I have been engaged by The Elephant to provide its readers with a series of pieces about surveys related to the forthcoming election. They will both review and comment on such surveys published during the weeks since the previous piece, and highlight events that are deemed likely to influence the results of subsequent polls that will be likewise interrogated over the coming months. In doing so, the pieces aim to provide readers with several analytical tools to better enable them to make their own assessments of such surveys in terms of their credibility and potential impact — an issue that will also be considered, based mainly on the expressed reactions to them by key political actors and analysts. Given such ambitious aims, the author welcomes readers’ comments and suggestions.
More broadly — though not always explicitly — the series also seeks to address the question as to the contribution — positive or otherwise — such surveys make to Kenya’s still very much in-progress “democracy”, though largely leaving aside the profound and never-ending debate among scholars as to just what “democracy” means, and how its criteria can be empirically measured. Such an evaluation must unfortunately include both scientifically sound and bias-free polls, as well as those that fail to conform to such standards, whether or not such failure is obvious to those who consume them.
For transparency, let me begin with a brief personal note. As is widely known, I have been associated with several market research firms in Kenya as a research analyst, beginning with The Steadman Group in 2005. While we conducted a number of surveys on a variety of governance topics for individual and in some cases, confidential, clients, most of my work was in connection with the periodic surveys conducted on various public issues. This includes, in the “early years”, the 2005 constitutional referendum for which we conducted two polls, and the 2007 election, both of which attracted considerable attention from both the general public and the political class, and quite prominent, if not always accurate, media coverage.
I continued in this capacity after Steadman was sold to Synovate, a UK firm, in 2008, and then from 2012, when Ipsos, a French company, bought Synovate. In March 2019, the management in Paris made a decision (for reasons that remain unclear – to me, at least) that the Kenya office would no longer conduct and release survey results “of a political nature” and therefore had no further need for a political scientist/analyst like me. Reverting to my earlier role as an independent consultant, I began part-time work with Ms. Maggie Ireri, who after resigning as Ipsos CEO in 2015 had launched her own market research firm, Trends and Insights for Africa (TIFA). In the last two years, we have conducted six national surveys on public issues (among other work) and are planning to continue to do so, with an increasing focus on the 2022 elections.
In brief, therefore, whereas I shall seek to be objective in my assessments of the current polling environment in Kenya in general and of the survey products of particular firms, including TIFA’s, I cannot guarantee my analyses will be completely free of unconscious bias, which shall be for my readers to judge. At the same time, I am confident that I now know much more about survey research than I did twenty years ago and recognize that I, along with my colleagues, could have done and still could do certain things better.
In subsequent articles, I will address the technical requirements of methodologically sound surveys, but for now, let us assume that all such requirements are met and that their results are accurate, within the limitations of survey science. Adopting this assumption, we can ask: of what use are election-related surveys?
In the last two years, we have conducted six national surveys on public issues (among other topics) and are planning to continue to do so, with an increasing focus on the forthcoming election.
Consumers of such surveys can be roughly divided into several overlapping categories, reflecting their needs and interests: candidates for elective office together with their strategists; the public at large and especially voters; the media; actual and potential campaign donor-supporters and investors; and regional and more distant governments.
While perhaps obvious, the specific ways in which such information may be put to use vary, largely depending on the user. Political parties and coalitions, for example, need to establish the popularity of potential candidates ahead of nominations. Subsequently, nominated (and independent) candidates may want to know how viable their campaigns are, and the potential impact of particular campaign strategies.
For their part, the media may use polls to decide how much coverage to give particular candidates and issues based on their popular appeal, in order to focus scrutiny on those deemed more likely to occupy important public offices, while at the same time aiming to attract a wider audience for purely commercial purposes.
Similarly, those prepared to invest in campaigns would want an accurate measure of the popularity of parties and candidates in order to more accurately calculate their potential for success, especially if their primary motivation is to benefit from the eventual victors, whether directly in terms of contracts, for example, or indirectly in terms of policies that support their material and/or ideological interests.
Yet another category of potential poll consumers are conflict prevention and mitigation actors who could use them to assess the likelihood of violence based (at least in part) on an assumption that the closer the result, the more likely there will be post-election contestation (especially if the official results are less than universally acknowledged as “true”). In addition, having a more accurate understanding of the issues that divide the country and the intensity of such divisions can also inform the development of strategies early enough to at least mitigate more serious conflict outcomes.
Such pre-election assessment benefits also apply to Investors whose decisions may depend on the likely future policy environment based on which parties and candidates, with what agendas, will be in power. Similar concerns also apply to foreign governments and NGOs whose operations and interests in the country are also likely to be affected by the make-up and orientation of the next government (in some cases, at both the county and the national level).
Three additional categories of poll-users can be identified. First, there are academics and other researchers seeking to test hypotheses about campaign activity, political party processes, voter motivation, turnout levels, and the salience of particular political parties’ or candidates’ policies and identities in terms of attracting votes. Such analyses can be country-specific or part of wider, cross-national studies. Second are the survey firms themselves. They may use elections to test various methods of data collection and analysis both for internal purposes and to publicly demonstrate their ability to gather reliable information as a way to attract future business.
