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Data Protection in the Age of Huduma Namba: Who Will Benefit?

8 min read.

In a country where digital technology and personal data are routinely abused by unscrupulous officials and politicians, what kind of confidentiality can Kenyans expect from the new law on data protection? Is the law a genuine attempt at protecting Kenyans’ privacy, or is it for the benefit of credit card companies and banks associated with the Huduma Namba?

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A few years ago, in my Monday column in the Daily Nation, I explained why I was not among the millions of Kenyans who are on Facebook. I told my readers that the main reason I had not joined Facebook was because I wanted to keep my private life private.

I said that Facebook allows users to connect and “make friends” with dozens, if not hundreds, of people they would not normally interact with in daily life, which would not be such a frightening prospect if those you interacted with were people you trusted with all your heart. But because Facebook is an equal opportunity friendship-maker, the “friends” you make on the social networking platform could range from your boss to your plumber. This could affect your career development and your home life in significant ways.

Mark Zuckerberg, the founder of Facebook, believes that by allowing many people to share more of their personal lives with each other, he is helping to create a virtual global community where “people stay in touch and maintain empathy for each other.” In other words, he believes he is creating a more caring world, where transparency and openness are the modus operandi and where there are no secrets.

However, critics have argued that instead of connecting people in meaningful ways, Facebook actually isolates people, who spend more time online rather than doing things that strengthen relationships, such as talking to each other or sharing a meal. With an estimated 2.7 billion Facebook users around the world and an estimated 10 million users in Kenya alone, that is a scary scenario that has severe consequences on how people socialise and interact.

But what is even scarier is that Facebook – the company – has been sharing users’ private data with third parties without their knowledge, as has been confirmed by the Cambridge Analytica scandal, which revealed that Facebook users had been manipulated to impact elections in the United States and in Kenya, as well as in the Brexit referendum in the UK. The Cambridge Analytica scandal has shown that no data is safe and that those with ill intentions can use people’s personal information for nefarious objectives or for political gain.

It is not just companies like Cambridge Analytica (which closed shop as a result of the scandal) that are using Facebook data without users’ knowledge or consent. Recently, a local newspaper revealed that in the first half of 2019 the Kenyan government had on five different occasions demanded that Facebook reveal private information about Kenyan users of the social networking site. According to an article published in the Standard (which somehow did not raise any furore in Kenya perhaps because, as one Twitter user commented, we are so used to being abused that we no longer have the energy or motivation to fight back), “the [Kenyan] State refused to use proper legal channels while demanding the information, insisting on the urgency of the demand”.

The Cambridge Analytica scandal has shown that no data is safe and that those with ill intentions can use people’s personal information for nefarious objectives or for political gain.

The article, based on Facebook’s transparency report, further says that Facebook complied with at least one of these demands, but the company did not give details on the nature of the information the Kenyan government had demanded. The government also asked Facebook to preserve the account information of seven users. Apparently, such requests/demands are not unusual; reports indicate that the United States government requested Facebook to provide data on 82,461 users in the first six months of this year, while India made such requests on 33,324 users.

Data privacy and protection: An illusion?

At a time when data privacy and protection are becoming increasingly important, especially in light of revelations that governments and private companies are using social media platforms to manipulate voters, as happened in the Cambridge Analytica case, and in an environment of increasing xenophobia and fear-mongering, this revelation should have been a cause for alarm. But as is with most things in Kenya, news that the government was spying on its citizens and collecting data on them without their knowledge or consent barely elicited a yawn.

The story becomes even more intriguing given that Facebook is facing heavy criticism for violating users’ privacy. In July this year, Facebook was fined $5 billion by the US Federal Trade Commission for violating users’ privacy. The settlement includes several provisions that limit Facebook owner Mark Zuckerberg’s decision-making powers, including the creation of a privacy committee on Facebook’s board of directors.

