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Slaying the Monster: How to Win the War on Corruption in Kenya

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The Judiciary is under sustained assault from the Executive branch of government and buck-passing has come to distinguish Kenya’s war on corruption. Beyond the blame games, there exist opportunities for Kenyans to break the yoke of oppressive corruption and chart a new course towards a liberated future argues WILLY MUTUNGA.

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Slaying the Monster: How to Win the War on Corruption in Kenya
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The social cost of corruption in this country is incalculable. It has emptied our ethical contents, hemorrhaged our economy, corroded and destabilized our politics.  It must be confronted directly and boldly, employing the full panoply of instruments of public education, sanction and restitution. Both administrative and legal measures must be summoned in this fight.

One significant but often ignored truth is that fighting corruption is primarily a political project. The political will leading that fight will only succeed if it is credible. Vehemence, however boisterous and loud; righteous but false indignation, however shrill, are all “a tale told by an idiot full of sound and fury signifying nothing.”

We must ponder. Why did wananchi undertake citizens’ arrest of corrupt officers when NARC (National Rainbow Coalition) came to power? Why did harambees, land allocations and the attendant corruption around public land die during the Kibaki years? If the link between harambees and corruption had long been established (see several Transparency International reports on this subject), why did we resurrect them in 2013, sometimes in total disregard of the law that prohibits public servants from conducting them?

The big question we pose, is do the political elite now leading the fight against corruption have the moral standing sufficient to win public credibility? If they do not then how can they win? My view is the lifestyle audit from the top that was promised a year ago would have come close to conferring that credibility. And that credibility will be long in coming until we clear the dark clouds surrounding issues like Eurobond, the Afya House Scandal, Laptop and Medical equipment leasing to name but a few and make public the sovereign debt for debate.

So, which arm of state is the most corrupt?

This is a false question that is at the core of the blame games being played over the “War on Corruption.”

Over two years ago when I still worked in the Judiciary, Hon Duale, the majority leader in the National Assembly and I, had an interesting spat on Twitter. He had posted a tweet decrying corruption in the Judiciary. I retorted that there was corruption in the Judiciary but not the magnitude found in Parliament. I believe very few people would doubt the enormity of corruption in the Executive and Legislative arms. One only needs to read the Auditor-General reports since independence to confirm this.

Historically, whereas the Judiciary has faced its own independent corruption challenges, part of this problem has been driven by the fact that the Judiciary has been an appendage of the colonial and postcolonial Executive. What is not common knowledge is that until 2010, the Judiciary was closely weaved into the structure and organization of government, listed as a Department of the Attorney General’s Office.

Staff were under the public service and the Judiciary was the place where ‘problematic’ civil servants were banished as punishment.

District Treasuries held Judiciary accounts (some are still in their control even though we began the delinking process). Ironically, since the Judiciary never dared stand up to the Executive, it did the latter’s bidding, but also created spaces for it to shake down litigants, the Judiciary well protected by the Executive in this form of corruption.

The state has always known who the corrupt judicial officers and staff are. The incorruptible ones have had to struggle against the pressure of the Executive and other forces to save their integrity. I believe that is the challenge the Judiciary faces in its quest for integrity and independence. Therefore, the issue is not which of the arms ( of government) is more corrupt but rather how the arms and their organs reflect the integrity and independence decreed by the Constitution.

“War on Corruption” is a National Project

For the “War on Corruption” to be operationally successful, it has to be a national project where the entire justice chain must work in coordination and in concert.  This requires that investigation (police), prosecution (Director of Public Prosecution), and the adjudication (Judiciary) should be seamless, effective, incorruptible, and focus on the national interest.

The National Council for the Administration of Justice (NCAJ), which the Honourable Chief Justice chairs, brings together representatives of the Executive (Attorney-General, DPP, Prisons, Inspector-General of Police) and representatives from civil society and the private sector. This provides the institutional framework for the attainment and monitoring of this objective.

It is the arena where approaches to the fight against corruption should be discussed and any outstanding issues resolved. If NCAJ worked properly, the public altercation that we have seen in this fight would not occur. It is the peer review chamber in the administration of justice where each of the agencies can be held to account.

There has been a consistent policy of blame games by the members of this chain for the administration of justice, that does not serve national interest. The investigations are supposed to be as thorough as the prosecution with the Judiciary promising no delays or compromises in its administration of justice. I believe it was also once suggested that the Inspector-General of Police, through the Director of Criminal Investigations, could utilize the services of the lawyers upfront to make sure that all the relevant and admissible evidence was collected. I believe it was also a practice that once the investigations were complete and the suspects given the chance to respond, the Office of the DPP would peruse the file to make sure the charges taken to court were in order and backed by evidence. Bail applications would be dealt with on this basis and there would be no applications for time to complete investigations, secure exhibits and so on. The NYS criminal prosecution (among others) clearly demonstrates the policies of the NCAJ, are not being adhered to.

The integrity of the organs and institutions in the entire chain for the Administration of Justice is premised on the integrity and independence of such organs and institutions. So who protects their independence? It is the organs and institutions themselves, the citizens, and other arms of state, the corporate sector, civil society and international interests.

