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The Great Flying Crane Heist

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As the Museveni government rolled out plans to revive Uganda Airlines, was the president’s brother-in-law caught with his hands in the cookie jar? MARY SERUMAGA celebrates a rare victory for a vigilant public.

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The Great Flying Crane Heist
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28 March 2019 was a good day for the Ugandan people. In fact, the entire week will go down in history as the one in which Government was forced to back down from an attempted fraud. There has been a whiff of scandal in the air since the President announced plans to revive Uganda Airlines last year. Created by statute in 1976 and privatised in 2001, the plan was to revive the airline through a Public Private Partnership scheme. With the public still reeling from revelations that an intended PPP for the construction of a private hospital has been transformed into a $300 million build-and-operate contract awarded to a shady Italian firm called Finasi, and wholly financed by a promissory note from Government, last week was the wrong time to attempt the flying crane heist.

The country is notorious for disastrous PPPs. In 2017 the Auditor General reviewed the functions of the PPP Unit and reported: “The position of Director (head of the PPP Unit) had not been substantively filled despite its critical importance to the functioning of the Unit and the PPP Committee. The current Head of the Unit has been in acting capacity since 2015. In addition, the key positions of the PPP unit such as communication expert, project finance expert, legal expert, technical expert, and technical specialist were also vacant. This means that the PPP unit cannot provide the technical, financial and legal expertise to the PPP Committee and project teams established by contracting authorities as required under the Act.” [Emphasis mine]

Who owns the new Uganda Airlines? It does not appear on the books of Uganda Development Corporation, the investment arm of government. The Auditor-General does not include it in his tables of State enterprises, either active or dormant.

This writer commented at the time that keeping all the key technical positions vacant enabled the junta to override the functions of the PPP Unit and implement projects over which there has been no technical, financial or legal oversight.

An old rumour has resurfaced that Sam Kutesa, the President’s brother-in-law and Minister for Foreign Affairs, acquired the brand ‘Uganda Airlines’ and required billions of shillings in compensation to surrender it to the State.

As with the contract to build Lubowa Hospital awarded to Finasi, so with the formation and financing of Uganda Airlines. No procurement procedures were apparent when aeroplanes were ordered, two of which are to be delivered this April at a cost of UGX 280 billion ($75,380,200.00). Nobody could or would answer the question: who owns the new Uganda Airlines? It did not appear on the books of Uganda Development Corporation, the investment arm of government. The Auditor-General did not include it in his tables of State enterprises, either active or dormant, loss-making or profitable.

Privatisation has generally been a massive looting exercise by the junta that rules Uganda. Various family members own or owned various assets divested by the State. Caleb Akandwanaho (aka Gen. Salim Saleh), the President’s immediate younger brother, was forced to resign his seat in parliament after fraudulently acquiring Uganda Commercial Bank.

An old rumour has resurfaced that Sam Kutesa, the President’s brother-in-law and Minister for Foreign Affairs, acquired the brand ‘Uganda Airlines’ and required billions of shillings in compensation to surrender it to the State. Kutesa’s censure by parliament in 1999 for the irregular acquisition of the once State-owned cargo and ground handling service company, the only profitable part of the privatised Uganda Airlines was still fresh in people’s minds. That same year, a parliamentary committee was set up to investigate the sale of the ground handling service to Kutesa’s Entebbe Handling Services (ENHAS) and the sovereign routes.

Privatisation has generally been a massive looting exercise by the junta that rules Uganda. Various family members own or owned various assets divested by the State. Caleb Akandwanaho (aka Gen. Salim Saleh), the President’s immediate younger brother, was forced to resign his seat in parliament after fraudulently acquiring Uganda Commercial Bank, the country’s largest commercial bank.

In a report, policy researcher, Wairagala Wakabi noted:

“At the time, the World Bank noted these and other serious flaws in the privatisation programme. It said a number of privatisation transactions had been unsuccessful and “the program has been widely criticised for non-transparency, insider dealing, conflict of interest and corruption.” Besides this, the Privatisation Unit, the agency responsible for carrying out privatisation, was unable to collect many outstanding payments for firms which were sold on a deferred payment basis, and questions had been raised about the use of the funds in the divestiture account.” Bringing affordable telecommunications services to Uganda: A policy narrative and analysis W. Wakabi, 2009.

The current re-nationalisation is proving to be just as opaque. The facts relating to the ownership of the resuscitated Uganda Airlines only began to emerge when the Ministry of Works had to submit a request for a budget supplement to complete payment for the planes. Although the order had been made months earlier, there was no provision for it after Export Development Canada pulled out of negotiations in September 2018. At the time, Canada’s action was thought to be related to the state brutality that erupted in Arua in August. Whatever the reason, the aircraft were ready for delivery this April after payment. The public maintained pressure on government via social media and two opposition MPs Joy Atim Ongom and Winnie Kiiza led the charge in the House. The Ministry tabled its request before a belligerent Parliament. The first objection was that the State had been allocated only two out of two million shares (0.0001%) in Uganda National Airlines Company Limited, (UNAC) the new entity that was going to run the airline. The 1,999,998 unallocated shares became the focus. To whom did they or would they belong? Is UNAC in fact a State Enterprise?