We must also remember that the Jubilee government of Uhuru Kenyatta and William Ruto has not been averse to manipulating social media users to win elections. Not only has this government been implicated as a beneficiary of Cambridge Analytica’s social engineering and “psychological warfare” tactics in the 2013 and 2017 elections, but it also employed a gang of bloggers known as “The State House Boys” to bombard Kenyans with propaganda prior to and during the election period.

But as is with most things in Kenya, news that the government was spying on its citizens and collecting data on them without their knowledge or consent barely elicited a yawn.

Ironically, this is the same government that is now going after bloggers through the controversial Kenya Information and Communications (Amendment) Bill that some view as a gagging order on bloggers and social media users – a form of censorship that will severely curtail what and how Kenyans communicate via the Internet.

The Bill says that bloggers will need a licence to operate. Failure to comply with this requirement and to adhere to the standards set by the Communications Authority of Kenya could lead to fines of up to Sh10 million or two years in prison. Offences include “degrading” and “intimidating” recipients/readers. This leaves the door wide open for politicians and others to charge bloggers with all manner of offences just because they do not like what they have to say about them. Columnists, cartoonists, writers and even photographers could be “criminalised” on spurious grounds.

Huduma Namba and commercial interests

Ironically, while this Bill is being debated, Parliament has finally woken up to the fact that privacy is a right guaranteed by the Kenyan Constitution. A few days before Kenyans learnt that the government was spying on its citizens through Facebook, President Uhuru Kenyatta approved legislation that complies with the European Union’s General Data Protection Regulation. The Data Protection Bill, 2019, which came into force in mid-November this year, prevents governments and corporations from sharing an individual’s personal data without the consent of the owner of the data. Personal data is defined as information relating to a person’s race, ethnicity, gender, marital status, educational background, medical condition, criminal history and financial transactions, among others. (Note: Some data, such as a person’s credit rating, though protected by privacy laws in Kenya and in other countries, are still easily accessible to interested parties.)

A Data Protection Commissioner will also be appointed to ensure that the law is enforced. The Commissioner will not only receive complaints about data privacy violations but will also have the power to investigate breaches of privacy and to impose fines. However, the Data Protection Bill also says that this law will not apply to personal data collected for the purposes of national security or in the public interest.

This law is viewed as critical to ensuring that data is not abused by third parties and is seen as a necessary and important step to increase investor confidence in Kenya and to regulate the use of mobile phone technology and digital apps, which are increasingly becoming the targets of predatory business and corporate interests.

The timing of the law is, however, interesting. It comes into force at precisely the time when the government is being criticised by some for implementing the National Integrated Identity Management System – better known as Huduma Namba – which many view as a surveillance tool modelled on the Chinese “social credit” system, where citizens gain points for “good conduct” and lose points for “bad behaviour. As I have said before, the idea that you can be denied a service because you cannot identify yourself through a number negates basic constitutional freedoms and rights. Various government mandarins have said that those without a Huduma Namba will be denied government services, including obtaining a Kenya Revenue Authority Personal Identification Number (PIN).

Critics have also raised privacy concerns with regard to Huduma Namba, which is perhaps why the Data Protection Bill was passed in a hurry – to reassure Kenyans that their personal biometric data is safe and that government institutions have perfected the art of making digital technology secure. However, as has been witnessed in the recent past, laws in Kenya are not sufficient to protect Kenyans from electoral or other types of fraud and invasions of privacy.

For instance, Kenya’s electoral body, the Independent Electoral and Boundaries and Commission, has proved to be completely inept (or deliberately malicious) in using technology, as demonstrated during the 2013 and 2017 elections when the biometric digital systems for voting either failed or malfunctioned. Apart from questions regarding the procurement of the technology, and whether kickbacks were involved, Kenyans watched in horror as the electoral body fumbled through the election results, even claiming that several voting stations could not electronically transmit the election results. Almost all attempts by this so-called “digital” government to introduce computerised systems in government, ostensibly to reduce corruption and to streamline service delivery, have also failed miserably; in fact, corruption has reached unprecedented levels. It is now an accepted fact that the introduction of the Integrated Financial Management Information System (IFMIS) in government procurement led to the disappearance and theft of billions of shillings from state coffers. If IFMIS can be so easily manipulated by government officials, then how easy will it be to hack or manipulate the Huduma Namba and other data collection systems?

