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A Quarrel in Ali Baba’s Cave

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With the suspension of the IEBC chief, Ezra Chiloba, over questionable procurement deals, the Commission’s collapse is now all but certain. Triggered by avarice and resurrecting the ghosts of August 2017, a change of guard at the electoral body will only further delay the search for electoral justice. How then, to deal with the original sin of Executive capture? By KWAMCHETSI MAKOKHA

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A Quarrel in Ali Baba’s Cave
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A decision last week by the plenary of the IEBC to send chief executive officer Ezra Chiloba on forced leave to pave way for a 90-day audit by the Kenya National Audit Office blasted open the simmering rivalries that have dogged this Commission’s tenure since it came to office in January 2017. As accusations and counter-accusations fly, it is now apparent that conflicts of interests over procurement tenders, rather than political factionalism or even the struggle to establish the truth of the August elections last year, will be the IEBC’s comeuppance.

Chiloba’s suspension triggered the resignations of commissioners Connie Nkatha Maina, who was the vice-chair, Margaret Mwachanya and Paul Kurgat. The trio’s departure, in addition to the dramatic resignation of commissioner Roselyn Akombe ahead of the October 26, 2017 presidential election re-run, denies the seven-member commission the necessary quorum of four to convene. Simply put, the Commission is paralysed.

Paralysis at the Commission will, among other things, throw a spanner in the works of the rumoured referendum on a constitutional amendment to replace the current presidential system with a parliamentary one – supposedly the end-game of the March 9 handshake between Uhuru Kenyatta and Raila Odinga.

While Ruto may have been the puppet-master who engineered the commissioners’ resignations – the influence of Ruto’s faction of the Jubilee party on the Commission has long been whispered – ostensibly to protect both his current position and his 2022 presidential ambitions, two other important casualties could well go down with a moribund IEBC: the truth of the August 2017 elections, and serious attempts at long-term electoral reform. These things, as we shall see, are not unrelated.

But first, to the ongoing drama at the Commission. Chiloba first found himself in trouble with his commissioners last year, in the messy aftermath of the presidential elections annulment, as the Commission prepared for a fresh poll. It is well worth noting that his latest suspension arises from some of the questions Chebukati raised in his leaked September 1, 2017 memo. Investigating five procurement tenders, the IEBC’s five-member Audit and Risk Committee found that Chiloba as the Commission’s chief accounting officer, committed serious violations of the Public Procurement Act in at least two instances.

While Ruto may have been the puppet-master who engineered the commissioners’ resignations – the influence of Ruto’s faction of the Jubilee party on the Commission has long been whispered – ostensibly to protect both his current position and his 2022 presidential ambitions, two other important casualties could well go down with a moribund IEBC: the truth of the August 2017 elections, and serious attempts at long-term electoral reform.

The first involved a Ksh 275 million contract with Oracle Technology Systems (Kenya) Ltd to provide election database solutions. The Audit Committee noted that: “There was no contract for provision of Oracle Database and Security Solution…between IEBC and Oracle Technology Systems (Kenya) Ltd drawn by [the Commission’s Directorate of Legal and Public Affairs] and signed by IEBC and Oracle Representatives. Instead, signed ordering documents drawn by Oracle…were provided [as evidence of a contract].”

Observing earlier that there had been no tender award notification, the committee described this situation as ‘High Risk’. More seriously, noted the committee, full implementation of the Oracle database system was only finalised on February 14, 2018, six months after the elections.

The second, once again, is tech-related: a Ksh 913 million contract, with Airtel Kenya Ltd, for the delivery of 1,553 Thuraya satellite modems – to be used for results transmission in remote areas. Signed just three weeks before the August 8 elections, in its acceptance letter, Airtel Kenya indicated that it could only deliver 1,000 modems in time. “Nonetheless,” notes the committee in the report, “the Commission proceeded to execute an agreement for 1,553 devices. Inquire why the Commission purchased 553 devices – despite the correspondence.”

The remaining 553 devices arrived two-and-a-half weeks after the elections.

IEBC chairman Wafula Chebukati and Dr Akombe lost a plenary battle to force Chiloba out of the commission following the Supreme Court’s annulment of the August 8 presidential election. At the time, attempts to obtain some answers from Chiloba for the disastrous August elections were fought off by Deputy President William Ruto, who claimed in a television interview that all the answers to the questions being raised had been provided. When Chiloba’s suspension looked irreversible last week, we are reliably informed, the three resigning commissioners consulted Ruto before taking the leap.

With Chiloba’s suspension now underway and the National Audit Office stepping in, the corruption investigation will only complicate the mystery around the 2017 elections – and further delay any efforts to fix the IEBC. Disputed elections in Kenya have nurtured a culture of rewarding suspected wrongdoers instead of punishing them. The Samuel Kivuitu-led Electoral Commission of Kenya, which presided over the disputed 2007 elections, was booted out of office at a cost of Sh68 million. Its successor, the Isaack Hassan-led Independent Electoral and Boundaries Commission received Sh315 million to leave office a year early.

Law scholar Muthomi Thiankolu observes that electoral malpractice does not occur by itself; that there are human beings behind it. “We have, since 1962, ignored them through legal sophistry. The courts’ refusal to personally sanction malpractice gives life to this perverse incentive.”

