks involved in EAC membership. Furthermore, President Hassan Sheikh Mohamud’s decision to pursue Somalia’s integration into the EAC lacks political legitimacy as a decision of this nature would normally require ratification through a popular vote and other legal means through parliament. The failure to achieve this could potentially allow another president in the future to unilaterally announce withdrawal from the EAC.
Fragile state of Affairs and internal disputes
The recent reopening of the Gatunda border post between Uganda and Rwanda after a three-year period of strained relations indicates a fragile state of affairs. The East African Court of Justice has ruled that Rwanda’s initial closure of the border was illegal, highlighting the contentious nature of inter-country disputes. Furthermore, Tanzania and Uganda have formally lodged complaints against Kenya, alleging unfair advantages in trade relations, and have even gone as far as threatening Kenya with export bans. These grievances underscore the underlying tensions and competition between member states, which could potentially hinder the harmonious functioning of the East African Community. These political and economic disagreements among member states increase the risks associated with Somalia’s membership. Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions. Joining the East African Community at this juncture carries the risk of being drawn into ongoing disputes and potentially being caught in the crossfire of inter-country rivalries.
Conflict in South Sudan
The prolonged conflict in South Sudan, which has been ongoing since its admission to the East African Community (EAC) in 2016, serves as a cautionary tale for Somalia. Despite the EAC’s efforts to mediate and foster peace in the region, the outcomes have been mixed, resulting in an unsustainable peace. This lack of success highlights the challenges faced by member states in resolving conflicts and maintaining stability within the community. Somalia must carefully evaluate whether its participation in the EAC will genuinely contribute to its stability, economic growth, and development, or if it risks exacerbating existing internal conflicts. Joining the community without a solid foundation of political stability, institutions, and peace could potentially divert resources and attention away from domestic issues, hindering Somalia’s progress towards resolving its own challenges. South Sudan’s admission to the EAC in 2016 was seen as a major step towards regional integration and stability. However, the country has been mired in conflict ever since, with two civil wars breaking out in 2013 and 2016. The EAC has been involved in mediation efforts, with mixed results.
Somalia must evaluate the readiness of its institutions, infrastructure, and economy to effectively engage with the East African Community. Comprehensive preparations are crucial to ensure that joining the community is a well thought-out and strategic decision, rather than a hasty move that could further destabilise the nation. Somalia needs to assess whether its infrastructure, institutions, and economy are sufficiently developed to cope with the challenges and demands of integration. Premature membership could strain Somalia’s resources, impede its growth, and leave it at a disadvantage compared to more established member states.
Somalia must carefully evaluate whether it is entering a united and cohesive bloc or one plagued by internal divisions.
Somalia must ensure sustained progress in stability, infrastructure development, governance, and economic growth before considering full membership of the EAC. A phased approach that prioritises capacity building, institution-strengthening, and inclusive governance would enable Somalia to lay a solid foundation for successful integration and reap the maximum benefits from EAC membership in the long term. Failure to address these concerns would make Somalia vulnerable to exploitation and market monopolies by stronger economies, and could also risk a lack of seamless convergence for Somalia’s membership. While there is political will from EAC leaders to support Somalia’s membership, it is vitally important that they make the right decision for Somalia and the EAC bloc as a whole to ensure a successful integration. I believe that, at this juncture, the disadvantages of Somalia joining the EAC outweigh the benefits.
2023 Marks 110 Years Since the Maasai Case 1913: Does it Still Matter?
It was a landmark case for its time, a first for East Africa and possibly for the continent. A group of Africans challenged a colonial power in a colonial court to appeal a major land grab and demand reparations. They lost on a technicality but the ripple effects of the Maasai Case continue to be felt.
In the name Parsaloi Ole Gilisho there lies an irony. It was spelled Legalishu by the colonial British. Say it out loud. He gave them a legal issue, all right. And a 110-year-old headache.
This extraordinary age-set spokesman (a traditional leader called ol-aiguenani, pl. il-aiguenak) led non-violent resistance to the British, in what was then British East Africa, that culminated in the Maasai Case 1913. Ole Gilisho was then a senior warrior, who was probably in his mid- to late thirties. In bringing the case before the High Court of British East Africa, he was not only challenging the British but also the Maasai elders who had signed away thousands of acres of community land via a 1904 Maasai Agreement or Treaty with the British. This and the 1911 Agreement – which effectively rendered the first void – are often wrongly called the Anglo-Maasai Agreements. In Ole Gilisho’s view, and those of his fellow plaintiffs, these elders had sold out. The suit accused them of having had no authority to make this decision on behalf of the community. This represented a very serious challenge by warriors to traditional authority, including that of the late laibon (prophet) Olonana, who had signed in 1904, and died in 1911.
