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Kenya’s Elusive Digital Driving Licenses: Who Pays and Who Profits

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Leaked documents from Belgian biometrics company point to inflated pricing and political influence in license contracts.

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Kenya’s Elusive Digital Driving Licenses: Who Pays and Who Profits
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Boniface Gikunda struggled to pay his bills even more than usual under Kenya’s COVID-19 restrictions. Some days, the professional driver went without a single customer call from the three driving app services that dominate Nairobi: Uber, Taxify, and Little Cab.

But what weighed heaviest on his mind was a government mandate that required him to get a new driving license by July 1. The digital license costs 3,000 Kenyan shillings (around US$30), double the previous fee and, according to this investigation, potentially double the cost of production.

“Three thousand shillings for a Kenyan like me?” Gikunda asked rhetorically. “It’s just ridiculous for a normal driver.”

He estimates that in ordinary times, after covering the fees he pays to the driving apps and the car’s owner, plus expenses like fuel and parking, he takes home roughly KSh 500 to 800 a day. The cost of the new license could cover a week of food for him, his wife, and their son, who live in a small one-bedroom home on the outskirts of Nairobi. In his native Meru County, near Mount Kenya, the fee could cover three months of rent.

“We survive by the grace of God,” Gikunda told reporters.

To afford the license, he said he is considering borrowing money from Kenya Commercial Bank (KCB), despite its personal loan interest rate of 13 percent. “At that point,” he said, “you’re desperate.”

A draft agreement between Semlex and the government includes a requirement to make conversion to digital driving licenses mandatory. Credit: OCCRP

A draft agreement between Semlex and the government includes a requirement to make conversion to digital driving licenses mandatory. Credit: OCCRP

Gikunda didn’t know that part of the money for his license fee is also likely going to KCB. Last year, the bank bought the National Bank of Kenya (NBK), which unexpectedly won the latest government tender to produce digital driving licenses.

The Kenyan government has been attempting to roll out the new licence for over a decade. A similar tender was previously awarded to Semlex Group, a Belgian biometric solutions firm, in 2008. That contract fell apart due to political wrangling.

Semlex Group’s central office in Brussels’ wealthy Uccle district. Credit: OCCRP

Semlex Group’s central office in Brussels’ wealthy Uccle district. Credit: OCCRP

A trove of leaked Semlex emails and documents analysed by Africa Uncensored, The Elephant, and OCCRP shed light on the politicised procurement process behind the digital driving license tender. The documents reveal how the individuals involved in the contract planned to personally make millions of dollars — including Semlex CEO Albert Karaziwan, his Kenyan broker Mujtaba Jaffer, and unidentified consultants — at the expense of ordinary Kenyans. Moreover, internal deliberations regarding production costs and profits indicate the price of the current digital driving license may be significantly inflated.

Reporters did not find evidence of illegal activity.

The Brokers

Semlex Group was no stranger to Africa when it set its sights on Kenya.

Semlex’s partners managed to get a two-week extension from the Ministry of Transport, giving the company time to apply. “Just shows how personal contact can make this happen,” wrote an employee of Datacard, a U.S.-company now called Entrust Datacard. A spokesperson for the company told OCCRP that the individual involved is no longer with the company, which “strives to act with integrity in everything we do.” Credit: OCCRP

Semlex’s partners managed to get a two-week extension from the Ministry of Transport, giving the company time to apply. “Just shows how personal contact can make this happen,” wrote an employee of Datacard, a U.S.-company now called Entrust Datacard. A spokesperson for the company told OCCRP that the individual involved is no longer with the company, which “strives to act with integrity in everything we do.” Credit: OCCRP

The Belgium-based company had already won tenders to provide biometric products in the Comoros Islands, Guinea-Bissau and Madagascar, by making friends in high places. So, when it came to bidding for the contract to produce Kenya’s new digital driving licenses in 2008, Semlex CEO Albert Karaziwan made sure he had his local brokers in place from the start.

