Charles Njonjo, the first Attorney General of independent Kenya, died earlier this year at the age of 101. Writers of obituary essays have rendered competing verdicts on his life. The activist John Githongo warmly remembered Njonjo as a “steadfast friend and a man of his word”. The politician Miguna Miguna, by contrast, gave a dark valedictory: “Rot in hell, Charles Njonjo”, he wrote. “You represent all the problems Kenyans want and must rid themselves of”.
Njonjo saw himself as a stalwart defender of Kenyans’ liberties. In his day, he was a prolific contributor to political conversation: his speeches from the floor of Parliament were said to be second only to Tom Mboya’s in their length. His favourite theme was the relationship between law and liberty. On one memorable occasion, he lectured parliamentarians for an hour and 45 minutes, insisting that preventative detention—the incarceration of people pre-judged as dangerous to the political order—was entirely constitutional. The legal and administrative regime that he defined and defended was meant to guard the security and prosperity of Kenya’s wealthy and entitled upper classes. It was a regime that was paranoid about dissent, scornful of the poor, and focused on the security of property. It was a regime where—in the name of the common good—many categories of people found themselves incarcerated.
That is why it is worth inquiring again into Charles Njonjo’s life. It is not to humanize a man who disregarded the humanity of so many people. It is that, in unpacking the human history behind Kenya’s political institutions, we can see—and also challenge—the logics that uphold injustice in our contemporary times.
Charles Njonjo’s father, Josiah Njonjo, was a divisional chief under Kenya’s colonial government and one of the founders of the Kikuyu Association, an early political party. He was by no means a pliable tool of British colonial policy. When in 1933 the government appointed a commission to investigate Gikuyu people’s complaints over the loss of their hereditary lands, Chief Josiah testified at length about the injustices that had attended the onset of colonial rule. British settlers had appropriated “land which was ours and on which they now plant coffee and make themselves rich at the expense of the Kikuyu owners”, he said. African farmers taking their cattle from one part of the Gikuyu reserve to another were forced to pass through European farms, risking fines and imprisonment. He asked the government to rectify the injustice:
Seeing that both we and the Europeans are children and subjects of the King, surely it is only fair that all the children should be given equal justice? We are as loyal as the Europeans and are as prepared to work for the sake of Her Majesty as the Europeans are.
Chief Josiah’s appeal was framed within the logic of conservative loyalism. He sought to level out the racial hierarchy that structured colonial Kenya’s politics, insisting that Africans, like white settlers, deserved justice from the British crown.
It is not surprising that Chief Josiah’s son would become a lawyer. In the late 1940s, Charles Njonjo was in England, studying at Exeter and the London School of Economics, where he chaired the East African Students’ Union. He applied for a post in the colonial civil service, but insisted that the terms of his employment should match those offered to Europeans. When Kenya’s government refused, an indignant Njonjo entered Gray’s Inn to study law. By the early 1950s, he was living with a young Harry Nkumbula—later a leading Zambian nationalist—in a London flat provided by the Communist Party. According to British intelligence, he was friendly with the Caribbean activist George Padmore, and was involved in Fenner Brockway’s Congress of Peoples Against Imperialism. He returned to Kenya in January 1955 to take up his first government post: as temporary Assistant Registrar General. British intelligence operatives thought him possessed of an “anti-European outlook” and “potentially very dangerous”. He was popular among African students in London because of his “personality and pleasant manners”, but capable of “cool, calculated reasoning to achieve his ends”. When he landed in Nairobi, he was found to have in his luggage a prohibited publication: George Padmore’s Africa: Britain’s Third Empire, a vituperative critique of Britain’s colonial project in Africa.
Njonjo applied for a post in the colonial civil service, but insisted that the terms of his employment should match those offered to Europeans.
Here is one way to see Charles Njonjo. Formed by his father’s conservative loyalism and by his own experiences with colonial racism, he spent his career wielding the tools of English culture and identity to demand recognition, respect, and authority from European and American brokers of power. By 1963, he was Kenya’s Attorney General, the first African to hold the post. He was famously fastidious in his manner, appearing always in a three-piece Saville Row-tailored pinstripe suit, with a watch chain looped across his waistcoat and a red carnation in his buttonhole. He complained on the floor of Kenya’s Parliament about politicians who “dressed like shamba men [garden boys]”. It was “disgraceful”, he said. He attended the ceremonies in London marking the 750th anniversary of the signing of the Magna Carta, and told the Kenyan press that “the Magna Carta is part of our tradition, too”. He was patron of the East African Library Association, and once told an audience that “libraries are sacred spaces and librarians are very holy people”.
At a time when most African states were hastily placing Africans in the topmost positions of the civil service and the military, Njonjo insisted that British policemen, soldiers and civil servants were essential. “Should we lower our standards . . . just because a man has a black face?”, he asked. He scorned cultural nationalists’ efforts to make Swahili Kenya’s national language. Kenyans should not be ashamed of speaking English, he told parliamentarians, because it was “not an Englishman’s language but an international means of communication”. Swahili was a concoction of Arabic phrases, with an inadequate vocabulary. To speak Swahili on the floor of Parliament would “make this House like that of Babel, because nobody would understand whatever the other said”. He insisted that Kenyans should “avoid as much as possibly an attempt which would make us narrow in our outlook”.
It is for this reason, perhaps, that Njonjo was a consistent defender of Kenyan women’s liberties. He derided the nationalist impulse to calcify public culture in the name of traditional morality. In neighbouring Tanzania and in Uganda, governments were adopting laws prohibiting the wearing of miniskirts and wigs. It was, according to activists, a way of defending African women’s morals against foreign influences. Charles Njonjo derided this cultural defensiveness. When in 1966 a parliamentarian introduced a motion to bar women from wearing slacks and tights, using lipstick, or straightening their hair, Njonjo took the floor and pointed out that the mover was wearing headgear that was inconsistent with traditional attire. Women should be allowed to exercise the “right to choose their own fashions and makeup and men should not interfere”, he averred. In 1972, politicians called for a ban on lurid films from Kenya’s cinemas. Njonjo insisted that parliamentarians “must respect the intelligence of our people. Kenyans should be intelligent enough to judge for themselves”.
