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The Kibera Demolitions: A Response From the Constitution

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The constitution does not value roads more than footpaths, cars more than people, grand railways and glass office towers more than those who are forced to live and do business in mabati shacks and kiosks. The constitution shows preference for rights over law. It means it is not an adequate answer to say only “they were there illegally”. By JILL COTTRELL GHAI AND YASH PAL GHAI.

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The Kibera Demolitions: A Response From the Constitution
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“Homes of 30,000 people in Kibera demolished to make way for a road”
– BBC World Service July 23rd

On the day when this became news, one of us had given a presentation on human rights at a workshop. Another presenter suggested governments might be embarrassed to be shown up internationally as seriously violating human rights. Your author responded, “I am not convinced this has any impact. The government shows no shame.”

The response of our government over the Kibera evictions was reported as being: “They were there illegally”.

Despite being lawyers, we want to suggest that such a legalistic approach is a complete violation of the constitution.

The constitution is the product of a vision. It was the vision of the people of Kenya: they were fed up. Fed up with tyranny, with lack of accountability, with lack of respect, with the accumulation of national resources and power in a few hands, with the capture of the state for personal gain. The Constitution of Kenya Review Commission in its Short Report, which accompanied the first draft constitution, said this:

The Review Act speaks of the needs of marginalized communities. You might almost say the Commission found a marginalized nation. … The whole nation feels alienated from the government and structures of authority. People feel neglected, and victimised. They consider they have no control over their life or destiny.

The constitution is the product of a vision. It was the vision of the people of Kenya: they were fed up. Fed up with tyranny, with lack of accountability, with lack of respect, with the accumulation of national resources and power in a few hands, with the capture of the state for personal gain.

It did not, though it might have, say Kenyans wanted to be free of what Shakespeare called the “arrogance of power”.

The response of the constitution drafters

Let’s begin at the beginning: the Preamble. It speaks of the people being committed to “nurturing and protecting the well-being of the individual, the family, communities and the nation”. And recognises that all Kenyans long for “a government based on the essential values of human rights, equality, freedom, democracy, social justice and the rule of law”.

The Constitution goes on to say that the people of Kenya are sovereign. What does this mean? If they are not empty words it means that the country belongs to the people. All the people. It does not belong just to the wealthy, the politically connected, the obsessed-with-their-own-power. It must mean, and it thus follows, that it is a total negation of the constitution to ride rough-shod over the lives, livelihoods, homes, happiness and prospects of thousands of fellow citizens.

Early in the Constitution is the Bill of Rights. Its purpose is made clear: it is “to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings”. It later says: “Every person has inherent dignity and the right to have that dignity respected and protected”.

How do you respect the dignity of people, achieve social justice and enable people to realise their potential by grinding into the dust their birth certificates, their school certificates, their mementos and their hopes?

The constitution says: “Every person has the right … not to be subjected to any form of violence from either public or private sources, … or treated or punished in a cruel, inhuman or degrading manner”. Violence is not just a matter of physical force. Treatment is not just about medical treatment.

The constitution shows particular care for older members of society, and minorities and marginalised groups and children. “A child’s best interests are of paramount importance in every matter concerning the child”. Everyone (and minorities and marginalized are particularly mentioned) has a right to have reasonable access to water and health services. The elderly have the right to live in dignity and respect and be free from abuse; to receive reasonable care and assistance from the family and the state (not to be hounded out of their homes by that state).

Eviction standards

Everyone, the constitution tells us, has the right to housing. No one would deny that sometimes people will have to lose their homes in order for important development to take place. The Land Act as amended provides for evictions to be as decent as possible, and in its provisions at least, was intended to implement the constitution. It says that evictions must be carried out in a manner that respects people’s dignity, right to life and security. There must be special measures to ensure protection of women, children, the elderly, and persons with disabilities. There must be special measures to ensure that there is no arbitrary loss of people’s possessions. And force used only when necessary.

The Land Act as amended provides for evictions to be as decent as possible, and in its provisions at least, was intended to implement the constitution. It says that evictions must be carried out in a manner that respects people’s dignity, right to life and security. How can the indiscriminate use of bulldozers possibly respect these rules?

How can the indiscriminate use of bulldozers possibly respect these rules?

Kenyan courts have also said that evictions must be planned to avoid disrupting schools, work, and take account weather conditions. Instead people are evicted in a particularly cold July and in the closing weeks of the school term.

Courts have also indicated the need for engagement with communities before evictions take place.

Distorted priorities

The dismal truth is that our so-called leaders, and the people who do their will, are blind to the vision of the constitution. The notion that a person who lives in Kibera or Korogocho or Mathare (and indeed the 60 percent of the people of Nairobi who live in informal settlements) is just as worthy of respect and dignity as the well-heeled, well-fed and comfortably housed is beyond their comprehension. In truth the constitution is beyond their blinkered ability to comprehend.

The constitution does not value roads more than footpaths, cars more than people, grand railways and glass office towers more than those who are forced to live and do business in mabati shacks and kiosks.

The constitution shows preference for rights over law. It means it is not an adequate answer to say only “they were there illegally”.

Large scale evictions are not easy anywhere. That must be admitted. Indeed it is precisely because of this that the United Nations adopted Guidelines on Development Related Evictions, which were relied upon by our courts when they laid down guidance on evictions, and are imperfectly reflected in the Land Act.

But the truth is that the Kenyan authorities are not just uncaring, lacking empathy with the people who elect them and whom the constitution says they are supposed to serve rather than rule. They are also incompetent.

