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Kenyan Diaspora Vote: Unfulfilled Constitutional Right

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The electoral commission’s bid to have the diaspora vote in the 9 August 2022 elections is facing headwinds as voter registration fails to kick off on time.

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Kenyan Diaspora Vote: Unfulfilled Constitutional Right
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In December 2021, Independent Electoral and Boundaries Commission Chairman Wafula Chebukati announced the Commission’s plans for mass voter registration in the diaspora. According to the IEBC boss, Kenyans living in the United Kingdom, Canada, the United States of America, South Sudan, Qatar, United Arab Emirates and Germany will have an opportunity to participate in the 9 August 2022 polls. The new centres were in addition to East African Community countries  (Tanzania, Uganda, Burundi, and Rwanda) and South Africa, where Kenyans were able to cast their votes in the 2017 general election.

Regulation 34(2) of the Elections (Registration of Voters) Regulations 2012 provides that: “A decision by the Commission to register Kenyan citizens residing outside Kenya or to conduct elections outside Kenya shall be based on the presence of [a] Kenyan Embassy, High Commission or Consulate.” The IEBC was to undertake a 15-day voter registration exercise for the diaspora from 21 January to 6 February 2022.

Chebukati said that additional Biometric Voter Registration (BVR) kits would be made available in countries with multiple registration centres (US, Canada, UAE and Tanzania). A BVR kit was also to be installed in the Huduma Centre at the General Post Office in downtown Nairobi for the registration of Kenyans who would have travelled to Kenya during the registration period.

Voter registration did not kick off on schedule.

In a statement dated 21 January, the Commission gave COVID-19 travel restrictions and logistical challenges as the reasons behind the failure to begin the registration. “The commission regrets the delay in rolling out the voter registration exercise in the affected countries and is closely working with the relevant authorities to ensure it kicks off,” the statement said. The Commission said that the period of registration would be prolonged to compensate for the time lost. 

Registration in London started on 24 January, on 1 February in Ottawa, Vancouver and Toronto and on 31 January in the UAE.

By February 6, the IEBC had enrolled only 2,959 new voters in 12 countries: Uganda, Tanzania, Rwanda, Burundi, South Africa, South Sudan, the US, the UK, UAE, Qatar, Germany and Canada.

The failure to start registering Kenyans in the diaspora on time, and the low numbers registered, is indicative of the mess that has been the bid to ensure that Kenyans in the diaspora can vote.

After years of lobbying for their right to dual citizenship and the right to participate in Kenyan elections in their countries of residence, the Constitution of Kenya 2010 extended voting rights to at least three million Kenyans living abroad. However, only about 4,000 Kenyans in the diaspora were able to vote in the 2013 and 2017 presidential elections (in its communication on voter registration in the diaspora, the IEBC has stated that Kenyans living abroad can only participate in presidential elections and referendums).

Section 109 (1) (a) and (b) of the Elections Act gives the IEBC the power to make regulations to prescribe the manner in which registers of voters shall be compiled, the manner in which they shall be revised and the procedure for the progressive registration of Kenyans living abroad.

Article 82 (1) provides that Parliament shall enact a law that shall provide for “the progressive registration of citizens residing outside Kenya, and the progressive realisation of their right to vote”. Further, Article 83 (3) provides that “administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election”.

The Kenyan diaspora does not think the IEBC has complied with the constitution. With their billions of shillings in remittances, Kenyans living abroad rightfully argue they should participate in the election of the country’s leadership and have felt cheated ever since only a very small minority were allowed to participate in the 2013 and 2017 elections.

In November 2012, the government had announced that the diaspora would not be able to vote because of “logistical and financial constraints”. Then Justice and Constitutional Affairs Minister Eugene Wamalwa told Parliament at the time that voting outside of Kenya was “not practical” as the electoral commission was already facing challenges in enrolling voters at home.

With their billions of shillings in remittances, Kenyans living abroad rightfully argue they should participate in the election of the country’s leadership.

“Kenyans in the Diaspora will not vote in the 2013 elections. It is not practical to have them take part now. I am appealing to those who can come home to register to do so,” Wamalwa said, adding that the matter had been discussed at cabinet level.

