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Road to 9/8: Risks Posed by Digitisation of Electoral Processes
11 min read.This is the third of a series of articles that discuss some of the major issues at stake, and the roles played by various institutions in safeguarding the integrity of the August 2022 general election.
In our previous article, we highlighted the key challenges facing Kenya’s electoral integrity that are posed by the increased digitisation of election systems and the electioneering process. From cybersecurity risks to harms occasioned by human conduct on social networking platforms, there are various factors that could undermine the credibility of elections in the digital age. In this article, we review some of the measures adopted to mitigate the potential for such harms in the context of the upcoming elections.
Since the 2017 general election, there have been numerous changes to the legal framework applicable to the use of technology in different contexts. Some notable changes within the context of elections are the enactment of the Computer Misuse and Cybercrimes Act, 2018 (CMCA) as well as the Data Protection Act, 2019 (DPA), and the operationalisation of the Data Commissioner’s office. The effect of these changes is already being felt—the Data Commissioner was recently called into action following numerous complaints by citizens that they were registered as members of political parties without their knowledge or consent. In response, the Data Commissioner consulted with the Office of the Registrar of Political Parties and directed it to establish an opt-out mechanism that has since been implemented. However, a recent report authored for the Mozilla Foundation chronicled the practice of disinformation for hire; the use of social media influencers by political actors to spread false or misleading content on their opponents is common despite the provisions of the CMCA criminalising such conduct. This suggests that the existing measures taken may be insufficient.
Recalling some of the major challenges Kenya faced in the 2017 general election, we outline the key developments that have since taken place and highlight their potential impact on the integrity of the election administration system and the practice of electioneering online.
Integrity of the election administration system
The Elections Act mandates the Independent Electoral and Boundaries Commission (IEBC) to establish and maintain an electronic system for voter registration and identification and the transmission of results. Further, the Elections (Technology) Regulations outline how the IEBC is required to administer this system and the safeguards that they are required to put in place. They set out the principles that ought to guide the IEBC in data handling and storage. In 2017, the IEBC’s administration of the election system came under the microscope due to a series of unfortunate events, pointing, at best, to ineptitude.
During the 2017 election cycle, the IEBC debuted the Kenya Integrated Management System (KIEMS), billing it as a solution to the credibility issues that had previously plagued electoral processes. KIEMS uses electronic voter identification and transmission of tabulated results through mobile devices stationed at each polling centre. The server support and underlying IT for KIEMS was provided by French-based firm, OT-Morpho (later, IDEMIA). According to the then opposition, IDEMIA was contracted under dubious conditions and, from the start, was part of a fraudulent scheme to subvert the election process. Despite assurances from the IEBC on the credibility of its system, several occurrences cast significant doubts over the elections. For one, a week prior to the elections, the IEBC’s ICT manager in charge of the KIEMS—Chris Msando—was found murdered shortly after appearing on a news segment assuring Kenyans of the integrity of KIEMS and his centrality to the security of the system. To date, the circumstances of his death are not clear, and no one has been charged.
Secondly, during the elections, the transmission of results was hampered by poor connectivity, with approximately 11,155 polling stations out of the total 40,883 lacking sufficient network coverage. At some point, the tallying of results was briefly interrupted. All these factors were relied on by the petitioners in the 2017 presidential election petition, and this led to the Supreme Court calling into question the integrity of the servers used to facilitate the transmission and storage of the election results. Perhaps the most notable occurrence in the discussions on OT-Morpho’s involvement in the election was the IEBC indicating that it was unable to provide access to the election servers due to the time difference between Kenya and France. In its eventual judgment, the Supreme Court found that there were several irregularities plaguing the electronic transmission system and this contributed to its decision to annul the election. After the nullification of the elections, one of the IEBC’s commissioners fled the country, the CEO was terminated and, citing a lack of faith in the chairman, three other commissioners resigned. These positions, including that of the late Chris Msando, have since been filled. It is notable that the chairperson remains in office, despite the debacles of 2017.
