On February 16th 2011, the Arab spring hit the streets of Misrata through sporadic street protests, then spread out into other Libyan cities, ostensibly sparked by the arrest of a human rights activist in the restive eastern city of Benghazi. Libya was simply catching on to the spontaneous civil blowup that was sweeping across the region against a litany of social ills, political mess and economic repression in the wider Middle East.
Libya, the geographical buffer between Egypt in the east and Tunisia in the west fell into that hysterical upheaval along the Mediterranean strip and colonel Muamar Gadhafi just didn’t have the institutional or diplomatic backing needed to stem such a fallout.
It’s often whispered that by not creating independent judicial, parliamentary and social structures but instead building a ‘rule by the people’ Gadhafi had succeeded in building the country around himself. This worked well to foment his grip, but proved to be the fragility of his stranglehold, once the eruption in the Libyan city of Benghazi began to spread outwards. The 3rd century AD city of Benghazi uniquely resented Gadhafi after he took its capital status to Tripoli and stripped it off its stature and prestige during his 1969 coup.
His mistake also partly explains how within just 10 months, the street protests had morphed into an all-out civil war backed by European countries that eventually toppled him, on 20th October 2011, a rare feat, for a leader who’d held to power since 1969. This Arab Spring was simply the culmination of low-grade isolated fights that had impacted the wider Arab civilization since the days of the radical Muslim cleric Sayyid Qutb and his views on the holy jihad in the 1950s.
Starting in his days as a colonel, Qaddafi has always been an ideologically erratic and pragmatic fox who’s Pan-African ambitions unsettled many primitively territorial, and provincially-minded African presidents around him. He misused this ambition though, to advance Libya’s regional clout as the most lucrative player in the Sahelian, sub-Saharan and Arabian political marketplaces.
More than 15 African president and rebel leaders and their respective countries are said to have inordinately benefited from his largesse fueled by his desire to buy or control everyone territorially. It should be remembered that Gadhafi pursued pan-Africanism only after his 1970/80s pan-Arabism dream proved unviable.
The recent coups in Mali and clashes in Niger and Cameroon are simply part of the wider Sahelian cocktail of devastation caused by converging scourges of climate change, weak regimes, violent jihadis, droughts, rising population, raging poverty, arms smuggling, and corruption. Gadhafi had somehow managed to suppress these regional problems through a combination of threats, cash, promises and charisma.
The war lords, South American drug smugglers through the Conakry coast, and Western mining companies all benefited from Gadhafi’s ambitions which inadvertently stabilized the hostile 9.2 million square kilometer Sahara Desert. The desert measures 4800 kilometers in length and 1931 kilometer width landmass and makes up the largest desert in the world.
So when Gadhafi fell, the Sahelian communities on Libya’s southern borders, and in adjacent borderlands, became the recipients of wave after wave of returnees armed with dwindling cash reserves, ideas about democracy, firearms, superiority complex, and battle hardened combat experience.
More consequentially the Libyan crisis produced an estimated 600,000 returning Tuareg welders, blue-collar employees, miners, specialists, returnee migrants, and worst of all, mercenaries. Gadhafi’s inner circle, African dissidents, his lieutenants, and armed mercenaries ended up with large cash reserves, war experience, huge weaponry caches, and rebel networks running from eastern Senegal to western Sudan and across the Red Sea into the Arabian gulf.
When Gadhafi ruled the Sahel, ordering bombings and peace in equal measure across the region, he’d never had imagined that his end would come in the hands of a 22 year old Omraan Shaban. Shaban, a millennial with an elongated nose, a caricature like moustache, a pouty mouth that mimicked a muffled rage, and sunken white eyes became a sensation as part of the team that shot Gadhafi.
A resident of Misrata in the western Mediterranean coast, Omraan Shaban would become the embodiment of the capture of the strongman in the graffiti-laden culvert in Sirte town, and a symbol of youthful hubris or heroism depending on how you look at it. While the anti-Gadhafi rebellion started in the Eastern city of Beghazi the ultimate rivalry would come down to the two western Libyan cities; pro-Gadhafi Ben Walid town, versus anti-Gadhafi Misrata.
In 2012, 5 months after Gadhafi met his death, Omraan, a Misratan and member of the Shield brigade was part of the retaliation against kidnapping of 4 journalists in the pro-Gadhafi city of Ben Walid when he was captured and tortured for his role in the murder of Gadhafi. He’d later succumb to his bullet wounds in a French military hospital in September 2012 where he was receiving treatment.
