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Fiddling, while Kenya burns

8 min read.

The Jubilee administration gambled on mega-infrastructure projects to expand the economy. It has borrowed heavily to finance them. Over the past five years, it has conjured up a misleading set of economic data that paints a rosier picture than the grim reality now confronting the country. What is this fantasy in aid of? By DAVID NDII

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Fiddling, While Kenya Burns
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After all the hullaballoo, and the brazen manipulation of the vote on Uhuru Kenyatta’s presidential veto of parliaments proposal to defer VAT on fuel for another two years, you would be forgiven to think that the government scored big in the battle to shore up its terrible and rapidly deteriorating finances. It did not. Much to the contrary, the melodrama was an inconsequential sideshow.

Alongside the president’s memorandum, the Treasury tabled a supplementary (i.e. revised) budget that which elicited screaming headlines: the government had “slashed” by a whopping 55 billion shillings from Sh. 3.026 trillion to 2.971 trillion. A critical reader would immediately have noticed that a 1.8 percent reduction hardly qualifies to be a “slashing” — trimming would have been accurate. Of note, the supplementary budget the Treasury did not provide a complete budget revision, but only a high level expenditure summary with five budget lines.

But the Treasury also published its regular Budget Review and Outlook (BROP) paper that contains the detailed budget data. As is customary with our National Treasury, the numbers in the two tables are not identical. Even the numbers in different tables of the BROP are not identical, although the differences are not material— it’s mostly sloppiness, and occasionally, sleight of hand. I follow the BROP figures (See table below) as they are more comprehensive and also the more up to date of the two, if only by two days. Two things to note.

First, the expenditure cuts are less than the revenue forecast which is revised downwards by Sh. 96 billion, while expenditure is revised downwards by Sh. 83 billion. Even though the 10 billion difference is not such a big sum, it’s unclear why the government would go to such lengths to table an austerity budget that increases the deficit.

More significantly, the revenue forecast is still unrealistic. The budget was based on revenue growth of 31 percent, comprising of 30 percent and 36 percent increase in tax and non-tax revenues respectively, which has now been scaled down to 25 percent, with tax and non-tax revenue forecast down to 24 and 28 percent respectively. These forecasts are out of touch with reality. Tax revenues increased only three percent and non-tax by 12 percent for a total revenue increase of four percent. This, as we will see shortly, is not an anomaly—it is a significant trend.

The budget was based on revenue growth of 31 percent, comprising 30 percent and 36 percent increase in tax and non-tax revenues respectively, which has now been scaled down to 25 percent, with tax and non tax revenue forecast down to 24 and 28 percent respectively. These forecasts are out of touch with reality.

In its current financial circumstances, it is not just sensible that the government be prudent, it is imperative. There will be no harm done if revenue exceeds target, but unrealistic revenue forecasts result in government spending money it does not have. This is how the government ends up accumulating pending bills, which, according to the private sector lobby KEPSA, are now in the order of Sh. 200 billion.

Trend growth gives you a revenue forecast of Sh. 1.55 billion. An optimistic one, assuming a most favorable economy and factoring in tax rises, would double the growth rate to 8 percent, still comes to Sh. 1.62 trillion. I would work with Sh.1.6 trillion.

In its current financial circumstances, it is not just sensible that the government be prudent, it is imperative…Unrealistic revenue forecasts result in government spending money it does not have…The government ends up accumulating pending bills… now in the order of KSh 200 billion.

Herein lies the problem. The Sh.1.6 trillion revenue forecast is Sh. 250 billion short of the revised recurrent budget. Interest cost (Sh. 400 billion), pensions (Sh. 90 billion) are non-discretionary (i.e. mandatory) and the wage bill (Sh. 444 billion) which does not give you much room to manoeuvre already add up to Sh. 930 billion. This leaves a balance of Ksh. 660 billion to fund counties (Sh. 367) and the national government’s operations and maintenance (O&M) outlays (Sh. 530 billion) totaling Ksh. 960 billion.

