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A Place Under the Sun: Solar Energy and the Struggle for a Billion-Dollar Invisible Market

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Unserved by policy makers whose grand energy priorities lay elsewhere, 600 million rural Africans for decades lay off-grid. When new technologies and global investment arrived, this emerging market became the site of competition and fantasy between indigenous solar technology traders and a white saviour industry backed by billionaire philanthropy investors.

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A Place Under the Sun: Solar Energy and the Struggle for a Billion-Dollar Invisible Market
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The truth of the hunt, it is said, will never be fully known until the lion tells its story. This is particularly useful in the context of international development; the stories that get told tend to focus on the deeds of the “hunters” – in this case, the international do-gooders — that led to whatever outcomes they desire to highlight. The saying certainly holds true for the development of solar energy in Africa, because the coverage too often tells of expat social entrepreneur efforts to spread the technology. Intentionally or not, these Western actors ignore the work done by local players — the “lions”, who actually built the sector.

To better understand both sides of the story of solar in Africa, a global perspective of solar and the forces that drive demand is useful. Today, the worldwide solar energy sector is valued at more than $100 billion annually. In 2018, over 100 GW of solar power systems were installed. Yet despite enormous resources on the continent, less than two percent of this solar capacity was installed in sub-Saharan Africa. Africa is, in fact, a backwater for solar investments.

Today, the worldwide solar energy sector is valued at more than $100 billion annually. In 2018, over 100 GW of solar power systems were installed…less than two percent of this solar capacity was installed in sub-Saharan Africa.

Globally, solar electricity’s growth spurt came after 2000 when the German government supported the energiewinde program and Chinese production of solar modules ramped up in response to sharp spikes in demand. Since the late `90s, solar power projects in developed countries have mostly been grid connected and large scale. Early on-grid developments occurred in Germany and California, where today millions of homes have rooftops covered with solar panels. All over the developed world and in China and India, fields of modules produce gigawatts of power on sunny days. However, though production is over 100 GW per year today, it wasn’t until 2003 that global production surpassed 1 GW per year.

While millions of modules were installed in the global North, on-grid solar’s potential was almost entirely ignored by African governments. It was seen to be too expensive, unsuited for grids plagued by instability, a novelty without a real future. Africa’s power sectors were not ready to experiment with solar, so the line went. But after 1995, in order to placate post-Rio environmentalists, a number of World Bank and UN Global Environment Facility solar projects were set up to fund off-grid rural electrification. If the inattention delayed progress in African on-grid solar by decades, these small projects play an important, if largely undocumented, role in the global solar energy story: they stimulated the use of solar by rural people.

It wasn’t until 2003 that global production surpassed 1 GW per year.

Africa’s different solar path: Solar for Access

Well before grid connected programs were launched in the North, African entrepreneurs were selling off-grid and small-scale solar systems targeted at rural projects and consumers. This goes all the way back to the early days of solar, long before the technology was financially viable or available for grid power.

Today, in Kenya, Uganda and Tanzania, if measurements are made by percentage of households with solar power systems, many rural parts of these countries have a much higher absolute penetration of solar products than Northern countries. Surveys of Kenya and Tanzania populations show that penetration rates surpass 20 percent of all rural households. But the systems in Africa are much smaller and, until recently, of much less interest to the mega green investors that today drive the industry. Depending on who is telling the story, there are different versions of how such high penetration rates among rural populations have been achieved.

Well before grid connected programs were launched in the global North, African entrepreneurs were selling off-grid and small-scale solar systems targeted at rural projects and consumers.

All of the industry actors would agree on a few fundamentals. First, 600 million people lack access to electricity in sub-Saharan Africa. For the small amounts of energy these populations use — in the form of kerosene, dry cells and cell phone chargers — they thus pay a disproportionately high portion of their incomes.

Secondly, the massive funds to roll out rural grid investments for un-electrified populations are neither available to African governments nor the multilateral groups that support grid electricity development. Conservatively estimating grid connection at $500 per household, it would cost in the order of $50 billion dollars to distribute grid electricity to the continent’s unconnected rural population. And this does not include the generation and transmission infrastructure.

Because of these costs, and the lowered costs and technological improvements made in off-grid solar over the past decade, the World Bank, investors, donor partners and the private sector agree that off-grid solar energy is the best way to quickly cover a large portion of un-connected dispersed African populations. Nevertheless, governments still focus their budgetary outlays on grid-based electrification. Their spending has largely ignored the viability of off-grid solar power for rural electrification.

Conservatively estimating grid connection at $500 per household, it would cost in the order of $50 billion dollars to distribute grid electricity to the continent’s unconnected rural population.

Finally, as more and more investors line up to finance the solar electrification of off-grid Africa, all players agree that it is the private sector that has done and will continue to do the heavy lifting to provide solar electricity to rural consumers.

It is here that the story diverges. Who should be given the credit for the widespread use of rural solar in Africa? And, more importantly, how should future investments be made in the sector? The answer depends on who you ask.

The African Pioneers

Off-grid systems were a critical part of worldwide solar sales early on and many ended up in Sub Saharan Africa.

But these days, this remarkable story of the early players is not often told.

In the 1970s, though still expensive, solar became cost-effective for terrestrial applications (as opposed to NASA satellites). In Africa, national telecoms and international development players began using solar to power off-grid applications such as repeater stations, WHO vaccine refrigerators, communication radios in refugee camps and later, lighting in off-grid projects. Solar panels and batteries replaced generators — and the need to expensively truck fuel to remote sites. Because of this demand, traders in cities such as Nairobi began to stock and sell solar systems for these specialized high-end clients.

In the 1970s… on the back of pioneer demand, a lucrative market opened up when television signals spread across cash-crop growing regions of East Africa.

On the back of pioneer demand, a much more lucrative market opened up when television signals spread across cash-crop growing regions of East Africa. Rural people with coffee and tea incomes realized that they could power black-and-white “Great Wall” TVs with lead acid car batteries. Especially in Kenya, traders selling DC TVs quickly realized that car batteries could be charged with solar panels. Since they already had strong rural distribution networks, they added solar to their rural lines and a new industry selling, solar systems, TVs, lights and music systems was born. In the 1990s, East Africa’s off-grid solar market was a small but important slice of global solar demand.