Semlex and local partner CompuLynx were issued a letter of intent by the Ministry of Transport in December 2008. “Successful news today! We were ranked ahead in the technical valuation categories and came in lower on cost,” M'Mbijjewe wrote in an email to the partners a day before MOT issued the official letter. “A good way to begin Christmas,” she added. Credit: OCCRP

Semlex and local partner CompuLynx were issued a letter of intent by the Ministry of Transport in December 2008. “Successful news today! We were ranked ahead in the technical valuation categories and came in lower on cost,” M’Mbijjewe wrote in an email to the partners a day before MOT issued the official letter. “A good way to begin Christmas,” she added.
Credit: OCCRP

One of them was Sheila M’Mbijjewe, then a Central Bank of Kenya committee official and now the state bank’s deputy governor. At the same time she was also a director in two obscure Kenyan companies owned by the powerful Mombasa-based tycoon, Mohamed Jaffer, and his son Mujtaba Jaffer.

M’Mbijjewe was an effective fixer and coordinator, who appeared to work through unnamed connections in the Ministry of Transport to ensure that the ministry’s driving license tender was awarded to Semlex. Then Mujtaba Jaffer took a leading role as the broker between Kenyan officials and the Belgian company, emails indicate.

In addition to M’Mbijjewe, other Kenyan brokers involved in the tender were also directors in the Jaffers’ nominee companies, Computer Source Point Ltd. and Infocard Africa Ltd:

  • Brown Ondego, who was previously the head of Kenya Ports Authority and at the time executive chairman of the controversial Rift Valley Railways consortium. He is listed as a director of two other Jaffer companies, Grain Bulk Handlers Limited and African Gas and Oil Ltd.
  • Kung’u Gatabaki, a corporate director who appears on the board of over a dozen companies owned by the late politician Njenga Karume. Soon after the Semlex tender he became chairman of the powerful Capital Markets Authority. Gatabaki is still listed as marketing director at Grain Bulk Handlers Limited, though he told reporters he is retired and keeping a low profile.
  • Sailesh Savani, the CEO of CompuLynx, Semlex’s technical partner on the tender. Savani was also on the board of the supermarket chain Nakumatt as well as the Kenya Bureau of Standards technical committee.

M’Mbijjewe, Ondego, Gatabaki and Savani did not respond to multiple requests for comment. Mujtaba Jaffer said Computer Source Point and Infocard Africa are no longer active.

Njenga Karume’s book details how he built his business empire while serving in public office. The businesses span the hospitality, real estate, land, and agriculture industries and, at the time of his death in 2012, were worth hundreds of millions of dollars. The former minister and member of parliament was part of the inner circle of every Kenyan president since the country’s independence. Credit: OCCRP

Njenga Karume’s book details how he built his business empire while serving in public office. The businesses span the hospitality, real estate, land, and agriculture industries and, at the time of his death in 2012, were worth hundreds of millions of dollars. The former minister and member of parliament was part of the inner circle of every Kenyan president since the country’s independence. Credit: OCCRP

In one email, Jaffer  — who regularly referred to the Semlex CEO as “brother” — referenced a late-night meeting with the Minister of Transport. In another, he gave Njenga Karume, one of Kenya’s longest-serving and most influential former MPs, his “blessing” to make decisions on his behalf about the contract.

Jaffer told Africa Uncensored that the powerful politician was “an acquaintance of the family,” and denied any improper influence in the procurement process.

“I cannot recall every meeting as some time has elapsed since these events but I can confirm that any meeting with state officials would have centred around technical consultations,” he wrote in an email.

All of the communications between the Kenyan brokers and the Belgian firm went through Grain Bulk Handlers Limited, the Jaffers’ flagship company known for its decades-long monopoly over Kenya’s bulk grain imports, allegedly with the assistance of friendly politicians. Another family company, African Gas and Oil Ltd. (AGOL), reportedly handles and stores three-quarters of the country’s Light Petroleum Gas imports.