Finally, we have the voters – at least those whose votes are not “set in stone” due to embedded patronage relations or any of the various forms of automatic “demographic support” including but not limited to common ethnic identity or religious affiliation. They may wish to know the viability of particular political parties and candidates to ensure they don’t “waste” their votes, especially if the race(s) in question appear close. (One challenging area of post-election research is to discover whether any voters actually changed their ballot choices based on an awareness of polls, since many respondents are not prepared to admit this.)
The obvious focus for all of these various entities is on the election’s outcome. However, beyond the “horse races”, such surveys can be used to reveal just how deeply divided any political community is, as well as the levels of confidence in election integrity among particular sections of the electorate, and how much faith they have in the utility of elections in terms of actually making a difference in their lives. The latter would be partly reflected in the level of participation in various aspects of the electoral process such as registering to vote, attending campaign rallies and other meetings and engaging in party nominations — in addition to turning out to vote on election day.
But all of these uses of election-related polls depend on one crucial factor: their credibility. Unless poll consumers can be sure that the results are reasonably accurate, it would be folly to rely upon them for anything more than “entertainment”. Here, a key factor inspiring such confidence is having results from a number of reputable firms that are largely similar.
Beginning with the first factor, we can speak of “safety in numbers” — the “numbers” here being not the survey results themselves, but the number of firms undertaking such election-related polls. That is, the more firms that undertake such surveys, the easier it is to spot “outliers”, while also allowing for the calculation of average results in order to minimize inevitable, but hopefully minor, variations in methodology.
Unfortunately, with less than six months to the election, far fewer “political” polls have been released/published than was the case in connection with any of the last three general elections. This is mainly a consequence of the reduced number of firms engaged in such survey work for public release. Over that period, the most prominent among them was Ipsos, but which has been largely silent since late 2018, with its few releases on public issues completely avoiding “politics”. In this regard, it has joined Strategic Africa (formerly Strategic Public Relations) and Consumer Insight, both of which undertook/released voting-intention polls prior to the 2007 and 2013 elections but have been “silent” since prior to the 2017 election. Their “disappearance” has only been partly compensated for by the arrival of TIFA, which has undertaken several national and county-level polls, and more recently RealField, a British firm that released the results of its first Kenya survey last January. On the other hand, most visible throughout this period have been Radio Africa with its now monthly polls (and which broadcasts results on its various radio stations while publishing them in its newspaper, The Star), and Infotrak, even if, over the years, the latter’s results — as will be shown in subsequent pieces — have often been somewhat at odds with those of other “established” firms.
The “disappearance” of these firms has only been partly compensated for by the arrival of Trends and Insights for Africa.
Before reviewing their results – and setting aside any insinuations of deliberate falsification – it is important to note the main factors that could explain different results that fall outside standard margins-of-error among two or more surveys. Most relevant are the following: the samples are of considerably different sizes and/or do not match in terms of relevant demographics (and which any post-survey data-weighting has failed to rectify); the data collection dates are different so that at least some respondents in more recent surveys have been influenced by relevant events; questions even on the same topics are worded differently (in whatever interview languages are used), or are placed in a different sequence-order, so that the subject matter of what has been asked previously differentially influences responses to the question-data being compared; the interviewers are not equally qualified and/or fastidious in terms of accurately recording responses, coupled with different levels of quality control in data-capture and analysis among the firms involved.
Keeping the above factors in mind, we may conclude this first election poll piece by trying to answer the question: how congruent have the presidential contest poll results released by the currently active firms been? Based on the figures, several points can be made.
Recent Survey Presidential Contest Results (Rounded Figures in Percent)
First, what might explain the significant reversal of position between Deputy President William Ruto and Raila Odinga as shown in Radio Africa’s most recent survey: an increase of 20 per cent by the latter with the former gaining just 5 per cent, even as the proportion who declined to name any candidate decreased by 24 per cent (thus largely accounting for combined gains of the two main candidates)? Such a major change awaits confirmation by future polls.
Second, in comparing Radio Africa’s previous poll with TIFA’s most recent one, even if Ruto’s lead over Odinga was nearly identical (just over 10 per cent) why is it that the combined figures for “undecided” and “no response” about respondents’ preferred presidential candidate were so different (i.e., 30 per cent for TIFA vs. only 13 per cent for Radio Africa)? Also, and in large part based on the results of these two firms, how, according to Infotrak’s poll of late December (thus conducted a few weeks before the Radio Africa and TIFA polls) could these two main candidates be in a statistical tie? Further, even if the gap between Ruto and Raila (5 per cent) reported by RealField is at a mid-point between those of Radio Africa/TIFA and Infotrak, how could its combined figure of those who declined to mention any preferred candidate (7 per cent) be so much lower than that of any of the other three firms?
