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Hard Labour: The Surrogacy Industry in Kenya – Part II

19 min read.

Commissioning parents who venture into the legal minefield of surrogacy in Kenya also risk losing their money, children, or both – either to the state who might intervene by taking the child away, or to surrogates who later backtrack and decide they want to keep the child. Allegations of human trafficking are also a real concern.

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Hard Labour: The Surrogacy Industry in Kenya
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Navigating the law

There is currently no legal framework in Kenya which provides for the uniqueness of gestational surrogacy, leaving its participants to work around the existing laws and, in some cases, to bend them to the limit. This journalist even recorded one agent who seemed to suggest that hospital staff could be bribed to falsify birth certificates.

“Because there is no legal framework for surrogacy that would transfer the child to the commissioning parent, the closest framework that exists to permanently transfer parental rights is adoption via the courts,” said Bobby Mkangi, a constitutional lawyer and expert in child rights and protection who served on the task force that drafted the Adoption Regulations.

But the adoption route is closed, by law, to many who might want to commission a surrogate baby in Kenya.

The Children Act says adoption is only permitted under “special circumstances” to sole applicants seeking to adopt children of the alternate sex (i.e. a single male cannot adopt a girl, and a single female cannot adopt a boy); and to sole foreign females.

The law does not allow adoption, even under “special circumstances”, to sole applicants or couples who are unmarried, to “homosexuals” and to “sole foreign males”.

The government went one step further in 2019 when it banned all international adoptions.

Despite these restrictions, agencies such as Gaurav Wankhede’s advertise Kenya to gay clients. “Unfortunately, gay surrogacy is not legal in every country. Which leads to many broken hearts in the LGBT community. Surrogacy Agency Kenya is right here to make your dreams come true and resolve all the obstacles related to gay surrogacy,” its website says.

New Life Global also recommended Kenya as a destination for “Single Intended Fathers or Same Sex Couples” on its website, although when contacted they said they had closed their Kenya branch down in 2019. Their Kenya website remained active until a few days after receiving our questions, which they explained as an oversight by their IT team.

“Despite the fact that surrogacy is not banned in Kenya, we saw that the legal part of the procedures was not regulated quite well,” New Life explained.

These agencies and their local handlers have been relying on narrow loopholes and other legal grey areas created in part by the lack of any legal recognition of surrogacy.

Surrogates are particularly exposed because the law recognises their rights as mothers, but not as surrogates. Lacking clear legal status themselves, they are seldom provided with independent legal guidance.

Commissioning parents who venture into the legal minefield of surrogacy in Kenya also risk losing their money, children, or both — either to the state which might intervene by taking the child away, or to surrogates who later backtrack and decide they want to keep the child. Allegations of human trafficking are also a real concern.

Enricah Dulo, a specialist family law advocate and a legal expert in gestational surrogacy practice in Kenya, explained that the formal adoption process set out in the Children Act is complex and will take “a minimum of three months”.

“The system is designed to protect the interests of the child at all times and to prevent human trafficking,” she said.

“Adoption involves a period of trial parenting that is supervised by officers from the Department of Children Services or an approved adoption society. The final adoption order is confirmed by a judge of the Family Division of the High Court, taking all factors into consideration.”

Heterosexual married couples do not have the same legal challenges as gay couples or single parents because the adoption route is open to them in Kenyan law.

One of the pathways some commissioning parents follow is to avoid adoption altogether, Dulo said, and to apply for legal custody and parental orders of the child instead.

Legal custody also sidesteps the government’s 2019 ban on international adoptions, it seems.

Dulo said she has been helping commissioning parents seek legal and parental orders for children born to them out of gestational surrogacy agreements by filing cases, not at the High Court, but the Children Court.

Dulo maintains that certain sections of the Kenya Constitution (Art. 53 (2)) and the Children Act (Sect. 4(2)) provide a degree of leeway because they state that the best interests of the child are of paramount importance when considering any matter.

Although less time-consuming and less complex than adoption cases, there are still some important checks that a Children Court magistrate will insist on. These include DNA test results to confirm a genetic link between baby and commissioning parents, as well as consent from the surrogate mother relinquishing all her rights over the newborn.

Once an order has been issued by the Children Court, Dulo approaches the Department of Civil Registration to issue a birth certificate in the name(s) of the commissioning parents.

But some agencies appear to have found a short-cut around even this shorter route. This reporter interviewed two surrogates who claimed, independently of one another, that their surrogacy agencies had arranged for the commissioning parents’ names to be entered straight into the surrogate baby’s birth records when they are born.

This method is thought to be illegal, as it not only risks children being trafficked but also denies the surrogates their legal rights as the birth mothers.

Kenya’s Births and Deaths Registration Act makes no special provision for the genetic variables of surrogacy. “By legal definition the person who gives birth is the legal mother whose name should be entered into the notification,” said Professor Marion Mutugi, a geneticist and Vice Chancellor of Amref International University.

Surrogate Minnie (details changed to protect her) was contracted by one-time New Life Kenya manager and surrogate recruiter to deliver a baby for a Kenyan couple whom she never met.

After the embryo transfer, the recruiter put her in a rental house on the outskirts of Nairobi for the entire nine months of her pregnancy.

She attended all her antenatal clinics at the hospital where she would later give birth.

Minnie said she was checked into the hospital under the name of the commissioning mother.

She said she was not allowed to see the child after it was born, and claimed that the commissioning parents’ names were entered in the birth notification at the hospital.

The birth notification is later used to generate a birth certificate by the Registrar of Birth under the Department of Civil Registration.

Minnie was paid Sh685,000 by the agency.

Minnie also told the story of her friend who carried a child — this time for a foreign couple through an unnamed surrogacy agency. She, too, gave birth at the same hospital, never saw the child and the parents’ names were entered in the birth notification. (Asked to put this reporter in touch with her friend directly, Minnie said her friend did not wish to be contacted).

Another surrogate, Judy (not her real name) told this reporter about a fellow surrogate she knows who gave birth at another hospital in Nairobi and who also claimed that the commissioning couple (both foreigners) were entered in the birth notification at the hospital – again through an unnamed surrogacy agency.

We contacted both hospitals named to us by the surrogates. One did not respond to our queries, while the other, through a lawyer, confirmed that “our practice in the processing of birth notifications has always been that the gestational carrier of a baby is the birth mother of the baby and the carriers’ name is the only one that is allowed to appear in the Birth Notification”.

The lawyer adopted a hostile tone to any suggestion that the hospital’s staff might be complicit in bypassing the law.

Instead of offering to look into the allegation, the lawyer dismissed it as “frivolous and vexatious”.

The one-time New Life Kenya manager and surrogate recruiter denied all allegations and referred us to her lawyer who did not respond except to warn about the laws of defamation, criminal libel and malicious falsehood.

These denials notwithstanding, the impression that surrogate agencies do conspire with hospital staff in order to short-circuit birth registration laws was furthered when this reporter posed as a Kenyan commissioning parent called Angela, and approached the African Fertility Agency.

Agency co-owner Jahjah had the following taped phone conversation with the undercover reporter:

Jahjah: Ule mtoto wako atazaliwa (Your baby that will be born)

Angela/Naipanoi: ehh? (Yes?)

Jahajah: Huwa tunachoranga na Hospitali alafu birth certificate inatoka na complete majina yenu, yako na mzee (We make arrangements with the hospital so the birth certificate has you and your husband’s name)

Naipanoi: Ohh majina yetu? So you talk with the hospital natoa kitu kidogo? (Oh, our names? You talk with the hospital and we give a small token?)

[…]

Jahjah: Na si unajua Kenya saa zingine unaeza fanya mambo mawili kidogo usaidiwe. (You know in Kenya, you need to do one or two things and you are assisted)

Naipanoi: Yes Kenya iko hivyo (Yes, Kenya is like that)

Jahjah : Alafu at the same time, hatutaki kurisk kazi ya watu huko hospitali. (At the same time we don’t want to place people’s careers at risk at the hospital)

[…]

Naipanoi: Yeah true. Pia unajuanga kusaidiana ni muhimu….. ‘cause unajua venye Kenya iko (Yeah that is true. It’s good to help out. That’s how things work in Kenya.)

Jahjah: Hio ni yangu na wewe, hakuna mtu mwingine anaweza (That is between you and me, no one else can deliver what I have offered)

[…]

Naipanoi: Ehh, ohhh..utatengeneza and I won’t have to undergo all that, the adoption, the nini..(So you’ll fix that and I won’t have to undergo all that, the adoption, and all that)

Jahjah : Hata hakuna mambo na adoption. Bila hata kutengeneza hio (birth certificate) hakuna adoption… (Adoption is not even necessary. Even without sorting that (birth certificate) you won’t go through adoption.)

Jahjah denied all allegations against him — including a specific question about the phone call with “Angela”.

Wankhede — Jahjah’s business partner in African Fertility Agency, and the person who had first put “Angela” in touch with him — did not respond to any questions.

Ironically, Dulo recalled that Jahjah and Wankhede had both attended her regular training workshop on “Gestational Surrogacy and Transfer of Parental Rights in Kenya”, in which she teaches participants how the legal framework applies.

She commented: “Whereas it is true that there is still no legal framework regulating gestational surrogacy and the transfer of parental rights in Kenya; this does not in any way mean that it is impossible to have the commissioning parents listed in the birth certificates, unless parties engage in deception and other unscrupulous activities.”

“Agencies, clinics and commissioning parents should engage an advocate and have the transfer of parental rights and orders directing the Registrar of Births to list the commissioning parents in the birth certificates done through the court process.”

This reporter is also aware of a case involving a surrogate and a single gay commissioning parent.

The case is sensitive and complex. The surrogate asked not to be named or identified in any way.

But in essence: after the surrogate had been implanted with an embryo (the commissioning parent’s sperm, and a donor’s egg) and carried the baby to full term, she and the parent pretended to have conceived the child sexually, and not through gestational surrogacy.

She then waived her rights to the child, and gave the commissioning parent custody.

The surrogate said the entire process was very stressful for her: “What I did was not child’s play,” she confided. “There were times when during the process I honestly feared I might end up in prison,” she said.

Parents’ plight 

Like many businesses promoting surrogacy in Kenya, foreign-owned agencies like Become Parents and New Life Global Network (see previous story) appear to target foreign gay couples and lure them with attractive packages of around Sh3.5 million ($32,000).

This is a fraction of what it would cost in western countries like the United States, where packages cost around $120,000 (Sh13.1 million).

The bargain prices available in Kenya are at the expense of desperate surrogates, who are paid far less than their counterparts in the West.

While the businesses advertise Kenya as a safe, friendly and affordable country, parents are often unclear whether this option is legal or not. In reality, parents are at risk of losing their money, children, or both, to surrogates and to the state.

And while surrogacy can be an incredibly fulfilling experience for parents, some agencies have been accused of taking advantage of their naivety and desperation.

In March this year, a surrogacy agency owner called Winnie Warigia Maina appeared in court in a case that received front-page media attention. Maina had reportedly been charged with defrauding Dion William Van Aardt, a Dutch national living in Kenya.

Van Aaardt testified that he had paid Maina Sh2.9 million ($26,200) to arrange for IVF and a surrogate, but was discouraged by Maina from ever meeting the surrogate in person. Months later, Maina allegedly told Van Aaardt that the surrogate and baby had “died”, and requested funeral expenses, only for Van Aaardt to discover that his sperm lay untouched at the IVF clinic, and had never been used.

Warigia reportedly denied the charges and was released on bail. The case continues.

‘Ripped off’

Monica, the surrogate who was forced to have a late-term abortion (see previous story), also claimed that her commissioning parent was overcharged and made to pay expenses that the agency co-owned by Wankhede and Jahjah never incurred.

The parent travelled to Kenya for two weeks as part of the surrogacy package offered by the agency.

During this time, the agency erected a barrier between Monica and the parent, Monica claimed, thereby ensuring there was no communication between them.

“I finally met the parent at the airport, when we flew out to his home country together where I was to give birth,” Monica said.

This was the point at which they both discovered the actual fees being charged by the agency, Monica alleged: “While we sat together on the flight, the parent discovered from me that a lot of what he had paid for seemed excessive. For example, I was just staying at the surrogate hostel but they said that I was costing over Sh100,000 a month for rental, food, upkeep and a personal maid.”