While the Kriegler Commission recommended root-and-branch electoral reforms after the 2007 elections debacle, the fact that the IEBC’s report on the 2013 elections was rejected by Bunge – there is to this day no comprehensive accounting of what happened in 2013 – suggests that even the piecemeal reforms eventually instituted under Kriegler were sabotaged by Executive capture. Accountability for electoral malfeasance remains Kenya’s political bugbear. Ironically, neither a Jubilee-run parliament, nor a demand for a popular referendum (á la the opposition’s Okoa Kenya initiative) submitted to a captured IEBC is likely to succeed.

With the resignation of the commissioners at the IEBC, a referendum appears out of the question, given the history that the opposition Coalition for Reforms and Democracy had with the Okoa Kenya (Save Kenya) initiative. After a year of public mobilization, the IEBC ruled that the referendum bill was dead on arrival because the movement had not collected the requisite one million signatures to warrant its presentation to the county assemblies for a vote.

CORD resorted to mass action outside the IEBC offices that ended in a Sh315 million buyout of the commissioner’s contract remainders, achieving the replacement of new commissioners seven months to the election.

The Audit Committee noted that: “There was no contract for provision of Oracle Database and Security Solution…between IEBC and Oracle Technology Systems (Kenya) Ltd drawn by [the Commission’s Directorate of Legal and Public Affairs] and signed by IEBC and Oracle Representatives. Instead, signed ordering documents drawn by Oracle…were provided [as evidence of a contract].”

With both the parliamentary and referendum routes to electoral justice closing, a managerial housecleaning may seem an acceptable compromise, but there are few guarantees that, as happened during the bipartisan Windsor Reform exercise, that it will not be scuttled by an Executive desperate to cling to power. Senate minority leader James Orengo and National Assembly majority leader Aden Duale appear to agree that the whole IEBC team needs to go, but none has reckoned with how long their replacements will be in coming. More dangerously, it will be harking back to the tried and failed methods of piecemeal changes to the electoral management body attempted over time.

Demands for political dialogue have significantly featured on the agenda electoral justice questions, which would entail acknowledgment of wrongdoing, punishment for election crimes, restitution for harms suffered and guarantees of non-repetition following similar disputes in the 2007, 2013 and 2017 elections.

Parliament, which has been riven by disputes over the unresolved August 2017 presidential election, was clearly doing the bidding of State House when it passed amendments to the Elections Act in the run-up to the repeat presidential election in October 2017. The amendments, which were aimed at weakening Wafula Chebukati’s authority among the commissioners, were struck down by the High Court as unconstitutional early this month. A captured Commission had by that time already unanimously endorsed Uhuru Kenyatta’s victory.

With a majority of 268 seats to NASA’s 127, Jubilee’s dominance in Parliament is not only guaranteed, it is likely to be bolstered if the trend of abortive election petitions continues. Consequently, any possibility that Bunge could become the site of genuine electoral reform is closed for the foreseeable future.

By mid February 2018 when a summary of court decisions in 244 petitions challenging the results of various races in the August 8, 2017 polls was published, Parliament had been closed off as a site of reform, turning the dream of electoral justice into a political chimera.

Over half of the 388 petitions challenging various elections had floundered for a variety of reasons — none of which had anything to do with what had happened at the ballot: Fourteen petitions were withdrawn before trial; another 14 dismissed for being filed out of time, 10 thrown out because the case papers were not served on victors; nine failed to take off because security for costs was not paid; and two could not proceed because the petitioner or their lawyers were not in court. One election winner died.

A paltry 14 petitions against the election of Members of the National Assembly and one against a governor had succeeded. Not only were the numbers in the Senate going to hold, with the Jubilee Party enjoying a majority, but the 14 by-elections for National Assembly seats posed the risk of reducing the Opposition minority from its 127.

If an incumbent has a direct interest in capturing the electoral management body to manipulate the results, then the EMB is also under pressure from crony oligarchs interested in profiting from procurement deals. Furthermore, the absence of formally funded political parties has created a gap for these very oligarchs to take control of and shape political movements. Elections in Kenya thus become a democracy auction, in which the highest bidder bags the prize.

Despite the enactment of the Political Parties Act in 2012, which provides that 0.3 per cent of all revenue should go to the Political Parties Fund to resources parties, Treasury has only allocated 0.03 per cent of revenue each year. Last year, the High Court agreed that the Orange Democratic Movement should have been paid the Sh4.1 billion owed to it from the fund, but ruled that claiming it late put the party at fault.

Nothing illustrates the desperation around the award of specific tenders and contracts more graphically than the last-minute litigation by the IEBC against the cancellation of the Sh2.5 billion ballot-printing contract to Al Ghurair of the United Arab Emirates. After contesting every court decision over eight months, the IEBC prevailed because the Court of Appeal realized that the country had run out of time to appoint a new supplier for the ballot materials.

The 2010 referendum on the draft constitution, considered one of the cleanest electoral events in recent history, gave birth to the Chickengate scandal, in which British printer Smith & Ouzman padded the cost of ballot papers in order to raise bribes for Kenyan officials awarding the tender. The British Crown Court fined the company Sh52 million and jailed its director. For its part, Kenya received the Sh52 million fine and spent it on ambulances. Three people were charged in connection with receiving bribes last year, a month to the elections.

