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The Anatomy of Kenya Inc: How the Colonial State Sustains and Re-Creates Itself

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The two tyrannies of ethnic expectation and institutionalised corruption feed off each other and are inextricably connected.

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The Anatomy of Kenya Inc: How the Colonial State Sustains and Re-Creates Itself
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The return to multipartyism in the early 1990s and the implementation of the 2010 constitution were seen by many as seminal moments in the democratisation of Kenya. However, in truth, they merely masked what essentially remains an unchanged bureaucratic-security state dating back to the colonial era that is today reproducing itself at the county level. The continuity and longevity of this state has chiefly been the product of an ideology of law and order created to protect the class and commercial interests of an African colonial elite.

For the colonial enterprise in Kenya to succeed, it needed local allies who would bring existing economic and political institutions into the newly created colonial order. However, this arrangement, which privileged the small white settler community, irrevocably corrupted and even usurped indigenous African authority and generated a collaborating class of African big men whose loyalty was no longer to kinship networks and ties but to the newly established colonial government.

Over time, the newfangled chiefly power and leadership of men like Koinange wa Mbiyu, Karuri wa Gakure, Njiiri wa Karanja, Mumia of Wanga, Ole Murumbi of the Maasai, Owuor Kere of Nyakach, Kinyanjui wa Gathirimu, Muhoho wa Gathecha, Michuki wa Kagwi and Ogola Ayieke resulted in a ready-made socioeconomic and political class to whom independence and state power could be entrusted in 1963.

It is therefore no coincidence that many of the politicians and senior government administrators who have dominated the top ranks of government and the civil service in post-colonial Kenya were scions of this class. These include the recently deceased Simeon Nyachae (son of Chief Musa Nyandusi), Joab Omino, the Mwendwa brothers (Eliud Ngala Mwendwa, who served as the Minister of Labour in Jomo Kenyatta’s cabinet, and Kitili Mwendwa, the first African Chief Justice of Kenya), John Njoroge Michuki, Kariuki wa Njiiri, Peter Mbiyu Koinange (son of Chief Koinange who also served as a powerful Kenyatta minister).

Although he was not himself the scion of a colonial-era chief, Jomo Kenyattta wisely married into chief Koinange wa Mbiyu’s family and, later, into that of Chief Muhoho wa Gathecha, thus founding one of Kenya’s foremost and lasting political dynasties. His immediate successor, Daniel arap Moi, established his own dynasty that is showing a similar political tenacity.

The return to multipartyism in the early 1990s and the implementation of the 2010 constitution were seen by many as seminal moments in the democratisation of Kenya. However, in truth, they merely masked what essentially remains an unchanged bureaucratic-security state dating back to the colonial era that is today reproducing itself at the county level

Jomo and the presidents who succeeded him have all sung the same refrain of law and order that was sang in colonial times. For this class of big men, political stability and the peaceful maintenance of the status quo has been the singular objective. Through a masterful stroke of political genius, Moi repackaged it into the populist appeal of his Nyayo philosophy of love, peace and unity. Mwai Kibaki, for his part, hinted at it when he reminded people that Kenya was a working nation and that there was nothing for free. At every stage of its evolution, the Kenyan state has had a steady hand at the helm ensuring the continuity of the ideology of order.

However, ensuring the survival of this vision amid the political reality of the Kenyan state with its veneer of democracy demands the suppression of all alternatives articulated and championed through political dissent. Beyond its preoccupation with the preservation of power, the ideology of order is thus also committed to protecting the Kenyan state and its brand of democracy from the people.

‘The danger to democracy is the people’

One of the colonial state’s greatest fears is the masses. Colonial authorities, and later, independent Kenya’s African ruling elite, were afraid the hordes of have-nots might rebel and challenge the politics of law and order as they had in 1952. Therefore, the imperative was to coopt, exclude or crush all dissenting voices in society. This is a task that the political heirs of the colonial state — led by Kenyatta and the scions of chiefly power such as his attorney general Charles Njonjo — fulfilled to the hilt.

Having already been recognised as the rallying political symbol through whom the hopes of the European community, London’s commercial interests and continued military presence, and the ideology of order could be secured, Kenyatta had his task already cut out for him on the eve of independence. He faced-off with the Kenya Land and Freedom Army — the Mau Mau — who sought to create an equitable society by any means, including violence. Unsurprisingly, early during Kenyatta’s tenure at the helm, much of the time was spent coaxing fighters to leave the forest and surrender their weapons.