Meanwhile further south in the Libyan desert border town of Ghat a tall bearded man, dressed in Bedouin clothes drives atop a white Land cruiser in the desert on the outskirts of the Akakus petroleum plant. Gadhafi’s fall had unraveled a 120 years’ truce that had existed between the city’s majority Tebu and Tuareg tribes close to the Libya-Algerian border.
Aboubaker Akhaty, a Toureg leader in Libya’s southern city of Ubari reckons that for a civilization built atop a gas reservoir, their existence was always going to depend on a skillful negotiation between the oil companies, marauding mercenaries, Tebu herdsmen and the flow of arms from the northern Libyan cities at the Mediterranean coast.
Mercenaries fleeing the fall of Gadhafi entered small cities that lie just across from the Algerian border town such as Ghat, Madam in Niger and Wath in Chad. The contested city of Ubari or Awbari was the last spot in Libya’s southern desert before these thousands of Gadhafi’s mercenaries vanished into the Sahara wilderness some for good, others not for long.
Ubari’s strategic importance in the Sahelian conflict is defined by the geographical fact that it’s flanked by one of Libya’s largest oilfield’s, El sharara to the north and the largest arms and oil smuggling routes to the south of the city and just north of the Chadian border. The Libya’s southern civil war was triggered 3 years after the fall of Gadhafi when Tebu and Tuareg smugglers started disputes over these lucrative smuggling routes.
An estimated 250,000 of the 600,000 workers who left Libya headed home to Niger, while 70,000 crossed into Chad, homeless and penniless and carrying everything with them from guns, household goods, ambition, hopes, ammunitions and versatility.
Southern Libyan towns like Sebha and Kufra, may not mean much to anyone outside its borders, but the fall of Gadhafi marked the beirut-ization of such cities lending them to the whim and impulses of drug lords, arms smugglers, human traffickers and became an existential threat to weak regimes in Niger, Chad, and northern Sudan. These lawless cities served as the rear attack flank for armed rebel groups like the Al-Qaida in the Islamic Maghreb (AQIM), and host to rebel leaders, fleeing soldiers, and their Middle eastern, and Eurasian fixers.
With its origins in the scenic Algeria’s Kalbiye mountains which are part of the Mediterranean Atlas ranges, AQIM formerly known as Salafist Group for Preaching and Combat, rebranded in 2007, 4 years before the fall of Gadhafi and would move in to establish its post-Gadhafi territory by recruiting from southern Algeria, south-east Libya and among the Beribiche tribe in the coup-laden northern Mali.
Kidnapped special UN envoy to the Niger’s Agadez region Robert Fowler, a former Canadian diplomat, who was held hostage by AQ-IM for 4 months in the Sahara Desert in 2010, wrote in his book A Season in Hell that “There was a big gulf in the AQIM between those who were black and those who were not. They preached equality, but did not practice it. Sub-Saharan Africans were clearly second class in the eyes of AQIM.” The racially motivated militant groups like AQIM tried filling the vacuum created by the absence of Gadhafi, using recruitment and local spy networks, arms supply, other logistics and illicit trade activities.
By 2013, the post-Gadhafi AQIM spread its tentacles to other parts of the region and forged alliances with murderous groups like Ansar Dine in Mali and northern Nigeria’s Boko Haram. Besides the core Sahelian states, of Mali, CAR, Nigeria, Algeria, Burkina Faso, Mauritania, northern Chad and Sudan’s Darfur region soon became victims of unmitigated tribal, economic and security crisis after the fall of Gadhafi. Returnee migrants, Tuareg mercenaries and the flow of arms from Gadhafi’s looted weapon caches is what created this precarious security situation in Mali and the wider Sahelian states.
Demonstrably, over the last 10 years, the combined effects of these realities have reinforced existing pockets of unrest within the Sahel region, with increased fallouts around northern Mali. The Tuaregs under the National Movement for the Liberation of Azawad (MNLA), with their access to lots of arms, anti-tank and explosives continue to drive their desire for a Tuareg republic in the Western Sahara to be named Azawad.
A series of military losses beginning in late 2011 such as the fall of cities like Gao and Kidal to the rebels by the Malian army, had exposed the dire underbelly of a Post-Gadhafi Sahel. Inadequate resourcing, poor tactical leadership, and failure to master the terrain by the region’s national armies led to about 1000 troops either killed, taken captive or deserted in the French-led Operation Serval, Operation Barkhane and Operation Epervier.
The initial push for a Tuareg country was marked by a motivated secular ethno-nationalist patriotism for a people long loathed by their neighboring tribes as well as the French since they massacred an entire French military convoy led by Eugen Bonnier at Goundam in 1894.