American diplomats found Charles Njonjo to be “svelte, dapper, articulate, informed, and totally incongruous in the black African context”. Njonjo saw himself as a legatee of the Anglophone tradition of legal and political reasoning. It was a source of moral authority, an instrument that he could wield against other Kenyans—and against Europeans and Americans, too. When the American newspaper magnate Katharine Graham—publisher of the Washington Post and Newsweek—was late for a meeting, Njonjo scolded her for her lack of punctuality, then brusquely turned on his heel and walked out of the room.
The Kenya that Njonjo sought to create was meant to be—in his words—the “greatest living example of democracy, justice and peace”. But there was no space for the poor. They were disreputable, a danger to the public good. In 1968, Njonjo pushed through a new law giving authorities the power to remove prostitutes and beggars from cities and send them to work for their parents on the land. He called beggars “lazy people who think they can enrich themselves at the expense of others”. Under Njonjo’s tenure, punishments for crimes of property were disproportionately harsh. In August 1963—a few months before Kenya’s independence—Njonjo warned “thugs” that assault and theft would be punished with “the severest sentence”, including public flogging. He insisted, “Kenya must get back to the stage where people can leave their homes and property without worry and where they will feel secure”. A few years later Njonjo again waxed nostalgic about an imaginary past, telling parliamentarians, “Kenya should go back to the old way of life where a person could leave his house unlocked and not be worried that thieves would break into it”.
Njonjo saw himself as a legatee of the Anglophone tradition of legal and political reasoning.
Here was the political theory that lay beneath the growth of Kenya’s security state. Over the course of his nearly twenty years in public service, Njonjo insisted that “a strong popular government must be ready at all times and in all circumstances to protect the security of the state and the liberties of the people”. The incarceration of dissidents, detention without trial, the expansion of prisons—all of this was, for Njonjo, a means of guaranteeing Kenyans’ freedom. The “liberty of individuals could only be protected by protecting the state”, he told parliament in 1966, while defending a new law allowing for the long-term detention of criminals. The “law means nothing if it were not to ensure liberty, but liberty could only exist when protected by law and legal process”, he said in 1971. Law and liberty “stand hand in hand, as equal partners in the fight against their common foes of anarchy and oppression”. In 1977, while defending the detention of dissidents by government, he warned, “Kenya’s freedom could disappear overnight if adequate public security was not provided”.
It was, among other things, a rationale for expanding the power of Kenya’s president. When in 1968 opposition activists pressed for the creation of a new post—a Prime Minister, who would control and advise President Kenyatta—Njonjo called the proposal “misconceived, meaningless and pitiful”. Eight years later, Njonjo warned Kenyans that it was a “criminal offence” for anyone to “compass, imagine, devise, or intend the death or deposition of the President”. The mandatory sentence for any such offence was death.
A great many people lost their lives and their freedom in those years. A great many people spent years in prison as a guarantee for the security and liberty of Kenya’s rich and propertied classes. Some of the detainees were well known. Raila Odinga—now a leading contender in Kenya’s presidential elections—was detained from 1983 to 1988, from 1988 to 1989, and from 1990 to 1991. Amnesty International adopted him as a prisoner of conscience. Martin Shikuku, Kenya’s most consistent parliamentary critic of government corruption, spent three years in prison. The famous novelist Ngugi wa Thiong’o was detained in December 1977 for “activities and utterances which are dangerous to the good government of Kenya”. Other people suffered anonymously. They were caught up in a carceral system that was geared to the punishment and confinement of the poor. When in 1969 Kenya’s courts sentenced a 19-year-old man to ten years in prison for snatching a bag from a pedestrian, Attorney General Njonjo defended the sentence, arguing, “Young offenders who commit cold and calculated crimes deserve severe and long term punishments”.
That, then, is another way to see the late Njonjo: as a ruthless defender of entrenched inequality, an architect of a legal and political system that advantaged the wealthy and criminalized the lives of the poor. In the 1950s, hundreds of thousands of Kenyans had been tried and convicted of offenses committed during the course of the anti-colonial Mau Mau insurgency. After independence, many Kenyans expected—naturally—that their records would be wiped clear, that the new government would ignore or vacate convictions given under colonial jurisdiction. For Attorney General Njonjo there were no clean slates. He promised that “previous convictions of a political nature incurred by people in the fight for independence” would be ignored by independent Kenya’s magistrates. But earlier convictions were, however, always admissible as evidence in a court proceeding. “Theft under the colonial Government is still theft today”, he said.
The most cutting criticism of Charles Njonjo’s life came from the novelist Ngugi wa Thiong’o, whose satirical novel Matigari ma Njirũũngi was published—in the Gikuyu language—in 1986, six years after his release from detention. The novel features Matigari, a Mau Mau warrior who comes out of the forest to confront the injustices of post-colonial Kenya. In a pivotal scene the “Minister of Truth and Justice”—clad in a pinstripe suit, with a red carnation on the lapel and a white handkerchief in the breast pocket—confronts a restive crowd of workers and students. Having already arrested and detained their leaders, the Minister assures them that “without the rule of law—truth and justice—there is no government, no nation, no civilization”. There follows a self-revealing sermon about the law:
Niĩ ngĩrĩire wathoinĩ, ngarũmio na ngarũmia watho, ngathoomithio na ngoomithio watho, na ũmũũthĩ ũyũ nĩ niĩ mũigi, mũigĩrĩri, na mũgitĩri watho.
I was brought up in the law. I abide by the law, and the law abides in me. I have been taught the law, and I staunchly believe in it. I am the guardian of the law today. I make the law, and I ensure that it is kept.
In the Gikuyu original, the Minister mashes up the different functions of legal practice. The words slide together. There is no space, grammatically or vocabularically, for judicial independence. There is no separation of powers, no function of the law that is distinguishable from the person of the Minister himself. Ngugi’s satire reveals Charles Njonjo’s definition of the law to be tautologically self-interested, self-defining, and self-elevating.
