In his column in the Sunday Nation of May 31 2020, Professor Makau Mutua argued that there was need for a constitutional amendment targeting the Judicial Service Commission (JSC). Although details about his proposed reforms were scant, he did articulate three core changes on structure, membership and mandate.
On structure, he proposed splitting the JSC in two: an independent body for interviewing judicial candidates and hearing petitions against judges and, a commission chaired by the Chief Justice that would exclusively deal with the judiciary’s administration matters.
On membership, Mutua seemed to prefer dismantling the current membership of the JSC and adopting a model more akin to how other commissions — such as the Kenya National Commission on Human Rights — are constituted. The effect of such a model would be to ensure that institutions with ring-fenced membership in the JSC — the Law Society of Kenya, the Magistrates, Judges of the three Superior Courts and the Public Service Commission — would have no representation in the body. The model would likely then require the President to appoint a recruitment panel for commissioners and then both he and parliament would have the final word on who become JSC commissioners.
On mandate, Mutua argues for reducing the role of the JSC and limiting it to “only interviewing judicial candidates and hearing petitions against judges”. His choice of words is critical, because interviewing judicial candidates is not the same thing as deciding which persons should be appointed judges. The most extreme of Mutua’s recommendations is on the removal of judges, which he proposes be ceded to parliament.
There are many reasons why Mutua’s suggestions are highly regressive and unhelpful. However, before I outline some of those reasons, it is critical to explain what the constitution currently provides in respect of the JSC.
The Constitution and the JSC
The JSC is one of the independent commissions established by the constitution. It has eleven members with its composition constituted through a mixed approach. The first category are permanent positions comprising persons occupying the positions of Chief Justice and Attorney General. The second category are elective positions with the first three being for the judges of the Supreme Court, the Court of Appeal and the High Court. There are three other elective positions, one for Magistrates and the other two for a female and male advocate who are members of the Law Society of Kenya. Position to the third category are appointive, with appointment to the first position being made by the Public Service Commission. The constitution describes the remaining two appointive positions as “one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of National Assembly”.
The JSC’s overarching role is to facilitate the independence, accountability as well as transparency and efficiency of the judiciary. One of its core tasks is nominating and recommending to the President, following a competitive and open process, persons for appointment as judges. Additionally, it is responsible for considering complaints against judges and notifying the President when to form a tribunal to determine whether a judge should be removed from office.
With the exception of the Chief Justice and the Deputy Chief Justice, whose candidatures have to be vetted by the National Assembly, the JSC essentially makes the decisions on persons to be appointed judges. Even for the Chief Justice and Deputy Chief Justice, the President and the National Assembly cannot substitute their choices for those of the JSC. Fundamentally, if the National Assembly declines to approve the person selected as Chief or Deputy Chief Justice, the JSC has to recommend an alternative candidate for vetting.
Of course, both Mwai Kibaki and Uhuru Kenyatta have shown their frustration with the constitutional edict removing from them the power to decide or directly influence the appointment of judges. This was apparent from the first appointments under the 2010 Constitution when Mwai Kibaki rushed to appoint a now retired Judge of the Court of Appeal as Chief Justice without the involvement of the JSC. The courts were quick to assert their authority, suspending Kibaki’s decision and the JSC eventually conducting a competitive process that saw Dr Willy Mutunga appointed Chief Justice. Ironically, Mutunga was perhaps the last person Kibaki had in mind for the position of CJ because, even though Kibaki’s autocratic tendencies now pale in comparison to Uhuru Kenyatta’s, still he seemed to prefer more pliant judges.
Nevertheless, while Kibaki was gracious after the courts blocked his choice, Uhuru has been contumaciously obstinate about seeking to influence the appointment of judges. It started in 2014 when he refused to appoint 14 Judges nominated by the JSC. The courts eventually forced him to make the appointments. Yet, since July 2019 he has refused to appoint 41 new Judges nominated by the JSC despite being ordered to do so by the courts. His court filings on the case show that he believes he can haggle over who he does not want to see appointed judge.
Ring-fencing the independence of the judiciary
The constitutional framework establishing the JSC is perhaps one of the constitution’s strongest tools to guarantee the independence of the judiciary by ensuring that (legally) political actors have little leeway to influence who becomes a judge. Yet, there are many other constitutional provisions that jealously guard the independence of the judiciary. This ring-fencing was not a chance constitutional design occurrence. It was reflectively deliberate. Historically, as Mutua rightly indicated, the propensity of Kenya’s political elite to demand control of the judiciary has been insatiable. Yet, in his wisdom, Mutua asks that parliament be given the mandate to remove judges. If this had been the case, nearly all our leading judges who have displayed exceptional courage in defending the rule of law would be long gone even where the threshold for removal was a vote by two-thirds of parliament. It would be an exceptionally gleeful removal ceremony as punishment for those judges who have displayed inestimable consistency in defending the rule of law and calculated to create a chilling effect on those still in the judiciary.
There is another and more fundamental reason.
The 2010 Constitution created a constitutional democracy. The cardinal feature of a constitutional democracy is the rule of law. Rule of law is a very basic concept which simply means that no person or institution should operate above or outside the law. That includes the President and his relatives. The sacrosanct task of checking that everyone operates within the law is assigned to the judiciary. A constitutional design that ensured that the institution entrusted to call out those who violate the law is to the extent possible devoid of interference was key. The solution was a professional yet diverse institution – the JSC – where no one voice had an eclipsing effect. Importantly, the designers of the Constitution made sure that legally the political class – the President and Members of Parliament – had a minimal, perhaps nearly inconsequential, role in deciding the composition of the judiciary.
Mutua anecdotally samples how judges are appointed in different jurisdictions starting from – yes, you guessed right – the United States. He then mentions India and South Africa while providing scant details about the relevance of these countries.