Reported differences in methodology do not provide a sufficient basis for answering such questions, even if, for example, Infotrak indicated that its 1,600 respondents represented only 26 counties – which seems strange, given that TIFA’s slightly smaller sample included respondents from all 47. Regarding RealField, among its methodological details was the declaration that interviews were conducted by 500 “fielders”, who were somehow able to complete nearly 22,000 interviews in just four days — meaning an average of eleven interviews per day by each of them, a very ambitious “completion rate” for a household-based survey, even for interviews of shorter duration.
One thing is clear, however: the variation in sample sizes cannot explain the variations in findings. An additional note about the RealField survey: based on its abundant sample size, data-collection alone would likely cost at least US$10,000, and with professional costs and company profit, at least twice that. Further, several questions were raised by The Star, the only mainstream media outlet that gave the survey any coverage. Among these was the source of funding for the survey, which a representative of the firm identified (as required by Kenyan law for all voter-intention surveys conducted during the twelve months preceding an election) as the Kenya National Muslim Advisory Council. This largely unknown entity was described to me by a senior official of another, much better known, Muslim organization as a “one-man show”, with the “one man” in question not known for his personal wealth and thus not in a position to afford such a massive survey. He was also a quite vocal supporter of the BBI amendment bill last year, according to several media sources.
Finally, something should be said about the confusion, or deliberate “spinning”, of the issue as to whether Ruto’s lead, as reported by Radio Africa and TIFA in their February polls, is sufficient to achieve an outright victory in the first round of the presidential election. When both Radio Africa and TIFA released the results of their November surveys (as shown above), the Deputy President and several of his political associates attacked them (without naming either company) during one or more campaign rallies in western Kenya. According to the Deputy President, as reported in several TV newscasts, these polls were false “because we’ve done our own survey that shows us at 56 per cent”.
It is hard to determine how the Ruto “campaign” figure was arrived at. Yet if the figures for the Radio Africa and TIFA polls are re-calculated having removed those stating they were “undecided” as well as any other respondents who failed to identify a preferred candidate (i.e., “will not vote”; “no response”), the results are both nearly identical and mirror the DP’s claim as shown in the chart below:
In both cases, they suggest a first-round win for Ruto, even if claiming this so far in advance of the election, with so many uncertainties remaining, including choice of running mates, would be highly misleading. Moreover, it cannot be assumed that all, or even a significant proportion, of those who failed to mention a preferred candidate will not, in fact, vote, suggesting that one analytical challenge is to try to discern from the data which way such respondents are “leaning”, and thus how they are likely to vote — among those who will do so.
Just how such an analysis can be undertaken, and how reliably the media report such findings, are subjects to be considered in the next piece in this series.
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Will Ruto’s Cargo Clearance Order Be Practicable?
President William Ruto has kept a campaign promise to return cargo clearance to Mombasa but with recent technological advances in cargo handling logistics, the only jobs available today are those involving the physical handling of cargo.
The haste with which President William Ruto issued the cargo clearance directive—during his inaugural speech—may have caught by surprise those industry stakeholders who understand the complex nature of our logistics industry.
The return of the cargo clearance and port operations to Mombasa—decided without serious considerations—was a major campaign issue for Ruto to lure coastal voters. Mombasa has been reeling in economic pain for the last five years after the government issued an order directing that clearance of all Nairobi-bound cargo be undertaken at the Athi River Inland Container Depot (ICD).
Ruto’s directive overturned a notice issued in June 2018 that stopped importers from nominating cargo to any of the Container Freight Stations (CFSs) that had proliferated in Mombasa since 2007. That notice read in part:
“This is to notify all shipping lines that containers destined to Mombasa for local clearance shall not be allowed to be nominated by clients or endorsement of Bill of Lading to any CFS.”
It further read: “The nominations shall be done by Kenya Ports Authority (KPA) based on vessel rotation, volumes, and individual CFS capacity, therefore you are required to inform your clients in your various ports of loading accordingly.”
KPA issued this directive to create cargo volume for the Standard Gauge Railway (SGR), which links the port of Mombasa to the Athi River ICD. The government required the shipping lines to henceforth use a Through Bill of Lading (TBL) instead of Merchant Haulage. TBL refers to a single bill of lading covering receipt of cargo at the point of origin for delivery to the ultimate consignee at a named place in the hinterland, in this case, the Athi River ICD.
In Merchant Haulage of containerized cargo, the responsibility of the shipping line ceases upon discharge of the container at the port. This is the point where the consignee takes delivery of the goods and is given a time frame within which to return the empty container.
The abrupt 2018 notice disturbed a logistics industry that had grown organically for over a decade. In 2007, there was very serious congestion at the port due to capacity constraints in the face of growing cargo volume, which affected the turnaround times of merchant ships.
For the first time in their history with the port, shipping lines threatened to levy a Vessel Delay Surcharge (VDS), a highly punitive fee for unusual delays, which can go as high as KSh30 million a day depending on the size of the vessel or the type of the cargo.
The abrupt 2018 notice disturbed a logistics industry that had grown organically for over a decade.