While Niger’s Tuareg returnees came to a land for whom civilization had bypassed, their Malian Tuareg brothers pitched camp at Zaka, in northern Mali a scene straight out of the surface of the moon. The strategic difference is that their Malian cousins had armed themselves with guns, even greater ambition, desert Landcruisers, an ideology and guns, lots of guns.
As Gadhafi sneaked around the town of Sirte trying to evade eventual capture and the French drones above in late 2011, Ibrahim Bahanga his longtime ally headed to Kidai region in Northeast Mali, just outside intadjedite, and not far off from his birthplace, at Tin-Essako. His vision-to establish the Tuareg country of Azawad-would outlive him as he fell under a staged accident, in late August 2011, two months before Gadhafi’s assassination.
Bahanga’s death deep in the Malian Sahara Desert in a suspicious car accident few hours before a crucial meeting of Tuareg rebel leaders was the first in a series of major setbacks that were to follow. Few weeks later the Malian Sahel was hit with the worst drought in 27 years taking away attention and crucial war resources-misfortunes were piling. The historically articulate but politically naïve deputy Bilal Cherif took over after Bahanga’s death to continue the quest of MNLA rebel group for an independent Azawad state for Tuaregs.
While Bahanga and Cherif pursued a secular ethno-nationalist ambition, Al-Qaeda in the Islamic Maghreb AQIM arrived too, with their desert Land cruisers, and awash with guns. There’s was a fundamentalist plan to set up the long desired caliphate that would ideally span the Sahara from Senegal in the West to Sudan in the East and Yemen across the Red Sea. Local Islamic group Ansar Dine awaited the AQIM and together they’d launch a joint war against Malian Army in the north. The 3-way battle lines soon concretized as secular Tuareg nationalists battled with farming bantu southerners in Mali, as well as AQIM’s Islamic militias from the edges of the Sahara.
On January 17th 2012 three months after the death of Bahanga, MNLA launched their first offensive for the liberation of Azawad. The ill-equipped Malian army found itself fighting rebels with competing visions of a liberated desert north; with secular Tuaregs on one front and the Islamic jihadist on the other-causalities mounted. In the south, the Bambara, an ethnic subtribe of the dominant Mande tribe, who made up some of the highest causalities in the Malian military poured out into the streets of Bamako, angered by the images of dead soldiers coming from the Malian insurgency war in the north.
By the time the US state department spokesperson Nuland called the press on 22 March 2012, to voice support for Malian regime under president Amodue Toumani Toure, the military Captain Sanogo had taken over and the president fled the country. As the cool of the afternoon beat off the scorching Malian desert afternoon sun the secular MNLA convoy rode into the Malian city of Gao in pickup trucks, while the Islamic AQIM drove into the town of Timbuktu to the specter of pensive residents. The remaining Malian forward operating bases (FOB) collapsed as Malian Army fled south abandoning stash of cash, weapons, and military infrastructure reminiscent to what had happened to Gadhafi 6 months earlier.
The MNLA Tuareg under Colonel Meshkenani Bela led the conquest into northern Mali and takeover of Gao, but overlooked a critical fact that would haunt them afterwards. They were a minority tribe on the Niger river bend where they were outnumbered by local tribes like the Songhay and the Fulani who were anything but impressed by their takeover. While the Tuareg MNLA entered Gao city through the west, the Islamic Militant Movement for Oneness and Jihad MOJAO which had broken off from AQIM entered through the east and laid claim to sections of Gao-the powdered keg now just needed a fuse.
By March 30th 2012, it soon became clear that Tuareg’s MNLA had neither the capacity nor experience to govern politically and the Islamic MOJAO-buoyed by their merge with terror leader Mokhtar Belmokhtar’s Al Mulathameen-pounced upon the chance to run and stake claim to Gao.
The former Malian army leader turned Tuareg rebel commander Colonel Al Salat Habi, who oversaw the city of Gao on behalf of MNLA had only one option-to negotiate with Al Qaeda, an enemy he’d fought both as an army man in Aguelhoc town and now as a tribal Tuareg commander at Gao.
By April 2012 Northern Mali fell, regional powers panicked, drug smuggling routes tanked and rerouted to Tanzania and Kenya and hostage taking replaced the collapsing drug trade, and raked in upwards of $250 million for groups like MOJAO.
Meanwhile in April 6th 2012 the MNLA under the leadership of Bilal Cherif declared the independence of the state of Azawad. For decades the Malian state had become complacent, even accommodating of the Al Qaeda as a counterforce to the threat of a Tuareg civil war.
Osama Bin Laden’s geographical curiosity of the African Sahel during his time in Sudan, and the desire for a remote desert caliphate had paid off as AQIM ruled the historically and strategically important city of Timbuktu. They imposed a local Muslim Tuareg, Tohar, as their commander. Al Qaida-IM made up in cultural literacy and political tact what they lacked in cash resources.