All these organs and institutions face pressure from different quarters anyway, including ethnic communities, families, friends and other insidious demands. Politicians and their masters, the cartels and foreign interests, do not support the independence and integrity of these institutions and they seek continuously and consistently to capture and enslave them. Rarely, do they talk about their corruption, and politics of division and inhumanity. Indeed, when politicians attack institutions that have integrity they invariably do great job in guarding the integrity and independence of these institutions. The attacks by politicians can be construed as the frustration and failure on their part in their quest to enslave these institutions.

The Constitutional Oath of Office

Officers in the three arms and all organs of the State  swear to uphold the Constitution. Yet as soon as you are sworn in to serve, this duty seems to be constantly and summarily forgotten. Most politicians have not read the Constitution. If they did why would they argue publicly that one cannot be granted bail when charged with murder? Why would they be quiet about the right of appeal against decisions granting or denying bail? I am quite sure they could get basic constitutional education from the learned lawyers if they chose to be honest about the issue of bail. I have heard the two main ‘hand-shakers’ attack the Judiciary on issues of bail. How will they protect the integrity and independence of institutions if they constantly abuse and disrespect them? It seems using the Judiciary as a punching bag is not restricted to presidential petitions and their outcomes. The independence and integrity of institutions have to be nurtured by a culture of respect and dialogue.

The speeches of President Uhuru and the Right Honourable Raila Odinga in the recently concluded Multi-Sectoral National Anti-Corruption Conference profiled the Judiciary as the weakest link in the “War on Corruption.” It is a clearly predictable critique because the investigatory and prosecution processes are in the departments controlled by the Executive. Indeed, for the entire chain in the War on Corruption to work seamlessly and effectively the Executive must respect their integrity and independence. The Inspector-General of Police and the Office of the DPP must resist compromising their integrity and independence as decreed by the Constitution. Every institution under the Constitution has delegated powers from the Kenyan people. Protecting the human rights of the Kenyan people in the processes of investigating corruption and prosecuting it are cardinal considerations to bear in mind. Investigations and prosecutions must never be selective or politically motivated.

The speeches of President Uhuru and the Right Honourable Raila Odinga in the recently concluded Multi-Sectoral National Anti-Corruption Conference profiled the Judiciary as the weakest link in the “War on Corruption.”

It pains me when I hear Right Honourable Raila Odinga subvert the Constitution by arguing that suspects of murder and corruption must prove their innocence. The Constitution provides otherwise. Indeed, he knows that the provisions on bail in part are historically explained by the trials and tribulations he and other patriots went through in the courts captured by the Jomo Kenyatta-Moi-KANU dictatorships. I was shocked by his proposal in the said conference that suspects must prove their innocence and the courts, notwithstanding the provisions of the Constitution, must deny such suspects bail. President Uhuru, himself a beneficiary of soft bail from an international court that enabled him to run and campaign for office, earlier criticized the courts for giving soft bail terms. We are told that the courts must decide based on the will of the Executive notwithstanding the provisions of the Constitution and the Oath of Office taken by all judicial officers to uphold the Constitution and protect it. I hope that both our leaders never rue the day they uttered these words in the future. An independent Judiciary is critical to all politicians, as is indeed, to all citizens.

What has always surprised me is how those who attack and refuse to nurture the integrity and independence of institutions forget that they need those institutions more than the ordinary citizens. If as a politician or a cartel you enslave an institution, what guarantees you that your enemies, once in the same privileged position as you, will not use the institution against you? In this regard, all politicians and other interest groups should not influence (in any way) the integrity and independence of the Judiciary. They will not have to yell from the rooftops that “money has been poured (sic) or we are being finished” when their turn comes to answer the crimes they have committed. Judiciaries are temples of justice where the oppressed, discriminated, bullied, tortured, and intimidated run to. You do not want to run there and find your worst enemy at the entrance of the temple of justice!

Paying Lip Service to Corruption

Let us not pay lip service to War on Corruption. Let us not be selective in the prosecutions. Let us be consistent in our narratives in support of the War. What became of lifestyle audits that would start from the very top of our political leadership? Why, in the observation of the constitutional values of integrity, transparency, and accountability should we not make accessible all management and loan agreements, and details of our sovereign debt? Why do citizens have to go to court under Article 35 (freedom of information) of the Constitution to get these agreements and details? What is being hidden from the Kenyan public? It is on the basis of this disclosure that we can have a national dialogue on what these debts are, and who will ultimately pay for them.

I believe some are not even legally recoverable.

Under the 2010 Constitution, the State cannot live to its historical reputation of “Siri Kali/Vicious Secret” on matters of finance, security, investments, and the use of people’s resources. Kenyans must still demand the implementation of the Constitution in its entirety in their quest to change our unacceptable and unsustainable status quo.