A need arose to create extra capacity outside the port’s yard to avoid VDS. This is how the CFSs came into being as a temporary measure to address the prevailing congestion. However, it is their business model that was interesting; viewed as an extension of the port, they were to apply the KPA Tarif. Since over 60 per cent of the cargo could not be cleared within the 7 free days the KPA allowed, the income of CFSs came from storage charges levied against importers who could not clear cargo within the free period, profiting from inefficiency.
CFSs became highly lucrative and within a few years had proliferated in number to over 10 stations. This gave the port relief to expand infrastructure—rehabilitation of berths, construction of a second container terminal, and dredging of the channel.
CFSs also invested in modern equipment to improve efficiency and become competitive after the KPA allowed importers to nominate cargo to the CFSs of their choice. Cargo clearance became easier and the storage charges business model could no longer hold.
With no room for tariff adjustment, CFSs had to innovate to remain afloat. They, therefore, introduced tailor-made plans with their customers, largely serving as distributive points and storage facilities for the cargo already cleared by the Kenya Revenue Authority (KRA) through the KRA offices hosted on their premises.
The CFSs became popular among the importers. Those with excellent marketing skills managed to convince over 80 per cent of their clients to nominate cargo to their stations with KPA nominating the rest.
In a 2017 study on the future of CFSs in the wake of the construction of the SGR, Maritime Business and Economic Consultants found that the stations employed 1,804 people, who earned a total monthly salary of KSh102 million monthly. “Out of this number, 1,276 were permanent staff and 528 contracted staff,” noted the study which was led by Gichiri Ndua, an economist and former KPA managing director who oversaw most much of the modern port development. According to the study, CFSs invested over KSh20 billion in 2017.
Following the 2018 directive that importers must clear all cargo with a Nairobi address at Athi River ICD, CFSs lost business. Some closed down, those with the ability moved to Nairobi and others scaled-down business to handle only Mombasa-based cargo, which is less than 10 per cent of the port’s total volumes.
Crucial questions arise following the yet to be gazetted presidential directive. Are CFS operators likely to move their capital back to Mombasa? Will they be willing to move the capital they have invested in other logistics chains that have emerged? What if the SGR addresses the last mile transport challenge, which is the element that makes it costlier than road transport? How many jobs will be lost in Nairobi if operations go back to Mombasa?
CFS operators and other logistics providers are keeping a close eye on how events unfold following the new order. Recently, KPA published a notice that allowed importers to nominate cargo to CFSs of their choice, giving them the choice of either using rail or road. Even with the new terminal, the KPA’s cargo clearing capacity is limited and requires space outside the port, either at CFSs or at ICDs. Indeed, Ndua’s report notes that if the 21,830 Twenty-Foot Equivalent Units (TEUs) handled by CFSs in 2017 were to be dumped at the port, one would not be able to set foot in the terminal.
Another critical consideration is the investment that the government has made in the ICDs in Nairobi and Athi River at the expense of the port. In the last five years, the government has focused all its attention on infrastructure projects at the ICDs in Nairobi and Naivasha. After suffering serious teething problems that led importers to pay huge demurrage charges at ICDs following the 2018 directive, the KPA improved infrastructure, including creating smart gates that now allow for a seamless flow of cargo.
Even with the new terminal, the KPA’s cargo clearing capacity is limited and requires space outside the port, either at CFSs or at ICDs.
The port of Mombasa may face capacity constraints should the number of importers opting to use road transport grow huge. Container traffic at the port has been recording a growth of 10 per cent per year on average in the last decade and the facility is currently handling over 33 million tonnes a year. The feasibility study carried out by China Road and Bridge Corporation (CRBC) on the SGR in 2011 projected that the port will handle 41 million tonnes of cargo by 2028.
Another dilemma facing the implementation of Ruto’s directive is how the neighbouring countries using the port at Mombasa will take it. The port is a regional infrastructure serving the Northern Corridor—Uganda, Rwanda, Democratic Republic of Congo, South Sudan and Burundi. Uganda is of crucial importance. It provides the KPA with 70 per cent of the total transit cargo. In March this year, Kenya Railways Managing Director Philip Mainga took the Ugandan Finance, Planning and Economic Development Parliamentary Committee on a fact-finding tour of the Naivasha Inland Container Depot.
The delegation was led by Henry Musasizi, Uganda’s Minister of State General Duties at the Ministry of Finance, Planning and Economic Development. The team had earlier visited the Dar es Salaam port in Tanzania, before making their way to the Mombasa Port and the Naivasha ICD.
In May last year Kenya and Uganda joined forces to rehabilitate the old meter-gauge railway to enhance the seamless movement of goods. Kenya has provided a linkage between the SGR and the rehabilitated metre gauge railway line from Naivasha to Malaba using the Kenya Defence Forces.
Currently, it costs an average of US$2,100 (about KSh225, 120) to move a 20-foot container from Mombasa to Kampala by road. In December 2021 Kenya Railways (KR) gazetted promotional tariffs to ferry cargo from the Mombasa port to Malaba at US$860 (KSh100,198) for a 20-foot container weighing up to 30 tonnes and US$960 (KSSh111,849) for a container weighing above 30 tonnes. Charges for a 40-foot container weighing up to 30 tonnes stood at US$1,110 (KSh129,326) and at US$1,260 (KSh146,802) for those above 30 tonnes.