They partnered with Ansar Dine, used the Tuareg tribesmen in police and civilian roles to smoothen their interaction with local Tuareg populations. But what they achieved through the social and ethnic blend of Ansar Dine, AQIM, through its radical scholars like Abu Al Baraa undid and inspired global rage by introducing public floggings, beheadings, and tearing down of 14th and 15th century historical shrines and structures. The world had to act, and act fast.
It is a testament to the Tuareg’s geo-political illiteracy that their most contested lands is in Northern Mali which is the least mineral endowment of all their lands, smaller in size relative to the adjacent countries and one in which they are demographically outnumbered.
As the situation deteriorated in Northern Mali, the situation is worse in central Mali. There, ethnic Bambara and Dogon tribes organized murderously efficient armed militias, known as Dozo hunters which culminated in Ogossagou massacre that saw 170 Fulani men, women and children murdered.
Across the border in Niger, Bedouin and Tuareg’s Movement for National Justice (MNJ) was already fomenting a rebellion against the massive billion-dollar French uranium mining facility-Areva. It’s a testament to the extreme marginalization that the region remained wretched poor and desolate despite supplying 5% of the world’s high-grade uranium.
In June 2012, Azawad in northern Mali soon fell into the hands of Al Qaeda-IM and Ansar Dine, who didn’t waste time in advancing south to the Malian town of Konna and massacred a Malian army regiment in what came to be known as ‘’The Battle of Konna’’. The world’s patience ran out. France sent its tanks rolling north and east of Mali as NATO jets bombarded their strongholds. The Al Qaeda’s last message while atop grey desert Landcruisers was a promise of retreating into the desert but they’ll soon be back to exert Allah’s vengeance on the infidels.
In the last 8 years since, the Tuareg rebels, local armies, and Islamic radicals have since split into hundreds of highly mobile militias that launch attacks on the border between Mali, Niger, Chad, Algeria, Mauritania, northern Nigeria, and Burkina Faso.
In 2008 Mohammed Yusuf, a 38-year-old Salafi preacher in Maiduguri town, northeast of Nigeria and close to the Lake Chad, fed up by the excesses of the southern Nigerian elites, drew crowds towards the promise of caliphate that will redistribute the oil and mining revenues. Yusuf was an admirer and avowed devotee of 14th century Salafist Muslim cleric Ibn Tammiyah. In mid-2009 his followers Jama’atu Ahlis Sunna Lidda’awati wal-Jihad famously known as Boko Haram clashed with the Army at a custom checkpoint close to Gamboru area in Maiduguri, Nigeria. He was hunted from his in-law’s house, detained then later on mutilated and his body dumped by the road.
The viral video of his cuffed and badly executed body unleashed a reign of terror and retaliations by his loyalists. His deputy Abubakar Shekau took over and wasted no time in reconnecting with Ansar Dine and Al Qaeda in the Maghreb across the border, and over the next 4 years extended an olive branch to radicals as far as Al Shabaab in Somalia.
In 2013 Boko Haram attacked and killed a Nigerian cop in the Northeast town of Baga followed by a major attack at Bama, and the incensed Nigerian army responded in kind by mowing down dozens, torched houses and left behind estimated 180 corpses and countless who drowned in the nearby lake Chad while trying to flee the carnage.
Lake Chad lies further west of Niger, just north of the Chadian Capital N’djamena and borders Cameron, Nigeria and Niger itself. The 1350sq kilometer lake is the largest water body in the Sahel and one of the last buffers against the ravages of the southward expanding Sahara desert. Between 1978 and 1995 the lake shrank 95% unleashing a humanitarian, ecological, and climatic disaster only comparable to the globally catastrophic drying up of the Aral Sea in the Soviet Union and its direct impact on nearly 100 million lives.
The climatic disaster has been accompanied by civic, geographical and colonial disasters such as the demarcations that cut off the villages from Baga, the regionally largest and closest trading post in Northeast Nigeria. The Chadian regime inadvisably moved the state’s regional offices from the lake’s largest island to the city of Bol on the shores among the Islamic Kanembou tribe and away from the fishing Bougourmi tribe-the two tribes historically don’t get along.