There are also strong rumours that the National Hospital Insurance Fund (NHIF) is being routinely robbed by unscrupulous medical officers and NHIF employees. Kenya Power, the country’s only electricity company, has also been accused of stealing from customers by sending them fictitious and inflated bills. All this is possible because employees have access to subscriber/customer data that they can easily manipulate. In other words, no Kenyan is safe from government bodies that provide a service at taxpayers’ expense – you will either be denied the service or will be robbed. –.

Citizens or borrowers? The debt trap

But protecting people’s privacy in order to comply with the Constitution may not be the primary motive of the data protection bill. As David Ndii has suggested in a recent article, the Huduma Namba is not so much a personal identity tool for Kenyan citizens as it is a credit facility that ensures that every Kenyan is a potential “customer” for micro-credit services, and which has the potential to place every adult Kenyan on a borrowing treadmill that will benefit banks and businesses associated with the Kenyatta family.

The scheme could have severe adverse effects on citizens/customers/borrowers who risk getting a negative credit rating, and thus becoming criminalised, not for “bad behaviour” as the Chinese would define it, but for not paying back a loan on time. Remember, unlike a normal credit card, the customers –Kenyan citizens – have not been given a choice whether or not to apply for the card – the government has deemed it mandatory for everyone.

Given the high standards set by international credit card companies on issues such as customer privacy and data protection, it is possible that the Data Protection Bill was a means to make the Huduma Namba (and its local and international commercial partners) compliant with international norms and standards, thus giving the illusion that, unlike rogue betting companies or greedy loan sharks, the Huduma Namba is a respectable and legitimate way of borrowing money.

If IFMIS can be so easily manipulated by government officials, then how easy will it be to hack or manipulate the Huduma Namba and other data collection systems?

The question one must ask is: if the Huduma Namba is essentially a credit card, what business is it of the government to impose credit cards on people who can barely make ends meet, thanks to the same government’s economic policy failures? For the government and its commercial partners to make money from hapless Kenyan borrowers is not only unethical, but raises questions about whether – like the subprime mortgage crisis in America where the US government’s housing agencies encouraged low-income people to buy houses even though they did not have the means to pay the mortgage – this scheme could lead to the collapse of an economy that is already in the doldrums.

Coupled with the “Affordable Housing” pillar of the Jubilee government – which is based on the erroneous premise that a majority of low-income people in the country are eager to own apartments (a notion I refute in this article), I see many Kenyans losing their money and their property because the government has encouraged them to take loans they cannot afford. This government has already set the country on a path to unprecedented and unsustainable debt. Now it wants every Kenyan to become a reckless borrower.

The problem is that, unlike the government, individuals cannot rely on taxpayers or a second credit facility to get them out of a debt trap. Families in the United States who lost their homes during the subprime mortgage crisis have still not recovered, despite President Barack Obama’s efforts to avert a financial crisis in 2008 – a lesson this government is unwilling or unable to process but which signals doom for the many Kenyans who are being made to believe that taking a loan, no matter how risky, is the easiest way out of poverty.

Rasna Warah
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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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Seeds of Neo-Colonialism: Why GMO’s Create African Dependency on Global Markets

Rather than addressing food scarcity, genetically modified crops may render African farmers and scientists more, not less, reliant on global markets.

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As COVID-19 continues to lay bare the deficiencies in the global food system, imagining new food futures is more urgent than ever. Recently, some have suggested that seeds that are genetically modified to include pest, drought, and herbicide resistance (GMOs) provide an avenue for African countries to become more self-sufficient in food production and less reliant on global food chains. Although we share the desire to build more just food systems, if history is any indicator, genetically-modified (GM) crops may actually render African farmers and scientists more, not less, reliant on global actors and markets.

