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Kenya’s 2019/2020 Budget: A Predatory Scheme Designed for the Hustlers in Government

9 min read.

RASNA WARAH argues that the 2019/2020 and other budgets prepared by the Jubilee government are essentially predatory and borrow heavily from the British colonialists’ playbook, which sought to enslave the indigenous population by taxing it. The tax regime is in essence in the service of foreign (previously Western, but now increasingly Chinese) capital and local elites.

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Memo to Uhuru Kenyatta: Finish up and Go
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“Rotich catches up with the real ‘hustlers’ in new tax measures,” screamed the front-page headline in the Standard the day after Treasury Cabinet Secretary, Henry Rotich, read what many view as an illegal Sh3 trillion ($30 billion) budget given that it had not been debated by the National Assembly and considering that a bill that would decide how national revenue would be divided had not yet been passed.

The “real hustlers” that the newspaper was referring to were not people like the Deputy President, William Ruto, who has in the past self-identified himself as a hustler, but people at the bottom of the economic pyramid, including security guards, cleaners, drivers, caterers and boda-boda operators, whose employers will now be forced to deduct 5 per cent withholding tax from their salaries. (Dictionary definition of a hustler: Someone who makes money using dishonest means.)

This means that a security guard in Nairobi who earns Sh15,000 a month will now have to forego Sh750 of his salary – probably the equivalent of half his monthly rent in one of the many sprawling slums in the city. The people Rotich wants to net in the tax bracket are those who make a living carrying out low-paying menial or laborious tasks and who can barely make ends meet. For them every shilling earned counts, and every shilling lost means less food on the table, and more sacrifices.

The newspaper made no mention of the actual hustlers and thieves in government who regularly siphon millions of taxpayers’ shillings by raiding the national treasury or the growing number of politically-connected “tenderpreneurs” who sell fictitious goods to government departments – and get away with it. (To date not a single high or low profile suspect involved in Kenya’s many mega corruption scandals has been convicted.) To describe cleaners and security guards as hustlers is the height of irresponsibility on the part of the Standard’s editors.

The “real hustlers” that the newspaper was referring to were not people like the Deputy President, William Ruto, who has in the past self-identified himself as a hustler, but people at the bottom of the economic pyramid, including security guards, cleaners, drivers, caterers and boda-boda operators, whose employers will now be forced to deduct 5 per cent withholding tax from their salaries.

Nor did this or any other newspaper provide sufficient analysis of what the new tax measures would mean for the economy, apart from that they would generate an additional tax revenue of Sh37 billion (an amount that is less than one-tenth of the total amount of money lost in the Goldenberg, Anglo Leasing and other corruption scandals, including those that have taken place under the watch of the current government). How many mamas selling githeri by the roadside will be affected? How many people doing casual or temporary work or who work in the informal economy will sink further into poverty?

It is not as if Kenyans are not paying enough taxes. The Kenya Revenue Authority (KRA) is expected to raise about Sh2 trillion ($20 billion) this year through direct and indirect taxes, such as income tax and VAT, customs duty, and other levies that Kenyans pay when buying unga, cooking oil, batteries, books (which were tax-exempt until Jubilee came into power), cars, petrol and other commodities.

In fact, most Kenyans are already suffering under a tax regime that can only be described as punitive. Extraordinarily high levies and taxes on electricity (which many believe are illegal) have financially crippled many households already struggling under the weight of the high cost of living. Every Kenyan, whether he or she likes it or not, is a taxpayer because the taxes on every product are inevitably passed on to consumers. And those who are employed in the formal sector cannot avoid being taxed because they end up paying taxes through their employers, who have to submit PAYE taxes to KRA on behalf of their employees.

It is not as if Kenyans are not paying enough taxes. The Kenya Revenue Authority (KRA) is expected to raise about Sh2 trillion ($20 billion) this year through direct and indirect taxes, such as income tax and VAT, customs duty, and other levies that Kenyans pay when buying unga, cooking oil, batteries, books (which were tax-exempt until Jubilee came into power), cars, petrol and other commodities.

The problem of misinterpreting or distorting the 2019/2020 budget and its implications was not just confined to the Standard. While admitting that Rotich (who has allegedly been associated with a conflict of interest issue revolving the Arror and Kimwarer dams project saga) had prepared a budget that “raids the poor”, the Daily Nation erroneously described the budget as “capitalist” – as if to imply that Kenya is not a capitalist country, and that somehow the budget had betrayed the country’s communist inclinations. (Dictionary definition of capitalism: An economic and political system in which a country’s trade and industry are controlled by private owners for profit, rather than by the state. Dictionary definition of communism [the antithesis of capitalism]: a theory or system of social organisation in which all property is vested in the community and each person contributes and receives according to their ability and needs. Note: This form of communism morphed into “state capitalism” in the Soviet Union and China, where all property was not vested in the community, but in the state, which then determined what “the community” was entitled to.) Moreover, the newspaper’s editors failed to appreciate that even the most advanced capitalist societies have safety nets for the poor and state-funded social programmes that are focused on the most vulnerable in society.