The only question here should be where the axe falls. There are only two options either the axe falls on the national government, or to share the cuts with the counties. The latter is obviously more sensible than the former. The equitable way of doing this is to net out the counties wage bill which is about Sh.140 billion, and share the balance proportionately. This math works out to 33 percent of the national governments O&M budget and the transfer to counties net of wage bill which translates to national government O&M budget of Sh. 202 and counties Sh.78 which means that the transfers to counties reduce from Sh. 376 to Sh. 218 billion. This is the reality that the government has refused to face. It should also be readily apparent that the tax measures that the government rigged through parliament are not a solution to its financial woes.

The Jubilee administration bet the farm on mega-infrastructure projects to expand the economy and has borrowed heavily to finance them. Infrastructure investments are supposed to crowd in productive private investment which in turn expands the tax base, which in turn generates the revenue to pay the debts. But far from increasing, the tax take is falling. The preliminary data treasury has published shows a sharp decline to 15.4 percent last financial year, down from 17 percent in the previous one. A 1.6 percentage-point decline in a year looks improbable— it is more likely that they have over-estimated GDP. This and the reason why, will be confirmed shortly. Still even the one percentage-point decline from 18 to 17 percent in five years is itself a serious problem. It translates to a forgone revenue of Sh. 77 billion in FY16/17 (see chart below). If we assume that the 15.4 figure is an underestimate and instead apply a revenue yield of 17 percent last year, the revenue yield gap drops to a more plausible Sh. 80 billion. Why?

Revenue to GDP ratio, % (LHS) and implied revenue gap Sh. billion (RHS)

First, a lot of the borrowed money was stolen outright and many, perhaps all the projects have been done at highly inflated costs. We still do not have any physical evidence of what we spent the proceeds of the first eurobond, Sh.190 billion (US$ 2.2 billion) proceeds of the first eurobond issue on. Government claims that the money was channeled into the development budget and absorbed in one financial year. Not only is it simply not possible to build things at that rate, the funding for all the projects done for that year is accounted for without the eurobond money. This is the reason that the special audit of the eurobond has never come out.

A lot of the borrowed money was stolen outright and many, perhaps all, of the projects have been done at highly inflated costs. We still do not have any physical evidence of what we spent the proceeds of the first Eurobond on…

The national investment rate has remained stagnant at about 18 percent of GDP, against a requirement of 25-30 percent of GDP. We also know that credit to the private sector collapsed suddenly three years ago, and has been comatose since. The credit market has become a pyramid scheme, where interest on government securities is re-invested in government securities. As with all pyramid schemes, this one too will come to grief.

In short, the reason why the revenue yield has declined is because the productive base of the economy has not expanded. The Jubilee administration bet the farm on a state of the art milking machine, even built a brand new shed to go with it, and now expects the cows to produce more milk. It is the same cows. And now the debt repayments and electricity bills are eating into the working capital forcing the farmer to cut back on feed. They now lament that the milkman (KRA) has a new machine but is still unable to produce more milk.

But the National Treasury’s growth projections are as panglossian as ever. In the original budget forecast, the nominal GDP expands from 7.7 trillion in FY16/17 (the latest actual data) to Sh. 12.6 trillion in FY20/21 a growth of 64 percent or 17 percent per year. Nominal GDP is the denominator used to calculate budget financial ratios. This translates to a real economic growth rate of 7.4 percent per year (this is obtained by applying an inflation adjustment known as GDP deflator. I have applied the average deflator for the last five years). Average growth rate for the last five years—5.56 percent. Growth has topped seven percent only once in the last thirty years— 2007. Now comes the remarkable part. In the revised projections, nominal GDP has been adjusted upwards to just under Sh. 13 trillion in FY20/21. It is conceivable that the mandarins are factoring higher inflation— one hopes so because otherwise it translates to a delusional eight percent per year growth rate. The reason for the sharp fall in the revenue ratio last year is now clear— GDP has been inflated on purpose.