The War on Corruption in Kenya is also an intra-elite struggle about looting, succession, corruption, and how fruits of corruption are shared. The War is also about struggles between national cartels and foreign interests. Like any other war it is an industry where profits are found in buying elections, oiling the machinery of state violence, and investing the ill-gotten gains internally and externally. The corrupt have no loyalty to any country or relationship. The elite hate the people they rule. How does one view all these merchants of death in any other way? The so-called illicit economy (money laundering, piracy, terrorism, human trafficking, trafficking in human body parts, counterfeit, corruption, wildlife crimes) co-exists with legitimate ones – there is no distinction. Legal corruption (such as exploitation) is a twin of illegal corruption reflected in the illicit economy. Ultimately, a system that puts profits before people controls and owns both legal and illegal corruption.

Under the 2010 Constitution, the State cannot live to its historical reputation of “Siri Kali/Vicious Secret” on matters of finance, security, investments, and the use of people’s resources.

The War on Corruption must extend to foreign interests and forces (economic, social, military, financial, communications and surveillance, the entire system of imperialism of the West and East) if the War is to be won.

What can we do in the short-term?

Political leaderships the world over and the interests they serve (economic, social, military, financial) are the root cause of corruption. The joint control of resources by leaders and their interests mean that only by bringing, by all means possible, leaderships that are alternative to the current ones can we hope to end corruption, or at least start mitigating it.

In the case of Kenya, we are yet to even occupy the vacuum that exists for authentic opposition. Such opposition is the beginning of this struggle. We have many uncoordinated social movements that need to come together in a national convention against corruption and their delegates elect interim leaders to start the People’s War on Corruption.

This will be a national convention by delegates of all social movements and non-baronial parties and their affiliates. I believe there has been enough discussion on the critiques and consequences of corruption on our development. The national convention should collate and coordinate solutions and actions to achieve them. We have various precedents of national conventions. We had one in Limuru in April 1997. There have been other formats like the one adopted by the Kenya Tuitakayo Initiative.

Public intellectuals will definitely play an important role.

We have many uncoordinated social movements that need to come together in a national convention against corruption and their delegates elect interim leaders to start the People’s War on Corruption.

The convention will also draw a four-year program of activities by social movements and parties and the holding of a yearly national convention. It will have sub-committees to deal with specific issues. I believe all these initiatives can be funded by Kenyans. The convention will determine a funding strategy. And there are many more issues to come out of the convention such as its manifesto, ideology, politics, and membership. It is not rocket science.

The time to end the baronial politics narratives that only the rich who can rule this country is now. The time to reject baronial promises on fighting corruption is now.

We need to protect and secure our national resources. Out of these movements, and political parties that are not captured by baronial elites, a national progressive party can be formed to contest political power over the next ten years. The window of opportunity is now. The time for the politics of issues is now. The opportunity for implementing the Constitution, particularly its fundamental pillars are now. The time to end the baronial politics narratives that only the rich who can rule this country is now. The time to reject baronial promises on fighting corruption is now. This can only be done by political formations that will contest political power and wrestle it away from the barons.

Kenya gained its nominal independence because of the Mau Mau War of Independence and the collapse of the British Empire. There followed the second liberation that resurrected multipartyism. There was the third liberation brought about by the promulgation and implementation of the 2010 Constitution. Together with citizens of the world, we must bring about a humane, peaceful, non-violent and non-militaristic planet that is ecologically safe, equitable, The fourth liberation is about consolidating the gains of all these liberations, rescuing their fundamental weaknesses, and bringing the end of baronial rule in Kenya. just and prosperous.

The fourth liberation is about consolidating the gains of all these liberations, rescuing their fundamental weaknesses, and bringing the end of baronial rule in Kenya.

We in Kenya must start our effort for an alternative world. Let us think freedom and emancipation of our country, our continent, and our planet. To do so we must imagine the defeat of the imperialism of West and East. Such a world cannot exist under these current corrupt systems. Our Constitution’s vision is socially democratic and its implementation will put us into the trajectory of the fourth liberation forming the basis of the fifth liberation to come.

The views expressed are personal to the author and do not in any way reflect those the Office of the Former Chief Justice

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Dr Willy Mutunga is a public intellectual and former Chief Justice of Kenya.

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Tigray is Africa’s Ukraine: We Must Build Pan-African Solidarity

A genocide is taking place in Tigray. Why is there no mobilization of African civil society organizations, non-governmental bodies, religious institutions, and individuals in support of Tigrayan refugees?

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Tigray is Africa’s Ukraine: We Must Build Pan-African Solidarity
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Two months after the Russian invasion of Ukraine, more than  5 million Ukrainians fleeing the war have crossed the borders into other European countries. While this is largely a testament to the massive scale of the attack by Russian forces that has forced millions of Ukrainians to flee their homes in all directions, it also has a lot to do with the warm welcome and sympathy extended to these refugees by European nations.

Europeans both individually and collectively stood in solidarity with and committed to supporting Ukrainian refugees in all ways. Member states of the European Union established reception centres and facilitated the right to travel, stay, and work for all Ukrainians within days of the war starting. Families across Europe (and in the United Kingdom) volunteered to host Ukrainian families, organizations raised funds, individuals donated basic necessities, and many even travelled to borders to personally welcome Ukrainian refugees.

While this “gold standard” welcome by European countries—who are generally accused of being hostile to other (particularly black and brown) refugees—has been the subject of heated discussion, a question that is yet to be thoroughly addressed is why such solidarity is not seen in other parts of the world. More particularly, using the experiences of refugees from the Tigray war as a case study, we would like to ask why the multiple conflicts ravaging the African continent fail to inspire such a response by African countries.

