Two weeks ago, Uhuru Kenyatta commissioned the 120-kilometre Nairobi-Naivasha extension of the new railway line commonly referred to as Phase 2A. Phase 1, which runs from Mombasa to Nairobi, was completed and launched with great fanfare in 2017. Not so this time round. On the day of the launch, a local daily headlined its story thus: “Uhuru to launch expensive SGR [Standard Gauge Railway] train to ‘nowhere.’” The “nowhere” caught on, with one international media house carrying the headline, “The railroad to nowhere China built has opened in Kenya” and another, “Kenya struggles to manage debt for railway to nowhere.”
The “nowhere” refers to Duka Moja (literally meaning “one shop”), a sleepy trading centre on the Maai Mahiu-Narok road where the railway line comes to an abrupt end. Duka Moja lies about 20 kilometres beyond the last train station at Suswa, a slightly busier cattle market about five kilometres down the highway turn-off at Maai Mahiu. There is little to take commuters there, unless one is a cattle trader. Naivasha town, which would be the destination for commuters, is a good 30 kilometres by road from the train station at Suswa but only an hour and a half’s drive from Nairobi. There being no station at Duka Moja means that the stretch will lie unused until “Phase 2B” is built—if it ever is.
The entire Phase 2A extension is an economic puzzle. The bulk of the cargo that comes through the port of Mombasa is either destined for Nairobi, or is in transit to Uganda and beyond. In 2018, the port handled 21.8 million metric tonnes of dry cargo of which 9.6 million tonnes—44 per cent—was transit cargo. This suggests only two logical destinations for rail freight: Nairobi and Malaba. After offloading in Nairobi, the only other logical line for rail freight is one that serves transit cargo, terminating at Kisumu or Malaba as the case may be.
In October 2018, we were informed that the financing agreement for Phase 2B, the 250-kilometre stretch from Naivasha to Kisumu, would be signed at the margins of the China-Africa Summit (FOCAC). Upon his return, Cabinet Secretary for Transport James Macharia informed the country that the Chinese authorities had asked for a feasibility study “of the whole project”. He was quick to add that he was confident that they would be able to produce one in no time, since they now had data from the Mombasa-Nairobi line which had by then been in operation for close to a year. There are two observations to be made here. Firstly, it is the Chinese who have been running the railway, and it is they, and not the government, who have the data on its operations. Secondly, CS Macharia implies that no feasibility study had been undertaken. This is not quite true. There exists a feasibility study for the Mombasa-Nairobi line carried out by the contractor, China Road and Bridge Company. The economic evaluation—which takes up 17 pages of the 143-page document—is the shoddiest thing of its kind that I have seen.
In April this year, the Kenyan delegation left for Beijing amid much fanfare, again anticipating that they would sign the financing of Phase 2B at the margins of the Belt and Road Initiative (BRI) Summit. This time China dropped the bombshell; the project would not be financed. The government had not been paying attention. A couple of weeks prior, China’s Ministry of Finance had released a document titled Debt Sustainability Framework for Participating Countries of the Belt and Road Initiative. It was posted on their website, and was the theme of China’s Finance Minister’s speech at that BRI summit. The long and short of it was that the era of chequebook diplomacy was over. China was bringing sovereign risk assessment on board. More interestingly, China had not formulated its own framework, stating in the document that it was adopting the IMF/World Bank Debt Sustainability Framework for Low Income Countries. Evidently, the administration had missed that memo.
Once the financing fell through, a hastily conceived “Plan B” proposing to revamp the old meter gauge line and integrate it with the new railway was unveiled. The initial announcement indicated that the revamped line would terminate in Kisumu at a cost of Sh40 billion ($400 million). Within days, this plan was abandoned in favour of another routing terminating at Malaba on the Kenya-Uganda border. It was to be a public-private partnership (PPP) project costing Sh20 billion ($200 million). The latest on these “Plan Bs” is that the Chinese contractor’s quotation far exceeds the government’s preliminary estimates.
In April this year, the Kenyan delegation left for Beijing amid much fanfare, again anticipating they would sign the financing of Phase 2B at the margins of the Belt and Road Initiative (BRI) Summit. This time China dropped the bombshell; the project would not be financed.
From the outset, the public has been led to believe that the SGR train has a freight capacity of more than 22 million metric tonnes. This column has challenged the operational feasibility of carrying this much freight on a single-track railway line, particularly one that is also used by passenger trains. A paper prepared for the Kenya Railways Board by the Kenya Institute for Public Policy Research and Analysis (KIPPRA), a government policy think-tank, puts the actual operational capacity at 9.75 million metric tonnes. These cargo capacity numbers imply that the railway is capable of carrying only transit or domestic cargo but not both (in 2018 the port handled 9.6 million tonnes of transit cargo).