What is this fantasy in aid of? Their purpose is to reduce the budget financial ratios without budget cuts. This way, they are able to “get away” with fiddling with the actual budget figures and still achieve “fiscal consolidation.” This year, the deficit in the revised budget is adjusted upwards by 14b from 603 to 622 billion but it as a ratio to GDP it declines from 6.3 to 6.1 percent on account of GDP being adjusted upwards by 321 billion. In FY21/22 the nominal GDP projection is jerked up 17 percent which excluding an inflation surge, brings the real growth rate for the period to 8.4 percent. This enables the mandarin to “bring down” the budget deficit 3.4 percent, even as expenditure grows by Sh.750 billion. A serious sensible projection would have projected 5 percent real growth. A 3.4 percent of GDP deficit based on this would have required expenditure to be adjusted downwards by Sh. 400 billion, or revenue to rise by similar amount or a combination of the two.

The budget, both the original and supplementary one, is best summed as “do nothing” strategy. If you are not up to changing reality, change the numbers.

We are compelled to wonder who this tomfoolery is meant for? It is not the public, they don’t get to see these numbers, let alone read and understand them. It cannot possibly be the IMF, the credit rating agencies or the markets. If anything, this is nothing short of showing the markets a middle finger. That to my mind, leaves only one constituency— their political bosses. The mandarins are telling them what they, the political bosses, want to hear.

My first column calling out the Jubilee’s administration fiscal recklessness, published in August 2014 was subtitled “Lessons from Ghana”.

Three days ago, the Ghanaian government announced that it was planning to issue $50 billion “century bonds” over the next few years, starting with a five to ten billion issue by the end of the year. A “century bond” is a bond with a hundred year maturity. Only three developing countries—China, Mexico and Argentina_ have sold century bonds. Ghana’s issue will be the biggest. A 10 billion dollar issue is a fifth of Ghana’s GDP and would cost a billion dollars in interest a year. The markets did not like the news. Immediately, the yields on Ghana’s eurobond yields shot up (which is another way of saying the value of its bonds fell) and the Cedi fell 2.6 percent. The Financial Times summed it up thus: “In capital market terms, this is no this is not just a moon shot, it’s a mission to Mars.” The FT story was headlined, “Someone tell Ghana this it isn’t 2017 anymore.”

If you are not up to changing reality, change the numbers. We are compelled to wonder who this tomfoolery is meant for? It is not the public, they don’t get to see these numbers, let alone read and understand them. It cannot possibly be the IMF, the credit rating agencies or the markets. If anything, this is nothing short of showing the markets the middle finger. That to my mind, leaves only one constituency— their political bosses. The mandarins are telling them what they, the political bosses, want to hear.

Argentina issued its century bond last May. The issue was oversubscribed four times. A year down the road, Argentina is in the grip of another financial meltdown. Inflation is raging at 3.5 percent a month, the Central Bank has raised the benchmark interest rate to 60 percent and the Peso, down 52 percent on the dollar this year, is still falling. What changed? In 2015 Argentina elected a new president who promised to impose macroeconomic discipline. Argentina’s legendary fiscal laxity has led to eight debt defaults, including the biggest sovereign default in history in 2002. The markets took the new president seriously. Earlier this year, he showed signs of backtracking — revising inflation target upwards and lowering interest rates. Market sentiment turned. Argentina had plenty of foreign exchange reserves, but within weeks it was looking for lifelines everywhere including its perpetual nemesis the IMF which it has approached for a US$ 50 billion bailout.

Someone needs to tell Jubilee this isn’t 2017 anymore.

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David Ndii is a leading Kenyan economist and public intellectual.

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Elections? What elections? Abiy is Counting on a Military Victory

Abiy Ahmed’s legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray.