Jaffer said the media’s characterization of his family as political financiers who benefit from lucrative government contracts in return is unfair. “We have not openly come out backing any political party or candidate. On the contrary our business concerns have been vital to the Kenyan economy and the ordinary mwananchi [citizen],” he wrote in an email.

Diplomat East Africa magazine ran a special report on Grain Bulk Handlers Ltd. celebrating the company’s 10th anniversary in 2010. The issue included a transcript of a speech by Mohamed Jaffer made at “a glittering event” reportedly attended by then-Prime Minister Raila Odinga, cabinet ministers, members of parliament, and industry leaders. In the opening of his speech, Jaffer singled out two guests by name: Odinga and “my dear friend the Hon. Njenga Karume.” Credit: Diplomat East Africa

Diplomat East Africa magazine ran a special report on Grain Bulk Handlers Ltd. celebrating the company’s 10th anniversary in 2010. The issue included a transcript of a speech by Mohamed Jaffer made at “a glittering event” reportedly attended by then-Prime Minister Raila Odinga, cabinet ministers, members of parliament, and industry leaders. In the opening of his speech, Jaffer singled out two guests by name: Odinga and “my dear friend the Hon. Njenga Karume.”
Credit: Diplomat East Africa

With Grain Bulk’s guidance, Semlex CEO Albert Karaziwan sent letters to Kenyan officials complaining of delays. Credit: OCCRP

With Grain Bulk’s guidance, Semlex CEO Albert Karaziwan sent letters to Kenyan officials complaining of delays.
Credit: OCCRP

When the Semlex driving license contract was derailed by an apparent rivalry between officials at the Ministry of Transport and the Ministry of Finance, it was Jaffer’s company that drafted a letter to then Prime Minister, Raila Odinga, for Semlex to send. At the time, the Finance Ministry, which refused to co-sign the contract, was headed by Odinga’s main political rival, the current President Uhuru Kenyatta.

This time, Semlex’s political connections weren’t enough. Internal documents show numerous attempts to force the Finance Ministry to add their signature to the contract, to no avail.

Semlex’s contract fell apart when the Ministry of Finance refused to sign

Semlex’s contract fell apart when the Ministry of Finance refused to sign


Media stories cited a mysterious dispute between the ministries of Transport and Finance. A 2010 article in Daily Nation framed the conflict as a struggle over which agency would run the lucrative contract. Credit: OCCRP

Media stories cited a mysterious dispute between the ministries of Transport and Finance. A 2010 article in Daily Nation framed the conflict as a struggle over which agency would run the lucrative contract. Credit: OCCRP

The Semlex consortium sued the Ministry of Transport for breach of contract in 2012, but the government argued that the contract was never finalised.

That year, the responsibility for issuing driving licenses was handed over to the newly-formed National Transport and Safety Authority. Kenyatta was elected president in 2013, and the tender was relisted through NTSA the following year.

The Breakdown

Leaked internal documents reveal the gap between what the biometrics company and its brokers expected to earn, well above the KSh 2.8 billion ($35 million) awarded by the government.

Documents show the company expected to produce 2.5 to 3 million digital driving licenses over five years, at a 15 percent profit. This means the cost of production for each driving license, profits included, would amount to $11-14 — less than half the fee being charged to drivers like Gikunda today.

Screenshot of an internal Semlex document in preparation for the bid. Credit: OCCRP

Screenshot of an internal Semlex document in preparation for the bid.
Credit: OCCRP

Despite this breakdown, a draft agreement between Semlex and the Ministry of Transport states the company actually expected to collect $20 for each card. With 2.5 to 3 million licenses issued, Semlex would have collected $50-60 million.

The same agreement states that Semlex would reimburse the government anything above $20 per card. With today’s licence fee — the Ministry of Transport would have collected $25-30 million from the arrangement.