“They also claimed I had made several more visits to the hospital than I actually did,” Monica claimed.

Monica also claimed that six months into her pregnancy, Jahjah had offered her Sh100,000 extra to give birth in the commissioning parent’s country. She agreed.

But on the flight the parent revealed he had actually paid Sh300,000 to the agency, after being told that her family had demanded this additional sum to fly out with him.

Monica also learned, through her commissioning parent, that the surrogacy contract between the agency and the parent, which she was never given sight of, stated she would be paid Sh1.5 million. In fact, Monica claims she had been offered Sh630,000.

Monica’s allegations could not be independently verified, because she does not have direct access to the financial details in question.

However, she is not the only African Fertility Agency surrogate who claims to have discovered that her pay didn’t match the contract signed by the parent.

A pregnant surrogate on a Sh640,000 pay package threatened to run away after discovering the contract between parent and agency billed her services at Sh1.5 million, according to an insider sympathetic to the surrogate who claimed to have direct knowledge of these financial arrangements.

These allegations were put to both Wankhede and Jahjah.

Kioko denied any wrongdoing. Wankhede never responded.

Stranded

For gay Australian commissioning parents Ryan and James (thought to be their real first names), their experience in Kenya was hellish. The couple were stranded in the country after Wankhede’s Become Parents agency allegedly provided them with “not one, but two fake birth certificates” that their embassy rejected.

Their baby was born in 2018. They claim the surrogate provided fake details that were entered in the birth notification. The notification details helped generate the birth certificate.

After providing the certificates to the embassy for the baby’s passport and citizenship application, the embassy claimed they were fake and refused to assist.

“It soon hit the couple that their situation was dire. They were stranded with a 5-month-old across the globe in a third world country with no timeframe for when they could get out,” according to a blogpost about their experience that was posted by someone called Jet Lake in 2019.

According to the blog, they confronted Wankhede, who reportedly replied: “My agency had tasked obtaining the BC [birth certificate] through a local contact person, and I cannot reach him at present”.

It seems the illegal practice of bypassing Kenya’s birth registration requirements in order to smooth the path for foreign surrogates (see previous section) may have come back to haunt Become Parents and their unsuspecting clients.

Wankhede would later claim that “the certificate just wasn’t processed correctly by Kenyan Authorities and a new certificate was being generated”. But this, too, was reportedly rejected as a fake by the Australian High Commission.

The increasingly panicked couple then visited the Department of Civil Registration seeking help themselves, but found none. Going to court was riskier, their lawyer told them. They had a high chance of losing the child to the state because of their “illegal” marital status.

The blog doesn’t reveal how the plight of Ryan and James was resolved, but it continues to live online and paints Kenya as a “commercial surrogacy nightmare”.

According to Wankhede’s former business partner Bill Houghton, an Irish single parent, using an unnamed surrogacy agency, came unstuck when his baby’s DNA did not match his. The Irish Consulate in Nairobi initially declined to issue the baby with citizenship or a passport. After being stranded in the country for weeks, the embassy finally relented. He was required to adopt the baby in Ireland.

In this case, constitutional and human rights expert Bobby Mkangi smells a rat: “Unless he was appointed to act as a guardian through a guardianship order then everything else is illegal. It’s against the law in Kenya for single parents to adopt, and I can’t see how he would have been allowed to leave the country unless he paid off the immigration control officers at JKIA.”

Mkangi is also concerned that such situations could haunt the child’s life forever. “Any irregularities in the child’s legal status at this stage could mean they miss out on certain rights as citizens of their adopted countries,” he pointed out.

Wankhede did not respond to detailed questions, including about the incidents involving Ryan and James as well as the Irish single parent.

Arrested and left empty-handed

In a worst-case scenario, commissioning parents face arrest and losing their child.

In 2018, police arrested alleged surrogate mother Josephine Muthoni Kariuki (a genetic mother whose eggs had contributed to the embryo) together with commissioning parent Neo Kian Fu, a Chinese national, as well as a Mombasa doctor who had assisted the duo.

They were charged in a Mombasa court with engaging in “acts that promote child trafficking”, according to a charge sheet seen by this reporter.

The surrogacy agreement reportedly unravelled after Kariuki changed her mind about handing the baby over to the commissioning parent.

Police appear to have concluded that the agreement whereby the parent would adopt the baby before departing the country was illegal, and charged the trio. The baby was placed in a children’s home.

The accused denied the charges, and the case was eventually dropped due to a lack of evidence.

It is understood that the child now lives with the surrogate.

This reporter later found the surrogate in one of the surrogate WhatsApp groups she had joined. She claimed: “I was never a surrogate. If I was, why did the court grant me the custody of my son?”

Reviewing all these horror stories told by commissioning parents, Mkangi said: “This is why surrogacy agencies look for countries with weak legal enforcement regimes and weak child protection frameworks to exploit and manipulate. As a result, poor surrogates and desperate parents are put in situations that force them to break the law.”

Almost a decade and a half after the first surrogate baby was born in Kenya, the country still doesn’t have a legislative framework to regulate gestational surrogacy and assisted reproduction.

Over the years, however, there have been many efforts by female lawmakers to address this — all of them have so far been frustrated.

Suba North Member of Parliament Millie Odhiambo-Mabona has been at the forefront of the campaign. In 2014, she sponsored the In-Vitro Fertilization Bill, revived it in 2016 and then reintroduced it in 2018.

Former nominated Senator Judith Sijeny also tabled a bill in the upper chamber in 2014, but it was never passed. Latterly, Nakuru Senator Susan Kihika has also joined the effort by sponsoring the same bill that was initially introduced by Sijeny. However, these bills were never passed into law.

The current situation is not only stalled but it is also controversial and complex.

Two bills tabled in 2019 are waiting to be passed into law, each of them, among other things, laying out the conditions and procedures for surrogacy practice in Kenya.

One is before the Senate, while the other is in the National Assembly.

The Senate legislation, sponsored by Kihika, is called the Reproductive Healthcare Bill. It provides an overarching legal framework to govern safe access to a wide range of reproductive health services for women. This includes family planning, pregnancy terminations, adolescent reproductive health and assisted reproduction — including surrogacy.

But it has stirred strong opposition from the powerful religious lobby, who claim it promotes abortion and teenage access to family planning methods. As a result, the bill has become bogged down in the Senate, and is currently being overhauled entirely.

Kihika did not respond to requests for comment.

In the National Assembly, the experienced Odhiambo had cleverly sponsored two bills — a Reproductive Healthcare Bill and an Assisted Reproductive Technology (ART) Bill. “It was a purely tactical move,” she explained to this reporter. “The Reproductive Healthcare one is very contentious while the ART Bill — which tackles surrogacy — is less so. I had to separate the issues so that in case the former doesn’t pass, the latter would be.”

But it has not been plain sailing, either. Although the ART Bill was passed by the National Assembly, it was shot down in the Senate.

It has now undergone some amendments back in the National Assembly’s health committee, and underwent a second reading in the National Assembly earlier this month.

There are many similarities between the Odhiambo and Kihika bills. Whereas Odhiambo’s bill touches on surrogacy in brief, Kihika’s is much more detailed. Odhiambo is on record in the National Assembly saying that she would not object to the bills being harmonised.

Perhaps the most significant proposal is that both would abolish commercial surrogacy.

Commissioning parents would only be permitted to pay a surrogate’s direct medical expenses, loss of earnings suffered during the pregnancy period and insurance cover in case of disability or death, according to Kihika’s proposals.

Commissioning parents would enter into a signed gestational surrogacy contract with a surrogate. Each party would also be represented by a separate legal counsel, with the commissioning parents paying the surrogate’s legal fees.

Surrogates are divided over the possible demise of commercial surrogacy. On the one hand, Monica is elated: “Paid surrogacy encourages exploitation. If I could be a surrogate again, it would never be for money. I would only do it for free, for a couple unable to conceive a baby naturally.”

But surrogate Judy, on the other hand, is going through a difficult time financially and is considering being a surrogate again. “I closed my business. All the money’s gone. If they ban commercial surrogacy, how will I survive?” she asked.

The proposed change could spell the end of the more controversial agencies, although there is likely to still be a need for those which can provide a more limited administrative service.

As Kihika’s bill stands, the commissioning couple would need to prove their inability to have children naturally in order to be allowed to enter into a surrogacy arrangement.

The other significant change proposed in both bills is that the commissioning parents are recognised as the legal parents, with their names being entered in both the birth notification and birth certificate (a reversal of the current situation).

In addition, a child born as a result of gestational surrogacy would also take the citizenship of the commissioning parents and not that of the surrogate mother (another reversal).

With the passage of this law, a surrogate mother relinquishes all parental and custodial rights over the child as soon as she gives birth.

While these changes would smooth the path for commissioning parents, including foreigners, some experts have raised concerns.

Professor Marion Mutugi, a geneticist and Vice Chancellor of Amref International University, has proposed multiple amendments to the ART Bill which she said needed to be much clearer on who can contract a surrogate: “Is it a single woman, married, unmarried live-in partners, same-sex, who?”

Enricah Dulo, a specialist family law advocate and legal expert in gestational surrogacy practice in Kenya, said the legal parentage should not be transferred from a surrogate to commissioning parent based on the strength of a surrogacy agreement alone as there is also a need to protect children from incidences of human trafficking.

As a further safeguard, Dulo would also like the law to provide for a mandatory DNA test after birth, in order to ensure that either the sperm or egg or both were from the commissioning parent(s). This is also to confirm to the surrogate that she bears no genetic link to the child(ren) she carried to term.

“Kenya is known as a source, transit and destination country for human trafficking,” Dulo warned, adding that “parental rights should still be transferred through a court order” after DNA has confirmed a genetic link to the commissioning parents.

“Any surrogacy bill that passes must recognise the rights and welfare of the child as being of paramount importance,” Dulo said.

Postscript: My encounter with JahJah

At the beginning of this investigation, in mid-2019, I posed as a commissioning parent as a way to crack open the secretive world of commercial surrogacy in Kenya.

It was Gaurav Wankhede who first fell for my story. Posing as Angela, a married woman, I told him my “husband” and I desperately wanted a child.

After some toing and froing over email, he put me in touch with his “local manager”, Josephat Kioko Jahjah, who would arrange for me to visit an IVF clinic for tests and would also pair us with a surrogate.

I pumped Jahjah for as much information as I could, which was how he came to tell me about ways to bypass Kenya’s birth registration law.

As I was reluctant to expose myself to any medical tests, as commissioning parent “Angela” I slowly melted away.

But Jahjah came to know I was really a journalist in 2020.  Some surrogates to whom I had identified myself as a reporter had forwarded my messages to him. He later sent me sms’s warning me to stop looking into his surrogacy business, as I was “not Police”.

At one point, he added my number to a surrogate WhatsApp group and then recorded a voice note warning surrogates to stop sharing information with me.

These bullying tactics made some of my surrogate contacts go cold; a few who had previously agreed to give interviews later changed their minds.

I could sympathise with them: some surrogates had already described the control Jahjah and other surrogate recruiters had wielded over them. Some told me how Jahjah had boasted of his financial muscle and good connections with the police.

Much later, when my research was done, I summarised all the allegations I had gathered against Jahjah and Wankhede and sent them via email to their advocate in mid-February 2021, asking for their comment in advance of publication.

Given that I had started this investigation by going undercover, and that I am a freelance journalist, I agreed with my editor and co-publishers, The Elephant and Africa Uncensored, to send the questions on a formal letterhead as a way of underlining my credentials.

Jahjah responded via the advocate the following day, dismissing the allegations as “false and untrue”, but offering to meet “any day and time … to support my claim”.

I was surprised at this offer, and immediately wary of it.

A few days after I responded to Jahjah, requesting a formal on-camera interview with him on a specific date, a surrogate texted me out of the blue to inquire if it was true Jahjah had reported me to the police for investigating and destroying his surrogacy business.

Although I was keen to interview Jahjah in person, I now decided to play things very safe. I would not confirm the exact venue of the interview until the last minute, and I went with two colleagues from Africa Uncensored.

On the morning of the interview I called his number, and an excited-sounding Jahjah picked up. He thanked me for confirming the venue, and said he was looking forward to the interview.