One of the colonial state’s greatest fears is the masses. Colonial authorities, and later, independent Kenya’s African ruling elite, were afraid the hordes of have-nots might rebel and challenge the politics of law and order as they had in 1952

On the whole, Kenyatta attempted to temper the high expectations of ordinary Kenyans with his calls for Harambee (pooling together), pleas to forgive and forget the past and, consistent with the ideology of order which he understood only too well, entreating people to celebrate and embrace “uhuru na kazi” (“freedom and work”) — an appeal later echoed by Kibaki.

Toward the end of Kenyatta’s tenure, as his faculties were dulled by age, his ideological lieutenant, Njonjo, a chiefly big man in his own right, held guard against “dangerous agitators”. Njonjo openly threatened to jail the radical novelist Ngugi wa Thiong’o who had just penned his incendiary novel, Petals of Blood which both London and Nairobi feared would inspire a revolution. The palpable and shared crowd-phobia by the custodians of the ideology of order shows they understood that “the danger to democracy is the people”, who had to be thwarted at every turn and by every means available to the state.

Moral anarchy and the culture of impunity

The colonial state was built not through consensus as a democracy, but by decree. Not only did the colonial system corrupt African traditional authority and contribute to the destruction of African morality — thus creating moral anarchy — but it also sowed the seeds of a political culture of impunity. Indeed, the colonial state was itself a result of impunity.

Two of Kenya’s largest corruption scandals, Goldenberg and Anglo Leasing, were enabled by this culture of impunity. The Goldenberg scandal, which occurred between 1990 and 1993 under Moi’s imperial presidency, entailed the government paying Goldenberg International special compensation for fictional exports of gold and diamonds. The total cost of the scandal is unknown, but some estimates indicate that up to 10 per cent of Kenya’s GDP was lost.

Anglo Leasing, which occurred between 1997 and 2003, involved payments to a British company under the guise of investing to improve Kenyan security services, such as $36 million for new high-technology “tamper-proof passports”. However, the scandal also involved payments to other fictitious corporate entities that were paid to supply naval ships and forensic laboratories. The fact that this scandal straddles both the Moi and Kibaki administrations is quite telling. It shows that high-level corruption in the country is deeply entrenched in the bureaucracy and is, therefore, systemic or institutionalised. Alluding to this repugnant systemic morass of corruption, John Githongo, the former anti-corruption tsar and whistleblower who served in the first half of Kibaki’s first administration as the Governance and Ethics Permanent Secretary, sadly observed in a public personal statement on May 2, 2019 that:

“The Anglo Leasing model of misappropriation of resources from the Kenyan people has continued unabated since 2001. . . . Over the past six years in particular the plunder of public resources has accelerated to levels unprecedented in Kenyan history since independence. Increasingly the economic, political, social and very personal cost of this plunder by officials in positions of authority has been borne by the Kenyan people directly.”

Illustration: Gado

Illustration: Gado

The Uhuru Kenyatta government too has been rocked by several corruption scandals including the Eurobond scandal which entailed the mysterious disappearance of over $1 billion after Kenya issued its first sovereign bond in 2014. The amounts of money said to have gone missing under Uhuru Kenyatta are staggering. It is not surprising that skyrocketing corruption under President Kenyatta, the country’s fourth, dwarfs all previous corruption scandals.

Flagrant and rampant corruption in the post-independence era has surprised even Kenya’s erstwhile rulers. Reacting to Anglo Leasing, the biggest scandal of the Kibaki era, Sir Edward Clay, the then British High Commissioner to Kenya, lamented that top figures of the hegemonic regime were eating “like gluttons” and vomiting “all over our shoes”.

This “eating” culture at various levels of the bureaucracy and in the high echelons of government is mirrored throughout society. Corruption permeates Kenyan society because it is the sort of society that the predatory state has created. In 2015, exasperated by rampant corruption, Dr Willy Mutunga, then Kenya’s Chief Justice of the Supreme Court of Kenya, concluded that Kenya had become a “bandit economy”. The respected and high-ranking jurist complained that corruption stretched from the very bottom to the very top of society. As an apparatus transforming society, the Kenyan predatory state has created a sukuma wiki bandit economy characterised by survival by any means necessary.