Martha Karua, who had resigned as Justice Minister, accused the cabinet of interfering with the independence of the IEBC, which she said had set aside 47 BVR kits to register Kenyans living abroad.

Angered by the decision, Kenyans living abroad moved to court, calling Wamalwa’s pronouncement illegal, ill-conceived and ill-timed. However, High Court Judge David Majanja ruled that although the right to vote is guaranteed constitutionally, it is not absolute and cannot be realised instantaneously but only progressively.

At the centre of the issue is also the actual number of Kenyans living abroad. At the time, Wamalwa said that only 152,000 Kenyans were registered with Kenyan missions abroad, adding that the three million figure was an exaggeration; the ministry of Foreign Affairs put the number at 700,000.

Agnes Gitau, who lives in the UK and is the Kenya Diaspora Alliance representative for London, said the process was flawed and would exclude many people due to logistics, and the short registration period of 15 days. “There has also been confusion on required documents. We believe it’s a deliberate attempt to exclude many,” Gitau said.

The IEBC chairman had said Kenyans abroad must “produce evidence of citizenship which is a valid Kenyan passport”, yet Kenyans residing in the other countries of the East African Community could use their identity card as proof of citizenship.

However, following a High Court decision, in a memo to registering missions the Commission announced that Kenyans in the diaspora could register as voters using either an Identity card or a valid passport. In the memo dated February 1, acting CEO Marjan Hussein said the directive was issued on 31 January pending determination of a petition filed by Okiya Omtatah against the IEBC and the Attorney General.

Omtatah had challenged the provisions of the Elections (Registration of Voters) Regulations, (2012), particularly Regulation No.37, which prohibit the use of national identity cards to register citizens in the diaspora as voters.

On 20 January, the Kenya Diaspora Alliance (KDA) released a statement in which it welcomed the IEBC’s decision to add eight more countries to the list of countries where the Kenyan diaspora could vote but also raised various concerns about the registration process. The lobby group, which said it represents 46 Kenya diaspora organisations, took issue with the 15 days allocated to the registration exercise. Kenyans within the country were given three weeks to register but, beyond that deadline, IEBC offices remain open for continuous registration until February 28. This option is not available to Kenyans in the diaspora.

“This discrepancy in the time limits seems to deny the Kenyans in the diaspora a fair opportunity to register in their numbers by having less time to register,” KDA said in the statement. The KDA also raised concerns regarding the vast areas—spanning countries and continents—covered by the missions that act as voting centres.

“This means that the Kenyans who wish to vote must travel over long distances and often expensively to register as voters. The Kenyan Embassies and High Commissions earmarked as registration centres are inadequate and logistically challenging for Kenyans who have to travel far and wide to register. That in itself negates the spirit and objective of the exercise,” KDA said. The KDA also does not think that Kenyans in the diaspora have been adequately consulted and involved in the process. “There also seems to be a selective partnership and collaboration between IEBC and some Kenyan diaspora organizations in supporting the exercise.”

Consequently the KDA has, among other things, demanded that more registration and voting stations be provided in order to improve access. It has also demanded that the use of technology, including registration through e-Citizen and other suitable online platforms, be explored. The Alliance has also called for more time (six weeks) for registration and that the IEBC consults with the organisation and with other credible diaspora groups so that the right to vote is enjoyed by all Kenyans living abroad.

In a letter to Chebukati dated 27 September 2021, the Kenya Qatar Diaspora Sacco took issue with the low number of diaspora voters.

“Despite the political engagement of the diaspora, intensive government outreach to emigrants, and high-stakes electoral competition, fewer than 3,000 Kenyans were permitted to vote from abroad in the year 2013 and 2017 presidential elections,” said Engineer Maxwell Odhiambo, chairman of the Kenya Qatar Diaspora Sacco Ltd. and KDA representative in Qatar. He said that the registration of Kenyans in the diaspora requires a strategic and organised approach, with the IEBC, the embassy and the local diaspora organizations working together.