We had chosen the Distrikt Lounge, a restaurant in Ongata Rongai that would be quiet at that time of day. My colleagues had pre-booked a private room at the venue adjoining a pleasant lounge area where the manager had said we were welcome to film an interview.

Jahjah arrived 15 minutes late, curiously underdressed for the cameras. He was wearing a wrinkled loose-fitting sleeveless red T-shirt, baggy blue sweatpants, and casual black shoes. No mask.

He looked confident, arrogant even. Carrying two phones and a charger in one hand, he started distributing his business cards with the other. We each reciprocated with our press cards in turn, but it was mine that Jahjah was most interested in. He asked me to take off my mask, and his eyes moved back and forth between me and my card for some time.

Jahjah declined to sit where our cameraman, Sam Munia, requested and instead positioned himself by the doorway saying he was waiting for his advocate, whom he said was on the way.

It was at this point that Munia noticed three men sitting around a table in the outdoor lounge area taking photos of us on their phones. Pretending he needed a glass of water, Munia stepped outside and spotted another couple of men around the corner.

They called him over and identified themselves as officers from the Directorate of Criminal Investigations (DCI). One of them said they “wanted Naipanoi”.

Munia played for time, giving them his ID and press card details. Our producer, Peris Gachahi then stepped out to do the same.

Left alone with Jahjah, he took out his phone and started photographing me. “Why are you taking my photos?” I asked, and requested that he stop. “I just have to,” he replied, and carried on.

The officers were now losing their patience. Gachahi summoned me to their table, where they inspected my official Kenya Media Council press card and took down my details. They then claimed I was a fake journalist who had malicious intentions towards Jahjah. According to them, a sign of this was because my original letter inviting Jahjah to comment on allegations was formatted incorrectly.

Relief washed over me as my experienced colleagues handled the situation with calm confidence. Yes, they had permission to film there, and the restaurant manager was summoned to confirm it.

The policemen then questioned them about their boss. As soon as my colleagues mentioned John-Allan Namu, co-founder of Africa Uncensored and a respected investigative journalist whose track record has made him a household name in Kenya, the officers backed off.

They said they would wait for the advocate, who arrived a short while later. The officers welcomed her familiarly, one offering her a seat and saying, “Karibu wakili” (‘Welcome, attorney’). She fist-bumped them and sat down, while her eyes seemed to flash concentrated anger and hatred in my direction.

The officer in charge informed her I was a genuine journalist, and showed her my press card. She complained we were forcing this interview on her and Jahjah, but my colleagues and I disputed this. Getting up from their seats, the officers politely informed all of us that “our work is done, we don’t want to interfere,” and took their leave.

Jahjah and his advocate both looked crestfallen, defeated. Things had clearly not gone as they had planned. They conferred with each other briefly, then the advocate informed us that her clients — Jahjah and the absent Wankhede — would not be commenting. “If you want answers, get a court order,” she said. Then they left.

The three of us later drove to the nearby police station, where the DCI officers had told us they were based, to report Jahjah for harassing me by taking photos without my consent.

The officers told us that Jahjah had been there the previous day, to report his suspicions that I was a fake journalist. The officers proposed summoning him to the police station the following week to apologise to us directly. We declined.

Reflecting back on this crazy encounter with Jahjah, his advocate and the cops, I wondered how their ambush might have played out had I arrived at the venue alone.

Then my thoughts turned to the surrogates whose lives and livelihoods are tied to the African Fertility Agency. Is this how they are coerced and intimidated? And what apology will they ever be offered?

This is an edited version of the original story published in May 2021.

Story editing and additional reporting by Lionel Faull, of Finance Uncovered. This article was developed with the support of the Money Trail Project (www.money-trail.org)

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Naipanoi Lepapa is a freelance investigative and feature journalist based in Nairobi Kenya. She is interested in under-reported stories and writes about gender, human rights, health and environmental stories. She also writes about culture and technology.

Long Reads

Pan-Africanism in the Age of Globalization: Capitalism and Poverty

This is the second of a two-part series that assesses the historical progress of the Pan-African movement and considers the global political economy, the relevance of Pan-Africanism in the 21st century and its potential to impact economic and political development within Africa and its diaspora.

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Pan-Africanism in the Age of Globalization: Capitalism and Poverty
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In Chinweizu’s “Africa and the Capitalist Countries” found in General History of Africa, Volume VIII: Africa since 1935, the author discusses various aspects and key points in history that have affected African states that pursued the capitalist road to development. The author explains that after WWII, the leaders of the anti-Axis alliance sought to prevent economic rivalries and hostile competition from capitalist countries, and thus a new economic arrangement was created tomanage peace”.

The arrangement,  the “Atlantic Charter”, was outlined by United States President Franklin Roosevelt and British Prime Minister Winston Churchill, and instituted multilateral organizations to maintain political, economic, and military control of designated regions of the world. The Charter led to the development of the Bretton Woods agreement of 1945, where several economic institutions were created such as the International Monetary Fund (IMF), the World Bank system, and the General Agreement on Tariffs and Trade (GATT) to manage international economic and political affairs, as well as the United Nations Organization and the North Atlantic Treaty Organization, which were established to manage world affairs and secure the collective defence of American and European powers, respectively. The European Economic Community (EEC) and the Organization for Economic Cooperation and Development (OECD) were later instituted to manage commerce, trade, and other economic areas of development.

The aforementioned organizations collectively made up the international structure of rules, laws, and regulations that oversaw the affairs of African states as they were co-opted into them. Moreover, the West was admittedly preoccupied with preventing the spread of Soviet influence in Africa, although such instances exist where African nations received Soviet assistance.

Chinweizu details how the West was determined to maintain its economic order and African dependence on Western powers and how, as a means of reassuring African leadership, it allowed economic development to experience forms of Africanization in order to accommodate Africans who desired political independence. This created a pattern where during the first 25 years of African political independence, any nation’s attempt towards economic development was met with efforts by the West to ensure said development maintained a pro-capitalist form. Despite African nations’ attempts to lead their own economic development in alliance and aligned with capitalists’ interests, they ultimately maintained a position similar to that prevailing in colonial times, and remained the source of economic growth for foreign nations while the economic conditions of African states deteriorated. Chinweizu states that “If anything the colonial economic relations waxed stronger” as African nations did the biding of the UN, the World Bank, the IMF, NATO, end eventually the European Union.

Is Pan-Africanism still relevant in the 21st century

Harris and Zeghidour highlight that internationally there is a need to grow the awareness of the actual numbers of majority black nations and communities, and broaden the awareness of the cultural and social influences of Africans and their descendants as they have roots and are present in South (and North) America, Asia, and the Middle East. They also provide great context about the situation and conditions African states endure in the current global political economy and note that under such conditions it is difficult for diaspora Africans and continental Africans to consistently engage free of external influence such as ideology and national issues. Moreover, the authors declare that African leaders also endure great challenges because they are faced with the prospect of either choosing to serve the interests of African descendants and Africans and affiliating themselves with an international Black network, or aligning themselves with the interest of global superpowers, which were/are apparently against the interests of Africans and African descendants based on deductive reasoning and consideration of historical events.

For example, as noted in “The 1945 Manchester Pan-African Congress Revisited, “in 1945, at the end of World War II, some 700 million people around the world lived under imperial rule. They were “subject peoples”, with no freedoms, no parliaments, no democracy, and no trade unions to protect workers. Post-WWII, many former colonies throughout the world, especially within Africa, were motivated to pursue political independence based on the promises of liberation from colonial states who asked for their support during the war, and the betrayal that ensued when colonization resumed after European nations and their allies adopted the newly instituted Bretton Woods system. Harris and Zeghidour conclude by highlighting that, in their modern form, most African nations are only a generation old and that African leaders have been trained by the former colonial powers, which increases the need for Pan-African efforts among continental Africans as well as diaspora Africans, and the need to advance the welfare of Africa and its descendants.

Any nation’s attempt towards economic development was met with efforts by the West to ensure said development maintained a pro-capitalist form.

The only Pan-African Congress that has been organized in the 21st century thus far has actually occurred in phases, since the 8th Pan-African Congress took place in 2014 at the University of Witwatersrand in Johannesburg, and in 2015 at the University of Ghana. Significant developments of the 8th Pan-African Congress included resolutions which upheld that: Arab and Western countries should compensate with due reparations for the damages inflicted on African people, and this should be pursued vigorously; there should be a day when black workers throughout the world stay away from work to mark the need for reparations; there is a case for reparations regarding the extensive economic and psychological damage that colonialism has done to the African people globally, and which continues today via neoliberal policies; the perspectives, roles, and actions of African women should be considered a foremost priority in all Pan-African movement initiatives; a policy including youth in all phases of future Pan-African work should be established; a commitment should be made to dedicate resources to creating and operationalizing a new Pan-African education curriculum that would not only teach STEM courses but would also teach all African children to see themselves as Africans first, and only secondarily as members of the Wolof, Zulu, or any other ethno-tribal group.

Unfortunately, African nations are only allowed to engage in economic development efforts as facilitated by international overseers such as the IMF, the World Bank, the OECD, the European Union, and the United States. This point is further exemplified by developments in the international economic order such as the G20 Conference, which has South Africa as its sole African nation. Unsurprisingly, South Africa’s economic policies benefit the racial minority population, which is classified as “white”, even as the nation continues to endure high levels of economic poverty (underdevelopment) and a population that is segregated or socially stratified by income and economic status.

The example above demonstrates the need for collaboration among Africans and members of the diaspora, as opportunities to obtain education and employment in developed non-African states do little to contribute to the development of Africa and the diaspora. No matter how many recognitions of “progress” the African diaspora receives, the first Black or African this or that means very little if those individuals do not critically attempt to contribute to the diaspora en masse. Such examples of “progress” can be deduced to be gradualism and tokenism, as they celebrate “acceptance” from the global political economy, much like the Africans who had the opportunity to receive education and employment in developed nations during the 20th century.

As noted in Part I, Pan-Africanism evolved into two distinctive schools during the 20th century: racial Pan-Africanism, which seeks to unite African descendants based on racial classification and social hierarchy, and continental Pan-Africanism, which seeks to unite around issues facing the continent of Africa and African descendants world-wide. In the 21st century, both schools are more than necessary as the conditions of colonialism, slavery, and racialism have only transformed and adapted to the global economy. Therefore, it is also necessary for advocates of the Pan-African movement to develop their treatments and adapt to the current international economic order.

Pan-Africanism is undoubtedly relevant in the 21st century. However, several internal issues and exogenous factors need to be addressed by the African diaspora and by Pan-Africanists. The issues that need to be addressed are significant because they limit the ultimate capacity of Pan-Africanism and its application within the international global order.

Opportunities to obtain education and employment in developed non-African states do little to contribute to the development of Africa and the diaspora.

Whereas the miseducation of African descendants is a by-product and a necessary condition of the global political economy, this absolute truth is hardly told in public and is usually discussed in closed quarters such as the ivory towers, the policy community, and among non-profit, private, or government officials. That said, advocates of Pan-Africanism bear the responsibility of confronting and removing the self-imposed limitations, as the implications of these issues affect the entire African diaspora directly or indirectly. As mentioned above, the mistreatment and marginalization of women, the inclusion and integration of youth into Pan-African agendas, and ideological differences among Pan-Africanists are three areas of primary concern due to the diverging perspectives. The decision of the 7th Congress to create an international secretariat to manage the day-to-day affairs of the movement is an invaluable step in the right direction as it enables adherents of Pan-Africanism to meet frequently.

Thus far, the 21st century has seen many attempts to practice and operationalize Pan-African political, economic, and social ideals in contemporary society. In addition to various members of the African diaspora who are committed to raising awareness about the importance and usefulness of Pan-Africanism in modern society using digital and mobile applications such as WhatsApp, Telegram, Signal, and Skype, as well as social media platforms such as Facebook and Twitter, other advocates have developed websites, podcasts, and dedicated YouTube channels to the Pan-African cause.