After 1995, when Nairobi traders such as Animatics, NAPS, Telesales, Chloride Solar and Latema Road shops introduced lower cost 10-watt modules and 12-volt lights to the market, demand increased exponentially. Hundreds of technicians were selling systems to rural farmers and teachers. By the turn of the century, this market pioneered by African traders was selling — and even financing — tens of thousands of single panel solar systems per year in off-grid areas of Kenya, Tanzania and Uganda.

These established businesses exploded with the emergence of cell phone markets in the mid-2000s. Suddenly, millions of rural cell phone owners needed a cheap, convenient way to charge their phones. Distribution chains, with over-the-counter sales of solar electric systems already in place, simply added the required kit for charging phones to the wares they offered. Cell phone charging, a business worth tens of millions of dollars per year, tied into the groundwork laid by small retail indigenous companies and businesses. By 2005, enterprises had sprung up in rural areas all over East Africa that were selling these systems — and village SMEs were charging cell phones, video-cinemas and kiosk refrigerators with solar.

Business exploded with the emergence of cell phone markets in the mid-2000s.

Difficulties arose as demand grew. Competition brought poor quality and counterfeit products. Dodgy traders, a lack of skilled technicians and insufficient consumer awareness began to spoil the market. Without standards or regulatory systems in place to police the industry, the reputation of off-grid solar suffered. In those early days, uneducated consumers bought poorly-designed systems and were discouraged. The reputation of solar, especially among policy makers whose energy priorities lay elsewhere, was badly tarnished.

Enter the international development community

Recognizing a market of over 600 million off-grid people, multilateral and national aid agencies (World Bank, DFID, GIZ) realized the potential of solar to support energy access. They saw that rapid changes in technology were making off-grid solar more viable. Prices of solar modules were falling. Super-efficient LED lights were becoming available. Solid state-of-the-art electronic controls, inverters, dc appliances, lithium-ion batteries and well-designed products were coming into the market. These changes, together with rising awareness, did much to improve the choices of consumers.

In 2008, the World Bank and its investment arm, the International Finance Corporation, set up Lighting Africa to support the development of off-grid solar. Lighting Africa raised awareness of solar among African policy makers, developed quality standards and laid the groundwork for corporate investment in solar companies. It stimulated a transition of the sector from NGO/donor domination to foreign investor-based models. By developing a platform that recognized the enormous opportunities for solar businesses, Lighting Africa helped roll out standards for the sector, grew in-country awareness and stimulated investment in a new generation of off-grid solar companies that designed truly innovative products. It also helped set up a trade group — the Amsterdam-based Global Off-Grid Lighting Association, GOGLA — for companies selling approved solar products.

In 2008, the World Bank and the IFC, set up Lighting Africa to support the development of off-grid solar. Lighting Africa raised awareness of solar among African policy makers, developed quality standards and laid the groundwork for corporate investment in solar companies. It stimulated a transition…from NGO/donor to investor-based models…and stimulated investment in a new generation of off-grid solar companies that designed truly innovative products.

Lighting Africa did much to bring on board local policy makers, to help improve equipment quality and to increase market size. With the involvement of the donor partners, investment flooded in and new players, predominantly Western, entered the market. Companies such as D.Light, Greenlight Planet (owner of the Sun King brand), Solar Now, Bright Life, fosera, Mobisol and Solar Kiosk brought innovative high-quality products and services. The new generation of companies revolutionized consumer choice by using professional product designers, manufactured in China and elsewhere in South East Asia, sophisticated business models and Silicon Valley investment to roll out. An industry that had largely been indigenous and self-financed had become an opportunity for big money international investors.

The disruptions accompanying the arrival of Lighting Africa were felt almost immediately. Newly agreed quality standards mostly worked for manufacturing companies with deep pockets. Companies located further down the supply pyramid — the ones near the consumers, and which had built the markets — were by and large shut out as the big money began to flow in. As far as the donors and impact investors were concerned, there were two categories of players; their money would target the first, the international manufacturers. These were the established disruptors, represented by GOGLA members and led by savvy expat social entrepreneurs from Europe and the USA.

The other category, which GOGLA now described as the “grey market”, is composed of “thousands of small businesses and technicians in Africa”: local traders, rural wholesale dukas, small-scale integrators, technicians, import-exporters, ambitious lone wolf entrepreneurs. This group, grappling with the day-to-day of basic survival and incapable of preparing grant proposals for donors or business plans for impact investors, is largely unrepresented in the international conversation. It was this group, rightly or wrongly, that was held responsible for market quality problems that, according to the new narrative, the GOGLA members would solve.

The disruptions accompanying the arrival of Lighting Africa were felt almost immediately. Newly agreed quality standards mostly worked for manufacturing companies with deep pockets. Companies located further down the supply pyramid — the ones near the consumers, and which had built the markets — were shut out as the big money began to flow in.

If the positive product and marketing innovations of Lighting Africa and GOGLA members demonstrably benefitted millions of rural consumers, their market disruption also affected the ‘grey market’ players. In donor-supported conferences, convened mostly in the West, where energy access is discussed, the narrative is that the African solar industry passed from locals to international social entrepreneurs. Even if the international social entrepreneurs had the best intentions of serving African consumers, they were also strategically positioning themselves to win the hundreds of millions of dollars of grant and impact investment finance that was coming to the sector. And everything changed with Pay As You Go.

The Birth of PAYG

Pay As You Go (PAYG) was developed on the back of mobile money. Simply put, PAYG systems are small off-grid solar systems with embedded SIM cards that enable companies to remotely collect incremental payments from consumers. The embedded SIM card can accept payments, monitor the solar system and switch it off if payments are not made. The spending history of each PAYG customer can also be tracked online, much in the same way that credit card customers are tracked.

This group, faced with day-to-day survival and incapable of preparing grant proposals for donors or business plans for impact investors, is largely unrepresented in the international conversation.