A few days before President Uhuru Kenyatta left office, State House announced that Kenya had issued Burundi, Rwanda, DRC, Uganda and South Sudan with the title deeds to the location where a special economic zone is being established at the Naivasha ICD. The five countries were said to have been reluctant to put up inland container depots without title deeds.
But perhaps the biggest headache has to do with the Chinese loan. Kenya signed a “take or pay” loan with the Exim Bank of China. What this 15-year agreement means is that the KPA undertook to “take” a minimum amount of cargo on the new railway every year failure to which it would draw from its revenues to “pay” for the shortfall.
Kenya’s loan repayment to Exim Bank of China this financial year will jump to US$800 million, an increase of over 126.1 per cent compared to last financial year. If the KPA does not provide sufficient cargo to finance the repayment, Kenya will have to pay the loan from public coffers, which are already depleted.
According to data from the Kenya National Bureau of Statistics (KNBS), in the five years that the SGR has been in operation, it has generated US$4.6 billion from cargo freight. Passenger trains generated US$760 million over the same period, indicating that it is cargo that is keeping it afloat. The KPA is therefore the SGR’s main client.
There is an erroneous narrative held by politicians who attach a lot of value to the port as the main job creator in Mombasa. This was perhaps the case a decade and a half ago, but it no longer holds because of technological developments in cargo handling logistics. The only jobs available today are those involving the physical handling of cargo.
Kenya’s loan repayment to Exim Bank of China this financial year will jump to US$800 million, an increase of over 126.1 per cent compared to last financial year.
With the full rollout of the KRA’s Integrated Customs Management System (iCMS) which replaced the decade-old Simba System, and KenTrade’s upgraded National Open Single Window System, cargo clearance is completely paperless and does not involve any physical contact. It can be done from anywhere. Therefore, clearing and forwarding jobs will not come back to Mombasa.
Also, since last year when the system became operational, licensed shipping lines and agents operating in Kenya are required to use the Maritime Single Window System (MSW) to prepare and submit vessel pre-arrival and pre-departure declarations to government agencies electronically.
The revival of Mombasa’s economy may lie elsewhere. As a starting point, the government must up its game by putting up modern training equipment and infrastructure and providing maritime training and education so that the country can equip its citizenry with skills to unlock the much-touted Blue Economy, the next economic growth frontier.
By 2020, the biggest maritime training institute in the country, Bandari Maritime Academy (BMA) in Mombasa, offered only 6 of the over 30 courses offered in maritime training as recommended by International Maritime Organization (IMO). Kenya does not even possess a training vessel to offer the trainee time at sea.
Lack of fishing gear and an ill-trained workforce limit Kenya’s efforts to venture into deep sea fishing. The International Convention on Standards of Training, Certification and Watchkeeping for Fishing Vessel Personnel, which came into force on 29 September 2012, set certification and minimum training requirements for the crew of seagoing fishing vessels of 24 meters and above.
Because of this shortcoming, Kenya has left its sea waters to Distant Water Fishing Nations (DWFN) which mainly fish tuna species. Kenya lies within the rich tuna belt of the West Indian Ocean, where 25 per cent of the world’s tuna is caught.
Training would also open opportunities in other areas such as shipbuilding and repair, as well as seafaring, the biggest foreign earner for the Philippines, which supplies 40 per cent of seafarers’ jobs globally.
During his inaugural ceremony President Ruto promised to establish the Dongo Kundu Special Economic Zone in Mombasa to process leather among other activities. If implemented, it will represent an opportunity for job creation for the region.
Four Reasons Why Ruto’s Cabinet is Unconstitutional
By creating “cabinet-level” portfolios, President William Ruto commits a subterfuge in an attempt to circumvent the two-thirds gender rule. Ruto’s cabinet also fails to reach ethnic and regional balance while including nominees who fail the leadership and integrity test.
There are at least four reasons why President William Ruto’s cabinet is unconstitutional. First, the cabinet fails the foundational composition rule of not more than two-thirds of the same gender. Two, the cabinet fails the Article 130(2) test that requires the national executive to reflect regional and ethnic balance. Three, some cabinet members fail the Chapter Six of the constitution test on leadership and integrity, tainting the entirety of the cabinet. Four, and finally, the creation of two cabinet-level portfolios is not only illegal but also indignifies women, contrary to Article 28 of the constitution.
I will not discuss chapter six issues in this piece as they require acres of space on their own. I discuss the other three.
Two-thirds gender rule
It is unfortunate that, in 2022, a cabinet formed by a president who without end hollers about his belief in the rule of law, does not meet the bare constitutional gender minimum of not more than two-thirds. It is both a maths issue and a constitutional subterfuge issue.
First, the math issue.