Students, activists, scholars, and human rights advocates interested in economic and social justice have utilized the aforementioned applications to organize protests and movements such as South Africa’s #RhodesMustFall and #FeesMustFall, Nigeria’s #EndSARS, the international Black Lives Matter movement, and most recently Howard University’s #BlackburnTakeover have all made pan-African demands and declarations. Established in 2011, Black Power Media (BPM) is an example of Pan-Africanists collaborating via YouTube to distribute news and conduct productive conversations from a Pan-African perspective. BPM describes itself as “a Black-radical independent media project” that seeks to “challenge the narrative about Black politics and the [international] Black condition.”

The contemporary era of Pan-Africanism has received significant contributions from members of civil society, elders, activists, advocates and scholars who continued to uphold the ideology and philosophy. A slew of international and national social and political grassroots organizations and campaigns, such as the Universal Negro Improvement Association, the Pan Africanist Congress of Azania, and the All-African People Revolutionary Party, have organized local sections and continued to advance the movement. As members of the African diaspora continue to engage in world affairs, groups of  private, multilateral, and non-governmental advocacy, policy and economic development organizations have emerged with pan-African aims, such as the African Union, the Pan-African Council and others.

The miseducation of African descendants is a by-product and a necessary condition of the global political economy.

In 2016, the Institute for Pan-African Thought and Conversation was established at the University of Johannesburg as a flagship centre of excellence to conduct research and provide a forum for scholars, practitioners, and members of civil society across Africa and the diaspora to exchange ideas and contribute to the production of pan-African knowledge and culture. Academic journals and conferences around the world continue to receive considerable scholarship from proponents of Pan-Africanism in fields such as African and African American studies, economics, political science, history, public policy, governance, conflict resolution and more. Moreover, publishers in Africa, Europe and the US have continued to discuss the topic and, with the development of the digital era, online publications such as The Elephant have emerged as leading platforms for pan-African discourse, culture and information.

Can Pan-Africanism catalyse development in Africa?

Economic development and policy reform are boosted by political liberation, yet Africa’s new democracies continue to experience economic underdevelopment. In Democratization in Africa: Progress and Retreat, Peter Lewis considers this the “democracy-development disconnect” in his essay “Growth Without Prosperity in Africa”. Lewis notes:

“Officials and average citizens alike often note the ‘disconnect’ between macroeconomic indicators and microeconomic performance…data on poverty and human development are showing few significant improvements, and citizens report discouragement when surveyed about attitudes and economic conditions… This paradox presents a basic challenge for Africa’s new democracies. However desirable democracy may be in its own right, political liberalization does not ensure economic regeneration or improved popular welfare [and] the tension between democracy and welfare is evident…”

Lewis continues his analysis and suggests that while early observations of democracy in Africa did not outperform non-democratic African governments economically, a recent study by Brian Levy assessed 21 African states between 1975-2000 and found that African states pursuing democracy and economic reforms were more successful than non-democratic states. Despite the metrics used to assess economic growth in Africa, (GDP growth, income per capita, etc.)  – which led to Levy’s assertion that democracies in Africa were economically successful – such metrics are deceiving as they conceal two important limitations. Firstly, African states are under the purview of the international economic order, which ensures that non-African states benefit from African labour more than African states due to the extraction and commodity-based economy. Secondly, democratic African states that experienced “economic progress” according to Levy, also suffered from welfare state policies, as the public welfare of citizens did not improve, which further illustrates Lewis’ point of “growth without prosperity in Africa”.

Pan-African attempts to development are centred around African-led methods to development that supersede the obstructions of capitalism, and seek to improve the political, economic and social conditions of Africa’s states as well as the diaspora en masse, despite geography. That said, one could assume that if African leaders, heads of state, institutions, and lay people within the diaspora were genuinely given the opportunity to collaborate and construct ways to catalyse said development, they would be at least moderately successful. Whereas the continent of Africa is extremely diverse, with varying histories and cultures, absolute consensus is not necessary. Members of the diaspora and Africa’s stakeholders do not need to agree on every aspect of economic and political developmental approaches; they only need to agree to eliminate any obstruction and hinderance to development, whether capitalist or non-capitalist.

Revitalised Pan-Africanism: An egalitarian and humanitarian approach

African states continue to be politically and economically dominated by a minority of global citizens who reside in developed nations (note that some of these individuals take residence on the continent), while Africans are only seemingly valued as labour. Considering the nature of development in Africa, as well as the legacy of slavery, colonialism, and contemporary issues of racialism within the diaspora, it is important to consider how the African diaspora’s unique way of creating, surviving, and thriving under extreme conditions can be applied to political and economic development in Africa. Development in Africa in the era of globalization has occurred under the guidance of international organizations and developed nations with either capitalist or socialist economic systems, which ultimately benefits foreign nations, international organizations, and non-Africans more than Africans en masse. This relationship should be mutually beneficial for Africa’s economically and socially marginalized populations to experience uninterrupted development.

In order for the 21st century to witness the improved potential of the movement, Pan-Africanists need to abolish the marginalization of African women and integrate the perspectives and input of women who have lived on the frontlines and at the intersections of the movement for centuries. Historically the role of African women has been reduced yet Pan-Africanists should be aware of the political, economic, military, social, and cultural feats and contributions of African women. Beyond their historical role as woman warrior queens, queen mothers, queen-regents, and commercial and agricultural masters, African women continue to lead, stabilize, restore and heal, and innovate social, cultural, professional, political, and economic processes and activities in nations all around the world. No nation would exist or function without the contributions, acknowledged or unacknowledged, of African women. The movement must consider these facts and reorganize or recalibrate itself so that African women are not only viewed as equal, but also that social and institutional mechanisms support women in the same fashion as women have supported the efforts of male African descendants.

African states are under the purview of the international economic order, which ensures that non-African states benefit from African labour more than African states.

Pan-Africanists must also identify mechanisms to transcend the political, economic, and socially constructed limitations imposed by political, economic, or socio-cultural ideologies and paradigms such as race, class, gender, sex, religion and political party affiliation. For example, the international Black middle class could practice Amilcar Cabral’s theory of class suicide in order to foster connections with members of the diaspora who do not have proportionally higher incomes.

Pan-Africanists must openly and actively discuss the issues brought about by miscegenation (sexual reproduction with people outside of the African diaspora) and colourism, which directly relate to what I consider the “politics of sex” and the “politics of race”. Pan-African enthusiasts need to collectively understand the unspoken rules of so-called “interracial reproduction”, or miscegenation, and social hierarchy based on skin complexion, or colourism, which are socio-political mechanisms to marginalize/reduce, or to domesticate their African-ness/Blackness (Africanity) and draw them closer to people who identify as white.

Lastly, Pan-Africanists must identify mechanisms to reduce xenophobia in all its forms within the African diaspora, including but not limited to: misogyny, homophobia, transphobia, ethnic and religious-based discrimination, prejudice against immigrants, elitism, anti-homelessness, anti-intellectualism, gerontophobia (discrimination and fear of aging and the elderly), Islamophobia, and Africanophobia (fear of Africa/n related concepts). 

In order to generate an example of an applicable method of Pan-African development in the 21st century and beyond, a more inclusive and global perspective is needed that incorporates all members of the diaspora. Rather than seeking consensus among supporters of Pan-Africanism, proponents need to understand the aims of the movement, create spaces for all African descendants to contribute, and not perpetuate the dehumanizing practices that were used to politically, culturally, and socially separate African descendants.

No nation would exist or function without the contributions, acknowledged or unacknowledged, of African women.

As an example, this essay suggests “Black Equalism”, which is a human rights philosophy rooted in Pan-Africanism and egalitarianism. Black Equalism seeks to advance the cultural, social, economic, and political parity of African descendants and the world at large, and to inspire and promote egalitarian thought, principles, and practices. Should such a philosophy be utilized and promoted within the diaspora, it could possibly ameliorate the impact of capitalism, which is rooted in classism and imperialism. 

Egalitarianism can be defined as “the doctrine that all people are equal and deserve equal rights and opportunities”. Egalitarianism is the opposite of elitism, promotes a classless society, and advances the notion that “all members of society deserve equity and are equal despite social, political, and economic status”. By synthesizing Pan-African thought with egalitarianism in the 21st century, Black Equalism seeks to advance the cultural, social, economic, and political parity of African descendants, and to inspire and promote egalitarian thought, principles, and practices. Black Equalism seeks to promote and facilitate the development of bonds, paradigms, campaigns, entities and institutions, and social, economic, and political systems that feature, serve, develop, and incorporate all members of the African diaspora regardless of educational background, income level, gender, sexual orientation, nationality, ethnicity, residence, geographic location, and political and/or religious affiliations (otherwise known as social, political, or economic status).

To that effect, should individuals including but not limited to: artists, designers, writers, intellectuals, entrepreneurs, investors, philanthropists, performers, musicians, poets, community organizers, business people, scientists, engineers, technologists, teachers, or anyone interested in collective action to change the status quo actually work together, one can deduce that the diaspora and the continent would benefit. 

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Within the Margin of Error? — A Post-Election Polling Retrospective

Assessing the accuracy of survey results and examining the five factors that contributed to pollsters missing the mark in the 2022 elections.

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Within the Margin of Error? — A Post-Election Polling Retrospective
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Now that nearly all of the election “dust” has settled, it is appropriate to revisit the results of the final round of pre-election presidential contest polls that were presented in my last piece. In doing this I shall compare them with the official/IEBC results and attempt to explain the apparent contrasts.

But has nearly all the ‘dust’ really settled?

Before undertaking the main task at hand—analysing the degree to which the last round(s) of surveys generated presidential results that were reflected in those declared by IEBC Chair Wafula Chebukati—it seems necessary to explain the delay in finishing this piece for The Elephant.

Ever since the return of election polls ( themselves coming in the wake of the return to multi-party competition in the 1990s) a major challenge in assessing their accuracy has been the credibility-deficit often associated with the official results. Leaving aside the assumed willingness of survey respondents to “honestly” reveal their voting intentions, as well as the impossibility to exactly predict voter turnout, a number of factors have been identified—and on some occasions, well documented—including: the buying of IDs/voters’ cards, threats to/physical obstruction of would-be voters, intimidation of/interference with campaign activities, ballot-stuffing, and fraudulent vote-counting. As such, one survey firm that had undertaken pre-election polling since 1997 decided prior to the 2013 contest not to do this (at least for public release) “until and unless we are confident that the official results are credible”—although just how this might be determined raises additional issues.

For last year’s election as related to this piece that seeks to assess the accuracy of survey results, it was thus necessary to wait to see if any credible evidence emerged that might at least cast doubt on the official presidential results, especially since, as shown below, nearly all of the final pre-election survey results were “wrong”—that is, not just showing a “different” candidate winning, but also doing so by a  figure that was well outside the margins-of-error of the reported polls. The author therefore paid close attention first to whatever grounds the four dissenting IEBC commissioners had for refusing to confirm the results announced by their chairman, and then to the nine “consolidated” petitions that were taken to the Supreme Court, and the issues that the Court sought to scrutinize and determine. However, the commissioners remained silent, with three of them subsequently resigning, apparently to avoid interrogation by the tribunal established by the president following its authorization by the Kenya Kwanza majority in the National Assembly. Court proceedings also yielded far from sufficient evidence to “prove” that the election was “stolen”, even if not all of the arguments used to overcome these petition challenges were entirely convincing.

As such, it was possible to complete a draft of this piece within several months of the election.  However, almost immediately thereafter, one of the IEBC commissioners, Ms Irene Masit, declared that rather than resign as did her three “dissenting” colleagues, she would contest her possible removal through the above-noted tribunal . In this context, shortly before her first scheduled appearance before it, she announced her intention (in mid-December) to release a “bombshell” about the official presidential results. It was, therefore, rather an anti-climax when she failed to appear at the hearing, instead sending her lawyer, the focus of whose complaint was the composition of the tribunal rather than any substantive refutation of the results.  Indeed, despite several additional tribunal sittings, no such “bombshell” was ever dropped, with Masit remaining silent throughout (even if doing so may have contributed to the tribunal’s ultimate decision to recommend her removal from office), leaving the motivation behind her initial statement quite up in the air.