Indeed, corruption so permeates society that it scarcely leaves anyone untouched or unaffected. The unwritten code is expressed in the African proverb, “the goat eats where it is tethered”. It is, therefore, not surprising to find corruption and the trading of favours, bakshish, among lawmakers, among revenue collection officials, among parents, teachers and students in schools and universities, among doctors, nurses and staff in hospitals, in the corridors of justice among judges and magistrates and even in the so-called disciplined forces including the police.

The colonial state was built not through consensus as a democracy, but by decree. Not only did the colonial system corrupt African traditional authority and contribute to the destruction of African morality — thus creating moral anarchy — but it also sowed the seeds of a political culture of impunity. Indeed, the colonial state was itself a result of impunity.

The poor remuneration of public servants, a poor incentive system for hard and honest work (due to nepotism and ethnic discrimination) and socioeconomic frustrations caused by unemployment or underemployment, force ordinary citizens to resort to corruption. Working people, much like a tethered goat, tend to eat where they are “tethered”, or, put differently, use the nature of their work to look after themselves. Professional people, therefore, do not only find it necessary but also morally easy to exploit their professions or their workplace because of such tacit African cultural sanction of bakshish – acceptance of relatively small gifts or money in return for services rendered. In the meld of African traditional values and modernity in a society imbued by corruption, the line between gratitude and corruption is blurred.

In this way, therefore, the strategies adopted for material survival by school principals, the military, lawmakers, judges, magistrates, the police and other civil servants, people in the private sector, and even criminals, are not dissimilar from those used by leaders to accumulate power and wealth. Thus, the tempting image of innocent, by-standing masses, or viewing the Kenyan public as victims of grand corruption, is shattered. There is, therefore, no prospect of a united demand for clean government. It could even be said that very few Kenyans qualify to make such a demand.

Illustration: Afrobarometer

Source: Afrobarometer

In Kenya, the bribes collected go by many words: bakshish, chai (tea) or kitu kidogo (something small). In this sukuma wiki bandit economy characterised by predatoriness, survival is at any cost. Hence, the civil servant and other officials who are poorly remunerated, or simply harbour an insatiable greed for riches, make their living or build their fortunes off the people they serve rather than from their meagre salaries.

Even heads of public schools are known to charge exorbitant tuition and illegally admit students, while in hospitals, necessities like mattresses and bed sheets, even prescription drugs, are known to be sold-off by poorly paid staff. At times, members of the police force, politicians and other public authorities, are forced to collude with the criminal underworld. Facing harsh laws or the lynch mob, young criminals have no choice but to kill or be killed, unleashing a veritable balance of urban terror. This can also be interpreted as an unlawful effort at a re-distribution of the resources hoarded by the rich in society. In major cities, rural areas and townships, local people engage in all sorts of vandalism of public service installations and petty theft. In other more remote localities, traditional raiding or cattle rustling, for example in the North Rift region and the North Eastern Province, this survival-by-all-means bandit economy translates into a form of political action.

Culturally and structurally, therefore, both the state and Kenyan society have mutually transformed each other, producing a national psyche characterised by moral anarchy and primal greed; the state and society mutually reinforce each other in entrenching unabated, runaway corruption, a culture of impunity, and politics of (dis)order.

Illustration: Gado

Illustration: Gado

The twin tyranny of political tribalism 

At the core of the bane of politics in post-independent Kenya is the twin tyranny of political tribalism. On the one hand is the tyranny of the masses, that is, the pressure that different ethnic groups — and seasonal and shifting ethnic-political alliances — place on their respective ethnic bigwigs. On the other is the tyranny of the ruling class that is responsible for the institutionalisation of grand malfeasance. These two tyrannies feed off each other and are, as such, inextricably connected.

With political consciousness and organisation restricted only within the bounds of discrete, administratively designated “ethnic regions” during the colonial era and well into the postcolonial period, wealthy politicians have acted as guardians or custodians of their respective ethnic groups to the exclusion of all others within the political context of perceived stiff competition for public goods or state power.

The masses, as ethnic political “patrons” — either pursuing their real or perceived pan-ethnic interests — neither have tribal innocence nor are they innocent of the endless accumulation and concentration of power in the hands of the political elite without accountability, and the perpetuation of corruption. After all, when they act, whether at the ballot box or when they defend their ethnic elite “clients” even when they are accused of grand corruption, they do so simply along ethnic lines.