Reeling from the events of the 2017 election, the IEBC conducted a post-election evaluation exercise in 2019 to inform its strategic approach to the 2022 elections. This process not only informed the legislative amendments that the IEBC has recently supported in parliament such as the Election (Amendment) Bill, 2021, but also the preparation of the IEBC’s ICT capacity. Based on the evaluation, the IEBC has acquired a primary and secondary data centre in Kenya and has put in place a Joint Technical Committee with the Communications Authority to map out the network coverage challenges.
However, there are significant challenges facing the IEBC. While the IEBC has moved away from IDEMIA, its procurement of Smartmatic International Holding B.V. is currently being challenged by one of the other contenders for the contract, Risk Africa Innovatis. This is not the first time Risk Africa Innovatis has challenged the IEBC’s procurement of a biometric service provider. In 2017, it challenged the procurement of IDEMIA on similar bases as its current challenge of Smartmatic’s award. Among these challenges, is that Smartmatic International Holding B.V. has been adversely mentioned in the Philippines, Venezuela, Uganda, Nigeria, and the USA over its credibility. While Risk Africa Innovatis is a Kenyan-owned company, Smartmatic is a multinational initially incorporated in the US by several Venezuelan nationals. In several elections it administered in Venezuela, the Philippines, and the United States, Smartmatic faced controversy over the integrity of its systems as well as its links to the Venezuelan government (in particular, alleged pay-outs to high-ranking government officials). For example, in Venezuela, independent election monitors concluded that it was likely that electronic election fraud had been committed in the 2004 presidential recall referendum administered by Smartmatic. Following adverse media coverage, Smartmatic undertook an internal restructuring that obfuscated its true ownership using what the US State Department described as a “web of holding companies in the Netherlands and Barbados”. Interestingly, Smartmatic supplied the biometric voting machines for Uganda’s recent 2021 elections, not exactly a ringing endorsement.
Smartmatic International Holding B.V. has been adversely mentioned in the Philippines, Venezuela, Uganda, Nigeria, and the USA over its credibility.
Beyond this, the IEBC’s procurement process seems to be off to a rocky start. For one, the delay in procuring Smartmatic’s services means that Kenyans may not get an opportunity to scrutinise the register of voters despite being legally entitled to do so. Further, the IEBC is also facing a legal challenge in respect of its procurement of Inform P Lykos Holdings for the printing of ballot papers. The Public Procurement Review Board nullified both awards to Inform P Lykos and Smartmatic but its decision has since been challenged at the High Court. The IEBC proceeded to sign contracts with both, citing the urgency of the election and the absence of an injunction from the High Court preventing it from contracting the two entities during the pendency of the appeal. When one considers that there are five years between election cycles, it is staggering that the IEBC would find itself in this position.
Certain of the broader issues facing the elections administration system have since been addressed by several legislative developments, principally the enactment of the DPA and the operationalisation of the Data Commissioner’s office. Supplementing the Elections (Technology) Regulations, the DPA and its accompanying regulations layer onto the IEBC’s obligations with respect to data collection, handling, and storage. These obligations have further been clarified by the Data Commissioner in a recently issued Guidance Note for Electoral Purposes. For example, the IEBC’s collection of voter registration information must be based on consent, and it must implement data protection mechanisms within the design of its systems. To ensure this is done, the Data Commissioner advises that a Data Protection Impact Assessment (DPIA) should be conducted by the IEBC and other election stakeholders such as the Registrar of Political Parties, who handle voter data, ahead of the elections.
For clarity a DPIA is required where personal data processing operations are likely to pose a risk to the rights of data subjects (in this case, voters). It guides risk mitigation efforts which should be undertaken by the person collecting and processing personal data, or whether such collection and processing should happen in the first place. A failure to conduct a DPIA resulted in the High Court’s recent revocation of the roll out of the Huduma Cards under the National Integrated Identity Management System. If the IEBC fails to conduct a DPIA, it is likely that this failure will feature either in the resulting election petitions or in court action prior to the elections. With respect to the storage of personal data, the general regulations issued under the DPA specify that the IEBC’s processing of personal data should be through a server located in Kenya, or the IEBC should at least maintain a copy of the server locally. This seems to be a nod to 2017 Supreme Court Judgement annulling the presidential election, which took issue with the unavailability of the IEBC’s servers.