On the other hand, a different “explosive device” was lobbed by Raila Odinga on 18 January—and repeated several times thereafter in several public rallies and press statements: that a “whistle-blower” from within the IEBC had made available the full constituency results of the presidential contest (which are yet to be posted on the IEBC’s website) showing that Odinga had won with a margin of over two million votes, giving him some 57 per cent of all votes cast.  Just why it had taken so long for these “true results” to be made available (either by the ‘whistle-blower’, or by Azimio depending upon when they were provided) was never explained, however, and a rigorous scrutiny of them by a long-term observer-analyst of Kenyan elections, Dr Charles Hornsby, cast serious doubt about their credibility. Central here was his comparison of the supposedly “true” presidential tallies in a number of key constituencies (“key” in the sense that these results amounted to a complete reversal of the official presidential figures), but where, almost without exception, the parliamentary results, none of which the “whistle-blower” sought to refute, amounted to overwhelming victories for Ruto’s UDA party and its affiliates, thus making such reversed presidential results incredulous. (It is also curious why Masit remained silent about them, whether during the tribunal’s hearings or at any other time, as well as why the “whistle-blower” had not made them available to her or to any of the other dissenting commissioners before they resigned—assuming this was the case.)

Just why it had taken so long for these “true results” to be made available by Azimio was never explained.

Even more recently, the investigative and civic education NGO, Inform Action, released a report that assessed the degree to which last year’s election met the standards demanded by the constitution and relevant statutes. While it identified numerous failings at all stages of the electoral process, none was identified as having significantly affected the presidential results.

In sum, then, no incontrovertible evidence has come to light since the election that calls into question the validity of the declaration of William Ruto as the winner. This includes the claim, also made on several occasions by Azimio leaders, that an exit poll confirmed the results released by the IEBC “whistle-blower”. Yet no figures were released in connection with this poll , let alone the identity of the agency that conducted it or any details of the methodology used (i.e., sample size and distribution across which polling stations, the number and wording of the questions asked, the proportion invited to be interviewed who refused and their distribution over the map, etc.)  Such doubts were magnified by the fact that (especially if the results were favourable to Odinga) the results were not released immediately all the polling stations had closed, as is the general case globally, or at least prior to the announcement of the official results five days later. Further, an effort to obtain such information by writing to a senior Azimio official yielded no fruit.  (Why various media interviews with Azimio leaders since this claim was first made failed to raise any of these questions is also curious.)

No incontrovertible evidence has come to light since the election that calls into question the validity of the declaration of William Ruto as the winner.

With this context (which, it should be noted, however, is at least potentially subject to change), the main issue examined in this piece can be addressed: what (if anything) can explain the significant gap between nearly all of the final round of polls and the official results?

Were the pollsters ‘wrong again’?

Notwithstanding the usual disclaimers from survey firm representatives that their results were “snapshots-in-time” rather than predictions, questions about the accuracy of their work arose immediately enough constituency-level results had been tallied to indicate that even if Odinga was going to emerge the winner—or even whether either he or Ruto would get over the 50 per cent + 1 hurdle—the margin between these two main contenders was going to be far smaller than the final polls had indicated, with one exception: that of Radio Africa, the only one that put Ruto in the lead, although within that poll’s margin of error, as indicated in the following table containing all these results as well as their collective average:

Chart 1
Moreover, and as I have noted in previous pieces in this series, since ballots do not provide any “undecided” or “no response” options (and those left unmarked or spoilt by any “stray” marks are removed from the total of “valid votes cast” that is used to calculate the 50 per cent + 1 requirement), it would make sense this close to an election to also calculate survey results with those no-named-candidate results removed, which are presented in the table below for TIFA (and which were included in its 3 August media release) and the five-survey average, as well as the official/IEBC results:

Chart 2
In other words, Ruto obtained about 6.5 per cent more votes than his five-poll average of 44 per cent, and Odinga obtained about 5 per cent less than his average of 54 per cent.

So, what might explain this “error”? (And note that the margin of error in none of these “incorrect” polls does so.) To answer this question, five factors will be considered: the “evaporation” of expressed support for the two minor candidates; the postponement of gubernatorial contests in two counties; the variable distribution of voter turnout; respondent dishonesty; and a possible late “wave” in Ruto’s favour.

Factor one: burst of the Wajackoyah ‘balloon’

I had previously suggested that the expressed intention to vote for George Wajackoyah—which was recorded at 4 per cent in TIFA’s late June survey—could have been largely “for fun”, and that some, if not most, of those respondents who actually vote would bring themselves to choose between the only two serious contenders.

That this was a likely scenario was suggested by the drop in expressed support for him by more than half (to 1.8 per cent) in TIFA’s final pre-election survey. Given the fact that—as was the case previously—in that survey Ruto had rather more support among voters under 35 and that Wajackoyah had nearly three times more support among such voters than among the more elderly, it can be assumed that on 9 August, Ruto was the main beneficiary of the “evaporation” of Wajackoyah’s votes to less than 0.5 per cent.

Factor two: the two postponed gubernatorial contests

A second factor is the failure to hold elections for governor in two counties where Odinga received clear majorities. As may be recalled, it was immediately clear on 9 August  that there had been a “mix-up” of the gubernatorial ballot papers in Mombasa and Kakamega counties, with the candidates’ images on the ballots failing to match their names. This meant that the elections for these positions had to be postponed, raising the question as to how much that might depress voter turnout in these two counties. That this was a concern on the Azimio side was evident when Mvita MP and ODM gubernatorial candidate, Abdulswamad Nassir, cried foul on the basis that these  “are all ODM strongholds and we read ill-motive to reduce the number of votes in favour of Raila Odinga”, an allegation also contained in one of the Supreme Court election petitions subsequently filed on Odinga’s behalf.

Buttressing Azimio’s argument (though not mentioned in the petition) were the results of a question in TIFA’s final pre-election survey, released on 3 August, which revealed that Kenyan voters perceived the importance of the position of governor as equal to that of president, and thus its absence from the ballot would most certainly have a negative impact on voter motivation.

Chart 3
In its full judgment, the Supreme Court, having first affirmed the IEBC’s authority to postpone elections under various conditions including those at issue here, held that the petitioners had failed to prove that the postponement led to a suppression of voter turnout, and that it was motivated by malice.

Leaving aside the second point about any “malice or bad faith”, a more precise estimate than that which was presented to the Supreme Court helps to reveal the extent to which voter turnout in these two counties was, in fact, depressed, and how this impacted on the presidential results in those counties.

In answering these questions, a more detailed review of the presidential election results is helpful.  First, according to the IEBC, 65.1 per cent of nationally registered voters cast votes, 99.2 per cent of which were valid, making a total of 14,213,137 valid votes.  Of these, 50.49 per cent were cast for Ruto and 48.85 per cent for Odinga.  Ruto’s total was based on receiving 233,211 more votes than Odinga, and 69,573 votes above the 50 per cent + 1 required for an outright win.  However, national turnout was rather lower than it was in the 2017 election (77 per cent).  Among several national level factors that may account for this, most widely acknowledged was the absence of a serious presidential candidate from the Mt. Kenya region, so that voter turnout there was 15 per cent below the 2017 figure.

Kenyan voters perceived the importance of the position of governor as equal to that of president.

With specific regard to Kakamega and Mombasa, five years ago the turnout was 75 per cent in the former and 59 per cent in the latter. This time, apparently (but not conclusively) due to the absence of gubernatorial ballots, these figures were 60 per cent and 44 per cent, respectively. By comparison, the average for the other four counties in the western region was 64 per cent, and in the other five coastal region counties, 59 per cent, both considerably higher than in the two counties at issue.

At the Supreme Court, however, the petitioners used an average turnout of 72 per cent for the last three elections in Kakamega, and posited an average of 56 per cent in Mombasa, yielding a 12 per cent turnout gap in both counties on 9 August. However, given the credibility issues regarding voter turnout in previous elections, using regional county averages from 2022 as well as the differentials between Kakamega and the rest of western and between Mombasa and the rest of the coast region, yields a more accurate estimate of what the turnout in these two counties would likely have been had all six positions been on the ballot.

In order to arrive at such an estimate, the difference in average turnout in the 2017 and 2022 elections for the counties in each of the two regions—aside from the two at issue—was calculated. For the western region, aside from Kakamega, turnout in 2022 was 12.1 per cent below what it was in 2017.  Based on this reality, since turnout in Kakamega in 2017 was 74.9 per cent when all six positions were on the ballot, it may be assumed that in 2022 it would have been about 63 per cent, or 3 per cent higher than the 60.3 per cent recorded on 9 August.

A similar calculation for the coast region (leaving aside Mombasa) yields a figure that is 11.2 per cent below the 2017 level for its five other counties.  As such, taking into account that turnout in Mombasa in 2017 was about 9 per cent lower than it was in the region as a whole (60.0 per cent), it appears that in 2022 it would have been 51 per cent. However, given that the 2022 gubernatorial contest was considerably more competitive (in which Abdulswamad Nassir of ODM defeated Hassan Omar of UDA by a mere 20,000 votes) than in 2017, a slightly higher turnout may be assumed compared to 2017 when Ali Hassan Joho had no serious challenger. Thus, perhaps 53 per cent is a more likely figure, about 9 per cent higher than what occurred on 9 August.

Based on the above pair of assumptions, the disadvantage Odinga suffered through these two postponements can be estimated. For Mombasa, 9 per cent of all registered voters represents 57,813 votes.  Assuming that these “extra” votes would have been split in the same proportions as were the votes that were cast on 9 August, Odinga (having obtained 58.07 per cent) would have garnered an additional 33,571 votes, and Ruto (who obtained 41 per cent) an additional 23,702 votes.  Similarly, in Kakamega, Odinga would have garnered an additional 18,002 votes, and Ruto an additional 7,101 votes, had voter turnout been 3 per cent higher.

Taking these “lost” votes into account, the national totals for both candidates would therefore have risen to 7,206,944 for Ruto and 6,994,503 for Odinga. The quite modest gain for Odinga thereby reduces the overall gap between them from 233,211 to 212,441.  Further, if we assume that the two other candidates would between them have gained another 800 or so votes (based on totals of 0.93 per cent in both counties, giving them a combined national total of 94,756), that would have brought the total national vote to around 14,296,000 valid votes.  This, in turn, means that Ruto would have obtained about 50.41 per cent of all valid votes (rather than 50.49 per cent), while Odinga would have obtained 48.93 per cent (rather than 48.85 per cent).  Overall, these figures would have slightly narrowed Ruto’s margin above 50 per cent: from 69,573 to 58,944 votes.

As can be seen, these calculations do not affect the overall result, but they are measurable, and it may be asked why the petitioners were not more precise in their submission to the Court, if they were going to be presented at all.  At the same time, given the dismissive language in the Supreme Court’s eventual full judgment, it is unclear how large such a turnout gap would have had to be in order for this aspect of the IEBC’s performance to be taken into account, or whether any such gap would have been enough to force such a consideration unless one or more petitioners could have convinced the Court that such errors were deliberate as opposed to being only “accidental” ballot-printing errors by the Greek firm that supplied them.

Factor three: turnout differential – Ruto vs. Odinga ‘strongholds’

The next and potentially much weightier “suspect” for the pollsters’ “error” is national voter turnout, as TIFA emphasized in a “Cautionary Note” that accompanied its 3 August media release: “The outcome of the election depends on voter turnout and this cannot be predicted by surveys.” Even earlier, in several of its pre-election survey-release, TIFA had also made clear that far more respondents were claiming to be registered voters than was indicated by the IEBC’s figures. For example, in its second-to-last pre-election survey (conducted at the household level from 21 to 26 July), 93 per cent of randomly selected respondents claimed to be registered voters, yet based on the adult population as identified in the 2019 Census plus the youth who came of age since the last voter registration exercise was concluded in February of last year, the correct figure is only slightly aove 80 per cent.

Such a “reality-check” is bolstered by comparing the proportions among those claiming to be registered voters in the nine zones used by TIFA in presenting its findings who stated that they would “definitely” or “probably” vote with the IEBC’s actual – and significantly lower – figures:

Chart 4
As shown, while the national level gap is a hefty 30 per cent, it varies across these 9 zones from a high of 34 per cent in the coast region to just 1 per cent in the South Rift.  The key question, therefore, is to what extent the variations in actual voter turnout explain TIFA’s (and several other firms’) “erroneous” final survey figures.

