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The Will of the People: Further Reflections on the Post 2017 Election Evaluation Report and a New Electoral Management Culture

8 min read. The reason our ballot papers have security features that are equal to, if not more than, our currency is because of the trust deficit among the electoral stakeholders.

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The Will of the People: Further Reflections on the Post 2017 Election Evaluation Report and a New Electoral Management Culture
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I was privileged to share my thoughts, concerns, hopes and aspirations during the launch of the Post Election Evaluation Report on 12th of February 2018 as a guest speaker particularly because it bears great significance to the Independent Electoral and Boundaries Commission (IEBC), as an institution, and to the nation at large. In the following essay, I share my own insights on an occasion that afforded us an opportunity to reflect and review the journey the IEBC and electoral stakeholders have travelled, so far, in entrenching sound processes in our electoral operations and systems. The expectation that I believed was shared by many, was the IEBC had prepared a report that was candid and honest in its assessment, and that it addressed, comprehensively, the political, legal, administrative, financial and managerial aspects of the 2017 General Elections.

While the Launch of the Post-Election Evaluation report stands as an epilogue in the election cycle, its utility cannot be gainsaid. It is a moment to celebrate successes, acknowledge and appreciate the failures, and identify the pathways to a better future.

The event brought back to mind two instances during my tenure as Chief Justice when I addressed the previous electoral commission. I believe that the words I spoke then ring true today as they did several years back. First was at the swearing-in of IEBC commissioners on 14th November 2011. On that occasion, I spoke at length on the importance of keeping true to the oath of office that Commissioners take. I stated that failure of any election is a failure of an oath betrayed and that:

‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.

I hope that in the recently launched Report, the IEBC has answered that question, and done it with candour and honesty.

Second was in my Concurring Opinion in Petition 2B of 2014 (commonly referred to as Munya II) where in paragraphs 251-253 I addressed the issue of electoral management where I cautioned that ‘nothing could imperil our democracy more than an electoral agency that is contaminated by bias, infected with incompetence, and afflicted by a virulent virus of minimal public accountability.

‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.

Arguably, Kenya can do with one or two indolent political parties, but she cannot afford an electoral management agency that exhibits these weaknesses…the IEBC must demonstrate competence, impartiality, fairness, and a remarkably high sense of accountability to the public and the parties who are its primary customers. It must embrace high disclosure standards, and must avoid conduct such as hoarding of information and data that the public has a right to, both as a matter of course, and also as a matter of Article 35 of the Constitution. Materials that are in the possession of IEBC are not private property but rather they are public resources. The IEBC, therefore, must demonstrate an instant readiness to respond to public concerns, whenever these are raised, and to maintain a public accountability posture at all times.

I also hope that in the Evaluation Report, the IEBC has addressed these issues in a forthright and accurate manner.

Whereas these issues will sound familiar to the current IEBC commissioners, they were said long before you came into office. The fact that some of these matters still emerged in the 2017 election, speak to an enduring electoral management culture that is still far from perfect. And it underscores that fact that the country needs to pull together to create and realise an electoral infrastructure and operations that it has absolute faith and confidence in.

Elections are an important pillar of our democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative. There is an emerging, and a rapidly entrenching notion, that electors or voters no longer decide who their leader are – whether in party primaries or the general election itself. That leaders are decided either by party barons, manipulated electoral management agency, or by the courts. In Africa, there is a widening chasm between voting and counting – an irony of literacy where peasants (most voters) know how to peacefully cast their ballots during the day, but the educated (presiding and returning officers) and technology forget how to count on election night. There is urgency in changing this perception and/or reality by reclaiming and reaffirming public faith in electoral politics. The IEBC has an oversized role in this regard, but only if it conducts itself competently, credibly and fairly.

But IEBC cannot achieve this on its own. It needs an enlightened political leadership and engaged citizenry. There is no doubt that for a truly independent electoral commission to emerge, the political class needs to drop its practice of capturing and enslaving the commission – completely rendering it incapable of discharging its mandate. The political class falsely sees itself an ‘owning’ every space, initiative, or decision in the country, an erroneous ‘political class as sovereign’ notion that precipitates overreach and disregards the constitutive and operational autonomy of independent institutions such as IEBC, and even the Judiciary.

Elections are an important pillar of our democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative

The Constitution created independent institutions precisely to cure this mischief – as a necessary bulwark against the highly predictable proclivities and mission creep tendencies of the political class. We cannot create independent institutions then deny them that independence through the bullying of the political class. When those institutions fail because of such political infiltration, we turn around and blame them – and disband them only for the silly cycle to begin afresh with another predictable inane result! Our political class must be self-respecting enough to allow independent institutions to work.

But I have also come to learn that constitutional independence does not work on its own. The leadership and membership of these institutions matter much more. IEBC must fight for its independence by rejecting patronage and partisan politics, and through its conduct, comportment and decisions, project and elevate its authority – effectively. The division that the Commission showed in the last election went a long way in sapping away public confidence. The IEBC evaluation report must acknowledge the problem of disunity in the spirit of honest and candid evaluation and make recommendations on how to deal with it in the future.