In his heydays Muammar Gadhafi had sponsored numerous plans to topple the CIA-backed former Chadian president Hissène Habré which culminated in the 1986/7 disastrous Toyota Wars in which the two forces fought fiercely atop Toyota Hiluxes supplied by France and the US. The post 1990 Idris Deby’s regime hasn’t done a better job of strengthening institutions and rebuilding the country. He’s committing a mistake that his former northern neighbor Gadhafi had done years earlier and it had costed him his life. Outside of the capital N’Djamena, the only other semblance of civilization is the world’s scenic 18 strips Ounianga lakes in the north and the 3rd largest city of Abeche in the east.
In 1980 Chad ended up in a long running civil war, and Gadhafi in his signature style provided arms, political sanction and logistical support to the Arab Nomads rebels hiding in Eastern Libya. The Sudanese government, well aware of the repercussions of the Chadian civil war pouring across its borders, armed the Arabic-speaking Abbala nomads as a buffer in that long running insurrection. The two groups later merged to form the infamous Janjaweed. Soon enough they drifted away from Gadhafi and provided existential utility to the Khartoum government as they battled with the Christian south.
The Janjaweed in turn lost Gadhafi’s outright support as they increasingly became Khartoum’s weapon of war and supplementary military flank against southern tribes like the Fur, Masalit, and Zaghawa peoples. Gadhafi didn’t mind though as he had backed Sudanese strongman Sadiq Al Mahdi to assume power in Sudan in 1986 until 1989 when Omar Al Bashir took over.
In mid-August 2011 Sudanese spy chief Mohammed Atta and former president Al Bashir-who was under an international arrest warrant-left for Tripoli and met Gadhafi ostensibly to discuss ‘the means to restore peace in Darfur. 10 months later the same Khartoum would supply anti-Gadhafi rebels in the east with arms and logistical supply rerouted through southwest Egypt.
With Gadhafi gone, the arm stockpiles, battle-hardened desert tribes and latent ethnic rivalries that he had long suppressed have erupted, producing hundreds of small conflicts which were simmering for decades.
My ‘worst mistake’ is what Obama called his toppling of Gadhafi in Libya during his mid-April 2016 interview aired on Fox News. Gadhafi, for all his flaws had outfoxed many adversaries and used his Bedouin credibility and mastery of the desert power politics to navigate complex regional, political, historical and religious interests in the Sahel and just like in Libya he had ensured they were all built around his fist, flair or charisma.
His rule had been marred by the Palestinian cause, the 1986 Berlin discotheque bombing, the 1988 Lorkerbie Plane Crash, the 1989 blowing up of the French UTA airliner over Niger, the 1987 alleged coup plot in Kenya, in a never-ending list of proven and purported mischief. What’s not in doubt is that his 42 years reign had an oversized impact on the local, and regional power equilibriums.
Therefore, his ouster and death in that culvert in Sirte city in October 2011 was inevitably going to create a Sahelian vacuum that set off chain reactions from eastern Senegal through a dozen countries all the way east and south of Sahara. The ensuing chaos was inevitable,. There was just no two ways about it. Former US Defense Secretary in one of his last interviews before leaving office estimated it’ll take about 30 years to quell the militant extremism unleashed post-9/11.
So the current coup in Mali, the rise of AQIM, and AQAP, and forging links with Al Shabaab, Janjaweed, Tuareg insurrection, Ansar Dine, Boko Haram and dozens of embedded militia groups are a legacy to an explosive powder keg for which Gadhafi’s death was simply the perfect fuse.
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Why the LSK Choice of Female Representative to the JSC Is Crucial
To promote the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice, the JSC needs members of impeccable character.
Since the promulgation of the Constitution of Kenya in August 2010, the Judicial Service Commission (JSC) is one of the Constitutional Commissions which has gone through what was described by scientist Thomas Kuhn as a “paradigm shift” in his book, The Structure of Scientific Revolutions. A paradigm shift was described in scientific terms as a way in which there occurs, or needs to occur, a fundamental change in how to describe a scientific development of basic concepts and practices that had previously guided that science.
Assuming exercise of judicial power is a science (even if social), and reflecting on where Kenya was during the tenure of the previous JSC that reigned before the fundamental changes that have taken place under the 2010 Constitution, Kenya has fundamentally transformed that institution.
The single most significant difference is that whereas in both the repealed constitution and the current one the JSC is a constitutional commission, the composition and number of members are radically different, giving the current commission 11 members with some independence of thought and decision-making unlike the previous 5-member JSC.
The five members of the previous JSC were direct appointees of the president. They included the Chief Justice, the Attorney General, two judges appointed from amongst the puisne judges and finally the chair of the Public Service Commission. The requirement today that judicial officers elect their own JSC with a broad-based representation of various interests within the legal profession contrasts with the previous JSC which only represented the interests of the appointing authority. The President.
