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Greed and Delusions of Grandeur: A Primer on Dystopian Economics

7 min read.

And so, the inevitable has happened. After five years of Jubilee’s astonishing debt-fuelled binge, Kenya is now officially in an IMF bailout programme. As the government struggles to raise Ksh 284 billion for debt repayments this year alone, the austerity knife will make deep, long cuts into jobs and budgets. With private sector investment on its knees, Jubilee’s spending jamboree has already eaten Uhuru Kenyatta’s ‘Big Four Agenda’ children. DAVID NDII gives a sobering prognosis.

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Greed and Delusions of Grandeur: A Primer on Dystopian Economics
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Those of us who lived through the structural adjustment era would never have thought that we would live to see another IMF Letter of Intent. But then again, we would never have expected to see NYS buses ferrying commuters in Nairobi either.

But what is a Letter of Intent? It is an ominous missive ostensibly written to the IMF Managing Director by governments seeking an IMF bailout. It is usually co-signed by the Minister of Finance and the Central Bank Governor, outlining the austerity measures that the said government intends to take to fix its finances. In my day, it used to be addressed “Dear Mr. Camdessus”. These days, it is addressed “Dear Ms. Lagarde”. Only, it is not written by the government. It is drafted by the IMF staff and presented more or less as a fait accompli for signature. Henry Rotich and Patrick Njoroge signed one recently, dated March 6 2018. Here are some excerpts:

“The introduction of interest rate control in September 2016, which were aimed at addressing the high cost of credit, has had unintended adverse consequences on credit growth and monetary policy effectiveness.”

“In making this request, we commit to strong policies to achieve our program objectives. These include: (1) a reduction in the fiscal deficit from 8.8 percent of GDP in 2016/17 to 7.2 percent GDP by the end of this fiscal year (June 30, 2018) and a further reduction to 5.7 percent of during the next fiscal year (June 30, 2019); (2) a significant modification of interest rate controls to avoid their adverse impact on credit to the private sector, monetary policy effectiveness, and financial stability; and (3) strengthening the monetary policy framework, including the introduction of an interest rate corridor following the significant modification of interest rate controls.”

What caused credit to collapse? Interest rates did not go up suddenly. The average lending rate leading up to the sudden nosedive in bank lending was stable, fluctuating around 16 percent. The rate inched up two percentage points where it remained until the cap was imposed a year later. The cause of the credit slump lies elsewhere.

This columnist, along with other experts, argued strongly against the interest rate caps, as did the Central Bank. That said, the claim that interest rate controls had adversely affected credit is incorrect. The interest rate cap was introduced in August 2016. By then, bank lending to the private sector had been in free-fall for a year, plummeting from 20 percent growth per year to five percent per year. The interest rate caps do not appear to have made much of a difference either way.

What caused credit to collapse? Interest rates did not go up suddenly. The average lending rate leading up to the sudden nosedive in bank lending was stable, fluctuating around 16 percent. The rate inched up two percentage points where it remained until the cap was imposed a year later.

The cause of the credit slump lies elsewhere.

The Jubilee administration’s profligate ways are now the stuff of legend. Still, seeing is believing (See chart 1, below). To wit, Jubilee assumes office with the annual budget deficit running at Ksh. 200 billion, just under six percent of GDP. It surges in its first three months and then slows back down to the Ksh. 200 billion level in the first quarter of 2014, equivalent to four percent of GDP. This initial surge can be attributed to the roll-out of devolution. The respite was temporary. Over the next year, the deficit surges threefold, hitting Ksh. 670 billion, a mind-boggling 12 percent of GDP. It slows down thereafter but not by much. The next surge, from the beginning of 2016, takes it up to Ksh. 750 billion, equivalent to 10 percent of GDP at the end of the term.