It is astonishing that the current IEBC assumed office only seven months to the general election. This was reckless and irresponsible on the part of the country. That it even managed to organize the six-tier election, is a mini-miracle. The demand on the Commission to deliver on the general elections within this short period of time must have been huge. Added to Kenya’s unique legal, political and administrative minefields that attend our elections, the pressure must be have been incalculable.

The political class slow-pedaled and mismanaged the transition from the old Commission to the present one. And even today, almost four years before the next election, the Commission is debilitated and cannibalized, and the political class is in lala landevidently unbothered waiting until the last minute to deal with the outstanding issues in the Commission. There is urgency in getting the Commission working properly and in its full capacity.

It is not my desire to dwell on the 2017 General Elections that I trust is adequately covered in the evaluation report. However, I deem it necessary to share some reflections on our electoral processes by highlighting some issues that I think we also need to address.

First, is the manner in which political parties conduct party primaries. Political party primaries have become theatres of the absurd characterized by patronage, violence, ineptitude, rigging. Whereas considerable progress has been made in developing internal party dispute resolution mechanisms these are still not effective as most disputes still find their way into the court system.

We need to remember that Political Parties are institutions that mobilize the people towards capturing political power. This obligates them to entrench democratic values and principles in their internal systems, especially party nominations. I urge all players including, Parliament, Political parties, Registrar of Political Parties and the IEBC to adopt a multisectoral collaborative approach in developing a legal, regulatory and administrative framework that will promote internal party democracy.

Second, there is need for a national conversation on the practicability of critical timelines within the electoral process. For instance, the Constitution compels the Supreme Court to make a determination on a Presidential Petition within 14 days of its filing. From experience, this limited time forces the Court to sit for long hours during proceedings; grant much shorter time for the conduct of important processes like scrutiny and submissions; and limits or even bars parties from preparing adequately for their petitions. The proposal made by the Judiciary Committee on Elections to extend the presidential election petition by another 16 days merits attention.

Third, statutory enactments and amendments by the legislative arm of Government should provide reasonable time for implementation. Undertaking piecemeal legal reforms close to the elections leads to inconsistencies and administrative challenges in the application of the law.   Furthermore, we should consider the possibility of staggering elections. The IEBC conducts polling for six elective positions concurrently. The undertaking is quite daunting and demanding in terms of logistical planning and processing of results. This is a debate that Kenyans need to have.

Fourth, we need to cure the country of the strong scorched-earth electoral culture. We shed too much blood, damage too many properties, steal too many votes, rupture too many friendships, destroy too many institutions, throw too many ethnic insults, worship too many false gods, spend too much money during our electoral contests. Elections have become corrosive and divisive in a manner that hemorrhages the country in an eminently destructive way. They have become existential contests rather than a civil contest between ideas and policy choices. This absolutist view of elections is what has led to the over judicialization of politics and militarization of politics, thereby giving courts (and security agencies) power to determine who the leaders are, and not the citizens. I believe that if the IEBC were to assert its authority and competently and fairly manage the electoral process, the social costs of elections would considerably go down. Similarly, if leaders put national interests first, then the fear of exclusion that drives this desperation would evaporate.

Fifth, the independence of the IEBC can only be guaranteed if its operations are independent of any executive, legislative or foreign control and direction. An institution can only speak of independence if its processes are not prone to manipulation from executive, parliamentary or international misadventure. It is about time we interrogated and stopped the hugely negative influence of the intelligence and security operatives in Kenya’s electoral processes, particularly since 2007. Similarly, the international community also pays an over-sized role in the electoral commission and this needs to be reduced if not eliminated completely. Therefore, to cushion the Commission from financial incapacitation, the Independent Electoral and Boundaries Commission Fund should be operationalized.

Lastly, the role of technology and technology companies in Kenya’s elections also need urgent examination. It has emerged as a contested issue and if the country is not careful, we may hand over the election of our leaders not to voters, parties or courts but to technology and data management companies.

I urge the IEBC Commission to continuously engage stakeholders and the public at large in its processes. The Constitution of Kenya has elevated public participation and inspired citizen vigilance, to the extent that unless harnessed into meaningful engagement, it can be a recipe for constant standoffs and unnecessary legal battles between the IEBC and the various stakeholders in the Electoral Process. This will not only enhance trust among stakeholders but also reduce the cost of conducting elections. The reason our ballot papers have security features that are equal to, if not more than, our currency is because of the trust deficit among the electoral stakeholders.

Lastly, the role of technology and technology companies in Kenya’s elections also need urgent examination. It has emerged as a contested issue and if the country is not careful, we may hand over the election of our leaders not to voters, parties or courts but to technology and data management companies.

I wish the IEBC a productive season as it gears up for the next election cycle that will culminate in the conduct of the 2022 General Elections.

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Mutunga is the former Chief Justice of Kenya.

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South Sudan: An African Tragedy where Looting is the Name of the Game

7 min read. A never-ending cycle of killing and looting has left South Sudan fragile and impoverished. Moreover, a kleptocratic class of politicians and generals at the top with deep ties to “international partners” has been benefitting from the conflict, which could explain why Africa’s youngest nation remains in a permanent state of political instability.