If an incumbent has a direct interest in capturing the electoral management body to manipulate the results, then the EMB is also under pressure from crony oligarchs interested in profiting from procurement deals. Furthermore, the absence of formally funded political parties has created a gap for these very oligarchs to take control of and shape political movements. Elections in Kenya thus become a democracy auction…

The sheer scale of electoral operations has created a micro economy out of elections in Kenya, attracting a gaggle of sleaze-balls into election management. Questions have been raised over the award of Sh2.4 billion technology contracts to OT Morpho, the firm at the centre of the crisis involving the presidential election results, as well as the multi-million shilling supply of satellite phones for results transmission redundancy. Additionally, IEBC has been forking out billions of shillings in legal fees despite having a fully staffed legal department.

Instructively, criminal cases against former IEBC chief executive officer James Oswago, his deputy Wilson Shollei and managers Edward Karisa and Willy Kamanga over the purchase of Sh1.3 billion of biometric voter identification kits are still in court, six years after the Supreme Court recommended investigation and prosecution.

From the 2017 elections, a handful of election officials have been charged with petty offences relating to altering results in 2017, but accountability for major electoral breaches still remain the stuff of the political circuit.

Lucre is the reward for election managers to look the other way as politicians steal the vote. Still, with all its election problems, Kenya is already so far ahead of the pack in the region that, not unlike its steeplechase runners, it can afford to slow down the pace to allow those behind to catch up.

As it is, elections cannot be challenged in Tanzania once results are announced; in Uganda, courts can find elections flawed and still uphold the results. In Rwanda and Burundi, it never gets that serious. Unfortunately, the failure to debate and tackle questions of electoral justice loads them with grievances about exclusion of ethnicities, constructs narratives of marginalization and makes for less stable societies.

Kenya has unsuccessfully experimented with a representative commission bringing together political parties and a professional outfit, to no avail. Like the male praying mantis approaches an act of mating with the knowledge of its inevitable fate, so too have electoral commissions in Kenya come to conduct polls knowing that their heads will be shortly bitten off.

Kwamchetsi Makokha
By

Kwamchetsi Makokha is a journalist with over two decades on the frontline of the struggle for human dignity. Co-editor (with Arthur Luvai) of the East African poetry anthology, 'Echoes across the Valley', he escapes into literature, the performing arts and agriculture. He is currently Programme Advisor at Journalists For Justice.

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Referendum Without a Constitutional Moment: The Kenyan Story

With the country in the grip of a global pandemic and grappling with an ailing economy, is constitutional reform a priority when it’s not clear that the country is facing a constitutional moment?

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Referendum Without a Constitutional Moment: The Kenyan Story
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When they met and shook hands in March 2018, Uhuru Kenyatta and Raila Odinga pledged to address a number of issues that, to them, bedevil Kenya’s politics. A plan, formally referred to as the Building Bridges Initiative to a New Kenyan Nation—or simply, BBI—was announced in front of an audience that had witnessed a rather chaotic turn of events in the preceding months.

Raila had successfully contested Uhuru’s presidential victory at the Supreme Court and proceeded to boycott a repeat poll, citing lack of a competent and impartial electoral commission. Two months before the two leaders met, Raila had also made real his threat to take a symbolic presidential oath as the “people’s president” in defiance of Uhuru. A joint report by Amnesty International and Human Rights Watch stated that the police had behaved appropriately in some instances but, in many others, had shot or beat protestors to death.  Meanwhile, pressure from civil society organisations and the international community to find a political settlement was piling even as a debt-burdened economy was threatening to stall. Uhuru, like former president Mwai Kibaki before him, was probably worried about tarnishing his legacy.

Uhuru appointed an advisory committee in a matter of weeks. The members of the committee were instructed to make actionable proposals to address the BBI agenda, including proposals to review Kenya’s now ten-year-old constitution. The BBI’s nine-point agenda included ethnic antagonism, lack of a national ethos, devolution, divisive elections, security, corruption, shared prosperity, responsibility and inclusivity, as the main areas requiring intervention. It didn’t matter that protestors, including Raila himself, had singled out electoral malpractice as the main problem.

It wasn’t lost on many that nine days prior to the 8 August poll, the body of Chris Msando, the head of information, communication and technology at the Independent Electoral and Boundaries Commission (IEBC), had been found on the outskirts of Nairobi. Very few people, if any, thought that the Kenya 2010 constitution was the poisoned chalice.

Since then, the BBI bandwagon has threatened to change the constitution. It has taken particular issue with the winner-takes-all system, a feature that the 2010 constitution had actually been designed to dampen by diluting the powers of the presidency and distributing them across parliament, and devolving some responsibility to the 47 newly-established county governments.

Despite its pure presidential system, some supporters of the BBI have even argued that the 2010 constitution did not create an imperial presidency, that, in fact, it created a system of checks and balances on how the president should exercise his/her authority. In addition, the terms of reference for the Committee of Experts (CoE) who wrote the 2010 constitution were strikingly similar to those that, ten years later, were assigned to the BBI task force. Similar to BBI, the idea of building bridges and creating a national ethos had also been at the heart of the CoE’s mandate.

The constitutional draft that the CoE proposed (now Kenya’s constitution) not only received the popular vote during a referendum, but it also received the support of a broad section of the country’s political leadership, Raila and Uhuru included. What the 2010 constitution has not received since its promulgation is fidelity and adherence to its spirit.

