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A Hidden Tycoon, African Explosives, and a Loan from a Notorious Bank: Questionable Connections Surround Beirut Explosion Shipment

13 min read.

An international team of investigative journalists has uncovered new facts about the lead-up to the explosion, which killed at least 182 people, injured over 6,000 and caused hundreds of thousands to lose their homes.

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A Hidden Tycoon, African Explosives, and a Loan from a Notorious Bank: Questionable Connections Surround Beirut Explosion Shipment
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Since the devastating explosion of a store of ammonium nitrate in Beirut’s port on August 4, Lebanese citizens have taken to the streets in shock, outrage, and grief.

Above all, they have demanded answers: Where did the nearly 3,000 tons of explosive chemicals come from, and who owned it? Why did the rickety ship that brought the hazardous material to Lebanon end up stranded in the city’s port in late 2013? And how could the impounded chemicals sit for over half a decade in an unsafe warehouse before tragedy finally struck?

In Lebanon itself, the causes of the disaster appear to be tied to bureaucratic ineptitude. Just two weeks before the warehouse exploded, Lebanon’s president received an urgent report from the country’s security services warning him that the situation was critically dangerous.

The international side of the affair, on the other hand, quickly became lost in a maze of corporate and financial intrigue. Igor Grechushkin, the Russian man variously described as the owner or the operator of the Moldovan-flagged MV Rhosus, is said to have abandoned the vessel in Lebanon after declaring bankruptcy. The vessel’s deadly cargo had been purchased from the country of Georgia by a Mozambican firm that produces commercial explosives, via a British middleman trading firm linked to Ukraine.

The ownership of the Rhosus, and the companies that ordered the nearly 3,000 tons of ammonium nitrate to be transported halfway around the world in a rickety ship, are obscured by layers of secrecy that have stymied journalists and officials at every turn. Even the Lebanese government does not appear to know who actually owned the ship.

A man stands next to graffiti at the damaged port area in the aftermath of a massive explosion in Beirut, Lebanon August 11, 2020. Credit: Hannah McKay / Reuters

A man stands next to graffiti at the damaged port area in the aftermath of a massive explosion in Beirut, Lebanon August 11, 2020. Credit: Hannah McKay / Reuters

But an international team of investigative journalists has uncovered new facts about the lead-up to the explosion, which killed at least 182 people, injured over 6,000 and caused hundreds of thousands to lose their homes.

Reporters found that the circumstances for the tragedy were set in the baffling nowhere-world of offshore trade, where secretive companies and pliant governments allow questionable actors to work in the shadows.

Among those secretly connected to the Rhosus and its final voyage: a hidden shipping tycoon, a notorious bank, and businesses in East Africa previously investigated for ties to the illicit arms trade.

In their joint investigation spanning ten countries, reporters found that:

  • Igor Grechushkin did not own the Rhosus but was merely leasing it through an offshore company registered in the Marshall Islands. Instead, documents show that the true owner of the Rhosus was Charalambos Manoli, a Cypriot shipping magnate. Manoli denies this, but declined to provide documents to back up his claim.
  • Manoli owned the ship through a company registered in the notoriously secretive jurisdiction of Panama, which received its mail in Bulgaria. He registered it in Moldova, a land-locked Eastern European country that is notorious as a jurisdiction with lax regulations for vessels that fly its “flag of convenience.” To do this, he worked through another of his companies, Geoship, one of a handful of officially recognized firms that set foreign owners up with Moldovan flags. Then, yet another Manoli company, this one based in Georgia, certified the ship as seaworthy — even though it was in such bad shape it was impounded in Spain days later.
  • At the time of the Rhosus’ last voyage, Manoli was in debt to FBME, a Lebanese-owned bank that lost multiple licenses for alleged money laundering offenses, including helping the Shia militant group Hezbollah and a company linked to Syria’s weapons of mass destruction program. At one stage, the Rhosus was offered up as collateral to the bank.
  • The ultimate customer for the ammonium nitrate on the ship, a Mozambican explosives factory, is part of a network of companies previously investigated for weapons trafficking and allegedly supplying explosives used by terrorists.The factory never tried to claim the abandoned material.
  • The intermediary for the shipment, a British company that was dormant at the time, convinced a Lebanese judge in 2015 to get the ammonium nitrate tested for quality with the intent of claiming it. The stockpile was found to be in poor condition, and the company, Savaro Limited, did not try to take back the ammonium nitrate in the end.