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South Sudan: An African Tragedy where Looting is the Name of the Game
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The signing of a peace agreement by the Government of South Sudan and opposition groups on November 20th 2019 has signaled to the international community that there is a real possibility of peace in Africa’s youngest country. But I am not hopeful, nor do I believe that the current leaders of this war-ravaged country, Salva Kiir and Riek Machar, are committed to a peace process, despite being humbled by Pope Francis (who kissed their feet last year—a gesture that spoke more about the Pope’s humility and generosity than it did about South Sudan leaders’ leadership).

I also believe that the two leaders should be held accountable for the violence and other atrocities they have inflicted on their people. As a new report has shown, not only are Kiir and Machar war criminals but they have been systematically looting their country for their own personal benefit for years. The report by The Sentry titled “The Taking of South Sudan: The Tycoons, Brokers and Multinational Corporations Complicit in Hijacking the World’s Newest State”, which was released in September last year, states:

“The men who liberated South Sudan proceeded to hijack the country’s fledgling governing institutions, loot its resources, and launched a war in 2013 that has cost hundreds of thousands of lives and displaced millions of people. They did not act alone. The South Sudanese politicians and military officials ravaging the world’s newest nation received essential support from individuals and corporations from across the world who have reaped profits from those dealings.”

The report documents what is often described as Africa’s “resource curse”—a never-ending cycle of killing and looting that leaves an African state impoverished and in a permanent state of political instability, and which creates a kleptocratic class of politicians and generals at the top with deep ties to international partners who benefit from the conflict and whose names and faces often remain hidden. These politicians and their partners in crime are wined and dined by these international “partners” who are keen to have their fingers in South Sudan’s resource pie—oil, in this case.

The report claims that local politicians and their “international partners”, which include Chinese-Malaysian oil giants, British tycoons, and networks of traders from Ethiopia, Eritrea, Kenya and Uganda, have plundered billions of dollars from the people of South Sudan, who remain mired in conflict, poverty and underdevelopment. It says that the largest multinational consortium in South Sudan, which is controlled by the China National Petroleum Corporation and Malaysia’s state-owned oil company, Petronas, provided material support to a pro-government militia that burnt entire villages and committed atrocities against civilians. South African and American arms dealers and mercenaries also seem to have benefitted from the conflict. It is believed that Kiir’s and Machar’s armies could be responsible for the deaths of up to 300,000 people.

Some of these “investors” formed companies with President Salva Kiir’s family members. (Former President Daniel arap Moi’s son, Gideon Moi, is mentioned in the report as one of the Kenyan individuals who formed a company with Salva Kiir’s daughter Adut.) In all, individuals and firms from 13 countries, including India and Canada, are implicated.

This African tragedy is being played out even as the international community tries to bring together warring factions in the hope that South Sudan will eventually become a functioning state with a thriving democracy. Why the two warlords, Kiir and Machar, have not been hauled before the International Criminal Court (ICC) for crimes against humanity is one of those enigmas whose answer lies in the geopolitical and financial motives of the international community, including South Sudan’s neighbours.

Both Kiir and Machar should be referred to the ICC, but neither the United Nations Security Council nor the African Union is likely to do this. The United States and other countries that financially supported South Sudan’s independence from the Arab-dominated north will also not admit that South Sudan has been unable to have the kind of leadership that can sustain peace and democracy.

But were we too quick to assume that South Sudan would one day become Botswana—a resource-rich country whose leadership did not go on a looting spree, and which managed its natural resources in a way that did not lead to conflict? I think so, because South Sudan was never intended to be a peaceful and stable democracy. And influential forces in neighbouring countries like Kenya were eager to take part in the looting.

Safe haven

In their latest report, The Sentry calls on the United States, the United Kingdom, the European Union, Uganda and Kenya to enforce and enact sanctions against individuals involved in the plunder of South Sudan and in human rights violations against civilians. These sanctions, it says, should include travel bans and the freezing of assets held abroad by these individuals.

This week the US finally imposed sanctions, including freezing of assets, on two senior South Sudanese officials, not because they looted South Sudan or inflicted violence on its people, but because they were perceived to be “disrupting efforts to end the conflict”. Kiir and Machar are not on the sanctions list. In essence, the sanctions are against “spoilers” of the peace deal between Kiir and Machar, which began in 2015, but which has been stalling mainly because both leaders have not agreed to all aspects of it. Machar, for instance, insists on his security being assured before he forms a transitional government. It is assumed that peace will return when Kiir and Machar form a government together. But past experience has proved this to be difficult.

The recommendations by Sentry are also not likely to be enforced for a variety of reasons.

One, Kenya’s capital Nairobi has for years been a safe haven for warlords from the region, and this has benefitted Kenyan politicians and businesses. Nairobi seems to be the preferred destination of criminals and warlords from neighbouring conflict-prone countries who want to quickly launder their money or make deals with corrupt Kenyan politicians or businessmen.

Kenya’s “bandit economy” has benefitted enormously from conflicts in the region, not just in terms of the illicit money that pours into the country, but also with regard to humanitarian agencies. The conflicts in Somalia and South Sudan generated enormous amounts of funds for Nairobi-based aid and humanitarian agencies, and private companies that transported or distributed aid to these countries.