As a starting point, the United States is just the wrong place to go when one wants to argue a case for the independent and professional appointment of judges. To begin with, the United States is not a modern constitutional democracy. In fact, I would argue that it is not at all a constitutional democracy but perhaps merely a struggling democracy with a constitution written by slave owners. Second, recent events have shown how the political class in the United States manipulates judicial appointments to entrench their political ideologies through the courts. I need say no more here.
The most recent detailed study on best practice to guarantee judicial independence through appointments, tenure and removal of judges is by the Commonwealth in 2015. The study builds on and complements the Latimer House Principles, a set of guiding principles promulgated by the Commonwealth Heads of State in Abuja in 2003 for the best ways to ensure a true separation of powers between the three arms of government: the judiciary, legislature and executive. While that study does not rate the legal norms of individual commonwealth countries for their effectiveness in guaranteeing judicial independence, it distils a set of principles for best practice. Kenya’s legal framework, under the 2010 Constitution, would rate relatively highly measured against those criteria.
We have in the 2010 Constitution the best law we perhaps could hope for to support the independence of the judiciary. It is therefore difficult to understand how the amendments to the constitution that Mutua argues for, superintended by a regime that does not believe in an independent judiciary, can achieve better independence, transparency and accountability of the judiciary.
In ordinary times, Mutua’s proposals would not elicit a response. However, they are made during a season of heightened and choreographed demands by those who control the executive and parliament, to effect amendments that would neuter the independence of the judiciary. His proposals might just be part of the “intellectual” primer that the Building Bridges Initiative is desperately clamouring for to sanitise its upcoming proposals for constitutional change.
Right of Reply
I hope you’ve been well. I’ve read with interest your response piece in the Elephant. It’s challenging and engaging. Several points.
First, you essentialize democracy without realizing it’s a system of governing people based on the stilts and fictions of liberalism. Those fictions and stilts are very fragile. That’s why democracy is an experiment whose outcome is unknown. That’s why there’s nothing like a “modern” democracy. Every country has a dynamic and evolving political system within the genre of political thought and history known as democracy. What would interest me are thoughts about a post-modern post-liberal democracy.
Second, all systems and institutions rely on community ethics and standards of internalized norms and behavior. You can’t abstract Kenya’s institutions from its corrupt elites in the judiciary, executive, and legislature — and even civil society. It’s a rotten country, and you know it. The three arms of the state are all equally corrupt. They work together to steal and destroy. That’s why it’s fallacious to imagine the JSC or the judiciary is above the muck.
Third, law is important but not determinative of anything. Virtually all a society’s choices lie in politics — even law. If your politics are bad — as we’ve seen in the US, and has been the case since its founding, then your laws are bad.
Fourth, you can’t carve out a sane lane in the judiciary without capturing state power and then leading a moral, normative, and cultural revolution. Anything else is just elite and bourgeois musical chairs. Lastly, the founders of the American state weren’t slave owners — rather, they repressed ENSLAVED Africans. No one can normatively be a slave, but people can be empirically enslaved — I’ve written a chapter on this for a forthcoming book that Caroline Elkins has edited.
On the enslavement question, I just want to add that one human being can treat another as chattel, or commercial property — as Arab, Europeans, and White Americans did to black Africans. But this empirical transactional concept cannot normatively vacate the humanity of the person treated as chattel. In other words, one human being cannot be normatively owned by another. That’s why the term slave is a political assertion without a philosophical basis. It’s normalized by those who dehumanize black Africans in a bid to turn enslavement into a natural condition.
Finally, let me thank you for keeping the debate I started vibrant. We can disagree, even in civil society without ulterior motives, or being pawns. The tyranny of the intellect which requires orthodoxy or unanimity is by definition anti-intellectual. Let’s continue the debate and engage it in a higher gear when we meet post-COVID!
Prof Makau Mutua
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Why Opinion Polls May Not Always Predict Election Outcomes in Kenya
This is the second in a series of articles that will review and comment on surveys related to the August 2022 general election, providing analytical tools to enable the reader to assess their credibility and potential impact.
This is the second in a series of pieces I have been engaged by The Elephant to write on the place of surveys in the forthcoming election. As I noted in my first piece, I do so as objectively as I can, although for the sake of transparency I again declare that I am currently engaged as a research analyst for one of the firms whose results I review here (Trends and Insights for Africa, or TIFA).
A handful of recent polls
Since my previous piece was published at the beginning of April, the results of three credible surveys were published through the middle of May: those released by the Radio Africa Group in The Star on 18 April, by Trends and Insights for Africa (TIFA) on 5 May, and by Infotrak (sponsored by the Nation Media Group) on 12-13 May. While the first two indicate that Deputy President William Ruto was leading former Prime Minister Raila Odinga in the presidential race by 5 and 7 per cent respectively, they differ somewhat in important details, even beyond their respective headlines. They are also at odds with the most recent of these three surveys: those of Infotrak which have the two in a dead heat at 42 per cent each. I will begin with a visual comparison of the figures from the first two polls.
|Survey Firm||Sample Size/No. of Counties||Data Collection Dates||Ruto||Odinga||Others||Undecided/NR|
|Radio Africa/The Star||4,057 / 47||1-5 April 2022||46%||41%||1%||12%|
|TIFA Research||2,033 / 47||22-26 April 2022||39%||32%||1%||28%|
The first point to make is that although the TIFA results gave Ruto a larger lead margin (7 per cent vs. 5 per cent), the difference may not be significant, given that it falls almost entirely within their respective margins of error of around +/-2 per cent. The main difference is a whopping 16 per cent variance in the proportion who failed/declined to answer the presidential choice question. Two obvious questions arising from this are: (1) what might explain this gap, and (2) can any “deeper” analysis of the data suggest the “leanings” of these “silent” respondents?
