As militant groups spread across the Sahel, the West African nation of Niger went on a U.S.-backed military spending spree that totaled about US$1 billion between 2011 and 2019.
But almost a third of that money was funnelled into inflated international arms deals – seemingly designed to allow corrupt officials and brokers to siphon off government funds, according to a confidential government audit obtained by OCCRP that covers those eight years.
The Inspection Générale des Armées, an independent body that audits the armed forces, found problems with contracts amounting to over $320 million out of the $875 million in military spending it reviewed. The U.S. contributed almost $240 million to Niger’s military budget over the same period.
The Inspection Générale’s auditors said more than 76 billion West African francs had been lost to corruption, which is about $137 million at the current exchange rate. They discovered that much of the equipment sourced from international firms – including Russian, Ukrainian, and Chinese state-owned defense companies – was significantly overpriced, not actually delivered, or purchased without going through a competitive bidding process.
“The rigged bidding process, fake competition, and inflated pricing in these deals is astounding,” said Andrew Feinstein, a leading arms expert and author of “The Shadow World: Inside the Global Arms Trade.”
The Nigerien authorities are investigating the findings of the audit, which have caused a scandal in the country after some details were reported in the press earlier this year.
The country has become a key ally for the United States in fighting groups like Al-Qaeda in the Islamic Maghreb and the Islamic State West Africa Province, better known as Boko Haram.
The surge in spending over the last decade helped Niger become one of the most formidable military powers in the region. The country – one of the world’s poorest – bought arms ranging from attack helicopters and fighter jets to armored vehicles and automatic rifles.
In addition to cash it provided to Niger’s military, the U.S. spent $280 million building a massive air base near the ancient trading city of Agadez in the north of the country. The base, which reportedly costs $30 million a year to run, allows U.S. forces to launch drones for both surveillance and air strikes.
American forces are also training Nigerien soldiers and fighting alongside them. In 2017, four U.S. Special Forces officers were killed in an ambush in the country’s frontier with Mali and Burkina Faso, reportedly by fighters associated with the so-called Islamic State.
France and the European Union are also major donors to Niger’s military, which receives further aid through its membership in G5 Sahel, a regional joint military force. The audit report raises the possibility that some of the military aid ended up in the pockets of unscrupulous private individuals and corrupt government officials.
At the center of the network of corruption are two Nigerien businessmen who acted as intermediaries in the deals: the well-known arms dealer Aboubacar Hima, and Aboubacar Charfo, a construction contractor with no previous experience in the defense sector. Auditors allege that the two men rigged bids by using companies under their control to create the illusion of competition for contracts.
Their success points to the opportunities available to a small clique of well-connected insiders with close ties to Niger’s government.
“As far as the audit is concerned, I don’t think there’ll be any prosecutions,” said Hassane Diallo, head of Niger-based Centre d’Assistance Juridique et d’Action Citoyenne, an anti-corruption group.
“All the economic actors mentioned in the audit belong to the ruling party. They come from the same region as the president.”
Hima’s lawyer, Marc Le Bihan, declined to answer reporters’ questions and said that Hima wasn’t being prosecuted. Charfo and Niger’s defense ministry did not respond to requests for comment.
Through a handful of companies connected to him, Hima, who goes by the nicknames “Style Féroce” and “Petit Boubé,” handled at least three quarters of all the arms purchases scrutinized by the Inspection Générale. Together the deals were worth $240 million.
It is unclear exactly how Hima, the son of a civil servant at the Ministry of Agriculture, rose to such prominence in Niger’s political and business circles.
One key moment was likely his 2005 marriage to the daughter of former President Ibrahim Bare Maïnassara, who was killed in a 1999 coup. The marriage is likely to have brought him closer to Niger’s political establishment, since the party that Maïnassara once led now “supports the current regime,” according to Diallo.
In 2003, Hima set up Imprimerie du Plateau, a printing business that remains active today. By 2010 he had made the leap into the arms business in neighboring Nigeria, where he established companies that would play key roles in the deals auditors scrutinized in his home country.
Most of Hima’s deals were signed under a 2013 national security law that allowed for some of Niger’s defense spending to be carried out in direct negotiations with any company, rather than putting it to public tender. Niger scrapped that law in 2016, replacing it with one requiring a more transparent process. But by that point, much of the damage had been done.
Most of the sales identified in the audit had bypassed oversight bodies within the Ministry of Defense and the Ministry of Finance whose input was required under the 2013 law. The tenders also did not include key documentation, such as the prices offered by the various bidders.
In one deal facilitated by Hima in 2016, Niger’s Ministry of Defense bought two Mi-171Sh military transport and assault helicopters from Rosoboronexport, Russia’s state-owned defense company. The purchase, which also included maintenance and ammunition, cost Niger 55 million euros, or $54.8 million – an overpayment of about $19.7 million, according to the Inspection Générale. The auditors noted that the prices had been inflated by fraud and corruption.
Rosoboronexport relies on African governments for about 30 percent of its business. Because the state arms company is under U.S. and EU sanctions, it can’t openly receive payment for the deals in U.S. dollars or euros. As a result, the company’s transactions tend to avoid Western financial institutions, which are obligated to flag suspicious transactions to regulators.
In its contract with Niger’s government, Rosoboronexport asked for payments to be made into an account it held at VTB Bank, a Russian lender with majority state ownership. The account was held at the bank’s branch in Germany, which ranks as a top financial secrecy jurisdiction.
Rosoboronexport did not tell auditors who controlled that account.
“By using a VTB account in Germany, Rosoboronexport is trying to make the money flows from its arms deals as opaque as possible,” Feinstein said.
Nigerien auditors visited Moscow early this year in search of information about the helicopters and other purchases that had been facilitated by Hima on behalf of Niger’s defense ministry. But the auditors were left in the dark about the terms of the deals. Rosoboronexport refused to provide any information, telling the Nigerien government auditors that the agreements were “confidential.”
“[Rosoboronexport’s] failure to explain the pricing difference on this clandestine deal can only mean one thing: corruption,” Feinstein said. “The Russians clearly colluded with Nigerien officials to sell overpriced arms in a deal that was obviously illegal.”
Rosoboronexport declined to answer OCCRP’s emailed requests for comment. Reached by phone, a representative said: “If you are from the United States, we cannot help you with any answers via email.”
The audit report outlines a series of unorthodox – and in at least one case, blatantly illegal – machinations that allowed Hima to control much of Niger’s arms procurement process.
Through his political influence in the defense establishment, a company Hima had founded in neighboring Nigeria, TSI, gained power of attorney on behalf of the Ministry of Defense. This gave him the ability to approve weapons deals and issue end-user certificates, a type of document meant to ensure that weapons sold to one client are not passed on, or resold, to an unauthorized third party.
This was a clear violation of Niger’s laws, which state that end user certificates can be issued only by the government, according to Ara Marcen Naval, the head of defense and security advocacy for Transparency International.
The corruption of the end-user certificate system in Niger is particularly resonant given the country’s longtime role as an arms trafficking hub. This history dates to the Cold War, when the Soviet Union funneled arms into Niger before shipping them onward to its allies.
In the 1990s, when Liberia and Sierra Leone both plunged into civil war, the country again became a regional arms hub.
Niger was a key transit point for notorious Ukrainian arms dealer Leonid Minin in the 1990s. He sent weapons from his base in Sharjah in the United Arab Emirates to Charles Taylor, a warlord who was fighting the government in Liberia, where he later became president. Minin’s planes brought attack helicopters, anti-aircraft guns, missiles, and over a million rounds of ammunition to Niger before sending them on to Liberia.