In 2018, the CMCA was also enacted to provide for computer system-related offences such as unauthorised access or hacking. The CMCA established a National Computer and Cybercrimes Coordination Committee (referred to as NC4) which is tasked with coordinating the state’s response to cybercrime. Recently, the Cabinet Secretary for Interior and Coordination of National Government, who sits on the NC4, designated various parts of the country’s telecommunications infrastructure (including data centres and systems used to manage elections) as critical infrastructure under the CMCA. With this designation, the telecommunications infrastructure will benefit from enhanced security and scrutiny from the NC4, and any attempts to infiltrate or damage such infrastructure would attract criminal penalties under the CMCA. While this designation was linked to recent attacks on telecommunication masts and power grid, its link to the upcoming election is clear—the IEBC relies on telecommunication service providers to transmit results to its cloud servers. If compromised, the outcome of the election may be adversely impacted.
Electioneering on social media
The same measures that were adopted to bolster the integrity of the election administration system also serve to safeguard against the harms occasioned by the conduct of political actors on social media. In 2017, several media outlets reported that the now infamous Cambridge Analytica—a self-proclaimed political consultancy firm—was active in Kenya, offering services to various parties. According to Cambridge Analytica, its service offering included profiling online audiences based on regular demographics (for example age and gender) as well as personality. For the purposes of this profiling, personality is discerned from the audiences’ conduct on social media—the content which they consume, the individuals they interact with and other data points. Once audiences were profiled, political actors would be able to differentiate the messaging used based on the type of audience being targeted (in other words, to conduct microtargeting). Often, this messaging would include false or misleading information. To facilitate microtargeting, Cambridge Analytica would require large amounts of personal data. In the aftermath of the 2016 US elections, it was revealed that Cambridge Analytica harvested the personal data of millions of people through Facebook. Based on reports of its involvement in Kenya’s election, it is not clear whether Cambridge Analytica facilitated microtargeting or simply designed campaign communications strategy. However, what is clear is that it harvested Kenyans’ personal data through surveys.
This seems to be a nod to 2017 Supreme Court Judgement annulling the presidential election, which took issue with the unavailability of the IEBC’s servers.
Since the Cambridge Analytica scandal, Kenya has enacted the DPA and CMCA that are ostensibly expected to reduce the likelihood of microtargeting and other forms of harmful social media activity in the context of the elections. The access to and use of personal data is central to political campaigning in the digital age. Prior to the enactment of the DPA, this practice was largely unregulated. Political actors were able to obtain voters’ personal data from the publicly available voters’ register and the party member list that is available to parties through the ORPP. Their activities in processing this data for purposes of generating targeted messaging were also largely unsupervised. Save for the guidelines jointly issued by the National Cohesion and Integration Commission and the Communications Authority on bulk messaging and social media communications (NCIC-CA Guidelines), political actors were basically free to determine how to craft their messaging and target audiences. While the NCIC-CA Guidelines brought in a measure of transparency by requiring the source of political messaging to be disclosed within the body of the message, this is limited to communications disseminated through licenced telecommunications service providers.
The provisions of the DPA would serve to limit potential for microtargeting campaigns by raising the barriers to accessing personal data and increasing the scrutiny over political actors’ handling of personal data. For example, under the regulations issued under the DPA, entities involved in electioneering are required to register with the Data Commissioner, whether or not they qualify for an exemption. Further, the electorate whose data is being collected would be able to exercise rights against political actors and these entities such as requiring them to delete their personal data or refrain from processing it in the first place. Without the ability to freely collect and process personal data, and with the threat of legal action against them, it is arguable that political actors would be less likely to engage in these practices in the coming elections. However, this would largely depend on the role played by the Data Commissioner. For example, one would expect the Data Commissioner to spring into action in light of a recent acknowledgment by the IEBC that illegal transfers of voters were undertaken on its electronic voter register.
Aside from being reliant on the proactivity of the Data Commissioner, the efficacy of the data protection law framework in relation to microtargeting campaigns is limited by provisions of election laws. While the collection of personal data by the IEBC or ORPP is initially based on consent, once collected, these entities’ subsequent processing operations are provided for in statute and as such are not subject to further consent or the exercise of certain rights by the electorate. For example, the publication of the voter register cannot be stopped by a data subject due to its provision in law. One may only be able to request minimisation of unnecessary data such as contact information. Once published, this voter register would be accessible to political actors who may use the information gathered to engage in microtargeting.