A key weakness of constitutions the world over is their dependence on traditions put in place by human beings, which often makes them vulnerable to prevailing political interests. In Kenya’s case, the problem has never been a constitutional one in nature, but the result of deliberate efforts by Uhuru Kenyatta, and the Kibaki administration before him, to undermine the constitution and to reassert direct presidential control over devolution and over the other arms of government, the legislature and the judiciary.

I have written elsewhere about the significance of the reduction of the role of county governments by central government bureaucrats—the most significant structural change in Kenya since the 1960s—to simple units of administration and development, while minimising their political features. In this way, feelings of exclusion and marginalisation, underpinned by unaddressed historical injustices, have continued to exist despite constitutional change. Measures that would enable real participation in matters of governance and policy at the local level are frowned upon. Dismissed. Ignored.

Assertive County Governors are viewed as a nuisance that should go away. Responsibility over land administration, education, mega-infrastructure and parastatals has remained in the hands of the central government, and as such, under the direction of the presidency. In fact, matters of devolution have been domiciled within a national government ministry. Despite the establishment of a National Police Service Commission and an Independent Police Oversight Authority, police officers have continued to function outside the law with the express direction and support of higher-ups, with some shooting suspects dead in broad day light. President Uhuru Kenyatta has violated the constitution he wants to amend by refusing to swear in 41 judges appointed by the Judicial Service Commission. A resolution to the land question remains as distant as ever, despite the establishment of a National Land Commission.

These multiple assaults on the constitution and the law by executive fiat mean that it would be very difficult to remove an incumbent president from office through an electoral process, and in 2017 many paid the price of attempting to do so with their lives.

The question is, what has changed since then? Why has it become necessary to review or change a document that was written to avert the very conflict that the BBI task force was assigned to address? Also, should constitutional reform be prioritised when it’s not clear that the country is facing a constitutional moment but is in fact grappling with a global pandemic, an ailing economy, and a political leadership that has a penchant for behaving badly?

The theory

The theory of the “constitutional moment” refers to lasting constitutional arrangements that result from specific, emotionally shared responses to shared fundamental political experiences, or when there are unusually high levels of sustained popular attention to questions of constitutional significance. The constitutions of the United States, nineteenth-century Belgium, post-apartheid South Africa, and the Kenya 2010 constitution come closest to demonstrating this theory.

In the absence of a constitutional moment, a constitutional review usually serves other—more technical—goals and cannot be considered to be a fundamental choice regarding the political design of a country. One of the drawbacks of a constitution that emerges without the blessing of a constitutional moment is that it does not contribute to a sense of union, or the formation of identity, among the members of the society to which it applies.

In short, absent of a constitutional moment, the BBI is beginning to look, feel and behave like no more than a mere pact between the elite.

It is unlikely that the BBI will constitutionalise ordinary politics. Without popular enthusiasm for a new constitution, many Kenyans will perceive the plan to be no more than a pragmatic form of protection of the interests of the elite.

And this, since the handshake in 2018, is what has been taking place.

The problem

For Raila’s supporters, the BBI promises their leader a place in a future government. Uhuru’s supporters continue to be divided over the plan, as some remain suspicious of Raila’s intentions, and others believe that the BBI will consolidate Uhuru’s legacy at the end of his second term in office. For the supporters of the Deputy President, William Ruto, the BBI is meant to frustrate his efforts to succeed his boss come the next elections in 2022.

In an environment devoid of political trust, it is unlikely that the BBI will put an end to political tensions and instability in the country. In fact, a cursory survey of social media language during the COVID-19 pandemic reveals that extreme views and divisive political rhetoric are on the rise.

It is therefore more likely that the BBI will amplify the country’s ethnically polarised politics, setting the stage for future conflict. In this way, the BBI has quickly moved from building bridges to becoming the agent of their imminent destruction.

Kenya’s political class is yet again employing constitutional change as a tool to fight its traditional factional wars.

The results can only be disastrous.

The outcome

Raila Odinga, now BBI’s primary mover, has insisted that it is time to proceed to a referendum. Together with Uhuru Kenyatta, Raila has declared a second BBI report released on 21 October 2020 (the first was published on November 2019) to be final.

In his address to the Siaya County Assembly, Dr Adams Oloo, the BBI Steering Committee Vice-Chairperson and a close Odinga ally, intimated that only Uhuru Kenyatta and Raila Odinga have the final say on any further amendments to the document.

It is not clear whether it will be possible to complete the constitutional process in time for the embattled IEBC to effect the necessary changes ahead of the August 2021 referendum—which the IEBC estimates will cost Sh14 billion.

The electoral commission, whose term the BBI report has reduced from six to four years, has itself expressed reservations over the document.

Religious leaders and internally displaced people have also weighed in: the possibility of creating an imperial presidency and the fact that their concerns have not been addressed are, to them, key concerns. After promising the Pastoralist Parliamentary Group (PPG) that their concerns would be included in the document to be put to a referendum vote, Raila has backtracked, insisting that no changes will be introduced to the document after all.

The political struggles undergirding the BBI process have been laid bare. All language regarding consensus building has been thrown out. The main protagonists, in the wider race to succeed Uhuru Kenyatta in 2022, are Raila Odinga and William Ruto.