Both in the colonial and postcolonial periods, therefore, ethnicity (political tribalism) acts as the main vehicle through which dominance and the preservation of power and resources are achieved. In turn, ethnic political elites are beholden to “their own”; they are expected by their respective ethnic groups to defend and expand real or perceived pan-ethnic interests and opportunities with regard to the modern economic, or civic public, sector.

This, then, is the first tyrannical twin of political tribalism. A classic case of the tail wagging the dog or, as E.S.A. Odhiambo puts it in The Political Economy of Kenya, the logic of patron-client relationships turned upside down. According to Odhiambo, political entrepreneurs:

“Came to the threshold of state power with a specific objective. The bottom line for all of them was that they had to ‘deliver the goods’. . . . To maintain and reproduce their bases of power, they had to recruit, sustain, and reward their followers from time to time. . . . The peasants have the latitude, at elections, to shift their patronage. The fascination with the fact that the Kenyan member of Parliament is vulnerable at election time should acknowledge the fact of peasant choice as well as the peasants’ success at insisting on accountability by the parliamentary representative to his constituents. Put more directly, the masses put the leaders on the run to the gates of Parliament. ‘They invaded the state with society at their heels rather than imposed it on the people. They were accountable to an elected democracy’.”

But at times, indeed, more often than not, and increasingly over the course of time, to do so – delivering public goods to sustain the support of their patrons, namely, their close individual supporters/enablers or cronies and tribes – politicians, as tribal clients, have no recourse but to seek to gain private capital out of the public domain. State coffers are, therefore, raided rather blatantly by the political elite in order to benefit their immediate and extended families (nepotism), ethnic communities (tribalism) and/or elite cronies and political allies.

This, then, is the second twin tyranny of political tribalism: rampant, massive and seemingly endemic institutionalised corruption unleashed on the nation by the political elite in their quest for the accumulation, concentration and perpetuation of power and (re)producing themselves. This is the conundrum of the twin tyranny of political tribalism. On the one hand, a collection of patron-tribes acting as rational actors exacting high expectations of public goods on their clients, their corresponding ethnic political elites. And on the other hand, insatiable politicians who exploit ethnicity and such tribal expectations and demands to profit by looting the public domain. There are, after all, no serious investigations into subsequent and ever increasing corruption scandals.

Tribal bigwigs are untouchable sacred cows even when implicated or involved in appalling corruption scandals. After all, they enjoy the unstinting support of their tribes who would rather be “eaten” by the hyena they think they know (a politician from their own ethnic group) than one they neither really know nor care to know (a politician from a different ethnic group).

It is not surprising, therefore, that when it comes to fighting corruption, Kenyans are rather resigned to their fate. Politics, for the most part, is viewed as an inherently flawed and dirty game; a rather cynical acceptance that ordinary citizens can do nothing about it except vote for political tribalism. This languid attitude ensures that, collectively, ordinary people are unsafe and are, more often than not, not at the table but, rather, on the menu. And so goes the vicious cycle, the Kenyan political circus window-dressed as a paragon of Western democracy in Africa although multiparty elections are largely nothing more than ethnic contests that take place every five years.

The Configuration of State Patronage / National Finance Grid (NFG)

Fig. 1. The distribution of state finance capital in the Kikuyu-centric Kenyatta state, 1963–1978.

Fig. 1. The distribution of state finance capital in the Kikuyu-centric Kenyatta state, 1963–1978.

Fig. 2. The distribution of state finance capital in the Kalenjin-centric Moi state, 1978–2002.

Fig. 2. The distribution of state finance capital in the Kalenjin-centric Moi state, 1978–2002.

The ideology of the propertied elite is thus shored up by the pervasive ideology of tribalism which defines the struggle and capture of state power. The corresponding democracy emanating from within such a political system is one in which the election-winning strategy is based purely on ethnic considerations. Political and economic competition in the context of tense inter-ethnic relations has a deleterious and blighting effect on a range of important institutions that generally give states their form, stability and longevity.

The highly ethnicised nature of Kenyan politics and the stultifying and stunting sway and monopoly of ethnic kingpins has historically created personality cults and hegemonic political dynasties that hark back to the very first collaborating class of African big men who were produced by the colonial order of the early 20th Century.

Culturally and structurally, therefore, both the state and Kenyan society have mutually transformed each other, producing a national psyche characterised by moral anarchy and primal greed

Having reproduced itself over the years, this political class has consolidated a hegemony that enables it to flaunt, subvert or circumvent institutions based on democratic values such as the constitution that guaranteesfreedom of expression, freedom of conscience, freedom of meeting, freedom of association, the rule of law; a free and independent judiciary; an independent election commission; public integrity and control bodies; and the civil service, among others.