Regarding the first question, no clear answer is apparent. However, it may be relevant that the Radio Africa poll was conducted by sending text messages to the sample derived from their data-base of phone numbers, whereas TIFA’s was conducted through the more standard Computer-Assisted-Telephonic-Interview (CATI) method (i.e., through live phone calls), based on the (comparable) TIFA data-base. Still, why this would make respondents in the latter survey less willing to reveal their presidential preferences is unclear.
Another puzzling issue has to do with Radio Africa’s stated margin of error, which is given as +/ 4.5 per cent. Yet with a reported sample size of 4,497, based on some 22 million registered voters (a figure against which the data were reportedly weighted), the margin of error is actually only +/-1.5 per cent. Why would the “Star Team” who produced the story want to make their findings look less precise than they are? (I made two phone calls to journalists at The Star about this but neither was able to provide a definitive explanation.)
Further, while the article by The Star made reference to findings from two previous similar Radio Africa surveys – showing Ruto leading Odinga by a huge 29 per cent last July (i.e., 43-14 per cent), and Odinga taking the lead for the first time in March, by 4 per cent (i.e., 47-43 per cent)—no suggestion was offered as to what could account for Ruto’s regaining the lead he previously enjoyed. Indeed, even when reporting the results in March, all The Star could offer was that “Poll ratings can go up and down so Radio Africa will continue to conduct its monthly opinion polls up to the August 9 elections.” In any case, it remains to be seen whether the just concluded party nominations and running mate selections will further reshape the race.
Why would the “Star Team” who produced the story want to make their findings look less precise than they are?
In addition, while the text of the article reported some results by region (i.e., North Rift, South Rift, Central, Upper Eastern, Lower Eastern, Nyanza, Western and Coast), the kind of quite useful table of results that had been included in the mid-March story was absent, as were any explicit comparisons of results at this sub-national level, leaving such calculations up to its readers to make—assuming they had kept the March results for such a purpose: e.g., an increase in support for Ruto in North Rift (from 63 per cent in March to 69 per cent now) but basically no change in Central (57 per cent in both March and April). While such changes may help to explain the overall result—the re-establishment of Ruto’s lead – it would be useful if the respective margins of error for each of the regions was also noted so that such sub-national changes from one poll to another could be put in a clear statistical perspective. But the earlier point remains: could the “Star Team” have provided any explanation as to why Odinga’s rating in Nyanza fell by 11 per cent in a little over one month?
Yet another methodological point is important to make here. If Nyanza constitutes about 13 per cent of the total sample, that generates a margin of error of +/-6 per cent, which means Odinga’s actual proportion in March (shown in The Star’s table as 78 per cent) could have been anywhere in the range of 71-84 per cent, and in April (shown as 67 per cent) in the range of 61-73 per cent. Note here that at the low end of the March figure and the high end of the April figure there is an overlap of 2 per cent, meaning that it is possible—though unlikely—that his “true” Nyanza figures did not change at all over this period.
Could the “Star Team” have provided any explanation as to why Odinga’s rating in Nyanza fell by 11 per cent in a little over one month?
Another point: according to the Market Survey Research Association (MSRA) Guidelines, its members should interview at least 1,500 respondents in any survey reporting national (presidential) voting intention results, and while there is no such minimum for any sub-national polls (county, parliamentary constituency, ward), the margin of error should be made clear. There is, of course, no such requirement for the Radio Africa survey since the regions for which results are reported are not electoral units, even were this news organization an MSRA member (which it is not).
Stop press—another poll is out!
As I was writing this piece, the results of another national survey were released, this one by Infotrak, commissioned by the Nation Media Group. Its headline findings may be compared with TIFA’s in the same way as the latter are compared with Radio Africa’s above:
|Survey Firm||Sample Size/No. of Counties||Data Collection Dates||Ruto||Odinga||Others||Undecided/NR|
|TIFA Research||2,033 / 47||22-26 April 2022||39%||32%||1%||28%|
|Infotrak||2,400 / 47||8-9 May 2022||42%||42%||1%||15%|
Before addressing the main contrasts in these results, several points regarding methodology should be made. As Macharia Gaitho, writing an accompanying piece for the Daily Nation, pointed out, “The dates the data was [sic] collected will always have a bearing on the outcome in a fluid political situation, but unless there were very major shifts and realignments in the intervening period, even a fortnight between two polls cannot account for such variations.” This assertion makes sense given the absence of any dramatic events relevant to the fortunes of the two main contenders during the period between the two polls—the departure of Governors Alfred Mutua and Amason Kingi from Azimio to Kenya Kwanza coming just after data collection for the Nation/Infotrak poll. And he went on to add: “Other factors which influence the outcome of an opinion poll are methodology and sampling.” Note that Gaitho had raised some of these same important issues in a Daily Nation piece he authored just before the August 2017 election which I responded to and published in the Nation a few days later, identifying issues that I felt he had not sufficiently addressed.
Leaving aside the semantic error that sampling and methodology are distinct (since sampling is an inherent aspect of methodology), the factors he cites are certainly relevant: sample size and distribution across the country.
Sample size in this case is not an issue, since despite Infotrak’s being slightly larger, the respective margins of error are nearly identical: +/-2 per cent vs. +/-2.17 per cent. Further, even though Infotrak’s question wording differs slightly from TIFA’s (“…who would you vote for…?” vs. “…who do you want Kenya’s next president to be?”), it can be assumed that much of the contrast between the two surveys is a consequence of sampling. Simply put: how each sample was distributed across the country, and what the achieved distribution (whether through the “pot luck” willingness of those selected to participate, or through post-data collection weighting—or some combination of both) is for each demographic variable that might be relevant to the issue at hand: presidential candidate preference.