Diaspora voting in Africa

African countries whose constitutions provide for diaspora voting include Algeria, Angola, Benin, Botswana, Cape Verde, Central African Republic, Chad, Côte d’Ivoire, Djibouti, Equatorial Guinea, Gabon, Ghana, Guinea, Guinea-Bissau, Lesotho, Mali, Mauritius, Mozambique, Namibia, Niger, Rwanda, São Tomé and Principe, Senegal, South Africa, Sudan, Togo, Tunisia and Zimbabwe.

Despite this provision, however, many of these countries have yet to make the diaspora vote a reality. This, according to Voting from Abroad: The International IDEA Handbook is due to lack of the political, legislative, financial or administrative agreements necessary for the regulation and organisation of the diaspora vote.

South Africa

When South Africa became a democracy following the end of apartheid, citizens in the diaspora were able to participate in the watershed 1994 election. However, diaspora voting was abolished soon thereafter until its reinstatement following a 2009 ruling of the Constitutional Court.

In Diaspora Voting in South Africa: Perceptions, Partisanship and Policy Reversal, Elizabeth Iams Wellman observes that the details of the South African case reveal an intensely partisan divide over the inclusion of South Africans abroad.

“Perceptions of the diaspora by the major political parties shaped both policy provision and implementation. With its two policy reversals, the case of South Africa also suggests a number of broader theoretical implications, including the critical variable of how diaspora voting becomes law, as well as the centrality of the political party as a key locus of analysis,” Wellman writes.

Wellman notes that nearly 100,000 South Africans voted in 78 countries in the 1994 election. However, the ANC government went on to ban external voting in 1998, effectively denying “the estimated 1-2 million South Africans living outside of the country” the right to vote. The ban was triggered by a dispute over the registration of voters for the 1999 elections.

Moreover, voter turnout in the 1994 elections was also much lower than anticipated and the electoral commission said it did not make a lot of logistical sense to send teams to register South Africans in the diaspora.

The registration of Kenyans in the diaspora requires a strategic and organised approach, with the IEBC, the embassy and the local diaspora organizations working together.

“Everybody saw 100,000 [votes] which probably was divided among 10 or 13 parties to a greater or lesser extent, and that 5,000 or 10,000 more or less wouldn’t make a difference”.

The IEC had argued that the 1994 decision was to give those who had left the country temporarily the opportunity to vote, questioning why those who had left the country permanently would you still want to vote.

In 2009, however, the Constitutional Court forced the government to reinstate the diaspora vote—all South Africans living abroad could once again participate in national elections. Wellman argues that in South Africa’s case, emigrant enfranchisement—or their exclusion from electoral politics—depends on the ruling party’s perception of the diaspora.

And unlike Kenya’s case where diaspora voting is enshrined in the constitution and other electoral laws and regulations, external balloting in South Africa was reintroduced through the courts and not through legislation. There is thus not much political goodwill to implement it.

For its part, the IEBC has cited logistical and financial challenges in rolling out the diaspora registration. To be sure, diaspora voting is disproportionately expensive while political parties have limited resources; mobilizing potential supporters around the world is far more costly than campaigning back at home. There is therefore no incentive to push for the diaspora vote.

“Uncertainty over the diaspora population and their political leanings (or political interest) suggests that positions on diaspora voting may be driven more by perceptions than accurate information,” Willman writes.

Angola

Angolans living abroad are likely to vote for the first time this year. In September last year, Marcy Lopes, the Minister of Territory Administration, said registration of diaspora voters would start in January 2022. The exercise will last three months.

The Institute of Angolan Communities Abroad estimates that at least 400,000 Angolans live abroad, 47 per cent in Africa, 24 per cent in Portugal and a substantial number in France.

The move to have Angolans abroad vote is part of the constitutional changes proposed by President João Lourenço to the National Assembly. The Constitutional Law of 1992 provided for the diaspora vote but lack of logistical capacity to undertake voter registration abroad has meant that Angolans living abroad have not enjoyed the right.

Angola’s missions abroad started registering citizens on January 17. Angola’s Ambassador to Portugal, Carlos Alberto Paz Fonseca, estimates that about 30,000 nationals who have attained the voting age will register.

The United States

America’s system appears well organized. US citizens resident abroad are eligible to vote in all presidential and congressional elections.