It cannot be beyond the wit of public servants to think things through from the beginning. What is the best route for a road (preferably to avoid human suffering as far as possible)? Can the land be gradually cleared, ensuring that people have places to go, and that is not just structure owners (themselves squatters) who get compensated?

Doesn’t all this make the President’s Big Four promises sound a bit empty? Most of the people evicted would never be able to afford even his “affordable” housing.

When will the government, national and county, develop a real plan for Nairobi, including a strategy for informal settlements that is more caring and sophisticated than a bulldozer? When will they learn that it needs an integrated, evidence based, publicly debated and approved, approach that will ensure decent, affordable public transport, not just off the cuff ideas that go nowhere, like lipstick lines?

Doesn’t all this make the President’s Big Four promises sound a bit empty? Most of the people evicted would never be able to afford even his “affordable” housing.

How long can Kenya’s elite get away with treating so many citizens with such scorn and lack of respect?

Related links

Report of the Constitution of Kenya Review Commission Volume Five Technical Appendices
The Constitution of Kenya Review Act, 1997
Physical Planning Act No.6 of 1996
Petition 239 of 2014
Anguish as houses demolished to pave way for Kibera link road
Over 20,000 people left homeless in Kibera demolition
Residents of Kibera decry short notice as demolitions continue
Prof. Yash Pal Ghai condemns the government for demolishing Kibera houses
Structures on road reserve in Kibera set to be demolished
Stop inhumane Kibera demolitions, KNCHR tells KURA
Evictions in Nairobi: Why the city has a problem and what can be done
Mass eviction looms in Kibera to pave way for road works
Raila’s party protests government eviction of Kibera residents to construct road
Kibera residents facing eviction to meet roads officials
Kura, Amnesty in Twitter spat over Kibera demolitions
Kibera Slum Kenya Demolition of Homes – 30,000 Displaced
Agencies agree to compensate Kibera residents facing eviction

(Additional research by Juliet Attelah)

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Jill Cottrell Ghai has been a Professor of Law at numerous universities, including Ife and Ahmadu Bello Universities in Nigeria, Warwick University and the University of Hong Kong. She also has extensive experience in advising on constitutions, including in Kenya, Nepal and Iraq. Prof. Yash Pal Ghai is Kenya’s preeminent constitutional lawyer and former chair of the Constitutional of Kenya Reform Commission (CKRC).

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Will Nothing – Not Even a Deadly Virus – Stop the Police From Brutalising Kenyans?

The imposition of a curfew in Kenya in response to COVID-19 has been accompanied by increasing levels of violence against civilians by the police. This has, once again, underscored how poorly trained Kenya’s police “service” is and why it is the most dreaded institution in the country.

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Will Nothing – Not Even a Deadly Virus – Stop the Police From Brutalising Kenyans?
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Every time there is a crisis in Kenya, the country’s fault lines begin to show, whether it is inefficient or corrupt institutions or a leadership that is only interested in its own survival.

During the deeply polarised 2013 and 2017 elections, for example, Kenya’s electoral body showed itself to be either unable or unwilling to conduct fair and transparent elections. Corruption scandals involving past and current electoral commissioners failed to get the commissioners removed, and questions about the validity of the tallying process have not yet been fully answered.

During the Moi regime, as the country’s economy stagnated under the weight of corruption and economic mismanagement, the judiciary proved to be an enemy of the people, always siding with the corrupt. Kamlesh Pattni, one of the masterminds of the Goldenberg Scandal, which almost brought the country to its knees, remains a free man to this day.

After the Westgate Mall terrorist attack in September 2013, Kenyans were horrified to learn that instead of subduing the terrorists and helping hostages within the mall to escape, security officers, including the Kenya Defence Force, had gone on a looting spree in the mall, whose shops were emptied of nearly everything during the four-day siege.

Kamlesh Pattni, one of the masterminds of the Goldenberg Scandal, which almost brought the country to its knees, remains a free man to this day

Under the debt-ridden Jubilee administration, Kenyans have watched their standard of living deteriorate considerably as the promised economic growth fails to reach the majority of the country’s population and as mega scandals, including importation of contaminated food and daylight robbery in government institutions, continue unabated. President Uhuru Kenyatta’s promise to bring corrupt individuals—including the “big fish”—to book has yet to result in convictions or to gain the trust of a cynical citizenry for whom corruption has become a way of life, thanks to the myriad bribes demanded every time they want a government service. With rising Chinese debt and now the coronavirus pandemic, Kenya’s economic future looks even bleaker.

But no matter what the crisis, the Kenya Police is the one institution that consistently fails to live up to its promise and motto (Utumishi kwa Wote – Service to All), as was demonstrated on 27th March when a nationwide indefinite curfew was imposed from 7 p.m. to 5 a.m. in response to the global coronavirus pandemic. Images of Kenyans being badly beaten and humiliated by police officers minutes after 7 p.m. began surfacing on social media. “The curfew has worsened the security in the country. The police are part of the insecurity. Chaos ahead”, posted a Kenyan on Twitter.

As with all types of police brutality in the country, the victims were mostly the poor. Informal settlements in Nairobi and other cities bore the brunt of police brutality during the curfew. (The clueless officers who beat up people with batons seemed completely unaware that they were putting their own lives at risk by violating the “social distancing” directive.)