The Tigray war, characterized as the world’s deadliest war, has been ongoing for seventeen months. Thus far, more than 500,000 people are reported to have died. Terrible atrocities amounting to war crimes and crimes against humanity, including scores of massacres, weaponized sexual violence, and a total humanitarian blockade have all contributed to creating conditions aptly described by the Director-General of the World Health Organization (WHO) as “hell”.  Despite the length and brutality of this conflict, however, the number of Tigrayans who have managed to escape into neighbouring African countries is relatively minuscule.

As far as we are able to establish, about 70,000 Tigrayans crossed into Sudan during the first few days of the war. We can add to these the thousands of Tigrayans who worked and lived in Djibouti before the war and the few hundreds that managed to flee to Kenya following the ethnic profiling and mass arrests they faced in Ethiopia. It is possible to argue that the number of refugees from Tigray has remained low mainly because the borders have been blocked by the Ethiopian regime and its allies. This draconian blockade has indeed been used as a tool of war by Prime Minister Abiy Ahmed to completely cut off Tigray from the rest of the world in order to hide atrocities and control the narrative. It is also believed to have the approval of key members of the international community seeking to mitigate the impact of the war on the broader Horn of Africa region and its potential contribution to the migration crisis in Europe.

Even so, taking into account the precarious situation of the millions of Tigrayans in the region itself and in the rest of Ethiopia along with well-known patterns of illicit migration from conflict areas, it is reasonable to wonder if the low number of Tigrayan refugees is due to the receptiveness—or lack thereof—of neighbouring countries as well as the blockade. With this in mind let’s look more closely at some policies and practices in the region that can be perceived as obvious deterrents to those seeking refuge.

Political and diplomatic support given by African countries to the regime in Addis Ababa 

The Tigray war is happening in the host country of the African Union (AU) and the second-most populous country on the continent. However, this conflict has not been included as an agenda item in any of the meetings of the AU heads of states that have been convened since its onset in November 2020. The only significant statement that was made regarding this conflict by the Chairperson of the AU, Moussa Faki Mahamat, was one that endorsed the war. Since this early statement, the AU has assiduously ignored the overwhelming evidence of the gruesome atrocities and violations of human rights and humanitarian laws perpetrated during this conflict. Nor has the AU acknowledged the direct involvement of Eritrea and Somalia—both members of the AU—who deployed troops into Tigray and have been credibly accused of committing grave atrocities.

Diplomatically, African countries have given cover to the Ethiopian regime in all multilateral forums including the United Nations Security Council (UNSC). The passionate and well-received speech by Kenya’s ambassador to the UN, Martin Kimani, in opposition to Russia’s war of aggression against Ukraine, makes one wonder why the same passion is absent for crises nearer home, including Tigray. Sadly, however, not only do the so-called A3 countries on the UNSC continue to frustrate action against the Ethiopian regime, African countries have voted against measures to establish investigative mechanisms into the atrocities committed in Tigray. Even more disappointingly, on the 31st of March, Kenya voted in support of a bill introduced by the Ethiopian regime to halt funding for the International Commission of Human Rights Experts set up to investigate the crimes and human rights abuses that took place in Tigray.

The AU has assiduously ignored the overwhelming evidence of the gruesome atrocities and violations of human rights and humanitarian laws perpetrated during this conflict.

These actions indicate that the AU and its member states have either failed to recognize the gravity of the human rights and humanitarian violations in Tigray or are unwilling to address violations by other member states, however grave, as a matter of policy.

Forced Repatriation to Ethiopia

This policy and the attendant practices in turn mean that Tigrayans or other minorities seeking refuge from state-sanctioned violence in the region are denied official welcome and feel insecure even when they are sheltered there as refugees under UN protection. Tigrayan refugees in the region are under continuous threat from Ethiopian and Eritrean intelligence and security officials that are fully capable of crossing borders to harm or forcibly repatriate them. Just to look a bit more closely at the experience of Tigrayan refugees in the region, in Sudan, senior Ethiopian officials and supporters of the regime have on several occasions threatened to forcefully repatriate Tigrayan refugees from the Sudanese refugee camps that are under the auspices of the United Nations High Commissioner for Refugees (UNHCR).

In Djibouti, the threat of forced repatriation was realized when several Tigrayans, who had committed no known crime, were apprehended and returned to Ethiopia. This clear breach of the principle of non-refoulement has excited no response from other African governments or African Civil Society Organizations (CSOs). 

Tigrayans also live in fear of forced repatriation even in the relatively more friendly Kenya. The December 2021 abduction of Tigrayan businessman Samson Teklemichael in Nairobi in broad daylight is a prominent example of the insecurity of Tigrayan refugees in Kenya. In addition, personal accounts from Kenya suggest that newly arriving refugees can fall victim to immoral actors demanding large sums of money to facilitate registration. Tigrayans who have been unable to obtain proper documentation for this and other reasons risk being thrown in jail. The lucky few that are registered are coerced to relocate to remote and inhospitable camps. As a result of this, and due to the increased insecurity created by the presence of Ethiopian and Eritrean intelligence officers operating in Nairobi, Tigrayans in Kenya are increasingly opting to remain hidden. This means that the actual number of Tigrayan refugees in Kenya is unknown.