Unfortunately, and in contrast to TIFA’s release, the Nation gives us no basis for comparing these two samples in demographic terms. That is, while TIFA included figures for gender, age groups, and education level (the latter required by the relevant law enacted in 2012)—as well as the proportion allocated to each of the nine “zones” for which results were reported—we have no such data from the Nation (whatever Infotrak may have provided).
Of course, for most political surveys in Kenya the most salient variable in assessing the representative accuracy of a sample is its ethnic distribution. Most survey firms collect data on the ethnic make-up of its sample but, as far as I know, no survey firm has ever published it nor does the relevant Act require it. Presumably, this is for reasons of “sensitivity”—a form of “self-censorship” that appears universally accepted. This is not to suggest that ethnicity explains “everything” about the achieved results, but it is critical when gauging whether samples are truly representative. For example, in TIFA’s survey, well over half—but nowhere near all—of Ruto’s and Odinga’s “home” ethnic groups (i.e., the Kalenjin and Luo) expressed support for their respective presidential candidates. Given this reality, it is impossible to judge the comparability of the two samples involved here without knowing what proportion of the total sample in each survey is comprised of the country’s main ethnic groups. Specifically, was there a “sufficient” number of Kalenjin in the Infotrak sample, and a “sufficient” number of Luo in TIFA’s (and Radio Africa’s)? Of course, such figures should reflect “correct” random sampling based on the geographical distribution of registered voters according to the IEBC, rather than any “search” for these ethnic proportions.
Of course, for most political surveys in Kenya the most salient variable in assessing the representative accuracy of a sample is its ethnic distribution.
It should also be recognized that whether using the eight pre-2010 Constitution provinces, or TIFA’s nine “zones”, none of them is mono-ethnic, with some of the more homogeneous—Central, Nyanza and Western—having less than 90 per cent of their dominant ethnic groups (Kikuyu, Luo and Luhya, respectively). TIFA’s data indicates Lower Eastern is the most ethnically homogenous “zone” although even here, Kalonzo Musyoka, the leading Kamba candidate, only polled at 15 per cent support.
Another problem arises when using survey results to predict election outcomes. While the presidential contest results of both surveys were generally presented by the media as reflecting actual 9 August ballot choices, in neither case was it reported whether all respondents were registered voters, and among those who claimed to be (assuming they were asked), how “certain” they were that they would actually vote on Election Day. Despite this, the main Nation newspaper article reporting the results refers to the survey’s respondents as “voters”. This raises the possibility that actual voter turnout (that is known to vary across the country in every election) will deviate from the samples of these three surveys, even if they all claim to have used the distribution of registered voters as their sampling “universe”.
Since this cannot be precisely known in advance even much closer to the election, it is misleading to use such survey results to suggest, let alone predict, actual outcomes, as the Daily Nation did in its front-page caption by stating that neither Ruto nor Odinga “has enough backing to cross the 50%+1 threshold to win”. (It may be assumed that those involved in producing these stories are also aware of the additional requirement of obtaining at least 25 per cent in at least 24 of the 47 counties.)
But there is an even more blatant flaw in this “run-off contest” statement: an actual voter who wishes his/her vote to count cannot be “undecided” or “refuse to answer” as one can in a survey interview, since voters must choose from actual ballot choices. In response to one of the several 2013 presidential election petitions, the Supreme Court ruled that spoiled ballots are removed from the count of “total votes cast”, so that the denominator of the calculation for each candidate is based on total valid votes cast, not the total number of people who walked into a polling station.
TIFA’s data indicates Lower Eastern is the most ethnically homogenous “zone” although even here, Kalonzo Musyoka, the leading Kamba candidate, only polled at 15 per cent support.
Based on this reality, for example, the Infotrak results imply that each of the main candidates “would get” 49 per cent, since only about 1,008 of the reported total sample of 2,400 respondents mentioned Odinga and Ruto, and this figure should be divided by roughly 2,040, which is the figure we are left with after subtracting those who said they were undecided or who refused to answer the question—about 360 respondents.
In other words, even if these top two candidates are nearly tied on 9 August, it would seem that a run-off contest would be unnecessary unless the combined figure of all the other presidential candidates exceeds 2 or 3 per cent—a much more likely prospect should Kalonzo Musyoka insist on “going it alone”.
Another contrast between the Infotrak and TIFA polls is important to point out, as it, too, could help to explain their contrasting results.
In terms of the distribution their samples, TIFA uses nine ethno-political “zones” while Infotrak (like Radio Africa) continues to use the former eight provinces. As such, the only sub-national results that can be compared (since they are used by both firms) are: Nairobi, Coast, Western and Nyanza. The table below shows the figures for these four units (comparing the TIFA figure on the left with Infotrak’s on the right, and the difference in parentheses on the far right):
TIFA / Infotrak
TIFA / Infotrak
TIFA / Infotrak
TIFA / Infotrak
|Ruto||25% / 33% (+8%)||26% / 29% (+3%)||21% / 18% (-3%)||37% / 33% (-4%)|
|Odinga||40% / 51% (+11%)||36% / 55% (+19%)||56% / 72% (+16%)||29% / 48% (+19%)|
Even setting aside the higher error margins for each of these regions, which range between about +/-6 and 7 per cent—and thus equal to 12 per cent and 14 per cent spreads, based on their respective sub-national sample sizes—these contrasts are remarkable, especially the larger figures for Odinga in the Infotrak survey. (Note that given the lower Infotrak figures for “undecided” and “no response”—10 per cent and 5 per cent, respectively, as compared to TIFA’s 16 per cent and 12 per cent—Infotrak’s overall figures for both candidates are higher, as is also the case in the comparison of Radio Africa’s figures with TIFA’s.)