The first objection in Parliament was that the State had been allocated only two out of two million shares (0.0001%) in Uganda National Airlines Company Limited, (UNAC) the new entity that was going to run the airline.

The risk was that having passed UNAC off as a State enterprise thereby securing State funding, the drivers of the project – who remain unknown – could then allocate shares to ‘investors’ via the usual middlemen. The experience of Uganda Telecoms is indicative of this modus operandi.

In the beginning, the State held a 49 percent stake in UTL, selling 51 percent to investors. UTL also retained residual rights to license value added services. Currently the State holds only a 31 percent stake. Furthermore, no value-added service provider can operate without getting past MTN, a potential competitor allowed to begin operating before UTL , formerly the telecoms segment of the old state-owned Uganda Posts and Telecommunications Company, had been relaunched. With its history, infrastructure and brandname, MTN therefore holds a massive advantage in the telco market.

Minister Azuba Ntege gave an uncharacteristically embarrassed response for the NRM government and withdrew the submission to ‘correct the errors.’ The Speaker allowed her a day. The following morning the Minister arrived with fresh forms, updated to allocate 100 percent of UNAC shares to government.

“The sale of the 18 percent public holding was queried by the Public Accounts Committee not least because it flouted the requirement that the shares be valued by at least three qualified valuers (and not a mere broker) and advertised for sale to attract the best offer,” explains Wakabi in his report.

The Uganda Airline operators, whom the Ministry of Works is fronting, have been less fortunate. Minister Azuba Ntege gave an uncharacteristically embarrassed response for the NRM government and withdrew the submission to ‘correct the errors.’ The Speaker allowed her a day. The following morning the Minister attended the Budget Committee with fresh forms, updated to allocate 100 percent of UNAC shares to government. At that point the registrar of companies, Uganda Registration Service Bureau (URSB), announced that the updated articles and memo of the company were null and void. One reason for this was that the share allocation did not reflect the history of the initial allocation of two shares.

During the UNAC debate, Movement MPs pleaded that the State was days away from penalties for non-payment; an earlier deadline had been missed in December and the $27 million deposit stood to be lost.

It seems the effect was that a new entity was being formed with an initial allocation of 100 percent of the shares to the State. If so, that would have raised the question: who ordered the Bombardiers in 2018? It could not have been a company formed in March 2019. The question remains unanswered. Another mystery centres on the entity called Uganda Airlines Limited registered in 1999 and which has had no operations since. URSB even wrote to government in 2017 advising them that Uganda Airlines Ltd could be operationalised. Government preferred to register the new entity, UNAC Limited, in January 2018.

During the UNAC debate, Movement MPs pleaded that the State was days away from penalties for non-payment; an earlier deadline had been missed in December and the $27 million deposit stood to be lost. None addressed the issue that the State was in fact not liable in the event of UNAC defaulting.

A third set of papers was presented with effusive apologies from both ministers: “The registration process had gaps and I regret on behalf of myself, ministry and government. I beg to withdraw those documents,” apologised Minister Ntege. They now held all the shares in their capacities as public servants and not individuals. The government had no option but to accept radical amendments to the report of the Budget Committee that had spearheaded the defence against this latest attempt to raid the Treasury.

We are not out of the woods yet. There remains the issue of the two Airbus A330 aircraft ordered from Rolls Royce. It must be pointed out that the vendor, Rolls Royce has a long record of engaging in the kind of business practices for which Patrick Ho was convicted.

The ownership issue was sorted out with a resolution to transfer UNAC to Uganda Development Corporation. Ground handling services are to be re-nationalised regardless of the fact that Kutesa has allegedly sold ENHAS to NAS, allegedly a Kuwaiti entity. It is worth noting that there were rumours of this transaction around the same time that one Patrick Ho was being indicted in a New York court in 2017 for bribing both Kutesa and the President for oil and other business rights. (When Enhas was mentioned in parliament, Beatrice Anywar MP, who recently deserted the Opposition front bench for the NRM, was seen to leave her seat and in highly unorthodox fashion, whisper in to the ear of the Deputy Speaker. He waved her away).

We are not out of the woods yet. There remains the issue of the two Airbus A330 aircraft ordered from Aerospace and powered by a Rolls Royce engine.

In this case there should be more time to scrutinize the business case for the investment, something not done with the earlier ones because of the payment deadline. It must be pointed out that Rolls Royce, which issued a press release welcoming Uganda’s decision and looking forward to developing its relationship with Uganda Airlines, has a long record of business practices for which Patrick Ho was convicted.

Due diligence demands that Ugandans ask: Who negotiated with Rolls Royce for the Airbus aircraft? Did they receive a bribe? Having interrupted a burglary in progress, they need to be on the lookout for other attempts to milk the Treasury.