Therefore, whereas the previous JSC was filled with presidential appointees whose appointment was not even approved by the National Assembly, today all but six of the JSC members are officially nominated by the president but may or may not be approved by the National Assembly. This gives the National Assembly veto powers to approve or disprove that membership.
Chaired by the Chief Justice, the JSC includes a judge representing the Supreme Court; a judge elected by members of the Court of Appeal; a judge elected by judges of the High Court; a Chief Magistrate representing the Magistracy; and finally, two members (one man and one woman) representing the Law Society of Kenya (LSK).
The other members are more or less appointed with the tacit approval of the National Assembly. That is, if the president has sway over the National Assembly membership, as the current President has, through what in The Elephant has been described as the “Tyranny of Parliament by the Jubilee Party”, then the nominees have been appointed tacitly by the president in the knowledge that members of the National Assembly will raise no objections.
These other members of the JSC include the Attorney General, a member nominated by the Public Service Commission, and two members (one man, one woman) to represent the members of the public. Finally, the Chief Registrar of the Judiciary makes up the 11th member and is the Secretary to the JSC. The latter has no voting rights in decision-making.
In the current political context of the Building Bridges Initiative (BBI) debates, there are radical proposals around the JSC. Some of these include introducing an Office of the Ombudsperson, whose occupant will sit in the JSC. This has caused a political and judicial furore, particularly because it is proposed that the Ombudsperson will be appointed directly by the president.
In social and political spaces, some have opined that the Ombudsperson will be the president’s “watchman” in the JSC. It is no wonder then that there has been overt and covert resistance from the LSK, the JSC and the entire Judiciary. Kenyans have been here before and it is obvious that they do not want a return to the past.
Furthermore, the BBI intends that the two judges and one magistrate who are elected by their peers serve for a fixed term of five years. The constitution bestows the powers of nomination and election of these members on judicial officers, not on itself. Yet the BBI proposals tend to crystalise that power on the constitution. Thus, it has been argued that this is total interference with and an erosion of the independent choice of the electorate (judicial officers in this case) to hold their representatives to account.
Moreover, it is perceived as an attempt by the Executive to interfere with the Judiciary, with many recalling the president’s warning following the nullification of the August 2017 presidential poll that “we shall revisit” the judiciary. On his way out, Uhuru Kenyatta seemingly intends to make good his threat — let us also not forget that David Maraga departed office on a controversial note.
The former Chief Justice, David Maraga, ended his term by recommending that the president dissolve parliament for not conforming to Article 27 of the constitution — which provides that “The State shall take legislative and other measures to implement the principle that not more than two thirds of the members of elective or appointive bodies shall be of the same gender” — which did not go down well with members of his inner circle, and hence perhaps the need to “tame” the Judiciary.
Therefore, in the current debate pitting the Executive against the Judiciary through the BBI process, it is incumbent upon the JSC to stand tall and protect itself. It requires members of impeccable integrity, character, tone, gravitas and bravado to face present and future challenges.
This commentary delves specifically into the role of the JSC as provided in Article 172 of the Constitution, which is to promote and facilitate the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice.
Given that the Office of the Chief Justice is still vacant, it points out to the nuances that may emerge in the recruitment process, and why the role of each member is important, including that of the future female representative of the LSK to the JSC.
The JSC needs members with impeccable integrity, character, tone, gravitas and bravado to face present and future challenges.
This is so because currently there are only nine members, split between those who may be considered fully independent, who are five, and those representing the Executive, who are four. However, with the departure of the female representative, the “independents” go down to four: Mohammed Warsame, David Majanja, Evalyne Olwande (who represents the Judiciary) and Macharia Njeru (who represents the LSK).
It is my view that, as Philomena Mwilu is the acting Chief Justice, her legal and social history, her pending criminal cases and of course her controversial “acting capacity” as the Chief Justice, render her susceptible to the influence of “other forces” other than those she should ideally represent — her peers in the Supreme Court — when deciding who will be Kenya’s next Chief Justice. In case of a 4-4 tie, she may be called upon to be the tie-breaker. This is an important decision to make.
Electing the LSK Female Representative
As alluded to above, two members are elected directly by the membership of the Roll of Advocates (that the LSK scrutinises through an Elections’ Board) and they are formally appointed by the president through a Gazette Notice. In May 2019, Macharia Njeru — formerly the Chairperson of the Independent Policing Oversight Authority (IPOA) — won the Male Representative seat by trouncing the then incumbent Tom Ojienda. Today, Macharia represents the LSK in the JSC.
The first five-year term of the Female Representative of the LSK, Mercy Deche, came to an end on 24 March 2021 and although she is eligible for a second five-year term, she will be stepping down. In her view, Deche has served her term and is satisfied with her performance; she therefore wants to be succeeded.