According to American Citizens Abroad, in order to register as a voter a US citizen only needs to visit www.fvap.gov and follow the procedure. However, unlike for African countries for instance, where embassies act as polling stations, this is not the case for the US. This is because embassies are federal entities, whereas it is the states, rather than the federal government, that run elections.

According to Richard Johnson, there are 5.5 million American citizens, including military personnel, living abroad. If Americans abroad were a state, they would be the 23rd largest.

External balloting in South Africa was reintroduced through the courts and not through legislation.

“About 3 million of these Americans abroad can vote — the rest are children. The countries with the highest numbers of adult Americans are Canada (622,000), the UK (329,000), Mexico (201,000), France (169,000), and Japan (125,000). London is the largest ‘American’ city in the world outside of the US, with more than 100,000 Americans living in or around the capital,” the lecturer in US Politics and Policy at Queen Mary University of London, writes.

Johnson notes that in 2009 the US passed the National Defence Authorization Act that requires states to offer overseas voters the option to return their ballot electronically. In practice, this means voters can email or even fax their ballots back to their county superintendent of elections, Johnson explains.

The steps the IEBC has taken since 2017 — including the increase in the number of foreign countries where Kenyans can register to vote — point to an agency committed to having the Kenyan diaspora participate in presidential elections. But this is not enough.

The IEBC should prepare early enough to have as many Kenyans abroad register. The Commission, for instance, should have election attachés in embassies abroad to facilitate continuous registration of Kenyans as voters. Should this option prove expensive, the IEBC could explore with the embassies how best to ensure the continuous registration of voters.

But the easiest solution would be to adopt the use of technology. As the Kenya Diaspora Alliance has recommended, the IEBC needs to explore registration through e-Citizen and other acceptable online registration platforms as this option would address the IEBC’s logistical challenges and be convenient for Kenyan voters wherever in the world they may be.

It would, in fact, offer an opportunity to test e-voting for future use domestically.

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Eliud Kibii is a sub-editor with The Star newspaper and writes on international relations, security and electoral processes.

Politics

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

Nurses are central to primary healthcare and unless Kenya makes investments in a well-trained, well supported and well-paid nursing workforce, nurses will continue to leave and the country is unlikely to achieve its Sustainable Development Goals in the area of health and wellbeing for all.

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Nancy* is planning to leave Kenya. She wants to go to the United States where the nursing pastures are supposedly greener. I first met Nancy when the country was in the throes of the COVID-19 pandemic that tested Kenya’s healthcare system to breaking point. She was one of a cohort of recently graduated nurses that were hastily recruited by the Ministry of Health and thrown in at the deep end of the pandemic. Nancy earns KSh41,000 net with no other benefits whatsoever, unlike her permanent and pensionable colleagues.

When the then Labour and Social Protection Cabinet Secretary Simon Chelugui announced in early September 2021 that the government would be sending 20,000 nurses to the United Kingdom to help address the nursing shortage in that country, Nancy saw her chance. But her hopes were dashed when she failed to raise the KSh90,000 she needed to prepare and sit for the English language and nursing exams that are mandatory for foreign-trained nurses. Nancy would also have needed to pay the Nursing Council of Kenya KSh12,000 for the verification of her documents, pay the Kenya Medical Training College she attended KSh1,000 in order to get her exam transcripts, and apply for a passport, the minimum cost of which is KSh4,550 excluding the administrative fee. Nancy says that, contrary to then Health Cabinet Secretary Mutahi Kagwe’s disputed claims that a majority of applicants to the programme had failed the English language test, most nurses simply could not afford the cost of applying.

Of the targeted 20,000 nurses, the first 19 left Kenya for the UK in June 2022. But even that paltry figure represents a significant loss for Kenya, a country where the ratio of practicing nurses to the population is 11.66 per 10,000. The WHO considers countries with less than 40 nurses and midwives for every 10,000 people to not have enough healthcare professionals. Nearly 60 per cent of all healthcare professionals (medical physicians, nursing staff, midwives, dentists, and pharmacists) in the world are nurses, making them by far the most prevalent professional category within the health workforce. Nurses offer a wide range of crucial public health and care services at all levels of healthcare facilities as well as within the community, frequently serving as the first and perhaps the only healthcare provider that people see.