In a paper we recently published in African Affairs, we trace a nearly 30-year history of collaborations among the agribusiness industry, US government agencies, philanthropic organizations, and African research councils to develop GMOs for African farmers. We found that these alliances, though impressive in scope, have so far resulted in few GMOs reaching African farmers and markets. Why, we ask, have efforts to bring GMOs to Africa yielded so little?

One reason, of course, is organized activism. Widespread distrust of the technology and its developers has animated local and transnational social movements that have raised important questions about the ownership, control, and safety of GM crops. But another issue has to do with the complex character of the public-private partnerships (PPPs) that donors have created to develop GM crops for the continent. Since 1991, beginning with an early partnership between the US Agency for International Development (USAID), the Kenyan Agricultural Research Institute, and Monsanto to develop a virus resistant sweet potato (which never materialized), PPPs have become a hallmark of GMO efforts in Africa. This is mainly so for two reasons. The first is that GM technology is largely owned and patented by a handful of multinational corporations, and, thus, is inaccessible to African scientists and small to mid-sized African seed companies without a partnership agreement. The second is that both donors and agricultural biotechnology companies believe that partnering with African scientists will help quell public distrust of their involvement and instead create a public image of goodwill and collaboration. However, we found that this multiplicity of partners has created significant roadblocks to integrating GMOs into farming on the continent.

Take the case of Ghana. In the mid-2000s, country officials embarked on an impressive mission to become a regional leader in biotechnology. While Burkina Faso had been growing genetically modified cotton for years, Ghana sought to be the first West African country to produce GM food crops. In 2013, Ghanaian regulators thus approved field trials of six GM crops, including sweet potato, rice, cowpea, and cotton, to take place within the country’s scientific institutes.

However, what began as an exciting undertaking quickly ran into the trouble. Funding for the sweet potato project was exhausted soon after it began. Meanwhile, cotton research was put on indefinite hold in 2016 after Monsanto, which had been supplying both funding and the Bt cotton seed, withdrew from its partnership with the Ghanaian state scientific council. Describing its decision, a Monsanto official said that without an intellectual property rights law in place—a law that has been debated in Ghanaian parliament and opposed by Ghanaian activists since 2013—the firm could not see the “light at the end of the tunnel.”

Monsanto was also embroiled in legal matters in Burkina Faso, where their Bt cotton had unexpectedly begun producing inferior lint quality. Meanwhile, Ghanaian researchers working on two varieties of GM rice had their funding reduced by USAID, the main project donor. This left them with insufficient resources, forcing the team to suspend one of the projects. The deferment of both the cotton and one of the rice projects dealt a blow to the Ghanaian scientists who were just a year or two away from finalizing their research.

In many ways, the difficulties presented here from both Ghana and Burkina Faso suggest that efforts to bring agricultural biotechnology to Africa are a house of cards: the partnerships that seem sturdy and impressive from the outside, including collaborations between some of the world’s largest philanthropies and industry actors, are actually highly unstable. But what about the situation in other countries?

Both Nigeria and Kenya have made headlines recently for their approval of GM crops. The news out of Nigeria is especially impressive, where officials recently approved a flurry of GMO applications, including Bt cotton and Bt cowpea, beating Ghana to permit the first genetically modified food crop in West Africa. Kenya also approved the commercial production of Bt cotton, an impressive feat considering the country has technically banned GMOs since 2011. Both countries, which have turned to an India-based Monsanto subsidiary for their GM seed supply, hope that Bt cotton will help revitalize their struggling cotton sectors. While biotech proponents have applauded Nigeria and Kenya for their efforts, it will take several growing seasons and more empirical research to know how these technologies will perform.

As the cases described here demonstrate, moving GMOs from pipeline to field is not simply a matter of goodwill or scientific discovery; rather, it depends on a multitude of factors, including donor support, industry partnerships, research outcomes, policy change, and societal acceptance. This complex choreography, we argue, is embedded in the DNA of most biotechnology projects in Africa, and is often ignored by proponents of the technology who tend to offer linear narratives about biotech’s potential to bolster yields and protection against pests and disease. As such, we suggest the need to exercise caution; not because we wish to see the technology fail, but rather because we are apprehensive about multi-million dollar collaborations that seemingly favor the concerns of donors and industry over those of African scientists and farmers.