If the extension to Naivasha is to be of any use, it stands to reason that the railway should prioritise transit cargo. And if transit cargo can utilise all of the railway’s capacity, why then is the government hell-bent on forcing Nairobi-bound freight onto the railway? In order for it to comply with the terms of financing entered into with the lender, the Exim Bank of China, is the readily apparent reason. The loan is secured with an agreement referred to as “take or pay” which obliges Kenya Ports Authority (KPA) to deliver to the railway enough freight to service the debt, failing which KPA will cover the revenue deficit from its own sources.
According to a schedule attached to the agreement, the freight required to service the loans averages 5 million tonnes a year, equivalent to five trains a day between 2020 and 2029 when repayment of the first two loans for the Mombasa-Nairobi section will be completed. The freight comes down to two million tonnes a year thereafter, equivalent to two trains a day until 2034, the completion date for the second loan. A third loan, which financed Phase 2A, does not feature in the agreement as it had not been negotiated, but it is possible that the agreement was revised to factor it in.
Whatever the case, the contract is moot; the revenue streams are calculated at a tariff of $0.12 (Sh12) per km/tonne, which works out to $870 (Sh87,000) per 20-foot container of up to 15 tonnes from Mombasa to Nairobi, compared to the $500 that the railway is currently charging which translates to a rate of $0.069 per km/tonne. Even at this cost the railway cannot compete with trucking because of additional handling charges and “last mile” transport from the railway depot to the owners’ premises which, according to a government report, increase rail freight costs to US$1,420 (Ksh.142,000) compared to a total trucking cost of $850 (Sh85,000). If we use the current rate of $500 to calculate the freight required to pay the loan, KPA needs to deliver 10.4 million tonnes a year, which is more than the 9.75 million tonnes operational capacity given in the KIPPRA report.
On the ground, things are different. According to data published by the Kenya National Bureau of Statistics, the railway earned Sh4 billion from 2.9 million tonnes of freight last year, a rate of Sh2.91 per km/tonne. In the first two months of this year, it earned Sh959 million from 662,000 tonnes, a slight improvement in revenue yield to Sh2.99 per km/ton. Either way, the actual revenue per km/tonne is still just a quarter of the rate used to calculate the loan repayments. As this column has maintained from the outset, there was never a likelihood that the railway was going to pay its way. The debt was always going to be paid by the taxpayer. It is difficult to fathom why the government and the Chinese lender bothered with this shoddy securitisation charade for debt that has an implicit sovereign guarantee anyway.
Meanwhile, back on the ranch, the “railway to nowhere” epithet seems to have stung Uhuru Kenyatta: “Let me tell you. Mai Mahiu… Suswa is not nowhere. This is Kenya. And let me tell you. Whether you like it or not, once I am done with my work and go home, after 20 years when I come back here, Maai Mahiu and Suswa will be more developed than Nairobi.”
Kenyatta was alluding to the plans to set up industrial parks in that locality, some of which we are told will take advantage of the proximity to the geothermal power and steam resources in the region. This is another one of the administration’s misguided “if we build they will come” schemes. Before any further comment, it is worth remarking that Konza Technocity—which is also smack on the railway line—remains a field of dreams. The viability of locations for industrial parks is determined by their proximity to big markets, or raw materials, or labour. It is far from evident that Suswa offers any of these advantages. If we think about export processing for overseas markets, the most cost-effective location is at the coast. It does not make sense to transport raw materials hundreds of kilometres inland and the finished goods back to the port. This is one of the reasons why Athi River has struggled as an Export Processing Zone.
But even were Suswa a most inviting location for industrial parks, the Sh150 billion price tag is exorbitant. The first three berths of the Lamu Port—one of which has been completed—carry a price tag of $480 million. The cost of Phase 2A is enough to build another three (which would put Lamu port’s capacity on a par with Mombasa), plus a highway connecting Lamu to the interior; and you could throw in an airport together with all the housing and social amenities Lamu needs to become a viable port and industrial city.
There is reason to suspect that Mr. Kenyatta reacted in one of his uninhibited moments. The land at Suswa on which the railway terminates is part of an expansive holding—over 70,000 acres—known as Kedong Ranch. Owned by a company of the same name, Kedong Ranch Ltd, the land was expropriated from the Maasai community in the colonial era. Like many other holdings, it was not restituted to the community but instead became available for purchase under Jomo Kenyatta’s willing buyer-willing seller policy. In 1963, Prime Minister Jomo Kenyatta had given an undertaking to the Lancaster House constitutional conference that “tribal land” would be “entrenched in the tribal authority” and it would not be possible for anyone to “take away land belonging to another tribe.” He reneged on this undertaking.