Njonjo’s downfall, when it came, was swift. On 1 July 1983, he announced that he was resigning his position as Minister for Constitutional Affairs. He was accused of scheming, in the company of Kenya Air Force men, to oust President Daniel arap Moi. President Moi appointed a Commission of Inquiry to go into Njonjo’s affairs, and over the course of 109 days, Kenyans were transfixed as a parade of witnesses opened up Njonjo’s dirty laundry for public inspection. On average Kenya’s leading newspaper, the Daily Nation, dedicated six and a half pages per day to the hearings; and over the course of several months the newspaper published over a million words about Charles Njonjo’s private life. Sales rose dramatically: where the newspaper had been selling 150,000 copies per day, during the Njonjo inquiry it sold 200,000 copies.
Njonjo warned Kenyans that it was a “criminal offence” for anyone to “compass, imagine, devise, or intend the death or deposition of the President”.
Much of the evidence seems to have been introduced with the sole purpose of embarrassing Njonjo. The panel spent several days in January 1984 discussing the excess baggage that Njonjo shipped from London to Kenya on Kenya Airways. The baggage—which arrived in the airport every few weeks—weighed 240 kilograms on average. There were suitcases and boxes full of oranges, clothing and toys. There were regular shipments of Ribena. Njonjo never paid customs duties on any of it; neither did he pay the shipping costs to Kenya Airways. Four months later the panel listened to witnesses describe how Njonjo had funnelled money from the Association of the Disabled in Kenya to support the Kikuyu Constituency Development Fund. “Njonjo Diverted Disabled’s Money” was the newspaper headline.
There was more serious evidence too. Witnesses described how Njonjo had made plans with mercenaries from Israel and South Africa, planning a coup timed for early August 1982. Based on this and other evidence the judges ruled—in December 1984—that Charles Njonjo had set in motion “intrigues deliberately designed to undermine the position of the Head of State, his image, as well as usurp the power of the constitutionally established government”. President Moi pardoned him on the very day the verdict was announced. Njonjo duly repaid the funds that had been usurped from the Association of the Disabled, and thereafter he largely disappeared from public life.
The political and legal system that Njonjo built, however, has endured. In a recent article, the journalist Patrick Gathara has argued that contemporary Kenya’s prisons “carry the DNA of their forebears”. Today over 50,000 people are detained in Kenya’s prisons, crowded into buildings that are meant to house 14,000 at most. According to a 2015 report, Kenya has incarcerated more of its citizens than any other country in eastern Africa, outside Rwanda and Ethiopia. Today Kenya’s elite lives behind barbed wire fences, while—under the guise of counter-terrorism—Kenya’s police target poor and marginal residents of Nairobi. As Gathara argues, this is a legacy of colonial government. It is also a legacy of Charles Njonjo. In working to protect Kenyans’ liberties, he made the incarceration and punishment of the poor seem to be a moral necessity.
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The Information Disorder Calls for Multidisciplinary Collaboration
The responses to the information disorder adopted in Kenya have been largely ineffective. Multidisciplinary stakeholders working collaboratively stand a higher chance of success and will result in a more informed audience that is less susceptible to mis- and disinformation.
The information disorder (i.e., mis- and disinformation) pervasive on social media has arguably interfered with democratic processes across the world. As public authorities and political actors continue to embrace social media as a broadcast and civic engagement tool, the potency of manipulated narratives online is further entrenched. This is debatably truer in electoral contexts where issues are perhaps more emotive and divisive. For example, in the run-up to Kenya’s general elections, a notable amount of mis- and disinformation on social media was observable. As Wambui Wamunyu and June Okal noted, doctored images of crowds during political rallies, mild deepfake videos, doctored photos, and fake accounts passing off as political actors or mainstream media were just some of the categories of mis- and disinformation observable on social media. These observations tie in with earlier research by Odanga Madung and Brian Obilo, highlighting the practice of using bloggers for disinformation campaigns. During the actual elections, the EU Election Observer Mission also observed “manufactured amplification and coordination of messages online by fake accounts and malicious, bot-driven activity in support of the presidential candidates”.
The impact of the information disorder on democracies has been extensively discussed and will not be the subject of this article. Instead, this article focuses on the diverse responses which have been mooted and implemented in Kenya by policy makers, media, civil society, and social media platforms in response to the information disorder. In particular, this article argues that these responses are largely ineffective when used in isolation and suggests that collectives comprised of a broad range of multidisciplinary stakeholders working collaboratively are likely to have a higher chance at success. One such collective, Fumbua, was established in the run-up to the 2022 general elections in Kenya, and this article argues that the frameworks for collaboration it established can be repurposed to address the information disorder in numerous contexts.
Contextualizing the information disorder on social media
The proliferation of mis- and disinformation on social media is made easier by the fact that such platforms, by nature, enable peer-to-peer engagement with little to no gatekeeping. While this characteristic has also meant that these platforms have served to create room for civic engagement and act as an equalizer, such civic engagement is often undermined by the harmful content that is prevalent. In recognition of the potential for harm their platforms pose to democratic processes, numerous social media platforms have adopted policies and tools specifically designed to address election-related mis-and disinformation. Comparatively, the content moderation tools applied in the Global South have arguably been scant. For example, in Brazil, the individuals tasked with enforcing Twitter’s policies during the presidential election only got access to the necessary internal tools a day prior to the election, and only in a limited capacity. Twitter allegedly utilized automatic enforcement technology and third-party service providers. According to numerous commentators, it is not uncommon for content moderation efforts in the Global South to be below par. From automatic enforcement tools trained on datasets lacking in local context, to human content moderators facing the same challenge, these platforms’ efforts to curb the information disorder are handicapped from the outset. These challenges are exacerbated in electoral contexts. Recent developments have shown that it sometimes takes third parties such as researchers or civil society pointing out harmful content for platforms to act.
It is generally agreed that mis-and disinformation was prevalent on social media during Kenya’s August 2022 general election. For example, the EU Election Observer Mission indicated in its report that it had identified hundreds of misleading Facebook and Twitter profiles. Platforms triggered their civic integrity policies a few weeks prior to the election and set up information centres and moderately labelled misleading content. However, these labels were not consistently applied and were in fact only deployed during the election tallying process. Stakeholders seemingly lacked a clear solution to address the information disorder on social media. The lack of sustainable and scalable solutions is not unique to Kenya and the region. It is certainly a global problem and a key step in the right direction is securing more transparency from platforms in relation to their enforcement processes as this will enable stakeholders to co-create solutions. However, in the interim, the information disorder can be addressed by effecting incremental and sustainable changes to how media is produced and consumed. One way to accomplish this is through multidisciplinary collectives such as Fumbua.