The Russian arms dealer Viktor Bout also used Niger as a staging point to bring weapons into Liberia during its civil war. Known as the “Merchant of Death,” Bout is now in prison in the United States where he was convicted of supplying weapons to Colombian insurgents.
The power to issue certificates himself gave Hima the ability to steer government contracts to his own companies, like TSI, or to his partners. It also allowed him to limit the amount of oversight included in the deals’ terms, which removed a crucial safeguard that allows authorities to know who they are selling arms to.
Even before being granted power of attorney, Hima managed to issue Rosoboronexport an end-user certificate on behalf of Niger’s Ministry of Defense in 2018. Hima was on both ends of the deal: While he organized the purchase on behalf of the ministry, his company, TSI, acted as Rosoboronexport’s Niger representative. His company did not appear on the contract.
“The fact that TSI was allowed to represent Rosoboronexport – let alone Niger’s Ministry of Defence – makes this one of the most extreme examples of corruption in the arms trade that I’ve ever come across,” Feinstein said.
Hima used other shady techniques, too. For the helicopter deal and others, companies under his control submitted fake bids to create fictitious and unfair competition, auditors noted.
Another company linked to Hima, Nigeria-registered Brid A Defcon, won a $4.3 million contract to build a specialized hangar for Nigerien President Mahamadou Issoufou’s official plane. Two other companies that submitted bids for the contract — both controlled by Hima — echoed the names of well-known international manufacturers.
One was Motor Sich, which appeared to be an Algerian affiliate of the well-known Ukrainian engine manufacturer. The Ukraine-based Motor Sich told auditors that the company had not made any bids in the deal, said they had no connection to the Algerian entity, and denied any wrongdoing.
However, according to the audit report, it appears that the Algerian Motor Sich affiliate did win other tenders offered by Niger’s government, including a $11.5 million arms supply contract. Hima’s company, Brid A Defcon, acted as Motor Sich’s local agent in Niger in that deal as well.
The other company that submitted a bid for the helicopter deal was Aerodyne Technologies, which used the name of a defunct French aviation company. Though Aerodyne submitted its bid as a company based in the UAE, it appeared to actually be registered in Ukraine, according to the audit.
“As usual, Brid A Defcon has put the companies Motor Sich and Aerodyne Technologies in competition,” auditors noted.
Aerodyne opened emails from OCCRP but did not respond to questions. Brid a Defcon could not be reached for comment.
Among other problematic deals mentioned in the audit, Brid A Defcon also received $4.9 million to outfit the presidential plane with an anti-missile system that was incompatible with the aircraft.
Constructing Arms Deals
Sacks of cement and metal rods are piled on the ground next to a small building in Niamey, Niger’s capital. The compound, a one-story, dirt-colored concrete structure, is the unassuming headquarters of Etablissement Aboubacar Charfo, a construction company named after its owner.
Charfo had no prior experience in the defense sector, and there is no publicly available evidence of him winning any government contracts before President Mahamadou Issoufou came to power in 2011.
Charfo was known as an importer of bathroom tiles and building materials including cement, but he also managed to facilitate nearly $100 million worth of contracts for the government.
He appears to have gotten into the arms trading business through his contacts with the office of Issoufou. Both he and the president hail from the Tahoua Region, where Charfo is said to have strong ties to the ruling Nigerien Party for Democracy and Socialism.
According to publicly available audits of various government bodies carried out by the accounting firm Bureau d’Expertises Comptables in 2017 and 2018, Charfo received several contracts from the presidential administration. One of those was a 2017 contract to furnish the new headquarters of the Inspection Générale des Armées – the same authority that later produced the leaked audit which exposed his corrupt arms deals.
Charfo also received contracts from the president’s office to supply military equipment to the armed forces, including weapons and ammunition, night vision goggles, and a trailer for transporting tanks, according to Bureau d’Expertises Comptables auditors.
The subsequent Inspection Générale audit shows that cost inflation and corrupt practices by Etablissement Aboubacar Charfo and Agacha Technologies, another company linked to Charfo, cost the Ministry of Defense $24.7 million over what it would have paid with fair competition.
The auditors probed five contracts won by Charfo’s two companies between 2014 and 2018. These included a $40 million agreement to purchase armored personnel carriers manufactured by China’s state arms company, NORINCO. Auditors found Charfo had inflated the price, overcharging the government by $8.2 million.
In a 2017 deal, according to the Inspection Générale, Charfo’s Agacha Technologies won a $6.5 million contract to supply 30 buses to the Ministry of Defense. Over half of that total was lost to over-invoicing and wasteful spending, the auditors found.
They also discovered that, like Hima, Charfo manipulated the procurement process to create the impression that he was competing against rival companies.
In reality, the “competing” companies were either controlled directly by Charfo or linked to him. He and his associates benefited from “fake bids and the use of fake competition,” according to the audit.
“The winner of the contract was known in advance,” it read.
Charfo and Hima weren’t the only businesspeople who appeared to have gotten rich on Niger’s military spending spree by using shell companies to rig bids for arms deals. Several companies in Ukraine, the United Kingdom, and the Czech Republic also appeared to benefit.
The people behind these schemes remain unknown because some of the companies were registered in offshore jurisdictions that enable their owners to remain anonymous. Others were formed as UK limited liability partnerships, which are controlled by other companies, not individuals, and are not obligated to disclose their directors or owners.
At least one of the deals involving these offshore entities appears to have included built-in kickbacks.
In 2012, Ukraine’s state defense company, Ukrspecexport, won a contract to supply Niger with two second-hand SU-25 fighter jets built in 1984. Niger’s Ministry of Defense paid $12.5 million for both aircraft, including $1 million for insurance and delivery and $1.9 million for spare parts. The audit noted that the prices had been inflated and the additional cost of more than 350 spare parts appeared unnecessary and suspicious.
“Adding spare parts to arms contracts is a common technique to build in the cost of kickbacks,” Feinstein said.
The Ukrainian company denied that it made the deals with Niger.
“Ukrspecexport did not make such deliveries and does not have any information on the issues you are asking about,” a representative said in an email.
Despite Ukrspecexport’s denial, international arms trade data collected by the Stockholm International Peace Institute confirms that Niger ordered the two second-hand aircraft, and that they were delivered the following year.
The Nigerien auditors also discovered an addendum to the SU-25 contract that appeared to facilitate a bribe. It stipulated that Stretfield Development, a London-based shell company with unknown owners, was to receive a $2 million commission on the deal in a “maneuver” the auditors described as “collusive” and “contrary to regulations.” The contract specified that the fee would be funded by the Nigerien Ministry of Defense, but paid through another London-based shell company, Halltown Business, which was shut down shortly after the deal was completed.
Details of the suspicious sale did not come as a surprise to Daria Kaleniuk, the head of the Anticorruption Action Centre, a leading Ukrainian advocacy group.
“For many years, Ukrspecexport was known to be a very dodgy company which has a monopoly of trading weapons and army equipment abroad through secret sealed deals,” she said.
The address in London where Halltown was registered belonged to a company formation agent and was used by over 400 other companies. Among these were four firms that were part of the Azerbaijani Laundromat, a vast money-laundering operation that benefitted elites from that country and was previously reported by OCCRP. Following Halltown’s ownership trail led to a Panamanian company with two Ukrainian directors.
Niger also signed separate maintenance deals with a firm called EST Ukraine. The defense ministry agreed to pay the company $4.3 million for the upkeep of its MI-35s helicopter gunships and the second-hand SU-25 jets it had bought from Ukraine’s state defense company, which have yet to be delivered.
But EST Ukraine did not receive the payment. In fact, it was not even formally registered as a company. The company that received the payments — another Ukrainian firm called Espace Soft Trading Limited — was “not a party to the contract.”