The December 2021 abduction of Tigrayan businessman Samson Teklemichael in Nairobi in broad daylight is a prominent example of the insecurity of Tigrayan refugees in Kenya.

It also bears noting that in response to the war in Tigray, the Kenyan government tightened its borders with Ethiopia, essentially closing the only avenue open for Tigrayans fleeing conflict and ethnic-based persecution by land. Moreover, Tigrayan refugees who have been stopped at Kenyan border controls in Moyale have at different times been apprehended and returned by agents of the Ethiopian regime.

Harsh conditions facing Tigrayan refugees

Sudan hosts the largest number of documented Tigrayan refugees. An estimated 70,000 Tigrayans fled to Sudan to escape the brutal invasion and occupation of Western Tigray. While these people were welcomed with extraordinary kindness by the people of Eastern Sudan, the refugee camps to which they were relegated are located in remote and inhospitable regions with almost no basic infrastructure. As a result, international organizations have been unable to provide adequate support and Tigrayan refugees have fallen victim to extreme weather and fires.

Similarly, Tigrayans remaining in Djibouti are kept in remote camps under unbearable conditions, facing maltreatment and abuses such as rape and sexual violence including by security forces. The whereabouts of the thousands of refugees who escaped from abuses and starvation at Holhol, one of Djibouti’s remote refugee camps where over 1,000 Tigrayans remain, are unknown.

The disinterest of African media and society

Arguably, the above realities describe the failings of African governments in terms of welcoming and protecting refugees fleeing conflict. But what of other sections of African society? Why are there no responses akin to the mobilization of European civil society organizations, non-governmental bodies, religious institutions, and individuals to support Ukrainian refugees? Even taking into full account economic limitations likely to affect responses to such crises, this could potentially speak to a larger failure in terms of building pan-African solidarity, not just as a political concept but as a grassroots reality. In the specific case of the Tigray war, this is further reflected and augmented by the minimal coverage of the war in African media outlets relative, for example, to the extensive daily coverage given to the Ukraine war. Moreover, African intellectuals and intercontinental forums have shown little to no interest to address an ongoing genocide that is quickly paralleling the worst examples of mass atrocities on the continent thus far.

What can we learn from the European Response to the Ukraine crisis?

In many ways, the European response to the Ukraine crisis has been unprecedented and arguably sets a new standard for welcoming refugees from all regions including Europe itself. In the African context, the Tigrayan experience of policies and practices that endanger and harm the most vulnerable seeking safety reveals an urgent need to take these lessons on board.  With this in mind, we can tentatively outline the following suggestions.

First, we as Africans should find mechanisms for building pan-African solidarity amongst citizens that are not contingent upon the will of our governments. This can only be achieved if African media, civil society organisations, thought leaders, and other influencers commit to prioritizing what is happening on the continent. In this interconnected and highly digital age, it is no longer acceptable that an African anywhere on the continent does not know about what is happening in Tigray as much as, or more than, they know about what is occurring in Ukraine.

We as Africans should find mechanisms of building pan-African solidarity amongst citizens that are not contingent upon the will of our governments.

Second, African citizens should protest policies and practices by African governments that favour state-sanctioned violence and support regimes over vulnerable communities. We all, as Africans, are prone to fall victim to state violence and violations of human rights in our countries and this necessitates pan-African reflection on human rights for all, indigenous communities as well as refugees and migrants.

Third, refugees and migrants are rarely a burden on the host countries and communities. Those fleeing the Tigray war, for example, are generally highly educated and carry unique skills that could contribute to societies wherever they land. Harnessing these resources on the continent should be a priority. Moreover, refugees enrich host communities and facilitate regional and continental integration which the AU and its member states continue to discuss, but never materialize.

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UK-Rwanda Refugee Deal: A Stain on President Kagame

Rwanda’s proposed refugee deal with Britain is another strike against President Paul Kagame’s claim that he is an authentic and fearless pan-Africanist who advocates for the less fortunate.

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UK-Rwanda Refugee Deal: A Stain on President Kagame
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In mid-April 2022, Rwanda and Britain unveiled a pilot scheme in which the latter will ship off asylum seekers who arrive in Britain “illegally” to the former for the whopping sum of £120 million. Although full details of the deal remain sketchy, it is believed that it will target mainly young male refugees who apply for political asylum in Britain. Anyone who entered the UK illegally since January 1, 2022, is liable to be transferred. Each migrant sent to Rwanda is expected to cost British taxpayers between £20,000 to £30,000. This will cover accommodation before departure, a seat on a chartered plane and their first three months of accommodation in Rwanda. Their asylum application will be processed in Rwanda and if they are successful, they will have the right to remain in Rwanda. Those whose applications fail will be deported from Rwanda to countries where they have a right to live. The plan is contingent on the passage of the Nationality and Borders Bill currently before the British Parliament. Britain is planning to send the first set of asylum seekers in May 2022, but this is highly unlikely as human rights groups will almost likely challenge this deal in court and, as a result, delay the implementation.