Addressing the information disorder
Fumbua is a collective of media and media-related organisations which came together in the run-up of the 2022 general election with a view to addressing the information disorder as it relates to political campaigning. The efforts to address the information disorder in Kenya’s 2022 general election can largely be categorized into actions taken in anticipation of the mis- and disinformation (pre-emptive measures) and actions taken in response to the information disorder (reactive measures). Fumbua brought together organisations involved in both areas, such as fact checkers, “pre-bunkers” and traditional media. Both these reactive and pre-emptive measures are discussed below.
The information disorder can be addressed by effecting incremental and sustainable changes to how media is produced and consumed.
Mis- and disinformation has reportedly featured in Kenyan elections since 2013. Consequently, with each passing cycle, stakeholders have been able to understand its nature and develop solutions which are alive to Kenya’s specific context. Unfortunately, due to the rapidly evolving nature of mis- and disinformation practices, the solutions developed have often been reactive in that they seek to get rid of such harmful content or undo its effects after the fact. For example, by criminalizing false content through the Computer Misuse and Cybercrimes Act, by fact checking such content, by using labels to warn audiences of the nature of the content, and by obtaining the takedown of such content from social media sites.
Fact checking has perhaps been the most prevalent or visible response to the information disorder. It essentially entails systematically breaking down the validity of claims made by public officials, institutions, and political actors with a view to identifying whether the claim is factual or not. In Kenya’s elections, various fact-checkers were active. These included independent media, the fact-checking desks of mainstream media, and collectives or associations. To name a few, Africa Check, Africa Uncensored, Pesa Check, Media Council of Kenya, Kenya Editors Guild and The Star were involved in fact-checking claims made during the Kenyan elections. While fact-checking has increasingly become common, it would be improper to conflate its growing prominence with its ability to address the information disorder, especially when empirical evidence on the subject is divided. In highly politicized environments, it is unlikely that being exposed to verification of claims will affect an audience’s world view. This is more so the case where the objectivity and impartiality of the fact-checkers are in question. Fact-checkers often must compete with an audience’s confirmation bias and their credibility is often questioned due to the conflict their narrative poses to the world view of some audiences. This is not made easier by the fact that fact-checking is a difficult, time-consuming, and labour-intensive process which cannot compete with the speed at which false information is spread through social media. Add in the fact that false information more easily captures attention due to its ability to trigger negative emotions and one can understand why the utility and efficacy of fact-checking is limited. Fact-checking claims made through social media have also been especially difficult in Kenya due to the minimal and often performative support given to fact-checkers by social media platforms.
For fact-checking to be effective, it must offer an alternative narrative to that which it is disputing. The challenge is that such a narrative must exist in the first place and must be capable of being accepted by an audience. Where such a narrative exists, there is a risk that it may come with “political baggage” and as such be difficult to accept. In such cases, the efficacy of fact-checking is limited, and this is essentially the challenge faced by fact-checkers – purveyors of false information are not bound by the same rules. Despite all this, fact-checking has been found to positively affect audience beliefs notwithstanding pre-existing beliefs and whether an alternative narrative was presented. However, these credentials are limited as the effects on belief are weak and gradually becoming negligible. Additionally, they do not always translate to downstream effects (i.e., changing of votes).
For a long time, stakeholders seeking to curb the information disorder have found themselves on the back-foot, always responding after the fact. By the time interventions such as fact-checks, social media takedowns, and flags are deployed, harmful content has likely taken root. With this in mind, some pre-emptive solutions have been contemplated and used by stakeholders. These are discussed below.
While fact-checking has increasingly become common, it would be improper to conflate its growing prominence with its ability to address the information disorder.
As discussed earlier in this article, fact-checkers often face the challenge of having to overcome an audience’s inherent biases and the political baggage accompanying the alternative narratives they seek to put forth. In seeking to overcome this reactionary approach, Stephan Lewandowsky and Sander van der Linden argue that it may be more effective to inoculate audiences against harmful content by priming their minds to anticipate it. This has come to be referred to as prebunking, and it essentially entails exposing audiences to watered down versions of false or misleading content with a view to highlighting the tactics used by purveyors of such content. Prebunking efforts recognize that the information disorder may not necessarily be solved by disseminating more accurate information given that harmful content is often consumed in highly politicized contexts. Instead, these efforts seek to redesign information architecture through behavioural interventions (i.e., changing how audiences consume information). In Kenya, Stop Reflect Verify was the first publicly documented election-related prebunking program. It offered a misinformation quiz focused on the Kenyan elections.
While prebunking seemingly promises to reduce the reactionary nature of stakeholder efforts, there is insufficient proof that skills learned in prebunking programmes are applied in practical situations. Counterfactual thinking may be a useful strategy to incorporate into prebunking efforts. Counterfactual thinking involves stimulating an audience’s mind to consider alternative facts and hypotheses when presented with information in a bid to logically deduce the likely truth. The lack of consensus on the utility and efficacy of prebunking as an alternative to fact-checking points to the need for the deployment of multiple interventions in a coordinated fashion, and this is where multidisciplinary collectives such as Fumbua come in.
Building in sustainability
Periodically, civil society, media practitioners, and the donor community focus their efforts on election-related programmes in a collaborative manner (for example the media’s collaboration during presidential debates). In most cases, the collaboration does not survive the post-election period. As a result, these election stakeholders have to start anew during each election. A considerable amount of time and resources are dedicated to establishing the frameworks for collaboration, taking away from the potential impact these programmes may have. With collectives such as Fumbua, stakeholders are able to repurpose the goodwill that fostered collaboration during elections to continue to address the information disorder in other contexts. By sustaining the collaboration, stakeholders would be able to leverage on incremental gains and make a more impactful change. In relation to the information disorder, they would be better able to move towards how media is generated and consumed. The effect of this would be a more informed audience that is less susceptible to mis- and disinformation.
The Next Emergency: Building Resilience through Fiscal Democracy
Crisis is the new constant and advocacy efforts should seek ways of growing public awareness through civic education.