When Nick Hughes, one of the developers of M-Pesa for Vodacom, Safaricom’s UK parent company, looked to the future he saw how mobile credit among poor consumers would enable them to access a variety of products. He recognised that solar electricity for phone charging, TV and lighting would be the most sought after rural product. With Jesse Moore, he established M-Kopa Solar. Once they tested their product, M-Kopa launched outlets in Kenya, Tanzania and Uganda, where solar demand was already well-developed.

The difference between PAYG and over-the-counter sales is that PAYG can reach a lower strata of customers and, importantly, the business can be scaled. PAYG enables companies to collect payments from thousands of Base of the Pyramid (BoP) customers — and it enables consumers in turn to finance systems over much longer time periods.

When Nick Hughes, one of the developers of M-Pesa for Vodacom, Safaricom’s UK parent company, looked to the future he saw how mobile credit among poor consumers would enable them to access a variety of products.

Before PAYG, virtually all transactions in solar were cash over the counter. The PAYG business model had the potential to disrupt the old model in the way that cell phones invalidated landlines. Payments could be tracked on-line in real time. Once PAYG technology was in place and investible models established, hundreds of millions of dollars of investment flowed into off-grid companies.

Donors had funded the pilot experiences and multilaterals had established the financial and policy framework for off-grid energy access. Now international patent capital could be enthusiastically invested in PAYG solar. Indeed, since 2015, on the order of a billion dollars of impact investment has been placed in PAYG companies in Africa. M-Kopa Solar alone has attracted well over $100M in venture capital and grant money. They are not alone. Others include Off-Grid Electric (now Zola, in Tanzania, Rwanda, Ghana and Ivory Coast), Fenix (Uganda, Zambia), Mobisol (Tanzania, Rwanda, Kenya), Azuri and others.

The PAYG business model had the potential to disrupt the old model in the way that cell phones invalidated landlines.

Taken together, these PAYG companies have connected millions of customers and brought much needed resources to the energy access sector. The point of this article is not to belittle their accomplishments. In fact, building PAYG companies can only be done with deep pockets, good planning and strong teams. To succeed, companies must build market share quickly and raise multiple rounds of investment. Though PAYG players start as technology and marketing companies, they quickly become finance providers. Snowballing cash demands force PAYG companies to pass through what some call a financial “Valley of Death”. Before they have enough revenue to support a viable business, they have to spend millions on equipment and sales staff to expand their base. It is a risky, high-roller business.

Competition is stiff. Many consumers are unwilling to pay the extra costs of branded PAYG products and will regularly privilege price over international standards. In fact, most products being bought in Africa are not from GOGLA members. Shops operating in “Buy-em-Sell-em” trading streets stock a large array of equipment, much of it substandard. Moreover, PAYG companies that finance Base of Pyramid customers can lose them at any time. Drought, political disturbance or economic downturn will shut down income streams. When there is no money in the economy, vulnerable populations simply stop paying bills for solar gadgets.

Since 2015, on the order of a billion dollars of impact investment has been placed in PAYG companies in Africa.

A further problem faced by PAYG companies is that their products provide electricity services unsuited to the elastic needs of rural families. A typical PAYG solar kit comes in a neat box with a 20W module, a few lights, a charger and a battery. A consumer might be happy with such basic light and cellphone charging service initially, but consumer needs and aspirations evolve quickly. A consumer that wants a 20W system one month might desire a system twice that size six months later. The boxed set units sold by PAYG companies struggle to grow with the aspirations and needs of much of their customer base.

Today, despite the potential of the PAYG model to scale, many of the first generation of companies are in trouble, languishing in the face of ruthless competition and the challenges described earlier. In 2017, Off Grid Electric, a company that pledged to electrify one million Tanzanians, virtually pulled out of their foundation country and rebranded to attract more rounds of desperately needed finance. In Kenya, M-Kopa had to downsize and restructure its business in late 2017. Smaller companies in less lucrative markets also struggle to scale. Fenix, the largest player in Uganda, was able to avoid financial issues by selling majority shares to the global utility company Engie.

Few if any investors are making financial returns on their investments.

Despite the potential of the PAYG model to scale, many of the first generation of companies are in trouble…

In a way, the PAYG players want to have their cake and eat it too. They claim that they offer quality products and they like to say that their data-based business model is best able to deploy resources to the 600 million ‘base of the pyramid’ consumers unserved by the mainstream energy market. Their complaints, mostly to do with quality, are directed at the ‘grey market’. But they are the first in line for Western grant money and super easy-term financing to grow their companies. At international conferences, almost exclusively convened in the West, it is their polite, white faces that own the conversation.

African Traders in the Over the Counter Market Still Dominate

PAYG entrepreneurs do not acknowledge a self-evident truth: the so-called “grey market” is the market. In Africa, for bicycles, sofas, consumer electronics, dishware and roofing tiles, there has always been a range of products for consumers to choose from. Providing consumers with choice is what drives capitalism — those companies that provide the best choices for consumers at the best prices win out. The market for off-grid products was never being ruined by poor quality products any more than the market for cell phones was. Consumers learn, traders improve their product offering and manufacturers innovate.

PAYG entrepreneurs do not acknowledge a harsh truth: the so-called “grey market” is the market.

Today, the same local traders that built the supply chains in the 1980s and `90s still dominate the consumer off-grid solar market. But they do not feature in the international solar discussion. Their sales are invisible to consultants and undercounted in global reports (The GOGLA annual report, now the sectors’ bible, does not count the “grey market” and off-handedly considers it a threat to the “quality” market).

Rural people buy most of their solar from grey market traders. I’ve followed markets and conducted field research in Africa for 20 years and have the data to back it up. In Tanzania, a 2016 national census indicated that over 25 percent of the rural population own some type of solar device – this is more than a million PV systems installed almost exclusively by “grey market” traders. Recently, when conducting demand surveys in Uganda’s Lake Victoria islands, I found that 80 percent of the island populations had purchased solar systems from over-the-counter traders — virtually none had PAYG systems. In Zambia, I conducted surveys of 20 off-grid villages and found that upwards of 60% of households had grey market solar systems. In Kenya, Somalia and Ethiopia, the story is the same.