While the contrasting figures for Nairobi are minimal, since the 8 per cent difference between Infotrak’s and TIFA’s figure for Ruto is only 3 per cent lower than the difference in Odinga’s numbers for the other three sub-national units (Coast, Nyanza and Western), Odinga’s “Infotrak advantage” is much higher: 16 per cent, 19 per cent, and 23 per cent, respectively. As noted, while TIFA provides the proportions allocated in its sample to each of the nine zones for which it presents results, Infotrak—or at least the Daily Nation—does not. But assuming they were roughly similar—and, as indicated, even taking the higher error margins for each into account—Gaitho’s summary point stands: that such disparate results cannot be accounted for by a minor discrepancy in the dates of the two surveys, given that no major events occurred that might have caused any significant shifts in attitudes towards either of the two main presidential candidates.
In connection with such contrasts between Infotrak and other credible survey firms in Kenya, a little history may be useful. For example, in their last surveys before the contested 2007 election, The Steadman Group gave Odinga a 2 per cent advantage over Kibaki, while Infotrak gave him a 10 per cent lead. Just before the 2013 election, Infotrak “predicted” an outright win for Odinga, whereas Ipsos’ results indicated that neither candidate would achieve this in the first round. A little earlier, an Infotrak survey conducted at the end of December 2012 and into the first few days of 2013 gave Odinga a 12 per cent advantage over Uhuru Kenyatta (51 per cent to 39 per cent), whereas an Ipsos poll conducted only about two weeks later gave the former only a 6 per cent advantage (46 per cent to 40 per cent). Similarly, in their final surveys before the 2017 election late July, Infotrak had Odinga and Kenyatta in a virtual tie (47 per cent vs. 46 per cent) —on which basis it suggested that no one would win on the first round—whereas Ipsos gave Kenyatta a clear outright win: 52 per cent vs. 48 per cent, excluding those who claimed to be undecided or who declined to reveal their preference (which when included, generated a 47 per cent vs. 43 per cent advantage for Kenyatta), although leaving room for some minor deviation from these figures based on differential voter turnout across the country. In fact, Ipsos offered four possible voter turnout scenarios, none of which put Odinga closer than 4 per cent behind Kenyatta.
Of course, given the disputed nature of the official results in all three of these elections, it is impossible to know which survey firm’s results were closer to “the truth”. But they do reveal a clear pattern: that Infotrak has consistently given more positive results to Odinga than any of the other reputable survey firms in the country. I should stress, however, that this “track record” should not be the sole basis for dismissing Infotrak’s current figures, but it does underscore Gaitho’s point that whenever there are differences in survey firms’ results that go beyond the stated margins of error, additional scrutiny is warranted—preferably to a degree that goes beyond what the Nation Media Group offered its readers/viewers on this occasion. Of course, given the fact that they sponsored the survey, such rigorous scrutiny might have been considered “inappropriate” at best.
On the other hand, it should also be recalled that in the polls conducted just before the August, 2010 constitutional referendum, Infotrak produced results that were slightly more accurate than those of Synovate—and there were no claims of any “rigging” in response to the official results.
In any event, the promise of continued polling by at least these three firms—Infotrak, TIFA and Radio Africa—should not only provide Kenyans with an evolving picture of the possible electoral fortunes of particular candidates and political parties/coalitions (as well as identifying the issues motivating voters at both the national and sub-national levels), but also invite them to more thoroughly scrutinize the performance of these firms and of any others that may appear and attain any serious media coverage. This is so even if the announcement of deputy presidential running-mates will make the next set of polls non-comparable with those examined here.
Of course, given the disputed nature of the official results in all three of these elections, it is impossible to know which survey firm’s results were closer to “the truth”.
The most useful data, however, would be the actual results announced by IEBC about which no credibility doubts are raised, so that only differential voter turnout would have to be taken into account in assessing the performance of the pollsters in their final survey rounds.
A concluding comparison: in the recent, second round run-off French presidential election, the final national poll had President Emmanuel Macron defeating Marine Le Pen by 56 per cent to 44 per cent, and the official (uncontested) results gave him a 58.5 per cent to 41.5 per cent victory (just within the poll’s margin of error). Given that, so far at least, there is no evidence that Kenyans lie any more than French people do when answering survey questions, let us hope that Kenyan survey firms can both individually and collectively achieve such accuracy.
Just after completing this piece, on May 18 TIFA released the results of another CATI survey it had conducted the day before, comprised of 1,719 respondents. This came in the immediate wake of two days of drama: first, on 15 May, the announcement by Kenya Kwanza Alliance’s presidential candidate, DP William Ruto, of his coalition’s deputy president running mate, Mathira Member of Parliament Rigathi Gachagua, and on the following day, the announcement by Azimio la Umoja’s Raila Odinga of former member of parliament and cabinet minister Martha Karua as his running mate.
The most useful data, however, would be the actual results announced by IEBC about which no credibility doubts are raised.
The two main questions it sought to answer were: (1) How many Kenyans were aware of each of these running mates? (2) What were their presidential voting intentions?
For whatever reasons, it emerged than far more people were aware of Karua’s selection than of Gachagua’s (85 per cent vs. 59 per cent), a pattern which was replicated among those who expressed the intention to vote for Odinga or Ruto, respectively (90 per cent vs. 69 per cent). By contrast, awareness of Kalonzo Musyoka’s choice of running mate, Andrew Sunkuli, was far lower among both the general public and among those (few) who reported an intention to vote for Musyoka (21 per cent and 38 per cent, respectively).