The new revelations show how, at almost every stage, the Rhosus’ deadly shipment was connected to actors who used opaque offshore structures and lax government oversight to work in the shadows.

The revelations also expose the particular dangers posed by the lack of transparency in the maritime shipping industry, according to Helen Sampson, the director of Cardiff University’s Seafarers International Research Centre.

The findings “highlight all the weaknesses of the [maritime shipping] system and how they can be exploited by those who want to exploit them,” Sampson said.

Offshore companies and convoluted ownership structures helped obscure the true ownership of the MV Rhosus.

Offshore companies and convoluted ownership structures helped obscure the true ownership of the MV Rhosus. Credit: Edin Pašović

The Rhosus’ True Ownership

The Moldova-flagged ship that set out from the Georgian port of Batumi in September 2013, carrying over 2,750 tons of ammonium nitrate made by a local factory and bound for Mozambique, was in poor shape. The decks were corroded, it lacked auxiliary power, and had problems with radio communication. The vessel stopped in Beirut to pick up more cargo and never left. It was detained first by creditors seeking debts from its operator, and later by port officials who considered it unsafe to sail.

The MV Rhosus in Istanbul in 2010. Credit: Hasenpusch/picture-alliance/dpa/AP Images

The MV Rhosus in Istanbul in 2010. Credit: Hasenpusch/picture-alliance/dpa/AP Images

After the ship was abandoned and impounded in 2014, leaving Ukrainian and Russian crew members stranded on board for 10 months, the ammonium nitrate was moved to a warehouse at the port. The ship eventually sank behind a breakwater, where its wreckage remains.

Following the Beirut explosion, media reports and government authorities have focused on one man as responsible for abandoning the ship and its cargo: Igor Grechushkin. A 43-year-old Russian citizen living in Cyprus, Grechushkin has been repeatedly identified as the Rhosus’ owner. He has avoided all attempts by OCCRP and other outlets to speak to him, although he was interviewed by Cypriot police at the request of Lebanese authorities on August 6.

Igor Grechushkin has attracted attention around the world for his role in the Lebanon explosion. But public records suggest that he has a history of acting as a corporate officer in companies run by others. He was also convicted of aggravated theft in the mid-2000s in Russia’s far east, for reasons that remain unclear.

At different times between 2006 and 2013, Greschushkin served as the secretary of two Cyprus-registered companies: Lyncott Enterprises and Hogla Trading, which provided ship chartering and maritime services. Both companies listed another Russian citizen, Alexander Galaktionov, as the director.

Both Grechushkin and his wife Irina have lived in Cyprus for several years. He appears to travel often between the island and Moscow.

Grechushkin was born in August 1977 in the far-eastern Russian port town of Vanino where his extended family still lives. According to his now-deleted LinkedIn profile, he attended the Far Eastern Public Administration Academy.

But Grechuskin, on paper at least, did not own the Rhosus. Instead, through a company in the Marshall Islands called Teto Shipping, he had chartered the ship from a company in Panama, Briarwood Corporation, according to official records from Moldova’s Naval Agency.

Panama, a notoriously secretive offshore jurisdiction, does not make public the ownership of companies registered there. But by searching through court records in Cyprus, OCCRP journalists found a 2012 document showing that Briarwood belonged to Manoli.

Three of Manoli’s other companies helped the Rhosus obtain its Moldovan flag, issued its seaworthiness certificates, and provided intermediary services that helped keep the ship at sea though it was riddled with serious defects.