We must also remember that the Mwai Kibaki administration’s support for a liberated South Sudan was predicated on the administration’s ambitions to link oil from South Sudan to a port in Lamu through the Lamu Port, South Sudan, Ethiopia Transport corridor (LAPSSET). So Kenya was already eyeing South Sudan’s oil long before the country seceded from Sudan and achieved independence in 2011.

Nairobi is also the preferred residence of many South Sudanese warlords. South Sudanese leaders are known to own houses in the poshest parts of Nairobi. Their children go to school here and their relatives come here for medical treatment.

According to an earlier investigative report by The Sentry titled “War Crimes Shouldn’t Pay” (foreword by George Clooney and John Prendergast), both President Salva Kiir and his former deputy Riek Machar, and top military officers in the Sudanese People’s Liberation Army and South Sudan’s armed forces, own or rent luxurious homes in Nairobi and have accounts in Kenyan banks through which they have laundered millions of dollars. Kenya’s property market and banking sector thus appear to have been big beneficiaries of South Sudan’s conflict.

The report confirmed that the rivalry between Kiir and Machar was not so much about ethnic divisions as about competition over the country’s vast natural resources. South Sudan’s leaders are enjoying first-class lifestyles in Nairobi while at least half of South Sudan’s population faces starvation and more than 2 million people are internally displaced.

Another reason why South Sudan’s leaders are not likely to be brought to account is that for years South Sudan was the darling of the United States, which mistakenly believed that South Sudan’s war of secession with the north was about religion, not greed. Western countries have provided billions of dollars in aid to South Sudan in the belief that they were helping a budding Christian nation that wanted to be free of Muslim hegemony. After having financially and morally supported secessionist armies in South Sudan, the United States is unlikely to acknowledge that it has created a monster.

The recurrence of conflict in South Sudan has shown us what happens when the international community confuses clannism with nationalism and does not make the distinction between leadership and gluttony. The truth that is becoming increasingly apparent is that neither Kiir nor Machar should have ascended to leadership positions in South Sudan because both have blood on their hands. Both are incapable of seeing beyond their Dinka and Nuer clans, and both have shown no remorse for the thousands of men, women and children who have died, been displaced or been raped in their name. Independence in 2011 did not end the conflict in South Sudan; on the contrary, the conflict became more protracted.

And while Salva Kiir claims that he does not have the money to solve his country’s myriad problems, he seems to have a lot of money to improve his image. According to a report published by Vice News and the Center for Public Integrity, the Sudanese president spent more than $2 million on lobbying and public relations firms in Washington between 2014 and 2015. These firms were paid to boost his image, to keep US aid flowing and to prevent any criticism of the South Sudanese government’s atrocities against its own people that might have resulted in sanctions.

A large chunk of this money went to the Podesta lobby group, which included high-level officials who served in Bill Clinton’s and Barack Obama’s administrations. When a United Nations report accused the South Sudanese government of failing to end violence, protect civilians and punish perpetrators, Podesta issued press releases that discouraged sanctions against South Sudan, claiming that such sanctions could lead to the collapse of the fragile peace agreement.

South Sudan is not the only country that relies on PR firms to stave off criticism. Increasingly, rogue African states and leaders are turning to PR firms in the West to whitewash the atrocities they are inflicting on their people. Many countries, including Egypt, Nigeria, Equatorial Guinea, Iraq and Azerbaijan, have recruited lobbyists in the West to influence public policy and opinion. The spin-doctoring is so successful in some cases that human rights abusers turn into human rights defenders overnight.

South Sudan was bound to be a failed state straight from birth. In other countries, the “resource curse” strikes when stable countries discover oil or other resources and then descend into conflict over competition for those resources. In the case of South Sudan, the “resource curse” was brewing even before the country was liberated.

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No Country for Muslims? Modi Underestimated Indians’ Tolerance for Diversity

7 min read. What India’s Prime Minister forgets – and what the mass protests in Indian cities demonstrate – is that India’s secularist democracy has survived more than 70 years because Indians decided that religion was too personal and too precious to be left to the whims of the state.

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No Country for Muslims? Modi Underestimated Indians’ Tolerance for Diversity
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Just before Christmas, when thousands of Indians – both Hindus and Muslims – were protesting against a controversial new law that discriminates against Muslims, a court in Pakistan handed down the death sentence to Junaid Hafeez, a 33-year-old university professor who was found guilty of blasphemy. Hafeez had been accused of posting derogatory comments about the Prophet Mohammed on social media. His case is one among many in Pakistan where harsh sentences have been handed out to those perceived to be insulting Islam.

That same week, a court in the Kingdom of Saudi Arabia – Islam’s holiest land – sentenced five men to death for the murder of the journalist Jamal Khashoggi. Critics believe that the trial was a farce and the real perpetrators of the crime, including Saudi Prince Mohamed bin Salman, have got away scot-free. Khashoggi’s brutal murder in a Saudi consulate in Istanbul in October 2018 shocked the world and led many to point fingers at the repressive Saudi monarchy, which is known to torture and detain those opposed to it – and which seems to suffer no consequences for its inhumane treatment of dissidents, not even from Western nations that advocate democratic ideals to the rest of the world

There were no mass protests or riots in either Pakistan or Saudi Arabia – or even outside these countries – against what are undoubtedly flawed and extremely unfair justice systems. On the contrary, the Trump administration congratulated Saudi Arabia for the verdict against Khashoggi’s alleged killers, thereby whitewashing what was clearly a miscarriage of justice.