In the Kedong case, the principal beneficiary was Muhotetu Farmers Company, a land-buying entity from Nyeri (Muhotetu is an acronym for “Muhoya” and “Tetu”, both localities in Nyeri County), which until recently owned 40.66 per cent of Kedong Ranch Ltd, according to documents filed in one of several court cases involving the company. Other shareholders include Family Circle Investments—with 6.83 per cent—Jackson Angaine and Jeremiah Nyaga. Angaine and Nyaga were respectively Minister for Lands and Settlement and Minister for Education in Jomo Kenyatta’s first post-independence government. It would have been very unusual in those days for people like Angaine and Nyaga to partake of such largesse without there being a share for the Kenyatta family.
But even were Suswa a most inviting location for industrial parks, the Sh150 billion price tag is exorbitant. The first three berths of the Lamu Port carry a price tag of $480 million. The cost of Phase 2A is enough to build another three plus a highway connecting Lamu to the interior
Two years ago, Muhotetu Farmers Company’s shareholding was acquired by a company going by the name of Newell Holdings Ltd. for Sh2.1 billion in a transaction that some shareholders have challenged in court as highly irregular. They claim that the company did not hold a general meeting to approve the deal, and that shareholders were not offered the right of first refusal (pre-emptive rights) as required by law. Suspicion is heightened by the claim by some shareholders that they were credited with the proceeds of the sale well before the date of the transaction. The import of this is that Muhotetu Farmers Company shareholders will have been excluded from compensation for the railway line terminating on the land, and from benefitting from the appreciation of value that may accrue from the proposed industrial parks—if they ever take off. We need not go to the trouble of sleuthing to establish who the owners and/or beneficial interests of Newell Holdings are as we can confidently surmise that they are powerful people within the government.
Not too long ago we saw Uhuru Kenyatta personally propositioning the leaders of Uganda and South Sudan with land grants in Suswa to build dry docks for their countries. If it looks like a duck, swims like a duck, and quacks like a duck, what else could it be but a duck?
As we say in Gĩkũyũ, ona ĩkĩhĩa mwene nĩ otaga (if a burning house cannot be salvaged, the owner might as well enjoy the warmth of the fire).
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Will Ruto’s Cargo Clearance Order Be Practicable?
President William Ruto has kept a campaign promise to return cargo clearance to Mombasa but with recent technological advances in cargo handling logistics, the only jobs available today are those involving the physical handling of cargo.
The haste with which President William Ruto issued the cargo clearance directive—during his inaugural speech—may have caught by surprise those industry stakeholders who understand the complex nature of our logistics industry.
The return of the cargo clearance and port operations to Mombasa—decided without serious considerations—was a major campaign issue for Ruto to lure coastal voters. Mombasa has been reeling in economic pain for the last five years after the government issued an order directing that clearance of all Nairobi-bound cargo be undertaken at the Athi River Inland Container Depot (ICD).
Ruto’s directive overturned a notice issued in June 2018 that stopped importers from nominating cargo to any of the Container Freight Stations (CFSs) that had proliferated in Mombasa since 2007. That notice read in part:
“This is to notify all shipping lines that containers destined to Mombasa for local clearance shall not be allowed to be nominated by clients or endorsement of Bill of Lading to any CFS.”
It further read: “The nominations shall be done by Kenya Ports Authority (KPA) based on vessel rotation, volumes, and individual CFS capacity, therefore you are required to inform your clients in your various ports of loading accordingly.”
KPA issued this directive to create cargo volume for the Standard Gauge Railway (SGR), which links the port of Mombasa to the Athi River ICD. The government required the shipping lines to henceforth use a Through Bill of Lading (TBL) instead of Merchant Haulage. TBL refers to a single bill of lading covering receipt of cargo at the point of origin for delivery to the ultimate consignee at a named place in the hinterland, in this case, the Athi River ICD.
In Merchant Haulage of containerized cargo, the responsibility of the shipping line ceases upon discharge of the container at the port. This is the point where the consignee takes delivery of the goods and is given a time frame within which to return the empty container.
The abrupt 2018 notice disturbed a logistics industry that had grown organically for over a decade. In 2007, there was very serious congestion at the port due to capacity constraints in the face of growing cargo volume, which affected the turnaround times of merchant ships.
For the first time in their history with the port, shipping lines threatened to levy a Vessel Delay Surcharge (VDS), a highly punitive fee for unusual delays, which can go as high as KSh30 million a day depending on the size of the vessel or the type of the cargo.
The abrupt 2018 notice disturbed a logistics industry that had grown organically for over a decade.
A need arose to create extra capacity outside the port’s yard to avoid VDS. This is how the CFSs came into being as a temporary measure to address the prevailing congestion. However, it is their business model that was interesting; viewed as an extension of the port, they were to apply the KPA Tarif. Since over 60 per cent of the cargo could not be cleared within the 7 free days the KPA allowed, the income of CFSs came from storage charges levied against importers who could not clear cargo within the free period, profiting from inefficiency.
CFSs became highly lucrative and within a few years had proliferated in number to over 10 stations. This gave the port relief to expand infrastructure—rehabilitation of berths, construction of a second container terminal, and dredging of the channel.