In comparison, NARC maintained a budget deficit of 2.5 percent of GDP, rising to 5.3 percent under the grand coalition, and to 8 percent under Jubilee. It is noteworthy that Uhuru Kenyatta was the grand coalition’s finance minister. Eight percent of GDP may not sound like a whole lot, until you consider that Government revenue is in the order of 18 percent of GDP, hence an eight percent of GDP budget deficit is in fact equivalent to government spending 44 percent more than its income year after year. A 2.5 percent budget deficit is sound, five percent is alarming, eight percent is downright irresponsible.

When the government goes on a spending spree, it distorts incentives. The NYS and health ministry scandals were only the most egregious exposés of what goes on in public procurement. Opportunities such as selling mobile clinics that can be bought on Alibaba for US$ 3000 (Ksh. 300,000) to the government at Ksh. 8 million can be counted on to divert a lot of resources, human and financial, to the tenderpreneurs.

Deficit spending of this magnitude has economic consequences of many kinds, none of them good. First, the deficit has to be financed. It can be financed by borrowing externally, or domestically. Despite the Chinese loans for the SGR railway, the Eurobond and several other syndicated foreign bank loans, half the deficit has been financed by domestic borrowing. The effect is that the government crowds out private lending. The impact is immediate. As soon as the government publishes a budget with a huge domestic borrowing requirement, lenders and institutional investors know that they will be able to lend more and extract higher yields from the government. They begin to adjust their portfolios accordingly.

And that’s exactly what we see (See chart 2, below). Jubilee’s spending spree binge was announced with the budget read in June 2014. Deficit spending surges threefold from Ksh. 220 billion in the year to May 2014 to peak at Ksh. 670 billion for the year to April 2015. It takes a while for the madness to work its way through the economy. Six months later, bank lending to the private sector goes into free fall. By the time interest rates are capped a year later, private bank lending has slowed to five percent per year, down from 20 percent. Capping did not help. A year later, lending was down to 1.5 percent. By this time the deficit was running at Ksh. 750 billion, equivalent to 60 percent of government revenue.

With market interest rates, this kind of binge spending would have pushed up government borrowing rates to the mid-20s, with attendant financial and political consequences. Unwittingly, the interest rate cappers, whose stated objective was to borrow cheap, ended up shielding the government from the consequences of its recklessness, with no benefit to themselves.

Second, when the government goes on a spending spree, it distorts incentives. Governments are generally wasteful spenders, corrupted ones even more so. The NYS and health ministry scandals were only the most egregious exposés of what goes on in public procurement. Opportunities such as selling container clinics that can be bought on Alibaba for US$ 3000 (Ksh. 300,000) to the government at Ksh. 8 million can be counted on to divert a lot of resources, human and financial, to tenderpreneurship.

Third, government spending sprees inflate costs, as businesses are forced to compete with the inflated prices that service providers are able to charge the government. Even availability of some services becomes a problem as providers chase lucrative government contracts.

Now comes the conundrum. To cut the deficit, the government has to raise more revenue and cut expenditure. Both of these are contractionary. The government will be seeking to extract more revenue from a private sector that it has done all it could to weaken. And economic growth is now heavily dependent on the very government spending that needs to be cut.

Fourth, governments make bad investments. If a private enterprise makes a few bad investments, it goes bust. Government that make bad investments are re-elected. This I need not belabor, but I will. The flagship standard gauge railway, apparently so desperately needed, is turning out to be the boondoggle that its critics, this columnist included, said it would be. We have a 40 percent electricity generation capacity surplus. Investors are not flocking, but consumers are up in arms. There are others: Galana-Kulalu irrigation project, the failed groundnut scheme. The said container clinics, which cost Ksh. 800 million, are rusting away in Mombasa. Makueni Governor Kivutha Kibwana’s fruit processing factory is reported to have cost Ksh. 450 million.