To answer it, we can first look at the voter intention figures from the same late late July TIFA survey and compare these with the percentages actually won by each candidate in the nine zones:

Chart 5In doing so, several points emerge.  First, in the respective home-zone areas (Nyanza and Central Rift) of the two main presidential candidates, the gaps between TIFA’s results and those of the IEBC are minimal (i.e., only 2 per cent higher in Nyanza, and only 1 per cent lower in Central Rift). Second, Ruto did almost as well in the second zone in which he obtained a majority—Mt. Kenya—as he did “at home”: 79 per cent vs. 83 per cent, only a 4 per cent difference.  By contrast, in the zone where Odinga obtained his second largest majority—Lower Eastern—his majority was considerably smaller than it was “at home”: 75 per cent vs. 87 per cent, a 12 per cent difference. As has been noted, Odinga’s running-mate in this election came from Mt. Kenya region, as did Ruto’s, and not from Lower Eastern, the home of Kalonzo Musyoka who had been his running-mate in the previous two elections. Third and finally, Odinga suffered decreases in his actual vote proportions as compared with his TIFA figures in two zones – South Rift and Nairobi—amounting to 18 per cent in total, whereas Ruto’s negative difference-gap in Central Rift was only 1 per cent.

It is unclear how large such a turnout gap in Mombasa and Kakamega would have had to be in order for this aspect of the IEBC’s performance to be taken into account by the Supreme Court.

With these contrasting regional results in mind, does differential voter turnout explain any of the pollsters’ pre-election “error”?  The simple answer is “yes”, but to what extent requires another “deep dive” into the official/IEBC data.

First of all, of all 48 electoral units, Odinga obtained more votes than Ruto in 28 (27 counties plus the Diaspora), leaving 20 counties in which Ruto out-scored him. In the former category, there were 7,968,238 valid votes, while in the latter there were 6,244,799.  However, whereas Odinga obtained only 70.6 per cent of all valid votes in his “dominant” areas, Ruto obtained 78.3 per cent in his.  Or to put it the other way round, while Ruto obtained 28.7 per cent of all valid votes in Odinga-dominant areas, Odinga managed only 21.1 per cent in Ruto-majority areas. In terms of actual votes, Odinga got 5,627,630 votes in his “strongholds”, while Ruto garnered 4,889,909 in his. However, what got Ruto over the line is that while Odinga obtained only 1,315,300 votes in Ruto’s areas, Ruto obtained 2,286,232 in Odinga’s.

What got Ruto over the line is that while Odinga obtained only 1,315,300 votes in Ruto’sareas, Ruto obtained 2,286,232 in Odinga’s.

Such figures underscore the importance of voter turnout in explaining Ruto’s advantage.  Specifically, whereas it was about 69 per cent in the 20 Ruto-dominant counties, it was only about 62 per cent in Odinga’s 27 (leaving out the few Diaspora voters).

This analysis can be extended by answering another specific hypothetical question: what would the results have been if voter turnout had been identical to the national average of 65.1 per cent in all 47 counties? In terms of votes, Odinga would have obtained 7,140,924 as compared to Ruto’s 7,078,521 (with the remaining 98,319 divided between Wajackoyah and Mwaure), thereby pushing the former up to 49.9 per cent vs. 49.8 per cent for Ruto.  Further, when Odinga’s “lost” votes from Kakamega and Mombasa are added, his total would have stood at 50.3 per cent as opposed to 49.7 per cent for Ruto, giving the former an outright/first round win, though with a victory-margin of just over 0.5 per cent, almost equal to that of Ruto’s official win, although still less than what nearly all of the final polls reported.  Why so many more of Odinga’s potential voters failed to show up at their polling stations on 9 August is a question I shall leave for others to answer.

Factor four: respondent dishonesty

An additional factor that could help to explain the discrepancy between the last round of polls (average) and the official results is respondent dishonesty.  It is of two types: unfulfilled intentions and outright falsehood. An example of the latter, as noted above, is respondents claiming to be registered who in fact were not, and thus never voted.  Indeed, in selecting respondents for its two final pre-election surveys, TIFA excluded those who “confessed” to not being registered, although it was not possible to verify the registration claims of the remainder, let alone to match those non-voters with their expressed presidential voting intentions.

TIFA sought to identify the “liars” in its July survey, which was conducted in person at residences, by asking all respondents to name their polling stations, but only 94 per cent could do so. Here it should be recalled that in terms of expressed presidential vote-choice in that survey, Odinga out-scored Ruto by 46.7 per cent to 44.4 per cent, a 2.3 per cent difference. Yet when results are limited to those who could name their polling station, Odinga’s lead shrinks to just 0.2 per cent, from 46.4 per cent to 46.2 per cent, suggesting that there was more “dishonesty” about being registered among Odinga supporters. Moreover, the likelihood that, in comparison with the TIFA findings, Odinga “lost votes” by such dishonesty is also suggested by the fact that among those who failed to name their polling station, far more expressed voting intentions for Odinga than for Ruto (53 per cent vs. 19 per cent), and that another 19 per cent said they were “undecided” as to whom they would vote for, as compared with only 5 per cent among those who did name their polling station.

One other factor that could explain part of the discrepancy between the last round of polls (average) and the official results is respondent dishonesty.

(At the same time, asked about their likelihood of voting, the combined figures of “will probably not” and “not sure” are the same for those expressing vote-support for both Odinga and Ruto—3 per cent—countering an assumption that those not registered would be more likely to express doubts about their participation in the election at all. In light of such issues, it is unfortunate there was no exit poll even if limited to a few counties, since ipso facto it would have involved only actual voters.)

The above analysis leads to an obvious question: why would at least a significant number of survey respondents have claimed they would vote for Odinga when they had decided otherwise?  While this issue could be explored in subsequent surveys, at this point two closely related factors seem to have encouraged at least some “dishonesty” of this nature. One is the visible support given to Odinga’s campaign by the incumbent Uhuru Kenyatta government, which according to reliable reports, involved both financial and rhetorical support, the latter including exhortations, if not clear threats, by local administration officials. While the impact of such direct involvement on voting is unclear, it seems reasonable to conclude that it served to intimidate at least some respondents, making them uneasy about declaring their intentions to vote for Ruto even in surveys conducted by non-state entities.

Such a conclusion is suggested by the responses TIFA obtained in its April survey to a question (that had also been included in five previous surveys) asking which presidential candidate, if any, respondents thought President Kenyatta supported. Overall, 73 per cent named Odinga. However, rather more of those expressing an intention to vote for him held this view than did those stating they would vote for Ruto (85 per cent vs. 79 per cent). In other words, the fact that more of Odinga’s expressed supporters believed the incumbent president was supporting him than did Ruto’s may have really been an indication that they were not being “honest” but rather sought to align themselves with incumbent presidential power.

Such ‘unease’ is also indicated by the finding in TIFA’s late-July survey that found that among the substantial minority of those who reported having voted for Odinga in 2017 but who intended to vote for Ruto in this election, two-thirds explained their ‘defection’ from him as a consequence of his ‘handshake’ with President Kenyatta.  As such, even those still stating they would vote for him may have likewise had this as their main motivation for not doing so, but not wanting to ‘confess’ the same to TIFA and other survey firms.

Another related factor is the widespread assumption that Odinga, being the recipient of such state support, would inevitably win (which likewise appears to have contributed to lower turnout in Odinga “strongholds” as already suggested).  As such, even some of those committed to voting for Ruto were likely reluctant to risk getting on the “wrong side” of an expected Odinga government by declaring their true voting intentions, even to private/independent survey firms such as TIFA.

Further, in TIFA’s final survey, a total of 7 per cent of respondents declined to identify their presidential voting intentions, with 4 per cent claiming to be “undecided” and the rest simply remaining silent. Even if 78 per cent of those without a stated presidential vote-preference also failed to identify with any political party (thus suggesting a general lack of interest in politics and thus a lower likelihood of voting at all), this proportion on their own could have been enough to eliminate the polls-vs.-IEBC gap between Odinga and Ruto, and then some.

Factor five: a possible ‘late wave’

Aside from “dishonesty” among those 7 per cent in TIFA’s final survey who declined to reveal their presidential voting intentions, it is possible not only that some of them failed to vote at all, but that others only made up their minds at “the last minute”. Moreover, a small proportion who had honestly expressed an intention to vote for Odinga changed their minds in the intervening period between these final surveys and 9 August, for whatever reasons, and voted for Ruto.  Recall here that according to The Publication of Electoral Polls Act (2012), no such results can be published within five days before election day. This means that even the last such survey undertaken and released in this election cycle was completed a full week before that day. In this case, also, it should be possible to identify at least some of these “last-minute” decision-makers in a post-election survey. And several commentators and political actors indicated that such a “wave” was likely, and after the election, that it did, in fact, occur.

For example, just a week before the election, during a discussion of the most recent polls on one of the morning TV political talk-shows, Dr Peter Kagwanja dismissed Odinga’s modest lead by claiming that in the Mt. Kenya region, at least, “You will see a major swing towards Odinga when the votes are tallied because people from this area, not having a presidential contender for the first time, are determined to be where power will be for the next five years, and it is clear that will be an Azimio government.”  But such a “swing” could have been in the opposite direction.

Indeed, several weeks after the election, one senior Kenya Kwanza leader from this region claimed to the author that “in our final rallies, we could feel the surge in our direction, such as at Kirigiti in Kiambu, which was our last big rally.”

Altogether, then, while impossible to substantiate without further post-election research, such a ‘late wave’ cannot be ruled out, and to the extent it did occur during the final week, it could not have been captured in the final surveys, once again highlighting the value of an election day exit poll.

A few longer-term take-aways

While each of the five factors examined above could have contributed to Odinga’s loss, it is not possible to precisely measure their impact (even if an attempt was made to do so with regard to the second and third of these).  The question that remains is whether, taken together, they could sufficiently explain why the official results deviated significantly from nearly all of the polls conducted towards the end of the campaign period. While the answer must be left for readers to answer, it seems certain that if the outcome had been an Odinga win, even by a narrower margin than Ruto obtained, the media would have most certainly reported that “the pollsters were correct”, even if this result would have been outside these polls’ margins of error!

Even some of those committed to voting for Ruto were likely reluctant to risk getting on the “wrong side” of an expected Odinga government by declaring their true voting intentions.

Whatever the case, and despite the fact that far more use was made of such survey tools by the major presidential campaign teams (and also by many candidates below that level), it seems that “serious” survey firms may have to re-think certain aspects of their methodology, in terms of both the selection of respondents (for example, trying to discover why some people decline to be interviewed in case such non-participation might create a “silent” bias, even within particular ethnic groups) and the reliability of the answers they give to certain critical questions. Likewise, they may need to publish their final results in terms of several potential scenarios, beginning, perhaps, with variable voter turnout figures in both national and regional terms. Indeed, in his last pre-election blog, Hornsby, using such a multiplicity of factors – including the most recent polls – ‘guessed’ that Ruto would win within a 1 per cent margin – which is exactly what happened.

Such considerations raise one question this piece has yet to address: “What about the ‘correct’ Radio Africa/Star poll?”  A valid question, but an answer seems elusive.  In the US, following considerable embarrassment associated with the performance of a number of reputable pollsters in the last two elections, they sat down together to share their thoughts as to what ‘went wrong’, and what steps could be taken – mainly with regard to sampling models – to remedy such errors.  But doing so required a level of data-sharing transparency that has no precedent in Kenya, where the few firms that conduct these surveys have never (to my knowledge) engaged in such a collective exercise, which would clearly have to include a comparison of the ethnic distribution of their samples, given the salience of this factor in voters’ choices.

Recall, however, that an early June poll by Radio Africa gave Odinga a six per cent lead, whereas late-May surveys by Infotrak and TIFA placed him ahead of Ruto by only 4 per cent.  And in April, while a TIFA poll put Ruto ahead of Odinga by 7 per cent, Radio Africa gave the former DP an advantage of just 5 per cent. As such, the basis for Radio Africa’s ‘predictive success’ in that poll remains unknown, least for now.

But beyond any such “errors”, those involved in the conduct, dissemination and use of such data in a still-young democracy such as Kenya must not get distracted from the larger—and, it can be argued—more important question: Do such research tools contribute to the strengthening of democracy, both among those competing for office and those with the power to determine winners and losers—that is, the voters themselves?