That company, formed in 1998, is controlled by Yuri Ivanushchenko, once a member of the Ukrainian parliament and an ally of former president Viktor Yanukovych, who was ousted in a popular uprising in 2014. The auditors listed Ivanushchenko’s company as one of the beneficiaries of the rigged bidding.
“During Yanukovych’s presidency, his close associate Yuri Ivanushchenko was overseeing work of Ukrspecexport and had significant influence over its decisions,” Kaleniuk said.
As with many of the other deals, auditors found that the bids for these maintenance contracts had been rigged. In addition to EST Ukraine, several other foreign shell companies submitted bids, presumably in an effort to create the appearance of competition. One of these was the UAE-registered Aerodyne Technologies, under Aboubacar Hima’s control.
Both Aerodyne and the winning EST Ukraine were run by Gintautis Baraukas, an associate of Hima who appeared to run shell companies on his behalf. Little is known about Barauskas, who used a false nationality while operating a network of shell firms in the UAE.
“This gentleman is not Ukrainian, he is in fact Latvian … He is involved in several cases that served to extort large sums of money from the State of Niger,” the auditors wrote.
EST Ukraine did not respond to requests for comment.
The United Arab Emirates is a world-renowned tax haven and the emirate of Sharjah is particularly popular with arms dealers due to its lax financial regulations and opaque aircraft registry, which allows goods to be moved through the airport in relative obscurity. The emirate is home to a host of shell companies that appear to be used to launder the proceeds of arms deals.
Many of the companies the Nigerien audit names as fake bidders and bribe recipients are based in Sharjah, and all appear to be connected to Baraukas.
One suspicious transaction flagged by the auditors involved Sky Rotors, a company that received a payment worth more than 1.5 million euros ($1.7 million) from Ivanushchenko’s Espace.
In an emailed statement, Sky Rotors confirmed it has supplied aviation parts to Niger since 2012, and said the defense ministry still has not paid its bill in full.
“The possibility of applying… to an international arbitration court for enforced debt collection is being considered,” a representative said, calling Sky Rotors “the injured party.”
“Hima was recommended as a person who has proven himself in working with the state authorities of Niger and who can assist in the return of the debts,” the representative added.
A white marble mosque rises beside Hima’s palatial mansion. Nearby is an elaborate water feature with streams tumbling over rusty-brown rock. Frozen in sculpture, a family of elephants marches toward a whimsically curved swimming pool overlooking the Niger River.
Hima’s residence in Niger’s capital is an ostentatious display of wealth in a country that ranks dead last on the United Nations Development Index, which measures a nation’s well-being based on indicators like life expectancy and access to education.
Niger’s treasury is footing the bill for the country’s military spending, which has grown as a percentage of the country’s gross domestic product from less than 1 percent in 2009 to 2.5 percent in 2017, according to the World Bank.
Hima also owns three apartments in the Czech capital, Prague worth over $2 million in total. He acquired them in 2015, first shelling out $1.5 million for a penthouse in the Dock Marina, a luxurious residential complex on the Vltava River that allows residents to park their boats near the entrance. He purchased two more apartments in the development in the following months.
Hima’s business interests in Prague go beyond property. His now-defunct Nigerian company, Brid A Defcon, frequently partnered with a Czech-registered firm with a similar name, Defcon s.r.o, in 2009, according to the audit.
In 2017 and 2018, the Czech firm fulfilled a $33.6 million contract from Niger’s government to deliver 80 trucks manufactured by the Austrian firm Steyr. Supposedly bidding against Defcon s.r.o was the Algerian branch of Motor Sich. Brid A Defcon submitted the bid on behalf of Motor Sich, which it controlled, in an apparent attempt to show the process was competitive.
Motor Sich managers said it had never made such a bid, leading auditors to conclude that the company name had been “usurped.”
Such deals fueled Hima’s luxury lifestyle and made him the most conspicuous of Niger’s illicit arms traders, said Diallo, the anti-corruption specialist, adding that it was “no surprise” that he invested his profits abroad.
“Charfo has buildings in Niamey, but he and the others are less visible than [Hima],” he said.
Diallo said the corrupt arms deals “not only exposed a hidden financial cost to Niger — the poorest country in the world — but also show how Niger’s sovereignty was captured and exploited.”
Additional reporting by Nathalie Prevost in Paris, Marshall Van Valen in Abidjan, Pavla Holcova in Prague, Elena Loginova in Kyiv, and Juliet Atellah in Nairobi.
This article was first published by OCCRP.
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Dark Web: How Companies Abuse Data and Privacy Protections to Silence Online Media
A whole industry of reputation management has been spawned online with companies dedicated, through means fair and foul, to gaming the system in favor of their clients. An investigation by Qurium shows how some are utilizing intimidation and deception in campaigns to suppress unflattering information in the online press.
Around the world, the internet has become an important source of information, influencing decisions on everything from news and politics to shopping and recreation. Employers today will use internet search engines to check out prospective employees just as voters are likely to “google” politicians they are considering voting for. The search engines, of which Google is the most dominant, categorize the mass of available online information on any particular topic into consumable chunks and decide which ones are most relevant for any particular search.
With so much resting on search results, it is no surprise that a whole industry of reputation management has been spawned with companies dedicated, through means fair and foul, to gaming the system in favor of their clients. While some engage in enlightened best-practice, such as optimizing content and websites for the search engines, others are practitioners of the dark arts, utilizing intimidation and deception in campaigns to suppress unflattering information.
According to its website, the Spanish firm, Eliminalia “was born to ensure every individual and company maintains its privacy and network security, regardless of the uncensored information that has been posted on the Internet – whether malicious, incorrect, or embarrassing”. In short, its mission is to erase internet content its clients consider objectionable. Media reports in August last year – denied by both parties – claimed that Kenya’s Deputy President, William Ruto, had retained the company to spruce up his online image as he prepares for a run at the country’s presidency in 2022.
While some engage in enlightened best-practice, such as optimizing content and websites for the search engines, others are practitioners of the dark arts, utilizing intimidation and deception in campaigns to suppress unflattering information.
However, the techniques the company utilises are not always transparent and could even be illegal. A newly released investigation by Qurium has found that the company is involved in a campaign of intimidation and deceit using fake lawyers and impersonating regulators to threaten websites into taking down content, and creates fake websites to manipulate search results.
In an initial report summarising some of their findings, Qurium shows how the Digital Millennium Copyright Act (DMCA), a US law enacted in 1998 that requires hosting services and internet service providers to take down content when notified of copyright infringements, and data protection regulations as the EU’s General Data Protection Regulation (GDPR), are systematically abused to restrict the freedom of the press, particularly when investigating corruption or abuses of power.
Some of the techniques used by Eliminalia to eliminate, modify or de-index content from the Internet identified by Qurium include creating copies of original content in other websites, backdating it and then filing a DMCA complaint to Google for copyright infringement. Thanks to research access granted by the Lumen Database, Qurium found several identities used by Eliminalia to file such complaints. The company also sends fake GDPR abuse reports using fake legal e-mails and domain names.
De-indexing is a process that involves removing a website from the search engine’s index but not from the page where it originates which means that a website or a specific URL stops being seen in search results. The Google search engine will automatically de-index content that it determines is not original, that is, which has been previously published on another web page. Cloned websites abuse this by making it difficult for the search engine to determine which is the authoritative source.
One of the methods to push down results in search engines is to clone the full content of the websites in similar domains. During the cloning of the content, all articles that their clients do not want to be published are avoided. This strategy is consistent with their definition of de-indexing in their contracts.