Rwanda’s Foreign Minister, Vincent Biruta, and Britain’s Home Secretary, Priti Patel, present the initiative as a remedy to what they deem a malfunctioning refugee and asylum system, “(T)he global asylum system is broken. Around the world, it is collapsing under the strain of real humanitarian crises, and because people traffickers exploit the current system for their own gain… This can’t go on. We need innovative solutions to put a stop to this deadly trade.” In a jointly written editorial for the UK’s Times newspaper, they portray the agreement as a humanitarian measure that would disrupt the business model of organized criminal gangs and deter migrants from putting their lives at risk.

Back in Rwanda, the pro-Kagame newspaper, The New Times of Rwanda, highlighted Rwanda’s experience in hosting refugees: “Rwanda is home to nearly 130,000 refugees from around the region.” The New Times claims that “… even those who arrived in Rwanda as refugees fleeing violence have since been integrated in the community and enjoy access to education, healthcare and financial services. This friendly policy toward refugees and migrants is in part linked to the country’s history.” It concludes by noting that “Kigali’s decision to extend a helping hand to migrants and asylum seekers in the UK who’re unable to secure residence there is very much in keeping with this longstanding policy on migrants and moral obligation to provide protection to anyone in need of safety. It is, therefore, shocking that this act of generosity has come under severe attack by some people, including sections of the media.”

Reaction in the UK has been mostly negative, ranging from the Anglican ChurchAmnesty International. A broad range of 150 organizations, including Liberty and the Refugee Council, sent an open letter to Prime Minister Boris Johnson and his Home Secretary (the UK immigration minister).  Even some MPs from Johnson’s ruling Conservative party condemned the deal. Dozens of Home Office staff have criticized the policy and are threatening to strike because of it.

Deals of this kind between Britain and Rwanda are not new. Britain tried to enter a similar agreement with Ghana and Kenya, but both rejected it, fearing a backlash from citizens. Rwanda has done similar deals before. Israel offshored several thousands of asylum-seekers, many of them Eritreans and Sudanese, to Rwanda and Uganda between 2014 and 2017. A public outcry forced Israel to abandon the scheme when evidence emerged that most of them ended up in the hands of people smugglers and were subjected to slavery when traveling back to Europe. Under a deal funded by the European Union, Rwanda has taken in evacuees from Libya. Denmark has a similar agreement with Rwanda, but it has not yet been implemented.

In 2016, Australia signed a similar deal with Nauru, a tiny island country northeast of Australia. In May 2016, Australia held 1,193 people on Nauru at the cost of $45,347 a month per person – about $1,460 a day or $534,000 a year. That same year, the EU signed a deal with Turkey under which Turkey agreed to take back “irregular migrants,” mainly from Syria, Afghanistan, Iraq, in exchange for reduced visa restrictions for Turkish citizens, €6 billion in aid to Turkey, update the EU’s customs union with Turkey, and re-energize stalled talks regarding Turkey’s accession to the European Union.

If these failed deals did not deter Britain, Rwanda’s human rights record should have. Even Kagame’s supporters concede that his human rights record is deplorable. At the 37th session of the Universal Periodic Review (a regular, formal review of the human rights records of all 193 UN Member States), Britain recommended that Rwanda “conduct transparent, credible and independent investigations into allegations of extrajudicial killings, enforced disappearances and torture, and bring perpetrators to justice.” A Rwandan refugee in London told The Guardian that, “Rwanda is a good country for image, but not for freedom of speech…Those who oppose Kagame end up in prison. The Rwandan government use[s] torture and violence against their opponents.”

The deal between Rwanda and Britain also contravenes international law. The principle of non-refoulement “… prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.” The United Nations High Commissioner for Refugees (UNHCR) notes that Britain has a duty under international law to ensure that those seeking asylum are protected. UNHCR remains firmly opposed to arrangements that seek to transfer refugees and asylum seekers to third countries in the absence of sufficient safeguards and standards. Such arrangements simply shift asylum responsibilities, evade international obligations, and are contrary to the letter and spirit of the Refugee Convention . . . [P]eople fleeing war, conflict and persecution deserve compassion and empathy. They should not be traded like commodities and transferred abroad for processing.

Rwanda is the single most densely populated state in Africa, with more than 1,000 people per square mile. It already has its fair share of refugees from neighboring countries. (Biruta told the Financial Times last month: “This program [the deal with Britain] will be dedicated to asylum seekers who are already in the UK … we’d prefer not to receive people from neighboring countries, immediate neighbors like DRC, like Burundi, Uganda or Tanzania.”

Although it has done well economically compared to many other African countries, it remains a poor nation that needs to prioritize addressing its internal economic issues rather than allowing Britain to dump its refugees on them. It is unlikely that the economic benefits of this deal will help get the average Rwandan out of poverty. If Rwanda needs more refugees, it needs to look no further than its neighbors. Many of those who will end up in Rwanda will likely be genuine refugees who would have a right to remain in Britain and white supremacists in the UK do not want them there because they do not have the right skin color.