Article 152(a) clearly defines and caps the membership of cabinet. Cabinet comprises of the president, the deputy president, not more than 22 cabinet secretaries and the attorney general. Essentially, the ceiling is 25 members. No more. But this number could be less, because the president can appoint as few as 14 cabinet secretaries. Ruto used all his 22 cabinet cards and more. The more—two positions—he christened “cabinet-level portfolios” on gender and national security and assigned women to superintend them.
Now, here is the problem. Article 27(8) establishes a two-third gender ceiling rule on the composition of any state or public body. The courts have said that the cabinet is a body for the purpose of Article 27(8) gender-capping. Ruto and Deputy President Rigathi Gachagua are men. Justin Muturi, AG-nominee, is also a man. Additionally, of the 22 cabinet secretary nominees, 15 are men. Hence, of the 25 cabinet slots, 18 are reserved for men and 7 for women. In the case of Marilyn Kamuru versus Attorney General decided by Justice Onguto in 2015, the Judge said that Article 27(8) math would require computing the number of the lesser gender against the entirety of the cabinet including the president, deputy president and the AG. For Ruto’s cabinet then, the 7 women would be the numerator against a denominator of the total and maximum 25 cabinet slots. This results in 72 per cent men in cabinet whereas the constitutional cap should, at the minimum, limit them to not more than 66 per cent.
Now, on to the subterfuge.
I know there are those who will ask what about the two cabinet-level portfolios and the secretary to the cabinet who are all women. Again, the comprehensive response is to be found in Articles 152(a) and 154 of the constitution. Article 152 caps the number at 25. In that capping it does not say that secretary to the cabinet is a cabinet member. Article 154 tells us who a secretary to the cabinet is. It is an office in public service but, unlike Article 152 which explicitly says that the AG is a member of the cabinet, Article 154 does not make a secretary to the cabinet a member of the cabinet.
And this is where Ruto commits a constitutional subterfuge. By explicitly naming the four positions—the two advisers, the secretary to the cabinet, and the AG—as cabinet-level portfolios, he was constitutionally mixing apples, oranges and tomatoes. But it seems the intention was to dangle a red-herring both regarding the two-third math and the legality of the two offices. In fact, his supporters misleadingly insist that in computing the two-third rule, the three portfolios—that is, the two cabinet-level advisers and the secretary to the cabinet—should be factored in.
This is how smart people try to circumvent the constitution. But the constitution is quite conscious that public officers will try such tricks so it says—and the court has confirmed—that its violation can be direct or through effect. Both levels of violations are present here.
Regional and ethnic balance
This is straightforward albeit controversial. Article 130(2) says that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya. Again, it is a little more than a bean counting exercise.
The two critical operative elements are ethnic and regional. Regional is obviously geographic although the constitution does not delineate what a region is. It leaves that to common sense, practice, rhetoric and legitimate expectation. In this regard, and in our political rhetoric, there is a region christened Mt Kenya. While defined to some extent by proximity to the mountain (Mount Kenya), it also imports into its defining characteristic some ethnic component. So, while Isiolo may be closer to Mt Kenya than Kiambu, the majority of communities resident in Isiolo are not legitimately and in political rhetoric terms considered to be part of Mt Kenya. On the other hand, Kiambu people are, even though they are much further away from Mt Kenya than Isiolo is. But this is where it gets even messier: I believe if you are a GEMA community member living in Isiolo, you are considered Mt Kenya. The opposite is not true. You may wish to argue this point, but it is one of those facts that make political but hardly any logical sense; still, the constitution would recognize the argument in the context of Article 130(2).
Article 130(2) says that the composition of the national executive shall reflect the regional and ethnic diversity of the people of Kenya.
In this sense, it is possible that some of the members from the GEMA group who have been nominated to the cabinet may identify as hailing from the Rift Valley or from elsewhere in the country. But when Article 130(2) is purposively read, a question arises whether the numbers of those included in the cabinet who are from Mt Kenya region, or are from one of the pre-dominant Mt Kenya regional ethnic groups (when one considers the demographics and diversity of the country), disproportionately constitute the cabinet. My answer is yes.
Illegal cabinet-level portfolios
This is not about the attorney general or the secretary to the cabinet. As I have explained above, the constitution explicitly says that the AG is a member of the cabinet. Article 154 also creates the position of secretary to the cabinet, although it does not make the holder a member of the cabinet. Whether the position of secretary to the cabinet is a cabinet-level portfolio is a discussion for another day. What I am interested in here is the legality of the other two cabinet-level portfolios Ruto has created on gender and national security.
The constitution and the law are explicit on how state office or offices in public service are to be created. The constitution is also implicitly inundated with the logic of circumscribing a strict criteria and processes of creating such offices, among them to curb wastage of public funds by creating unnecessary or duplicative offices.
The agency with the power to create a public office is the Public Service Commission (PSC). True, the president may request the PSC to create a position in public service—but when he does so, the PSC is required to conduct a thoroughgoing needs assessment to determine whether the position is necessary. The constitution anticipates this and the courts have said as much. If, in fact, the two positions are offices in public service, the strict requirements of Article 234 have not been complied with.