The forensic analysis by Qurium determined that Eliminalia creates fake domain names and impersonates the EU Commission in order to send fake take down requests. The company also submits fake copyright complaints to Google and clones original articles from websites in an attempt to de-index content from search engines. It also uses hundreds of fake newspapers hosted in the Ukraine to support disinformation campaigns on Social Media.
The Google search engine will automatically de-index content that it determines is not original, that is, which has been previously published on another web page. Cloned websites abuse this by making it difficult for the search engine to determine which is the authoritative source.
The Elephant has been among those targeted by such content take-down campaigns. They involve notices from fake legal firms claiming copyright infringement or invoking data protection legislation and demanding removal of the content without revealing the identity of who is paying for their legal services.
After exchanging dozens of e-mails with different “lawyers” in the course of several months, Qurium, which provides secure hosting services for human rights organisations and independent media – including The Elephant – from more than twenty countries, managed to identify those behind such campaigns and the infrastructure that has been put in place to support such businesses.
Emails from IP addresses associated with Eliminalia, which has registered offices in Spain, the US and the Ukraine, were sent to Qurium, purporting to be from lawyers and from the Legal Department of the European Commission in Brussels demanding removal of articles related to corruption in Angola involving Isabel dos Santos or Vincent Miclet.
The Elephant has been among those targeted by such content take-down campaigns. They involve notices from fake legal firms claiming copyright infringement or invoking data protection legislation and demanding removal of the content without revealing the identity of who is paying for their legal services.
One of the emails concerned a story published in The Elephant two years ago regarding French businessman Vincent Miclet’s corruption-tinged exploits in Angola. It was sent February this year to one of Qurium’s internet service providers in the Netherlands by one “Raul Soto” claiming to be from the Legal Department of European Commission.
The physical address provided was actually that of Regus, an office space rental agency in Brussels, Belgium, which happens to be situated in front of one of the buildings of the European Commission. However, the information on the header shows that the email was actually sent from a Ukrainian IP address using a server in France.
The domain it was sent from, abuse-report.eu, appears to have been registered in September last year for the sole purpose of sending fake data protection complaints as it lacks a website or other contact details. Queries on both Censys and Shodan, which are internet search engines that enable researchers to probe hosts, networks and devices, quickly revealed that Eliminalia was behind the fake setup.
A further examination of the internet infrastructure of Eliminalia in the Ukraine found that several of their servers are within an IP address range (18.104.22.168 – 22.214.171.124) which includes the servers of World Intelligence Ltd, a company registered to Diego Sanchez. Diego (Didac) Sanchez Jimenez/Gimenez is also the founder and CEO of Eliminalia. World Intelligence Ltd. hosts almost 300 fake newspapers which are used to run all sorts of “information campaigns” and to clone existing websites in order to “de-index” content out of search engines.
To understand how the 300 fake newspaper websites were used and whether they were used in a coordinated manner, Qurium analysed 3,000 articles published by them during one calendar month. They found that many of the newspapers shared common articles and groups of them posted the same content simultaneously.
The domain it was sent from, abuse-report.eu, appears to have been registered in September last year for the sole purpose of sending fake data protection complaints as it lacks a website or other contact details.
Apart from trying to de-index content from Google Search, they also found that clusters of websites are used to promote fake content. For example, a campaign targeting the Tanzanian whistle-blower website Fichua Tanzania used social media and a cluster of websites to distribute the fake news.
The dangers posed by such tactics to democracy are obvious. Information is the oxygen of democracy, allowing citizens to hold governments to account and to accurately assess their options when making selections in voting booths. Much of this information is today to be found online where it is curated by search engines. However, when companies use laws meant to protect online privacy and guard against copyright theft are abused to silence the press, and when they use fraudulent means to manipulate search results, then the public is deprived of the tools it needs to meaningfully participate in democracy.
This is a problem for the search engines as well. Trust is the currency of the internet. Left unchecked, companies like Eliminalia will inevitably damage public confidence in the results delivered by the engines and thus the public’s propensity to use them.
The True – Hidden – Cost of the Proposed Lamu Coal Plant
The claim by Amu Power that the proposed Lamu Coal Plant will generate cheap electricity and provide employment does not hold up to scrutiny.
It is common knowledge that coal has significant impacts on the environment, human health and livelihoods, and oceans and marine life yet Amu Power, the entity behind the proposed 1,050 MW Lamu Coal Plant, is minimising these risks and arguing that the plant is necessary on economic grounds. Their arguments do not hold up under scrutiny.
Amu Power makes three claims about the plant: 1) that it will provide cheap electricity – their marketing states that the plant will provide electricity at KSh7.8/kWh; 2) that it will create employment opportunities for Kenyans; and 3) that inexpensive electricity from the coal plant will spur manufacturing in Kenya and transform the country into a middle-income economy by 2030.
In January 2021 the Kenya Power and Lighting Company (KPLC) sold electricity to domestic consumers at KSh24.06/kWh. In comparison, the KSh7.8/kWh promised by Amu Power looks great. But that is what KPLC, not its customers, will pay. This amount is a component of only one line item, known as the Fuel Cost Charge (FCC), of the total cost per kilowatt hour that KPLC charges consumers.
In January 2020, the Fuel Cost Charge was KSh2.58/kWh for residential and commercial consumers. This means that the electricity Amu Power is offering is at least three times more expensive than what KPLC is currently paying.
That in itself should put an end to any economic argument for the Lamu Coal Plant. However, and as we shall see, the true costs of this plant are much higher.
1) Claim: Coal as a cheap source of power
Three inputs to the cost-of-electricity equation demonstrate that power from the plant will always cost more than KSh7.8/kWh and will therefore never be competitive against renewable resources: 1) price of coal; 2) capacity factor; and 3) hidden costs.
Price of coal: When Amu Power sold the idea of the Lamu Coal Plant to Kenya in 2014, their plan was to import coal from South Africa because there will be no coal available in Kenya to fuel the plant in the foreseeable future.
Amu Power’s claim that electricity from the plant would cost KSh7.8/kWh was based on a coal price of US$50/metric tonne. However, even at the time they made the claim, the average price of South African coal delivered to Kenya was already 50 per cent higher — over US$77.3/metric tonne. Coal prices fluctuate and so will the cost of power from a coal plant. At least once in the past six years, South African coal has been higher than US$106/metric tonne — more than twice what Amu Power quoted to convince the Kenyan government to give the company a permit.
The Power Purchase Agreement (PPA) between Amu Power and KPLC provides formulae to calculate the cost of electricity from the plant. Inputting a coal price of US$77.3/metric tonne — with all other of the proponent’s assumptions holding steady — increases the cost of electricity from the plant to KSh8.98/kWh. At a coal price of US$106/metric tonne, it would go up to KSh10.21/kWh.
In 2017, the Ministry of Energy and Petroleum (MoEP) projected the price of coal will be USD$108/tonne in 2040. That would make the cost of electricity from the Lamu Coal Plant at least KSh10.27/kWh, almost four times the FCC today.
But accounting for a more accurate cost of coal does not bring to an end the adjustments necessary to Amu Power’s fantasy pricing. There are two other factors that must be taken into account to arrive at a more realistic price for the electricity from the proposed coal-fired plant.
2) Capacity Factor: This is the actual amount of electricity generated by a plant as compared to the maximum amount it can produce. Amu Power’s projected price of KSh7.8/kWh is not only based on an inaccurate price of coal, but it is also based on the assumption that the plant will run at 85 per cent capacity. For context, the global average utilisation for a coal-fired plant in 2019 was 54 per cent.