So the fact that Indians of all religions have risen against the Citizenship Amendment Act (CAA) is perhaps on indication of how resilient India’s democracy and secularist traditions are. The CAA is being opposed because it allows Hindus, Sikhs, Christians, Jains and Parsees who are in India illegally to acquire Indian citizenship if they can prove that they are being persecuted in Bangladesh, Pakistan or Afghanistan, all of which are predominantly Muslim countries. This privilege, however, is not extended to Muslims from these countries. This is viewed by many as grossly discriminatory and contrary to India’s constitution, which was founded on the principle that religion should not determine citizenship.

At least 25 people have been killed by security forces since the protests began, but Prime Minister Narendra Modi has shown no signs of reconsidering the wisdom of the Act; on the contrary he has become more defiant. This could be because, like Donald Trump, he believes he has a strong base that will support him and his policies no matter what. But that base, it seems, is crumbling in Modi’s case. The protests have not stopped; on the contrary, they are getting louder.

Moral high ground

Since independence in 1947, India has prided itself for not being like its neighbour Pakistan, which insisted on forming an independent state for India’s Muslims rather than being part of a united India where both Hindus and Muslims could co-habit peacefully. India held the moral high ground with respect to its neighbour, often boasting that despite being a Hindu-majority country, it had no issue with its sizeable Muslim minority. (There are currently roughly 200 million Muslims in India – almost the same number as the total population of Pakistan.) In fact, until Narendra Modi’s right-wing Hindu nationalist party took over in 2014, successive Indian governments have made it a point to woo and accommodate the nation’s Muslims.

The fact that Hindus in India are fighting to preserve Muslims’ rights is itself a testament to Indians’ tolerance and maturity – even among those who have historical grievances against the Muslim community. Although Muslims have lived in India before the advent of the Mughal Empire, which ruled over India from the 16th century to the mid-18th century, the Islamicisation of India is often attributed to the Mughal invaders/conquerors and their proselytising mission.

There is no doubt that Mughal culture has contributed enormously to the arts, architecture, culture and cuisine of India. Architectural marvels like the Taj Mahal, biriyani, kebabs, and the Urdu language are a legacy of India’s Mughal/Muslim heritage. But the Mughal Empire (which lost power after the East India Company and later the British Empire controlled large swathes of India) is also associated with atrocities, including forced conversions, which India’s Sikhs are acutely aware of as their religion is founded partly on resistance to Mughal hegemony.

Although Sikhism is often viewed as a reaction against Hinduism’s stifling and oppressive caste system, and its first guru, Nanak Devji, is remembered for fusing Islam with Hinduism, thereby creating a monotheistic religion that shunned the worship of gods and goddesses and that bequeathed more rights to women, Sikhs’ resistance to Islam has come to define their religion.

Distrust of Muslims is an instinct that is inculcated in Sikhs and Hindus from childhood, much like the way Kikuyus are taught to distrust Luos. When I was a child, my grandmother reminded me that many Sikh gurus, such as Guru Tegh Bahadur, were tortured or put to death by Mughal emperors for resisting forced conversions to Islam. The sons of Sikhism’s last guru, Govind Singh, were buried alive by the sadistic Emperor Aurangzeb in the late 17th century. Govind Singh formed the “Khalsa” (a militant group of disciples) to wage war against the Muslim rulers.

Northern India’s Sikhs and Hindus thus have an instinctive fear of Muslims that is based on a history where they – not the Muslim/Mughal invading armies – were the persecuted ones, a fact that neither the left nor the right in India is comfortable addressing, but which Prime Minister Narendra Modi and his Bharatiya Janata Party (BJP) have cynically tapped into.

What is happening in India is not your garden variety Islamophobia that emerged after 9/11 but a much deeper instinctive reaction that has its roots in Indian history. While the Mughal period in India is often seen as a golden age when beautiful buildings, poetry, dance forms such as kathak and other fine arts flourished, it is also viewed as a period of intense violence and cruelty. While Mughal emperors like Akbar the Great (who married a Hindu woman) are lauded for fostering harmony between the sub-continent’s largely Hindu population and the Muslim rulers, the atrocities committed by some Mughal emperors has also marred their reign. These atrocities shaped the formation of religions like Sikhism. Yet, the Sikh community’s religious leaders were among the first to oppose the CAA.

A “pure” India

The violence that characterised the Mughal Empire, especially in the 17th century, was reenacted again in 1947 when India attained independence and when millions died or were displaced when the new country Pakistan was born and the Indian subcontinent was partitioned. My ancestral family home in Lahore became part of Pakistan. This is a wound that my great grandparents and grandparents harboured for years.

And yet, India’s Muslims who did not cross the border to live in Pakistan in 1947 have rarely felt like they do not belong to India. Hindu temples sit comfortably next to mosques in most Indian cities as do cathedrals and synagogues. That was the beauty of India…until Modi came along, and told Hindus that India belongs to them and them only.