But as expected, it was the results of the second issue that attracted most attention, which gave Odinga a modest but measurable lead over Ruto: 39 per cent to 35 per cent. The central question these figures raised was whether Odinga’s jump into the lead, beyond the tie that Infotrak had reported just one week earlier, was to any degree a consequence of the identification of these two running mates, a question that will be addressed in the next piece in this series, by which time it is hoped at least one additional poll would have been conducted so as to confirm whether TIFA’s most recent figures do indeed represent a major shift in the presidential electoral terrain.
Tigray is Africa’s Ukraine: We Must Build Pan-African Solidarity
A genocide is taking place in Tigray. Why is there no mobilization of African civil society organizations, non-governmental bodies, religious institutions, and individuals in support of Tigrayan refugees?
Two months after the Russian invasion of Ukraine, more than 5 million Ukrainians fleeing the war have crossed the borders into other European countries. While this is largely a testament to the massive scale of the attack by Russian forces that has forced millions of Ukrainians to flee their homes in all directions, it also has a lot to do with the warm welcome and sympathy extended to these refugees by European nations.
Europeans both individually and collectively stood in solidarity with and committed to supporting Ukrainian refugees in all ways. Member states of the European Union established reception centres and facilitated the right to travel, stay, and work for all Ukrainians within days of the war starting. Families across Europe (and in the United Kingdom) volunteered to host Ukrainian families, organizations raised funds, individuals donated basic necessities, and many even travelled to borders to personally welcome Ukrainian refugees.
While this “gold standard” welcome by European countries—who are generally accused of being hostile to other (particularly black and brown) refugees—has been the subject of heated discussion, a question that is yet to be thoroughly addressed is why such solidarity is not seen in other parts of the world. More particularly, using the experiences of refugees from the Tigray war as a case study, we would like to ask why the multiple conflicts ravaging the African continent fail to inspire such a response by African countries.
The Tigray war, characterized as the world’s deadliest war, has been ongoing for seventeen months. Thus far, more than 500,000 people are reported to have died. Terrible atrocities amounting to war crimes and crimes against humanity, including scores of massacres, weaponized sexual violence, and a total humanitarian blockade have all contributed to creating conditions aptly described by the Director-General of the World Health Organization (WHO) as “hell”. Despite the length and brutality of this conflict, however, the number of Tigrayans who have managed to escape into neighbouring African countries is relatively minuscule.
As far as we are able to establish, about 70,000 Tigrayans crossed into Sudan during the first few days of the war. We can add to these the thousands of Tigrayans who worked and lived in Djibouti before the war and the few hundreds that managed to flee to Kenya following the ethnic profiling and mass arrests they faced in Ethiopia. It is possible to argue that the number of refugees from Tigray has remained low mainly because the borders have been blocked by the Ethiopian regime and its allies. This draconian blockade has indeed been used as a tool of war by Prime Minister Abiy Ahmed to completely cut off Tigray from the rest of the world in order to hide atrocities and control the narrative. It is also believed to have the approval of key members of the international community seeking to mitigate the impact of the war on the broader Horn of Africa region and its potential contribution to the migration crisis in Europe.
Even so, taking into account the precarious situation of the millions of Tigrayans in the region itself and in the rest of Ethiopia along with well-known patterns of illicit migration from conflict areas, it is reasonable to wonder if the low number of Tigrayan refugees is due to the receptiveness—or lack thereof—of neighbouring countries as well as the blockade. With this in mind let’s look more closely at some policies and practices in the region that can be perceived as obvious deterrents to those seeking refuge.
Political and diplomatic support given by African countries to the regime in Addis Ababa
The Tigray war is happening in the host country of the African Union (AU) and the second-most populous country on the continent. However, this conflict has not been included as an agenda item in any of the meetings of the AU heads of states that have been convened since its onset in November 2020. The only significant statement that was made regarding this conflict by the Chairperson of the AU, Moussa Faki Mahamat, was one that endorsed the war. Since this early statement, the AU has assiduously ignored the overwhelming evidence of the gruesome atrocities and violations of human rights and humanitarian laws perpetrated during this conflict. Nor has the AU acknowledged the direct involvement of Eritrea and Somalia—both members of the AU—who deployed troops into Tigray and have been credibly accused of committing grave atrocities.
Diplomatically, African countries have given cover to the Ethiopian regime in all multilateral forums including the United Nations Security Council (UNSC). The passionate and well-received speech by Kenya’s ambassador to the UN, Martin Kimani, in opposition to Russia’s war of aggression against Ukraine, makes one wonder why the same passion is absent for crises nearer home, including Tigray. Sadly, however, not only do the so-called A3 countries on the UNSC continue to frustrate action against the Ethiopian regime, African countries have voted against measures to establish investigative mechanisms into the atrocities committed in Tigray. Even more disappointingly, on the 31st of March, Kenya voted in support of a bill introduced by the Ethiopian regime to halt funding for the International Commission of Human Rights Experts set up to investigate the crimes and human rights abuses that took place in Tigray.
The AU has assiduously ignored the overwhelming evidence of the gruesome atrocities and violations of human rights and humanitarian laws perpetrated during this conflict.
These actions indicate that the AU and its member states have either failed to recognize the gravity of the human rights and humanitarian violations in Tigray or are unwilling to address violations by other member states, however grave, as a matter of policy.
Forced Repatriation to Ethiopia
This policy and the attendant practices in turn mean that Tigrayans or other minorities seeking refuge from state-sanctioned violence in the region are denied official welcome and feel insecure even when they are sheltered there as refugees under UN protection. Tigrayan refugees in the region are under continuous threat from Ethiopian and Eritrean intelligence and security officials that are fully capable of crossing borders to harm or forcibly repatriate them. Just to look a bit more closely at the experience of Tigrayan refugees in the region, in Sudan, senior Ethiopian officials and supporters of the regime have on several occasions threatened to forcefully repatriate Tigrayan refugees from the Sudanese refugee camps that are under the auspices of the United Nations High Commissioner for Refugees (UNHCR).