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Elections? What elections? Abiy is Counting on a Military Victory
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Selected by the ruling party and later appointed by the Ethiopian parliament in 2018, Prime Minister Abiy Ahmed was expected to deliver the long hoped for post-EPRDF (Ethiopian People’s Revolutionary Democratic Front) era. For some of his domestic and international backers, the post-EPRDF era meant the ushering in of political democratization, further economic liberalization, and “post-ethnic” Ethiopian politics. He has failed to deliver on all three counts.

More than ever, Ethiopian politics is bitterly polarized along ethnic lines. Ethnic divisions have split the Ethiopian National Defence Forces (ENDF). Now, Ethiopia has two armies: the Tigrayan Defence Force (TDF) and the Ethiopian National Defence Force (ENDF). Nor is economic liberalization faring any better. In 2020, foreign direct investment (FDI) dropped significantly to US$2.4 billion from US$ 7.1 billion in 2016. Creditors are not more optimistic. The birr has become the worst performer among 20 African currencies following a slump of 11 per cent against the dollar.

After a decade of double-digit GDP growth, Ethiopia is now growing at only two per cent, an economic slowdown Kevin Daly describes as “the shine [having] come off the star in a big way”. Ethiopia’s democratization, which is the focus of this piece, has also stalled, as illustrated by the uncompetitive and non-participatory elections of 21 June 2021.

False start 

Ethiopia’s new leadership was widely expected to spearhead a democratic dispensation in which elections would be freely and fairly contested by all the major political forces in the country. The June 21 election was expected to be both participatory and competitive. It was neither and its outcome was predictable, if not preordained. As everyone expected, the ruling party won overwhelmingly, with some leftover seats going to other parties.

Against the hopes of many, Abiy Ahmed found ways to effectively exclude the real contenders with any chance of defeating the incumbent.

Liquidating the former ruling party and extending the term of office

The first step was to liquidate the former ruling party, the EPRDF, and place the new Prosperity Party in power. The Tigray People’s Liberation Front, one of the core parties forming the EPRDF and currently ruling Tigray, vehemently opposed the formation of the new party, and decided not to join it.

The second step was to postpone the much-anticipated 2020 elections on the pretext of the Covid-19 pandemic. The legality and legitimacy of this decision was fiercely contested, especially by opposition leaders from Oromia and Tigray. Inevitably, those opposition leaders from Oromia with a large following and constituency were jailed or placed under house arrest.  By opting to postpone the election and arresting opposition leaders, Abiy extended his own tenure by using a controversial constitutional interpretation.

Waging war

The third step was waging war on Tigray. The postponement of the election qualifies as one of the triggers of this war. The ruling party in Tigray rejected the postponement, asserting that regular elections are a necessary tool for the exercise of a people’s right to self-determination. Accordingly, Tigray conducted its regional election on 4 September 2020. The election was considered illegal by the incumbent and the federal government cut ties with the Tigray government and suspended the transfer of the regional budget, a move viewed by Tigray as a declaration of war. On 4 November 2020, Tigray was invaded by the combined Ethiopian, Eritrean and Amhara forces.

Subverting the will of the people

These early steps to subvert the will of the people call into question the incumbent’s commitment to a fair and democratic process. Providing a detailed contextual analysis on the state of Ethiopia before the polls, US Senator Bob Menendez and Representative Gregory Meeks said:

Against this grim backdrop, few believe Ethiopia’s upcoming national elections stand a real chance of being free or fair. . . . Prime Minister Abiy and his ruling Prosperity Party have made it clear they intend to continue working from the same authoritarian playbook as their predecessors, squandering Ethiopians’ hopes for the country’s first-ever genuinely democratic elections.

The EU withdrew its earlier decision to send election observers. Though it fell short of denouncing the election, the US government in its statement provided precise reasons why the election would not meet the requisite democratic standards:

The United States is gravely concerned about the environment under which these upcoming elections are to be held. The detention of opposition politicians, harassment of independent media, partisan activities by local and regional governments, and the many inter-ethnic and inter-communal conflicts across Ethiopia are obstacles to a free and fair electoral process and whether Ethiopians would perceive them as credible. In addition, the exclusion of large segments of the electorate from this contest due to security issues and internal displacement is particularly troubling.