CFSs also invested in modern equipment to improve efficiency and become competitive after the KPA allowed importers to nominate cargo to the CFSs of their choice. Cargo clearance became easier and the storage charges business model could no longer hold.
With no room for tariff adjustment, CFSs had to innovate to remain afloat. They, therefore, introduced tailor-made plans with their customers, largely serving as distributive points and storage facilities for the cargo already cleared by the Kenya Revenue Authority (KRA) through the KRA offices hosted on their premises.
The CFSs became popular among the importers. Those with excellent marketing skills managed to convince over 80 per cent of their clients to nominate cargo to their stations with KPA nominating the rest.
In a 2017 study on the future of CFSs in the wake of the construction of the SGR, Maritime Business and Economic Consultants found that the stations employed 1,804 people, who earned a total monthly salary of KSh102 million monthly. “Out of this number, 1,276 were permanent staff and 528 contracted staff,” noted the study which was led by Gichiri Ndua, an economist and former KPA managing director who oversaw most much of the modern port development. According to the study, CFSs invested over KSh20 billion in 2017.
Following the 2018 directive that importers must clear all cargo with a Nairobi address at Athi River ICD, CFSs lost business. Some closed down, those with the ability moved to Nairobi and others scaled-down business to handle only Mombasa-based cargo, which is less than 10 per cent of the port’s total volumes.
Crucial questions arise following the yet to be gazetted presidential directive. Are CFS operators likely to move their capital back to Mombasa? Will they be willing to move the capital they have invested in other logistics chains that have emerged? What if the SGR addresses the last mile transport challenge, which is the element that makes it costlier than road transport? How many jobs will be lost in Nairobi if operations go back to Mombasa?
CFS operators and other logistics providers are keeping a close eye on how events unfold following the new order. Recently, KPA published a notice that allowed importers to nominate cargo to CFSs of their choice, giving them the choice of either using rail or road. Even with the new terminal, the KPA’s cargo clearing capacity is limited and requires space outside the port, either at CFSs or at ICDs. Indeed, Ndua’s report notes that if the 21,830 Twenty-Foot Equivalent Units (TEUs) handled by CFSs in 2017 were to be dumped at the port, one would not be able to set foot in the terminal.
Another critical consideration is the investment that the government has made in the ICDs in Nairobi and Athi River at the expense of the port. In the last five years, the government has focused all its attention on infrastructure projects at the ICDs in Nairobi and Naivasha. After suffering serious teething problems that led importers to pay huge demurrage charges at ICDs following the 2018 directive, the KPA improved infrastructure, including creating smart gates that now allow for a seamless flow of cargo.
Even with the new terminal, the KPA’s cargo clearing capacity is limited and requires space outside the port, either at CFSs or at ICDs.
The port of Mombasa may face capacity constraints should the number of importers opting to use road transport grow huge. Container traffic at the port has been recording a growth of 10 per cent per year on average in the last decade and the facility is currently handling over 33 million tonnes a year. The feasibility study carried out by China Road and Bridge Corporation (CRBC) on the SGR in 2011 projected that the port will handle 41 million tonnes of cargo by 2028.
Another dilemma facing the implementation of Ruto’s directive is how the neighbouring countries using the port at Mombasa will take it. The port is a regional infrastructure serving the Northern Corridor—Uganda, Rwanda, Democratic Republic of Congo, South Sudan and Burundi. Uganda is of crucial importance. It provides the KPA with 70 per cent of the total transit cargo. In March this year, Kenya Railways Managing Director Philip Mainga took the Ugandan Finance, Planning and Economic Development Parliamentary Committee on a fact-finding tour of the Naivasha Inland Container Depot.
The delegation was led by Henry Musasizi, Uganda’s Minister of State General Duties at the Ministry of Finance, Planning and Economic Development. The team had earlier visited the Dar es Salaam port in Tanzania, before making their way to the Mombasa Port and the Naivasha ICD.
In May last year Kenya and Uganda joined forces to rehabilitate the old meter-gauge railway to enhance the seamless movement of goods. Kenya has provided a linkage between the SGR and the rehabilitated metre gauge railway line from Naivasha to Malaba using the Kenya Defence Forces.
Currently, it costs an average of US$2,100 (about KSh225, 120) to move a 20-foot container from Mombasa to Kampala by road. In December 2021 Kenya Railways (KR) gazetted promotional tariffs to ferry cargo from the Mombasa port to Malaba at US$860 (KSh100,198) for a 20-foot container weighing up to 30 tonnes and US$960 (KSSh111,849) for a container weighing above 30 tonnes. Charges for a 40-foot container weighing up to 30 tonnes stood at US$1,110 (KSh129,326) and at US$1,260 (KSh146,802) for those above 30 tonnes.
A few days before President Uhuru Kenyatta left office, State House announced that Kenya had issued Burundi, Rwanda, DRC, Uganda and South Sudan with the title deeds to the location where a special economic zone is being established at the Naivasha ICD. The five countries were said to have been reluctant to put up inland container depots without title deeds.