With this deal, Johnson and Patel are pandering to the racists simply to get more votes. If this deal was in place in 1972, when Idi Amin deported Ugandans of Asian descent to the UK, Patel’s family might likely have been shipped off to Rwanda. For his part, Kagame is pandering for influence and money from Western nations. It undermines his claim that he is an authentic and fearless pan-Africanist who advocates for the less fortunate. What happened to speaking the truth to Western powers? Let us hope a judge in the UK stops this terrible deal.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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Road to 9/8: What Is at Stake?

This is the first of a series of articles that will discuss some of the major issues at stake, and the roles played by various institutions in safeguarding the integrity of the August 2022 general election.

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Road to 9/8: What Is at Stake?
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The past few months have witnessed political activity that is reaching fever pitch ahead of the general elections which are slated for August 9th. Public officers intending to contest in the forthcoming elections have resigned from office and political parties have either held party primaries or issued direct nominations. Already, parties have shared with the Independent Electoral and Boundaries Commission (IEBC) the final list of candidates they intend to field for the elections, and campaigns officially begin by the end of May.

In reality, the campaigns commenced years ago; immediately following the 2017 general election when the president and the leader of the opposition made amends and embarked on the constitutional reform process that was the Building Bridges Initiative (BBI), the drumbeat of electioneering became ubiquitous. Since then, the political class has largely been in a preparatory mood, with various outfits coming together in anticipation of forming the next government. Despite the attempted BBI constitutional reform being halted by successive courts including the Supreme Court, the effect it has had on political campaigning has persisted, with broad coalitions being formed in apparent anticipation of power-sharing arrangements akin to those proposed under the BBI Bill.

Based on recent developments, the forthcoming elections are shaping up to be highly unprecedented and unique. This is primarily due to the make-up of the competing factions. In an unsurprising but also unprecedented turn of events, the incumbent has thrown his weight behind the opposition leader against his own deputy. The last time we saw this in Africa was in Malawi when Salous Chilima (current and immediate former vice-president of Malawi), was in direct confrontation with President Peter Mutharika.

Evidence suggests that the president intends to remain in active politics beyond his term. For example, he recently revitalised his Jubilee Party, now a member of the Azimio-One Kenya Alliance Coalition that will be fielding Raila Odinga as its presidential candidate. Further, he was appointed Chairperson of the Council of the Azimio-OKA Coalition. More recently, the Cabinet Secretary for Finance omitted allocations for the president’s retirement in his budget statement apparently out of caution to avoid violating the legal restrictions on retirees enjoying perks while involved in active party politics. “Walking into the sunset” does not seem to be on the president’s agenda.

The president’s involvement complicates attempts to forecast the outcome of the elections. For one, it is presumed that the incumbency advantage will operate in favour of the opposition leader with the president’s backing. Already, Raila Odinga has stated he intends to “walk in Uhuru’s footsteps” to benefit from the president’s achievements and inherit his support base. Unfortunately, this puts him in the difficult position of being unable to wholly distance himself from the blemishes in the president’s record. It also undermines one of Odinga’s hallmarks: being an anti-establishment figure. In addition, one need only recall—especially now following the death of President Mwai Kibaki—that the power of President Daniel arap Moi’s incumbency was in fact a poisoned chalice for candidate Uhuru Kenyatta, who was crushed at the polls, wining just 31 per cent of the vote compared to Mwai Kibaki’s 62 per cent.  Some claim that Raila Odinga was the “king maker” since he backed President Kibaki. There may be some truth to this, but it is also true that Raila Odinga made a political and not an altruistic decision: he read the mood of the country and surmised that he had to distance himself from the establishment that President Moi and then candidate Uhuru Kenyatta represented. So, in a sense, Deputy President William Ruto is today’s Mwai Kibaki, President Kenyatta is today’s Moi and, irony of all ironies, Raila Odinga is today’s candidate Uhuru Kenyatta. Don’t ever be told that musical chairs is a children’s game.

The president’s involvement also raises questions around the use of state machinery to boost Odinga’s candidacy. A supplementary budget estimate tabled in parliament saw an increase in the president’s budgetary allocation for new vehicles from KSh10 million to KSh300 million. In a campaign season where the president has made clear his level of involvement, it is clear that, with the assistance of the National Treasury, the president has elided the lines between state and political candidate.

In a sense, Deputy President William Ruto is today’s Mwai Kibaki, President Kenyatta is today’s Moi and, irony of all ironies, Raila Odinga is today’s candidate Uhuru Kenyatta.

On the other hand, the deputy president is walking an intellectual tight-rope, taking credit for the achievements of the last 10 years and distancing himself from the blemishes. This is an altogether self-serving strategy but, were it not for the resonance of the “hustler” narrative, one would have thought that its transparent hypocrisy would be its own condemnation.