For the Ruto camp, a “Yes” vote in the referendum would be a disappointing measure of their popularity. For the Odinga camp, a delayed referendum would not leave them with much time to gauge Ruto’s and their own strength in the run-up to the 2022 polls.

Caught haplessly in the midst of these struggles, of course, are Kenyan citizens. They are now meant to forget that the Jubilee Administration had promised to tackle four big agendas –  affordable universal health care, food security, manufacturing and affordable housing –  now a near laughable prospect, given the ravages of the COVID-19 pandemic and the disastrous economic record that preceded it. A Jubilee politician has bragged that the BBI is a clever innovation to save the Big Four Agenda from completely turning to ash.

Broadly, the proposals of the second BBI report seem to have tightened control around the presidency. If successful, the president gets to appoint a prime minister from parliament who will also be the leader of the largest political party or the largest coalition of political parties. The president will also appoint two deputy prime ministers and cabinet ministers drawn from within and outside of parliament. The report has also recommended the disbandment of the National Police Service Commission and the creation of a National Police Council to be chaired by a cabinet Sscretary, that is, a presidential appointee. It has also established the office of an ombudsman within the judiciary, to be appointed by the president. A number of (early Christmas) gifts have been presented to various key players, perhaps as seductive (and useful) distractions from the proposed tyrannical changes.

Changing the 2010 constitution will not be easy given the high constitutional guardrails. It requires securing both a majority of the votes in a referendum and a majority of votes from members of the 47 county assemblies. In this way, the BBI report proposes an increase of the minimum revenue distributed to county governments from 15% to 35% of national revenue. Members of county assemblies will be allocated 5% of county revenue for a newly-created Ward Development Fund, modelled on the Constituency Development Fund. Businesses set up by young Kenyans will be tax-exempt for the first seven years of operation. The number of members of parliament has been increased, with an additional 27 new senators and 10 new members of the national assembly. The second runner-up in a presidential contest will be named the Leader of the Official Opposition, with a shadow cabinet, technical support and a budget.

All this is in complete disregard of the debt overhang that Kenya has found itself in since 2013. In fact, the external debt has grown by 15.6 per cent to Sh3.7 trillion between March and August 2020. Over the same period local debt expanded by 9.7 per cent to Sh3.4 trillion. The overall cost of running parliament is already 2 per cent of the national budget, and that of running the Executive has increased by 20 per cent over the last two years alone. As the government suspends health insurance for COVID-19 patients in the midst of a second, spiking wave, no one is talking about the possibility of the proposed referendum facing funding shortfalls.

In their response to the first constitutional draft that was published by the Committee of Experts in 2009, Kenyans cautioned against the creation of a bloated government—a concern that is still close to their hearts. This also means that Kenyans are not opposed to the existence of an opposition, per se, but that the loser of an election needs to feel that they have lost fairly. The dispute during every electoral cycle is usually over the sloppy manner in which elections are conducted, coupled with a high trust deficit often cultivated by politicians.

The solution, in my view, is to respect the law and cultivate a culture of constitutionalism. The Kenya 2010 constitution is not perfect, but it is also true that the leadership has not adhered to its letter and spirit.

Reviewing the constitution less than a decade after it was first promulgated may be right and proper, but one may ask, what is the constitutional moment this time?

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Make Amazon Pay

The Progressive International is mobilising with Amazon workers and their allies around the world. Here’s why.

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Make Amazon Pay
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Amazon’s size and power place the corporation at the very center of the crises of climate breakdown and economic inequality that grip our planet. The growth of CEO Jeff Bezos’s astronomical wealth — up $100 billion since March, now surpassing that of any other human in history — is directly proportional to Amazon’s human and environmental costs: his corporation mistreats its workers, wrecks the climate, and undermines the public institutions underpinning our democracies along the way along the way.

Taking on Amazon, therefore, will require more than curbing Jeff Bezos’s personal wealth or calling for corporate social responsibility. It will require a global movement that is organized along every dimension of Amazon’s expanding empire: for workers, for peoples, and for the planet.

That is why today — Black Friday — an international worker-activist coalition begins a planetary mobilization to #MakeAmazonPay. From Sao Paulo to Berlin, Seattle to Hyderabad, activists will project this rallying cry onto key Amazon sites, putting the corporation on notice that its days of impunity are over. Bringing together unions, environmentalists, and citizens around the world, this coalition exercises the only power that can meet the force of transnational capital: solidarity.

Amazon’s size and power place the corporation at the very center of the crises of climate breakdown and economic inequality that grip our planet.

In just a few years, Amazon has established itself as a key node in the circuitry of globalized capitalism. Having first revolutionized the links between production, distribution, and consumption on its digital platform, the corporation’s cloud infrastructure and e-commerce give Amazon controlling influence over huge swathes of social and economic life across the planet.

Amazon’s network of corporate power extends through our workplaces and into our lives. Producers and suppliers have no choice but to partner with Amazon to retain or gain access to consumers. Consumers, for their part, feel that they can hardly avoid Amazon, unless they are willing to wait longer and able to pay more. Through mass surveillance technology like Alexa, Echo, and Amazon Ring, the corporation has infiltrated millions of households and collected their most intimate data.

Across this network sits Amazon Web Services, which has played a key role in the operation of extractive industries and law enforcement; as well as Amazon’s recent ventures into sectors like financial services, food provision, and health care. Amazon has, in effect, become a wholly unaccountable, predatory transnational private state – or, indeed, a 21st-century empire.