The morning after Jubilee’s spending jamboree is aptly summed up in the World’s Bank’s latest Kenya Economic Update report, published earlier this week (it is worth noting that the World Bank has been one of the cheerleaders of the Jubilee administration’s debt fueled infrastructure binge):

“Worryingly, the contribution to growth from private investment has been decelerating in recent years. Unlike the solid contribution to growth from the public sector, the contribution from private investment has been negative in recent years, declining from 1.3 percentage points of GDP in the four years leading to 2013 to negative 0.7 percentage points in the four years leading to 2017, a swing of 2 percentage points of GDP.”

Growth in the four years to 2013 averaged 6.1 percent, meaning that private investment contributed 20 percent of it. Growth in the four years to 2017 was 5.4 percent meaning that it would have been 6.1 percent if private sector investment had not collapsed.

Now comes the conundrum. To cut the deficit, the government has to raise more revenue and cut expenditure. Both of these are contractionary. The government will be seeking to extract more revenue from a private sector that it has done all it could to weaken. And economic growth is now heavily dependent on the very government spending that needs to be cut. The two year 3.1 percentage point adjustment (from 8.8 to 5.7 percent of GDP) is in the order of Ksh. 270 billion. Given the state of the economy, revenue will contribute very little of this. Expenditure will have to do most of the adjusting – and that requires resolve and reforms the discipline for which Jubilee will struggle to muster.

The principal on market debt can be rolled over, but interest is paid out of revenue – Ksh. 284 billion this year. But the amount of debt that we now have to refinance leaves very little headroom to borrow for new projects. The prospectus for the US$ 2 billion second eurobond raised two months ago said it was for investment and “liability management.” Make that all of it. Big four agenda, anyone?

As we demonstrated a fortnight ago, most of the borrowed money has been plundered or squandered. There are no economic returns expected from the investments. But the debts have to be serviced. As noted, the IMF standby credit facility commits the government to review the interest rate cap. The choice of language reflects a recognition that repealing the law may be a tall order. But make no mistake about it: whatever manouvering they have made to have it implemented, will be to the same effect. A one percentage point interest cost increase on the Ksh. 2.3 trillion domestic debt translates to Ksh. 23 billion.

The principal on market debt (i.e. treasury bills, bonds and Eurobonds) can be rolled over but interest is paid out of revenue – Ksh. 284 billion this year. But the amount of debt that we now have to refinance leaves very little headroom to borrow for new projects. The prospectus for the US$ 2 billion second Eurobond raised two months ago said it was for investment and “liability management.” Make that all of it. Big four agenda, anyone?

It is fair to say that Uhuruto’s great leap forward has come a cropper. That though, was never in doubt.

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David Ndii is a leading Kenyan economist and public intellectual.

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The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania

Fatma Alloo (of the Tanzania Media Women’s Association) on how women used the media and cultural spaces to organize and challenge gender norms.

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The Second Sex: Women’s Liberation and Media in Post-Independence Tanzania
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Fatma Alloo’s activism grew in the decades following Tanzania’s independence in 1961, when she worked as a journalist under Julius Nyerere, or Mwalimu, the first president of Tanzania; co-founded the feminist advocacy group Tanzania Media Women’s Association (TAMWA) in 1987; and co-founded the vibrant Zanzibar International Film Festival (ZIFF) in 1997. Here, she unpacks how women used the media and cultural spaces for social mobilization and shifting patriarchal norms, particularly in periods where they were marginalized from state power. In the “Reclaiming Africa’s Early Post-Independence History” series, and the Post-Colonialisms Today project more broadly, we’re learning from African activists and policy makers from the early post-independence era, to understand how their experience of a unique period of economic, societal, cultural, and regional transformation can aid us in the present day, when questions of decolonization and liberation are more pressing than ever.

Heba M. Khalil: You have lived through so many changes in so many different political systems, from the Sultanate, colonialism, the Nyerere years; you’ve seen the dawning of liberalism and neoliberalism.