Of course, Chinese solar modules and batteries dominate over-the-counter trade. But local manufacturing also plays a major role. Kenyan battery manufacturer Chloride sells on the order of 100,000 lead acid batteries per year to the off-grid market. Its partner Solinc, which manufactures 6MW of solar modules per year in Naivasha, provides its modules to Kenyan, Ugandan, Tanzanian and Rwandan over-the-counter players in the region. This commerce, of course, is driven by hundreds of traders and solar technicians.

The driving force for the success of local traders is rural consumers. Rather than being “manipulated” by unsavoury traders, consumers have absorbed lessons; they have become more shrewd. Over decades, they have learnt about solar products and, in true do-it-yourself fashion, they have become better able to put solar systems together. They value price and short-term functionality over quality. They understand that when they want larger systems, over-the-counter players are more responsive to their needs than PAYG sellers. OTC traders can provide larger systems for growing households at a lower cost. In short, rural retailers and their largely Chinese suppliers are still more responsive to consumer needs than PAYG companies. And they are lighter on their feet.

In 2019, solar is holding its own against grid-based rural electrification. Off-grid solar is growing because the technology has numerous advantages over grid extension. If governments have been slow to invest in solar for rural households, rural consumers are voting with their pocketbooks. Solar systems work, there is an infrastructure to supply and rural consumers understand the technology.

Expat social entrepreneurs, using impact investment and international aid assistance, advanced the international agenda for off-grid solar, raised financing, developed new technology and innovated new business models. But despite hundreds of millions of dollars of investment and grant aid, PAYG companies are still losing to local players. Why? Rural traders move more product because they inhabit the markets they work in.

In a market of 600 million consumers, there is plenty of room for different business models and players across the supply chain. But the untold story of local solar traders raises a number of questions about how we should build the coming solar industry.

First, is the issue of ownership and funding opportunities. Many here are uncomfortable with the idea of an industry predominantly owned and controlled by foreigners, even if they are well-intentioned social entrepreneurs. For each successful expat social entrepreneur, there are 20 local entrepreneurs equally capable but lacking support to finance even a modest start-up. Much more can be done to level the playing field for local start-ups if these budding players are given the opportunities that have been handed to PAYG pioneers.

Second is business size. Decentralized and off-grid power is exciting because it democratizes opportunity and lowers entry costs for small players. East Africa is a region where small and medium sized entrepreneurs create the biggest opportunities and drive dynamic economies. Investor interest in scalable businesses worth hundreds of millions of dollars is driven by greed, not by common sense. Smaller players would make for a more exciting and lively solar sector. There is no reason why scores of million-dollar companies shouldn’t be supported in a healthy sector, instead of one or two behemoths.

Finally, planners should reconsider the policy focus which has thus far trained the solar market on poverty alleviation and energy access. Base of the Pyramid off-grid electrification is a race to the bottom. Unless the same subsidies that underwrite most grid-based rural electrification is made available, off-grid BoP solar will remain too risky for real finance. In Africa people are moving into cities and looking for urban-based opportunities. Many who are concerned about climate change know that getting solar on-grid and into urban energy planning will do far more to fight climate change than off-grid solar. These small-scale on-grid opportunities are where the real long-term future for solar is in Africa.

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Mark Hankins is a writer, consultant and green energy engineer based in Nairobi Kenya.

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Land Title and Evictions in the Supreme Court of Kenya

Violent evictions of families from their homes are not exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title.

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Land Title and Evictions in the Supreme Court of Kenya
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The Supreme Court of Kenya published its judgment in William Musembi v The Moi Educational Centre Co. Ltd. on the 16th July 2021. The case arose after fourteen families — the residents of two informal settlements, City Cotton and Upendo village in Nairobi — petitioned the High court following their evictions in 2013. They had lived on the land since 1968 when it was public land. The first respondent claimed that they had legitimately acquired title to the land by letters of allotment and that the land was therefore private land. According to Amnesty Kenya, the evictions began in the early morning, without warning. Groups of young men burst into homes. Four hundred homes were demolished and personal possessions were destroyed. Crowbars and sledgehammers were used. The police were present. They fired live ammunition and used teargas canisters during the operation.

In the High Court, Judge Mumbi Ngugi held that the petitioners’ rights to dignity, security, and adequate housing had been infringed. There had been a violation of the rights of children and elderly persons under the constitution. She awarded damages. At the Court of Appeal this judgment was partially set aside. While accepting that there had indeed been violations of the rights to dignity and security, the Court of Appeal nonetheless set aside the order of damages arguing that “there was no material before the court on the basis of which the orders for compensation were made” and that, because it was unable to work out how the damages had been quantified, “the only relief that should have commended itself to the trial Court was a declaration that the forced eviction and demolition of their houses without a Court order is a violation of their right to human dignity and security.” Following this, the petitioners appealed to the Supreme Court.

Importance of the Supreme Court judgment

The importance of this case is, as Gautum Bhatia has written, that it raised the question whether “the right to accessible and adequate housing could be applied inter se between private parties”. It can thus be distinguished from the same Supreme Court’s Mitu-Bell Welfare Society v The Kenya Airports Authority, which ruled on evictions from public land.

Amongst several issues for determination, the petitioners in the present case asked the court to reach a determination of the question whether the letter of allotment held by the first respondent, the Moi Educational Centre, was issued lawfully or legally. Because that question had not been conclusively determined at the High Court or at the Court of Appeal, the petitioners sought “a declaration that the acquisition of the suit property was illegal and unlawful.”

The Supreme Court declined to do this. Arguing that in the High Court Judge Mumbi Ngugi had been right in holding that the question of the propriety of the first respondent’s title was a matter for the National Land Commission and that it is the Land and Environment Court that properly has jurisdiction over this question, the Supreme Court held in William Musembi that “the title of the first respondent remains unimpeached”. Instead, it held, the only question it ought to determine was whether, in evicting the petitioners, the respondents violated the petitioners’ rights to human dignity and security, as well as the rights to housing and health.