The constitution and the law are explicit on how state office or offices in public service are to be created.
There are only two other avenues through which Ruto could have created the two offices. The first is under Article 234(4) which allows the PSC to create a position of “personal staff” to the president. We shall settle this quickly because it would be oxymoronic to argue that a “cabinet-level portfolio” is a “personal staff” position for the president. In any event, did the PSC sanction it?
The second avenue is to be found under Article 260, which provides that parliament can create a state office but even then only through legislation. Question: under which law are the two offices created?
Constituting a cabinet is perhaps one of the most intense of boardroom wheeler-dealer activities. It is, for instance, hard to find the logic why, for example, Ababu Namwamba was assigned the sports and youth docket while Alfred Mutua was assigned foreign affairs. However, at times, the constitution is able to find logic in some of these nocturnal deals and I think, in this case it would easily discover the logic behind why the two tentative and illegal positions of cabinet-level portfolios ended up with women as nominees.
Article 28 is about human dignity. If there are two positions to be assigned, one that is constitutionally recognized and secured and the other constitutionally suspect and tentative, it is no secret that being appointed to the constitutionally secure position is more dignifying. Historically, and as Ruto has demonstrated with his list of cabinet nominees, women are always an afterthought when allocating consequential positions of leadership. This is not conjecture. Instead, it is a compelling argument under Article 259 of our constitution, a provision that requires the constitution to be interpreted in a purposive way. It is a position also supported by many other relevant and endless re-enforcing provisions of the constitution. So, the two most tentative positions are ultimately assigned to women, because, after all, in the animal farm context (but not under the 2010 constitution), all animals are equal but some are more equal than others.
Plum as the positions may seem, in contextual terms they raise an Article 28 issue. An issue of human dignity.
What to do?
There are two ways to deal with these constitutional infirmities. One: Ruto can withdraw his list and amend it accordingly to comply with the constitution. If he is too married to this strange concept of “cabinet-level portfolios” he should at least push some of the Mt Kenya men there and move the women to the real cabinet portfolios. We can then deal with the illegalities of where the men end up later. But that may all be wishful thinking.
Historically, and as Ruto has demonstrated with his list of cabinet nominees, women are always an afterthought when allocating consequential positions of leadership.
Second: In the Marilyn Muthoni case, Justice Onguto chastised the national assembly for aiding and abetting Uhuru (gleefully, may I add) in violating the constitution by failing to conduct, during the vetting of cabinet secretary nominees, a “strict scrutiny” (the judge’s words) on the constitutional compliance of the composition of cabinet for gender, regional and other factors – but primarily gender because the pith of the case was the violation of the two-third gender rule.
Moses Wetangula and the national assembly will soon have a choice to make: whether their primary allegiance and loyalty is to William Ruto or to the constitution.
TPLF Cannot Survive a Day Without Its Hypocrisy
It is the firm conviction of the Government of Ethiopia that the peace efforts under the auspices of the African Union must be conducted without preconditions, and the international community should condemn the TPLF’s intimidation of the AU Officials and frustration of the peace efforts in unison.
Lying pathologically is the perennial character of the Tigray People’s Liberation Front. From the cradle to the grave peddling lies is the bread and butter of this terrorist clique. On 04 November 2020, after mercilessly slitting the throats of members of the Northern Command in their sleep, the TPLF cried wolf that the Federal Government (FG, henceforth) pre-emptively attacked it. In the wake of this gruesome massacre, Sekoutoure Getachew, declared that by “pre-emptively striking the TPLF has destroyed the Northern Command”, exposing the facade of the clique awash with deception, brutality and an insatiable appetite for war.
Similarly, on 13 October 2021, the TPLF cabal brazenly declared that it is “willing go to hell to destroy Ethiopia”. After pre-emptively attacking the Ethiopian National Defense Forces (ENDF), once again, the TPLF shamelessly proclaimed that the ENDF attacked it from all fronts. With these heinous provocations, the TPLF showed to the world that it cannot live without shedding the blood of innocent civilians. The blatant, sadistic, self-contradictory proclamations of the TPLF distinctively deviate from the moral standards of a civilized society. There are no limits to its hypocrisy.
While wreaking havoc in the Amhara region unprovoked, the TPLF now alleges it was attacked by the ENDF from the Raya front. The spokesman of the TPLF claimed that the “truce has been broken”, which is true as it is the TPLF’s action, last straw that broke the camel’s back. Yet it is paradoxical to cry foul when it was meticulously self-inflicted. The TPLF is deafening us with its destructive, utterly irrational narratives emblematic of its siege mentality. The TPLF terrorist junta cannot survive without an ecosystem of betrayals, lies, siege mentality and chaos. Put simply, the TPLF cannot dwell in the sphere of the humane, the compassionate and the empathetic. Hence, the suffering of the people of our Tigrayan brothers and sisters under the TPLF’s captivity.