Fatma Alloo: As you say, I’ve been through a lot of “-isms” in Tanzania. The other day I was reflecting that although I grew up under colonialism in Zanzibar, as a child I was not aware that it was colonialism, I was not aware there was a Sultanate. We used to run and wave to the Sultan because he was the only one with a shiny, red car and we used to love that car, a red Rolls Royce. But as I reflect now, I realized that these were the years Mwalimu was struggling for independence in Tanganyika.

Then, of course, as you grow, life takes you on a journey, and I ended up at the University of Dar es Salaam in the 1970s, where the Dar es Salaam debates were taking place. Tanzania hosted liberation movements, and that is where socialism, communism, Marxism, Leninism, Trotskyism, Maoism, and feminism were being debated, and that’s where my consciousness grew, because I was in the midst of it. As the progressive, international community at the university was ideologically fired up by Mwalimu’s socialism, I began to understand that even my feminism had come from the West. Nobody had taught me that women lived feminism on the continent. This realization came when, as a student, I participated in an adult literacy program launched by Mwalimu. As students, we were sent to a rural and urban factory to teach literacy, but I emerged from those communities having been taught instead!

Heba M. Khalil: What do you think the role of women was in Tanzania in particular, but also on the continent, in defining the parameters, the choices and the imagination of post-independence Africa?

Fatma Alloo: Women had always been part and parcel of the independence movement in Africa. In Southern Africa and Tanzania they stood side-by-side with the men to fight, so they were very much part of it. The unique thing about Tanzania was that Mwalimu established a party called the Tanganyika African National Union (TANU), which had five wings with women being one of them. The others were youth, peasants, and workers, so as to mobilize society as a whole.

Post-independence is another story, one that very often has been narrated by men in power. There was a struggle for the visibility of women. I remember the debates in South Africa, where the African National Congress was arguing about the women’s wing wanting to discuss power relations. And there was resistance to this, the party leaders would argue first let’s just get independence, let’s not waste our time, women’s liberation will come later. It was a very bitter struggle, and of course after independence, women lost out quite a bit.

Heba M. Khalil: Why were post-independence power structures and ideologies defeated and replaced at some point by new ideologies of liberalism and, eventually, neoliberalism?

Fatma Alloo: The western media portrays Mwalimu as a failure. He has not failed, from my point of view. The whole issue of national unity is important. Tanzania has been a relatively peaceful country. Why? It did not happen by accident, it had to do with Mwalimu’s policies—he realized he had to deal with profound divisions, and he understood the role of education. Administratively, the nation had been inherited after decades of divide and rule policies. It was divided on racial and religious bases, as Tanzania is half Christian and half Muslim. We could have had a civil war, like in Lebanon, or a tribal-oriented conflict, like in Kenya or Libya. Mwalimu really understood this from the very beginning. I remember when we started TAMWA, when the women came together, we had no idea who belonged to what tribe. He was that successful.

We had free medicine, free education, but of course, all that went away with neoliberalism. My generation remembers this, and I think we have to make sure that the younger generation knows the history of the country, knows the literature that emerged from the continent. In my opinion, of all the contributions of Mwalimu, the most important was the peace and unity—amani, in Kiswahili.

Because Mwalimu was so successful, the West, especially Scandinavian countries, made him their darling. As you know, Scandinavian countries had not colonized Africa much, so people also trusted them and accepted their development aid. Very sadly, it did eat away at the success of Mwalimu with his people, and eventually made us dependent on that development aid, which continues to date. Without development aid we don’t seem to be able to move on anything. We have stopped relying on ourselves.

Heba M. Khalil: What was your experience of organizing during the rapid growth of the mass media sector in Tanzania?