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Religion and the Tragedy of the Kenya Middle Class

The Kenyans who are really blinded by religion are not the ordinary ones who are actively religious, but the educated ones who are against religion. It’s an intellectual entanglement so spectacular that would put the emotional entanglement of the Smiths to shame.

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Religion and the Tragedy of the Kenya Middle Class
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When William Ruto won the 2022 general elections to become Kenya’s fifth president, local and international media were awash with discussions of Ruto as an evangelical president. The excitement, however, was informed less by Kenyan religion or politics and more by right-wing Evangelical America and its war on homosexuality and abortion. Le Monde, a major newspaper from a country that boasts of being the home of the Enlightenment, was understandably preoccupied with Kenya’s adherence to secularism. The BBC was curious about the president’s stand on homosexuality, but not about secularism, which would have been strange for the public broadcaster of a country whose head of state is also the head of the Anglican church.

Kenyan intellectuals, who are largely educated on Western liberal values and human rights, were also inclined to focus on concerns about secularism. Editorials of Kenyan media waxed lyrical about the need to separate the church from the state. Other observers, inspired by the reversal of Roe v. Wade in the US, voiced concerns that women might suffer an attack on their reproductive rights under a Ruto presidency.

Much of this analysis misses major nuances of religion and politics in Kenya, and comes from rigid adherence to the false dichotomy which Eurocentrism has placed between reason and faith.

The ambiguity of Evangelicalism

It is important to note that most Kenyans cannot distinguish the doctrines of different Christian faiths. In the 70s and 80s, they might have defined that distinction largely by the concept of “getting saved,” because Catholics stood out as the only branch of Kenyan Christianity that did not believe in salvation from a personal relationship with Jesus. From the late 80s onwards, a Kenyan might have offered a vague distinction of Protestantism from other faiths based on the style of worship, pointing out that mainstream Protestant churches sang hymns, listened to choirs singing in four-part harmony and prayed silently, while Pentecostals and African traditional churches sang vibrant songs to musical instrumentation, danced in the sanctuary and prayed loudly in tongues.

But by early 2000, however, that difference had largely disappeared, because many mainstream churches changed their worship to a more Pentecostal style, thanks to some clergy who felt that the Pentecostal expression was more “spiritual,” and others who felt that adopting the Pentecostal style of worship would prevent the youth from leaving the church. Children who grew up since that time would therefore scarcely know the difference between a Protestant and an Evangelical.

Therefore, there is little clarity in the Kenyan mind about what constitutes the Evangelical church. Most of the churches called “evangelical” in Kenya do not consciously profess the evangelical faith, if by evangelical, we mean those who believe in the centrality of the bible in faith, and who profess to be “born again” after having a personal encounter with Jesus Christ. In any case, the concept of being “born again” was already in Protestant circles in the 1930s, thanks to the East African Revival Movement, and back then,  British missionaries were irked by their African converts who claimed to be “born again.”

But that lack of clarity on Evangelicalism is evident even in academic scholarship. Kenyan scholars who are close to American evangelical circles, and who seem at pains to prove that even Evangelicals are interested in social issues, often cite Protestant clergy and academics who are vocal on faith and society as “evangelical.” They do so even when those whom they cite would not consider themselves Evangelical and are even critical of Evangelicals.

Christianity and the state

Part of this confusion emanates from the failure to appreciate the different political attitudes of American and European missionaries towards the state, and how that difference influences Christianity in Kenyan political life today. European missionaries tended to be driven by liberal ideas and to collaborate with the colonial state in providing education, but they also took a stand against human rights abuse by the colonial government. The American missionaries, however, wanted to keep their distance from the colonial government because they believed that Christian mission work should rely on God (meaning on donations from fellow believers). Neither side fundamentally challenged the concept of colonialism itself.

After independence, the mainstream churches continued their engagement with the ex-colonial Kenyan state, either in agreement or opposition. For instance, in 1969, mainstream churches opposed Jomo Kenyatta’s adoption of the oath to solidify political support of his Kikuyu ethnic group against Kenyatta’s political rivals. That Kenyatta listened to the church shows that his use of traditional spirituality to bind people to his political project, and of the church to maintain his hold on the ex-colonial state.

After independence, however, American missionaries continued to distance themselves from the state. Much of that conceptual work was done through the concept of culture. The argument of American missionaries was that faith was expressed through culture, and no culture was superior to the other. The utopian implication was that under Christ, there was no African or American, no black or white. In reality, however, this focus on culture supported the imperial project of the Cold War by steering African Christianity away from politics. The cultural focus of theology was important for US imperialism to block the development of African solidarity with black theology, which influenced by the Black Panther movement, and liberation theology which was influenced by Marxism.

During the 80s and 90s, as Moi’s rule became more draconian and as the economic conditions deteriorated, mainstream clergy were at the forefront of speaking out against the shrinking democratic space. By contrast, American missionary founded churches like the AIC, Moi’s home church, took the stance that leaders are chosen by God and should be supported spiritually rather than criticized, and that the church should keep off commenting on political matters.

The Evangelical Alpha Male

But as the Protestant churches focused on the relationship of Christianity to the state, the evangelical churches modeled for us how to live as Christians. In the context of Structural Adjustment Programs that gutted down the few public services available, and the rise of the HIV-AIDS epidemic, Evangelicalism gained momentum by offering personal lifestyle responses to social problems.

For instance, evangelicalism filled the intellectual space in the public sphere which had been evacuated by the persecution of academics, students, professionals and artists, and by the reduction of funding for education. As Dr. Damaris Parsitau has demonstrated in her scholarship, that vacuum was rapidly filled by the omniscient Evangelical preacher.

At the same time, a socio-political vacuum was developing due to the privatization of social services. For the youth who were joining the job market and expecting to start families, the charismatic churches provided practical remedies to the social services falling apart. The churches promised private services like homeschooling to compensate for education, miracle healing for failing medical services, and abstention from sex for the HIV-AIDS pandemic.

Thus rose the figure of the pastor as the alpha male. He exuded a positive attitude as approach to all problems in life. He was the intellectual who explained how to navigate the crippling economy. He was the educator who exemplified homeschooling through the work of his wife. He was the model husband who motivated his wife to do that work. He was also the entrepreneur who embodied the promise of neoliberal capitalism, because he had started his own church with a few members and was now living a lavish lifestyle as the head of a mega church.

As such, the word “evangelical”, though not commonly used in Kenya, usually refers to a certain profile of churches and their clergy. The churches which Kenyans call “Evangelical” loosely refer to churches which revolve around the personal enterprise of the pastor in the case of men, or of the pastor and his wife, or sometimes of unmarried women pastors. In such churches, major decisions, including the management of church property and finances, are managed almost exclusively by the pastor, as opposed to an elders’ council or a general assembly, and so the evangelical pastor embodies the figure of the CEO. Most of these churches are morally conservative, but any missteps in their own morality, like fathering children out of wedlock, receives a generous lathering of Christ’s forgiveness to wash away a multitude of sins.

By contrast, mainstream Protestant churches are identified by institutionalization, church hierarchy, leadership elections whose chaos often mirrors the elections for political leadership, and clergy who are likely to take positions on political issues.

This landscape suggests that despite the denominational differences, spirituality in Kenya is one continuous space where Kenyans navigate their political and social lives in the face of local and global dilemmas. That spiritual whole includes local and ethnic African spiritualities, which Kenyans revert to even though they may continue to attend church.

Victorian morality as “African culture”

One major confusion in Kenya that is directly related to Evangelicalism is the discourse of morality. This confusion comes from the fact that Kenya is governed by a rigid manufacture of consent, where public discourse on a wide range of issues is tied to how such matters relate to the state. When it comes to the personal space, especially in matters of femininity and sexuality, this discursive control is expressed as concern for “African traditions,” and often includes quotations from the bible. However, when one scratches beneath the surface of those concerns, one finds what is being called African tradition is closer to Victorian morality.

As such, Kenyans will criticize women for wearing their hems above the knee as flouting African tradition, and have nothing to say when reminded that in many African traditional fashions barely cover the body. Kenyans will share pictures of men on catwalks in Europe wearing skirts and declare that those catwalks flout African morals, forgetting that most African traditional wear for men is in the form of clothes that flow from the shoulder or from the waist.

One must therefore avoid reading statements about African culture as exclusively expressions of Kenyan right-wing conservativism. When Kenyans say that something “is not culturally African,” they could be saying less about African culture and revealing more about the limited intellectual space in which Kenyans can contemplate anything outside what is acceptable to the state. They could be expressing the fear that allowing minorities to have a voice, or their right to life and social services, or autonomy of one’s body or sexuality, requires disentangling many other convoluted beliefs which Kenyans must uphold, if they are to avoid a direct confrontation with what the late ES Atieno Odhiambo famously called Kenya’s “ideology of order.”

This entanglement explains the contradictory signals on homosexuality that confound Western and liberal journalists. Most of the pronouncements by government officials against LGBTI are made in situations of crisis, or in reaction to news reports, or in interviews by foreign journalists, rather than as political campaign issues.

For example, Ezekiel Mutua, a state officer, often weaponized homophobia in his drive to censor the arts in the name of morality. In 2016, his office proposed laws with draconian requirements that would have gagged artists using bureaucracy. When the artists protested, Mutua sought the support of the church by justifying censorship as a concern about morality. He was hoping that the public would pick up the fact that one of the prominent faces in the protest against censorship was gay gospel musician Joji Baro.

However, the state’s issue with the arts is not morality; it’s control. Together with the church, the state has always had a fractured relationship with the arts because of the power of the arts to influence society independently of Kenyan institutions. Arts are an intrinsic threat to the “ideology of order.“ Many artists, of whom Ngugi wa Thiong’o is one of the most famous, were persecuted for their creative work. Campaigns against arts education have been led by politicians, the media and the business sector who call the arts irrelevant to the job market, and by the church whose schools expel children for drawings which are dubbed “demonic.” Ruto has repeatedly called arts education the teaching of irrelevant facts such as when Vasco da Gama came to Africa, yet his government is actively trying to coopt artists into the state under the banner of the “creative economy.” Mutua’s appeal to homophobia was therefore an additional alibi for the suppression of the arts.

Mutua once again weaponized homophobia to rally the church to endorse state ban against Wanuri Kahiu’s film Rafiki. Viewing was eventually opened up for a week, apparently to help the film qualify for international film festivals. Thus we see an ambiguity that “morality” faces when the state is confronted with the international arena. A similar ambiguity occurred when CNN journalist Richard Quest, who is gay, visited Kenya, and was a guest of the Jubilee Celebration Centre, one of the quintessential “evangelical” churches of Nairobi.

My focus here is not the cliché intersectionality of struggles of class, gender, religion and sexual orientation, which obviously applies. It is that hostility to women and sexual minorities is intertwined with other forms of incoherence in Kenyan life, including our visceral hatred for the youth which is seen in the violence in schools and in extra judicial killings. To challenge these injustices inevitably touches other live wires of social traumas which may not necessarily be an expression of Evangelicalism, even when they borrow expressions from Evangelicalism.

All this to say that the place of the church in Kenyan politics, and especially what constitutes the “Evangelical” church in Kenya, is more fluid than a Euro-American reading would allow. A rigid subjection of Kenyan Christianity to the framework of European secular thought or American Christian fascism, hides the impact of US militarism and capitalism on Kenya through the suffocation of cultures, diversity and ideas. More than that, it is largely a project of intellectual class.

The obsession of the Kenyan middle class with enforcing Enlightenment secularism is an intellectual tragedy of major proportions.

Ruto’s Christianity

Ruto’s faith and political career also demonstrate these ambiguities. In the run up to the 2010 constitutional referendum, for example, Ruto was the most prominent politician in the “No” camp against the constitution, but his interest was largely driven by his own political ambitions. More strange is that his opposition to the constitution was that it was not capitalist enough on the land question.

Meanwhile, the Kenyan pastors who waged war against the constitution voiced their concerns as moral concerns about abortion, and they argued that the inclusion of the Kadhi courts in the constitution went against the principle of secularism because it promoted Islam. The deal with the Kadhi courts was a political one made before independence to maintain Kenya’s Indian Ocean coastline as part of Kenya, but the evangelical clergy chose to ignore the politics and restrict the question to religion. What’s ironic is that now, the same clergy who claimed to be concerned about secularism in 2010 are now asking for state appointments. American evangelicals had sponsored some Kenyan pastors to oppose the constitution, on the claim that the constitution promoted abortion and homosexuality, as an extension of America’s own cultural politics.