According to Amu Power, at 85 per cent capacity the Lamu Coal Plant would generate 7,305 gigawatt hours of electricity each year, which would enable it to meet the inflated demand forecasts presented in the MoEP’s 2011 Least Cost Power Development Plan. Based on more realistic demand forecast scenarios, in 2017 the Ministry calculated that the plant would generate – at most – only a third of Amu Power’s pledge. More damaging, in 2020, the MoEP calculated that in a fixed-case scenario the Lamu Coal Plant would operate at 2.8 per cent in 2030, at 4.6 per cent in 2035, and at 14.4 per cent in 2040. In an optimized, best-case scenario, the MoEP calculated that the plant would reach an operating capacity of only 26.2 per cent in 2040 (two-thirds into its lifespan). Therefore, based on the MoEP’s own calculations, Kenya does not need a 1,050 Mw coal plant.
The PPA commits ratepayers to paying Amu Power KSh37 billion annually for each of the 25 years the plant is expected to operate – a total of KSh900 billion. This capacity payment – approximately KSh100 million every single day – will be paid regardless of how much electricity the plant produces. If the plant is operating, the annual capacity payment is amortised and included in the price we pay per kWh for electricity. That is significant because the higher the capacity factor, the less we pay per kWh.
The MoEP’s 2020 calculation that in an optimised, best-case scenario, the plant will operate at 26.2 per cent capacity – and not the 85 per cent capacity that Amu Power needs to make their electricity even marginally cost-competitive with geothermal and wind – is thus significant because a change in the capacity factor has more of an impact on the price of electricity from the plant than a change in the price of coal.
Coal-fired electricity from the proposed Lamu Coal Plant will be two to ten times more expensive than from current sources of generation.
If the plant operates at 26.2 per cent, the cost of electricity will be KSh19/kWh (using Amu Power’s claim of US$50/tonne). But if we also include a more realistic price of coal (US$77.3/tonne – the actual price in 2014), electricity from the plant would cost KSh20/kWh. Using the most recent highest price of South African coal (US$106/tonne), the cost would be KSh21/kWh, nearly eight times what we are paying now.
When the Institute of Energy Economics and Financial Analysis (IEEFA) analysed the 2017 MoEP data, it found that the plant would more likely run at between 5 per cent and 34 per cent capacity. If the plant runs at 5 per cent capacity, the price of electricity increases by KSh79.3/kWh, and at 34 per cent capacity, it goes up by KSh7.4/kWh, for a price range of between KSh15.2 and KSh87.1/kWh (assumming coal were miraculously available at US$50/tonne). If coal were at US$77.3/metric tonne, the price of the electricity generated by the Lamu Coal Plant would be between KSh17/kWh (at 34 per cent capacity) and KSh88/kWh (at 5 per cent capacity).
Plotting the price of electricity under the MoEP fixed-case scenarios, things look even worse. At 2.8 per cent capacity – assuming US$$77.3/tonne of coal – electricity from the plant would be KSh154/kWh, at 4.6 per cent it is KSh95/kWh, and at 14.4 per cent it is KSh33/kWh.
This is not looking good for Kenyans. But there are more adjustments needed to generate a more realistic price of electricity from the Lamu Coal Plant.
3) Hidden Costs: There are two hidden cost centres that make the economics of the plant even worse for Kenyans – the Power Purchase Agreement itself and unaccounted-for construction costs.
The PPA and Letter of Support signed by the Kenyan government guarantee that Amu Power will be paid KSh37 billion annually for providing a plant to generate electricity – even if the plant does not produce a single kilowatt. These two documents guarantee that the Government of Kenya will pay Amu Power if the plant ceases to operate due to a political event, a change in the law, or a force majeure event including acts of God, epidemics, plagues, terrorism, labour disputes, public unrest, or piracy.
If the Government of Kenya is on the hook for the bill, this means that Kenyans will need to pay extra to ensure that Amu Power makes its profits for the remainder of the 25 years. Based on the amount of electricity consumed annually in Kenya in 2018 and 2019, paying the KSh37 billion to Amu Power via KPLC would increase the price of electricity by KSh4.6/kWh for 25 years. We would not be getting even a kilowatt of electricity for this tariff while Amu Power owners would be doing nothing and still making billions off the backs of Kenyans.
The other hidden cost is that of construction. In order for the electricity generated in Lamu to be available on the national grid, a transmission line must be built to transport the electricity from Lamu to Nairobi and in order for coal to get from the proposed mine in Kitui, a railway line must be built from Kitui to Lamu. Neither of these costs is included in the price of the plant.
The latest Least Cost Power Development Plan 2020-2040 estimated that the transmission line will cost approximately KSh55.9 billion. The Environmental and Social Impact Assessment (ESIA) estimates that the railway line will cost KSh290 billion. In addition, prior to coal being sourced from Kitui, a 15 km conveyor belt must be built to bring the coal that is delivered to the port at Kililana in Lamu to the site of the coal plant at Kwasasi. The ESIA does not provide a cost for the conveyor belt.
Amu Power owners would be doing nothing and still making billions off the backs of Kenyans.
Together, the railway and transmission lines add at least an additional KSh345.9 billion to the cost of the plant. Because the costs for transmission lines and railroads were not included in the formula calculating the price of electricity from the Lamu Coal Plant that was disclosed in the PPA, we do not know if our electricity bills will increase per kWh to cover the cost of these necessary components of the plant or if, instead, Kenyans will pay for this via taxes. A rough calculation using the formula for electricity pricing shows that if KSh345.9 billion is repaid over 25 years via our utility bills and the plant is operating at 26.2 per cent capacity (the MoEP’s best-case scenario), the cost will increase by an additional KSh6/kWh.
Looking at the reality of the price of coal inputs, plant utilisation, and the full cost of construction, it is clear that the Lamu Coal Plant cannot possibly generate electricity for KSh7.8/kWh. It is much more likely that the electricity from the coal plant will cost KSh26/kWh assuming a more realistic cost of coal (US$77.3/tonne), with the plant running at 26.2 per cent capacity as predicted by the MoEP, and that rail and transmission costs are amortised over the 26.2 per cent capacity factor.
It is possible for the cost to be as low as KSh15/kWh if the cost of coal is US$77.3/tonne and the plant operates at the international average of 54 per cent utilisation, with rail and transmission costs amortised over 54 per cent capacity factor. Or it could be as high as KSh213/kWh if coal costs US$100/tonne, the plant operates at the 2.8 per cent utilisation rate in the MoEP’s lowest fixed-case scenario, and rail and transmission costs are amortised over the 2.8 per cent capacity factor.
2) Claim: Coal as an employment creator
The Lamu Coal Plant Environmental Impact Assessment states that the plant will employ between 2,000 and 3,000 people during the 42-month construction period and 400 people during its 25 years of operation.
While on the face of it this seems like a good thing for Kenya, it is important to look closely at the jobs lost due to the construction and operation of the plant, the jobs gained, and who gets these jobs.
To explore this, we can look at the two main industries in Lamu, tourism and fishing. Pre-COVID data found that tourism injects over Ksh2 billion per year into Lamu’s economy and pays over KSh500 million in taxes each year. This sector directly employs more than 3,000 locals in hotels and restaurants and several thousand more as boat operators for the visiting tourists, and tourist guides.
Particulate emissions from the coal plant will result in significant damage to the historic buildings and structures in Lamu Old Town, a UNESCO World Heritage Site. The effluent emissions will cause ocean temperatures to rise, destroying the coral reefs and increasing toxicity which will make it unsafe for tourists and locals to swim, snorkel, and dive. With the plant in operation, Lamu will no longer be a pristine and unique tourist attraction.