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

The growing shortage of nurses in the UK has been blamed on the government’s decision to abolish bursaries and maintenance grants for nursing students in 2016, leading to a significant drop in the number of those applying to train as nurses. Consequently, the annual number of graduate nurses plummeted, reaching the current low of 31 nurses per 100,000 people, below the European average of 36.6 and half as many as in countries like Romania (96), Albania (82) and Finland (82). Facing pressure to recruit 50,000 nurses amid collapsing services and closures of Accident & Emergency, maternity and chemotherapy units across the country, the UK government decided to once again cast its net overseas. Established in 1948, the UK’s National Health Service (NHS) has relied on foreign healthcare workers ever since staff from the Commonwealth were first brought in to nurse back to health a nation fresh out of the Second World War.

The UK government’s press release announcing the signing of the Bilateral Agreement with Kenya states that the two countries have committed  “to explore working together to build capacity in Kenya’s health workforce through managed exchange and training” and goes as far as to claim that “with around only 900 Kenyan staff currently in the NHS, the country has an ambition to be the ‘Philippines of Africa’ — with Filipino staff one of the highest represented overseas countries in the health service — due to the positive economic impact that well-managed migration can have on low to middle income countries.”

It is a dubious ambition, if indeed it has been expressed. The people of the Philippines do not appear to be benefiting from the supposed increase in capacity that the exchange and training is expected to bring. While 40,000 of their nurses worked in the UK’s National Health Service last year, back home, according to Filipino Senator Sonny Angara, “around 7 of 10 Filipinos die without ever seeing a health professional and the nurse to patient ratio in our hospitals remains high at 1:50 up to 1:802”.

Since 2003 when the UK and the government of the Philippines signed a Memorandum of Understanding on the recruitment of Filipino healthcare professionals, an export-led industry has grown around the training of nurses in the Philippines that has attracted the increased involvement of the private sector. More nursing institutions — that have in reality become migrant institutions — are training nurses specifically for the overseas market, with the result that skills are matched to Western diseases and illnesses, leaving the country critically short of healthcare personnel. Already, in 1999, Filipino doctors had started retraining as nurses and leaving the country in search of better pay.

It is difficult, then, to see how the Philippines is an example to emulate. Unless, of course, beneath the veneer of “partnership and collaboration in health”, lies the objective of exporting Kenyan nurses with increased diaspora remittances in mind – Kenyans in the UK sent KSh28.75 billion in the first nine months of 2022, or nearly half what the government has budgeted for the provision of universal health care to all Kenyans. If that is the case, how that care is to be provided without nurses is a complete mystery.

Already in 1999, Filipino doctors had started retraining as nurses and leaving the country in search of better pay.

For the UK, on the other hand, importing nurses trained in Kenya is a very profitable deal. Whereas the UK government “typically spends at least £26,000, and sometimes far more, on a single nurse training post”, it costs only £10,000 to £12,000 to recruit a nurse from overseas, an externalization of costs that commodifies nurses, treating them like goods to be bought and sold.

However, in agreeing to the terms of the trade in Kenyan nurses, the two governments are merely formalizing the reality that a shortage of nurses in high-income countries has been driving the migration of nurses from low-income countries for over two decades now. Along with Ghana, Nigeria, South Africa and Zimbabwe, Kenya is one of the top 20 countries of origin of foreign-born or foreign-trained nurses working in the countries of the OECD, of which the UK is a member state.

Faced with this reality, and in an attempt to regulate the migration of healthcare workers, the World Health Assembly adopted the WHO Global Code of Practice on the Recruitment of Health Personnel in May 2010. The code, the adherence to which is voluntary, “provides ethical principles applicable to the international recruitment of health personnel in a manner that strengthens the health systems of developing countries, countries with economies in transition and small island states.”