Manoli’s connection to the Rhosus did not stop there. Records show that another of his companies, Geoship Company SRL, was responsible for officially registering the ship in Moldova, which has notoriously lax regulations for transparency, safety, and crewing.

Charalambos Manoli was born in 1960 in Famagusta, a coastal city in what is now the Turkish-controlled part of Cyprus. After studying shipbuilding in Scotland, he returned to Cyprus to work as a ship inspector, and went on to found multiple shipping companies.

Manoli is best known in Cyprus for his role in local football. From 2014 to 2017, he headed Anorthosis Famagusta FC, one of the country’s most popular teams. In 2015, he unsuccessfully ran for the leadership of the Cyprus Football Association.

In 2002, Manoli established Acheon Akti Navigations Limited, a Limassol-based ship management company. In 2007, he established another firm, Interfleet Shipmanagement Limited.

A Georgian company then owned by Manoli, Maritime Lloyd, acted as the ship’s “classification society” — a body responsible for certifying that ships are seaworthy. The company was sold in 2019.

In late July 2013, Maritime Lloyd issued a certification claiming the Rhosus had been safely constructed, inspection records show. But just days later, port inspectors in Seville detained the ship, citing 14 defects, including problems with its auxiliary power system.

The headquarters of Charalambos Manoli’s ship management company, Acheon Akti, in Limassol, Cyprus. Credit: OCCRP

The headquarters of Charalambos Manoli’s ship management company, Acheon Akti, in Limassol, Cyprus. Credit: OCCRP

Solving that latter problem was key to getting the Rhosus back at sea one last time — and it was another of Manoli’s companies that did it. In August 2013, two months before the ship set off on its final voyage from Batumi, Manoli’s Cypriot ship management company, Acheon Akti acted as an intermediary to rent a new generator from international equipment rental firm Aggreko, a company representative said by email. The unpaid hiring cost for this generator would become one of the debts that stuck the Rhosus at the Beirut port.

According to Cardiff University’s Sampson, the complex web of companies around the Rhosus was typical of those used to minimize costs and shield owners from accountability.

“If you’re sailing a ship that you know is unseaworthy then you have an incentive to hide your identity,” Sampson said.

“The fact that it appears that the owner of the Rhosus actually owns the classification society which issued the ship with its certificate of seaworthiness — I’d say that means that the certificate isn’t worth anything, really.”

Two pages from a 2011 loan from FBME to Manoli to purchase the MV Sakhalin. Credit: OCCRP

Two pages from a 2011 loan from FBME to Manoli to purchase the MV Sakhalin. Credit: OCCRP

Court records in Cyprus and documents obtained by OCCRP also reveal that, just two years prior to the Rhosus’ final voyage, the ship’s owner, Manoli, took out a $4 million loan from FBME. The Tanzania-registered financial institution operated mainly via its branch in Cyprus, which has since been shuttered for allegedly acting as a major banker for groups and individuals connected to organized crime, terrorism, and weapons profilferation.

Manoli took out the loan in October 2011 to finance the purchase of another ship, the MV Sakhalin, the records show. Just a month later, a Belize company owned by Manoli, Seaforce Marine Limited, missed the first repayment, court records show. Manoli responded by offering up the Rhosus as additional collateral. In March 2012, FBME secured a freeze on Manoli’s Cyprus real estate holdings after hearing that he intended to sell the Rhosus.

Internal FBME records obtained by OCCRP show that over US$962,000 of Seaforce’s debt was still unpaid as of October 5, 2014, meaning the debt was still current when the Rhosus made its journey.

There is no evidence linking Manoli’s debt to FBME with the circumstances surrounding the Rhosus’ last journey. The existence of the loan, however, shows that Manoli had dealings with a bank that would soon become notorious as a clearing house for dirty money.