Following an investigation by the UK’s Serious Fraud Office, it was found that Rolls Royce exchanged bribes for business with officials across the globe. The operation continued for 24 years before Rolls Royce reached a Deferred Prosecution Agreement (DPA) in 2017 under which individual officials would not be prosecuted but Rolls Royce would pay penalties of US$800 million for bribery in Angola, Nigeria and South Africa as well as Azerbaijan, Brazil, India, China, Indonesia, Iran, Iraq, Kazakhstan and Saudi Arabia.

The judge found:

“v. […] substantial funds being made available to fund bribe payments.

vi) The conduct displayed elements of careful planning.”

Due diligence demands that Ugandans ask: Who negotiated with Rolls Royce for the Airbus aircraft? Did they receive a bribe? Having interrupted a burglary in progress, they need to be on the lookout for other attempts to milk the Treasury through this enterprise. The greatest weakness is that private operating capital will have to be found because Isimba and Karuma Dams are ahead of the airline in the financing queue and have not yet found the public funds needed to transmit the power they will generate. There is also the proposed oil pipeline and refinery for which investors are either not forthcoming or remain cautious. How the shares are sold and to whom is key.

Regarding any compensation for ground handling, if this service was illegally carved out of Uganda Airlines and in fact led to its collapse and sale, there should be no obligation to compensate NAS. It would be interesting to find out if in fact NAS is not Sam Kutesa in disguise.

With respect to the Airline, parliament adopted a business plan that they have not seen and whose profitability is questionable. It may have made sense for private individuals to own 99 percent of it, and operate a business for which all funding and liabilities are borne by the government, but it may not make sense for government to own 100 percent, and operate an airline when other regional airlines are struggling. Previous efforts by private entities in Uganda have not been successful, all but one failing for lack of cash, a shortage of which, incidentally, is also haunting Government.

In 2020, the grace period on 19 loans (including for the Entebbe Airport expansion and the Expressway) will expire requiring government to allocate 65 percent of her revenues to debt servicing. With 44 percent of revenues currently being devoted to debt service, the economic situation is already untenable for the majority who use neither the airport nor the expressway. The fiscal crunch is characterised by drug-stock-outs in health centres and lack of teaching materials in State schools. Feeder roads by which smallholders (80 percent of the population) transport their produce are in a dire state. Their maintenance requires UGX 800 billion ($215 million) a year but the government was only able to manage a fixed amount of UGX 417 billion for the three years up to June 2018.

In A brief chronological history of Uganda Airlines, Kikonyogo Douglas Albert gives an insight into the vicissitudes of the air transport sector. In 2001 Africa One opened and closed within the year owing to limited capitalization; East African Airlines with a single ageing Boeing 737-200 running flights within East Africa, to Dubai and South Africa lasted five years before an investment shortfall forced it to close in 2007. Royal Daisy Airlines founded in 2005 lasted five years.

Government ventured back into the industry in 2006, investing in a 20 percent share of Victoria International Airlines regular flights to South Africa, Sudan and Nairobi. This venture too suffered from inadequate capitalization and closed after only 2 months. Finally, the Aga Khan Group’s Air Uganda started regional operations in 2007 and stopped in 2014 after the International Civil Aviation Authority Organization November raised technical queries.

Signs of incompetent management have manifested sooner than expected. Although the Ministry states 12 pilots have been recruited at UGX 42m ($11,307) a month and 12 co-pilots at UGX 38 m ($10,230.17), and promised Parliament to table their professional records, on 31 March it transpired the airline may actually not have pilots. Documents were leaked to NTV Uganda investigative journalist, Raymond Mujuni, showing that owing to a dispute over pay, they have not reported to work objecting to salaries apparently lower than those of Kenya Airways and Rwandair pilots. The pilots also want permanent terms (which would make them eligible for massive pensions – Uganda has no public service pensions fund and billions are owed to Uganda Communications Employees Contributory Pensions Scheme (UCECPS) pensioners in arrears).

The airline immediately tweeted a disclaimer urging the public to ignore the report. Given the choice of R. Mujuni, a competent investigative journalist, and the shady airline company, a vigilant public might be more inclined to believe the pilots are on strike. Now that it is a public enterprise, the Auditor General and Inspector General of Government will need to pay particular attention to the Flying Crane. An important line of enquiry is whether the jobs were advertised and whether or not the recruits are beneficiaries of the controversial State House scholarship scheme, the educational arm of the junta.

As it is, the airline is to be launched in April. So far there has been no marketing of the maiden flight. The challenges ahead notwithstanding, after 33 years of fiscal abuse by Yoweri Museveni’s regime, Uganda was able to stop another heist of public funds. What made it even more beautiful was the fact that the methods used were parliament and the media.

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Mary Serumaga is a Ugandan essayist, graduated in Law from King's College, London, and attained an Msc in Intelligent Management Systems from the Southbank. Her work in civil service reform in East Africa lead to an interest in the nature of public service in Africa and the political influences under which it is delivered.