Article 5 of the code encourages recruiting countries to collaborate with the sending countries in the development and training of healthcare workers and discourages recruitment from developing countries facing acute shortages. Given the non-binding nature of the code, however, and “the severe global shortage of nurses”, resource-poor countries, which carry the greatest disease burden globally, will continue to lose nurses to affluent countries. Wealthy nations will inevitably continue luring from even the poorest countries nurses in search of better terms of employment and better opportunities for themselves and their families; Haiti is on the list of the top 20 countries supplying the OECD region.

“Member States should discourage active recruitment of health personnel from developing countries facing critical shortages of health workers.”

Indeed, an empirical evaluation of the code four years after its adoption found that the recruitment of health workers has not undergone any substantial policy or regulatory changes as a direct result of its introduction. Countries had no incentive to apply the code and given that it was non-binding, conflicting domestic healthcare concerns were given the priority.

The UK’s Department of Health and Social Care (DHSC) has developed its own code of practice under which the country is no longer recruiting nurses from countries that the WHO recognizes as facing health workforce challenges. Kenya was placed on the UK code’s amber list on 11 November 2021, and active recruitment of health workers to the UK was stopped “with immediate effect” unless employers had already made conditional offers to nurses from Kenya on or before that date. Presumably, the Kenyan nurses who left for the UK in June 2022 fall into this category.

In explaining its decision, the DHSC states that “while Kenya is not on the WHO Health Workforce Support & Safeguards List, it remains a country with significant health workforce challenges. Adding Kenya to the amber list in the Code will protect Kenya from unmanaged international recruitment which could exacerbate existing health and social care workforce shortages.”

The WHO clarifies that nothing in its Code of Practice should be interpreted as curtailing the freedom of health workers to move to countries that are willing to allow them in and offer them employment. So, even as the UK suspends the recruitment of Kenyan nurses, they will continue to find opportunities abroad as long as Western countries continue to face nurse shortages. Kenyan nurses will go to the US where 203,000 nurses will be needed each year up to 2026, and to Australia where the supply of nursing school graduates is in decline, and to Canada where the shortage is expected to reach 117,600 by 2030, and to the Republic of Ireland which is now totally dependent on nurses recruited from overseas and where working conditions have been described as “horrendous”.

“Adding Kenya to the amber list in the Code will protect Kenya from unmanaged international recruitment which could exacerbate existing health and social care workforce shortages.”

Like hundreds of other Kenyan-trained nurses then, Nancy will take her skills overseas. She has found a recruitment agency through which to apply for a position abroad and is saving money towards the cost. She is not seeking to move to the UK, however; Nancy has been doing her research and has concluded that the United States is a much better destination given the more competitive salaries compared to the UK where nurses have voted to go strike over pay and working conditions. When she finally gets to the US, Nancy will join Diana*, a member of the over 90,000-strong Kenyan diaspora, more than one in four of whom are in the nursing profession.

Now in her early 50s, Diana had worked for one of the largest and oldest private hospitals in Nairobi for more than 20 years before moving to the US in 2017. She had on a whim presented her training certificates to a visiting recruitment agency that had set up shop in one of Nairobi’s high-end hotels and had been shortlisted. There followed a lengthy verification process for which the recruiting agency paid all the costs, requiring Diana to only sign a contract binding her to her future US employer for a period of two years once she had passed the vetting process.

Speaking from her home in Virginia last week, Diana told me that working as a nurse in the US “is not a bed of roses”, that although the position is well paying, it comes with a lot of stress. “The nurse-to-patient ratio is too high and the job is all about ticking boxes and finishing tasks, with no time for the patients,” she says, adding that in such an environment fatal mistakes are easily made. Like the sword of Damocles, the threat of losing her nursing licence hangs over Diana’s head every day that she takes up her position at the nursing station.

“The nurse-to-patient ratio is too high and the job is all about ticking boxes and finishing tasks, with no time for the patients.”

Starting out as an Enrolled Nurse in rural Kenya, Diana had over the years improved her skills, graduating as a Registered Nurse before acquiring a Batchelor of Science in Nursing from a top private university in Kenya, the tuition for which was partially covered by her employer.

Once in the US, however, her 20 years of experience counted for nothing and she was employed on the same footing as a new graduate nurse, as is the case for all overseas nurses moving to the US to work. Diana says that, on balance, she would have been better off had she remained at her old job in Kenya where the care is better, the opportunities for professional growth are greater and the work environment well controlled. But like many who have gone before her, Diana is not likely to be returning to Kenya any time soon.