Founded by the Lebanese Saab family, FBME effectively went out of business after being sanctioned in mid-2014 by the US government. Among FBME’s clients, according to the U.S. Treasury, was a financier for Hezbollah, as well as an associate of the Lebanese Shiite militant group and his company in Tanzania. Another FBME customer was an alleged front company for Syrian efforts to acquire weapons of mass destruction.

Although the Rhosus was offered to FBME as collateral, it was never used for that purpose, both Manoli and the bank told OCCRP.

“The MV Rhosus was never collateral for the loan and FBME Bank never had any involvement either with its financing or ownership,” the bank said in a statement.

It confirmed that it had made the loan to Manoli’s Seaforce for the purchase of the MV Sakhalin.

“Neither Mr Manoli nor SeaForce Marine Ltd made any repayments towards the loan, and the Bank initiated legal proceedings against them. Since the Administrators took over the Bank in July 2014, we are unaware of the current status of the case.

In a series of interviews, Manoli gave reporters changing accounts of the ship’s ownership. He initially claimed that his Panama company, Briarwood, had sold the ship to Grechushkin’s Teto Shipping in May 2012.

When later presented with documents that showed Briarwood still owned the ship — and that it had merely been leased to Teto Shipping — Manoli revised his statement. He acknowledged that Briarwood had indeed leased the Rhosus to Teto Shipping in 2012. But he claimed that later, in August 2013, just before the ship’s last voyage, he had transferred all the shares in the Panama company to Grechushkin, making the Russian the effective owner of the ship.

Manoli agreed to allow reporters to view documents showing a share transfer or a contract of sale, but subsequently refused reporters’ attempts to set up a video call to do this.

Manoli also sought to distance the ship’s owner — who he claimed was Grechushkin — from culpability in the explosion.

“The cargo went to Lebanon in 2013. Not now. They confiscated the man’s ship over there. And he declared bankruptcy because of the confiscation of the ship,” he said by phone. “Given this, what’s the responsibility of this man if Lebanese authorities didn’t properly store this fertilizer?”

Manoli denied there was any conflict of interest in his operating the companies that helped register and certify the Rhosus.

Registry documents also show that the Panama company that owned the Rhosus, Briarwood, maintained its mailing address at a now-defunct company in Bulgaria, named Interfleet Shipmanagement. The owner, Nikolay Petrov Hristov, confirmed that the company was a junior partner of a Cypriot firm of the same name owned by Manoli.

Hristov claimed he froze the Bulgarian company in 2012 after Manoli got him involved with the Sakhalin’s FBME loan without his knowledge.

Manoli, however, said that Bulgaria’s Interfleet Management had nothing to do with Sakhalin other than “technical management.”

One Last Stop

While OCCRP’s investigation shows that Grechushkin didn’t own the Rhosus, he was involved in much of the vessel’s direct operation. The ship’s captain at the time of its last journey, says Grechushkin personally ordered him to dock the Rhosus in Beirut on its way to Mozambique.

The stated reason for the last-minute stop, according to the captain, Boris Prokoshev, was to pick up trucks and other cargo in order to pay for passage through the Suez Canal. But the plan was scrapped after the first truck loaded onto the vessel almost damaged its deck, Prokoshev said.

The route traveled by the Rhosus on its last journey from Batumi, Georgia, to Beirut. Credit: Edin Pašović.

The route traveled by the Rhosus on its last journey from Batumi, Georgia, to Beirut. Credit: Edin Pašović.

This account is backed up by a document obtained from Lebanon’s Ministry of Public Works and Transport.

Grechushkin soon abandoned the ship. Captain Prokoshev and three crew members, however, would spend the next 10 months trapped aboard the vessel by Lebanese authorities as creditors pursued Grechushkin for his debts. Lebanese inspectors who boarded the vessel in April 2014 said the crew had almost no food or money, and garbage was piling up on deck.

Correspondence held by Lebanese authorities show that on at least one occasion, in March 2014, Grechushkin did try to rescue the crew. Captain Prokoshev, however, complained soon afterwards that Grechushkin’s company had stopped paying their salaries and was avoiding all communication with them.