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Why #EndSARS Matters in an Era of Increasing Militarisation and Repression

In Nigeria, protests against police brutality are mounting. In Kenya, however, new security laws that undermine police and military accountability are being passed.

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The death of George Flyod in the United in May 2020 mobilised a global response around racialised police brutality. The manifestation of racism in policing in the US struck a chord across the world because it recuperated conversations on structural racism across Europe in particular. Europe had opportunistically argued that the nature of racism in the US was unique because of slavery. In this process, European countries set aside their colonial histories to elide responsibility for vestiges of structural racism left in former colonies, embedded in contemporary global economic and political systems and existing within their territories today. The rise of neo-nationalist and fascist political parties across Europe offers the starkest reminder of the folly of racism denialism.

At the height of the Black Lives Matter protests, I was asked why “Africans are not protesting in solidarity”. There was an implicit assertion in these comments that because Africans were not on the streets en masse at a time when COVID-19 restrictions had just been instituted, conversations on policing and security are not a well-developed site of activism, policy influencing and scholarly work in Africa. The comments also reflected ignorance of the fact that a critical security analysis would show how colonial pasts have shaped policing and militarisation of the continent today.

The ongoing #EndSARS protests in Nigeria foreground the similarities in the architecture that shaped the Black Lives Matter movement and the #SayHerName campaign, which raises awareness about the often invisible names and stories of black women and girls who have been victims of racist police violence The similarities here lie in the regimes of carcerality that shape how black people are policed globally. Carcerality refers to the collision of ideological, economic and legislative initiatives that develop punitive frameworks to inform how governments understand, use, respond to, and create “crime”. Massive financial investments in law enforcement, surveillance technology and a commitment to aggressive punishment regimes form part of this framework. Carceral regimes are always racialised, gendered and classed, and driven by a logic that large sections of the population need to be violently managed through the regularisation of securitisation regimes, ostensibly to protect the privileged.

As we hold space for Nigerians agitating for better ways to govern their security and safety, I turn to Kenya to draw similarities to these carceral regimes. The central argument here is that we cannot delink the conversations to defund the police in the US and #EndSARS in Nigeria from broader debates around increasing militarisation across African countries as part of a claim to dealing with insurgent groups. The convergence between increased security expenditure, surveillance and domestic policing occurs in contexts (as I have argued elsewhere), where the socio-economic conditions that impoverish the majority remain ignored by the political class while security expenditure is ramped up. The contradiction between increasing resources to criminalise and incarcerate people impoverished by government policies rather than curb the conditions that create a lack of freedom, safety and security is stark.

Securitisation and militarisation of Kenya

In chronicling the legislative amendments and tracing the accompanying increases in security expenditure in Kenya, I offer a window into how governments develop and sustain paramilitary and/or policing units that operate extrajudicially. Parliaments, as primary sites within which these laws are passed, and the politicisation of security generate the power for units such as Nigeria’s Special Anti-Robbery Squad (SARS) to act outside the law.

Kenya’s military expenditure rose to Sh121.82 billion in 2019, up from Sh116.19 billion in 2018. This is a rise from the 2018/19 spending of Sh109 billion to Sh121 billion. In 2017, the Kenya government received, Sh1 billion worth of drone equipment to help with anti-terrorism surveillance. This increased expenditure occurs against the backdrop of legal amendments in 2015 that increased the role of the Kenya Defence Forces (KDF) in domestic security and that removed the role of Parliament in providing parliamentary oversight on the budget and functions of KDF and the requirement for the Defence Cabinet Secretary to report to Parliament. The amendments also gave the chief of the defence forces the authority to deploy KDF in civilian operations and established an auxiliary reserve force comprising forest guards and the National Youth Service to be deployed alongside KDF in situations of emergency, unrest and disorder.

The convergence between increased security expenditure, surveillance and domestic policing occurs in contexts where the socio-economic conditions that impoverish the majority remain ignored by the political class while security expenditure is ramped up.

This increase in military expenditure and legislative cushioning is extended to the militarisation of the police through the modernisation programme. In 2017, the government unveiled 500 police vehicles, including 25 mine resistant personnel carriers and 30 armoured personnel carriers, which were to be deployed to various “hot spot areas”. During the 2017 general elections, paramilitary units, such as the General Service Unit (GSU), the administration police and the Kenya Wildlife Service, used excessive lethal force to disperse protests mainly in opposition areas, which led to loss of life.

The range of security amendment laws in Kenya undermine accountability measures embedded in the 2010 constitution that were aimed at rectifying a history of police brutality under a broader climate of repression. For example, the 2014 omnibus of Security Laws (Amendment) Act, which included the Prevention of Terrorism Act, was passed with limited public participation. The Act imposes exorbitant fines and prison sentences that impact the freedom of the press and independence by making it harder to expose and criticise human rights violations by security forces and by prohibiting the public broadcasting without police permission information “that is likely to undermine security operations”. The Act also places restrictions on freedom of assembly and association in a context characterised by government hostility to non-government organisations. Within these amendments, the National Intelligence Service (NIS) Act expanded the powers of the NIS to arrest and detain suspects, to carry out covert operations, to search and seize private property, and to monitor communications in any act that poses a threat to national security without a court warrant. These are provisions that closely mirror UK and US counterterrorism laws.