But perhaps the biggest headache has to do with the Chinese loan. Kenya signed a “take or pay” loan with the Exim Bank of China. What this 15-year agreement means is that the KPA undertook to “take” a minimum amount of cargo on the new railway every year failure to which it would draw from its revenues to “pay” for the shortfall.
Kenya’s loan repayment to Exim Bank of China this financial year will jump to US$800 million, an increase of over 126.1 per cent compared to last financial year. If the KPA does not provide sufficient cargo to finance the repayment, Kenya will have to pay the loan from public coffers, which are already depleted.
According to data from the Kenya National Bureau of Statistics (KNBS), in the five years that the SGR has been in operation, it has generated US$4.6 billion from cargo freight. Passenger trains generated US$760 million over the same period, indicating that it is cargo that is keeping it afloat. The KPA is therefore the SGR’s main client.
There is an erroneous narrative held by politicians who attach a lot of value to the port as the main job creator in Mombasa. This was perhaps the case a decade and a half ago, but it no longer holds because of technological developments in cargo handling logistics. The only jobs available today are those involving the physical handling of cargo.
Kenya’s loan repayment to Exim Bank of China this financial year will jump to US$800 million, an increase of over 126.1 per cent compared to last financial year.
With the full rollout of the KRA’s Integrated Customs Management System (iCMS) which replaced the decade-old Simba System, and KenTrade’s upgraded National Open Single Window System, cargo clearance is completely paperless and does not involve any physical contact. It can be done from anywhere. Therefore, clearing and forwarding jobs will not come back to Mombasa.
Also, since last year when the system became operational, licensed shipping lines and agents operating in Kenya are required to use the Maritime Single Window System (MSW) to prepare and submit vessel pre-arrival and pre-departure declarations to government agencies electronically.
The revival of Mombasa’s economy may lie elsewhere. As a starting point, the government must up its game by putting up modern training equipment and infrastructure and providing maritime training and education so that the country can equip its citizenry with skills to unlock the much-touted Blue Economy, the next economic growth frontier.
By 2020, the biggest maritime training institute in the country, Bandari Maritime Academy (BMA) in Mombasa, offered only 6 of the over 30 courses offered in maritime training as recommended by International Maritime Organization (IMO). Kenya does not even possess a training vessel to offer the trainee time at sea.
Lack of fishing gear and an ill-trained workforce limit Kenya’s efforts to venture into deep sea fishing. The International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, which came into force on 29 September 2012, set certification and minimum training requirements for the crew of seagoing fishing vessels of 24 meters and above.
Because of this shortcoming, Kenya has left its sea waters to Distant Water Fishing Nations (DWFN) which mainly fish tuna species. Kenya lies within the rich tuna belt of the West Indian Ocean, where 25 per cent of the world’s tuna is caught.
Training would also open opportunities in other areas such as shipbuilding and repair, as well as seafaring, the biggest foreign earner for the Philippines, which supplies 40 per cent of seafarers’ jobs globally.
During his inaugural ceremony President Ruto promised to establish the Dongo Kundu Special Economic Zone in Mombasa to process leather among other activities. If implemented, it will represent an opportunity for job creation for the region.
Four Reasons Why Ruto’s Cabinet is Unconstitutional
By creating “cabinet-level” portfolios, President William Ruto commits a subterfuge in an attempt to circumvent the two-thirds gender rule. Ruto’s cabinet also fails to reach ethnic and regional balance while including nominees who fail the leadership and integrity test.
There are at least four reasons why President William Ruto’s cabinet is unconstitutional. First, the cabinet fails the foundational composition rule of not more than two-thirds of the same gender. Two, the cabinet fails the Article 130(2) test that requires the national executive to reflect regional and ethnic balance. Three, some cabinet members fail the Chapter Six of the constitution test on leadership and integrity, tainting the entirety of the cabinet. Four, and finally, the creation of two cabinet-level portfolios is not only illegal but also indignifies women, contrary to Article 28 of the constitution.
I will not discuss chapter six issues in this piece as they require acres of space on their own. I discuss the other three.
Two-thirds gender rule
It is unfortunate that, in 2022, a cabinet formed by a president who without end hollers about his belief in the rule of law, does not meet the bare constitutional gender minimum of not more than two-thirds. It is both a maths issue and a constitutional subterfuge issue.
First, the math issue.
Article 152(a) clearly defines and caps the membership of cabinet. Cabinet comprises of the president, the deputy president, not more than 22 cabinet secretaries and the attorney general. Essentially, the ceiling is 25 members. No more. But this number could be less, because the president can appoint as few as 14 cabinet secretaries. Ruto used all his 22 cabinet cards and more. The more—two positions—he christened “cabinet-level portfolios” on gender and national security and assigned women to superintend them.