The budget is also heavily skewed towards the security sector. For instance, while Sh473 billion is allocated to education (which traditionally has always been allocated the bulk of the national budget in Kenya) a whopping Sh325 billion is allocated to security. When a government starts spending a disproportionate amount of money on security, be sure that there will be a lot of kickbacks involved as most security contracts are highly secretive.

As for the Big Four Agenda plans of President Uhuru Kenyatta to improve food security, to increase access to affordable housing, to make health care universal and to boost local manufacturing (which were allocated Sh450 billion), we are still to see their benefits. One thing I am sure of, however, is that the affordable housing part of the agenda will most likely not impact those most in need of affordable housing, which will remain unaffordable for the majority of urban residents. (For more on this, read my article Faulty Towers published in the eReview.)

Home guards and hut tax

The 2019/2020 and other budgets prepared by the Jubilee government and its mandarins are neither capitalist nor a means to rein in those who break the law or who engage in criminal activities; rather these budgets are essentially predatory and borrow heavily from the British colonialists’ playbook, which sought to enslave the indigenous population by taxing it. The tax regime is in essence in the service of foreign (previously Western, but now increasingly Chinese) capital and local elites.

The budget is also heavily skewed towards the security sector. For instance, while Sh473 billion is allocated to education (which traditionally has always been allocated the bulk of the national budget in Kenya) a whopping Sh325 billion is allocated to security.

For those who have studied Kenyan history (and I believe there are fewer of us left as history has now become an optional subject in Kenyan schools), the process of British colonisation in Kenya was consolidated through what is known as the “hut tax”, which was imposed on indigenous people living in the territory now known as Kenya, and particularly those in the so-called White Highlands of Central Kenya. As a form of “indirect rule” the colonialists co-opted local chiefs whose primary responsibility was to recruit labour and to collect taxes. The “home guards” – as the loyalist chiefs and specially-appointed agents who were in the service of the British were known – were rewarded with plots of land (from which the indigenous people were evicted, thereby becoming squatters on their own land), trade licences and tax exemptions.

In her book Britain’s Gulag: The Brutal End of Empire in Kenya, Caroline Elkins, an American historian, describes how the process of colonisation and land alienation was achieved by white settlers and the colonial administration through a system of taxes:

“Labor was the one factor in the economic equation that the settlers and the colonial government could jointly manipulate, and they did so ruthlessly. Rather than offering wage incentives, the European employers relied upon coercion by the colonial government to recruit African labor, which was, more often than not, drawn from the Kikuyu population then living on the edge of the White Highlands. The government’s guarantee of cheap and bountiful Kikuyu labor was based on a complex set of laws aimed at controlling nearly every aspect of Kikuyu life. Over time, four regulations, together, pushed the Kikuyu off their remaining land and into the exploitative wage economy.”

One of these regulations was the displacement of indigenous populations through the establishment of so-called “African reserves” where each ethnic group was expected to live and eke out a living separately. By confining the “natives” to reserves (which were much like the tribal “homelands” in South Africa and the Native American reservations in the United States) the colonisers forced the local population into a wage economy, as the reserves (usually situated on the least fertile parts of the land) could not sustain them. Furthermore, Africans were forbidden from growing cash crops. Those who grew maize and other staple foods were forced to sell them to marketing boards at a set price. (These boards remain in existence to this day, and have continued to exploit and rob farmers, as has been witnessed in various maize scandals.)

After alienating the locals from their land, the colonialists then imposed a hut and poll tax, which, according to Elkins, amounted to nearly twenty-five shillings, or the equivalent of almost two months of African wages at the going local rate. This forced thousands of Kikuyus to migrate in search of paid work. Many women in Central Kenya, who could not afford to pay the hut tax, were forced to migrate to Nairobi, where they made a living through commercial sex work or informal trade. To add insult to injury, these migrants were then forced to carry a kipande (pass) which was used to monitor their movements and keep track of their employment histories.