These amendments have also watered down the oversight responsibilities of the Independent Policing Oversight Authority (IPOA), which was established in 2011 to provide independent oversight of the police by conducting investigations, audits and monitoring. The 2015 Statute Law (Miscellaneous Amendments Bill) amends section 14 of the Independent Policing Oversight Authority (IPOA) Act by limiting access to information and evidence against rogue officers. It effectively reduces IPOA’s power to check police excesses and places its investigative capabilities in the hands of the police command. Further power was handed to the President to remove the chairperson or members of IPOA by sidestepping the need for a recommendation from a tribunal, thereby concentrating power in the Executive and the presidency.

As calls to hold the Nigerian government accountable get louder, we should equally pay attention to the commonalities in the policing architecture across Africa and the logics that underpin them. We should also track the international financial and training resources that go towards security sector reform and modernisation projects across Africa. It is in a broader conversation about transnational security regimes – which criminalise, securitise and police through “othering” – that effective transnational solidarity and collective action can emerge.

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Climate Politics: The Grand Plan to Save Forests Has Failed

Communities that live and work in African woodlands must become central to conservation efforts.

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Climate Politics: The Grand Plan to Save Forests Has Failed
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At the 13th Conference of the Parties (COP 13) in 2007, parties to the United Nations Framework Convention on Climate Change (UNFCC) agreed to a grand plan to use forests to “save the world” from the climate change crisis. Reducing emissions from deforestation and forest degradation in developing countries (named REDD+) was born out of the recognition that forest conservation can significantly reduce greenhouse gases (GHGs). The premise for REDD+ is straightforward: tropical forests are the world’s lungs, storing roughly 25 percent (300 billion tons) of the planet’s terrestrial carbon dioxide—a greenhouse gas. However, since 1990, more than 420 million hectares of forests have been chopped down to make way for farms, housing and shopping malls, releasing carbon dioxide into the atmosphere and reducing the storage capacity of the forests.

REDD+ proposes a simple solution. Developed countries do not want developing countries to “make the same mistake” of forest-dependent economic development and so are willing to compensate developing countries for this “lost opportunity.” For example, the US cleared up 90% of its virgin forests between 1600 and 1900 on its way to industrialization. As part of reducing their emissions, rich countries and their corporations can help “save” a tropical forest and claim the resulting carbon credits. Practically saving or conserving a forest could mean funding for the conversion of forests into protected areas, paying local communities to move from forest-dependent livelihoods to alternative livelihoods, or a focus on conserving forests and tree species—like Grevillea robusta, Pinus radiata, Spekboom or Eucalyptus—that are good for the capture of carbon but of little tangible value to local communities.

While the rationale and mechanism of REDD+ seem straightforward, the implementation and the results have been unsatisfactory and mired in controversy. Twelve years of REDD+ have been unable to significantly reduce deforestation. In places like Mai-Ndombe in the Democratic Republic of the Congo (DRC), REDD+ has failed to both halt deforestation and benefit local communities. While architects of the program, who mostly reside in the West, are concerned with clean air and greenhouse gasses, custodians of the majority of the forests in developing countries, including indigenous people and forest-dependent communities, are thinking about where the next meal will come from.

As part of my research on Malawi, for example, I have shown that forests are important for the nutrition of forest-dependent communities. Such custodians of the forests, however, were not fully involved in the design of REDD+, nor its implementation on the ground. As Abdul-Razak Saeed and others pointed out, “while communities were engaged in the REDD+ projects, their engagement was often in an ad-hoc fashion. Decisions were taken before communities were consulted to gauge their reaction.” In Peru, local communities were only consulted after the project was approved, while in Kinshasa, projects were developed before being shared with communities.

At the core of the REDD+ are neoliberal and corporate-friendly ideas. These ideas are aimed at evading the problem caused by the real polluters by creating a market for carbon to continue to extract profits unabated. Africa as a whole only contributes 3% to GHGs. REDD+ is functioning as a form of governance—a particular framing of the problem of climate change and its solutions that validates and protects the ways of life of capitalism while marginalizing the lives of forest dependent communities and shifting the development trajectory of the developing countries away from what most developed nations did. It is, as others have labeled it, “CO2loniasm.”

As many critics have argued, REDD+ secures the property rights of global North fossil fuel users while maintaining the opportunities for corporate profit over forest-dependent communities. REDD+ in this context is part of a longer history of neoliberalism, which represents the marginalization of vulnerable groups of people similar to conservation projects, and where success is measured by the number of locals who can be persuaded with money to give up their livelihoods, birthrights, and other forms of identity that are heavily interwoven with forests. These communities have to take up other ways of life that can save the forest beyond what would be required to make the community carbon neutral for the benefit of Western elites.