“The curfew has worsened the security in the country. The police are part of the insecurity. Chaos ahead”

The level of the violence against civilians has once again underscored how poorly trained Kenya’s police “service” is and why it is the most dreaded institution in the country. While in other countries people run to the police for help, in Kenya, at least since the Daniel arap Moi “police state” days, most Kenyans, upon seeing a police officer, run the other way to avoid having to pay a bribe or being arrested on flimsy grounds. Stories of police officers actually assisting people in times of distress or during a crisis are few and far between. We hear of police reforms and “people-friendly” police uniforms, but we have yet to see their results. Police recruitment exercises are so riddled with corruption and rigging, it is not surprising that those who end up as police officers hardly qualify for the job.

Over the years, Kenyans have also become accustomed to riot police turning cities, and in particular low-income neighbourhoods, into battle zones. Officers who kill using live bullets are hardly ever prosecuted. Kenya is notorious for extrajudicial killings (mostly of young men in informal settlements) by the police, a fact that has also been highlighted by international human rights organisations. The Independent Police Oversight Authority—a body created by Kenya’s new constitution to keep police excesses in check—appears to be impotent in the face of all these human rights violations, partly because it has no authority to prosecute.

Police stations in Kenya are known for bribe-taking, and there have been reports of victims of crime being jailed instead of their statements being taken. As always, the poor, those without legal representation and the most vulnerable, such as street children and women vegetable hawkers, end up in police cells.

Meanwhile, the response of the police to the public outcry against the brutality inflicted on Kenyans during the curfew has been contemptuous and insensitive. The police spokesperson and other government officials have essentially blamed Kenyans for bringing the violence upon themselves by disobeying the curfew. Charles Owino, the police spokesperson, derided a news anchor for daring to ask him what instructions the police had been given to enforce the curfew, even suggesting that Kenyans are like “children” who need to be “disciplined”—an attitude reminiscent of the British colonial administration.

The worst part is that the people who were attacked by the police were not deliberately defying the curfew; many were just caught up in the transport chaos and delays precipitated by the curfew and “social distancing” directives. Some using the Likoni ferry in Mombasa found themselves in an unusual situation where the ferries (which have proved to be a dangerous mode of transport in Kenya due to their age and state of dilapidation—another consequence of corruption) had been overwhelmed. A man using the ferry who was badly beaten by the police died from the injuries inflicted on him.

It again feels as if the country is in the midst of a civil war. In 2007-08, as the country was hurtling towards what appeared like a civil war, the police unleashed violence on innocent civilians simply because they could. Traumatised Kenyans who hoped that the presence of police officers and other security agents would protect them from the post-election violence that had engulfed many parts of the country were in for a shock: the police turned against them, shooting innocent people whose only fault was that they happened to be in the “wrong” neighbourhood. Who can forget the image of the young man who was shot and killed in January 2008 by anti-riot police in Kisumu? Or those of people in Kibera and Mathare being shot at and teargassed for no reason other than that they were protesting?

The Waki Commission and human rights reports found that a large number of the casualties during that period were the result of police or security officers’ bullets. When the nation is in a crisis, the police turns against civilians. During the last election, civilians, including children, were shot at randomly. One baby lost her life.

The reality on the ground

The government’s response to the coronavirus pandemic has so far been swift. The health ministry has kept citizens informed of the spread of the virus in the country and the steps taken to quarantine people arriving from abroad, though I am not sure about the value of a night-time curfew if people can mingle during the day. The closure of bars and restaurants, in my view, was sufficient to impose a curfew on those who are likely to spend their evenings outside the home socialising.

President Kenyatta also announced a raft of tax breaks for the poorest percentile, and reduced VAT on items. These are praiseworthy efforts, but like India, which imposed a nationwide lockdown, and has seen the mass exodus of informal workers from cities such as Mumbai and New Delhi (some of whom were sprayed with bleach by the authorities when they returned to their villages), the government has failed to factor in the reality of the majority of citizens’ lives. What does a tax exemption mean to a hawker or a construction worker whose earnings have dwindled to next to nothing as a result of the curfew and social distancing directive? What does working from home look like to someone whose house is a cramped shack in a slum? How does someone who does not own a fridge stock up for a week or more? What do the majority of people in the informal sector do to earn a living when their work is dependent on people not social distancing? How will small businesses where each customer counts survive?

This is not to say that Kenya is exceptional and should not learn from other countries facing the same crisis. The United States and Italy were slow to respond to the pandemic, and as a result, are likely to see many casualties that could have been avoided. (In the interest of humanity, President Donald Trump should lift sanctions against Iran, which is facing a growing coronavirus crisis.) But any directive to handle the crisis must be made bearing in mind the reality on the ground. It would be a shame if more people in Kenya died, not because of the virus, but because they starved to death or because of a preventable illness. Already in India analysts are predicting that malnutrition and starvation levels are set to rise in the country, where more than 80 per cent of the workforce is informal. We must also not forget that there are other diseases in Africa that are likely to kill more people than COVID-19. About 400,000 people in Africa die from malaria each year.

There are things the government can do to take into account the reality of Kenyans’ lives. For instance, instead of relying on an unreliable, corrupt and brutal police service, citizens should be encouraged to monitor their own communities and neighbourhoods. Kenyans willingly abided by the social distancing directive, so it is likely they will voluntarily obey a curfew. If the police is called in to enforce the curfew, it should be instructed not to use violence; those disobeying the instruction should be disciplined.

Secondly, if containment is a strategy to stop the spread of the virus, then people could easily be tested in situ. Mass testing has proved to be extremely effective in countries such as South Korea and Germany. Mobile clinics could go around cities and villages providing this service. Those found with the virus could be quarantined, while those free of it could be allowed to continue with their daily lives—but within certain limits.