Fatma Alloo: I was very active, first as a journalist in the 1980s and early 1990s, and it was extremely different. We were very influenced by Mwalimu’s ideology and ready to play our role to change the world. Mwalimu had refused to introduce television because, he argued at that time, we did not have our own images to portray, to empower our younger generations. He said if we introduce television the images shown will be of the West and the imperialist ideology will continue. In Zanzibar, however, we already had the oldest television on the continent, and it was in color. When Abeid Karume attained power in Zanzibar in 1964, after a bloody overthrow of the sultanate in power, the first thing he did was to introduce not only television, but community media, so every village in Zanzibar already had these images. But television didn’t come to Tanganyika until 1992 (Mwalimu stepped down in 1986), when it was introduced by a local businessman who established his own station. Until then the state had controlled the media, so history began to change as businesses were allowed to establish media.

I remember I was then in TAMWA and we had to encourage a lot of production of plays and other visuals, for which there was no market before. The radio had been powerful; when the peasants went to the countryside, they would take the radio and listen as they ploughed the land. So, the radio was the main tool that was used to mobilize society during Mwalimu’s era.

The press gave women journalists little chance to cover issues of importance to women. We were given health or children to cover as our issues. Before, Tanzania had one English paper, one Kiswahili, Uhuru, and one party paper. By 1986, there were 21 newspapers, and it became easier for us to really influence the press, and TAMWA began talking about issues like sexual harassment at work. But it was a double-edged sword, because the television stations recruited pretty girls to do the news reading, and the girls also wanted to be seen on television as it was a novelty. So, while we were expanding the conversation on the portrayal of women, here was television, where women were used as sex objects. The struggle continues, a luta continua.

Heba M. Khalil: How are movements trying to achieve change on the continent, particularly youth movements or younger generations, by utilizing media and cultural spaces?

Fatma Alloo: The youth need to develop tools of empowerment at an educational level and at an organizational level. Africa is a young continent, and our hope is the youth. Many youth are very active at a cultural level, they may not be in universities but at a cultural level they are extremely visible, in music, dance, and street theater.

At the moment, you see the pan-African dream has sort of lost the luster it had during independence. Even if you look at the literature of that time, it was a collective dream for Africa to unite—Bob Marley had a song “Africa Unite,” we used to dance to it and we used to really identify with it, and the literature—Franz Fanon, Ngũgĩ wa Thiong’o, Sembène Ousmane, Miriam Ba, Nawal al Saadawi—and also the films that came out. In fact, Egypt was the first country to produce amazing films; when we established the Zanzibar International Film Festival (ZIFF), in our first year we showed a film from Egypt, The Destiny by Youssef Chahine.

Zanzibar International Film Festival was born because we asked the question, “If we in Africa do not tell our stories, who will?” We ask that question particularly to train and stimulate the production of films on the continent, including in Kiswahili, because while West Africa has many films, East Africa lags behind. The festival has been in existence for 21 years. This part of the world has more than 120 million people who speak Kiswahili, so the market is there. We also encourage a lot of young producers and we encourage putting a camera in children’s hands, because from my own experience, children get so excited when they can create their own images. Twenty-one years later, these children are now adults, and they are the directors and the producers in this region. So, one has to play a role in impacting change and liberating consciousness on our vibrant and rich continent.

This article is part of the series “Reclaiming Africa’s Early Post-Independence History” from Post-Colonialisms Today (PCT), a research and advocacy project of activist-intellectuals on the continent working to recapture progressive thought and policies from post-independence Africa to address contemporary development challenges. Sign up for updates here.

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The State of Judicial Independence in Kenya: A Persistent Concern

Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such. So long as we may have an independent Judiciary, the great interests of the people will be safe.

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On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.

The arrest, coming in the wake of constant and relentless attacks on the judiciary by the Executive and politicians, left a very sour taste in the mouths of many, bearing in mind that nothing was found to implicate the judges upon searching their respective chambers. Let it be clear that NOBODY is above the law  (nemo est supra legis)! Not even the President of the Republic, let alone the judges.