It is on the basis of the “unimpeached” title of the first respondent that the court goes on to make its landmark finding. For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights. Recognising that “the mandate to ensure the realization and protection of social and economic rights does not extend to the first respondent” because it is a private entity which is not under any obligation to ensure the progressive or immediate realisation of those rights, the court found that private parties do nonetheless have a “negative obligation to ensure that it does not violate the rights of the petitioners.”

For Bhatia, the judgment’s significance lies partly in its finding that “a negative obligation not to interfere with socio-economic rights (such as the right to housing), …applies to both public and private parties” although he argues persuasively that “the distinction between negative and positive obligations is doing a lot of work” and that the concrete practice of evictions significantly blurs the boundary between public and private actors. He rightly notes that “evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land.”

Public and private

If the distinction between negative and positive obligations is somewhat artificial, I also want to suggest that Kenya’s history of land grabbing shows that so too is the distinction between the state and private landowners. More than just state forces doing the bidding of private landowners, wielding batons and using bullets to break into homes in the early morning, in Kenya the state/private distinction is a mirage. In William Musembi, the court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land. Instead, it affirms the first respondent’s title – and proceeds to make an important ruling on the obligations of private actors. However, the history of land grabbing and the murky past of letters of allotment is a critical one to keep at the front of our minds.

For determination by the court was the question whether the first respondent, being a private party, could nonetheless be responsible for the violation of constitutional rights.

The report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Public Land established in 2003 set out in forensic detail the illegal and irregular land awards made over the years using the mechanism of the letter of allotment. Awards of land were made to the families of Presidents Kenyatta and Moi, numerous former ministers, members of parliament and civil servants, as well as to individuals in the military and the judiciary. The report sets out how out of proximity to the state, private property owners were created. Public land – land set aside for the building of public health clinics or schools for example – mysteriously turned into private land on which malls, private residences, and diplomatic headquarters appeared. No doubt some individuals acquired perfectly legitimate letters of allotment. But from the 1970s onwards, a thriving market in improper letters of allotment developed. They came to be treated as tradable land documents. Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land. This was done in order to get the benefit of the principle that an innocent third party for value without notice takes good title. The full extent of this practice is unknown: the Ndung’u Commission warned that its report provided only a snapshot of the illegal/irregular land allocations that had taken place over the years.

I have written elsewhere that land grabbing is sedimented in Kenya’s political economy such that we can describe it as a “grabbed state”. The “normal” economy is founded on accumulation by dispossession. It is not possible to understand Kenya’s political economy without an understanding of how the normal and the supposedly abnormal are pervasively linked. Far from land grabbing being an aberrant phenomenon that can be sharply distinguished from normal business practice, the illegal and irregular appropriation of land structures Kenya’s economy.

Widely but mistakenly used as land titles (with the collusion of lawyers), they changed hands quickly in sales of grabbed land.

There is no operative distinction between the public and the private in Kenya. This makes the judgment in the present case even more consequential: given the history of these murky conversions in title, the judgment’s finding that negative constitutional obligations can attach to private actors is likely to cover a great many potential eviction scenarios. Indeed, I would argue that given the history of land described above, the court should have gone further. Grounding its reasoning in Kenya’s history of land grabbing and the dispossession and discrimination that resulted, it could have held that positive socio-economic obligations (such as providing alternative accommodation) should extend to private parties. Or it might have held that given the extent of land grabbing — which is a matter of public record — the state should not agree to enforce a court order for eviction until it is satisfied that alternative accommodation has been provided.

Entrenching private property

Welcoming the Supreme Court’s judgment, Bhatia has noted that it “continues the welcome trend of judicial scepticism towards entrenched property rights.” The court demonstrated this scepticism by extending negative constitutional obligations to private actors. However, to do so, the Supreme Court moved to confirm the respondent’s title. That title it described as “unimpeached”. The court used this as the basis for setting out the first respondent’s obligations as a private owner. The extension of constitutional obligations to private actors is to be welcomed. But it is important to recognise also that by refusing jurisdiction to question the first respondent’s title – and ruling that this is a matter for another forum – the Supreme Court effectively sanctioned the enclosure of what the appellants claimed was unalienated public land and potentially legitimated the grabbing of public land.

The court does not elaborate on the important history of letters of allotment in Kenya and the process by which they enabled public land to morph into private land.

Instead, the Supreme Court might have used Art. 23 which provides for the authority of courts to uphold and enforce the Bill of Rights, to try to fashion a remedy. It could have expressly referred the question of the integrity of the first respondent’s title to the National Land Commission rather than state as unequivocally as it did that it is unimpeached. At the very least, given the importance of a letter of allotment and the question of title in the case, the court should have rehearsed Kenya’s history of land grabbing and corruption as revealed by the Ndung’u report so as to give it judicial notice and provide a starting point for the wider task of challenging ill-gotten titles by those who might seek to do so.

Reinstating Judge Mumbi Ngugi judgment in the High Court and in particular her finding that damages should be paid to those evicted, the Supreme Court ordered the first respondents, the Moi Educational Centre, to pay fourteen families KSh150,000 (just over 1000 euros) each in damages. The government will also pay each family KSh100,000. In return, unless the National Land Commission or the Land and Environment Court are asked to rule on the propriety of the first respondent’s title and find against them, the Moi Educational Centre now hold unimpeached title to very valuable land in Nairobi. That is quite a windfall.

Violent evictions of families from their homes are not episodic and exceptional events. They go to the heart of Kenya’s political economy and its long history of valorising the rights of those who hold private title, however acquired. How far can the courts be relied upon to undo accumulation by dispossession?

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South Africa Has to Heal Its Troubled Past – and the Time Is Now

If there is no material justice and investment in healing the generations of harm enacted onto South Africans, the rot in the country’s wounds will overcome them.