Instead of relying on an unreliable, corrupt and brutal police service, citizens should be encouraged to monitor their own communities and neighbourhoods

The United Nations and other international organisations are already mobilising funds for poor countries to help them deal with the crisis. Could these funds be used for mass testing in countries like Kenya? (On the other hand, in times of disaster UN and other donor funds have been known to be diverted to non-target groups, so this is something we should bear in mind. It would be a shame if funds sent to Kenya end up in the wrong hands, as they did when some funds meant for HIV/AIDS patients ended up being stolen by the funds’ managers.)

There is no doubt that the crisis we are now facing is unprecedented. But it would be a double tragedy if the pandemic were to end up killing not just those who have the virus, but also those who cannot afford to eat because they have no source of income. President Kenyatta has said that he has set aside a kitty for poor and vulnerable groups. The question that is on everyone’s mind is: How can we trust a government that has been notorious for stealing from the mouths of babes to implement any kind of cash transfer programme when those in charge might be tempted to steal some or all of it? And how will these vulnerable people be identified given that the country, including government departments, has virtually come to a halt?

At a time like this we should not be questioning our government, or the police. But because we live in Kenya, these questions appear normal in these abnormal times. Will Kenya rise to the occasion and finally fix all that is broken, starting with the police? Will the coronavirus pandemic offer us an opportunity to save us from ourselves?

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Notes on Leviathan, the Invisible Hand and Moral Sentiment in the Time of Coronavirus

The government does not understand the magnitude of the response that is required. There is no appreciation that the key challenge of responding to the COVID-19 economic shock is policy instruments, not funding. And that is a problem.

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Notes on Leviathan, the Invisible Hand and Moral Sentiment in the Time of Coronavirus
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In the great chess-board of human society, every single piece has a principle of motion of its own

I had an insightful, if disconcerting, engagement a couple of days ago on some of the thinking behind the COVID-19 resource mobilisation that is going on in the government. This was in connection with some proposals on how to tap into unconventional sources of private money, some of them admittedly quite innovative. It is not the substance of the proposals that is cause for alarm—in fact some of them are quite sensible and practical. It is the preoccupation with private money. My disquiet was reinforced by a source close to some of the captains of industry that have been appointed to a COVID-19 response task force. According to the source, it was intimated to them that the government was counting on substantial contributions from their respective companies.

I learned from Prof. Terry Ryan, a veteran treasury mandarin, and have taught public policy students over the years that policy priorities are understood, not from what is written, but by how three resources—political power, managerial time, and money, in that order—are allocated. That the government, at the top level, is preoccupied with private sector financing suggests two things. First, the government does not understand the magnitude of the response that is required. Second, there is no appreciation that the key challenge of responding to the COVID-19 economic shock is policy instruments, not funding. And that is a problem.

The US government’s $2.2 trillion rescue package is over 10 per cent of GDP and close to half of the annual federal government budget. Canada’s $75 billion relief package is 4.4 per cent of GDP and a third of the budget. The two quantums are not directly comparable because they have different public financial management (PFM) systems. If we benchmark with Canada whose PFM system is closer to ours, we are talking Sh440 billion if we go with the GDP ratio, and Sh750 billion going with the budget ratio. The most that private sector mobilisation can raise is a few billion shillings, if that; Sh2 billion at most by my reckoning, less than 0.5 per cent of the lower figure. The government is barking up the wrong tree.

In my open letter to President Uhuru Kenyatta, I proposed a lifeline fund in the order of one per cent of GDP, about Sh100 billion. Clearly, even this falls far short of the Canadian initiative. But as I make clear in the letter, the figure was not based on need but on what is financeable from a macroeconomic sustainability standpoint. Canada’s budget deficit before the COVID-19 relief package was 1.2 per cent of GDP. The relief package will push it up to 5.6 per cent. Our budget deficit right now is about 7.5 per cent of GDP, and we were already in the early stages of a fiscal crisis before the COVID-19 crisis, with businesses crying out over pending bills and VAT refunds. A relief package like Canada’s would push the deficit to 17 per cent of GDP. That, ordinarily, would be flirting with hyperinflation.

In macroeconomics parlance, we say that Canada had plenty of fiscal space. We have none. Hence my contention that the prudent thing to do is to switch rather than increase the borrowing we have already budgeted. The revised national government development budget for the year is Sh436 billion. The Exchequer had released Sh220 billion as at end of February, that is, with four months to go to the end of the financial year. This means that if we can freeze every national government development project, we can switch Sh200 billion to the COVID-19 response within the existing budget. My Sh100 billion Lifeline Fund proposal requires switching half of the budgeted amount, which I think is very realistic. As it is, the current spending rate projects an absorption of Sh330 billion by the end of the fiscal year, that is, Sh106 billion less than budgeted. The COVID-19 disruption is bound to slow budget absorption.

In macroeconomics parlance, we say that Canada had plenty of fiscal space. We have none.

It is important to point out that budget is not money in the bank as some people seem to think. It is the approved expenditure, that is, what ministries, departments and agencies (MDAs) are authorised to commit. Right now, all our development budget is deficit-financed, that is, funded by debt. As at end of February, the government had borrowed Sh378 billion against a budget target of Sh514 billion for the year, leaving a borrowing headroom of Sh136 billion. What I mean when I say that the government does not have funding is that, once the spending decision is made and approved by parliament through a supplementary budget, the government will continue to borrow as normal and channel the money to the COVID-19 response instead of development projects.