Most significant is the impact of the smoke from the stacks at the plant. The Kaskazi winds blow from October through May, when the island welcomes 80 per cent of its tourists. The winds blow from the northeast – the direction of the plant – and across the archipelago. This air will carry the toxic, noxious emissions from the plant to Lamu as well as cause haze pollution that will reduce visibility of the shoreline so beloved of tourists and locals. The Lamu Tourism Association expects that business will drop by at least 80 per cent due to this pollution. As such, the industry expects to lose, at a minimum, 2,400 jobs. There are not many alternative sources of income in Lamu and most of these people will be permanently unemployed.
Together, the railway and transmission lines add at least an additional KSh345.9 billion to the cost of the plant.
The approximately 6,000 people who derive their livelihoods from participating in Lamu’s KSh1.5 billion fishing industry will be similarly affected. Most are local fishermen who use hand-crafted fishing boats and equipment to fish close to the shoreline.
The plant’s emissions and effluent, and the leachate from coal ash waste which is to be stored in a flood zone along Manda Bay, will increase the nitrogen content, water temperature, and heavy metals and carcinogens in the bay. This will negatively impact the quantity, quality, and health of fish and shellfish.
As the water in the bay becomes inhospitable for fish, the industry will move farther into the Indian Ocean. Unfortunately, the boats and equipment used by most of the local fishermen are not appropriate for deep ocean fishing. The move to deeper waters also leads to a transformation and consolidation in the industry where larger companies with petroleum-based deep-sea fishing vessels make it noncompetitive for local independent fishermen even if they were to obtain the necessary boats and equipment. In addition, not as many fishermen are needed on the commercial vessels and few locals will be able to retain their jobs. The work requirements on a commercial fishing boat are such that the Chair of the Lamu Beach Management Unit estimates that only 1 per cent of current fishermen will find work on commercial vessels and that 70 per cent of local fishermen will completely lose their livelihoods. The rest of the fishermen are expected to find other, non-fishing, work locally.
Amu Power has falsely led the public to believe that locals who may lose their jobs due to the coal plant will gain employment during its construction and operation. But they are not transparent about who will get these jobs.
If built, the Lamu Coal Plant would be the first in East Africa. This means that, as a country, we do not have the experience and expertise needed to be among the skilled workforce that will get the better-paying jobs. The coal plant’s Environmental and Social Impact Assessment confirms that 1,700 Chinese expatriates will construct the coal plant leaving us with between 300 and 1,300 jobs to allocate to Kenyans during the construction phase of 3.5 years — less than half what was promised, even in a best-case scenario. The jobs allocated to Kenyans are not skilled labour and do not make up for the thousands who will have lost their livelihoods due to the impacts from the plant.
The ESIA states that the plant will employ 400 people once it is operational. It does not disclose how many of these positions will be technical, requiring experience and expertise that we do not yet have, nor how many will be unskilled jobs – such as coal handling, which comes with health risks – given to Kenyans. Even so, 400 jobs over 25 years neither reemploys the number of local fishermen and people in the tourism industry who will have lost their jobs due to the plant, nor reduces current levels of unemployment in the region.
Amu Power has falsely led the public to believe that locals who may lose their jobs due to the coal plant will gain employment during its construction and operation.
The plant will therefore create job opportunities for expatriates at the expense of thousands of fishermen and locals who are dependent on fishing and tourism as a source of employment while creating – at best – 1,700 jobs over a 25-year period and causing approximately 4,200 job losses in the fishing industry and 2,400 in tourism – a net loss of 4,900 Kenyan jobs.
3) Claim: Coal will help Kenya transform into a manufacturing economy
Manufacturing is one pillar of President Kenyatta’s Big Four agenda. The government’s aim is to raise the contribution of manufacturing to GDP from the current for 9.4 per cent of constant-price [inflation-adjusted] GDP to 20 per cent of GDP by 2022. Amu Power has sold the point that coal provides inexpensive baseload power that is required to boost Kenyan manufacturing to achieve President Kenyatta’s goals. Baseload electricity is the electricity that is always available to commercial and residential consumers. Coal plants run 24-7 so historically they have been used for baseload electricity (as have natural gas and diesel turbines). In contrast, wind and solar are considered intermittent sources of electricity because wind does not blow and the sun does not shine 24 hours a day, 365 days a year.
But Amu Power ignored two things: 1) there are less expensive options for baseload power in Kenya and 2) coal-fired electricity will increase the cost of manufacturing in Kenya.
1) There are less expensive options. Amu Power’s claim that Kenya needs coal for its baseload electricity ignores both that coal is more expensive per kilowatt hour than natural gas and wind power and – more significantly for Kenya – that it is cost competitive with geothermal. Kenya has among the highest geothermal potential in the world – 7,000 to 10,000 MW. Unlike wind and solar, geothermal energy is available for electricity generation 24 hours per day, every day of the year. Unlike coal, it is locally available and is not dependent on purchasing fossil-fuel inputs whose costs fluctuate wildly on international markets.
Kenya’s Least Cost Power Development Plan 2017-2037 states that the price of power from geothermal plants is, on average, about a third the cost of electricity from coal: US$10 cents/kWh compared to US$29.5 cents/kWh. Because geothermal (like wind and sunshine) is free, it is less expensive in the long-term than coal-fired electricity (and has none of the environmental impacts of coal which increase the community’s burden of costs for environmental clean-up and healthcare due to increased cases of pulmonary and cardiac diseases).
Unlike coal, geothermal energy is locally available and is not dependent on purchasing fossil-fuel inputs whose costs fluctuate wildly on international markets.
2) Coal-fired electricity will increase the cost of manufacturing in Kenya. Considering more realistic capacity factors and the prices of coal, rail, and transmission lines, the cost of electricity from the Lamu Coal Plant ranges from KSh15 to KSh213/kWh (instead of the KSh2.58/kWh commercial enterprises paid for FCC in January 2021). If the Lamu Coal Plant is built, the price of electricity for industry could be more than ten times higher than what they are currently paying (in January 2021, commercial consumers paid between Ksh14.61 and KSh23.82 per kWh of electricity).
In order to manufacture with such electricity costs, the prices of goods produced in Kenya would also have to increase, rendering Kenyan products uncompetitive locally and undesirable on international markets.
None of the three claims made by Amu Power to convince the government that Kenyans not only need, but will benefit from, a coal plant hold up under examination. Coal-fired electricity from the proposed Lamu Coal Plant will be two to ten times more expensive than from current sources of generation, causing dramatic increases in our electricity bills. The Lamu Coal Plant will create jobs for Chinese expat workers and cause an overall loss of 4,900 Kenyan jobs. The cost of electricity from the Lamu Coal Plant will make manufacturing in Kenya so expensive that not only will the country not deliver on the president’s Big Four Agenda, but Kenyan goods will become non-competitive on local, regional, and international markets.
The poor economics of the Lamu Coal Plant will be disastrous for Kenya’s economy. It will make electricity unaffordable for most Kenyans and will eliminate competitive growth in the manufacturing sector. Furthermore, with the Lamu Coal Plant saddling Kenyans with billions in debt and hundreds of megawatts of expensive excess generation capacity, the Kenyan government will be prevented from investing in sustainable, low-cost, local sources of electricity generation, hampering the country’s economic development for decades.
BBI: A Textbook Case of Compounding Constitutional Illegalities
The issues that Uhuru Kenyatta and Raila Odinga have identified as bedevilling the country have already been assigned by the constitution or the law to existing and established state agencies.
The phrase “compounding illegalities” aptly describes the approach and processes taken by Uhuru Kenyatta and Raila Odinga to change the constitution through the Building Bridges Initiative (BBI).
The following have been the defining processes for BBI thus far. One, the formation of the BBI Steering Committee and Taskforce; two, the decision that the mandate of the BBI is to propose constitutional reforms; three, the decision that BBI constitutional amendments will be introduced through a popular initiative; four, submission of the BBI Bill and verification of its support by the IEBC; five, the referendum path being scripted by BBI proponents. Each of these steps has been riddled with a myriad of illegalities.