But an internal profit-sharing agreement drafted in January 2009 revealed even higher expectations. It stated that the “actual costs” of the project would not exceed $17 million, and earmarked an additional $4.4 million for unnamed “consultants.” According to the agreement, Semlex CEO Karaziwan and Grain Bulk CEO Jaffer would split the remaining profit which, from the government award alone, would amount to $6.8 million each. The agreement stipulated that they would also split “any additional bonuses.”

A draft profit-sharing agreement indicated that “actual costs” would be kept to $17 million. Credit: OCCRP

A draft profit-sharing agreement indicated that “actual costs” would be kept to $17 million. Credit: OCCRP

The unexplained consultant fee is so substantial that a transparency expert who reviewed the terms of the deal, but requested not to be named, said it could have “no conceivable” legitimate justification.

Semlex did not respond to requests for comment, and Jaffer denied that the payment was allocated for kickbacks. He declined to provide an explanation, however, saying he was “bound by confidentiality not to discuss certain matters.”

A draft profit-sharing agreement listed $4.4 million to be paid to unidentified consultants upon demand. Credit: OCCRP

A draft profit-sharing agreement listed $4.4 million to be paid to unidentified consultants upon demand. Credit: OCCRP

“Companies like Semlex that have been implicated in corruption around Africa work in deniable ways, through consultancy fees that cannot be explained and the like,” said Alvin Mosioma, head of Tax Justice Network Africa.

“The narrative of corruption reduces actions to individuals but the reality is that the entire government policy machinery has been captured by corrupt elites in collusion with private entities who see the public purse as the most lucrative avenue to loot and plunder. In Kenya, the network of corruptivity revolves around these ‘tenderprenuers’,” Mosioma added.

The New Players

The selection of the National Bank of Kenya as the winner of the NTSA’s re-listed digital driving licence tender in 2015 was unexpected, especially when its competitors included international biometric giants.

Even before the NTSA announced the winner, the bank’s selection as a finalist was challenged on the basis that it was both the bidder and its own financial guarantor, in potential violation of Kenya’s procurement regulations. The Commercial Bank of Africa — co-owned by President Kenyatta and his family — stepped in to guarantee the NBK bid and secure its contract.

Image of a court document identifying the tender finalists’ scores. Credit: OCCRP

Image of a court document identifying the tender finalists’ scores. Credit: OCCRP

There were questions about the bank’s qualifications to produce biometric documents, as well as its reputation. NBK was infamous for using taxpayer money to make up for unpaid loans handed out under shady circumstances. Regulators also cited the bank’s board members and senior managers for allegedly misrepresenting financial statements and embezzling funds.

NBK’s technical partner — a little-known startup called Pesa Print Ltd. — also had no experience in producing biometric documents. The company was started by two obscure Kenyan firms: EyeSeeYou Communications and Kenya Twelve Ventures.

Two individuals who appeared on EyeSeeYou registration documents had also worked for Njenga Karume, the late politician who appeared in the Semlex deal. According to the founders, EyeSeeYou and Pesa Print parted ways around the time of the driving license contract was won. The owner of both Kenya Twelve Ventures and Pesa Print, David Njane Ruiyi, said the contract was won competitively.

The finalists that NBK had beat out included the previous winner Semlex, French biometrics company Gemalto S.A., and the established Kenyan ICT provider Symphony Technologies, which lost to NBK by less than one percent.

Njane, Pesa Print’s co-owner, told Africa Uncensored that NBK’s qualifications came from the entire consortium, which included two European companies with technical expertise: X Infotech, headquartered in Latvia, and Austria Card, based in Vienna. Both companies cited Pesa Print as the primary contractor in the consortium.

Presa Print’s current office in Nairobi today. Credit: John-Allan Namu

Pesa Print’s current office in Nairobi today. Credit: John-Allan Namu

When NBK’s competitor, Symphony Technologies, launched a legal complaint against the government’s selection of the winner in the driving license tender, Pesa Print paid the company KSh104.5 million (about $1 million) to drop the challenge.