The words and deeds of the TPLF inarguably prove that it has no regard for the dignity of human life including the children it touts as soldiers. Its quotidian transgressions and its anarchic tendencies attest to this very fact. The forceful conscription of Tigrayan children as “soldiers” and the coercive mobilization of the general Tigrayan populace in the service of its suicide mission is a constant demonstration of its insatiable appetite to destabilize Ethiopia and the Horn of Africa by any means necessary, even if it means exterminating hapless civilians. Sadly, the international community doesn’t seem to care about the loss of countless lives. It is a deafening silence, at best. This must change here and now and the international community needs to pass an unambiguous verdict that the genocidal campaigns and crimes against humanity perpetrated by the TPLF in Tigray, Amhara and Afar regions must cease unconditionally in favour of a negotiated settlement.
While the FG has been undertaking confidence-building measures to peacefully resolve the conflict in Tigray, the TPLF is hell-bent on thwarting the peace process. On the one hand, the TPLF is paying lip service to the idea of negotiating with the Federal Government. On the other hand, it is incessantly engaged in an extensive military offensive and flagrantly violating the humanitarian truce. By doing so, it has been impeding government efforts to provide unfettered access to humanitarian assistance in Tigray. Many in the international community have corroborated these well-known facts, including UN agencies.
On 12 July 2022, the FG established a High-level Peace Committee (HLPC) led by the Deputy Prime Minister and Minister of Foreign Affairs to lead the government’s efforts to end the conflict in northern Ethiopia through negotiations. By instituting the HLPC the FG demonstrated its commitment to pursue a constructive engagement with the TPLF in good faith. On the contrary, the TPLF unequivocally refused to list a negotiating team. Even in the face of this awful conundrum, the government persistently appealed to partners to jointly work on restoring basic services to the Tigray region as well as the adjacent Amhara and Afar regions.
As we can all deduce from the history of the world, at a certain stage warring parties who have a genuine desire for peace go back to the negotiating table draw up short, medium and long-term solutions for sustainable peace. To this end, they also address the root socio-political and economic causes of the conflict and forge consensus to put in place a roadmap for peace. However, the TPLF lacks legitimate political demands that could be dealt with through negotiations. It still lacks a valid reason for its insolence and contempt for the people and government of Ethiopia. Every time the FG extends the TPLF an olive branch, it resorts to carnage for fear of becoming utterly irrelevant.
What is even more unnerving is its vexing assertion that without its brutal rule “Ethiopia will fall apart”!. With these diabolical ideals founded on the personality cult of its founding fathers, the TPLF is a specter of violence both in Ethiopia and the Horn of Africa region, while adding fuel to global conflagrations, threatening world peace. Whilst relegating all efforts of peace by the Government of Ethiopia to the museum of intellectual curiosity for fear of becoming extinct for lack of relevance, the TPLF dispatched an ominous letter to foreign dignitaries threatening another bloody war if its fantasy demands are not met.
On the morning of Wednesday, 24 August 2022, the TPLF launched an extensive military offensive with the made-up pretext of “being attacked on the Raya front”, reigniting an unsolicited conflict and flagrantly violating the humanitarian truce the Government of Ethiopia had worked so hard for. Ironically, the TPLF alleges that the FG commenced another “full-fledged war” at 5 a.m. local time via multiple fronts. The TPLF’s propaganda machine is a double-edged sword spreading this falsehood and betraying efforts for peace and reconciliation. Its latest actions accelerated its death wish while galvanizing the Ethiopian people to come to the rescue of their Tigrayan sisters and brothers, who are being held hostage by the TPLF. Through its various social and digital media outlets, the TPLF’s propaganda machinery has also been intensively engaged in undermining the peace efforts, denigrating and attacking the African Union, the leadership of the Commission, and the High Representative for the Horn of Africa, H.E. Olusegun Obasanjo. This is a regrettable reality that is giving Ethiopians, people of Ethiopian origin and friends of Ethiopia around the world sleepless nights. This needs to stop unconditionally.
It is the firm conviction of the Government of Ethiopia that the peace efforts under the auspices of the African Union must be conducted without preconditions, and the international community should condemn the TPLF’s intimidation of the AU Officials and frustration of the peace efforts in unison. The international community must also support the African Union in leading the facilitation process to bring about sanity and security to one of the most troubled regions in the world. Despite repeated unsubstantiated allegations, the government will continue with its efforts to find a lasting solution for the country’s various social and political challenges through the National Dialogue mechanism. There is every reason to believe that the worsening situation in Tigray could ameliorated through this indispensable means. Parallel to this, it is high time that the TPLF menace is buried, once and for all, through the concerted efforts of Ethiopians, the Ethiopian diaspora and friends of Ethiopia around the globe, near and far, by advocating for peace while singularly condemning the reckless terrorist activities in Tigray, Amhara and Afar. The boundless cruelty of the TPLF continues to result in a massive physical, spiritual and psychological trauma that will take years if not decades to come to terms with, let alone overcome. Lastly, the international community needs to unanimously condemn this reckless violence by sending out a clarion call to the TPLF to lay down arms and come to the negotiating table pronto, as the road to peace begins with the silencing of the guns.
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