Now, here is the problem. Article 27(8) establishes a two-third gender ceiling rule on the composition of any state or public body. The courts have said that the cabinet is a body for the purpose of Article 27(8) gender-capping. Ruto and Deputy President Rigathi Gachagua are men. Justin Muturi, AG-nominee, is also a man. Additionally, of the 22 cabinet secretary nominees, 15 are men. Hence, of the 25 cabinet slots, 18 are reserved for men and 7 for women. In the case of Marilyn Kamuru versus Attorney General decided by Justice Onguto in 2015, the Judge said that Article 27(8) math would require computing the number of the lesser gender against the entirety of the cabinet including the president, deputy president and the AG. For Ruto’s cabinet then, the 7 women would be the numerator against a denominator of the total and maximum 25 cabinet slots. This results in 72 per cent men in cabinet whereas the constitutional cap should, at the minimum, limit them to not more than 66 per cent.
Now, on to the subterfuge.
I know there are those who will ask what about the two cabinet-level portfolios and the secretary to the cabinet who are all women. Again, the comprehensive response is to be found in Articles 152(a) and 154 of the constitution. Article 152 caps the number at 25. In that capping it does not say that secretary to the cabinet is a cabinet member. Article 154 tells us who a secretary to the cabinet is. It is an office in public service but, unlike Article 152 which explicitly says that the AG is a member of the cabinet, Article 154 does not make a secretary to the cabinet a member of the cabinet.
And this is where Ruto commits a constitutional subterfuge. By explicitly naming the four positions—the two advisers, the secretary to the cabinet, and the AG—as cabinet-level portfolios, he was constitutionally mixing apples, oranges and tomatoes. But it seems the intention was to dangle a red-herring both regarding the two-third math and the legality of the two offices. In fact, his supporters misleadingly insist that in computing the two-third rule, the three portfolios—that is, the two cabinet-level advisers and the secretary to the cabinet—should be factored in.
This is how smart people try to circumvent the constitution. But the constitution is quite conscious that public officers will try such tricks so it says—and the court has confirmed—that its violation can be direct or through effect. Both levels of violations are present here.
Regional and ethnic balance
This is straightforward albeit controversial. Article 130(2) says that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya. Again, it is a little more than a bean counting exercise.
The two critical operative elements are ethnic and regional. Regional is obviously geographic although the constitution does not delineate what a region is. It leaves that to common sense, practice, rhetoric and legitimate expectation. In this regard, and in our political rhetoric, there is a region christened Mt Kenya. While defined to some extent by proximity to the mountain (Mount Kenya), it also imports into its defining characteristic some ethnic component. So, while Isiolo may be closer to Mt Kenya than Kiambu, the majority of communities resident in Isiolo are not legitimately and in political rhetoric terms considered to be part of Mt Kenya. On the other hand, Kiambu people are, even though they are much further away from Mt Kenya than Isiolo is. But this is where it gets even messier: I believe if you are a GEMA community member living in Isiolo, you are considered Mt Kenya. The opposite is not true. You may wish to argue this point, but it is one of those facts that make political but hardly any logical sense; still, the constitution would recognize the argument in the context of Article 130(2).
Article 130(2) says that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.
In this sense, it is possible that some of the members from the GEMA group who have been nominated to the cabinet may identify as hailing from the Rift Valley or from elsewhere in the country. But when Article 130(2) is purposively read, a question arises whether the numbers of those included in the cabinet who are from Mt Kenya region, or are from one of the pre-dominant Mt Kenya regional ethnic groups (when one considers the demographics and diversity of the country), disproportionately constitute the cabinet. My answer is yes.
Illegal cabinet-level portfolios
This is not about the attorney general or the secretary to the cabinet. As I have explained above, the constitution explicitly says that the AG is a member of the cabinet. Article 154 also creates the position of secretary to the cabinet, although it does not make the holder a member of the cabinet. Whether the position of secretary to the cabinet is a cabinet-level portfolio is a discussion for another day. What I am interested in here is the legality of the other two cabinet-level portfolios Ruto has created on gender and national security.
The constitution and the law are explicit on how state office or offices in public service are to be created. The constitution is also implicitly inundated with the logic of circumscribing a strict criteria and processes of creating such offices, among them to curb wastage of public funds by creating unnecessary or duplicative offices.
The agency with the power to create a public office is the Public Service Commission (PSC). True, the president may request the PSC to create a position in public service—but when he does so, the PSC is required to conduct a thoroughgoing needs assessment to determine whether the position is necessary. The constitution anticipates this and the courts have said as much. If, in fact, the two positions are offices in public service, the strict requirements of Article 234 have not been complied with.
The constitution and the law are explicit on how state office or offices in public service are to be created.
There are only two other avenues through which Ruto could have created the two offices. The first is under Article 234(4) which allows the PSC to create a position of “personal staff” to the president. We shall settle this quickly because it would be oxymoronic to argue that a “cabinet-level portfolio” is a “personal staff” position for the president. In any event, did the PSC sanction it?