As some projects that have been implemented under REDD+ have shown, the negative impacts on indigenous and forest-dependent people are rampant. For example, in the DRC, which is one of the early experimental sites with several projects, researchers found that the projects were leading to land grabs. Another example is in Uganda where a Norwegian company bought huge tracts of land to plant fast-growing plants. However, the commercial plantations in this project barred local households from harvesting any timber or other NTFPs, resulting in loss of income for the entire community.

Furthermore, REDD+ links forest conservation and more than one billion people who depend directly on forests to global carbon markets—exposing them to volatile commercial power structures. The communities would be at ransom to the price of carbon and the vicissitudes of the financial sector. Whenever the price of carbon increases, the demand for carbon credits rises in tandem pushing more people out of their traditional lands and ways of life.

Solutions arrived at in the big conference halls of the West, implemented in developing countries without the full participation of the people, are bound to fail. New ideas that explicitly involve the forest-dependent communities are imperative. Ongoing research by the Center for International Forestry Research (CIFOR) on the impact of REDD+ initiatives on community livelihoods highlights the need for policies that respond to the unique ways that local communities use their forests. As Alain Fréchette of the Rights and Resources Institute notes, “strong indigenous and community land rights and a clear understanding of who owns forest carbon are vital prerequisites for climate finance to succeed in its goals of reducing poverty and protecting forests.”

“To succeed, these projects must include the communities that have managed these forests for generations,” says Chouchouna Losale of the DRC’s Coalition of Women Leaders for the Environment and Sustainable Development. Western countries will have to face the grim reality that saving the world from the climate catastrophe will not come from African countries, but by addressing the source of the greenhouse gases within their boundaries. African governments need to protect the marginalized and have the right to determine their own path to sustainable development. This will happen when negotiations are balanced and inclusive. For example, a pilot REDD+ project in Nepal was billed as successful because it fully involved the national and community level institutions in decision making and forest conservation. As the authors of the study reported, “participating communities were enthused…and met more frequently to make community decisions related to forests.”

This post is from a new 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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The Role of Kenyan Civil Society in Democratic Governance

Kenyan civil society has played a critical role in holding the State to account and in promoting a human rights-based approach to governance.

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In defense of democracy, human rights and the rule of law is the motto of conscientious human rights defenders. A human rights defender is any person fighting for a cause to improve the well-being of human beings or to correct a violation to human dignity or breach of law for remedy. Human rights are rights that belong to everyone simply because they are human beings. By belonging to everyone it means that every person is a holder of these rights and they may not be taken away or denied because of a person’s social or economic status. Human rights are universal. They belong to everyone. They are interrelated, interdependent and indivisible. No right is greater than the other.

The primary obligation to promote and protect human rights rests with the State. However, every individual, and other non-State actors also have the responsibility and duty to respect the rights of his or her fellow human being. It is vital that in the establishment of a human rights culture that no one is excluded and that the most vulnerable are included. For democracy to prevail, it is imperative that it reaches every citizen. It is often said that it is easier to struggle for democracy but more difficult to sustain it.

This is critical especially in situations where people have limited respect for and trust in the government. The world is facing the greatest test – the COVID-19 pandemic. It is my personal experience that pandemics or upheavals in countries and societies have always had serious consequences to human trights democracy and rule of law. In most cases, such occurrences exacerbate existing human rights violations. It is the moment when human rights defenders in their active and vibrant civil society are necessary to hold the State accountable, especially because the State capitalises on such calamities to grab more power and cause egregious violations.

A new United Nations report on the global response to COVID-19 has noted the central role of a human rights-based approach to the pandemic. “This is not a time to neglect human rights; it is a time when, more than ever, human rights are needed to navigate this crisis in a way that will allow us, as soon as possible, to focus again on achieving equitable sustainable development and sustaining peace,” stated the report. This is a time when, more than ever, government needs to be open and transparent, responsive and accountable to the people they are seeking to protect. Civil society organisations, particularly grassroots community-based organisations, are better placed to reach exposed populations quickly and in ways that factor in the specific sensitivities of each community and that ensure that critical information reaches diverse segments of the society.

Perhaps the biggest challenge that human rights defenders and civil society in general have faced during this pandemic is the State taking advantage of the pandemic to grab and consolidate more power. States have turned COVID-19 into a security matter, giving themselves enormous powers to curtail crucial freedoms and rights while remaining covertly opaque in their decision-making processes. This poses a dilemma for civil society on how to respond while being sensitive to the public’s concerns.

Who constitutes civil society?

In my own understanding, civil society is not what many Kenyans see as particular individuals and/or the organisations they work for. No! Civil society should been seen in the context of the heterogeneity of an entire range of organised groups, individuals, and institutions that are independent of the state, voluntary, and at least to some extent self-generating and self-reliant. This includes those individuals and organisations that the majority of Kenyans see as the being the civil society, as well as independent media, think tanks, universities, and social and religious groups.

To be part of civil society, such individuals and groups, formally or informally, must have respect for the rule of law, for the rights of individuals, and for the rights of other groups to express their interests and opinions, and must also exercise tolerance and the accommodation of pluralism and diversity of ideas and formations.