But it is the generic political partyfounded on principles or championing social issues of concern and pursuing clear ideological positions that has, arguably, borne the brunt of dynastic and tribal politics. In the face of political tribalism and dynastic politics, the democratic multiparty political system is weakened and stultified. Ethnicity, the fulcrum on which national politics revolves has, therefore, implied the inexorable death of the political party in Kenya.

This is the unspoken consequence of the double tragedy of the twin tyranny of political tribalism that exists beneath the thin veneer of the preponderant ideological insistence on “order”, a political “order” underpinned by moral anarchy and the assorted vagaries of political tribalism. One, moreover, that suppresses political dissent and one, therefore, that is, at once, anti-people and, thus, anti-democratic, chaotic and violent; and one that perpetuates the endless search for, and accumulation of, power accompanied by skyrocketing corruption. It is, alas, political disorder that is based on a false political stability enforced by the state security apparatus – regular and anti-riot police, intelligence services and the army.

In post-independent Kenya, therefore, the colonial ideology of order is sustained through the very means that were used at the state’s inception – force, authority, bureaucracy and power.

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Githuku is a scholar and writer based in New York.

Long Reads

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.

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Why the LSK Choice of Female Representative to the JSC Is Crucial
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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.

Current context

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.

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

A whole industry of reputation management has been spawned online with companies dedicated, through means fair and foul, to gaming the system in favor of their clients. An investigation by Qurium shows how some are utilizing intimidation and deception in campaigns to suppress unflattering information in the online press.

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Dark Web: How Companies Abuse Data and Privacy Protections to Silence Online Media
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Around the world, the internet has become an important source of information, influencing decisions on everything from news and politics to shopping and recreation. Employers today will use internet search engines to check out prospective employees just as voters are likely to “google” politicians they are considering voting for. The search engines, of which Google is the most dominant, categorize the mass of available online information on any particular topic into consumable chunks and decide which ones are most relevant for any particular search.

With so much resting on search results, it is no surprise that a whole industry of reputation management has been spawned with companies dedicated, through means fair and foul, to gaming the system in favor of their clients. While some engage in enlightened best-practice, such as optimizing content and websites for the search engines, others are practitioners of the dark arts, utilizing intimidation and deception in campaigns to suppress unflattering information.

According to its website, the Spanish firm, Eliminalia “was born to ensure every individual and company maintains its privacy and network security, regardless of the uncensored information that has been posted on the Internet – whether malicious, incorrect, or embarrassing”. In short, its mission is to erase internet content its clients consider objectionable. Media reports in August last year – denied by both parties – claimed that Kenya’s Deputy President, William Ruto, had retained the company to spruce up his online image as he prepares for a run at the country’s presidency in 2022.

While some engage in enlightened best-practice, such as optimizing content and websites for the search engines, others are practitioners of the dark arts, utilizing intimidation and deception in campaigns to suppress unflattering information.

However, the techniques the company utilises are not always transparent and could even be illegal. A newly released investigation by Qurium has found that the company is involved in a campaign of intimidation and deceit using fake lawyers and impersonating regulators to threaten websites into taking down content, and creates fake websites to manipulate search results.

In an initial report summarising some of their findings, Qurium shows how the Digital Millennium Copyright Act (DMCA), a US law enacted in 1998 that requires hosting services and internet service providers to take down content when notified of copyright infringements, and data protection regulations as the EU’s General Data Protection Regulation (GDPR), are systematically abused to restrict the freedom of the press, particularly when investigating corruption or abuses of power.

Some of the techniques used by Eliminalia to eliminate, modify or de-index content from the Internet identified by Qurium include creating copies of original content in other websites, backdating it and then filing a DMCA complaint to Google for copyright infringement. Thanks to research access granted by the Lumen Database, Qurium found several identities used by Eliminalia to file such complaints. The company also sends fake GDPR abuse reports using fake legal e-mails and domain names.

De-indexing agreement

Part of a de-indexing agreement

De-indexing is a process that involves removing a website from the search engine’s index but not from the page where it originates which means that a website or a specific URL stops being seen in search results. The Google search engine will automatically de-index content that it determines is not original, that is, which has been previously published on another web page. Cloned websites abuse this by making it difficult for the search engine to determine which is the authoritative source.