Modi and his BJP party exploited Hindus’ instinctive distrust of Muslims. The Rashtriya Swayamsevak Sangh (RSS), a militant Hindu organisation formed in 1925 and which Modi belongs to, has an agenda to “purify” India, much like Adolf Hitler sought to “cleanse” Germany. In the 1940s, as World War II was raging in Europe, the RSS leader MS Golwalker spoke of an exclusively Hindu nation: “Ever since that evil day, when Moslems first landed in Hindustan [India], right up to the present moment, the Hindu Nation has been gallantly fighting to take on these despoilers. In Hindustan, land of the Hindus lives and should live the Hindu Nation…”

He then went on to extol the virtues of Nazism: “To keep up the purity of its race and culture, Germany shocked the world by her purging the country of the Semitic races – the Jews. Race pride at its highest has been manifested here, a good lesson for us in Hindustan to learn and profit by.”

In January 1948, five months after India’s independence, Nathuram Godse, a member of the RSS, assassinated Mohandas (Mahatma) Gandhi, who the RSS viewed as being sympathetic towards Muslims.

In an article published in The Caravan and adapted from a lecture she gave in New York last year just before the protests in India began, the Indian activist and writer Arundhati Roy stated:

If Nazi Germany was a country seeking to impose its imagination onto a continent (and beyond), the impetus of an RSS-ruled India is, in a sense, the opposite. Here is a continent seeking to shrink itself into a country. Not even a country, but a province. A primitive, ethno-religious province…That it will self-destruct is not in doubt. The question is what else, who else and how much else will go down with it.”

To understand the depths of Modi’s fascist tendencies, we need not go very far in time. In the six years he has been Prime Minister, he has taken the country down a path that will not go down well in history.

A few recent examples: In November last year, Modi’s government revoked the overseas citizenship of journalist Aatish Taseer on the pretext that Taseer’s father was a Pakistani. Taseer, who grew up in India with his Sikh mother, but who is now a British citizen, had written a cover story in May 2019 for TIME magazine that described Modi as “India’s Divider In Chief”. The revocation of his overseas citizenship (which is extended to individuals who can prove that they have Indian ancestry or who once held Indian citizenship, and which allows one to travel visa-free to India) was clearly an act of retaliation by a leader who does not take criticism lightly.

In August 2019, Modi’s government annexed Jammu and Kashmir by repealing Section 35A of the Indian constitution, which gave the former princely state semi-autonomous status. This act was viewed by the state’s Muslim majority as a direct attack on them and their territory, akin to what Vladimir Putin did in Crimea. Jammu and Kashmir has been a front line state caught between the crossfire between Indian and Pakistani armies for years. The current and previous governments have often viewed it as harbouring terrorists sympathetic to Pakistan, even though the residents have argued that they have no desire to be part of either India or Pakistan.

Violence against Muslims has also risen under Modi’s regime. According to news reports, more than a hundred Muslims have been killed by Hindu mobs since 2015.

What Modi forgets – and what the mass protests in Indian cities demonstrate – is that India’s secularist democracy has survived more than 70 years because Indians decided that religion was too personal and too precious to be left to the whims of the state. Most Indians recognise that their country’s strength lies in its religious and cultural diversity. If India had gone the Pakistan way, there would be rivers of blood everywhere, like those that flooded the India-Pakistan border at independence when Muslims, Hindus and Sikhs crossing the border were slaughtered in the hundreds of thousands in revenge attacks. Few Indians want to go down that road again.

What Modi and his government have done may appeal to the anti-Muslim instincts of India’s non-Muslim majority, but it goes against the grain of how Indians (except members of the RSS and its offspring the BJP) perceive themselves and their country. With economic growth rates sharply dropping in India currently, it is only a matter of time before the protestors’ anger against the government’s anti-Muslim stance turns into widespread disaffection.

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Of Tigers, Debt Merchants and 2020 Vision

8 min read. The former president of the African Development Bank, Donald Kaberuka, has dismissed as “nonsensical” any suggestion that Africa may have over-borrowed, saying instead that with better debt management and higher domestic revenue mobilisation, the continent can take on more debt. But Kaberuka fails to make the link between the increased borrowing and the revenue problem.

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Of Tigers, Debt Merchants and 2020 Vision
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The public debt burden has dominated economic debate in 2019. Public debt is likely to be even more topical in 2020, both domestically and globally. As at end November 2019, 31 out of 70 countries in the IMF’s roster of low-income countries are listed as either in or at high risk of debt distress. Another 26 are listed as being at moderate risk, leaving only 13 that are still at low risk. Last week, the IMF approved a $2.9b bailout for Ethiopia, one of the high distress risk countries.

I first called out the Jubilee administration’s borrowing binge six years ago. Up until two years ago, the IMF and the World Bank were still giving it the thumbs up. (Very often we forget that these institutions are lenders and therefore conflicted on matters debt.) A few weeks ago Donald Kaberuka, the immediate former president of the African Development Bank (AfDB) and erstwhile Finance Minister of Rwanda, dismissed as “nonsensical” any suggestion that Africa may have over-borrowed:

“The idea that Africa is drowning in debt is nonsensical . . . If we can improve on our own domestic revenue mobilization, if we can improve on our public debt management and if we can improve on our debt management capabilities, the continent is able to take a bit more debt, especially at this time when the markets are looking for yield.”