The British had expected the Maasai to violently rebel in response to these issues and to colonial rule in general. But contrary to modern-day myths that the Maasai fought their colonisers, here they resisted peacefully via legal means. They hired British lawyers and took the British to their own cleaners. Spoiler: they lost, went to appeal, and lost again. But archival research reveals that the British government was so convinced it would eventually lose, if the Maasai appealed to the Privy Council in London (they didn’t), that officials began discussing how much compensation to pay.
The facts are these. The lawsuit was launched in 1912. There were four plaintiffs, Ole Gilisho and three fellow Purko (one of the 16 Maasai territorial sections) Maasai. In Civil Case No. 91 they claimed that the 1911 Maasai Agreement was not binding on them and other Laikipia Maasai, that the 1904 Agreement remained in force, and they contested the legality of the second move. They demanded the return of Laikipia, and £5,000 in damages for loss of livestock during the second move (explained below). Ole Gilisho was illiterate and had never been to school. But he and his fellow plaintiffs were assisted by sympathetic Europeans who were angered by the injustice they saw being perpetrated against a “tribe” that British administrators conceded had never given them any trouble. These sympathisers included people who worked for the colonial government, notably medical Dr Norman Leys and some district officials, lawyers, a few missionaries, the odd settler, and a wider group of left-wing MPs and anti-colonial agitators in Britain.
What had led up to this? After the 1904 Agreement, certain groups or sections of Maasai had been forcibly moved from their grazing grounds in the central Rift Valley around Naivasha into two reserves – one in Laikipia, the other in the south on the border with German East Africa. The British had pledged that this arrangement was permanent, that it would last “so long as the Maasai as a race shall exist”. But just seven years later, the British went back on their word and moved the “northern” Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve. In all, it is estimated that the Maasai lost at least 50 per cent of their land, but that figure could be nearer 70 per cent. The ostensible reason for moving them was to “free up” land for white settlement – largely for British settlers but also for South Africans fleeing the Boer War (also called the South African War).
But just seven years later, the British went back on their word and moved the ‘northern’ Maasai again, forcing them at gunpoint to vacate Laikipia and move to the Southern Reserve.
By the time the case came to court, Ole Gilisho had become a defendant, even though he was in favour of the plaint. So were at least eight other defendants. He had signed the 1904 Agreement, and now stood accused with 17 other Maasai of having no authority to enter into such a contract. The first defendant was the Attorney General. Ole Gilisho’s son-in-law Murket Ole Nchoko, misspelled Ol le Njogo by the British, and described as a leading moran (il-murran or warrior) of the Purko section, was now the lead plaintiff. The plaint was called Ol le Njogo and others v. The Attorney General and others.
Challenges facing the plaintiffs
Most Maasai were illiterate in those days, and this obviously placed them at a major disadvantage. They could not write down their version of events. They were forced to rely, in their dealings with officials and their own lawyers, upon translators and semiliterate mediators whose reliability was questionable. But it is evident, from the archival record which includes verbatim accounts of meetings between Maasai leaders and British officials in the run-up to the moves and case, that the level of verbal discourse was highly sophisticated. This comes as no surprise; verbal debate is a cornerstone of Maasai society and customary justice. Unfortunately, that alone could not help them here. They knew they needed lawyers, and asked their friends for help. Leys, who was later sacked from the colonial service for his activism, admitted in a private letter: “I procured the best one in the country for them.” This was more than he ever admitted openly.
Local administrators used intimidation and all kinds of devious means to try and stop the case. (I didn’t come across any evidence that the Colonial Office in London sanctioned this; in fact, it ordered the Governor not to obstruct the main lawyer or his clients.) They allegedly threatened Ole Gilisho with flogging and deportation. They threatened and cross-questioned suspected European sympathisers, including Leys and the lawyers. They banned Maasai from selling cattle to raise the legal fees, and placed the Southern Reserve in continuous quarantine. It was hard for the plaintiffs, confined to a reserve, to meet their lawyers at all. At one point, lawyers were refused passes to enter the reserve, and their clients were prevented from leaving it.
We hear Ole Gilisho’s voice in the archival record. Forced to give a statement explaining his actions to officials at Enderit River on 21 June 1912, when asked if he had called Europeans to his boma, he replied: “Is it possible for a black man to call a white man?” He denied having called the Europeans (probably lawyers or go-betweens), saying they had come to him. Leys later explained to a friend that Ole Gilisho had probably been “terrified out of his wits”, and hadn’t meant what he said.