*Names have been changed.

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Politics

Why Azimio’s Presidential Petition Stood No Chance

In so far as the court had nullified the 2017 elections, the evidential threshold required for any subsequent electoral nullification was going to be substantially high for any petitioner.

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Even before the 9 August general election, it was expected that the loser of the Kenyan presidential contest would petition the Supreme Court to arbitrate over the outcome. Predictably, the losing party, Azimio La Umoja-One Kenya Coalition, petitioned the court to have William Ruto’s win nullified on various procedural and technical grounds. Azimio’s case was predicated on, among others, three key allegations. First, that William Ruto failed to garner the requisite 50 per cent plus one vote. Second, that the Independent Electoral and Boundaries Commission (IEBC) chairman Wafula Chebukati had announced the outcome without tallying and verifying results from seven constituencies. Finally, that the commission could not account for 250,000 votes that were cast electronically.

As we know, Azimio lost the case as the judges dismissed all the nine petitions that the party had filed, unanimously finding that William Ruto had won fairly.

Adjudicating electoral fallouts

Since its inception in 2010, the Supreme Court has played a decisive role in adjudicating fallouts linked to contentious presidential politics in Kenya, with the court deliberating on the outcome of three out of the four presidential elections held after its inauguration. Prior to this, the losing party had no credible institutional mechanism of redress and electoral disputes were generally resolved through mass political action (as in 2007) or consistent questioning of the legitimacy of the winner (as in 1992 and 1997).

The Supreme Court’s presence has, therefore, been crucial in providing losers with an institutionalised mechanism to channel dissent, with the court operating as a “safety valve” to diffuse political tensions linked to presidential elections. It is, hence, impossible to conceive of the relatively peaceful elections held in 2013, 2017 and 2022 without the Supreme Court whose mere presence has been key in discouraging some of the more deadly forms of political rivalry previously witnessed in Kenya.

Relentless petitioning

While the Azimio leadership were right to petition the court in the recent election, first because this successfully diffused the political tensions among their supporters, and second because the court was expected to provide directions on IEBC conduct in future elections, it was clear that Raila Odinga’s relentless petitioning of the court in the previous two elections, and the nullification of the 2017 elections, was in essence going to be a barrier to a successful petition in 2022.

In so far as the court had nullified the 2017 elections, the evidential threshold required for any subsequent electoral nullification was going to be substantially high for any petitioner. The relentless petitioning of the court and the nullification of the 2017 elections had in essence raised the bar for the burden of proof, which lay with the petitioner(s) and, therefore, reduced the probability of a successful petition.

The Supreme Court’s presence has been crucial in providing losers with an institutionalised mechanism to channel dissent.

The reason for this is both legal and political. Legal in the sense that the IEBC is expected to conduct the elections under the law, which, among other issues, requires that the electoral process be credible and the results verifiable before any certification is made, otherwise the election is nullified, as was the case in 2017. It is political because the power to select the president is constitutionally, hence politically, delegated to the Kenyan people through the ballot, unless electoral fraud infringes on this, again as was the case in 2017.

The court in its deliberation must, therefore, balance the legal-political trade-off in its verdict in search of a plausible equilibrium. For instance, while the majority of Azimio supporters had anticipated a successful petition based on the public walkout and dissent by the four IEBC commissioners, it seems that the decision to uphold the results displayed the court’s deference to political interpretation of the law by issuing a ruling that did not undermine the Kenyan voters’ right to elect their president.

While the settlement of legal-political disputes by a Supreme/Constitutional court is a common feature across democracies, and continuously being embedded in emerging democracies like Kenya, it does seem that in this election, the political motivations for upholding the vote outweighed the legal motivations for nullifying it. In essence, the court demonstrated its institutional independence by ruling against the Kenyatta-backed Azimio candidate due to insufficient evidence.

Supreme Court power grab 

A counterfactual outcome where the evidential threshold for the nullification of presidential results is low would foster a Supreme Court power grab, in lieu with the 2017 nullification, by marginalising the sovereign will of Kenyans to elect their president.