This is an interesting argument. You may also have heard it from the Jubilee administration—the problem is not too much debt; it is the Kenya Revenue Authority (KRA) that is failing to meet revenue targets.

Kaberuka, who I gather is an economist, wittingly or otherwise, fails to make the connection between the borrowing binge and the revenue problem. Only a most incurious economist would look at revenue and debt trends such as ours (see chart) and conclude that they are completely unconnected. Although I have written about the connection on more than one occasion, it is worth recapping. There are two dimensions to the connection: an accounting one and an economic one.

Let’s start with the accounting. Let’s say we start with a GDP of Sh10 trillion which is 80 per cent private economy and 20 per cent government. Let’s then say the government is raising Sh2 trillion, which is 20 per cent of GDP, in tax revenue. Suppose the government goes to China and buys a railway worth Sh500 billion on credit. The GDP will now be Sh10.5 trillion. We will be told that the economy has grown by 5 per cent. But the railway has not added anything to the economy, and nor is it paying tax, so the government still collects Sh2 trillion, but which is now 19 per cent of the Sh10.5 trillion GDP. If this is repeated every year, by year five, the GDP will have expanded to Sh12.8 trillion and the tax revenue-to-GDP ratio will be down to 15.7 per cent.

This is a purely accounting view, which assumes that government investment is neutral, neither helping nor harming the economy. This is not as far-fetched as it might at first appear. For example, it could simply reflect government investments with long gestation periods. Indeed, we have been told that the new Standard Gauge Railway (SGR) is one such long-term visionary project whose benefits will be realised by our grandchildren. But for no harm to occur, two conditions need to obtain. First, all the borrowing needs to be foreign. Use of domestic resources means diverting these from the private economy, and that is harmful. We call this crowding out. Second, there are no repayments, because repayment of foreign debt amounts to sucking money out of the economy, also harmful. Neither obtains.

Let us start with repayments. This year, we have budgeted to pay Sh139 billion ($1.39 billion) in foreign interest, a tenfold-plus increase from Sh11b ($130m) in the 2012-2013 financial year, the last year of the Grand National Coalition government. And this does not include the hefty payments of the principal on the SGR loans that kicked in this year. The use of domestic resources is also a very significant factor. Half the debt that the Jubilee administration has accumulated is domestic. The crowding out extends beyond credit. With so much money to spend liberally, trading with the government becomes the most profitable business, diverting other economic services away from, and inflating the costs for the private sector. This could not be better demonstrated than by the case of Kenya’s banking industry.

Chart 2Last year, the industry made a consolidated profit of Sh110b, and Sh119b in interest from government securities. Considering that lending to government is virtually costless and risk-free, this implies that banks made all their profits from the government, and lost Sh9b on the business they did with the rest of the economy. The contribution of interest on government securities has increased steadily from 37 per cent in 2013 to 108 per cent in 2018 (see chart). But we also see that the banks’ profitability has declined. Profits declined by 40 per cent in 2017, following the capping of interest rates in late 2016. In 2018 profits were 14 per cent lower than in 2013. If banks are not making money from the private economy, it stands to reason that government revenue will also take a hit.

How much public debt is too much?

Debt experts have sophisticated models that are supposed to tell us. These models are built around “present value.” Present value is the sum of a forecast, such as a cash flow, and in this case annual debt repayments, discounted by a rate of interest or other relevant discount factor, used to give an estimate of current worth. If two similar countries borrow the same amount of money on similar terms, one invests wisely, and the other plunders it all, the net present value of the debt will be the same. It should not surprise then that the IMF’s models were giving the Jubilee borrowing binge the thumbs-up even as the Eurobond went walkabout and one Josephine Kabura was mocking us with tall tales of cash stuffed in gunny bags.

Chart 3For the financial health of a country, a simple rule of thumb is to ensure that debt service does not grow faster than government revenue for too long. If the debt is invested productively, the investments expand the economy, the government generates more tax revenue from the expanding economy, which it then uses to service the debt. How long is too long? That is a matter of exercising sound judgement. As John Maynard Keynes famously quipped, in the long run, we are all dead. But the question becomes moot when the trend looks like what we see in the chart—debt service heading north, revenue heading south. You do not need present value calculations to see that this trend cannot go on for much longer. Sooner or later, something will have to give.

Expect to hear a lot about fiscal consolidation in 2020.

Fiscal consolidation is defined as policy measures that aim to reduce the deficit and stop the accumulation of debt. The substance of it is what we used to call structural adjustment but, following the 2007 financial crisis, it became necessary to invent a new name—it just wouldn’t do to speak of Spain, or the UK for that matter, as implementing structural adjustment.

A fiscal consolidation strategy is predicated on the expectation that governments can find ways of bringing down deficits without hurting growth. Budget deficits are, in essence, the pumping of money into the economy, which ought to stimulate growth. Conversely, fiscal consolidation amounts to withdrawing money from the economy, which would dampen growth. The problem is that economic slowdown hurts revenue, meaning that the government has to constrain expenditure even further to meet its deficit reduction targets.