What happened in court
The case was thrown out when it first came before the High Court in Mombasa in May 1913. The Maasai appealed, and that is when the legal arguments were fully aired by both sides – lawyers for the Crown and the Maasai. The appeal was dismissed in December on the grounds that the plaintiffs’ claims were not cognisable in municipal courts. The two agreements were ruled not to be agreements but treaties, which were Acts of State. They could not, therefore, be challenged in a local court. It was impossible for the plaintiffs to seek to enforce the provisions of a treaty, said the judges – “The paramount chief himself could not bring such an action, still less can his people”. Claims for damages were also dismissed.
The Court of Appeal’s judgement centred on the status of a protectorate, in which the King was said to exercise powers granted to him under the Foreign Jurisdiction Act of 1890. Irrational as it sounds, the Crown claimed that British East Africa was not British territory, and the Maasai were not British subjects with any rights of access to British law, but “protected foreigners, who, in return for that protection, owe obedience” to the Crown. As Yash Pal Ghai and Patrick McAuslan later put it, when discussing the case in a 1970 book: “A British protected person is protected against everyone except the British.” On the plus side, the judges ruled that the Maasai still retained some “vestige” of sovereignty. (The Maasai’s lawyer argued that they did not.) This triggered later moves by Maasai politicians, in the 1960s, to float the idea of secession from Kenya and the possible creation of a sovereign Maasai state. John Keen had threatened this in 1962 at the second Lancaster House Conference in London, attended by a Maasai delegation.
Alexander Morrison, lawyer for the Maasai, argued that British rule and courts were established in the protectorate, which had not been the case 30 years earlier. The Maasai were not foreigners but equal to other British subjects in every way. The agreements were civil contracts, enforceable in the courts, and not unenforceable treaties. If one took the Crown’s claim about Acts of State to its logical conclusion, he argued, a squatter refusing to leave land reserved for the Maasai could only be removed by an Act of State. None of his arguments washed with the judges. (See my 2006 book Moving the Maasai for a fuller account.)
Morrison advised his clients to appeal. It seems they couldn’t raise the funds. However, oral testimony from elders reveals a different story: Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea. This is impossible to verify, but it rings true.
In an interview carried out on my behalf in 2008 by Michael Tiampati, my old friend John Keen had this to say about the outcome of the case: “If the hyena was the magistrate and the accused was a goat, you should probably know that the goat would not get any form of justice. So this is exactly how it was that the Maasai could not get any fair justice from British courts.”
Contemporary African resistance
Unbeknown to the Maasai, there was growing anti-colonial resistance in the same period in other parts of Africa. All these acts of resistance have inspired African activists in their continuing struggles. To mention a few: the Chilembwe rebellion in Nyasaland, now Malawi (1915); the Herero revolt in German South West Africa, now Namibia (1904–1908); resistance in present-day Kenya by Mekatilili wa Menza (largely 1913-14); the First Chimurenga or First War of Independence in what is now Zimbabwe (1896–1897); and the Maji Maji rebellion in German East Africa, now Tanzania (1905–1907). But none of these rebellions involved lawsuits. The closest precedent may have been R vs Earl of Crewe, Ex-parte Sekgoma in 1910. Chief Sekgoma, who had been jailed by the British in the Bechuanaland Protectorate (now Botswana) after many attempts to remove him as chief, instructed his lawyer to bring a writ of habeus corpus against the Secretary of State for the Colonies, Lord Crewe. He demanded to be tried in an English court, refusing an offer of release on condition that he agrees to live in a restricted area of the Transvaal. The suit was dismissed, the court ruling that the King had unfettered jurisdiction in a protectorate, and his right to detain Sekgoma was upheld. Sekgoma apparently said: “I would rather be killed than go to the Transvaal. I will not go because I have committed no crime – I wish to have my case tried before the courts in England or else be killed.” Freed in 1912, he died two years later.
The case, and other key events in early twentieth century Maasai history, have given rise to several myths. They include the idea that the stolen land should “revert” to the Maasai after 100 years, but that was not stated in the 1904 Agreement, which was not limited in time, was not a land lease, and has not “expired” as many people claim. Neither agreement has. Keen knew this, but nonetheless called for the land to “revert”. Other myths include the idea that Olonana’s thumbprint was placed on the 1911 Agreement posthumously, and it must therefore be invalid. But neither his thumbprint nor name are on the document, which was “signed” by his son Seggi. Anyhow, Olonana was a key ally of the British, who had no reason to kill him (which is another myth).