However, there are reasons why there are arguments for special procedures when arresting or dealing with criminal allegations against a sitting judge: the need to preserve the sanctity of the office and the need to manage perceptions with regard to the judicial office. The Supreme Court of India in the case of  Delhi Judicial Service Association v. State of Gujarat  AIR 1991 SC 2176, (1991) 4 SCC 406 recognized the fact that whereas judges were not above the law, certain guidelines had to be in place to guide the conduct of arrest  “in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated”. The concept of judicial independence, it must be recalled, recognizes not only realities but also perceptions that attach to the judicial office.

Chief Justice Howland in the Canadian Supreme Court case of  R v. Valente  [1985] 2 SCR 673 stated as follows with regards to perception as an ingredient of judicial independence: “it is most important that the judiciary be independent and be so perceived by the public. The judges must not have cause to fear that they will be prejudiced by their decisions or that the public would reasonably apprehend this to be the case.’ There is therefore the need to guard and jealously so, the image of the judiciary such as to manage how the judiciary is perceived by the public.

The unsubstantiated claims of corruption, and knee jerk searches without an iota of evidence does not bode well for the perception of the judiciary as a whole, and specifically, for the individual judges involved whose reputations are dragged through the mud, and needlessly so. There are germane reasons why the arrest of a judge should not be a trivial matter. The deference and respect to a judicial office informs the caution exercised in the conduct of arresting a judge. The judicial office fuses with the person of the holder and therefore it becomes necessary to err on the side of caution.

Indeed, Courts elsewhere have endeavoured to engage cautiously in this exercise of delicate funambulism. The Supreme Court of India in the case of  K. Veeraswami v Union of India and others,  1991 SCR (3) 189  found that a sitting judge can only be undertaken with permission from the Chief Justice or if it is the Chief Justice who is sought to be prosecuted, from the President.

Equally, the Court of Appeal of the Federal Republic of Nigeria in the case of Hon. Justice Hyeladzira Ajiya Nganjiwa V. Federal Republic of Nigeria  (2017) LPELR-43391(CA) held that a sitting judge cannot be prosecuted for offences that would have otherwise been a ground for removal from office.

It is important to note that the grounds for the removal of any judge from office are captured in article 168 of the Constitution of Kenya and they include a breach of the code of conduct and gross misconduct or misbehaviour.

Noteworthy it is to remark that the High Court of Kenya, in laying a principle of constitutional law in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae)  [2019] eKLR ably stated that, “While the DCI is not precluded from investigating criminal misconduct of judges, there is a specific constitutional and legal framework for dealing with misconduct and/or removal of judges.

Consequently, cases of misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge, shall be referred to the JSC in the first  instance.” The cumulative conclusion was that the gang-ho recklessness meted on Justices Muchelule and Chitembwe by an increasingly overzealous Department of Criminal Investigations (DCI) was an affront to judicial independence in its functional sense and also in terms of perception. It was a careless move.

If there is any evidence linking any of the judges to any conduct unbecoming, then out of constitutional edict and commonsensical pragmatism, the first point of call should be the Judicial Service Commission (JSC). The Office of the Chief Justice must also be subject of focus during this unfortunate debacle.

The statement emanating from that office in the aftermath of the unfortunate events of 22nd  July 2021, was at best timid and disjointed. The statement did not appear to reinforce the constitutional principle that judges cannot be arrested over matters that really ought to be addressed by the Judicial Service Commission. The office of the Chief Justice should have done better.

In summary, let it be proclaimed boldly that judicial independence is too precious a public good that it will be protected at all costs. Let it be lucid that incessant interference with judicial independence will not be tolerated from any quarters.

Judicial independence is Kenya’s last buffer line, stopping the country from degenerating into absolute tyranny. Judicial independence is a collective national good. It will be protected as such! And in the words of John Rutledge, a scholar, jurist and the second Chief Justice of the United States of America; “So long as we may have an independent Judiciary, the great interests of the people will be safe.”

This article was initially published at THE PLATFORM For Law, Justice and Society Magazine

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Land Title and Evictions in the Supreme Court of Kenya

Violent evictions of families from their homes are not exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title.