In the absence of a common movement to challenge it, Amazon has managed to expand its empire to all corners of the global economy. But the tide is beginning to turn. Tech workers’ recent participation in the global climate strike was followed by important concessions by Amazon management, and transnational labor alliances led by UNI Global Union and Amazon Workers International have managed to integrate previously diffused worker resistance. Internationally, public advocacy groups have moved the urgent need to break up Amazon towards the heart of policy debates.

Taking on Amazon, therefore, will require more than curbing Jeff Bezos’s personal wealth or calling for corporate social responsibility. It will require a global movement that is organized along every dimension of Amazon’s expanding empire: for workers, for peoples, and for the planet.

These efforts show us the way forward. To Make Amazon Pay its debts to workers, the planet, and society, we must pursue a three-point strategy:

Firstly, recognize the international and intersectional nature of the Amazon struggle. Secondly, organize across national borders and narrow spheres of activism. Thirdly, politicize this struggle by taking it straight to legislative arenas around the world.

These are the goals of the campaign that launched today.

With respect to the first, our coalition’s Common Demands are global in their scope. We realize that Amazon’s power depends on its ability to exploit differences in national jurisdictions to drive on the global race to the bottom on social and environmental protections.

We recognize, too, the intersections of Amazon’s injustice. The environmental injustice of Amazon’s pollution, for instance, disproportionately affects people of color. The corporation’s monopolization of the cloud computing sector, meanwhile, is the basis of its close ties with Big Oil. Our coalition therefore brings together the environmentalists of Greenpeace and 350 with groups like Data 4 Black Lives, the Athena Coalition, and the Hawkers Federation of India.

With respect to the second point of strategy, today’s action unites workers across Amazon’s supply chain — from the tech workers in Amazon’s Seattle headquarters and warehouse workers organized by UNI Global Union affiliates, the Awood Centre, and Amazon Workers International, all the way to supply chain workers in garment factories in Bangladesh.

And with respect to the third, our coalition does not demand that Jeff Bezos change Amazon’s business model out of the goodness of his heart. Instead, the movement aims to build legislative power that can put an end to the “Amazonification” of our economies and societies. We invite progressive lawmakers across the globe to join us, and stand with this global movement to Make Amazon Pay.

The mission of this campaign is as simple as it is radical: to win a different world. A world in which corporations that primarily serve the interests of their CEOs are replaced by cooperatives that serve the interests of the many. A world in which economic activity does not lead to climate destruction, but to environmental reconstruction and flourishing. A world in which markets are governed by democratic institutions, rather than vice versa. Solidarity is the vehicle to deliver this world. Making Amazon pay is where we start.

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Is the BBI a Trojan Horse Disguised as a Guardian Angel?

The Building Bridges Initiative fails to inspire because it offers simplistic solutions to problems that have more to do with poor leadership than with Kenyans’ inability to be responsible citizens.

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Is the BBI a Trojan Horse Disguised as a Guardian Angel?
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I have resisted commenting on the recently launched Building Bridges Initiative (BBI) report, mainly because in Kenya today if you oppose the BBI, you are labelled as being in Deputy President William Ruto’s camp, and if you support it, you are seen as being on the side of President Uhuru Kenyatta and his new ally, former opposition leader, Raila Odinga. And since I do not belong to either of these groups, I was afraid that by commenting on the report, I might inadvertently be labelled pro-Uhuru or pro-Ruto.

Critics of the BBI have mainly focused on whether amending the constitution through the BBI process is, in fact, unconstitutional as it would bypass many of the requirements for amending the 2010 constitution, which are onerous and virtually impossible to fulfill without a national consensus. Some critics, like the Kenya Conference of Catholic Bishops, say that by giving the president power to appoint a prime minister and two deputy prime ministers, the BBI is calling for a return to an imperial presidency.

On the other hand, supporters of the BBI – particularly the “handshake” stakeholders and many commentators in the mainstream media – have lauded the BBI for being the magic pill that will unite the country and spur social and economic development.

Intellectual surrender 

Having now read the abridged version of the BBI report, I can conclusively say that it has failed to address the biggest crisis facing this country – that of poor leadership. The most offensive and egregious section of the report is undoubtedly the opening Validation Statement, which places the responsibility for all that is wrong with this country squarely on the shoulders of Kenyans – not on our leaders, who got us into the mess we are in in the first place.

The report states: “Kenyans decried the fact that Kenya lacked a sense of national ethos and is increasingly a nation of distinct individuals instead of an individually distinct nation. And we have placed too much emphasis on what the nation can do for each of us – our rights – and given almost no attention to what we each must do for our nation: our responsibilities.”

As Wandia Njoya pointed out in a recent article, what the BBI has effectively done is told Kenyans that they are to blame if their rights are violated. And if moral and ethical standards have dropped across the country, it’s not because the country’s politicians have lowered moral and ethical standards and have set a bad precedent, but because Kenyans just don’t know how to behave properly. It’s called blaming the victim.