The notion of public-private partnerships may sound good, but they cannot dispel the underlying interests of participating parties or the history and collective memory of previous efforts to “improve” African agriculture.

This post is from a new partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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The Chira of Christopher Msando Will Haunt His Murderers Until Justice for His Family Is Served

Those who contributed in any way to the abduction, torture and assassination of Christopher Msando will eventually face justice because if there is something that history has confirmed to us time and again, it is that justice is always served, no matter how long it takes.

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The Chira of Christopher Msando Will Haunt His Murderers Until Justice for His Family Is Served
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Lately, I have been thinking a lot about chira. In Luo language and culture, the closest translation of chira is “curse”. It results from an infraction of the kwer (taboos) and can befall an individual, a clan, a community or even a nation. In some cases, ritual cleansing can take away the chira. However, the chira arising from killing a person cannot be removed through rituals. It remains with you, your clan and your community. I am convinced that a chira from the kidnap, torture and brutal assassination of Christopher Msando haunts Kenya to date. The dire state of the economy, socio-economic inequalities, political polarisation, corruption, and state capture, all seem to have gotten worse in the last three years.

To refresh our memories, Christopher Msando was the Information Communications Technology (ICT) manager at the Independent Electoral and Boundaries Commission (IEBC). Msando oversaw key ICT processes, including the audit of the register of voters and the data centre project. Crucially, he was the project manager for the electronic transmission of results for the 2017 presidential elections. Msando was one of the few Africans who had access to the highly sensitive results transmission system set up by the French company Safran/OT Morpho (now renamed IDEMIA). Safran had been single-sourced by the IEBC to deliver the Kenya Integrated Election Management System (KIEMS), in a contract worth close to Sh6b. The deal was so scandalous that even the state-captured Kenya National Assembly’s Parliamentary Accounts Committee on 24 April 2019 banned Safran/OT Morpho/IDEMIA from operating in Kenya for ten years.

Msando had been unanimously nominated by the Wafula Chebukati-led Commission to lead key ICT processes. He was hard working, had superb technical skills, a strong team spirit and excellent communication skills. Msando was an honest man, who at times seemed quite naïve in the trust he placed in his bosses to do the right thing. He was transparent in sharing the loopholes in the ICT system and revealed how some “external” actors had already gained access to it, months before the August 2017 election. He explained complex processes to the Commissioners in layman’s language, without making them feel insecure due to their lack of ICT knowledge. This is probably the singular reason the Commission chose him over his then boss, James Muhati, to be responsible for the ICT operations for the 2017 election. Unlike Muhati, Msando did not show the Commissioners disdain for their ignorance or incompetence.

One of the few defiant actions taken by the Chebukati Commission was to suspend Muhati in May 2017, allegedly for failing to cooperate with an internal audit. But as press reports indicated at the time, there was more to the story than the Commission revealed. The suspension took Muhati’s close friend, then Chief Executive Officer, Ezra Chiloba, by surprise. Chiloba made several attempts to block the suspension from being executed, prompting a reprimand from the Commissioners. Msando was unanimously appointed the officer-in-charge of the ICT directorate.

Within a month of being in charge of the ICT directorate, Msando finalised the register of voters, secured a new data centre, developed the workflow for the electronic transmission of presidential results and sealed some technical loopholes in the KIEMS gadgets that would have enabled “dead voters” to vote. It is probably these measures that he had put in place that gave Msando the confidence to say to John-Allan Namu in an interview in June 2017 that “no dead voters will rise under my watch”. And indeed, with his assassination, potentially, many “dead voters” voted.