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South Africa Has to Heal Its Troubled Past – and the Time Is Now
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Social unrest”—though others may prefer “riots and looting,” “food riots,” or “insurrection”—have swept South Africa since Monday. It’s unsettled an already unsettled nation. And as with all South Africa’s heightened moments, our historic fault lines have been re-exposed. Racial and ethnic divisions, class antagonisms, xenophobia, questions of violence and its use. These are some of our wounds that have never been treated. Over the last decades we’ve covered them with patriotic bandages, unity slogans and surface-level performances of a shared national consciousness. But the wounds have opened again now, and as the country bleeds, the rot is open for all to see. Flashing moments tell an incomplete but tragic story of the reality unfolding in our country.

Impoverished communities with limited prospects, rejoice as they leave megastores with stolen food and essential resources. Elderly women are seen taking medication that they otherwise could not afford. A father exits a store with nappies (diapers) for his child. Families that have struggled with eating daily meals suddenly have food for a month.

Elsewhere, in the historically Indian community of Phoenix, an elderly man is surrounded by people from a nearby  informal settlement. He is commanded that he needs to hand over his home, or otherwise will face attacks on his family in the dead of night. In the night, drive-by shootings claim lives as stray bullets shatter family homes.

Armed Indian and white “vigilantes” drive around shooting African people they assume are looters. Hunting them down while recording vicious videos, beating them with sjamboks as the person begs for their lives.

These videos are shared and watched repeatedly across social media, racially charged viewers salivate with a carnal sense of pleasure as one racial group watches the other suffer and bleed.

At least 15 people are killed by armed community members of Phoenix. They blockade roads entering the community, racially profiling people, preventing them from access to functioning supermarkets. Bodies are found in the night. #PhoenixMassacre trends on twitter echoing disgust and outrage at the anti-black sentiment within the South African Indian community.

The home of Thapelo Mohapi, the spokesperson of Abahlali BaseMjondolo, the shack dwellers movement in KwaZulu-Natal that safeguards working-class interests, has his home burnt down on Wednesday morning. Mohapi, like most in Abahlali, is outspoken against ANC corruption and political violence in the country, with Abahlali members often the targets for political killings.

Shacks burnt down in response to the looting. Reports of xenophobic attacks by the rioters. Families terrified as gunshots break their windows. Small community stores torched. Blood banks and clinics ransacked. Essential foods become scarce, gas stations close.

The excitement of people getting access to expensive TVs, furniture, alcohol, and commodities they would not be able to access otherwise. Because in South Africa we know that nice things are reserved for a minority—and you either have to be crazy lucky and gifted, or crazy devious and connected, to escape the poverty cycle.

This is the status quo of our neocolonial, violent and divided country. Every snapshot from the riots reveals a new layer of a tragedy we’re all too familiar with but have made no substantial material effort to address to this point. And now the rot in our open wound has become septic.

In the midst of all this mess and complexity, many are now left trying to make sense of where they stand regarding these riots—with the mask of a shared national consciousness being ruthlessly peeled back — some who thought they understood their political standings are having to rethink their position after being thrust into a violent situation where racial and class perceptions pre-determine their position for them.

Orchestrated or Inevitable?

Acentral question on people’s minds is who is responsible for the unfolding events. How much of it is orchestrated as part of the #FreeZuma campaign that sparked this moment with former President Zuma’s arrest, and how much is simply an overflow from the desperate situation a majority of South Africans find themselves in. The reality is, of course, complex. Reports from activists on the ground and observers indicate the riots are likely made up of multiple forces.

Some are believed to be political agents of the pro-Zuma faction of the African National Congress ANC, using chaos to fight their battle against President Cyril Ramaphosa. These agents are known to have organized the initial demonstrations and are believed by some commentators to continue funding transport for rioters and operating in the background to hamstring the local economy. Some now attribute this orchestrated terror with the targeted burning of key distribution centers, factories, network towers, and trucks.

Others involved are not politically linked to a factional ANC agenda or desire to destabilize the country. They are there because the moment has presented families with access to food under dire circumstances and the opportunity for temporary relief from the dredges of poverty. One may say that their situation is being purposefully manipulated by political agendas, but the material reality of their situation is no less real. Individuals from well-known working class organizations that are strongly anti-ANC in all forms have reported taking part in looting as the moment allowed for sorely needed aid to struggling communities.

And of course, with any mass gathering, there are simply those criminal elements who use the moment with malicious intent, stirred by past and present grudges, looking to impose power and fear on those they see as “other.” Yet, these malicious sentiments exist on both the “sides” of the rioters and those responding to them. It is every person’s right and entitlement to defend themselves, their family, and personal property from harm against malicious forces. But much of this defence and protection of what is dear  has morphed into older desires to harm, dehumanize, and kill those considered “other.” How much of our violence in the name of defence is rooted in the historic rot we’ve left untreated from colonialism, apartheid, and a world that hates poor people?

Military intervention

Many are in support of the President Cyril Ramaphosa’s position that the army be deployed to quell the riots, looting, and violence. They argue for an armed, militant, and potentially lethal response.

Part of this rationale is in response to the signs of orchestration and mobilization by pro-Zuma political forces. As some of the actions show signs of being organized and targeted strikes, they will not subside organically and so the use of intelligence and organized force would be necessary to intervene. This tactical move acts in support of the President Cyril Ramaphosa and preserving the current status quo of South Africa.

The other reason is that the racial conflict between communities has reached such a heightened state that many fear an echo of the Durban Riots of 1949. With armed vigilantes enacting destruction, racial profiling, and vicious killing onto those they brand “looters”—  and the responsive revenge cycles this opens up—there can be no road that does not lead to further death. And right now there is no Steve Bantu Biko and his dear friend Strini Moodley to lead us back on the path towards a more human face.

However, even in the face of this leadership vacuum, military intervention is short sighted, ahistoric, and temporary at best. The wounds are all open now, the military cannot heal, only repress.

Ultimately the scale and intensity of these riots have very little to do with political infighting within the ANC and the tensions between communities could not be set alight if there was not already kindling of unresolved tensions. The material conditions of South Africa indicate that it’s been ripe for mass political uprising for years now. With grants cut under lockdown, youth unemployment over 70%, service delivery a mess or none existent, trust in government, media and political parties at record lows—there seems to be meagre hope for South Africans on the wrong side of the poverty line—and very little to lose.