Lebanese authorities and the ship’s creditors apparently had no idea that Manoli was the owner of the ship. Neither Manoli nor his companies are mentioned in any Lebanese court documents obtained by reporters. Nor is there any indication that any attempt was made to contact him.

The Mozambique Connection

The owners of the Mozambican factory that ordered the ammonium nitrate did not attempt to retrieve the cargo after the Rhosus was seized.

Documents obtained by OCCRP show that the factory, Fabrica de Explosivos de Mocambique, is part of a network of companies with connections to Mozambique’s ruling elite. The companies had been investigated for illicit arms trafficking and supplying explosives to terrorists.

The factory is 95-percent owned by the family of the late Portuguese businessman Antonio Moura Vieira, through a company called Moura Silva & Filhos.

In an email, Antonio Cunha Vaz, a spokesman for Fabrica de Explosivos, said it had ordered the ammonium nitrate through Savaro Limited. When the shipment never arrived in Mozambique, they simply placed another order.

Moura Silva & Filhos was previously investigated for allegedly supplying explosives used in the 2004 train bombings in Madrid that killed almost 200 people. The following year, after receiving a tip from Spanish authorities, Portuguese police raided four warehouses belonging to the company, seizing 785 kilograms of explosives allegedly concealed from its inventory system.

The company is also linked to Mozambique’s first family and military. Fabrica de Explosivos’ current head, Nuno Vieira, has since 2012 been the business partner of Jacinto Nyusi, the son of Mozambican President Filipe Nyusi, with whom he owns an events and marketing company.

The same year, Vieira, together with Mozambican state investment company Monte Binga and the country’s secret service, founded Mudemol, a munitions and explosives manufacturer that supplied the military. Filipe Nyusi was the minister of defense at the time. Monte Binga has since been flagged by the United Nations for allegedly breaking international sanctions by involving itself in military deals with North Korea.

The explosives factory that was meant to receive the Rhosus’ cargo also shares an address with ExploAfrica, a company co-owned by the Vieira family. Confidential corporate and government documents shared by the Conflict Awareness Project, a U.S.-based nonprofit, show that ExploAfrica and its affiliates were investigated by South African and Portuguese authorities for obtaining U.S. and Czech weapons that later ended up in the hands of rhino and elephant poachers in South Africa’s Kruger National Parks on the border with Mozambique.

A South African front company that was allegedly used to buy the weapons, Investcon, is closely tied to Maputo-based Bachir Suleman, designated by the US government as an alleged “drug kingpin”.

In an email, Antonio Cunha Vaz, a spokesman for Fabrica de Explosivos, said that staff members from Moura Silva & Filhos were interrogated by police but were cleared of any wrongdoing. He said the company’s business links to the Mozambican president’s son were transparent, and denied any connection to alleged drug kingpin Suleman.

“All the deals made by ExploAfrica were perfectly legal and …If there was any use of weapons for purposes not complying to the law, ExploAfrica is not responsible for them,” Cunha Vaz added.

Firefighters spray water in the aftermath of the August 4 explosion. Credit: Mohamed Azakir / Reuters

Firefighters spray water in the aftermath of the August 4 explosion. Credit: Mohamed Azakir / Reuters

The Middleman

While the Mozambican factory made no apparent effort to claim the material, another company did: the trading firm that acted as a middleman in the deal.

Company records show that the middleman, United Kingdom-based Savaro Limited, ordered the ammonium nitrate at a time when it reported no official business activity to U.K. authorities. It has remained dormant since.

Savaro Limited is linked to another company called Savaro in the Ukrainian city of Dnipro, via a series of shareholders and directors in Cyprus and the United States. The Ukrainian company’s director is Vladimir Verbonol, a local businessman. He told OCCRP he had no connection to the shipment.