According to court documents, Pesa Print borrowed part of that money from companies reportedly owned by Meru County Senator Franklin Linturi. The senator reportedly borrowed the money from a bank patronized by his girlfriend, Marianne Kitany, who at the time was chief of staff to Deputy President William Ruto.

Pesa Print, the court documents said, was due to repay the loan within 48 hours of NBK receiving the first tender payment from the government. But things got messy and ended up in arbitration, where the documents were produced describing the payoff arrangement.

Symphony ceded the contentious contract to NBK. “We agreed to drop the case as a settlement was agreed and for public good (to avoid vendor issues that cause many government project delays and lengthy court processes),” Symphony told reporters in an emailed statement.

Pesa Print confirmed the payment, and said the financial arrangement with Linturi was purely transactional. The senator could not be reached for comment.

KCB Group featured Pesa Print and its COO Mark Maina in a May 2020 issue of The Venture magazine. According to the article, Pesa Print had set up a technology hub within the NTSA and was producing electronic driving license cards that “will eventually be used for payments, such as instant fines.” NBK was described as Pesa Print’s banking partner. Credit: KCB Group’s The Venture magazine

KCB Group featured Pesa Print and its COO Mark Maina in a May 2020 issue of The Venture magazine. According to the article, Pesa Print had set up a technology hub within the NTSA and was producing electronic driving license cards that “will eventually be used for payments, such as instant fines.” NBK was described as Pesa Print’s banking partner. Credit: KCB Group’s The Venture magazine

According to Njane, Pesa Print has already delivered the technology and base printed cards to the NTSA. However, one party in the consortium told reporters that card production had stalled even before government agencies shut down during COVID, and that the company was shopping around for new technical partners.

NBK did not respond to questions, but its parent company KCB Group told reporters in an emailed statement that “NBK, as the contracting party is executing its obligations and the covenants of the NTSA driving license contract as required.”

It’s unclear when the long, storied journey of Kenya’s digital driving license will be fulfilled. With the terms of the current KSh2.1 billion contract a secret, it’s also unclear exactly how much the government and the companies — as well as any politically connected brokers — stand to earn.

Meanwhile drivers like Gikunda will pay the price.

“I don’t know why the government had to come [up] with such a figure,” said Gikunda, lamenting the KSh 3000 cost of the digital license. “I don’t know what’s so special about the card.”

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Purity Mukami is a statistician, data journalist and a Finance Uncovered Fellow. Juliet Atellah is a data journalist based in Nairobi, Kenya. Kira Zalan is an investigative journalists with OCCRP. John-Allan Namu is an investigative journalist and the founder of Africa Uncensored, an investigative and in-depth journalism production house in Nairobi, Kenya.

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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In the Name of Jesus: How the Church Forced Tanzania to Change its Stance on COVID-19

Tanzania’s recent admission of the presence of COVID-19 in the country is thanks to the intervention of church leaders who have a history of intervening in matters of national importance.

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In the Name of Jesus: How the Church Forced Tanzania to Change its Stance on COVID-19
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By the time President John Magufuli went to the St. Peter’s Church on that sunny Sunday on 21 February 2021 he already knew that he had lost the debate on the coronavirus situation in Tanzania. The reality, as many anticipated, had proved him utterly wrong. The decision to attend the mass took place against the background of widespread calls from various religious leaders who, after witnessing the unprecedented number of deaths in their respective parishes, decided to defy the government’s rhetoric that Tanzania was coronavirus-free.

Church leaders felt obliged to tell their followers the truth authorities kept denying; that COVID-19 was in fact present in the country and that they needed to protect themselves against the disease. President Magufuli’s attendance at the mass followed hard on the heels of pushbacks against his COVID-19 approach, including from his own Catholic Church, something that made skeptics wonder if the devout Catholic would show up at the service. That he did led some observers see the decision as a tactical one, aimed at preventing a further shrinking of his authority –  and even relevance –  when it comes to the issue of COVID-19.