It should be readily apparent that given the urgency and enormity of the challenge, running around scrapping for private sector charity is a misplaced diversionary preoccupation and a waste of valuable time. The orders of magnitude we should be talking about help to put into perspective the much ado about donor money, Sh10 billion or thereabouts so far. It is useful but nowhere near significant enough to warrant all the attention it is getting. By now, a serious government would have pushed a Sh150 billion-plus COVID-19 response supplementary budget through parliament.

We can now turn to my contention that it is policy instruments, not funding, that are the key challenge of responding to the COVID-19 economic shock.

Economics Nobel Laureate Paul Krugman delights in deploying the simplest models for penetrating insights into the most complex problems. In a blogpost titled Notes on coronacoma economics, Krugman posits that, “What we’re experiencing is not a conventional recession brought on by a slump in aggregate demand”. Instead, he postulates, “We’re going into the economic equivalent of a medically induced coma, in which some brain functions are deliberately shut down to give the patient time to heal”.

Running around scrapping for private sector charity is a misplaced diversionary preoccupation and a waste of valuable time

To fix ideas, as we say in economics, Krugman deploys a stylised two-sector economy, consisting of a non-essentials (N) sector and an essentials (E) sector. Unlike a regular recession where policy intervention seeks to stimulate the whole economy, the coronavirus pandemic requires shutting down the N sector, while keeping the E sector working. But even after shutting it down, we need to replace incomes lost in the N sector, for two reasons. First, to keep the people alive. Second, to support the E sector with demand, so as to minimize the multiplier effect of the job losses in the N sector on the E sector, and spillovers into the financial sector that could bring the whole system tumbling down. Krugman posits that the correct policy instrument is a hybrid instrument he calls “disaster relief with a dash of stimulus”. Readers of this column may recognise that this is akin to the Lifeline Fund proposed in my open letter to the president.

How to finance it? Krugman posits that the slowdown of the N sector will leave plenty of money on the table that would have been invested— think about all the approved and financed projects that have been put on hold. This money is available for the government to borrow to finance the COVID-19 response. Let me reiterate: funding is not the problem.

The US, like many other advanced countries, has public social security and other public social safety nets that can, and are, being deployed to achieve this. We don’t. Another cautionary note is that the N and E sectors should not be taken literary. They don’t exist as such in reality.

Two weeks ago, this columnist mused that “depending on how long this goes on, governments should start thinking in terms of wartime economic management”. The IMF and others have since echoed the same call, prompting some people to compliment or be awed by this columnist’s prescience.

As flattering as that might be, exceptional prescience was not required. John Maynard Keynes concludes his magnus opus, The General Theory of Employment Interest and Money, on the note that,

[T]he ideas of economists and political philosophers, both when they are right and when they are wrong are more powerful than is commonly understood. Indeed, the world is ruled by little else. Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.

And so it is. Adam Smith famously remarked that the market economy functions “as if by an invisible hand”:

Every individual . . . neither intends to promote the public interest, nor knows how much he is promoting it . . . he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention

But for all its virtues, there are occasions, times such as this, when the invisible hand is not fit for purpose. The market system is not wired to recognise essential and non-essential activities, only price signals. The market also does not respond to need, only to effective demand, that is, want backed by ability to pay.

At the onset of this crisis, a small supermarket chain caused uproar and moral outrage when one of its branches increased the price of hand sanitiser after observing a spike in demand (Krugman also talks of an “epidemic of price-gouging”). Even after the supermarket chain apologised profusely for “individual error” the authorities came down hard, and in an unprecedented consumer protection action, ordered the shop to trace and refund all buyers the difference between the normal and the inflated price. I am not certain that this directive is lawful, as there appears to have been no due process, but that is a matter for another day.

Market fundamentalists here and elsewhere have come out in support of price hikes of this nature as the proper working of the invisible hand, asserting that what the uninitiated see as price gouging is precisely the circuit breaker needed to prevent panicky and greedy people buying all the supply, the former to hoard, and the latter to resell at a profit. In this view, the branch store manager who hiked the price of sanitiser is cast as the unwitting agent of the invisible hand, compelled by his nose for a quick kill to do the greater good.

Adam Smith did not have such religious faith in the invisible hand, and in fact, much of his contribution to economic thought turns on trying to square markets and morality (unsurprisingly, seeing as he was professor of moral philosophy). His benevolent view of the invisible hand is not predicated on an angelic view of man, but on temperance of greed by “moral sentiment”, that impulse which leads people to cultivate virtue. He had a dim view of businesspeople, maintaining that whenever and for whatever reason people in the same trade met, it would end up “in a conspiracy against the public, or in some other contrivance to raise prices”.

Adam Smith’s moral being was a person who cultivated justice, prudence and beneficence. Such a person would have asked themselves whether raising prices was morally upright, considering that the higher price would compel poor people desperate to protect themselves from harm to sacrifice food or another necessity. Thus Smith’s moral being might have concluded that in the circumstances, rationing was a better allocation mechanism than price, seeing as no ordinarily person would buy ten sanitisers at a go, or three bales of toilet paper for that matter. Limiting each customer to two or three sanitisers was warranted.