Court documents show that Savaro in February 2015 hired a Lebanese lawyer to petition a local court to inspect the quality and quantity of the ammonium nitrate then being held in the port warehouse. That expert report concluded that most of the one-ton bags containing the ammonium nitrate — approximately 1,900 — were ripped and had their contents spilling out.

The documents show that Savaro declined to carry out chemical testing of the ammonium nitrate, and there is no record of the company attempting to recover the material after that point.

In Savaro’s place, a new potential buyer was sought for the dangerous stockpile.

First the Lebanese Customs Department asked the country’s army to take it, but they refused, instead suggesting that it be offered to a local manufacturer, Lebanese Explosives Co, owned by businessman Majid Shammas. There is no record of the company accepting the offer.

The army then suggested simply sending the ammonium nitrate back to Georgia at the expense of the importer. This, too, never happened, for reasons that remain unclear.

By February 2018, Lebanese authorities appear to have given up on their efforts to offload the ammonium nitrate.

But the stockpile remained in an unsecured warehouse — an explosion waiting to happen.

In a July 20, 2020, report to the president and prime minister — just two weeks prior to the explosion — Lebanese security services warned that there were serious security flaws at the facility that left the ammonium nitrate open to theft.

One door of the unguarded warehouse was missing, while there was also a hole in the southern wall, the report said.

“In case of theft, the thief could turn these goods into explosives,” the report warned.

According to three European intelligence sources investigating the blast, who spoke to reporters on the condition of anonymity, the amount still stored in the warehouse by August may have been smaller than the initial 2,750 tons. They said the size of the explosion was equivalent to as little as 700 to 1,000 tons of ammonium nitrate.

But the blast was big enough to destroy large parts of eastern Beirut. It was one of the strongest non-nuclear explosions ever recorded.

Reporting by Aubrey Belford, Rana Sabbagh, Stelios Orphanides, Sara Farolfi, Eli Moskowitz, Sarunas Cerniauskas, Antonio Baquero, Roman Shleynov, Riad Kobeissi, Diana Mukalled , Eman Qaisi, Giannina Segnini, Ana Poenariu, Atanas Tchobanov, Assen Yordanov, Ion Preasca, Yanina Korniienko, Dmitry Velikovsky, Karina Shedrofsky, Khadija Sharife, Nino Bakradze, Aderito Caldeira, Juliet Atellah, Alexey Kovalev, Fritz Schaap, and Christoph Reuter.

This story was produced in collaboration with Daraj.com (Lebanon), ARIJ.NET (Jordan), Meduza (Russia), iStories (Russia), Der Spiegel (Germany), RISE Moldova, RISE Romania, Bivol (Bulgaria), ifact.ge (Georgia), aVerdade (Mozambique)

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Founded in 2006 by Drew Sullivan and Paul Radu, the Organized Crime and Corruption Reporting Project (OCCRP) is a non-profit media organization providing an investigative reporting platform for the OCCRP Network.

Long Reads

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.

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Dark Web: How Companies Abuse Data and Privacy Protections to Silence Online Media
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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 agreement

Part of a de-indexing agreement

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.

Fake take down requests

Fake take down requests

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.

Who.is data on the abuse-report.eu domain name

Who.is data on the abuse-report.eu domain name

A further examination of the internet infrastructure of Eliminalia in the Ukraine found that several of their servers are within an IP address range (62.244.51.50 – 62.244.51.58) 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.

Campaign bots use dozens of registered domains to run disinformation campaigns against a target.

Campaign bots use dozens of registered domains to run disinformation campaigns against a target.

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.

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Long Reads

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.

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The True – Hidden – Cost of the Proposed Lamu Coal Plant
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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.

Cost of electricity based on price of coalBut 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.

Cost of electricity based on price of coalWhen 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).

Cost of electricity based on price of coalPlotting 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.

Cost of electricity based on price of coal2) 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.

Conclusion

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.

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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.

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BBI: A Textbook Case of Compounding Constitutional Illegalities
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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.

BBI taskforce

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.

Popular initiative

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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