While at the church, President Magufuli, who had until then acted as he wished as far as COVID-19 was concerned, pointed out that he had nothing against people wearing facemasks, while also warning that not all facemasks are appropriate and that Tanzanians face the risk of being supplied with faulty facemasks if they are not careful. Magufuli claimed that there was “an economic war” going on and urged his people to wear only those facemasks that are approved by his ministry of health or made locally by Tanzanians themselves.

Of course, these claims are questionable. How, for example, did the government allow the importation of virus-infected facemasks? If those masks are already in the market, why haven’t the authorities launched a manhunt to confiscate the merchandise for destruction and bring those responsible to justice? Still, the president’s positive remarks about a disease he has spent a lot of his time downplaying were welcome. This is especially so considering the fact that his statement came barely a month after the Head of State admitted the presence of a new coronavirus variant in Tanzania, in a speech during which he also claimed that COVID-19 vaccines were inappropriate.

But while many are breathing a sigh of relief, it is important to point out that the government’s current position on COVID-19 in Tanzania did not just come out of thin air. It is solely thanks to church leaders who fearlessly decided to break the silence by saying enough is enough. After spending months dilly-dallying, peddling falsehoods and outright denials in the face of numerous documented and undocumented deaths of innocent citizens, the clergy decided to intervene to fill the vacuum left by the press, professional associations and civil society organisations which, out of the fear of reprisals or mere opportunism, had given the government carte blanche to play with the lives of its citizens.

The clergy’s intervention motivated by the troubling events that started occurring in Tanzania at the beginning of 2021. On 20 January, for instance, UWC East Africa, a school in the Moshi District of Kilimanjaro Region, announced that it was suspending all presential teaching after one of its students tested positive for COVID-19 and another displayed symptoms of the killer disease. Kilimanjaro regional commissioner Anna Mghwira, however, promptly denied the reports and demanded that the school apologise. Whether the school’s claims were true or false doesn’t matter. What does matter at this moment is that it was soon after this that reports of pneumonia-related deaths started coming in in astonishing succession.

Some of the deaths reported in the month of January 2021 include that of a popular hip-hop artist, Ilunga Khalifa alias Cpwaa, who died at the Muhimbili National Hospital (MNH) of pneumonia-related complications. Others are former legislator Gregory Teu who died following a short illness, Deputy Commissioner of Prisons Julius Sang’uti who died at Benjamin Mkapa Hospital in the capital Dodoma, and Special Seat MP Martha Umbula who died in India where she had been hospitalised. Others include a seasoned political analyst Prudence Karugendo, Ankunda Muro, mother of Arumeru District Commissioner Jerry Muro, who died while receiving treatment at MNH, former Permanent Secretary Richard Mariki and former Kigoma Regional Commissioner Emanuel Maganga who died in Tabora shortly after arriving at Mirambo Hospital for treatment. On the list is also Bukoba Catholic Bishop Ireneus Mbahulira who died at Mugana Hospital in Misenyi District, with the area’s auxiliary bishop Methodius Kilaini saying that Bishop Mbahulira had been on a ventilator while in hospital.

While many more people were reported to have died, the government seemed reluctant to admit the existence of COVID-19 in the country and take the measures that any responsible government would deem necessary to take to control of the situation. This was despite reports indicating that the South African coronavirus variant had been found in travellers from Tanzania, which led the UK to ban Tanzanians from entering the country, while some countries such as Turkey airlifted their ailing citizens out of Tanzania.

It is against this background that the Tanzania Episcopal Conference (TEC) was the first to issue a statement on 26 January pointing out that COVID-19 poses a dangerous threat to the safety of many Tanzanians and urging its congregation and the general public to take all necessary precautions to protect themselves against the pandemic. In an interview with the German broadcaster, the TEC Secretary General Dr Charles Kitima told DW that the TEC was forced to issue the statement after noticing an unprecedented number of deaths in their parishes. “For example,” explained Dr Kitima, “in our parishes located in big cities, we used to have one or two requiem masses per week. But nowadays it is everyday, there’s something wrong.” A day later, on 27 January, Magufuli admitted that COVID-19 was present in Tanzania.