It suggests that Kenyans are somehow wired to be evil or corrupt, that decades of state-inflicted brutality against citizens – an offshoot of a neocolonial dispensation where citizens are treated as gullible and exploitable subjects – has nothing to do with the culture of impunity we find ourselves in. That the contemptuous way in which we are treated by state institutions – at police stations, in public hospitals, in government offices – is somehow our fault. And that the example of how to behave was not established by the state and its officials that consistently fail to deliver justice to Kenyans and turn a blind eye to violence committed by state and security organs, especially against the poor. Remember, this is a country where a chicken thief can end up spending a year in jail, but a minister who has stolen billions from state coffers can get away scot-free.

Njoya writes:

We are told that discussing history is blaming colonialists and refusing to take responsibility for our own actions. That discussing ethnic privilege and patronage is attacking every single member of that ethnic group. That discussing patriarchy is blaming men. That explaining systemic causes of problems is explaining away or excusing those problems. Every public conversation in Kenya is a war against complex thinking. We have reached the point where Kenyan public conversations are pervaded by this system of intellectual simplification.

Hence the BBI’s proposal to set up a new commission to address “indiscipline in children, breakdown of marriages and general erosion of cultural values in today’s society”. Presumably, this commission will take on the role of parents, school teachers and community leaders “by mainstreaming ethics training and awareness in mentoring and counselling sessions in religious activities and through community outreach programmes”.

What is being implied here is that if only Kenyans were more religious, they might not behave so badly. (I wonder if the drafters of the report know that Kenyans are among the most religious people in the world. Yet we are consistently ranked as among the most corrupt countries on the planet.)

The BBI report recognises that ethnic divisions have polarised the country, but it does not acknowledge that ethnic polarisation is the result of a political leadership that forms opportunistic tribal alliances for its own advantage and is happy to pit one ethnic community against another in order to win elections.

Moreover, its recommendations on how to reduce ethnic animosity appear to be based on the idea that if you force different ethnic communities to live in close proximity to each other, Kenya will miraculously become a society where all ethnic groups live together in peace and harmony.

There is also this misguided belief that if the people in authority are from an ethnic group that is distinct from the ethnic group that these people lord over, there will be more accountability (a model borrowed from the Kenya Police and the colonial and post-colonial district and provincial commissioners’ templates). Hence the Ministry of Education should “adopt policy guidelines that discourage local recruitment and staffing of teachers”.

Many sociologists and behavioural scientists might argue that, in fact, if you want more accountability and cohesion in a community, the leadership should come from that same community. So, for instance, if police officers belong to the same ethnic community that they serve and protect, they are more likely to be more accountable to that community because any signs of misconduct on the part of the officer will be perceived as having a direct bearing on the welfare of that community. A bribe-taking officer is more likely to be reprimanded by his community because it is his community that suffers when he takes a bribe. A Kalenjin police officer posted in Malindi, for instance, will not care what the Giriama community he is extorting bribes from or is brutalising think of him because he is not part of them and is not accountable to them or to their community leaders and elders. This accountability is further diminished by the current practice of police officers regularly being transferred to different localities.

Similarly, in schools, particularly those in remote or marginalised areas, it is important that the teachers be from that community because they also play the role of mentors and role models. We are more likely to follow in the footsteps of someone who looks like us and who has a similar history than someone who doesn’t. Which is why Vice President-elect Kamala Harris has opened the doors to leadership for so many girls and women of colour in the United States.

This is not to say that the BBI report glosses over the problems facing marginalised communities. On the contrary, it makes it a point to highlight that “the marginalised, the under-served and the poor” are suffering and are in urgent need of “an immediate helping hand and employment opportunities to help them survive”. What the report fails to recognise is that the Constitution of Kenya 2010 was designed to ensure that such communities are not condemned to perpetual poverty. Devolution was supposed to sort out issues of marginalisation by ensuring that previously marginalised communities and counties are empowered to improve their own welfare. By making them recipients of hand-outs, the BBI has added insult to their injury.

Thankfully, the report does recommend that previous reports by task forces and land-related commissions, including the Ndung’u Land Commission and the Truth, Justice and Reconciliation Commission (TJRC), be implemented. My question is: If President Uhuru Kenyatta did not implement the recommendations of the TJRC, which handed its report to him in May 2013 shortly after he assumed the presidency, what guarantees do we have that he and his BBI team will implement the recommendations now? The president has also failed on his promise of a Sh10 billion fund for victims of historical injustices. What has changed? Clearly not the leadership (and here I mean the entire leadership, not just Uhuru’s).

Silences and omissions

Moving on to another marginalisation issue: women’s representation. We all know that Parliament has actively resisted the two-thirds gender rule spelled out in the constitution. So what epiphany has occurred now that suddenly there is an urgent desire to include more women in governance institutions? If Parliament had just obeyed the constitution, there would not be a proposal in the BBI to ensure that no more than two-thirds of members of elective or appointive bodies be of the same gender. It would be a given.

And yet while BBI gives with one hand, it takes with the other. The BBI task force proposes that the position of County Women’s Representative in the National Assembly be scrapped.

What’s worse, the BBI actually appears to welcome the recommendation of “some Kenyans” that Independent Electoral and Boundaries Commission (IEBC) commissioners be appointed by political parties. Really? If you think that the 2007, 2013 and 2017 elections were fraudulent and chaotic, then wait for serious fraud and possible violence in an election where the electoral body’s commissioners represent party interests. (If I had my way, I would disband the IEBC altogether and put together a non-partisan body comprising foreign officials to run elections in this country. Maybe then we would have some hope of a free, fair and corruption-free election.)