In Djibouti, the threat of forced repatriation was realized when several Tigrayans, who had committed no known crime, were apprehended and returned to Ethiopia. This clear breach of the principle of non-refoulement has excited no response from other African governments or African Civil Society Organizations (CSOs).
Tigrayans also live in fear of forced repatriation even in the relatively more friendly Kenya. The December 2021 abduction of Tigrayan businessman Samson Teklemichael in Nairobi in broad daylight is a prominent example of the insecurity of Tigrayan refugees in Kenya. In addition, personal accounts from Kenya suggest that newly arriving refugees can fall victim to immoral actors demanding large sums of money to facilitate registration. Tigrayans who have been unable to obtain proper documentation for this and other reasons risk being thrown in jail. The lucky few that are registered are coerced to relocate to remote and inhospitable camps. As a result of this, and due to the increased insecurity created by the presence of Ethiopian and Eritrean intelligence officers operating in Nairobi, Tigrayans in Kenya are increasingly opting to remain hidden. This means that the actual number of Tigrayan refugees in Kenya is unknown.
The December 2021 abduction of Tigrayan businessman Samson Teklemichael in Nairobi in broad daylight is a prominent example of the insecurity of Tigrayan refugees in Kenya.
It also bears noting that in response to the war in Tigray, the Kenyan government tightened its borders with Ethiopia, essentially closing the only avenue open for Tigrayans fleeing conflict and ethnic-based persecution by land. Moreover, Tigrayan refugees who have been stopped at Kenyan border controls in Moyale have at different times been apprehended and returned by agents of the Ethiopian regime.
Harsh conditions facing Tigrayan refugees
Sudan hosts the largest number of documented Tigrayan refugees. An estimated 70,000 Tigrayans fled to Sudan to escape the brutal invasion and occupation of Western Tigray. While these people were welcomed with extraordinary kindness by the people of Eastern Sudan, the refugee camps to which they were relegated are located in remote and inhospitable regions with almost no basic infrastructure. As a result, international organizations have been unable to provide adequate support and Tigrayan refugees have fallen victim to extreme weather and fires.
Similarly, Tigrayans remaining in Djibouti are kept in remote camps under unbearable conditions, facing maltreatment and abuses such as rape and sexual violence including by security forces. The whereabouts of the thousands of refugees who escaped from abuses and starvation at Holhol, one of Djibouti’s remote refugee camps where over 1,000 Tigrayans remain, are unknown.
The disinterest of African media and society
Arguably, the above realities describe the failings of African governments in terms of welcoming and protecting refugees fleeing conflict. But what of other sections of African society? Why are there no responses akin to the mobilization of European civil society organizations, non-governmental bodies, religious institutions, and individuals to support Ukrainian refugees? Even taking into full account economic limitations likely to affect responses to such crises, this could potentially speak to a larger failure in terms of building pan-African solidarity, not just as a political concept but as a grassroots reality. In the specific case of the Tigray war, this is further reflected and augmented by the minimal coverage of the war in African media outlets relative, for example, to the extensive daily coverage given to the Ukraine war. Moreover, African intellectuals and intercontinental forums have shown little to no interest to address an ongoing genocide that is quickly paralleling the worst examples of mass atrocities on the continent thus far.
What can we learn from the European Response to the Ukraine crisis?
In many ways, the European response to the Ukraine crisis has been unprecedented and arguably sets a new standard for welcoming refugees from all regions including Europe itself. In the African context, the Tigrayan experience of policies and practices that endanger and harm the most vulnerable seeking safety reveals an urgent need to take these lessons on board. With this in mind, we can tentatively outline the following suggestions.
First, we as Africans should find mechanisms for building pan-African solidarity amongst citizens that are not contingent upon the will of our governments. This can only be achieved if African media, civil society organisations, thought leaders, and other influencers commit to prioritizing what is happening on the continent. In this interconnected and highly digital age, it is no longer acceptable that an African anywhere on the continent does not know about what is happening in Tigray as much as, or more than, they know about what is occurring in Ukraine.
We as Africans should find mechanisms of building pan-African solidarity amongst citizens that are not contingent upon the will of our governments.
Second, African citizens should protest policies and practices by African governments that favour state-sanctioned violence and support regimes over vulnerable communities. We all, as Africans, are prone to fall victim to state violence and violations of human rights in our countries and this necessitates pan-African reflection on human rights for all, indigenous communities as well as refugees and migrants.
Third, refugees and migrants are rarely a burden on the host countries and communities. Those fleeing the Tigray war, for example, are generally highly educated and carry unique skills that could contribute to societies wherever they land. Harnessing these resources on the continent should be a priority. Moreover, refugees enrich host communities and facilitate regional and continental integration which the AU and its member states continue to discuss, but never materialize.
UK-Rwanda Refugee Deal: A Stain on President Kagame
Rwanda’s proposed refugee deal with Britain is another strike against President Paul Kagame’s claim that he is an authentic and fearless pan-Africanist who advocates for the less fortunate.
In mid-April 2022, Rwanda and Britain unveiled a pilot scheme in which the latter will ship off asylum seekers who arrive in Britain “illegally” to the former for the whopping sum of £120 million. Although full details of the deal remain sketchy, it is believed that it will target mainly young male refugees who apply for political asylum in Britain. Anyone who entered the UK illegally since January 1, 2022, is liable to be transferred. Each migrant sent to Rwanda is expected to cost British taxpayers between £20,000 to £30,000. This will cover accommodation before departure, a seat on a chartered plane and their first three months of accommodation in Rwanda. Their asylum application will be processed in Rwanda and if they are successful, they will have the right to remain in Rwanda. Those whose applications fail will be deported from Rwanda to countries where they have a right to live. The plan is contingent on the passage of the Nationality and Borders Bill currently before the British Parliament. Britain is planning to send the first set of asylum seekers in May 2022, but this is highly unlikely as human rights groups will almost likely challenge this deal in court and, as a result, delay the implementation.