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The Supreme Court of Kenya published its judgment in William Musembi v The Moi Educational Centre Co. Ltd. on the 16th July 2021. The case arose after fourteen families — the residents of two informal settlements, City Cotton and Upendo village in Nairobi — petitioned the High court following their evictions in 2013. They had lived on the land since 1968 when it was public land. The first respondent claimed that they had legitimately acquired title to the land by letters of allotment and that the land was therefore private land. According to Amnesty Kenya, the evictions began in the early morning, without warning. Groups of young men burst into homes. Four hundred homes were demolished and personal possessions were destroyed. Crowbars and sledgehammers were used. The police were present. They fired live ammunition and used teargas canisters during the operation.

In the High Court, Judge Mumbi Ngugi held that the petitioners’ rights to dignity, security, and adequate housing had been infringed. There had been a violation of the rights of children and elderly persons under the constitution. She awarded damages. At the Court of Appeal this judgment was partially set aside. While accepting that there had indeed been violations of the rights to dignity and security, the Court of Appeal nonetheless set aside the order of damages arguing that “there was no material before the court on the basis of which the orders for compensation were made” and that, because it was unable to work out how the damages had been quantified, “the only relief that should have commended itself to the trial Court was a declaration that the forced eviction and demolition of their houses without a Court order is a violation of their right to human dignity and security.” Following this, the petitioners appealed to the Supreme Court.

Importance of the Supreme Court judgment

The importance of this case is, as Gautum Bhatia has written, that it raised the question whether “the right to accessible and adequate housing could be applied inter se between private parties”. It can thus be distinguished from the same Supreme Court’s Mitu-Bell Welfare Society v The Kenya Airports Authority, which ruled on evictions from public land.

Amongst several issues for determination, the petitioners in the present case asked the court to reach a determination of the question whether the letter of allotment held by the first respondent, the Moi Educational Centre, was issued lawfully or legally. Because that question had not been conclusively determined at the High Court or at the Court of Appeal, the petitioners sought “a declaration that the acquisition of the suit property was illegal and unlawful.”

The Supreme Court declined to do this. Arguing that in the High Court Judge Mumbi Ngugi had been right in holding that the question of the propriety of the first respondent’s title was a matter for the National Land Commission and that it is the Land and Environment Court that properly has jurisdiction over this question, the Supreme Court held in William Musembi that “the title of the first respondent remains unimpeached”. Instead, it held, the only question it ought to determine was whether, in evicting the petitioners, the respondents violated the petitioners’ rights to human dignity and security, as well as the rights to housing and health.

It is on the basis of the “unimpeached” title of the first respondent that the court goes on to make its landmark finding. For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights. Recognising that “the mandate to ensure the realization and protection of social and economic rights does not extend to the first respondent” because it is a private entity which is not under any obligation to ensure the progressive or immediate realisation of those rights, the court found that private parties do nonetheless have a “negative obligation to ensure that it does not violate the rights of the petitioners.”

For Bhatia, the judgment’s significance lies partly in its finding that “a negative obligation not to interfere with socio-economic rights (such as the right to housing), …applies to both public and private parties” although he argues persuasively that “the distinction between negative and positive obligations is doing a lot of work” and that the concrete practice of evictions significantly blurs the boundary between public and private actors. He rightly notes that “evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land.”

Public and private

If the distinction between negative and positive obligations is somewhat artificial, I also want to suggest that Kenya’s history of land grabbing shows that so too is the distinction between the state and private landowners. More than just state forces doing the bidding of private landowners, wielding batons and using bullets to break into homes in the early morning, in Kenya the state/private distinction is a mirage. In William Musembi, the court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land. Instead, it affirms the first respondent’s title – and proceeds to make an important ruling on the obligations of private actors. However, the history of land grabbing and the murky past of letters of allotment is a critical one to keep at the front of our minds.

For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights.