Reports indicate that the intention of the Commission had been to keep Muhati suspended until the end of the 2017 elections. However, former Commission staff say that Chebukati received a “dossier” from the Jubilee Secretary-General, Raphael Tuju, falsely claiming that Msando was working for the opposition coalition, NASA. Incidentally, death threats against Msando intensified during this period. He spoke openly about them, showed friends and colleagues the chilling text messages, and with his typical hearty laughter, brushed them off as he went on with his work almost unperturbed. Despite making official reports, no measures were taken to address his concerns. Msando was not even provided with a Commission vehicle and security, which he was entitled to by dint of his functions.

In the meantime, the pressure to reinstate Muhati intensified. There are reports that Deputy President William Ruto and his wife Rachel Ruto called almost all the Commissioners to demand the reinstatement of Muhati, who is a close friend from their University days. Those who did not get a direct call from the Deputy President or his wife, had the message delivered by his Chief of Staff, Ambassador Ken Osinde. Despite protests from two of the Commissioners, Muhati quietly returned from his suspension on 1 June 2017, and from then on, Msando’s days on earth were numbered.

The reports of Msando’s disappearance on 29 July shocked but did not surprise many at the Commission. The threats had been there for many months including on the lives of Chebukati and former Commissioner Roselyn Akombe. One would say that the manner in which these threats were handled by the Commission made the environment conducive for Msando to be assassinated. The silence emboldened his assassins to go ahead with their plan. For their silence, the chira from Msando’s murder will forever remain with Chebukati, Akombe and the other Commissioners.

On that fateful day on 29 July 2017, it is alleged that Chiloba and Muhati asked Msando not to go home after his KTN interview at 7 pm. It is reported that Msando and a friend decided to have drinks at a joint near the Commission’s Anniversary Towers office, as they waited for further instructions from Chiloba and Muhati. Details of what exactly happened to Msando from that Friday night until his bruised body was identified at the City Mortuary on 31 July 2017 will eventually come out. It is clear that there are many colleagues of Msando’s who have more information than they have revealed in public. To many them, chira for their silence will forever hang over them.

But of course, the harshest chira is reserved for those who ordered, aided and executed Msando’s abduction, torture and assassination. If there is something that history has confirmed to us on many occasions, it is that justice is always served, no matter how long it takes. Just this year, we have seen the fugitive Félicien Kabuga, an alleged leader and financier of the 1994 Rwandan genocide arrested. Monuments in honour of those who perpetuated grave injustices including racism, slavery and colonialism for more than 400 years have been brought down in the United States and Europe. And just last month in Germany, 94-year-old Reinhold Hanning was convicted of being “an accessory” to the murder of thousands of Jews while he worked as a guard at the Auschwitz Death Camp. It took 77 years to convict him for crimes he committed at the age of 17, but justice was eventually served.

It does not matter how long it will take, justice for Chris Msando will be served. Msando’s children Allan, Alvin, Alama and Alison deserve to know why their daddy was murdered. His widow Eva has several unanswered questions. Mama Maria needs to know why her last-born son could not have been jailed if he had done something wrong, rather than wake up every morning to his grave in Lifunga. Msando’s siblings deserve closure. But three years on, the investigators have no answers to offer nor have they shown any interest in the case. Politicians like Moses Kuria, Kimani Ngunjiri and Oscar Sudi continue to recklessly play politics with such a painful issue. But Msando’s friends are quietly pursuing the leads. Quietly documenting the facts. For, eventually, Kenya will have to reckon with its history of political assassinations.

In the meantime, over to juok, to continue raining chira on those who contributed in any way to the abduction, torture and assassination of Msando.

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Quest for a More Equitable Nation Undermined: CRA’s Mission Aborted

In 2010 Kenya adopted a constitution that promised to address the daunting problem of ethno-regional economic discrimination. The Commission for Revenue Allocation was created to safeguard this intention and put an end to the exclusion of many ethnic communities in Kenya, a legacy of colonial rule and a decades-long centralised, ethicised, and personalised presidential system.

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The current contentious debate in the Senate on the horizontal revenue allocation formula between counties, reveals a lack of political goodwill to end legal, systemic and institutionalised marginalisation in Kenya. The fact is that this formula does not exist or emerge in a vacuum, but is rooted in the political machinations and ideologies of those who control the dominant knowledge system that has informed economic policies responsible for sustaining regional privilege.