The BBI is also silent on the role of the IEBC in vetting candidates, and ensuring that they adhere to Chapter Six of the Constitution on leadership and integrity. Let us not forget that many of the candidates in the last two elections had questionable backgrounds, and some were even facing charges in court. Why did the IEBC not ensure that those running for office had clean records?

On the economy, or what it calls “shared prosperity”, the BBI, emphasises the role of industry and manufacturing in the country’s economic development but is silent on agriculture, which currently employs about half of Kenya’s labour force and accounts for nearly 30 per cent of Kenya’s GDP, but which remains one the most neglected and abused sectors in Kenya. It’s a miracle that our hardworking and much neglected farmers are able to feed all of us, given that they receive so little support from the government, which consistently undermines local farmers by importing cheap or substandard food and by providing farmers with few incentives.

Besides, it is highly unlikely that Kenya will become a factory for the region, let alone the world, like China, because it simply does not have the capacity to do so. Why not focus on services, another mainstay of the economy?

The BBI also talks of harnessing regional trade and cooperation and sourcing products locally but, again, we know this is simply lip service. If Uhuru Kenyatta’s government was keen on improving trade within the region, it would not have initiated a bilateral trade agreement with the United States that essentially rubbishes and undermines the country’s previous regional trade agreements with Eastern and Southern African countries and trading blocs.

On the yoke around every Kenyan’s neck – corruption – the BBI’s approach is purely legalistic and administrative. It wants speedy prosecution of cases involving corruption and wastage of public resources and it wants to protect whistleblowers. (Good luck with the latter. In my experience, no whistleblower protection policy has protected whistleblowers, not even in the United Nations.)

BBI also wants to digitise all government services to curb graft. But as the economist David Ndii pointed out at the recent launch of the Africog report, “Highway Robbery: Budgeting for State Capture”, if corruption is built into the very architecture of the Kenyan government, no amount of digitisation will help. Remember how the Integrated Financial Management Information System (IFMIS) was manipulated to steal millions from the Ministry of Devolution in what is known as the NYS scandal? Computer systems are created and run by people, and these people can become very adept at deleting their digital footprints from these systems. As the former Auditor-General, Edward Ouko, pointed out, when corruption is factored into the budget (i.e. when budgets are prepared with corruption in mind), corruption becomes an essential component of procurement and tendering processes. So let’s think of more creative and innovative ways of handling graft within government.

Which is not to say that the BBI task force has not struggled with this issue. There are various proposals to amend public finance laws to make the government more accountable on how it spends taxpayers’ money. But we know that these laws can be undermined by the very people responsible for implementing them, as the various mega-corruption scandals in various ministries and state institutions have shown.

A Trojan horse? 

Many Kenyans suspect that perhaps the real and only reason for the BBI is that it will allow for the creation of new powerful positions – such as that of prime minister to accommodate both Raila Odinga and Uhuru Kenyatta – and will set the stage for a return to a parliamentary system of governance instead of the current presidential “winner-takes-all” system. But while the latter might appear to be a worthwhile endeavour, the fact that former opposers of the new constitution and the parliamentary system now appear to be endorsing both suggests that there is something more to this than meets the eye. As Prof. Yash Pal Ghai has repeatedly stated, the constitution endorsed at Bomas was premised on a parliamentary system and was only changed at the last minute to accommodate a presidential system. That is how we ended up where we are now.

It also appears strange that those who benefitted most from the presidential system now want to change the constitution.  As Waikwa Wanyoike, put it:

Worse, those hell-bent on immobilising the constitution have done so by conjuring up and feeding a narrative that it is an idealistic and unrealistic charter. Because they wield power, they have used their vantage points to counter most of the salutary aspects of the constitution. Uhuru Kenyatta’s consistent and contemptuous refusal to follow basic requirements of the constitution in executing the duties of his office, including his endless defiance of court orders, stands out as the most apt example here.

Yet all this is calculated to create cynicism among Kenyans about the potency of the constitution. Hoping that the cynicism will erode whatever goodwill Kenyans have towards the constitution, the elites believe that they can fully manipulate or eliminate the constitution entirely and replace it with laws that easily facilitate and legitimise their personal interests, as did Jomo Kenyatta and Moi.

If indeed we want to go back to a parliamentary system through a referendum, then we should hold the referendum when the current crop of politicians (some of whom, including Uhuru Kenyatta and William Ruto, were opposed to the 2010 constitution in the first place) are not in leadership positions because many Kenyans simply don’t trust them to do what is in Kenyans’ best interest. After all, a fox cannot be relied on to guard a chicken coop.

Already the president has urged Parliament to pass laws that conform to the BBI proposals – this even before the proposed referendum that will decide whether the majority of the country’s citizens are for or against the BBI’s raft of recommendations. In other words, the BBI proposals may become laws even before the country decides whether these laws are acceptable and are what the country needs.

Are the goodies proposed in the BBI, such as providing debt relief to jobless graduates and allocating a larger share of national revenue to the counties, just enticements to lure Kenyans onto the BBI bandwagon so as to ensure that the current political establishment consolidates its hold on power? Is the BBI a Trojan horse disguised as a guardian angel? Only time will tell.

One possibility, however, is that a groundswell of public opinion against the BBI might just overturn the whole process.

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