The report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Public Land established in 2003 set out in forensic detail the illegal and irregular land awards made over the years using the mechanism of the letter of allotment. Awards of land were made to the families of Presidents Kenyatta and Moi, numerous former ministers, members of parliament and civil servants, as well as to individuals in the military and the judiciary. The report sets out how out of proximity to the state, private property owners were created. Public land – land set aside for the building of public health clinics or schools for example – mysteriously turned into private land on which malls, private residences, and diplomatic headquarters appeared. No doubt some individuals acquired perfectly legitimate letters of allotment. But from the 1970s onwards, a thriving market in improper letters of allotment developed. They came to be treated as tradable land documents. Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land. This was done in order to get the benefit of the principle that an innocent third party for value without notice takes good title. The full extent of this practice is unknown: the Ndung’u Commission warned that its report provided only a snapshot of the illegal/irregular land allocations that had taken place over the years.

I have written elsewhere that land grabbing is sedimented in Kenya’s political economy such that we can describe it as a “grabbed state”. The “normal” economy is founded on accumulation by dispossession. It is not possible to understand Kenya’s political economy without an understanding of how the normal and the supposedly abnormal are pervasively linked. Far from land grabbing being an aberrant phenomenon that can be sharply distinguished from normal business practice, the illegal and irregular appropriation of land structures Kenya’s economy.

Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land.

There is no operative distinction between the public and the private in Kenya. This makes the judgment in the present case even more consequential: given the history of these murky conversions in title, the judgment’s finding that negative constitutional obligations can attach to private actors is likely to cover a great many potential eviction scenarios. Indeed, I would argue that given the history of land described above, the court should have gone further. Grounding its reasoning in Kenya’s history of land grabbing and the dispossession and discrimination that resulted, it could have held that positive socio-economic obligations (such as providing alternative accommodation) should extend to private parties. Or it might have held that given the extent of land grabbing — which is a matter of public record — the state should not agree to enforce a court order for eviction until it is satisfied that alternative accommodation has been provided.

Entrenching private property

Welcoming the Supreme Court’s judgment, Bhatia has noted that it “continues the welcome trend of judicial scepticism towards entrenched property rights.” The court demonstrated this scepticism by extending negative constitutional obligations to private actors. However, to do so, the Supreme Court moved to confirm the respondent’s title. That title it described as “unimpeached”. The court used this as the basis for setting out the first respondent’s obligations as a private owner. The extension of constitutional obligations to private actors is to be welcomed. But it is important to recognise also that by refusing jurisdiction to question the first respondent’s title – and ruling that this is a matter for another forum – the Supreme Court effectively sanctioned the enclosure of what the appellants claimed was unalienated public land and potentially legitimated the grabbing of public land.

The court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land.

Instead, the Supreme Court might have used Art. 23 which provides for the authority of courts to uphold and enforce the Bill of Rights, to try to fashion a remedy. It could have expressly referred the question of the integrity of the first respondent’s title to the National Land Commission rather than state as unequivocally as it did that it is unimpeached. At the very least, given the importance of a letter of allotment and the question of title in the case, the court should have rehearsed Kenya’s history of land grabbing and corruption as revealed by the Ndung’u report so as to give it judicial notice and provide a starting point for the wider task of challenging ill-gotten titles by those who might seek to do so.

Reinstating Judge Mumbi Ngugi judgment in the High Court and in particular her finding that damages should be paid to those evicted, the Supreme Court ordered the first respondents, the Moi Educational Centre, to pay fourteen families KSh150,000 (just over 1000 euros) each in damages. The government will also pay each family KSh100,000. In return, unless the National Land Commission or the Land and Environment Court are asked to rule on the propriety of the first respondent’s title and find against them, the Moi Educational Centre now hold unimpeached title to very valuable land in Nairobi. That is quite a windfall.

Violent evictions of families from their homes are not episodic and exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title, however acquired. How far can the courts be relied upon to undo accumulation by dispossession?

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