The proposals on the new revenue sharing formula are a clear sign that although regional discrimination might have been legally terminated, structural, social and systemic discrimination still thrives in Kenya. This is because the dominant philosophy of public policy continues to mirror the same exclusivity and discrimination that were legally institutionalised by Sessional Paper No. 10 of April 1965 authored by Tom Mboya and a cabal of bureaucrats at the post-independence national treasury and planning ministry.

Kenyans must be reminded that the idea of the Commission on Revenue Allocation (CRA) as an independent Commission emerged in response to the (traditionally) skewed allocation of revenue in Kenya. The constitution provides for Commissions and Independent Offices as an avenue to better cushion Kenya’s national interest against transient executive policy choices. Until the enactment of the 2010 constitution, all revenue allocations were centralised under the national government. Because of the pervasive absence of a culture of nationhood in Kenya and the extent of fragmentation in the society, most distribution of national resources has been based on ethnic, regional or political interests.

The exclusion of many ethnic communities in Kenya is the legacy of colonial rule and a decades-long centralised, ethicised, and personalised presidential system. Concerned by the entrenched economic inequalities, the constitution devised the counties to disburse a minimum of 15 per cent of the nationally generated fiscal revenue to the 47 subnational units. Additionally, it sought to ensure that equity was the overriding consideration in sharing revenue among the 47 counties.

The CRA was created to safeguard this intention and mandated to develop a sharing formula every five years. In conceptualising its mandate, the CRA must thus bear in mind this twisted legacy of our economic history and adopt a holistic and not just a positivist approach. Such an approach will integrate an appreciation of historically skewed allocations in favour of some regions the net effect of which has been to render these regions more attractive to diverse economic activities. Factoring in an amortised perspective of an investment in roads in 1960 would provide clarity in what the present value of such an investment could have accrued to a beneficiary region.

To fully understand the institutionalised discrimination patent in the proposed formula, it is important to recognise that, whereas 70 per cent of Kenya’s revenue remains with the national government, the formula does not take this into consideration, yet we know the degree of political expediency that underpins the national government’s distribution of this revenue across various counties through infrastructural and social development programmes. Then, on the basis of only the 30 per cent allotted to counties, the Commission has designed the formula presently before the Senate, where again it proceeds to attach much weight to population and disregards its responsibility to assign equal weight to regional economic disparities and the need for affirmative action in favour of disadvantaged regions.

Why did the formula turn a blind eye on inter-governmental fiscal transfers over and above the amount allocated to county governments as their equitable share of the revenue raised nationally under Article 202(1)? Is it proper for the formula to fail to factor in the impact of five other types of transfers to counties by the national government, namely, conditional and unconditional grants, loans, the equalisation fund, and constituency development funds?

The formula and the range of reactions in its defense reveal gaps in the way marginalisation in Kenya is understood, defined and addressed. In other words those individuals who designed the formula are conditioning Kenyans to only consider the slices of cake and ignore the way the national cake is divided. Under a purposive and holistic interpretation of article 203 (1) (f) (g) and (h), the revenue allocation should consider the distribution of national government projects.

The information on how the national government projects are allocated to the various counties is easily accessible to the Commission and the public through the Presidential Service Delivery Website. Furthermore, the CRA needed to have conducted a structural audit assessment of various counties. Such an audit would assess the kilometres of paved roads, the hospitals, the bridges, power connection, water connection, accessibility to mobile telephony and internet infrastructure, number and quality of schools, among others. Take for example the two counties of Kiambu and Kakamega with a population of approximately 1.6 and 1.9 million people and a landmass of 2,500 km and 3,225 kilometres respectively. Kiambu has 1,145 km of bitumen roads against a mere 700 km for the entire Western Province which has five counties. Kiambu County has 1,145 primary schools against 460 for Kakamega, and a 7/1000 infant mortality rate in Kiambu compared to 65/1000 in Kakamega.