Bearing in mind Kenya’s unique history with election-related fraud, there exists a tangible risk of either side engaging in fraud, but this is more plausible where the state has a vested interest (such as the president’s). While speaking in the US, the deputy president stated that Kenya’s democracy is under threat and further alluded to a plot by several political actors to manipulate the outcome of the election. In his research, Walter Mebane has shown that fraud was prevalent in both the 2013 and 2017 general elections. The vice president was a beneficiary of both results. It is always hard to speak from both sides of your mouth; except if you are a politician, it seems. Without commenting on the accuracy of the deputy president’s assertions, it is clear that the IEBC, election observers, civil society and the judiciary will have to remain vigilant for any signs of fraud. Already, the deputy president’s party—the United Democratic Alliance—has faced allegations of rigging following its recently concluded primaries.

Further context

Perhaps the biggest contributor to the highly consequential nature of this election is the context in which it is taking place. Last year, the president and the leader of the opposition attempted to orchestrate a constitutional reform process that was finally halted by the Supreme Court. Seemingly motivated by a desire to remedy the winner-takes-all nature of elections to which they attribute the violence that always accompanies electoral processes, the president and the opposition leader proposed to expand the executive and to make a raft of other changes to the constitution through the BBI. In contortions only possible when the pursuit of power is the organising principle for decision making rather than any sense of principle, both the president and Odinga were supporters of the constitution but led the BBI movement which would have dismembered that constitution. Deputy President Ruto was a virulent critic of the constitution but has portrayed himself as its chief defender with his opposition to the BBI.  Like Saint Paul, both camps seem to have experienced a moment of conversion, but it is unclear who is on the road to Damascus. To a section of Kenyans, this entire process was an affront to the spirit of the constitution and constituted an elite power-sharing scheme. Some even viewed it as an attempt by the president to stage-manage his succession. As noted, whilst the BBI was overturned by the courts, the broader political aims sought by its promoters are currently being pursued.

The high stakes nature of the election is not lost on the various political factions in formation. Already, parallels are being drawn between the upcoming election and the 2002 general election, which is widely believed to be one of the more credible elections in Kenya’s history. This is in part due to the broad range of support Raila Odinga has been receiving from political actors who were involved in the 2002 NARC Grand Coalition. However, such a comparison immediately fails as John Githongo rightly explains: the upcoming elections seem to be about nothing. This is despite attempts by both sides to centre economic reform in campaign discourse. Without a clear impetus to go to the polls, voter apathy is high.

Whilst the BBI was overturned by the courts, the broader political aims sought by its promoters are currently being pursued.

Kenya is in the middle of a biting economic crisis. As of June 2021, the country’s public debt stood at KSh7.7 trillion—a 300 per cent increase in the country’s debt stock from 2013. As it stands, a significant portion of the country’s revenue is used to service debt. According to the Institute of Economic Affairs, the debt service to tax revenue ratio is currently 49 per cent—a 19 per cent increase from 2013/14. These trends seem to have brought the economic agendas of the various candidates into sharper focus. For example, the deputy president has proposed a “bottom up” economic model that pits “hustlers” against “dynasties”. On the other hand, his opponent has floated the idea of a social welfare programme involving the distribution of a monthly stipend to certain sectors of the population. These economic agendas seem not to have taken root, with significant political commentary focusing on tribal demographics and the candidates’ support bases in various regions. This is a concerning reality as the next administration will be saddled with the enormous burden of economic recovery.  And while the politicians politic, northern Kenya is the grip of a growing famine.

Aside from the state of the economy, these elections come against a backdrop of declining relations between the executive and the judiciary. In recent years, the country has witnessed the flouting of court orders, the interference with the independence of the judiciary, a worrying increase in the rate and normalisation of corruption, and the use of criminal law enforcement agencies for the settlement of commercial disputes.  While the courts have in many ways held the executive to account and stood firmly on the side of constitutional order, in the context of commercial and criminal law, the courts are riven with corruption and this has badly dented the judiciary’s credibility. Besides reducing investor confidence and jeopardising the state of the economy, these trends threaten people’s fundamental rights and freedoms. The further they are entrenched, the less likely we as a country are able to backtrack and rebuild.

Risks 

The upcoming elections are likely to be highly polarising. Election related violence stemming from political division is not new to Kenya; thus far, both sides’ party primaries have been rocked by violence. In what is an unfortunately ironic turn of events, the attempt by the president and Raila Odinga to remedy the “winner-take-all” nature of elections to which they ascribe election-related violence, seems to have had the opposite effect. The broad nature of the coalitions forming only serves to raise the stakes, increasing the likelihood of tensions running high. Take for example the political primaries: the positioning of the two coalitions within their strongholds is such that candidates needed to secure a ticket to maintain a chance at winning in the elections. As a result, some have turned to unscrupulous tactics to do so, and faced with unfavourable outcomes, have resorted to violence.

The broad nature of the coalitions forming only serves to raise the stakes, increasing the likelihood of tensions running high.

The increased digitisation of political campaigning continues to muddy the waters. This election cycle has seen a significant amount of mis- and disinformation. Some of the content tends towards spreading inciteful messages. However, social media platforms have largely remained complacent, jeopardising Kenyans’ access to civic information online, and undermining healthy democratic debate.

Between Kenya’s election history which is fraught with division and violence, and the current state of the economy and the rule of law, the coming elections are likely to be instrumental in shaping the future trajectory of the country and, to an extent, the region, especially at a time when there is increased regional instability. This is further compounded by the changing nature of elections in the digital age.

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