The second avenue is to be found under Article 260, which provides that parliament can create a state office but even then only through legislation. Question: under which law are the two offices created?
Constituting a cabinet is perhaps one of the most intense of boardroom wheeler-dealer activities. It is, for instance, hard to find the logic why, for example, Ababu Namwamba was assigned the sports and youth docket while Alfred Mutua was assigned foreign affairs. However, at times, the constitution is able to find logic in some of these nocturnal deals and I think, in this case it would easily discover the logic behind why the two tentative and illegal positions of cabinet-level portfolios ended up with women as nominees.
Article 28 is about human dignity. If there are two positions to be assigned, one that is constitutionally recognized and secured and the other constitutionally suspect and tentative, it is no secret that being appointed to the constitutionally secure position is more dignifying. Historically, and as Ruto has demonstrated with his list of cabinet nominees, women are always an afterthought when allocating consequential positions of leadership. This is not conjecture. Instead, it is a compelling argument under Article 259 of our constitution, a provision that requires the constitution to be interpreted in a purposive way. It is a position also supported by many other relevant and endless re-enforcing provisions of the constitution. So, the two most tentative positions are ultimately assigned to women, because, after all, in the animal farm context (but not under the 2010 constitution), all animals are equal but some are more equal than others.
Plum as the positions may seem, in contextual terms they raise an Article 28 issue. An issue of human dignity.
What to do?
There are two ways to deal with these constitutional infirmities. One: Ruto can withdraw his list and amend it accordingly to comply with the constitution. If he is too married to this strange concept of “cabinet-level portfolios” he should at least push some of the Mt Kenya men there and move the women to the real cabinet portfolios. We can then deal with the illegalities of where the men end up later. But that may all be wishful thinking.
Historically, and as Ruto has demonstrated with his list of cabinet nominees, women are always an afterthought when allocating consequential positions of leadership.
Second: In the Marilyn Muthoni case, Justice Onguto chastised the national assembly for aiding and abetting Uhuru (gleefully, may I add) in violating the constitution by failing to conduct, during the vetting of cabinet secretary nominees, a “strict scrutiny” (the judge’s words) on the constitutional compliance of the composition of cabinet for gender, regional and other factors – but primarily gender because the pith of the case was the violation of the two-third gender rule.
Moses Wetangula and the national assembly will soon have a choice to make: whether their primary allegiance and loyalty is to William Ruto or to the constitution.
TPLF Cannot Survive a Day Without Its Hypocrisy
It is the firm conviction of the Government of Ethiopia that the peace efforts under the auspices of the African Union must be conducted without preconditions, and the international community should condemn the TPLF’s intimidation of the AU Officials and frustration of the peace efforts in unison.
Lying pathologically is the perennial character of the Tigray People’s Liberation Front. From the cradle to the grave peddling lies is the bread and butter of this terrorist clique. On 04 November 2020, after mercilessly slitting the throats of members of the Northern Command in their sleep, the TPLF cried wolf that the Federal Government (FG, henceforth) pre-emptively attacked it. In the wake of this gruesome massacre, Sekoutoure Getachew, declared that by “pre-emptively striking the TPLF has destroyed the Northern Command”, exposing the facade of the clique awash with deception, brutality and an insatiable appetite for war.
Similarly, on 13 October 2021, the TPLF cabal brazenly declared that it is “willing go to hell to destroy Ethiopia”. After pre-emptively attacking the Ethiopian National Defense Forces (ENDF), once again, the TPLF shamelessly proclaimed that the ENDF attacked it from all fronts. With these heinous provocations, the TPLF showed to the world that it cannot live without shedding the blood of innocent civilians. The blatant, sadistic, self-contradictory proclamations of the TPLF distinctively deviate from the moral standards of a civilized society. There are no limits to its hypocrisy.
While wreaking havoc in the Amhara region unprovoked, the TPLF now alleges it was attacked by the ENDF from the Raya front. The spokesman of the TPLF claimed that the “truce has been broken”, which is true as it is the TPLF’s action, last straw that broke the camel’s back. Yet it is paradoxical to cry foul when it was meticulously self-inflicted. The TPLF is deafening us with its destructive, utterly irrational narratives emblematic of its siege mentality. The TPLF terrorist junta cannot survive without an ecosystem of betrayals, lies, siege mentality and chaos. Put simply, the TPLF cannot dwell in the sphere of the humane, the compassionate and the empathetic. Hence, the suffering of the people of our Tigrayan brothers and sisters under the TPLF’s captivity.