A good formula that accounts for the above reality must involve the conscious use of the normative system called the “Presidential Service Delivery” to examine the extent to which national government programmes comport with the notion of equitable economic development. The lack of conscious use of the process of developing the revenue sharing formula by the CRA to narrow the poverty and marginalisation gap undermines its possible instrumentality to secure a more equitable and just nation. It undermines the use of Independent offices and commissions in promoting checks and balances in the developmental process in Kenya. It is up to the Senate and CRA to consider using the revenue allocation formula not as a ritualistic policy obligation to be undertaken every five years but to deploy it in furthering the entrenchment of economic justice, equality and inclusion in the country.

The argument advanced by those supporting the formula that counties that generate more revenue should benefit from higher allocation is pretentious as it conceals the fact that their present economic advantages flow from the relative deprivation of other regions historically. The justifications mobilised by proponents of the formula as they seek to protect their privileged economic status is a type of absolution (to help them sleep at night) and is aptly captured by Albert Memmi, the Tunisian Jewish writer and one of the most influential theorists to emerge out of the post-World War II African decolonisation movement:

The fact remains that we have discovered a fundamental mechanism, common to all marginalization and oppression reactions: the injustice of an oppressor toward the oppressed, the formers permanent aggression or the aggressive act he is getting ready to commit, must be justified. And isn’t privilege one of the forms of permanent aggression, inflicted on a dominated man or group by a dominating man or group? How can any excuse be found for such disorder (source of so many advantages), if not by overwhelming the victim? Underneath its masks, oppression is the oppressors’ way of giving himself absolution.

In other words, to justify the formula is to totally disregard the important reports on historical marginalisation like the Truth, Justice and Reconciliation Report, that clearly pointed out those who are at the center and at the margin or periphery of national development.

The CRA’s mischief in the current stalemate regarding the formula to be used as the basis for sharing revenue among counties is a continuation of the disdain towards marginalised counties reflected in its recommendations to parliament with respect to the Second Policy on the Criteria for Identifying Marginalised Areas and Sharing of the Equalisation Fund in accordance with its mandate under Article 216(4) of the Constitution. The fund is a constitutional earmark of 0.5 per cent of annual revenue to be used to “provide basic services including; water, roads, health facilities and electricity to “marginalised areas”, as urged by article 204(2).

Under the second policy, the CRA departs from the first policy that had identified 14 counties in northern Kenya as marginalised areas and thus deserving of benefitting from the equalisation fund and instead identifies 1,424 administrative divisions across the 47 counties as “marginalised areas”. The policy choices in the CRA’s approach to the equalisation fund unravel when one realises that a good number of the administrative divisions identified are within the geographical limits of fairly well developed counties. Moreover, the choice of administrative units privileges national government structures and weakens the role of counties in the process. Worse, the choice shifts focus from the 14 historically marginalised counties whose economic exclusion the fund was intended to ameliorate. It assumes that parity in development has been achieved between the 14 counties and the rest of Kenya, a wildly fallacious assumption. Had the equalisation fund mechanism been implemented as envisioned in the constitution—with beneficiary counties managing the allocations—it could have assisted in cushioning marginalised counties in the event a formula favouring population as the overarching basis for revenue sharing is enacted.

In 2010, Kenya adopted a constitution that promised to address the daunting problem of ethno-regional economic discrimination. Its egalitarian tenets are evident in the quiet embrace of the principle of Ubuntu via Article 10 which holds “sharing” and “social justice” as defining values of our statehood.

As such, those at the CRA who developed the contentious formula must review their empirically unsupportable position that Kenya has made substantial progress in addressing marginalisation. We are persuaded by Malcom X’s assertion in his attack on race relations policies in the United States thus, “If you stick a knife nine inches into my back and pull it out three inches, that is not progress. Even if you pull it all the way out, that is not progress”. Progress is thus about healing the wound, and Kenya hasn’t even begun to pull out the knife of inequality. The CRA must stand up to its mission or disband.

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