An even more fundamental challenge is the propensity of the invisible hand to work as it is meant to, resulting in perverse, morally repugnant outcomes. We know that export horticulture has been completely disrupted. Floriculture employs more than 30,000 people, mostly low wage earners in Naivasha. The flower farms themselves are staring at business failure. Naivasha’s second industry is tourism. In fact, both floriculture and the hotel establishments are on the same stretch of Moi South Road along the shores of Lake Naivasha. These two industries are the engine of the rest of the Naivasha economy. Once these paychecks stop coming, every other business, from the grocery shops, to boda bodas, petrol stations and supermarkets, will be affected. Naivasha may be looking at a socio-economic implosion in a matter of weeks. Once the flower farm and hotel paychecks stop, without income replacement, the invisible hand will signal a fall in demand and supply will adjust downward to the quantity commensurate with Naivasha’s much diminished purchasing power, as opposed to the number of mouths Naivasha has to feed. Survival will turn on moral sentiment. Left to the invisible hand, they will starve.

Naivasha is not an island. Hospitality establishments are closing down—the Serena Group has closed ten lodges, Pride Inn has closed its Mombasa hotels, and in Nairobi, DusitD2 has closed, to name but that one. Given the trajectory of the pandemic we are observing, the best-case scenario is four to six months before the pandemic curve flattens globally. We do not know when the people from our COVID-19-devastated source markets will venture into leisure travel in large numbers again. The tourism-dependent economies—Mombasa, Diani, Malindi and elsewhere—are no islands either. In addition to sustaining livelihoods, they are a market for supplies of fresh foods from upcountry. If the big hotels are not in the market, it may not be worth their while for some traders to transport food there.

Given the trajectory of the pandemic we are observing, the best-case scenario is four to six months before the pandemic curve flattens globally

Scarcity will drive up prices, which should elicit supply. Middle-men will be called out for price gouging. The government will be called upon to protect consumers. In as much as government intervention may become imperative, humility is required. We recall the spectacular failure of the dirigiste economic regimes of a few decades back. One week candles would be out of stock, but the market would be oversupplied with brown shoe polish. The following week, candles would be back, but only blue ones, and sugar could only be bought with tea leaves, salt, or a can of brown shoe polish. But people forget, and other generations who take twenty brands of toothpaste for granted are born. Governments will do well to proceed with an abundance of caution, and take heed of Adam Smith’s much less remarked observation about homo leviathansis, government man:

The man of system is often so enamoured with the supposed beauty of his own ideal plan of government, he seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that in the great chess-board of human society, every single piece has a principle of motion of its own.

There is a view that we can disrupt the virus with a one-off lockdown of a few weeks—go into hibernation so to speak— and once we emerge, the curve will have flattened, and we will then go back to business as usual. This “silver bullet” view of lockdowns is little more than wishful, lazy thinking. As Stanford economics professor John Cochrane opines, the more likely scenario is “whack-a-mole”—as soon as we think it has subsided, it flares up in another corner of the world, triggering another containment cycle around the world. Epidemiologist Nelly Yatich offers a similar prognosis. She argues that an effective lockdown would have to be in place until a vaccine is found and administered on 60 per cent of the population, and that is still six months away at best. Alternatively, countries can adopt on and off lockdowns but that requires meticulous surveillance systems capable of picking up an increase in infections very quickly.

This “silver bullet” view of lockdowns is little more than wishful, lazy thinking

These predictions may already be playing out. Singapore, one the first countries to bring infections under control, has announced another lockdown after registering an upsurge of cases whose source could not be traced, suggesting that there are people without symptoms within the community who are unknowingly passing the virus on to others who then develop symptoms. Put differently, it is now endemic. It is telling that only a week ago, the Singaporean government had said that a “nuclear option lockdown” was not on the cards, on the grounds that it would be too costly economically. Singapore’s economy is built on international trade. As Gillion Koh of the Institute of Policy Studies, a think tank at the Singapore National University’s Lee Kwan Yew School of Public Policy, observes, “Singapore’s survival and sustainability depends on borders being open and receiving goods as well as people. So the cost of locking down Singapore is very high, both for the economy and for sustaining daily life itself”.

Proponents of the “nuclear option” posit it as a moral imperative—lives above money. It’s a false dichotomy, and for three reasons. First, healthcare provision is an economic activity. It is not an island. It requires supplies and logistical services—medical and non-medical supplies, maintenance and financial services—and health workers need to meet their daily needs and social obligations. As the economy is disrupted so too will healthcare provision. Other diseases have not gone away. Already, patients with chronic illnesses are expressing fears about being crowded out of the healthcare system by social distancing and curfew. Preventive disruption of the economy must be weighed against how many existing patients’ lives will be put at risk, and whether the degraded economy will be able to service healthcare provision if the coronarivus epidemic does materialise. It is in anticipation of this unhappy trade-off that this column suggested weeks ago that African governments earmark coronavirus isolation hospitals and make contingency plans to evacuate them as and when needed. This advice, and much else, is clearly falling on deaf ears.

Already, patients with chronic illnesses are expressing fears about being crowded out of the healthcare system by social distancing and curfew

Second, it has been pointed out ad infinitum that the vast majority of low-income people, particularly the urban poor, live day to day. Many have lost their incomes already. They are surviving on social support from family, friends and charity. It is not at all evident that the government is capable of mounting a safety net that would sustain half of Nairobi’s 4.5 million people for two weeks. Mounting a total lockdown has to be weighted against the risk of breakdown. Should the government be overwhelmed, it will be downhill from there. Self-preservation will become the government’s primary preoccupation. The coronavirus will have a field day.

Third, the economic dynamics of the pandemic are now, for all intents and purpose, delinked from the epidemiological. The coronavirus has become an economic terrorist. Such is its contagiousness that the only way to be sure not to get it is to be in complete isolation. Even a trip to replenish food supplies, face mask and all, is not risk-free. As long as the virus is lurking in our midst, self-preservation demands that people minimise social interaction and mobility to the extent that they are able.