On 3 March 2021 Dr Kitima revealed that, between mid-December and February, more than 25 priests, 60 nuns and two members of the laity had died of various causes including respiratory issues, a revelation that invited a reprimand from the government’s chief propagandist, Hassan Abbasi, who warned against what he described as the “arbitrary” release of statistics on diseases such as COVID-19.

His acknowledgement of the presence of COVID-19 in Tanzania notwithstanding, Magufuli did not take any measures to combat the spread of the virus. Even now the government will not admit that there are people dying of COVID-19, the cause of death given being respiratory complications. So people keep on dying with many people announcing the deaths of their relatives and loved ones through various social media platforms.

It would be misleading to claim that all these deaths are COVID-19-related since authorities continue to refuse to test people for the disease. But the rapid succession of deaths was enough to freak the hell out of people who now knew that something was wrong. Some of high-profile people who were reported dead in the month of February include the First Vice President of Zanzibar, Seif Sharif Hamad, who died at the Muhimbili National Hospital after he tested positive for COVID-19, former Bank of Tanzania governor Prof Benno Ndulu, and Chief Secretary John Kijazi. In Mbeya, so many deaths were reported that a regional commissioner, Albert Chalamila, banned the use of the word “sudden” in death announcements.

Even now the government will not admit that there are people dying of COVID-19, the cause of death given being respiratory complications.

Against this background of indifference and carelessness, church leaders intervened again, with the Christian Council of Tanzania (CCT) this time warning Tanzanians that they are not safe against COVID-19 and calling on them to protect themselves against the disease. On February 12, the Evangelical Lutheran Church in Tanzania (ELCT) also asked its congregation to hold a special prayer against COVID-19 while insisting on the need to take all necessary care to avoid contracting the virus.

Other church leaders continued to use their positions and pulpits to urge Tanzanians to take precautions against COVID-19. At the same time, others were coming out to urge people to take precautions with a ruling Chama cha Mapinduzi (CCM) legislator for Mbulu constituency, Zacharia Isaay, asking the government to stop beating about the bush on COVID-19, saying that people in his constituency were dying at an unprecedented rate and that he was tired of burying them.

The church may have forced the government to admit to the presence of COVID-19 in Tanzania but not to mount effective intervention mechanisms to combat the negative effects of the pandemic. Apart from urging people to resort to traditional herbs and steam inhalation therapy to keep themselves safe, the government hasn’t made public its COVID-19 response plan. Government officials themselves are far from observing the safety guidelines recommended to prevent the spread of COVID-19. In many state functions, government officials can be seen not wearing facemasks or maintaining social distance. But getting the government to bow to pressure and confess publicly that Tanzanians are at risk of dying of COVID-19 is no small matter and for this the church deserves some praise. By speaking out, the church acted upon its long and glorious history of intervening in matters of national importance, especially at a time when it is the only institution in the country that can take the bull by the horns in the interests of the people.

With the exception of its history of neutrality during the struggle against German and British colonialism in Tanganyika, and its relative indifference during Tanzania’s single party rule, the church has played a notable role in the country’s political life, particularly since the introduction of fundamental political reforms during the 1990s which included the re-introduction of multi-party politics, a process which took place under the leadership of the late Benjamin Mkapa.

In Justice, Rights and Worship: Religion and Politics in Tanzania, Prof Rwekaza S. Mukandala explains that religion became one of the forums where pertinent issues such as corruption, embezzlement of public funds and other vices that the political system had failed to deal with were addressed. It was during this time that the Catholic bishops, in February 1993, issued one of their strongest statements ever when they blamed the government for the deteriorating economic, social and political situation in the country. Around the same time, the Evangelical Lutheran Church of Tanzania (ELCT) issued its famous Bagamoyo Statement where it spoke of the worsening political, economic and social conditions in the country and the need for the government to take appropriate actions.