Rwanda’s Foreign Minister, Vincent Biruta, and Britain’s Home Secretary, Priti Patel, present the initiative as a remedy to what they deem a malfunctioning refugee and asylum system, “(T)he global asylum system is broken. Around the world, it is collapsing under the strain of real humanitarian crises, and because people traffickers exploit the current system for their own gain… This can’t go on. We need innovative solutions to put a stop to this deadly trade.” In a jointly written editorial for the UK’s Times newspaper, they portray the agreement as a humanitarian measure that would disrupt the business model of organized criminal gangs and deter migrants from putting their lives at risk.
Back in Rwanda, the pro-Kagame newspaper, The New Times of Rwanda, highlighted Rwanda’s experience in hosting refugees: “Rwanda is home to nearly 130,000 refugees from around the region.” The New Times claims that “… even those who arrived in Rwanda as refugees fleeing violence have since been integrated in the community and enjoy access to education, healthcare and financial services. This friendly policy toward refugees and migrants is in part linked to the country’s history.” It concludes by noting that “Kigali’s decision to extend a helping hand to migrants and asylum seekers in the UK who’re unable to secure residence there is very much in keeping with this longstanding policy on migrants and moral obligation to provide protection to anyone in need of safety. It is, therefore, shocking that this act of generosity has come under severe attack by some people, including sections of the media.”
Reaction in the UK has been mostly negative, ranging from the Anglican Church, Amnesty International. A broad range of 150 organizations, including Liberty and the Refugee Council, sent an open letter to Prime Minister Boris Johnson and his Home Secretary (the UK immigration minister). Even some MPs from Johnson’s ruling Conservative party condemned the deal. Dozens of Home Office staff have criticized the policy and are threatening to strike because of it.
Deals of this kind between Britain and Rwanda are not new. Britain tried to enter a similar agreement with Ghana and Kenya, but both rejected it, fearing a backlash from citizens. Rwanda has done similar deals before. Israel offshored several thousands of asylum-seekers, many of them Eritreans and Sudanese, to Rwanda and Uganda between 2014 and 2017. A public outcry forced Israel to abandon the scheme when evidence emerged that most of them ended up in the hands of people smugglers and were subjected to slavery when traveling back to Europe. Under a deal funded by the European Union, Rwanda has taken in evacuees from Libya. Denmark has a similar agreement with Rwanda, but it has not yet been implemented.
In 2016, Australia signed a similar deal with Nauru, a tiny island country northeast of Australia. In May 2016, Australia held 1,193 people on Nauru at the cost of $45,347 a month per person – about $1,460 a day or $534,000 a year. That same year, the EU signed a deal with Turkey under which Turkey agreed to take back “irregular migrants,” mainly from Syria, Afghanistan, Iraq, in exchange for reduced visa restrictions for Turkish citizens, €6 billion in aid to Turkey, update the EU’s customs union with Turkey, and re-energize stalled talks regarding Turkey’s accession to the European Union.
If these failed deals did not deter Britain, Rwanda’s human rights record should have. Even Kagame’s supporters concede that his human rights record is deplorable. At the 37th session of the Universal Periodic Review (a regular, formal review of the human rights records of all 193 UN Member States), Britain recommended that Rwanda “conduct transparent, credible and independent investigations into allegations of extrajudicial killings, enforced disappearances and torture, and bring perpetrators to justice.” A Rwandan refugee in London told The Guardian that, “Rwanda is a good country for image, but not for freedom of speech…Those who oppose Kagame end up in prison. The Rwandan government use[s] torture and violence against their opponents.”
The deal between Rwanda and Britain also contravenes international law. The principle of non-refoulement “… prohibits States from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill-treatment or other serious human rights violations.” The United Nations High Commissioner for Refugees (UNHCR) notes that Britain has a duty under international law to ensure that those seeking asylum are protected. UNHCR remains firmly opposed to arrangements that seek to transfer refugees and asylum seekers to third countries in the absence of sufficient safeguards and standards. Such arrangements simply shift asylum responsibilities, evade international obligations, and are contrary to the letter and spirit of the Refugee Convention . . . [P]eople fleeing war, conflict and persecution deserve compassion and empathy. They should not be traded like commodities and transferred abroad for processing.
Rwanda is the single most densely populated state in Africa, with more than 1,000 people per square mile. It already has its fair share of refugees from neighboring countries. (Biruta told the Financial Times last month: “This program [the deal with Britain] will be dedicated to asylum seekers who are already in the UK … we’d prefer not to receive people from neighboring countries, immediate neighbors like DRC, like Burundi, Uganda or Tanzania.”
Although it has done well economically compared to many other African countries, it remains a poor nation that needs to prioritize addressing its internal economic issues rather than allowing Britain to dump its refugees on them. It is unlikely that the economic benefits of this deal will help get the average Rwandan out of poverty. If Rwanda needs more refugees, it needs to look no further than its neighbors. Many of those who will end up in Rwanda will likely be genuine refugees who would have a right to remain in Britain and white supremacists in the UK do not want them there because they do not have the right skin color.
With this deal, Johnson and Patel are pandering to the racists simply to get more votes. If this deal was in place in 1972, when Idi Amin deported Ugandans of Asian descent to the UK, Patel’s family might likely have been shipped off to Rwanda. For his part, Kagame is pandering for influence and money from Western nations. It undermines his claim that he is an authentic and fearless pan-Africanist who advocates for the less fortunate. What happened to speaking the truth to Western powers? Let us hope a judge in the UK stops this terrible deal.
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