Whether it’s an orchestrated plot by devious political agendas, a student throwing poop on a colonial statue or an increase in bread prices as was seen in South America—a spark is all that’s needed to set alight a desperate people.

The best case scenario with military intervention this time is further repression of people’s material frustrations. If people die, the situation becomes further inflamed. When the next spark goes off the riots will be more organized, with living memory of the injustices of this moment. And if not organized by our dysfunctional Left, it will be led by reactionary forces. Most dangerous of all is, as with other examples from history, as military forces play a greater role in a country’s internal policing, they become more used to enacting power over its populace, and ambitious autocrats rise up their ranks in military command.

With military intervention, we admit that the violence and death that will be enacted on the working class populace is worth a return to South Africa’s abnormal normal. The violence of this moment simply transferred back to those who held it silently a week ago.

Repression and military enforcement of a violent status quo is not the answer. Material conditions need to change, people need to be fed, grants need to be returned and our septic wounds that have laid open for centuries need urgent attention.

If there is no material justice and investment in healing the generations of harm enacted onto us—and by us—the rot in our wounds will overcome us. And we will become the rot.

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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They Are Watching You: Israeli-Made Spyware Used to Monitor Journalists and Activists Worldwide

The use of spyware to surveil, harass, and intimidate journalists and activists — and those close to them has become a key activity for many governments worldwide.

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They Are Watching You: Israeli-Made Spyware Used to Monitor Journalists and Activists Worldwide
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In Hungary, Szabolcs Panyi exposed spy intrigue and murky arms deals. In India, Paranjoy Guha Thakurta probed the ties between business and political interests. In Azerbaijan, Sevinj Vaqifqizi caught vote-rigging on tape.

Separated by thousands of miles, these journalists have one thing in common: their governments considered them a threat.

All three were among dozens of journalists and activists around the world whose smartphones were infected by Pegasus: spyware made by Israeli firm NSO Group that is able to secretly steal personal data, read conversations, and switch on microphones and cameras at will.

The attacks were revealed by The Pegasus Project, an international collaboration of more than 80 journalists from 17 media organizations, including OCCRP, and coordinated by Forbidden Stories.

What Does ‘Selected for Targeting’ Mean?

The phones of Panyi, Thakurta, and Vaqifqizi were analyzed by Amnesty International’s Security Lab and found to be infected after their numbers appeared on a list of over 50,000 numbers that were allegedly selected for targeting by governments using NSO software. Reporters were able to identify the owners of hundreds of those numbers, and Amnesty conducted forensic analysis on as many of their phones as possible, confirming infection in dozens of cases. The reporting was backed up with interviews, documents, and other materials.

The strongest evidence that the list really does represent Pegasus targets came through forensic analysis.

Amnesty International’s Security Lab examined data from 67 phones whose numbers were in the list. Thirty-seven phones showed traces of Pegasus activity: 23 phones were successfully infected, and 14 showed signs of attempted targeting. For the remaining 30 phones, the tests were inconclusive, in several cases because the phones had been replaced.

Fifteen of the phones in the data were Android devices. Unlike iPhones, Androids do not log the kinds of information required for Amnesty’s detective work. However, three Android phones showed signs of targeting, such as Pegasus-linked SMS messages.

In a subset of 27 analyzed phones, Amnesty International researchers found 84 separate traces of Pegasus activity that closely corresponded to the numbers’ appearance on the leaked list. In 59 of these cases, the Pegasus traces appeared within 20 minutes of selection. In 15 cases, the trace appeared within one minute of selection.

The strongest evidence that the list really does represent Pegasus targets came through forensic analysis.

Amnesty International’s Security Lab examined data from 67 phones whose numbers were in the list. Thirty-seven phones showed traces of Pegasus activity: 23 phones were successfully infected, and 14 showed signs of attempted targeting. For the remaining 30 phones, the tests were inconclusive, in several cases because the phones had been replaced.

Fifteen of the phones in the data were Android devices. Unlike iPhones, Androids do not log the kinds of information required for Amnesty’s detective work. However, three Android phones showed signs of targeting, such as Pegasus-linked SMS messages.

In a subset of 27 analyzed phones, Amnesty International researchers found 84 separate traces of Pegasus activity that closely corresponded to the numbers’ appearance on the leaked list. In 59 of these cases, the Pegasus traces appeared within 20 minutes of selection. In 15 cases, the trace appeared within one minute of selection.

In a series of responses, NSO Group denied that its spyware was systematically misused and challenged the validity of data obtained by reporters. It argued that Pegasus is sold to governments to go after criminals and terrorists, and has saved many lives. The company, which enjoys close ties to Israel’s security services, says it implements stringent controls to prevent misuse. NSO Group also specifically denies that it created or could create this type of list.

But instead of targeting only criminals, governments in more than 10 countries appear to have also selected political opponents, academics, reporters, human rights defenders, doctors, and religious leaders. NSO clients may have also used the company’s software to conduct espionage by targeting foreign officials, diplomats, and even heads of state.

Based on the geographical clustering of the numbers on the leaked list, reporters identified potential NSO Group clients from more than 10 countries, including: Azerbaijan, Bahrain, Hungary, India, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia, Togo, and the United Arab Emirates.

Journalists and Activists in the Crosshairs

In the coming days, OCCRP and other Pegasus Project partners will release stories highlighting the threat of surveillance through misuse of NSO Group software around the world. But to start with, we will focus on some of the most egregious cases: the use of spyware to surveil, harass, and intimidate journalists and activists — and those close to them.

Among those on the list were multiple close relations of Jamal Khashoggi, the Washington Post columnist who was murdered and dismembered by Saudi operatives in the country’s Istanbul consulate. Forensic analyses show that Khashoggi’s Turkish fiancée, Hatice Cengiz, and other loved ones and colleagues were successfully compromised with NSO Group software both before and after Khashoggi’s 2018 killing. (NSO Group said that it has investigated this claim and has denied its software was used in connection with the Khashoggi case.)

Sandra Nogales, the assistant of star Mexican journalist Carmen Aristegui, was also targeted with Pegasus through a malicious text message, according to a forensic analysis of her phone.