And therein lies the rub. We do not need a lockdown for the economy to seize up. The instinct of self-preservation is sufficient, and this is already evident. With every day that goes by, there is less and less on the supermarket shelves. Many county governments have closed fresh produce markets. The fresh produce that is rotting in the farms means shortages for the remainder of the year because many farmers who are losing money simply won’t have the working capital to invest in another crop. The prudent thing for them to do is to hold on to the money they have to tide their families over the hard times ahead.

It is not at all evident that the government is capable of mounting a safety net that would sustain half of Nairobi’s 4.5 million people for two weeks

All said, the lockdown question is not one of lives versus money. It is how many lives are at risk in each scenario. But above all, it is about getting it into our heads that complex problems do not have simple solutions. Simple solutions—especially ones that need to be propelled by manufactured consent through opinion polls and social media acclamation—can be relied upon to backfire. We need not trawl through the Jubilee administration’s record in this regard at this time. Politicians who are raring to go back to their 2022 slugfests may want to consider looking for online side-hustles. Coronavirus is not a passing cloud.

“In the great chess-board of human society, every single piece has a principle of motion of its own”. Men and women of the state realm, take heed.

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Tackling Corona: The Need for a People-Driven Response

African governments need to adopt a “whole-of-society approach” to successfully face the threat posed by COVID-19. They need to recognise that involving non-governmental actors in the formulation, as well as in the implementation, of policies to address the pandemic, need not be perceived as a threat to their own legitimacy.

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Tackling Corona: The Need for a People-Driven Response
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The scenes of police viciously assaulting citizens while enforcing a nighttime curfew, as well the death by suicide of a South African woman after being forced into a deplorable government quarantine facility, have exposed the brutal face of Kenya’s coercive response to the coronavirus pandemic. While many have condemned the incidents, some have also felt that coercion is necessary given the extreme threat posed by the virus, the need for urgent action and the failure of the citizens to comply with the government’s directives. There is no time to debate the response, goes the argument. There is only time to act to save lives.

Yet there is a grave flaw at the heart of this argument. These very factors are what make it necessary that there is more, not less, public involvement. The threat being to the whole of society, the response needs to involve the whole of society. Trying to move fast without having a cooperative public in tow is a recipe for failure, as the Kenyan government is learning. And the way to get a cooperative public as well as mobilise society is to engage with the people, not just order them about.

“Epidemics are tests of social and political systems,” writes the Zimbabwean academic and Associate Professor of African Politics at the University of Oxford, Simukai Chigudu, in a fascinating article for the online platform, Africa Is A Country. Citing his book, The Political Life of an Epidemic: Cholera, Crisis and Citizenship in Zimbabwe, which looked into the roots of the 2008 cholera outbreak in his country, he notes that it is the “political, economic and social processes that…shape the trajectory of [an] epidemic”, not just the biological properties of the virus or bacterium involved.

This is not to say that the actions of governments are not important. The trajectory and the evolution of the pandemic so far have been largely dictated by the actions of states. The thousands of lives it has so far claimed are not evenly distributed globally, but rather concentrated in countries that for a variety of reasons either didn’t take the pandemic seriously or were slow to react to it. In a very real sense, it is not just the virus that is killing people; people are also dying from state inaction, incompetence and malfeasance.

The legacy of colonialism

Similarly, as the virus menaces Africa, it has been the actions of African governments – past and present – that have so far determined how the pandemic is unfolding on the continent. When fighting the disease, a crucial constraint for many African societies is the near universal failure to address the legacy of colonialism. In fact, as Prof Chigudu explains in relation to 21st century Zimbabwe, “the long-term factors that led to the cholera outbreak can be traced as far back as the late 19th century when Salisbury [today known as Harare] was founded as the administrative and political capital of Southern Rhodesia [the predecessor state of what is now Zimbabwe].”

In a very real sense, it is not just the virus that is killing people; people are also dying from state inaction, incompetence and malfeasance.

He goes on to write that rather than undoing the discriminatory nature of provision of public facilities, “colonial era by-laws, plans, and statutes largely remained in place, indicating the apparent tension between overturning the racial and socio-economic segregation of Rhodesian city planning and maintaining an inherited sense of modernity and orderliness in urban space”.

This experience will be familiar to many across the continent where, in the words of one of Kenya’s politicians speaking in Parliament in 1966, “Today we have a black man’s Government, and the black man’s Government administers exactly the same regulations, rigorously, as the colonial administration used to do”.

The persistence of colonial states and their twin logics of authoritarian exploitation and classist exclusion means that African governments begin with a deficit of public trust, as well as diminished capacity to implement policies. Just three years ago, Kenya was jailing doctors’ representatives for going on strike to demand a pay rise and improvements to services in public hospitals.

Corruption – another gift of colonialism – has focused attention on vanity projects that provide opportunities for looting, rather than on investments in basic health services. The result is high-end, expensive machines lying idle in hospitals that lack even basic amenities. The entire country, for example, only has around 400 isolation beds, and 155 intensive care unit beds for a population of over 48 million people.

The authoritarian and exclusionist streaks are also evident in the manner in which African governments are currently responding. In Kenya, rather than implementing a holistic approach that would mobilise all communities and civil society, the government has opted for a China-style top-down, dictatorial approach, one that decades of hollowing out of the state has been difficult to impose. Prominent activist Jerotich Seii has noted the “‘elite gaze’ that deploys a language of enforcement”. David Ndii, one of the country’s top economists and public intellectuals, has similarly decried the consequences of what he describes as a “boneheaded securocratic approach to a complex emergency”.