The US statement added, “these elections [are conducted] at a time when so many Ethiopians are suffering and dying from violence and acute food insecurity caused by conflict”.

Elections without credibility

The credibility of elections is assessed based on international standards such as those set by the United Nations. Unfortunately, Ethiopia’s recent election does not meet the minimum international threshold of being free, fair, participatory and competitive.

First, this election was conducted during a period of violent conflict that effectively denied the citizens their fundamental democratic rights and the opportunity to participate on an equal basis. Over 100 constituencies in Tigray, Somali, Harari, Afar, and Benishangul-Gumuz, representing well over 18 per cent of parliamentary seats, did not vote. For close to 4 million internally displaced persons (IDPs), this election was a luxury. In Tigray, constituencies in Oromia, Amhara (Oromo special zone and parts of north Shewa), and the border areas of the Amhara, Oromia, Somali and Afar regions face violent conflict. With 7 per cent and 1.7 per cent of the total constituency in Tigray and Benishangul-Gumuz respectively, wars for survival still rage. In parts of Oromia, the region with the largest population and 33 per cent of the total constituency, armed conflict continues. Furthermore, the election was conducted under conditions of pervasive discrimination and profiling based on ethnicity that targeted Tigrayans, Oromos and Gumuz.

The postponement of the election qualifies as one of the triggers of this war.

Second, at the subnational levels and in some urban areas such as Amhara regional state, a few “opposition” parties did manage to win seats. However, in terms of presenting alternative policy options for Ethiopia, these parties failed, as their electoral manifestos were just versions of that of the ruling party. In addition, such results at the subnational level are anomalies, not trends. The trend is the incumbent attempting to re-establish a durable authoritarian regime, this time with a centralizing vision at its core that is diametrically opposed to the federalist vision set out in the current constitution.

Third, this election – like the previous one – was marred by claims of killings, assault, detention, intimidation and harassment of opposition candidates and supporters. In addition, the cancellation of political parties’ registration, litigation, anomalies in voter and candidate registrations, and ballot printing problems have damaged the credibility of the electoral bodies. Moreover, the deferral in holding referenda on requests for state formation in the Southern Nations, Nationalities and Peoples’ Region has stoked discontent. And nor did the media environment allow competitive elections; local media was rigorously censured, and journalists were killed, arrested, and intimidated. International media outlets were not spared either, with the permits of many foreign correspondents cancelled.

It thus came as no surprise when five parties criticised the ruling Prosperity Party for allegedly influencing the electoral process to favour its candidates. The National Movement of Amhara, Ethiopian Social Democratic Party, Afar People’s Party, Balderas for Genuine Democracy and Ethiopian Citizens for Social Justice complained of heavy security and cited a failure to meet minimum standards.

Legitimacy hanging on military victory

Abiy has clipped the wings of democracy. A day after the country went to the polls, and as Addis Ababa enjoyed the fanfare surrounding its “first democratic election”, the Ethiopian army continued its indiscriminate aerial bombardment of Tigray.

Abiy has plunged the country into a civil war that is now spreading from Tigray to other parts of Ethiopia. The war has been manipulated with a view to bolstering Abiy’s popularity and serves as the glue holding his internally fractured support base together. Military victory in Tigray has replaced an electoral win as the litmus test for the legitimacy of his rule.

Yet following the defeat and withdrawal of the Ethiopian army from Tigray, Abiy’s popular base is fast eroding. Now his legitimacy hangs on conjuring up an improbable military victory in the total war he has declared on the people of Tigray. The recent military advances made by the Tigray Defence Forces show that it is not just Abiy who is losing the unwinnable war in Tigray. Ethiopia is also losing its army.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The State of Judicial Independence in Kenya: A Persistent Concern

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

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The State of Judicial Independence in Kenya: A Persistent Concern
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On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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