The words and deeds of the TPLF inarguably prove that it has no regard for the dignity of human life including the children it touts as soldiers. Its quotidian transgressions and its anarchic tendencies attest to this very fact. The forceful conscription of Tigrayan children as “soldiers” and the coercive mobilization of the general Tigrayan populace in the service of its suicide mission is a constant demonstration of its insatiable appetite to destabilize Ethiopia and the Horn of Africa by any means necessary, even if it means exterminating hapless civilians. Sadly, the international community doesn’t seem to care about the loss of countless lives. It is a deafening silence, at best. This must change here and now and the international community needs to pass an unambiguous verdict that the genocidal campaigns and crimes against humanity perpetrated by the TPLF in Tigray, Amhara and Afar regions must cease unconditionally in favour of a negotiated settlement.
While the FG has been undertaking confidence-building measures to peacefully resolve the conflict in Tigray, the TPLF is hell-bent on thwarting the peace process. On the one hand, the TPLF is paying lip service to the idea of negotiating with the Federal Government. On the other hand, it is incessantly engaged in an extensive military offensive and flagrantly violating the humanitarian truce. By doing so, it has been impeding government efforts to provide unfettered access to humanitarian assistance in Tigray. Many in the international community have corroborated these well-known facts, including UN agencies.
On 12 July 2022, the FG established a High-level Peace Committee (HLPC) led by the Deputy Prime Minister and Minister of Foreign Affairs to lead the government’s efforts to end the conflict in northern Ethiopia through negotiations. By instituting the HLPC the FG demonstrated its commitment to pursue a constructive engagement with the TPLF in good faith. On the contrary, the TPLF unequivocally refused to list a negotiating team. Even in the face of this awful conundrum, the government persistently appealed to partners to jointly work on restoring basic services to the Tigray region as well as the adjacent Amhara and Afar regions.
As we can all deduce from the history of the world, at a certain stage warring parties who have a genuine desire for peace go back to the negotiating table draw up short, medium and long-term solutions for sustainable peace. To this end, they also address the root socio-political and economic causes of the conflict and forge consensus to put in place a roadmap for peace. However, the TPLF lacks legitimate political demands that could be dealt with through negotiations. It still lacks a valid reason for its insolence and contempt for the people and government of Ethiopia. Every time the FG extends the TPLF an olive branch, it resorts to carnage for fear of becoming utterly irrelevant.
What is even more unnerving is its vexing assertion that without its brutal rule “Ethiopia will fall apart”!. With these diabolical ideals founded on the personality cult of its founding fathers, the TPLF is a specter of violence both in Ethiopia and the Horn of Africa region, while adding fuel to global conflagrations, threatening world peace. Whilst relegating all efforts of peace by the Government of Ethiopia to the museum of intellectual curiosity for fear of becoming extinct for lack of relevance, the TPLF dispatched an ominous letter to foreign dignitaries threatening another bloody war if its fantasy demands are not met.
On the morning of Wednesday, 24 August 2022, the TPLF launched an extensive military offensive with the made-up pretext of “being attacked on the Raya front”, reigniting an unsolicited conflict and flagrantly violating the humanitarian truce the Government of Ethiopia had worked so hard for. Ironically, the TPLF alleges that the FG commenced another “full-fledged war” at 5 a.m. local time via multiple fronts. The TPLF’s propaganda machine is a double-edged sword spreading this falsehood and betraying efforts for peace and reconciliation. Its latest actions accelerated its death wish while galvanizing the Ethiopian people to come to the rescue of their Tigrayan sisters and brothers, who are being held hostage by the TPLF. Through its various social and digital media outlets, the TPLF’s propaganda machinery has also been intensively engaged in undermining the peace efforts, denigrating and attacking the African Union, the leadership of the Commission, and the High Representative for the Horn of Africa, H.E. Olusegun Obasanjo. This is a regrettable reality that is giving Ethiopians, people of Ethiopian origin and friends of Ethiopia around the world sleepless nights. This needs to stop unconditionally.
It is the firm conviction of the Government of Ethiopia that the peace efforts under the auspices of the African Union must be conducted without preconditions, and the international community should condemn the TPLF’s intimidation of the AU Officials and frustration of the peace efforts in unison. The international community must also support the African Union in leading the facilitation process to bring about sanity and security to one of the most troubled regions in the world. Despite repeated unsubstantiated allegations, the government will continue with its efforts to find a lasting solution for the country’s various social and political challenges through the National Dialogue mechanism. There is every reason to believe that the worsening situation in Tigray could ameliorated through this indispensable means. Parallel to this, it is high time that the TPLF menace is buried, once and for all, through the concerted efforts of Ethiopians, the Ethiopian diaspora and friends of Ethiopia around the globe, near and far, by advocating for peace while singularly condemning the reckless terrorist activities in Tigray, Amhara and Afar. The boundless cruelty of the TPLF continues to result in a massive physical, spiritual and psychological trauma that will take years if not decades to come to terms with, let alone overcome. Lastly, the international community needs to unanimously condemn this reckless violence by sending out a clarion call to the TPLF to lay down arms and come to the negotiating table pronto, as the road to peace begins with the silencing of the guns.
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