In many ways, nullification of the results would also have incentivised further adversarial political behaviour where every electoral outcome is contested in the Supreme Court even when the outcome is relatively clean, as in the case of the 2022 elections.

It is this reason (among others) that we think underlined the Supreme Court justices’ dismissal of Azimio’s recent petition. The justices ultimately dismissed the evidence presented by the petitioners as “hot air, outright forgeries, red herring, wild goose chase and unproven hypotheses”, setting a clear bar for the standard of evidence they expect in order to deliberate over such an important case in the future.

In essence, the court demonstrated its institutional independence by ruling against the Kenyatta-backed Azimio candidate due to insufficient evidence.

Since the earth-shaking nullification of the 2017 elections, the Supreme Court transcended an epoch, more political than legal by “invading” the sovereign space for Kenyans to elect their president, thereof setting a precedence that any future successful petition to contest a presidential election requires watertight evidence.

In a sense, Azimio were victims of Odinga’s judicial zealotry and especially the successful 2017 petition. In so far as the evidence submitted to the Supreme Court by Azimio in 2022 was at the same level or even lower than the 2017 base, their case at the Supreme Court was very likely to be dismissed and even ridiculed as the justices recently did.

The precedent set by the 2022 ruling will, actually, yield two positive political outcomes. First, it will in the future weed out unnecessary spam petitions that lack evidence and rather increase needless political tensions in the country. Second, it has signalled to future petitioners, that serious deliberations will only be given to petitions backed by rock-solid evidence.

Missed opportunity

From the recent ruling, it is evident that the judgement fell far below the precedent set in 2017. The 2017 Supreme Court ruling that the IEBC should make the servers containing Form 34A publicly available, was crucial in improving the credibility of the 2022 elections, by democratising the tallying process. At a minimum, the expectation was that the justices would provide a directive on the recent public fallout among the IEBC commissioners with regard to future national tallying and announcement of presidential results.

By dismissing the fallout as a mere corporate governance issue, the justices failed to understand the political ramifications of the “boardroom rupture”. What are we to do in the future if the IEBC Chair rejects the results and the other commissioners validate the results as credible?

Additionally, by ridiculing the petitioners as wild goose chasers and dismissing the evidence as “hot air”, the justices failed to maintain the amiable judicial tone necessary to decompress and assuage the bitter grievances among losers in Kenya high-octane political environment.

In a sense, Azimio were victims of Mr Odinga’s judicial zealotry and especially the 2017 successful petition.

The Supreme Court ought to resist the temptations of trivializing electoral petitions, as this has the potential of triggering democratic backsliding, where electoral losers might opt for extra-constitutional means of addressing their grievances as happened in December 2007. It is not in the petitioners’ place to ascertain whether their evidence is “hot air” or not, but for the court to do so, and in an amiable judicial tone that offers reconciliation in a febrile political environment.

The precedent set by the 2017 ruling that clarified the ambiguities related to the IEBC’s use of technology to conduct elections, set an incremental pathway towards making subsequent elections credible and fair, and increased public trust in the key electoral institutions in Kenya.

The justices, therefore, need to understand that their deliberations hold weight in the public eye and in the eyes of political leaders. Therefore, outlining recommendations to improve the IEBC’s conduct in future elections is a bare minimum expectation among Kenyans. In this case, while they provided some recommendations, they failed to comprehensively address the concerns around the walk-out by the four IEBC commissioners.

At the minimum, chastising the IEBC conduct was necessary to consolidate the electoral gains made thus far but also recalibrate institutional imperfections linked to how elections are to be conducted and, especially, contestations around the role of the commissioners in the national tallying of results in the future.

This article is part of our project on information and voter behaviour in the 2022 Kenyan elections. The project is funded by the Centre for Governance and Society, Department of Political Economy, King’s College London.

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Politics

GMOs Are Not the Only Answer

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

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

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

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

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

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

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

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

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

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

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

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

Maize is not the only ugali

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

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

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

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

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

Were it that simple.

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

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

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

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

The survey defines large farms as those above 20 hectares.

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

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

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

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

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

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

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