Are East African countries ready to face the next crisis or are they simply keen to go back to how things were? What does a new normal mean when speaking about public finance management (PFM)?
In continuing the struggle for structural transformation, economic justice efforts must work towards developing a new citizen and preparing for unpredictable or unforeseen events, more so those with extreme socio-economic and political consequences.
This is because, besides known challenges posed by existing inequalities, the COVID-19 pandemic has pointed out how “unusual circumstances such as man-made disasters, natural catastrophes, disease outbreaks and warfare … depress the ability of citizens to engage in economic activity and pay taxes as well as that of governments [capacity] to collect revenue [or] provide services”.
Such circumstances therefore demand more inclusion of human rights-based approaches in economic justice efforts to champion greater fairness within existing financial architecture.
Disasters should, therefore, not obliterate human rights but should heighten the need to respect, protection, and fulfilment of obligations through prioritizing expenditure on service delivery, as well as all elements of Economic, Social and Cultural Rights (ESCRs) to “boost the capacity of residents to withstand shocks” by improving coping mechanisms.
Promotion of fair taxes among other broader economic justice initiatives within PFM should consequently adapt towards championing ESCRS within the context of more disruptive and unexpected incidents. Crisis is constant in the new normal.
Fiscal democracy and civil protection: Recovery, resilience, and transformation
Currently, conversations on recovery are focused on tackling reduced tax collection; slowed growth; depressed formal or informal productivity; exploding unemployment; diminished remittances; persistent poverty; decline in energy access; and escalating food insecurity.
This emphasis seeks to reverse the effects of various lockdown policies that placed restrictions on businesses, mobility, movement within and across international borders, [plus] public gatherings. However, it speaks mostly of a desire to return to pre-COVID levels of economic activity while vital systems in tackling the next crisis such as water, education, or health remain unaddressed.
Economic justice initiatives should therefore embrace fiscal democracy and civil protection as goals or appendages in achieving the structural transformation agenda. This will then speak to the resilience, and transformation needed to ensure PFM works for Africans in good times or bad.
Understanding fiscal democracy takes the form of better prioritization, response to problems, and improved sanctions for mistakes in the revenue cycle.
Advocacy for increased domestic opportunities, promotion of childhood development, enhanced socio-economic mobility, support for workers, motivation of local entrepreneurship, diversification of public infrastructure from mega projects, as well as increased innovation through subsidized research and development should be at the heart of economic justice efforts.
Economic justice initiatives should therefore embrace fiscal democracy and civil protection as goals or appendages in achieving the structural transformation agenda.
Civil protection gives a new framework of planning by envisioning contexts or processes in which a series of unfortunate events can emerge, thus providing adequate responses without breaking the social contract.
Transformation therefore occurs when both go hand in hand so that public facilities are not overstretched in the event of crisis. Hence, in looking at the impact of Covid-19, across the East Africa region, we must ask ourselves: How transformative are the current recovery efforts underway? Will they offer a new resilience?
The salvage job: Economic sustainability through reliefs, guarantees, subsidies, and funds
Responses have clearly been driven by the urgency to overcome the pandemic and the need to forestall outright disaster or collapse. The “short-term rescue mode” has seen efforts to ensure vaccine access and bolstering of public health systems.
On the economic front governments “Have sought debt relief, implemented corporate tax deferrals plus exemptions, made direct citizen transfers and interest rate adjustments. [They have also] implemented guarantees and subsidies, liquidity support and food relief … [with] examples of support for micro, small and medium enterprises (MSMEs). Cash transfers and other safety nets for poor and vulnerable populations are critical for an integrated … response. While not transformational, they are building blocks for a basic level of resilience to external shocks.”
The fact that these efforts are not transformational must motivate the infusion of a justice quotient in recovery efforts. This will enable a movement beyond an emergency-oriented recovery that recognizes existing modern challenges such as climate change, population growth, scarce resources, man-made or natural calamities.
In the case of tax justice, to make the linkages that will establish economic sustainability in East Africa, it is important to understand the effect of recovery efforts in relation to public debt; the tax burden on individuals or households; illicit financial flows; harmful tax practices; economic growth; and resource distribution.
Recognizing the prevalent debt crisis even before the pandemic struck is important in informing economic justice movements and their activities. Concerns were looming over the fact that 40 per cent of Sub-Saharan African countries were in or at high risk of debt distress. Between 2010 and 2018, public debt in East Africa grew rapidly as shown in Figure 1.
Figure 1 – National Debt to GDP Ratio
In this time, East African Community (EAC) governments failed to mobilize sufficient revenue despite an overall increase in taxes. The situation was therefore exacerbated by COVID-19, the consequence being that these countries are now stuck in a situation where they must tax more to bridge revenue gaps.
Basically this, first and foremost, creates a context of unfair tax policies in the region that burden their respective citizens, does not enhance service delivery, and is exclusionary in how debt repayment strategies are developed.
Lack of open debate about a country’s fiscal priorities within the existing PFM system neglects the needs of youth who constitute the majority of the population among other segments of society, curtails ideas on how to increase resources needed to provide for new economic opportunity(ies) and respond to the next emergency.
Recognizing the prevalent debt crisis even before the pandemic struck is important in informing economic justice movements and their activities.
Secondly, an environment or ecosystem of illicit financial flows (IFFs) that constitutes the formation of International Financial Centres (IFCs) in Kigali and Nairobi plus the signing of numerous Double Taxation Agreements (DTAs) continues to perpetuate itself thereby providing loopholes within the tax architecture that undermine efforts at domestic revenue mobilization (DRM) because the monies going out of countries are so massive, outweighing Overseas Development Assistance (ODA).
This is thanks to “Constitutionalism [among other legal questions] plus demands to implement new public finance management principles, growth in trade and services across countries in the region or with other countries across the globe, and discovery of natural resources requiring more inflows of foreign direct investments (FDI).”
On average IFFs accounts form 6.1 per cent of Sub-Saharan Africa’s Gross Domestic Product (GDP) thereby impeding economic development and sustainability. For instance, since 2011, Kenya is estimated to lose KSh40 billion annually “as government, local firms and multinationals engage in fraudulent schemes to avoid tax payments”. As of 2021, The State of Tax Justice Report indicates this has grown to an estimated KSh69 billion annually at current exchange rates.