Let us discuss these processes one at a time.
The BBI Taskforce was born out of the opaque “truce” between Raila Odinga and Uhuru Kenyatta following the dramatic swearing in of Raila Odinga as the People’s President on 9 March 2018 that was presided over by Miguna Miguna. It is unclear the extent of the considerations that placated Raila and led him to the “handshake” with Uhuru at a time when he professed that everything he stood for was diametrically opposed to Uhuru’s beliefs. What was made public, however, were the nine issues that the two identified as afflicting Kenya’s democracy. The issues ranged from ethnic antagonism to a lack of a national ethos with regard to corruption.
The launch of the BBI Steering Committee soon followed on 24 May 2018. The membership of the Steering Committee was drawn from Uhuru and Raila’s long-term loyalists, with persons considered politically non-controversial included to give the membership a veneer of diversity. The Steering Committee had only three terms of reference: (i) evaluate the national challenges identified in the BBI (handshake) communiqué and make recommendations on the necessary “reforms that build lasting national unity”; (ii) draw up policy and administrative reform proposals to address the challenges identified, and (iii) consult with members of the public.
After it issued its first report, the Steering Committee’s term was extended on 20 January 2020 and its description was changed to a Taskforce. Its revised terms of reference were to conduct public participation to validate its report. However, a mischievous mandate was sneaked into the Taskforce work: “proposing constitutional reforms”.
I must pause here and identify how, even this early in the process, Uhuru violated the constitution and the law. The illegalities are at least at three levels. First, all the nine issues that he and Raila identified as bedevilling the country were already issues assigned by the constitution or the law to already existing and established state agencies. Let us sample a few. One – ethnic antagonism and inclusivity are the mainstay functions of the National Cohesion and Integration Commission (NCIC). Two – corruption is the single issue assigned to the Ethics and Anti-Corruption Commission (EACC). Three – the constitution and other laws have already established all manner of agencies and structures to deal with every aspect of devolution, including the Summit (the body bringing together the president and all governors), the Inter-governmental Relations Technical Committee and the Inter-governmental Budget and Economic Council. Finally, we already have institutions – ranging from the IEBC, the NCIC, and the judiciary among others – to deal with electoral justice.
Essentially, what Uhuru did in establishing the Steering Committee and Taskforce to deal with his and Raila’s nine issues was to usurp responsibilities that have already been assigned by the constitution and the law to established state institutions and hand them over to a select group of friends and loyalists to steer.
But there are those who will argue that part of Uhuru’s constitutional mandate as the President and Head of State is to foster national unity and it is therefore within his powers to appoint a taskforce to assist with this constitutional task. But this argument misses the fundamental point that the President is required to be the first in line to respect the functional mandate of the institutions established by the constitution and the law and not to do anything that undermines or minimises their authority.
The second level of illegality has to do with how Uhuru and Raila settled on members of the taskforce. The constitution insists that, with the exception of the personal staff of the president and his deputy, anyone selected to undertake a public function by and for the executive must undergo a merit-based and competitive selection process. This is to ensure that those assigned public duties are qualified to do what they are assigned to do and are not just sycophants of the appointing authority.
Essentially, what Uhuru did was to usurp responsibilities that have already been assigned by the constitution and the law to established state institutions.
The third illegality is unilaterally starting a consequential constitutional revision project without first creating a legal framework to guide the process. Revising a constitution is too sacrosanct a task to be left to three half-baked terms of reference contained in a nondescript gazette notice and assigning the work to a taskforce that is not accountable to the people. Worse, the fact that the constitutional mandate was sneaked into the terms of reference of the taskforce at the last minute only aggravates the disregard Uhuru has for the law.
The constitution provides two pathways to its amendment. The first is through a parliamentary initiative. The second is the popular initiative. The parliamentary pathway to amending the constitution largely mirrors the manner in which regular laws are introduced in parliament. Ordinarily, and ideally, the executive formulates policy on an issue. That policy is transmitted to the office of the attorney general who works in tandem with parliament to translate it into a draft law. The draft is then introduced in parliament by a member of parliament – ordinarily the majority leader or a member of a political party aligned to the executive.
There is logic to this process. Parliament exists largely to ensure that whatever action is taken by the executive is regulated by law. Ensuring that every action of the state derives its authority from the law is essentially what the principle of the rule of law is all about. But, importantly, the law-making function of parliament is intended to restrain the executive or other arms of government from transgressing on areas not assigned to them or undertaking their work in a way that is inimical to the principles of constitutionalism and rule of law. Hence, the law-making power of parliament is not passive but, at its core, involves ensuring that the law it enacts provides for the necessary guardrails against abuse of public power and sufficient guidance to those charged with implementing public responsibilities.
But how does this relate to the popular initiative process? The point here is that the constitution created the parliamentary initiative process for use by state actors including the executive and this is the path the constitution expects Uhuru and other government actors to take if they want to amend the constitution.
Why then the popular initiative process?
The constitution created this path for the people who do not wield state power to initiate the process of changing the constitution. Understanding the popular initiative as the people’s pathway to amending the constitution is critical for a number of reasons. To start with, it reaffirms the constitutional principle of sovereignty of the people – giving the people a pathway to changing the constitution that is not at the mercy of the political leadership.
The second reason is perhaps the most relevant given our circumstances and experience with the BBI thus far. The constitution and the law intend that the person or persons sponsoring amendments through the popular initiative fully bear the costs and inconveniences of initially mobilising the required threshold of at least one million voters to support the proposed amendment. It is only after the promoters deliver the bill and the supporting signatures to the IEBC that the constitution requires that state agencies – starting with the IEBC – engage with and deploy state resources in processing the bill and other ensuing procedures.
Revising a constitution is too sacrosanct a task to be left to three half-baked terms of reference contained in a nondescript gazette notice.
When the state hijacks the popular initiative process it unfairly inverts power relations between the people and the ruling elites. It also negates the entire constitutional intention of creating a popular initiative pathway since the use of state resources by state officers in order to popularise and attain the initial support of at least one million voters is unfair and discriminatory because similar public resources are not available to the people – who have no favour with the state – when pushing for amendments through the popular initiative.
Briefly, not only did Uhuru violate the law by hijacking the popular initiative pathway to amending the constitution when the law required him to use the parliamentary initiative pathway, but he has also abused his powers by deploying state resources to raise support for BBI constitutional amendments.
IEBC verification and approval by county assemblies
The constitution imposes three foundational obligations on the IEBC as an independent constitutional commission: to protect the sovereignty of the people; to secure observance of democratic values and principles by all state organs; and to promote constitutionalism. However, the IEBC’s handling of the BBI process goes against these obligations. The violations range from caving into undue pressure from the promoters of BBI, failing to observe the basic requirements of verification of signatures, using a makeshift administrative (legal) framework that was promulgated without complying with the law and, worse, violating the provisions of that framework.
Let us start with the lack of a proper legal framework. There is no law that guides the IEBC in its verification of signatures or any other aspects entrusted to it in processing the request to amend the constitution through a popular initiative. Yet there are very many issues where it is unclear what the IEBC can or cannot do with regard to a popular initiative to amend the constitution. A law or proper guidance from the court is necessary if for no other reason other than to render IEBC actions legal.
A few examples of the gaps will suffice here. Although the constitution requires that a popular initiative have “supporting signatures” and that the IEBC will then “verify that the initiative is supported by at least one million registered voters”, given that the IEBC does not maintain a database of signatures of voters, it is unclear how it should undertake the verification exercise or what it would actually verify. Similarly, it is unclear whether the IEBC has an obligation to provide the public with information about who signed to support the popular initiative, and if so, through which medium.