In Mbeya, so many deaths were reported that a regional commissioner banned the use of the word “sudden” in death announcements

Since then, church leaders have been acting as mediators between the government and opposition parties, especially following highly contested elections where claims of vote-rigging threaten the peace of the country and during other heightened political moments, by taking part in the provision of civic education to their congregations which includes, but is not limited to, providing voter education to their followers so that they can make informed decisions at the voting booth.

When President Magufuli came into office in late 2015, the relationship between the church and the state was rather bitter and strained thanks to the government’s crackdown on the press and civil society, and its attacks on fundamental rights and freedoms like the freedom of expression and the right to assembly. The churches’ attempts to warn against these tendencies pitted church leaders against reactionary government officials who went as far as threatening to shut down churches it accused of “mixing politics and religion”.’

So far no church has been shut down in Tanzania but the government has tried to minimise the role that the clergy can play in the country’s politics. During the 2020 general elections, for example, the government denied the Tanzania Episcopal Conference (TEC), alongside other experienced Civil Society Organisations, permits to observe the elections, a task that the TEC has been undertaking since Tanzania’s multi-party election of 1995.

Another tactic which has been employed by the state to force the clergy into silence is to harrass church leaders who engage in matters of national interest by arresting and detaining them on trumped-up charges of “threatening the national security”. Bishop Emmaus Mwamakula of the Uamsho Morovian Church who was arrested and detained for seven days ahead of planned demos to demand a new constitution, is the latest case of such harrassment.

As far as the relationship between religious leaders and the Magufuli administration is concerned—with the notable exception of Sheikh Ponda Issa Ponda of the Council of Imams who has been a thorn in the flesh of the authorities for many years and who has been able to maintain such a reputation at huge personal cost—Christian leaders have been more open and forthcoming when it comes to standing with the people against state repression than their Muslim counterparts.

Getting the government to bow to pressure and confess publicly that Tanzanians are at risk of dying of COVID-19 is no small matter and for this the church deserves some praise.

The clergy intervened in the COVID-19 situation in Tanzania at the most critical moment when absolutely nobody had the guts to tell the king to his face that he was naked. Church leaders came out to confront the dangerous rhetoric by government officials who kept on fooling people by telling them to go about their business and leave COVID-19 to God who would miraculously take care of it. At his press conference on 3 March 2020, TEC’s Dr Kitima urged Tanzanians to take all the necessary precautions against the pandemic, urging them to ignore the baseless claims that their God would intervene on their behalf. “Prayers alone are not enough,” Dr Kitima correctly pointed out. “We need to also consider scientific findings.” That it took religious leaders to insist on the usefulness of science in combating a pandemic while the leaders of a secular state were busy endangering the lives of their people by promoting superstition will be the biggest irony in Tanzania’s history of secularism.

The clergy may have forced the “denialist government” of Tanzania to abandon its false claims that the country was coronavirus-free. While such a development is a step in the right direction against the COVID-19 pandemic, merely acknowledging the presence of COVID-19 will not save Tanzanians from dying of the disease. A lot is still at stake. With President Magufuli remaining skeptical of the COVID-19 vaccines, and the Director General of the National Institute for Medical Research (NIMR), Prof Yunus Mgaya, saying that there is no need for Tanzania to rush for the vaccines, calling them a product of “neo-colonialism”, Tanzanians risk being locked out of the world, as the recent announcement by Saudi authorities that COVID-19 vaccines would be a mandatory requirement for anyone preparing for the 2021 Hajj vividly shows.

Church leaders have successfully shown that pressure works and now is the time for others – the press, the CSOs, the WHO, trade unions, etc. – to join forces and pressure the government into prioritising the fight against COVID-19 for the safety of Tanzanians. We are at a critical moment in our history where our actions or inaction will determine our future relevance and how we will be judged by future generations. We have the opportunity to make the best out of this moment and we must seize it for silence in the face of extinction is no virtue and a fair and responsible society cannot be built upon servitude, opportunism and such a frigid and killing indifference.

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