The original of the 1904 Agreement has never been found, which has led some Maasai to believe that it never existed and therefore all the land must be restored and compensation paid for its use to date. There may be sound legal arguments for restorative justice, but this is not one of them. These myths are ahistorical and unhelpful, but may be understood as attempts to rationalise and make sense of what happened. Some activists may wish that the Maasai had resisted violently, rather than taken the legal route. Hence the insistence by some that there was a seamless history of armed resistance from the start of colonial rule. Not true. There are much better arguments to be made, by professional lawyers with an understanding of international treaty rights and aboriginal title, which could possibly produce results.
Ole Gilisho had planned to sail to England to appeal to the Privy Council, but he was threatened with drowning at sea.
Where does all this leave the Maasai today? Over the years, there has been much talk of revisiting the case and bringing a claim against Britain (or Kenya) for the return of land or reparations for its loss. None of this has resulted in concrete action. I attended a planning workshop in Nairobi in 2006 when plans were laid for a lawsuit. VIPs present included the late Ole Ntimama, scholar Ben Kantai and John Keen. Keen declared, with his customary flourish, that he would stump up a million shillings to get the ball rolling. I don’t know how much money was raised in total, but it disappeared into thin air. As did the lawyers.
Leading lawyers have advised that too much time has passed, and (unlike the successful Mau Mau veterans’ suit) there are no living witnesses who could give evidence in court. It is unclear whether the agreements still have any legal validity. The British government might argue, as it previously has, including in response to my questions, that it handed over all responsibility for its pre-1963 actions to the Kenyan government at independence. This is a ludicrous argument, which is also morally wrong. Former colonial powers such as Germany have accepted responsibility for historical injustices in their former colonies, notably Namibia. Has the time come for Ole Gilisho’s descendants to call a white man to court?
Who Is Hustling Who?
In Kenya, political elites across the spectrum are trying to sell off the country for themselves—capitulation is inevitable.
My drive to Limuru happened on the first Wednesday (July 19) of the protests. Everything was eerily quiet, Nairobi, renowned for its traffic jams, was quiet. Matatus and buses were parked in their hubs. Shops and stalls were closed. Even the hawkers that dot the roads and highways stayed home. Save for the heavy police presence everywhere, it felt like the country had come to a standstill.
We got to Kangemi shortly after the police had shot and wounded two protestors—the road was strewn with stones and armed riot police huddled by the side of the road waiting for the next wave of attacks that never came. In the end, six people would be shot to death throughout the country, and countless were injured and arrested. Coming from the US, where police arrest protestors and shoot black people, there were no surprises here. The US can hardly be the standard of good policing or democratic practices, but the lives lost simply for asking the government to center the people in its economic planning seemed especially cruel.
But it was the emptiness of the roads that made the whole drive eerie. Perhaps I was refracting what was happening in Kenya through what followed the 1982 coup in which 240 people were killed; or the ethnic clashes of the 1990s that culminated in the 2007 post-election violence. Yet, there was a general agreement among people that there was something different about the Kenya of today—that something was already broken and the nightmares to come were slowly but surely revealing themselves—like a bus carrying passengers and the driver realizing the brakes were out just as it was about to descend a steep hill.
Voting with the middle finger
But all this was predictable. President Ruto has been a known quantity since the 1990s when he led the violent Moi youth wingers. He and his running mate and later president, Uhuru Kenyatta, were brought in front of the ICC to face charges of crimes against humanity following the post-election violence in 2007. Some key witnesses disappeared and others were intimidated into silence. Who in their right mind gives evidence against those in control of the state? The ICC was already discredited as being Western-crimes-against-humanity friendly (the US has never been a signatory rightly afraid its former presidents, such as George Bush, would be hauled before the court). The ICC eventually withdrew the case in March 2015.
I kept asking everyone I met, why was Ruto voted in spite of his history? The answers varied: He rigged the elections; he did not rig and if he did, he only managed to be better at it than Raila Odinga; he appealed to the youth with the idea of building a hustler nation (what a telling term); the Kikuyus have vowed never to have a Luo president and therefore opted for Ruto who is Kalenjin as opposed to Odinga who is Luo.
I sat with older Kikuyu men in the little Nyama Choma spot in Limuru Market and they talked about a generational divide between the Kikuyu and youth (Ruto) and the elderly Kikuyus (Odinga). But the one I heard over and over again was that Kenyans are tired of the Kenyatta and Odinga political dynasties. As one Trump supporter was to say, they voted for him with the middle finger. And so, the Kenyans who voted for Ruto were giving a middle finger to the Kenyatta, Moi and Odinga political dynasties. But no one had really expected buyer’s remorse to kick in one year into the Ruto presidency.