Yes, the IEBC does not make law. That is the work of parliament. However, the IEBC has an obligation to request parliament to prepare the necessary regulatory framework to ensure its work and processes are guided by law. Where parliament refuses or fails to enact a guiding law, the IEBC has the option to go to court to seek guidance, especially given the importance of the process.
The law-making power of parliament is not passive but involves ensuring that the law it enacts provides for the necessary guardrails against abuse of public power.
An illustration is necessary here. In 2014, when the Embu County Assembly impeached Governor Martin Wambora it quickly noticed that, while the constitution allowed the deputy governor to take over the governor’s position, there was no national law to determine how the arising vacancy of a deputy governor would be filled. Parliament, which has the authority to pass such a law, had not done so. The County Assembly moved to the Supreme Court to ask for guidance. The Supreme Court provided that guidance because it found that both the position of the governor and of the deputy were so crucial “to the operations of County Government, it is inconceivable that, constitutionally, they could remain fallow until the next cycle of a general election.” Equally, the amendment of the constitution is too crucial a matter for the IEBC to allow itself to rely on guesswork when it has all along had the option to seek authoritative guidance from the Supreme Court.
What the IEBC has done is to illegally arrogate itself law-making powers by cobbling together some vague administrative procedures that it claims to use to guide its verification process.
But this is where it gets even more interesting. The IEBC failed to follow even its own procedures when verifying BBI signatures. First, its administrative procedures require it to compile and publish the list of supporters on its portal for two weeks. The procedures further allow it to receive complaints from members of the public whose information is either wrongly included or is excluded. However, the IEBC was in such haste to facilitate the BBI bill that it published the names for only four days before forwarding it to the County Assemblies.
Lack of a regulatory framework to guide a constitutional amendment driven by a popular initiative not only affects the IEBC but also nearly every step of the process. For example, there is no law that guides the county assemblies on how they should undertake the crucial step of approving the amendment bill. In fact, in 2019, the High Court ordered parliament to enact a law to seal this legislative lacuna. Again, parliament has failed to pass that law.
Yet, it is quite ironical that when the two Speakers – Justin Muturi and Ken Lusaka – were notifying parliament that it would start the process of considering the BBI bill they loudly stated that even parliament did not have the necessary law of parliamentary procedures to guide its own procedure of processing the bill. The Speakers had a quick solution to this – make up the rules and procedures as you go. Then parliamentarians were quite surprised when their process quickly hit a snag as they were unsure whether they were permitted to amend the BBI bill or not.
Uhuru violated the law and abused his powers by deploying state resources to raise support for BBI constitutional amendments.
Admittedly, there are currently two unsatisfactory bills pending in parliament intended to guide the entire constitutional amendment process – including how to resolve issues relating to preparing for and conducting the referendum. Those bills are full of regulatory gaps including the procedure in parliament. Still, instead of parliament prioritising the passing of these laws, it is focussing on pushing the BBI bill through. A classic case of putting the cart before the horse.
But why does passing a law to regulate the process matter? Because that is what rule of law is all about – the authority to exercise public power must find its validity in a rule, a law. Law provides a framework through which those entrusted with public power to undertake certain processes can be objectively audited for compliance with the law and the constitution. Discretion, especially unregulated discretion, only breeds anarchy. It allows those with power to manipulate public processes for their own personal gain. In many ways, that is the story of BBI.
Crystal-balling future violations
The BBI bill is now before parliament. There are a few things that should be constitutionally clear about how parliament should process the bill. First, and unlike most county assemblies which voted for the bill using a single motion to approve it, parliament must subject the bill to the rigours of the mandatory three readings that bills undergo in parliament before they become law. This is because, under the constitution, parliament has the ultimate responsibility to pass the constitutional amendments into law – especially where a referendum may be unnecessary. The enormity of this responsibility demands that it must use a proper, predictable, accountable and constitutionally compliant procedure.
Second, parliament has the obligation to facilitate adequate public participation. The constitution requires that, for a constitutional amendment proposed through a parliamentary initiative, the period provided by parliament for public participation should not be less 90 days. Yet, this minimum timeline is constitutionally ring-fenced between the first and second reading of the bill. Similar timelines should apply for a popular initiative and for parliament’s passing of the BBI bill. However, Parliament has already indicated it will not comply with this timeline because Uhuru and Raila have imposed a deadline for passing the BBI bill.
Third, the bill is passed by parliament if it is supported by a majority of members in both houses. This is important. A majority of members means at least over 50 per cent of all members of each house and not just those present in parliament at the time of voting.
But given the extent to which promoters of the BBI bill have already violated the constitution, and the haste with which they are pushing for the bill to pass, it is highly conceivable that parliament will violate the very clear rules and expectations of the constitution. Parliament has already committed the first sin by rushing public participation.
Another likely BBI illegality will relate to the referendum. As it is, the BBI bill cannot avoid a referendum because it is packed with issues that require a referendum based on Article 255 of the constitution. This includes re-organisation of the executive, changing the composition and roles of the National Assembly and the Senate, and numerous issues concerning devolution and tampering with the independence of autonomous institutions. There is much more.
At least two violations relating to the referendum are being primed. The first is the possibility that BBI proponents – and especially the president – will only designate certain matters to go to referendum and insist that those issues not submitted to the referendum are adopted into the constitution regardless of the outcome of the referendum. This is problematic because the constitution provides that “if a bill to amend the constitution proposes an amendment relating to a matter” that requires a referendum, the president cannot assent to the bill until after the referendum is held. This means that if the bill is not approved through a referendum the entirety of the amendment bill fails.
The IEBC has an obligation to request parliament to prepare the necessary regulatory framework to ensure its work and processes are guided by law.
But in the case of the BBI bill, there is a more fundamental problem which makes it impossible to reconcile the process concerning the referendum and assent. The BBI bill has always been constitutionally irredeemably defective in its content. Irredeemably defective because a bill to amend the constitution – either though a parliamentary or a popular initiative – should not contain more than one matter. Essentially, it was illegal for BBI promoters to include in one bill so many unrelated issues. Each issue should have gone into a separate bill. This is actually the issue I should have started this analysis with because the point I am making here is that the BBI bill that was force-fed to the IEBC, bribed through the county assemblies and is now being walked through Parliament has – in its content – been unconstitutional from the start.
This brings me to the second likely violation concerning the referendum that we can expect and this is what the BBI proponents have told us already; the BBI referendum will field only one question. This is wrong. Firstly, the law already authorises multiple questions and leaves that decision to the IEBC to make. Secondly, not only was it unconstitutional for BBI proponents to include in the amendment bill a myriad unrelated changes but demanding that only one question be presented at the referendum will be aggravating this cardinal sin.
It is not over yet
When on 8 February 2021 the High Court issued orders restraining the IEBC from facilitating and subjecting the BBI bill to a referendum, it made a fundamental observation. It observed that that rushing the bill through the various stages “does not inoculate the resultant proposed constitutional amendment from the possibility that it could yet, upon final disposition of these Petitions, be declared invalid.” The litany of violations of the constitution that litter the path the BBI has travelled would make a great mockery of the constitution if the amendments proposed by BBI are eventually pronounced to be part of the Kenya 2010 Constitution.
Ultimately, the passing of the BBI will represent the moment that tested whether Kenyans recognise that the supremacy of the constitution, rule of law and the sovereignty of the people as enshrined in the 2010 Constitution are not mere words. It will be the true and defining moment pitting the people against a gluttonous, insatiable and incorrigible ruling elite.
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