During the referendum campaigns, therefore, Ruto and the clergy were largely partners of convenience. Mark Kariuki, who would pray fifteen years later at Ruto’s swearing in as president, even clarified that “No yao si no yetu” (Their “no” is not our “no”), meaning that Ruto and the clergy may have been on the same side against the constitution, but for different reasons.

The moral posturing of the clergy was not enough to persuade Kenyans to forget the legal and political agendas that had brought Kenya to this new constitutional moment. Contrary to their expectations, Kenyans – many obviously Christian – ratified the constitution. To date, many Evangelicals, especially professionals, carry that rejection of the clergy’s position as a trauma, as one member of that group inadvertently informed me.

The greater manifestation of Ruto’s faith is in his economic thinking. Four years ago, Kenyan journalist Christine Mungai wrote a brilliant analysis of Ruto’s “gangster theology,” arguing that Ruto’s camaraderie with evangelical churches was a tactical strategy in propping himself up as a hustler. To distinguish himself from Uhuru Kenyatta as a dynasty, Ruto had to portray himself as a person who pulled himself by the bootstraps to become a politician of national prominence. His religion therefore needed to reflect that image of “Kenyan ordinariness.” Aligning himself to a mainstream, stiff-necked institutional church would have been detrimental to his image. He had to align himself with pastors who had begun their churches in abandoned buildings with a few congregants before they became wealthy heads of mega churches.

Despite rooting for hustlers, Ruto is no socialist, as the West initially feared. He hates the arts and believes that science, technology and finance, not social change, are the solution to Kenya’s economic challenges. He has called arts and humanities education useless knowledge that has no relevance to Kenya’s problems. As such, his answer to crippling economic inequality has been to avail cheap micro-credit to the poor, otherwise dubbed as the “Hustler fund,” and promise very little in terms of social support. If the evangelical God blesses individuals for the work of our hands, then that theology perfectly aligns itself with micro-credit as a route out of poverty. It is up to the poor to “work hard” using the loans they receive, albeit at high interest rates, in the same way that Ruto says he rose from a chicken seller to become president, and in the same way pastors became owners of mega churches. In other words, there is an economic, and fundamentally neoliberal logic to the alliance between Ruto and the evangelicals, as opposed to an exclusively cultural, moral and anti-secular one.

To focus on Ruto’s stereotypical answers on women and sexual minorities is therefore to miss the basic gist of Ruto’s politics. That is not to say that the human rights of these groups are not important, or to minimize the spectacular violence that they suffer. It is to point to the socio-economic and political dimensions of this violence – which are the crippling inequality, the narrow public sphere and the cruelty of daily life under neoliberal policies. These dynamics are often obscured when critics engage in moralistic, human rights-centric discourses. Many times, their hard stance locks out potential allies in faith who would also oppose violence against those minorities and would raise concerns about inequality. And most of those who dominate this exclusionary discourse are Kenyans who have received advanced education and are likely to be working in close contact with Western liberal journalists, lawyers and human rights advocates. The possibility that the ordinary Kenyan from outside that class profile, can be religious or not, and can hold politically progressive views, does not feature on their radar, yet those in whose name they speak belong to the same group outside the middle class.

The concern about secularism is largely a form of snobbery that minimizes the sophistication with which ordinary Kenyans without education navigate their lives through religious spaces. For many Kenyans, religion provides the spaces where they can meet without the state shooting them down. It provides the spaces where they get social status and community leadership outside of politics. It’s where they can carry out both traditional and modern rituals like weddings, birth, initiation and death. It’s where they get education, because the government is not providing enough schools and the church has often stepped in to fulfil that role. But many of the Kenyan middle class ignore this material reality and share extreme incidents of abusive pastors, sort of to depict ordinary Kenyans without similar education as stupid for being religious.

A problem within Euro-America itself

This complete misunderstanding of educated Kenyans is a failure of education. The war against arts education, which began during colonial rule and is still waged by Ruto, has denied educated Kenyans a historical understanding of religion, be it in Europe or in Africa. And the greater irony is that Kenyan schools are notoriously religious, despite not teaching anything useful on religion.

As such, educated Kenyans do not understand that the problem here is the fundamentally Euro-American framework in which religion represents the conflict between the traditional monarchy, liberal secularism, fascist conservatism and anti-religion left politics. For Europe, religion has always been read through the lens of the power of the state and its accountability to the people. During feudalism, religion justified the monarchy, and inheritance of power and wealth by birth, as the will of God. After the Reformation, the conflict between Catholics and Protestants was fundamentally a political one on divine rights to power and the people’s right to have a say about power. This new shift caused a lot of bloodshed in Europe, leading to atrocities such as the St Bartholomew Massacre against French Protestants, and the Thirty Years War whose casualties were only rivalled by those of the 20th century great wars.

To protect their revolution from the return of the monarchy, the French literally had no choice but to declare a secular state. Other Western European countries who still have monarchs had to compromise and create state churches, headed by the monarchs, as a compromise to the church’s divorce from Rome. Left politics, which sees religion as a weapon of the ruling class, has been successfully muzzled in Euro-America, especially after the collapse of the Soviet Union. Ironically, many Kenyans who would not normally quote Karl Marx cite his statement on religion as the opium of the masses.

For Europe therefore, Christian denominations are necessarily political positions on the relationship between power and the will of the people. In the United States, however, the religious dynamics are different and reveal a struggle over the voice of faith in social life. While European Christians in the US wanted no ties with the state, they were implicated in dispossession of the indigenous people and in the enslavement of Africans. Slave holders justified the enslavement of Africans as biblical, and during the Civil War, some American churches split, because some argued that slavery was not a religious issue, since justice was not a “fundamental” of faith like baptism and repentance. At the other end of the spectrum, white Christians became abolitionists,. Some like William Lloyd Garrison would cite the book of Isaiah in calling the much venerated American constitution a “covenant with death and an agreement with hell,” after the constitution was amended to institutionally support the enslavement of African peoples.

For the people of African descent, however, expressions of faith are not tied to monarchies and republics but to liberation. For the last four centuries, freedom has been the fundamental spiritual and religious preoccupation of Africans on the continent and in its diaspora. Enslaved Africans sang spirituals as songs of resistance in the plantation. The spark of the Haitian revolution was the Boukman prayer, where the proclamation of freedom was a spiritual articulation about the God “who orders us to revenge our wrongs” and against “the white man’s god who is so pitiless.” The Rastafari movement in Jamaica and the Candomble in Brazil are just some of the many religious articulations that voiced the political aspiration of freedom. In Africa, Kimpa Vita, Simon Kibangu, Elijah Masinde and Lucas Pkech are some of the Africans who used contrapuntal readings of scripture in resisting colonialism.

The civil rights movement in the United States followed the same tradition, for both Martin Luther King and Malcolm X grounded their struggles in faith. If anything, the modern articulation of right-wing, white Evangelicalism has piggy backed on the impact of the liberation theologies and struggles. White racism learned from the victories of the civil rights movement that raw racist ideologies and violence had made the United States a laughing stock of the world and had given credibility to Communism during the Cold War. The American right, led by figures like Paul Weyrich, therefore made a deliberate effort to coopt the Evangelical religion in the fight against the social gains of the civil rights movement while hiding behind the façade of faith and morality. To counter desegregation of schools, the right-wing offered homeschooling and faith schools. In the place of diversity and social welfare, it offered family values. Against the political gains of women, it turned abortion into its rallying cause.

But rather than attack this theology, the Euro-American acolytes of the Enlightenment have blocked the development of theological responses to fascism. In the place of theology, they offer reason, human rights and landmark court cases, claiming that religion automatically made one a conservative, and often implying that peoples of the Global South who wanted to harness religion had failed to decolonize their minds. The silence which they have imposed on emancipatory readings of religion have created space for right-wing, anti-political and hateful theology to gain momentum, and that momentum was used to capture the US Supreme Court. And now, instead of learning their lessons and removing the walls which Eurocentric ideas have constructed around religion, these intellectuals are trying to force African politics and religion into restrictive Eurocentric boxes of constitutionalism and human rights activism.

The anti-colonial alibi

Here at home, educated Kenyans have unsuccessfully tried to adapt European Enlightenment into the framework of anti-colonial struggles. On social media and in their op-eds, their enthusiasm makes them repeat inaccurate facts. A year or so ago, I got into an argument with someone who shared a poster that said that enslaved Africans were forced to read only the bible. I tried to point out that that is not true, that reading in and of itself was forbidden to enslaved Africans. I even urged people to read what Frederick Douglass said about the risks he took to learn how to read. The reaction to my comment was literally hysterical. I was accused of defending Christianity when I was simply stating a fact that slave masters did not want enslaved Africans reading any material, bible or not.

Since then, I’ve noticed many similar posts on social media, such as statements that all enslaved Africans became Christians, suggesting that Africans in the Americas acquiesced to their enslavement because they were stupid enough to accept the white man’s religion. The fact that many of these falsehoods refer to the enslavement in the Americas has made me suspect that these posts are pro-American psyops which are trying to prevent any African connection of religion or spirituality to politics.

My suspicion is strengthened by the way Kenyan theological education was depoliticized in the 1960s. American churches gave scholarships to Kenyan clergy to study biblical studies or missiology instead of theology. In the 1970s, J S Mbiti, whose book “African religions and philosophy” has become a classic, vehemently criticized black theology for being “bitter” and of no use to Africans who now had independent states. Kenyan theological studies are notoriously preoccupied with culture and sociology, rather than with prophetic insights into the impact of state power on ordinary life. This focus on acculturation is consistent with the effort of the US missionaries to distance themselves in Africa from colonial missionaries, and to present American and African Christianities as cultural equals, in order to deflect theological consideration of the role of US economic and military imperialism in Africa. Meanwhile, African and liberation theologies barely feature in the curriculum of Kenyan schools or of the few seminaries that churches have not converted into faculties offering business degrees.

Theology is political

What this middle class activism denies is that interpretation of religion is fundamentally political, because interpretation informs and is informed by decisions we make in society. That reality is not affected by secularism, for as Ali Mazrui said many years ago, the separation between the church and the state does not necessarily translate into a separation between religion and politics. By the same token, blocking discussion of religion is fundamentally political as well, but worse, it depoliticizes people by imposing moral conversations (the goodness of individuals) where there should be political ones (what people should do about power and wealth).

A large part of the Euro-American oversimplification of religion emanates from the Euro-American state’s discomfort with knowledge outside of the rational. Unlike reason, religion and spirituality allow more space for ambiguity, fluidity, contradiction and intersection, which is inconvenient for forms of power that rely on the letter of the law, precision and empirical proof. Add to that racism, which is notoriously impatient with appreciating Africans as complex human beings, and humanity as having limits, especially in the exploitation of the planet. This potent mix produces the misreading of African political theology and an obsession with depicting religious Africans as stupid and colonized.

This delusion leaves the political space for neoliberalism to entrench itself in Kenyan life through religion. To date, there is no pro-poor theology from our pulpits, or pro-poor politics from our political parties, that tackles the question of whether micro-credit is a way out of poverty, or whether deteriorating living conditions should be the price we pay for balancing the economy to please the IMF. Meanwhile, the government is committed to restricting the arts to economics by coopting artists into state appointments, while actively engaging in a war against arts education. The middle class have not understood this larger impact of Ruto’s religion. And the moral superiority with which they refuse to listen to logic is spectacular.

Instead of addressing the plight of the “least of these,” the middle class is wailing about secularism and calling the poor stupid for going to church. So we’re back to the days Fanon described in The Wretched of the Earth, where the native intellectuals equated cultural nationalism with anti-colonialism and missed the larger struggle against exploitation of the majority. The Kenyans who are really blinded by religion are not ordinary ones who are actively religious, but the educated ones who are against religion. It’s an intellectual entanglement so spectacular that would put the emotional entanglement of the Smiths to shame.

This article was first published in Wandia Njoya’s blog.

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