States have turned COVID-19 into a security matter, giving themselves enormous powers to curtail crucial freedoms and rights while remaining covertly opaque in their decision-making processes.

 There is consensus that civil society in all its different formations and characters needs to ensure its own legitimacy, openness and transparency. Legitimacy stems from several sources:

Firstly, from a strong moral conviction, through acting on the basis of universally-recognised rights and freedoms of speech, assembly and association to articulate public concerns that are inadequately addressed by the government.

Secondly, from a political and civic legitimacy or credibility, through approval of the community or constituency represented by the voluntary association, asserting people’s sovereignty and community control.

Thirdly, from competence or performance legitimacy, by delivering results through being closer to local reality than governmental institutions, helping to bridge a government-community gap and promoting social cohesion.

Fourthly, from legal recognition, although laws may prevent truly independent civil society from functioning, or formal registration may undermine rather than enhance their reputation.

And finally, and most importantly, from the legitimacy that comes from accountability and transparency in its work.

A strong civil society is one in which voluntary formations are effective and strategic organisations that work cohesively in influential networks or coalitions in an environment governed by civil norms, such as respect, reciprocity, tolerance and inclusion. Such norms promote open discourse and citizens’ engagement in informed dialogue.

A narrow view of civil society results in a failure to develop civil society organisations that keep the government in check and nurture democratic practices and values as a multi-generational effort. A broader view of civil society requires cultural and attitudinal changes to help people understand, support, and protect civil society organisations as representatives of their interests. Yet goverments are able to keep replenishing and tapping good ideas and brains to help them overcome citizens’ pressure. Civil society, which is facing very turbulent times on many fronts, will have to become more innovative in enabling collaboration and improving practices in order to remain relevant and effective in influencing public policy. It cannot remain conventional with the same traditional approaches.

In my view, there are several important principles to follow in seeking to strengthen civil society. Firstly, it is critical to start where civil society is: measures to strengthen its capacities need to be based on local needs, assets and institutional ecosystems. Civil society organisations need to know their own strengths. Outsiders cannot necessarily connect with local society.

Secondly, decision-making needs to be in the hands of those undertaking the strengthening measures, so it is informed by indigenous values, concerns and environment. Thirdly, action must be based on well documented and analysed data and evidence and sustainable resources to inform local engagement across sectors and levels. A people-oriented participatory approach is key. It creates constituency and legitimacy. Fourthly, action should support and reinforce existing compatible interventions. This will need to have a combination of multidimensional tools for execution. For instance, how do online actions combine and reinforce offline actions? Fifth, there should be realistic time horizons since institutional development does not occur instantaneously.

Finally, building alliances within a sector or domain will support individual sector members or issue-based communities. This leads to improved information through sharing best practices and avoiding duplication. Through collaborative action in alliances there can be a greater impact at the policy level, and a means to set standards in accountability. Alliances and networking create solidarity. Bridge-building across sector boundaries strengthen both by generating a larger body of interest and also new resources, for example, through cooperation with the public or private sector. Transnational or international engagement enhances civil society roles in different spheres of public discourses.

In my experience with civil society, I see have seen it playing pivotal roles of advocacy, watchdog and service provider of public goods. The roles are intertwined. Perhaps what have been different are approaches, which has created unnecessary frictions and misunderstanding. As dynamic and multidimensional entities, civil society moves from one role to another and/or assumes several roles. This can be illustrated by an organisation whose initial role is service delivery; it turns to advocacy to overcome problems it meets in fulfilling its service provision role; and it subsequently becomes a watchdog in trying to prevent the recurrence or worsening of the problems while continuing to provide its original services. The role of service delivery is regarded, at least by governments, as the least controversial function of civil society. However, many people express concern that while civil society is performing a crucial activity, the government can take advantage of this service provider role and fail to assume its own responsibilities and obligations.

Most agree that Kenyan civil society has contributed enormously towards both the substance and process of democracy and human rights. Civil society has been an important driver of the State’s democratisation process by providing a vital link between citizens and the State as well as by mobilising communities for collective actions. It also provides an environment that can be used to enhance community cohesion and decision-making. Information is vital to civic participation and also encourages inclusive development and participatory democracy. When people get better informed, they are more likely to participate in policy discussions and communicate their ideas and concerns freely.

Achievements of Kenyan civil society

The following is a summary on the role civil society played in Kenya in advancing human rights, democracy and the rule of law in different contexts. (The list is not exhaustive.)

First, civil society has been an incubator and supplier of ideas on content and strategies on State transformation and building an open pluralistic society. Perhaps the struggle for multipartyism and a new constitutional order culminating in the progressive Constitution of Kenya 2010 amplifies this critical role of civil society. Today, there is a growing movement of civil society on the implementation of the constitution and championing of devolution of powers and resources under the banner of Tekeleza Katiba Movement. Further, civil society has not shied away from working and organising political parties into a formidable socio-political movement. This capacity was demonstrated in 1997 and 2002.