In her book Britain’s Gulag: The Brutal End of Empire in Kenya, Caroline Elkins, an American historian, describes how the process of colonisation and land alienation was achieved by white settlers and the colonial administration through a system of taxes

When Kenya gained independence, the former home guards became the biggest beneficiaries of land left behind by the departing British. Funded resettlement schemes were manipulated in their favour, and many dispossessed Kenyans found that independence did not result in freedom from want. The new elite class of post-colonial rulers who had benefitted from the colonial system decided to continue with the plunder and exploitation of their own people. The Mau Mau movement, which had struggled to regain land from the colonialists, was outlawed and its members found themselves either landless or forced to eke out a dehumanising existence in slums. In essence, the departing British colonisers never left – they left their agents behind who could be relied on not to disrupt Britain’s hold on its former colony.

Debt and plunder

The plunder of not just Kenya but the whole of Africa has continued unabated since then. According to “Honest Accounts 2017: How the World Profits from Africa’s Wealth”, a report by a consortium of civil society organisations, including Global Justice Now and the Jubilee Debt Campaign, African countries are collectively net creditors to the rest of the world, to the tune of $41.3 billion in 2015. African countries received $161.1 billion in the form of loans, personal remittances and grants in 2015, but $203 billion was taken from the continent; of this, $48 billion was money taken out through “trade mis-invoicing” (a form of tax evasion) by multinational companies. While African countries receive $31 billion in personal remittances from overseas annually, multinational companies operating on the continent repatriate $32 billion in profits to their home countries every year. African governments received $32.8 billion in loans in 2015 but paid $18 billion in debt interest and principal payments.

With rising debt owed to the emerging neocolonial masters in Kenya (such as the Chinese Communist Party), it is likely that this exploitation in the service of foreigner interests will continue. Public debt in Kenya stands at Sh5.4 trillion ($54 billion). Beginning in July this year, Kenya will spend Sh800 billion ($8 billion, or nearly a quarter of the current budget) annually to service maturing loans owed mostly to foreign (read Chinese and European) lenders.

It is possible that given Kenya’s ballooning debt, the Jubilee government felt that the only way to prevent the Chinese government from taking over our ports, airports and other infrastructure in case of non-repayment (as it has done in other countries, such as Sri Lanka) was to tax everyone, including those least able to afford it. But the question remains: In whose name did the Jubilee government accept to sign a highly irresponsible and secretive loan agreement (whose contents remain unknown to the public to date) with the Chinese? Were wananchi or the country’s legislators consulted on whether to go ahead with the standard gauge railway (SGR) and other expensive Chinese-funded projects (which appear to heavily favour the Chinese, as recent reports have indicated)? And now that it finds itself unable to service these loans (partly because the SGR has not yielded expected revenue for the Kenyan government), what moral or legal authority does the government have to tax its citizens to service them?

Moreover, given the corruption scandals in the country – which have reached unprecedented levels under Jubilee – what incentive does an ordinary Kenyan have to further fund a government whose leaders (including at the county level) have become adept at stealing taxpayers’ money? Not to mention that every year the Auditor General reports that more than a third of the national budget is unaccounted for or lost to fraud. (That could mean Sh1 trillion or $10 billion lost to corruption or fraud this financial year.) And while an increasing numbers of Kenyans are being forced to go without essential items and services, no austerity measures have been imposed on our legislators – Kenya’s pampered and shameless lawmakers continue to earn salaries and allowances that rival those of lawmakers in rich industrialised countries.

Kenya is neither a capitalist country nor a developmental state. Nor is it a command-and-control economy along the lines of China. It is a predatory state that benefits only a few chosen elite, and has remained so since the days of colonialism. What’s worse, most trade unions, consumer watchdog associations, and state environmental agencies exist in name only, which means that the majority of Kenyans are left to their own devices to defend their interests.

A boycott or protest of some sort might be required to stop the bleeding. But even the Kenyan government knows that a people whose lives are dominated by survival issues and worries about paying bills and taxes will not have the energy to revolt. Like the dispossessed Kikuyus in Central Kenya, we will work even harder as we watch our resources being forcefully taken away from us by the very people who demand taxes from us so that they can continue with the plunder. (We Kenyans are submissive law-abiding citizens, after all, even if the law has the potential to strangle and kill us. We are deeply religious too.)

But then, that is what Omar al-Bashir believed until the Sudanese people decided that enough is enough.

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Rasna Warah is a Kenyan writer and journalist. In a previous incarnation, she was an editor at the United Nations Human Settlements Programme (UN-Habitat). She has published two books on Somalia – War Crimes (2014) and Mogadishu Then and Now (2012) – and is the author UNsilenced (2016), and Triple Heritage (1998).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The State of Judicial Independence in Kenya: A Persistent Concern

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

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On Thursday 22 July 2021, Justice Aggrey Muchelule and Justice Said Juma Chitembwe were subjects of arbitrary search, intimidation, and interrogation by the Directorate of Criminal Investigations (DCI) on the basis of unfounded allegations of corruption.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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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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