However, since institutions are led by people, they reflect the personal convictions and commitments of those within them. The current JSC has been led by former Chief Justices Willy Mutunga and David Maraga, with the latter exiting the scene only recently in January 2021. The JSC advertised its search for the third Chief Justice following the “paradigm shift” in the appointment of members of the JSC referred to above.
This article aims to point out issues as they appear, issues that should be dealt with, and issues that should make advocates line up to vote in large numbers for whoever their choice will be. It is an election that advocates cannot afford to ignore, particularly in view of the ongoing BBI debates previously referred to.
Politics at the LSK
The LSK is in crisis — with some members seeking to remove the current president, Nelson Havi while others support him. Already a meeting to remove Havi had been called for the 27th March 2021.
With regard to the Female Representative position, the advertisement was made on 18 December 2020 by beleaguered Chief Executive Officer Mercy Wambua, who is not on good terms with Havi. The deadline for the submission of interest in the position was 18 January 2021. However, since then, the LSK has been suffering a severe crisis of leadership — both at the level of the Secretariat and at the Council which is led by Havi.
It is therefore inconceivable that the LSK will be a composite body with a leadership capable of successfully steering the election processes.
It is an election that advocates cannot afford to ignore, particularly in view of the ongoing BBI debates.
Unless something is done by the whole Council working together in harmony, with unity of purpose, and demonstrating ethical leadership, the upcoming elections are bound to be perhaps the most controversial in LSK’s history since the promulgation of the 2010 Constitution.
As stated, unlike the former Male Representative, Tom Ojienda, who sought a second term in accordance with the JSC Act, Mercy Deche is not seeking re-election. That election was very competitive since the difference between Ojienda and Njeru was not more than 300 votes. With Deche not in the race, the power of the incumbency is non-existent unlike during the Ojienda poll, which was a huge challenge.
With a divided Council, a seemingly authoritarian president who is accused of not consulting by some members of the Council, and a CEO faced with a dictatorial president, and court cases flying left and right, LSK is in troubled waters.
Changes in the Judicial Service Commission
As changes are happening to the LSK and the Judiciary, the JSC is also facing imminent changes. The biggest change has been the retirement of the former Chief Justice Maraga and the search for his replacement.
Since Maraga retired, media and other pundits, including lawyers, have been very vocal about the eligibility of the “acting Chief Justice”, Philomena Mwilu, to be given such a role considering the various criminal matters facing her in court. Indeed, a petition was also filed by Okiya Omtatah seeking a constitutional interpretation regarding this transition, and her eligibility and/or the legality of her position as “acting Chief Justice”.
Moreover, even within the JSC itself, similar questions have been raised both by the Commissioners and in the Secretariat, not to mention the murmurs at the top echelons of the Judiciary. Therefore, as the Commissioners seek to recruit the next Chief Justice, the politics of the institution will be laid bare.
The JSC will most likely be split in their opinion based on how they join(ed) the JSC. As mentioned above, only the Chief Justice is appointed through a public process and the nominee is sent to the president for formal appointment. The president’s “direct nominees” are four compared to the four who may be called “independent”. This is because, currently, the seat of the Female Representative of the LSK fell vacant on 24 March 2021. The Acting Chief justice is likely to lean towards the former group of “conservatives” as I shall demonstrate.
Therefore, as campaigns for the position of the LSK’s Female Representative begin in earnest, all the eight candidates for this position and the voting advocates will need to bear in mind what is going on in the JSC, as that is the institution they seek to join together with the new Chief Justice who will be the chairperson of the JSC.
The Campaign environment
In addition to the foregoing, there are other issues that shaped the campaign agenda in the period between the submission of papers on January 18, and the election on March 24, 2021. Already, we observed stay orders emerging from the courts stopping the LSK’s Elections Board from proceeding with the shortlisting and processes of preparing for the election of the LSK Female Representative.
Campaigning in the midst of the COVID-19 pandemic
There is no doubt that COVID-19 has altered our social, economic and political landscape. This elections taking place in an environment which is largely restricted through: limiting the number of gatherings; observing physical and social distancing even if the campaign is done in public halls; and no campaigns outside curfew hours, among other COVID-19 protocols that must be respected.
In this context, violation of the protocols could cost a candidate the seat. This could happen since the media will be watching, as will advocates. If candidates cannot observe the law, then their reputations are at serious risk.
Second, candidates who are tech-savvy will have an advantage, since campaigns will be done on new media, using Facebook, Twitter, Zoom meetings, and other such platforms. Those that will attract the biggest number of followers are likely to tip the balance of this campaign.