The role of service delivery is regarded, at least by governments, as the least controversial function of civil society. However, many people express concern that while civil society is performing a crucial activity, the government can take advantage of this service provider role and fail to assume its own responsibilities and obligations.

Secondly, civil society has been a strong deterrent and catalyst in defanging the power of the State. A true democracy needs a well-functioning and legitimate State.  Kenyan civil society has been highly successful in deploying different methods to ensure that the State is tamed through checking, monitoring, and taking actions to restrain the power of political leaders and State officials. Civil society actors have been aggressive watchdogs on how State officials and agencies use their powers through raising public concern and awareness about any abuse of power and robustly taking advocacy actions ranging from public demonstrations to picketing and litigation.

Thirdly, research and documentation to expose the corrupt conduct of public officials and demands for accountability and improved governance have been a great success. This is also very important in collection and preservation of evidence. Civil society in its different formations has been a leading light in tackling corruption, especially through push for public access to information, whistle blowing and public campaigns. This is upon realising that even where anti-corruption laws and bodies exist, they cannot function effectively without the active support and participation of civil society. Civil society have come up with transparency and accountability tools as some potential solutions to some of the corruption problems in that they allow communities to identify breakdowns and hold responsible agents or decision makers to account. A fourth function of civil society is to promote political and public participation.  Civic education on citizens’ rights and obligations has been a bulwark in developing citizens’ skills to work with one another to solve common problems, to debate public issues, and express their views.

Fifth, civil society has been a major player in conflict mitigation efforts and propagating values of democratic life, such as tolerance, moderation, compromise, and respect for opposing points of view.  Without this deeper culture of accommodation, democracy cannot be stable. Civil society understands that these values cannot simply be taught; they must also be experienced through practice and interlocutors. Civil society has developed formal programmes and training of trainers to relieve political and ethnic conflict and teach groups to solve their disputes through bargaining and accommodation. This brings the crucial connection between policy and practice in civil society work.

Sixth, civil society has been an arena for the expression of diverse interests. One role of civil society organisations has been to push for the needs and concerns of their members, as women, students, farmers, environmentalists, trade unionists, lawyers, doctors, and so on.  Civil societies, in all their diversity, have been presenting their views and those of different constituencies they represent to different State institutions for redress.  They also establish a dialogue with relevant government ministries and agencies to lobby for their interests and concerns. And it is not only the resourceful and well-organised whose voices have been heard.  Over time, groups that have historically been oppressed and confined to the margins of society have organised to assert their rights and defend their interests.

Kenyan civil society has been highly successful in deploying different methods to ensure that the State is tamed through checking, monitoring, and taking actions to restrain the power of political leaders and State officials.

Seventh, different civil society platforms have been vital focal points for strengthening democracy in actions by providing new diverse forms of interests and solidarity.  For civil society, democracy cannot be stable if people only associate with others of the same social, political or status identity orientation.  When people of different religions, ethnic identities, professionals backgrounds and sectors come together on the basis of their common interests as women, artists, doctors, students, workers, farmers, lawyers, human rights activists, environmentalists, and so on, civic life becomes richer, more complex, and more tolerant. Civil society has very efficiently provided this platform. Historically, groups and individuals never saw themselves as part of civil society; today there find crucial space for civic engagement.

Eighth, civil society provides a training ground for political, civic and private leaders.  Civil society has helped to identify and train new types of leaders who have dealt with important public issues and are recruited to run for political office at all levels and to serve in local and national positions, both in politics and private/professional sectors.  Evidence shows that civil society has been a particularly important arena from which to recruit and train women leaders in different fields.

Ninth, civil society has helped to inform the public about important public policy issues.  This is not only the role of the mass media, which is also part of civil society, but individuals or groups of organisations coming together to provide fora for debating public policies and disseminating information about issues that affect the interests of different groups, or of society at large, using different methods. Civil society leads in taking action that safeguards public interest like litigating and drafting petitions and policy papers and presenting those policy positions to the relevant State institutions.

Tenth, civil society organisations have played vital role in monitoring electoral processes and management.  This has seen a broad coalition of organisations unconnected to political parties or candidates deploying neutral monitors at all the different polling stations to ensure that voting and vote-counting is entirely free, fair, peaceful, and transparent.  It is very hard to have credible and fair elections in a democracy unless civil society groups play this role. The outcomes of such vital civil society processes have been useful as evidence in electoral disputes.

Twelfth, civil society has been very instrumental in advocating for fair rules in the digital world and influence at the policy level. This has been important in establishing spaces for civil society to engage and bring social change through digital activism.

Finally, it is important to stress that civil society is not simply in tension with the State.  Because civil society is independent of the State does not mean that it must always criticise and oppose the state.  In fact, by making the State at all levels more accountable, responsive, inclusive, and effective, and hence more legitimate, a vigorous civil society strengthens citizens’ respect for the State and promotes their positive democratic engagement with the State. However, Kenyan civil society is in the state of fluid transition as global dynamics shift.

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