One of the methods to push down results in search engines is to clone the full content of the websites in similar domains. During the cloning of the content, all articles that their clients do not want to be published are avoided. This strategy is consistent with their definition of de-indexing in their contracts.

The forensic analysis by Qurium determined that Eliminalia creates fake domain names and impersonates the EU Commission in order to send fake take down requests. The company also submits fake copyright complaints to Google and clones original articles from websites in an attempt to de-index content from search engines. It also uses hundreds of fake newspapers hosted in the Ukraine to support disinformation campaigns on Social Media.

The Google search engine will automatically de-index content that it determines is not original, that is, which has been previously published on another web page. Cloned websites abuse this by making it difficult for the search engine to determine which is the authoritative source.

The Elephant has been among those targeted by such content take-down campaigns. They involve notices from fake legal firms claiming copyright infringement or invoking data protection legislation and demanding removal of the content without revealing the identity of who is paying for their legal services.

After exchanging dozens of e-mails with different “lawyers” in the course of several months, Qurium, which provides secure hosting services for human rights organisations and independent media – including The Elephant – from more than twenty countries, managed to identify those behind such campaigns and the infrastructure that has been put in place to support such businesses.

Emails from IP addresses associated with Eliminalia, which has registered offices in Spain, the US and the Ukraine, were sent to Qurium, purporting to be from lawyers and from the Legal Department of the European Commission in Brussels demanding removal of articles related to corruption in Angola involving Isabel dos Santos or Vincent Miclet.

The Elephant has been among those targeted by such content take-down campaigns. They involve notices from fake legal firms claiming copyright infringement or invoking data protection legislation and demanding removal of the content without revealing the identity of who is paying for their legal services.

One of the emails concerned a story published in The Elephant two years ago regarding French businessman Vincent Miclet’s corruption-tinged exploits in Angola. It was sent February this year to one of Qurium’s internet service providers in the Netherlands by one “Raul Soto” claiming to be from the Legal Department of European Commission.

Fake take down requests

Fake take down requests

The physical address provided was actually that of Regus, an office space rental agency in Brussels, Belgium, which happens to be situated in front of one of the buildings of the European Commission. However, the information on the header shows that the email was actually sent from a Ukrainian IP address using a server in France.

The domain it was sent from, abuse-report.eu, appears to have been registered in September last year for the sole purpose of sending fake data protection complaints as it lacks a website or other contact details. Queries on both Censys and Shodan, which are internet search engines that enable researchers to probe hosts, networks and devices, quickly revealed that Eliminalia was behind the fake setup.

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

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

A further examination of the internet infrastructure of Eliminalia in the Ukraine found that several of their servers are within an IP address range (62.244.51.50 – 62.244.51.58) which includes the servers of World Intelligence Ltd, a company registered to Diego Sanchez. Diego (Didac) Sanchez Jimenez/Gimenez is also the founder and CEO of Eliminalia. World Intelligence Ltd. hosts almost 300 fake newspapers which are used to run all sorts of “information campaigns” and to clone existing websites in order to “de-index” content out of search engines.

To understand how the 300 fake newspaper websites were used and whether they were used in a coordinated manner, Qurium analysed 3,000 articles published by them during one calendar month. They found that many of the newspapers shared common articles and groups of them posted the same content simultaneously.

The domain it was sent from, abuse-report.eu, appears to have been registered in September last year for the sole purpose of sending fake data protection complaints as it lacks a website or other contact details.

Apart from trying to de-index content from Google Search, they also found that clusters of websites are used to promote fake content. For example, a campaign targeting the Tanzanian whistle-blower website Fichua Tanzania used social media and a cluster of websites to distribute the fake news.

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

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

The dangers posed by such tactics to democracy are obvious. Information is the oxygen of democracy, allowing citizens to hold governments to account and to accurately assess their options when making selections in voting booths. Much of this information is today to be found online where it is curated by search engines. However, when companies use laws meant to protect online privacy and guard against copyright theft are abused to silence the press, and when they use fraudulent means to manipulate search results, then the public is deprived of the tools it needs to meaningfully participate in democracy.

This is a problem for the search engines as well. Trust is the currency of the internet. Left unchecked, companies like Eliminalia will inevitably damage public confidence in the results delivered by the engines and thus the public’s propensity to use them.

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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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