Finally, any candidate who wishes to win this election should of necessity be seen to be supporting the government, especially the Ministry of Health. This is not because one should support blindly, but in order to create linkages with the Ministry to support efforts to have Kenyans respect COVID-19 protocols and encourage them to get vaccinated. This could be as easy as linking one’s campaign sites with the relevant information from the Ministry, especially their daily updates.
Political knowledge and the IEBC
Running for political office requires knowledge of politicking, and the ability to debate issues without losing arguments. One should be consistent in messaging whether on social media or on traditional media such as pamphlets, television, radio, etc. Second, politics has neither permanent friends nor permanent enemies. It’s bare knuckles in political debates, but with respect when differences emerge.
Third, this is a political position, not a legal position and candidates need to learn this fast. In a period of less than eight weeks or so, things will turn hot, and it is not the best legal mind that will win the position, but the one with political guts.
Finally, the Independent Electoral and Boundaries Commission (IEBC) will oversee the elections. Knowledge of this institution will prove very vital for any candidate. The institution has a series of codes of conduct, protocols, regulations, and so on. Familiarity with the IEBC rules of procedure is essential for candidates.
The IEBC is an institution that has faced serious issues of integrity during every electoral cycle in Kenya. However, it has conducted itself professionally for other institutional elections such as that of the LSK. Candidates’ knowledge of past LSK elections and whether there were complaints concerning voting, counting, tallying, verification and announcement of the eventual winner is a valuable asset.
The typologies of voters
In his book, The Science of Election Campaigning, Afrifa Gitonga makes the argument that there are three types of voters in the world of politics. These typologies have been manifested variously in political competition and they include voters who are rational and who seek to question everything the candidate has done, if seeking re-election, or is committing to do for them for them by seeking office.
Second, sentimental voters are those attracted by sensual appeal and they will vote on that very basis. These voters are impressed by the looks, by the mannerisms and by the beauty of the candidate, and even by how they dress.
Thirdly, Afrifa talks of conformist voters who, unlike the two above, simply conform to how the tide is moving, by asking questions like “who are we voting for?” They go with the flow and do not make any rational or sentimental decision.
The advocates may or may not understand these concepts fully. Back in 2007 I wrote about the three typologies above and added two more: there are those who vote with the head (rational), those who vote with the heart (sentimental), and those who vote with the wind (conformist).
In addition, there are those who vote with the tongue (ethnicity of a candidate, which is very familiar in Kenya) and, finally, those who vote with the stomach (those whose decision is based on what they have “eaten” from the candidate). These typologies exist even amongst the advocates despite references to “learned friend” or “senior”.
Role of young lawyers
It is evident that there has been a debate between the long-serving “seniors” and the “juniors” — recently admitted advocates. The debate is basically about what young lawyers feel about the old and established advocates and the young lawyers’ role in the advancement of the legal profession in Kenya in the absence of equal and fair opportunities for progress. This debate has not ended, and it is not ending any time soon. It should be approached with caution and information on where this debate is headed could be a great piece of the puzzle in the elections.
There are those who vote with the tongue and those who vote with the stomach.
In my opinion, since each candidate has at least 15 years of practice as per the requirements, they belong to the “seniors” category. Those who have been practicing for less than 15 years have different perspectives about what these elections are about, unlike the “seniors” who know the difference between practicing law under the old legal framework of the repealed constitution and under the current decade-old constitution.
This was a hot issue during the May 2019 and is not to be ignored by any candidate as it could be a deciding factor in the forthcoming election.
Selling the agenda
Selling the agenda is the most important matter for consideration. It should document what the first five years, between 2021 and 2026, would involve. There are many problems mentioned in the policies — such as the BBI proposals — in the laws being proposed, the LSK leadership wrangles, the possible splits between the ”independents” and the “conservatives” in the JSC, etc. Prioritising what is to be tackled, and in which sequence, should not just be documented but should also be verbalised throughout the campaigns.
This should include appreciating, upholding and defending the advances made by the 2010 Constitution; providing a considered legal opinion about the BBI process; transforming the case management system to reduce the backlog of cases and ensure the speedy dispensation of justice; and, strengthening ethics and integrity by enforcing the codes of conduct, among others.
Eight candidates have been cleared to run for the position of Female Representative of the LSK to the JSC and they have formally submitted their nomination papers. The election board will vet these aspirants and determine who actually appears on the electoral ballot. Using the above typologies, lawyers are spoilt for choice, but this independent and objective assessment should help advocates select the best female candidate to represent the LSK at the JSC. Be on the lookout.
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 (126.96.36.199 – 188.8.131.52) 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.
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