Third, growing account deficits and rising external debt are heavily limiting to economic growth. Increased spending on debt repayment is restricting prioritization on essential public goods and services while borrowing remains one of the key sources of budget financing.
In as much as Kenya cancelled its recent pursuit of another Eurobond, the about-turn towards borrowing domestically following a surge in yields within international markets because of the Russia-Ukraine war is still going to punish the country’s citizens by squeezing them out of access to credit.
Lastly, the debt burden is disempowering the citizen. Rising public debt may result in poor public participation in the management of fiscal policy, and weak structures for keeping governments accountable. This is further worsened by limited access to information on debt or public spending. Moreover, there is weak oversight by parliaments as executives take full control of processes.
Policy-making processes during cascading crises: Fiscal Consolidation, Special Drawing Rights, and Open Government
By understanding that crisis is constant, and that it is likely to manifest as confluence events — merging risks of mitigatable disaster(s) — or major confluence events, that is, the combination of potentially unmitigated risk(s) at any one point in time, how does policy making at such a time help to prepare for the emergency next time?
For example, what does Kenya’s fiscal consolidation programme — which comprises of reforms to improve oversight, monitoring, and governance of state-owned enterprises; improved transparency of fiscal reporting; and comprehensive information of public tenders awarded including beneficial ownership information of awarded entities — have to do with preparing for the next series of cascading crises?
Several emergency relief funds have been established to address the impact of COVID-19, such as the Rapid Credit Facility, the Catastrophe Containment and Relief Trust, and the Debt Service Suspension Initiative (DSSI).
However, these efforts are not likely to unlock the existing “trilemma” of solving the health plus economic crisis and meeting development targets while dealing with a tightening fiscal space. This is because they are stuck in the present circumstances with no consciousness of how much the challenge is likely to prevail into the future.
East African Community governments, in this time, failed to mobilize sufficient revenue, despite an overall increase in taxes.
Adopting fiscal democracy not only provides a new agenda determining organizing principles, but it has the potential for establishing a new citizenship through further entrenchment of human rights-based approaches in economic justice, and commitment to open government principles.
It will also anticipate and prevent the disaster capitalism witnessed during the COVID-19 pandemic. Many African countries seem to be in a constant state of crisis, thus allowing for IFFs through PFM malfeasance that locks corruption and fraud into procurement through bid rigging or collusion.
Principals of public participation, demands for accountability, championing non-discrimination, advocacy for empowering programing, and legitimacy through the rule of law should set standards on beneficial ownership while open contracting, open data for development, legislative openness, improving service delivery, access to information, and access to justice will help build resilience in government.
A call to civic education: Revenue rights and obligations
Somewhere along the way, capacity building and training programming took prominence over civic education. Advocacy efforts should look for ways to bring back more popular public awareness. Denial of resources for these kinds of activities has been a major blow for PFM advocacy among other activist efforts.
Civic education will re-establish links between individual claims to service delivery and assigned duties in the fulfilment of public demands. Citizens will be able to identify how the problem manifests and engage on the immediate, underlying or root causes of an issue.
Rising public debt may result in poor public participation in the management of fiscal policy, and weak structures for keeping governments accountable.
It will also allow them to establish the patterns of relationships which may result in the non-fulfilment of rights or absconding of obligations. This will enable them to assign appropriate responsibility by identifying the relevant authorities. It will keep an eye on resources through participating in decision making.
Governments and political leadership should therefore work to improve their communication capabilities in engaging the public so that once this new citizenry is involved, they can work together to achieve representative priorities for action.
This article is based on a presentation and comments made at the African Forum and Network on Debt and Development (AFRODAD), Eastern and Southern Africa Regional Debt Conference, Towards strengthening accountability and transparency around public debt management and the use of IMF Special Drawing Rights (SDRs) in Eastern and Southern Africa, 20–21 June 2022, Nairobi, Kenya.
‘They Cannot Represent Themselves, They Must Be Represented’
Beyond service delivery, refugee-led organizations are increasingly involved in advocacy yet the current set-up within the field of humanitarian governance continues to relegate them to the role of mere beneficiaries.
Ever since it appeared in the epigraph of Edward Said’s influential critique of Western “experts”, Orientalism, Marx’s dismissal of the French peasantry has come to stand for everything wrong with a certain type of condescending political crusade: elites speaking on behalf of groups viewed as incapable of articulating their own interests.
Commonly known in the humanitarian world as “saviourism”, this patronizing tendency is entrenched within the field of displacement governance, where highly placed individuals employed by donor agencies regularly devise policies on behalf of downtrodden communities whose circumstances are remote from their own.
The dramatic rise to prominence of RLOs (Refugee-led Organizations) presents an important challenge to the paternalism of this order.
Within a short space of time since 2018 when an historic summit in Geneva was convened by refugee leaders from across the world, demands for “a seat at the table” have been recognized at the highest level. In 2019, the UN invited RLO representatives to its own Global Refugee Forum. In 2020, Canada announced an advisory role for a former refugee to observe its international protection meetings; Germany and the USA have since followed suit, underlining the growing acknowledgement of the legitimacy and significance of refugee leadership.
On the surface, these developments would seem to suggest the RLO phenomenon is a rare example of successful “localization”—the transfer of resources and decision-making power to stake-holding communities.
Yet little is known about the regional trajectories of RLOs. This despite the fact that local (or “glocal”) actors in the Global South laid the foundations for the aforementioned developments on the world stage. Without data on the impact of RLOs in camps, settlements and cities where their most important work takes place, their contributions and the obstacles they face remain poorly understood.
Having worked for an international organization as a migration specialist in Kenya and visited Uganda, I’m struck by the vibrancy of RLO mobilization in both countries, as well as the persistent challenges they face. Their successes and their struggles reflect the specificities of displacement governance in East Africa and the surrounding regions—the Great Lakes and Horn of Africa. Tanzania, Kenya and Uganda each host some of the largest refugee populations in the world. Conditions and regulatory frameworks vary and are far from perfect for RLOs in these countries. For the most part, however, they shoulder their “burdens” without succumbing to the anti-immigrant xenophobia rife in more affluent nations. Presidents Museveni of Uganda and Kagame of Rwanda each have lived experience of exile, a fact that reflects a certain acceptance of displacement as a mundane reality rather than an alarming aberration.