The first strategy entails counteracting the contractionary effect of fiscal consolidation with expansionary monetary policy. Simply put, what the government takes away, the Central Bank puts back in circulation. The Central Bank has a couple of tools to do this, principally by buying bonds and lowering the cash ratio and liquidity requirements for the banks (the percentages of assets that banks are required to have in cash and near-cash assets such as Treasury bills and bonds). Shovelling money out of the door is also expected to reduce interest rates, which besides making borrowing attractive for businesses and consumers, can substantially lower the interest cost of domestic debt. But unlike fiscal stimulus where the government is the spender, monetary stimulus depends on market response. The policy makers hope the money will stimulate production, but it could just as well suck in imports, or leave the country to seek higher returns elsewhere, thereby depleting foreign exchange reserves and putting pressure on the currency.

The second strategy is to find “off-balance sheet” financing of public investment. The default alternative these days is the so-called public-private partnerships (PPPs). Simply put, PPPs are the public equivalent of equity financing. Instead of the government borrowing to build a hospital for instance, a private investor builds, and the government leases it. But PPPs have their drawbacks. First, to make them attractive to private investors, PPP projects are usually structured in such a way as to ensure that the investors cannot lose money—“de-risked” in financial lingo.

Second, PPPs are seldom commercially viable so, more often than not, the Government usually has to part-finance the project in order to achieve an attractive rate of return for investors. Third, PPP financing cherry picks projects with commercialisation potential, which typically will be projects that benefit more developed areas or better-off people in society. In economics, we call such policies “regressive”, meaning they transfer resources from the poor to the rich. Fourth, PPPs have a very high corruption risk—we need look no further than the stink that is the medical equipment leasing scheme known as the Managed Equipment Services (MES) project.

Another scheme is to shift debt and deficit financing from the national government’s books to quasi-government agencies, such as has recently been done by amending the law to allow the Kenya Roads Board (KRB) to issue bonds leveraged on the fuel levy revenues that are earmarked for road construction. Assuming an interest rate of, say, 12 per cent, each shilling of fuel levy revenue can be leveraged to borrow 8 shillings. Already, the KRB has published an expression of interest for transaction advisors to raise Sh150 billion. Suffice it to say that Greece used financial gymnastics of this nature to first be admitted into the Eurozone and to subsequently fake compliance.

PPPs have a very high corruption risk—we need look no further than the stink that is the medical equipment leasing scheme known as the Managed Equipment Services (MES) project

How much public finance does development require? There is perhaps no better place to benchmark than with the Asian Tigers.

Chart 4In the 70s, Thailand and South Korea were raising 13 and 15 per cent of GDP in tax revenue, well below Kenya’s 18 per cent, while Malaysia and Singapore were doing better at just over 20 per cent (see chart). But where the East Asians stand apart is that each of them was able to put at least a third of their revenue into investment. The real miracle here is how they managed to keep their recurrent budget to a maximum of 10 per cent of GDP, out of which they were also heavily investing in education. As economists Mahbub ul Haq and Khadija Haq observed, beneath the East Asian economic miracle lay an education miracle.

Chart 5It is also a miracle of public finance, specifically, public thrift. We hear a lot about the high saving and investment rate part of the story. What we do not hear about is the role of government in that story. In the early seventies, East Asian and African countries had similar national savings rates, but even then East Asian governments were contributing more to national saving and investment, although African governments’ contribution was also significant (see chart). A decade later, East Asian governments were still contributing over a third of national investment, while for African and other LDC governments this contribution fell to 11 and 6 per cent respectively. Consequently, we turned to foreign resources. By the early 80s, Africa was investing 20 per cent of GDP more than half of which was foreign-financed, while the East Asians were investing 30 per cent, 90 per cent of which was domestically financed.

In the 70s, Thailand and South Korea were raising 13 and 15 per cent of GDP in tax revenue, well below Kenya’s 18 per cent, while Malaysia and Singapore were doing better at just over 20 per cent

The East Asian experience is telling us that when people were too poor to save much, it is the government, and not foreign resources, that closed the gap between private savings and investment requirements. In economics, we postulate that saving is determined primarily by income, and investment by rate of return. As these public investments paid off, they boosted private income and consequently private saving. When countries save more, they need less, not more foreign resources to finance investment. Donald Kaberuka is telling us that we need to raise more revenue to enable us to borrow more. Is he ignorant or dishonest?

During his tenure, the AfDB became the lightning rod for infrastructure-led growth, a fallacy that this column has discussed before. In fact, the nonsensical comments echo sentiments in the AfDB’s 2018 Africa Economic Review, to wit:

“For much of the past two decades, the global economy has been characterised by excess savings in many advanced countries. Those savings could be channeled into financing profitable infrastructure projects in developing regions, especially Africa, to achieve the G20’s industrialisation goal. That this mutually profitable global transaction is not taking place is one of the biggest paradoxes of current times.”

You may want to note that the objective is to “meet the G20’s industrialisation goal.” The irrepressibly prescient Franz Fanon read in the tea leaves:

“The national bourgeoisie will be quite content with the role of the Western bourgeoisie’s business agent, and it will play its part without any complexes in a most dignified manner.”

And therein lies the rub.

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