I also asked about Odinga’s protests: what was the end game? One theory is that he was looking at power-sharing, having done it once before, following the 2007 elections. In our shorthand political language, he was looking for another handshake. Some said the people have a right to protest their government, and he is simply asking the government to repeal the tax hikes and reinstate the fuel subsidies. Others believed that he wants to be a genuine and useful voice of opposition for the good of the country and its poor.
My own theory is that he is attempting a people-powered, centered, democratic, and largely peaceful takeover—where people take to the streets to overthrow an unpopular government. We saw this in Latin America in the 2000s. In response to Odinga’s absence during the three days of protests (he was sick), some leaders in his Azimio party have started using this language. The only problem with this strategy is that the sitting government has to be wildly unpopular. Ruto still has a lot of support, meaning that he does not have to compromise or give up power. It was to my mind turning into a stalemate and I was worried that the state would respond with more state-sponsored violence.
But real economics broke the stalemate. In a country where people are barely surviving and the majority are poor without savings to rely on, or relatives to reach out to for help, the hawkers, small stall and shop owners simply went back to work. In other words, those that would have been hurt the most by three days of protests (a day at home literally means a day without food for the family) simply went back to work, and the matatus and buses hummed back to life, slowly on Thursday and full throttle by Friday.
Saturday around Westlands might as well have been as busy as a Monday as people overcompensated for lost time to either sell or shop. If the protests were going to succeed the opposition (composed of some of the wealthiest families in Kenya, including Odinga’s) really should have thought about how best to protect those who would be the most affected. They should find legal and innovative ways to put their money where their political mouths are.
Cuba as Kenya’s north star
Odinga had to change tactics and called for a day of protest against police violence instead of three-day weekly protests in perpetuity. He is now in danger of turning into a caricature of his old revolutionary self and becoming an Al Sharpton, who instead of protesting the American government for the police killings of black people, protests the police themselves leaving the government feeling sanctimonious. Obama or Biden could weigh in, in righteous indignation without offering any real change (remember Obama’s emotional pleas over gun shootings and police shootings as if he was not the one occupying the most powerful office in the US)?
The one question that keeps eating at me is this: why is the most apparent outcome at the time a surprise later? Ruto was always going to sell off Kenya with a percentage for himself and his friends. Odinga was always going to capitulate. The end result is that the Kenyan bus will continue to careen on without brakes. So, what is to be done?
I was in Cuba earlier this year. I got a sense of the same desperation I felt in Kenya but the difference is Cubans have free access to healthcare, education, housing, and food security. They have free access to all the things that make basic survival possible. Before calling for the tax hikes and cutting fuel subsidies might it not have been more prudent to have a safety net for Kenyans? Would that not have been the most logical thing? But of course not, Ruto is acting at the behest of the IMF and big money. Ruto has learned the art of pan-African political rhetoric. Abroad he can call for a different non-US-centered economic system and castigate the French president over paternalism but at home, his politics are hustler politics.
Life in Cuba is difficult, as a result of relentless sanctions from the US, but it is far from impossible. It remains the north star for those who understand discussions around fundamental change as the only starting point. We can have arguments about the nature of those fundamental changes, but we can all agree we should not be a country where one family, say the Kenyatta family, owns more than half a million acres of land. Or where, as Oxfam reported, four individuals hold more wealth than that held by 22 million Kenyans. The kind of politics that begin with a necessity for fundamental change will obviously not come from Ruto.
But one hopes it can still come from the Odinga camp. Or even better, from a genuinely progressive people-powered movement that has inbuilt questions of fundamental change in its political, economic, and cultural platform.
In spite of the empty roads, Limuru Market was thriving and Wakari Bar kept its reputation as one of the best places for Nyama Choma and for lively political conversations. People are paying attention, after all, it is their lives and livelihoods on the line. Politicians, especially those in the opposition and the political left should listen as well.
Op-Eds1 week ago
Tigray Atrocities: Extending ICHREE Mandate Crucial for Accountability
Op-Eds1 week ago
Climate Change and the Injustice of Environmental Globalism
Reflections1 week ago
Ama Ata Aidoo: A Tribute
Reflections1 week ago
Mĩcere Gĩthae Mũgo: A Mother and a Gardener
Data Stories1 week ago
Sex Education: Are We Doing Enough?
Op-Eds3 days ago
Are These the Dying Days of La Françafrique?
Op-Eds2 days ago
Wave of Coups in Françafrique: Is Africa’s Oldest Autocracy Next?
Data Stories12 hours ago
State of Hunger: Unravelling Kenya’s Food Crisis