This context has important implications for the political agency of refugees. For whilst their participation in public life remains limited and is at times curtailed, RLOs in this region are particularly dynamic and advanced. It is no coincidence that Ugandan RLOs, where refugees enjoy freedom of mobility and association, have played a leading role in the movement for refugee participation in Africa. Studies have identified between 20 and 30 such groups operating in Kampala, home to some 80,000 refugees. The precise number is difficult to ascertain given that RLOs vary in size and visibility.
Defined loosely as organizations established and led by refugees, RLOs include well-established NGOs with transnational networks, funding partnerships and global profiles such as HOCW (Hope of Children and Women Victims of Violence), whose capacious premises in Kampala are not so different from the national or indeed international NGO offices that I have visited in Asia and Africa.
It is no coincidence that Ugandan RLOs, where refugees enjoy freedom of mobility and association, have played a leading role in the movement for refugee participation in Africa.
At the other end of the spectrum, RLOs can be small, informal, community-based “self-help” groups that operate without donor funding or formal membership. Between these two poles are medium-sized operations that lack substantial funding but are registered and possess formal membership structures.
A recent study by refugee researchers, which identified 63 RLOs in Uganda and 138 in Kenya, claimed beneficiaries report positive experiences with RLOs because they treat them with greater dignity and understanding of their needs than larger humanitarian agencies. Service delivery is adapted to local conditions and as a result, targeted towards the needs of groups and individuals. It also tends to be less bound by bureaucratic rules, reaching the newly arrived who lack documentation—often the most vulnerable.
More than mere service-delivery, RLOs are increasingly engaged in advocacy. HOCW’s Congolese founder, John Bolingo Ntahira, contributed to the inaugural Global Refugee Summit in 2018, and remains on the Global Refugee Network’s steering committee, underlining East African RLOs’ pivotal role in driving the international movement for refugee representation in policy-making.
Together with a handful of other pioneering RLO leaders, Bolingo set up RELON (Refugee-Led Organizations Network) in 2017, a network headquartered in Kampala that has branched out into other African countries.
Expanding through international gatherings and leveraging connections in the African Union are high priorities for RELON, which is keen to develop a continental voice. It has campaigned successfully in host countries on issues such as refugees’ access to vaccines, travel documents, and the registration of SIM cards.
This penchant for building solidarities across borders and working at multiple scales of governance holds the key to the innovative potential of RLOs. As transnational actors with diasporic links and cosmopolitan sensibilities, refugee leaders I met are well-travelled, well-networked and inclined towards Pan-African solutions. Unlike many career diplomats who might claim the same, the continental coalitions they build are comprised of people with lived experience of the challenges faced in exile—individuals like Bolingo who shared a home with 70 compatriots in an old bus converted into a make-shift shelter in the early 2000s.
This penchant for building solidarities across borders and working at multiple scales of governance holds the key to the innovative potential of RLOs.
Who better to address the interests of displaced persons than men and women who have themselves experienced or witnessed mortal threats, precarious border-crossings and destitution first-hand, and who still dwell among refugee communities?
The UNHCR has taken various strides toward enabling meaningful RLO participation, such as issuing innovation awards to RLOs for their work during the pandemic and piloting small grants. More generally, the working relationship between RLOs and big players within the international humanitarian order expands daily with new initiatives documented on social media amidst smiles and handshakes. The former wish to project themselves as legitimate actors on the world stage, in close proximity to the latter, who in turn find it increasingly incumbent upon them to demonstrate awareness of the importance of RLOs.
Yet, beneath the surface of these exchanges lies a simmering tension. Several refugee leaders I interviewed made allegations of bad faith against powerbrokers in the humanitarian field, accusing them of condescension and placing obstacles in their path: actively undermining their access to funding and/or oppressively “micro-managing” them in exploitative unequal “partnerships”, and excluding and patronizing them at every turn.
“Our ‘big brothers’ don’t want to recognize us,” said a key figure in Kenya bitterly. He is convinced that those who currently control the purse strings “fear” losing privileged positions over organizations such as his own. Others who stopped short of explicit accusation made their sentiments known through body language: brows furrowed, jaws clenched at the mere mention of the behemothic agencies, donors and organizations that comprise the humanitarian establishment.
A 2020 article by Oxford researchers lifts the lid on the history of this encounter with sordid allegations against at least one UNHCR IP (Implementing Partner), InterAid, which stands accused of setting up a fake CBO (Refugee Now) run by its own staff to create false evidence of “community” engagement. If the truth of such matters is difficult to verify, their legacy of mistrust and grievance is clear.
At a conference on localization last March in Nairobi during NGO week, refugee leaders and their allies lamented the lack of structural transformation when it comes to funding flows and decision-making in the humanitarian field. Attendees and speakers included Jean Marie Ishimwe, founder of Youth Voices Community, a Kenyan RLO, and INGOs such as Trócaire, an Irish charity committed to localization.
Frustration that growing RLO visibility during the pandemic has failed to alter mind-sets and bottom lines when it comes to partnerships and budgets was palpable. RLOs complained of being instrumentalized or ignored altogether by most big donor agencies and their IPs. Too often, they said, “inclusion” takes the form of tokenism: invitations to participate in activities typically expect them to mobilize their communities for the realization of projects that have already been designed. Offers of “capacity-building”, meanwhile, rarely consider the pedagogical potential of RLOs, whose local knowledge and lived experience of displacement is often lacking among so many of their expat counterparts employed by international and national NGOs. They lamented the lack of multi-year funding for the development of their administrative capacity, a gap that leaves them unable to hire or retain qualified professionals that might boost their ability to attract funding independently, reinforcing their dependency on larger organizations.
Frustration that growing RLO visibility during the pandemic has failed to alter mind-sets and bottom lines when it comes to partnerships and budgets was palpable.
None of this will surprise observers of localization given the almost complete failure to implement the “Grand Bargain” of 2016, which promised to funnel a quarter of humanitarian funds directly to national and local actors within the field of humanitarian governance but delivered a mere 0.5 per cent of tracked funding in 2019.