A holistic approach

Yet this need not be the case. Kenya has a long history of indigenous not‐for‐profit organisations, self-help societies and community-based organisations that it could leverage to win consent and mobilise society. In fact, in many communities, NGOs have become surrogates for the government, offering services that the state was either unable or unwilling to provide. They have even managed to penetrate into policy- and decision-making levels.

In Kenya, rather than implementing a holistic approach that would mobilise all communities and civil society, the government has opted for a China-style top-down, dictatorial approach…

As Prof Jennifer Brass noted in her PhD thesis a decade ago, “Contrary to both normative arguments that government should ‘steer’ the ship of state (make policy) while private actors ‘row’ (implement policy), and the belief that government is eroding or becoming irrelevant to the governance process, this dissertation shows that NGOs are now joining public actors and agencies at many levels in decision and policy making regarding service provision.”

Sadly, however, there is little evidence that the Kenyan government is doing much to incorporate the expertise and experience of NGOs and other civil society actors into its planning for COVID-19. When President Uhuru Kenyatta established the 21-member National Emergency Response Committee on Coronavirus at the end of February, there was no one from outside of government included in it. In this, the President went against his own National Contingency Plan which recommended the establishment of a National Public Health Emergency Steering Committee to “provide policy, strategic directions” which would include heads of “responding NGOs”.

Sadly, however, there is little evidence that the Kenyan government is doing much to incorporate the expertise and experience of NGOs and other civil society actors into its planning for COVID-19.

Perhaps the Kenya government’s reluctance to engage with civil society organisations should not come as a surprise. After all, this is a government that for the best part of the last decade has made the demonization of civil society (which its mouthpieces on social media happily branded “evil society”) a cornerstone of its propaganda efforts. Still, it is clear that the state alone cannot address this crisis.

Non-governmental actors, including professional associations, churches and volunteer, community and civil society organisations, will need to be involved in the “whole-of-society approach” that the World Health Organisation (WHO) says is required to successfully face the threat posed by COVID-19. And not just as “rowers”. Across the continent, governments will need to urgently recognise that involving others in the formulation, as well as in the implementation, of policy need not be perceived as a threat to their own legitimacy. As Prof Brass writes, “Governance is not the removal of government, but the addition and acceptance of other actors, including NGOs, in the steering process.”

How effective are lockdowns?

The absence of non-governmental actors at the decision-making table may also be manifesting in the choices that African countries are making. For example, many have opted to go the way of China and other (though by no means all) European countries by imposing “lockdowns” – shuttering factories, businesses and markets; banning mass events from church services to political rallies; and forcing people to stay at home or imposing stringent restrictions on their movement – in an attempt to curtail the rate of spread of the disease and ensure their already fragile health systems are not overwhelmed. Beginning with Rwanda, the lockdowns have swept the continent, affecting economies large and small, from Nigeria to Uganda. In addition, by the end of March, nearly all countries had some form of travel restriction, with more than half imposing full border closures.

However, in an article for The Conversation, Prof Alex Broadbent and Prof Benjamin Smart argue that a one-size-fits-all approach may have lethal consequences for Africa. They note that the “the major components of the recommended public health measures – social distancing and hygiene – are extremely difficult to implement effectively in much of Africa” and that the net effect of lockdowns “may thus be to prevent people from working, without actually achieving the distancing that would slow the spread of the virus”. They also question the value of “flattening the curve” in a scenario where at the best of times public healthcare is inaccessible to a huge proportion of the population.

Similarly, in an interview with Africa Report, John Nkengasong, the director of the Africa Centre for Disease Control and Prevention, which is part of the African Union, also pointed out that lockdowns are not only difficult to sustain but would also “lead to other consequences, such as shortages of food, medicine and other basic supplies”. He also said that the shutdown of air travel and closing of borders across the continent was making it more difficult to coordinate the distribution of desperately needed medical supplies and equipment. Making much the same point on the Kenyan news programme Punchline, Dr Mary Stephens of WHO said that blanket travel bans and border closures would prevent African countries from accessing external medical experts needed to plug gaps in their health systems.

The resort to force by governments across the continent to counter the resistance of their populations to such measures speaks to the lack of a social consensus for the necessity of such measures. It is the poor, for the most part, who will bear the pain of the lockdowns, especially the many working in the informal sector who cannot afford to stay at home for a day, let alone for weeks. Yet they are almost completely excluded from the decision-making table.

Similarly, in an interview with Africa Report, John Nkengasong…pointed out that lockdowns are not only difficult to sustain but would also “lead to other consequences, such as shortages of food, medicine and other basic supplies”.

If they were allowed to have a say, perhaps they would point out that there are other options and examples that African countries could look to. In the Far East, for example, countries and cities like Japan, South Korea as well as Singapore, Hong Kong and Taiwan, while not yet out of the woods, have managed to tackle the pandemic within their borders while largely avoiding the crippling lockdowns.

Nobel laureate Amartya Sen famously declared that “no famine has ever taken place in the history of the world in a functioning democracy”. He noted that democratic governments, “facing elections and criticisms from opposition parties and independent newspapers”, would be compelled to take decisions to avert disaster.

Democracy may not be such a sure shield against epidemics, but it is clear that, at least on the African continent, its absence, and the prevalence of governments used to wielding clubs and guns against their citizens rather than listening to them, may be turning a looming disaster into a catastrophe.

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