Aristegui had already known that she was a Pegasus target. Her case was featured in a 2017 report by Citizen Lab, an interdisciplinary laboratory at the University of Toronto. Still, “it was a huge shock to see others close to me on the list,” Aristegui told The Pegasus Project.

“My assistant, Sandra Nogales, who knew everything about me — who had access to my schedule, all of my contacts, my day-to-day, my hour-to-hour — was also entered into the system.”

Several reporters in OCCRP’s network were among the at least 188 journalists on the list of potential targets. They include Khadija Ismayilova, an OCCRP investigative journalist whose uncompromising reporting has made her a target of the kleptocratic regime of the country’s president, Ilham Aliyev. Independent forensic analysis of Ismayilova’s Apple iPhone shows that Pegasus was used consistently from 2019 to 2021 to penetrate her device, primarily by using an exploit in the iMessage app.

Ismayilova is no stranger to government surveillance. Roughly a decade ago, her reporting led her to be threatened with compromising videos that she learned to her horror had been shot with hidden cameras installed in her home. She refused to back down, and as a result had the footage broadcast across the internet.

But even after this, Ismayilova was shocked by the all-consuming nature of her surveillance by Pegasus.

“It’s horrifying, because you think that this tool is encrypted, you can use it… but then you realize that no, the moment you are on the internet they [can] watch you,” Ismayilova said. “I’m angry with the governments who produce all of these tools and sell it to the bad guys like [the] Aliyev regime.”

Panyi and his colleague András Szabó, both OCCRP partner journalists in Hungary, also had their phones successfully hijacked by Pegasus, potentially granting their attackers access to sensitive data like encrypted chats and story drafts. As investigative journalists at one of the country’s few remaining independent outlets, Direkt36, they had spent years investigating corruption and intrigue as their country became increasingly authoritarian under the rule of Prime Minister Viktor Orban.

Now they found out that they were the story.

For Panyi, the descendant of Jewish Holocaust survivors, something stung in particular: that the software had been developed in Israel, and exported to a country whose leadership regularly flirts with antisemitism.

“According to my family memory, after surviving Auschwitz, my grandmother’s brother left to Israel, where he became a soldier and soon died during the Arab-Israeli war of 1948,” Panyi wrote in a first-person account of learning he had been hacked. “I know it is silly and makes no difference at all, but probably I would feel slightly different if it turned out that my surveillance was assisted by any other state, like Russia or China.”

The alleged surveillance list includes more than 15,000 potential targets in Mexico during the previous government of President Enrique Peña Nieto. Many were journalists, like Alejandro Sicairos, a reporter from Sinaloa state who co-founded the journalism site RíoDoce. Data seen by The Pegasus Project show Sicairos’ phone was selected as a target for NSO Group’s software in 2017 shortly after his colleague, prominent journalist Javier Valdéz, was shot dead near RíoDoce’s office.

Others on the list were regular people thrust into activism by Mexico’s chaos and violence. Cristina Bautista is a poor farmer whose son, Benjamin Ascencio Bautista, was one of 43 students abducted in Iguala, in the Mexican state of Guerrero, in 2014 and remains missing until this day. The case shook Mexican society to its core and prompted Bautista and other parents to take to the streets in protest, and to assist independent experts in their own investigations.

The vocal stance taken by Bautista and other parents put them directly in the sights of Mexican authorities and Peña Nieto, who denounced the protests as destabilizing the country.

“Oh yeah, they were watching us! Whenever we went, a patrol followed us,” she said.

“They were chasing us.”

A “Natural Tool” for Autocrats

While The Pegasus Project exposes clear cases of misuse of NSO Group’s software, the company is just one player in a global, multi-billion-dollar spyware industry.

Estimated by NSO managers to be worth approximately $12 billion, the mobile spyware market has democratized access to cutting-edge technology for intelligence agencies and police forces that, in years past, could only dream of having it.

“You’re giving lots more regimes an intelligence service,” said John Scott-Railton, a senior researcher at Citizen Lab. “Like a foreign intelligence service in a box.”

Like many private spyware companies, NSO Group’s stock in trade is so-called “zero-day exploits” — previously undiscovered flaws in commercial software that can allow third parties to gain access to devices, such as mobile phones. Pegasus and other top tools enjoy a particular strength: They are often able to infect devices silently, without the user even having to click a link.

Such tools have given governments the edge amid the widespread adoption of encrypted messaging applications, such as WhatsApp and Signal, which otherwise supposedly allow for users to communicate beyond the reach of state surveillance. Once devices are successfully compromised, however, the contents of such apps become readily available, along with other sensitive data like messages, photographs, and calls. Meanwhile, the ubiquity of mobile phone cameras and microphones means they can be easily accessed by spyware clients as remote recording devices.

While The Pegasus Project exposes clear cases of misuse of NSO Group’s software, the company is just one player in a global, multi-billion-dollar spyware industry.

“In order to bypass [encrypted messaging] you just need to get to the device at one or the other end of that communication,” said Claudio Guarnieri, head of Amnesty International’s Security Lab. Pegasus does just that. “Pegasus can do more [with the device] than the owner can. If Signal, for example, encrypts the message… [an attacker] can just record using the microphone, or take screenshots of the phone so you can read [the conversation]. There is virtually nothing from an encryption standpoint to protect against this.”

In fact, there isn’t much anyone can do to protect themselves from a Pegasus attack. Guarnieri is skeptical of applications that claim they are completely secure, and instead recommends mitigating the risks of spyware by practicing good cybersecurity hygiene. “Make sure to compartmentalize things and divide your information in such a way that even if an attack is successful, the damage can be minimized.”

At its heart, The Pegasus Project reveals a disturbing truth: In a world where smartphones are ubiquitous, governments have a simple, commercial solution that allows them to spy on virtually whoever they want, wherever they want.

“I think it’s very clear: Autocrats fear the truth and autocrats fear criticism,” said Scott-Railton of Citizen Lab.

“They see journalists as a threat, and Pegasus is a natural tool for them to target their threats.”

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