The hesitancy of large donors to fund RLOs stems at least in part from genuine constraints. RLOs, they say (in private), can be too small and unprofessional to manage and effectively spend large grants that require complex financial auditing. A related concern is the perception that RLOs are unstable given the changing personal trajectories of staff and/or founders, whose individual asylum and resettlement claims can mean suspending operations mid-way through funding cycles. Then there is concern about the potentially distortive impact of funding RLOs, whose ethnic, religious and/or national affiliations arguably make them unsuitable for serving broader, diverse refugee publics.
My own inquiries confirmed what researchers have already documented: that none of these charges should be dismissed, because each contains a grain of truth.
Most RLOs do begin as CBOs catering for specific ethnic and national groupings; oftentimes they possess limited administrative capacity. Those that do manage to grow in size and ambition do indeed tend to be headed by well-educated men. Moreover, it is not unknown for the personnel of RLOs to be resettled in the course of funding cycles. I also heard several references to “founder’s syndrome”, a psychological disorder among some egoistic individuals who struggle to detach their personal interests from those of the organization they have established.
In view of such challenges, some of the most enthusiastic supporters of refugee leadership are seeking to bridge the gap between RLOs and the powerbrokers that perpetuate their exclusion constructively.
COHERE, an INGO with offices in Kampala and Nairobi, has thrown its full weight behind putting refugee-led organizations “in the driving seat”. It does this through training and advice to RLOs on how to attract funds, how to implement and document project work effectively, and how to plan strategically in the longer term. If in its advocacy COHERE counters prejudice among RLO-sceptics, much of its daily work addresses donors’ concerns through corrective measures that acknowledge the need for work on all sides.
Some of the most enthusiastic supporters of refugee leadership are seeking to bridge the gap between RLOs and the powerbrokers that perpetuate their exclusion constructively.
Herein lies the difference between COHERE and reactionary big players dragging their feet on localization: Where the latter use RLOs’ weaknesses as justification to prolong a status quo in which the former can only ever be “beneficiaries”, tokens and symbols in projects they design themselves, the former view them as obstacles that can and must be removed to create a more level playing field.
A glimpse at COHERE’s network provides strong evidence of RLOs’ ability to grow and develop in ways critics seem reluctant to acknowledge. In Kampala, I visited Bondeko Refugee Livelihoods Centre, founded by a Congolese priest now resettled in Canada. Far from parochial, its young staff and membership was diverse in terms of gender and ethnicity: many of those it supports are from Burundi and Rwanda, and like many refugee businesses in Kampala, it even provides employment for Ugandan citizens. The founder’s resettlement seems not have had adverse consequences.
As an expat employed by an international organization engaged in advocacy, refugee leaders’ critiques of the humanitarian sector’s paternalism can feel close to the bone. When they fume against the condescension of do-gooders who represent their interests without walking in their shoes, are they talking about me?
None of the refugee leaders I interviewed for this article said so (explicitly), and it would be easy enough to join them in pointing fingers elsewhere. More challenging than “speaking the truth to power”, however, is speaking it to oneself: to admit that the entrenched privilege they seek to dismantle includes my own.
To the legions of foreign “experts” whose postings in the Global South involve analysing, shaping or influencing policies that do not directly affect us, RLOs pose questions we should be asking ourselves everyday about our long-term presence and role in the Global South. Above all: What are we doing to devolve power and resources to present and future generations of stakeholders?
Signatories of the Charter 4 Change such as COHERE and Trócaire have committed to channelling a quarter of humanitarian funding directly to national and/or local NGOs. But many larger bureaucratized entities with decades of heritage and established identities have shown little urgency in adapting to a world in which refugees are partners rather than beneficiaries. Despite many words and some (limited) deeds, commitment to structural reform remains unproven and there is scant evidence of the soul-searching that should be taking place.
For African NGOs, a different kind of self-reflection may be required. Although “local” in terms of registration, these tend to be staffed by highly educated professionals hailing from host country elites, among whom lived experience of exile is rare. It is easier for them to attract donor funding than RLOs, which can cause resentment and rivalry. One refugee leader I interviewed seethed as he recounted rebuffing an invitation from a national NGO to participate in a project as a beneficiary: “We’ll get our own funding to work on this issue,” he scoffed, insisting he could have implemented the same project more effectively.
Devota Nuwe, acting Co-Director of The Refugee Law Project, a highly respected national NGO based in Kampala, has occasionally found herself on the receiving end of such sentiments in the course of her career as a displacement specialist. The kinds of remarks directed at her and her colleagues by individual refugee leaders aggrieved at salaried professionals whose job it is to support them suggest a frankness rarely directed against INGO workers. (“Those clothes you’re wearing, it’s because of us!”).
What such sentiment fails to acknowledge is that there are contexts in which refugees cannot easily represent themselves—in which they must be represented by non-refugees. Defending or appealing on their behalf in courts of law, for example, is specialized work that requires qualified professionals acquainted with the host country’s legal system and political context.
Perhaps this explains Nuwe’s relaxed attitude towards the rise of RLOs, whom she and her colleagues have welcomed into their industry, despite the occasional criticism that comes their way. “There’s room for all of us,” she chuckles, when I ask her if she ever gets anxious about the prospect of a competitive threat from individuals who openly tell her they should be in her place.
In truth, national NGOs that enjoy the trust of their stakeholders have nothing to fear from the rise of RLOs. The same can be said of INGOs already cooperating in partnerships with RLOs, in which each plays a distinct but complementary role to achieve common objectives.
In truth, national NGOs that enjoy the trust of their stakeholders have nothing to fear from the rise of RLOs.
Indeed, there is something to be said for UN Secretary-General Ban Ki-moon’s oft-cited commitment to making humanitarian action “as local as possible, as international as necessary”. The trouble with the current setup is that it under-utilizes the potential of refugees, and is far more international than it needs to be. In the words of John Bolingo Ntahira: “No one understands refugees’ problems better than we do”. Those of us who profess expertise on displacement would do well to acknowledge this basic fact and its transformative potential.
This article is part of a series on migration and displacement in and from Africa, co-produced by the Elephant and the Heinrich Boll Foundation’s African Migration Hub, which is housed at its new Horn of Africa Office in Nairobi.
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