In relation to the nature of campaign messaging shared through social media, the CMCA criminalises the spread of misleading or false content. This is in addition to the criminalisation of hate speech already contained in the National Cohesion and Integration Act. To date, the provisions of the CMCA relating to the spread of misleading or false content have only been invoked in politically charged contexts and in a seemingly selective manner. For example, while a blogger was charged with this offence under the CMCA for spreading alarming information regarding COVID-19, a Member of Parliament was not charged for what was effectively the same offence. Despite this law being in place for nearly three years, it has not been implemented in instances where researchers have identified specific social media accounts that are engaged in disinformation-for-hire campaigns.
Once published, this voter register would be accessible to political actors who may use the information gathered to engage in microtargeting.
Aside from this, there are other shortcomings with this approach. For one, the use of criminal sanctions to limit the types of speech people engage in is generally discouraged due to the risk posed to the freedom of expression that is crucial in healthy democracies. Further, the nature of online speech is often incompatible with traditional law enforcement mechanisms and, therefore, detecting and prosecuting such offences is bound to be difficult. The state may find itself responding disproportionately to situations where harmful content is being spread online, such as by shutting down internet access. Instead of criminalising certain speech, a few democracies have recently turned to codes of conduct that govern the conduct of political actors online. The most notable of these is the Election Pledge developed by the Transatlantic Commission on Election Integrity. Recognising that healthy political engagement online is primarily driven by political actors, the Election Pledge attempts to have these actors publicly and voluntarily commit to above board conduct such as avoiding the spread of mis-and disinformation, avoiding the spread of hate speech, and using personal data appropriately.
The nature of online speech is often incompatible with traditional law enforcement mechanisms and, therefore, detecting and prosecuting such offences is bound to be difficult.
All in all, a number of steps have been taken that in principle should improve the legal framework applicable to elections as they are conducted in the digital age. However, fundamental concerns remain with regard to the procurement of the IEBC’s ICT procurement and its internal capability. At its core, the conduct of the IEBC and political actors involved in the electoral process will determine the credibility of the process. The IEBC has not yet discharged its mandate of establishing in the public mind how it will avoid the debacles of 2017. Aside from this, the steps taken to safeguard the electorate from practices such as microtargeting seem limited by the provisions of election laws and the proactivity of sector regulators such as the Data Commissioner and the Communications Authority will play a significant role in setting the tone for political actors. In our next article, we will shine a spotlight on the IEBC and consider its readiness to conduct this election in a transparent, credible and lawful manner.
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This article was authored in collaboration with the Kofi Annan Foundation whose electoral integrity programme is supported by the United Nations Democracy Fund.
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How Bureaucracy Is Locking Kenya Out of Transshipment Business
But for the bureaucracy bedevilling Kenya’s shipping sector, Indian Ocean Island nations could look to Lamu for transhipment while Mombasa has the capacity to attract major shipping lines in order to tap into this emerging business.
The transshipment business, which involves the handling of cargo for other ports, is now an area of keen focus for many ports the world over. However, administrative bottlenecks created by the Kenya Revenue Authority (KRA) have stymied Kenya’s transshipment business even as the Mombasa and Lamu ports face increasing competition from the other regional ports that are modernizing their operations even as new ones emerge.
But the tide is set to change if the new Managing Director of Kenya Ports Authority (KPA) Captain William Ruto makes real his promise to confront the issues that have made it difficult for the port to tap into an emerging business line that has led to the growth of other successful ports.
Ruto has indicated that he will impress upon the KRA to simplify their procedures by adopting industry standards practiced elsewhere—such as at the Tangier Med port in Morocco, where 85 per cent of the cargo handled is for other ports, translating to 7.17 million Twenty-Foot Equivalent Units (TEUs).
In an ideal situation, according to the new MD, the KRA is only supposed to approve the ship manifests once the shipping lines lodges them online, which in not the case in Kenya where the KPA is required to physically handle the transshipment containers that are landed at the ports. According to global standards, however, shipping lines, are only required to give notification of the ships that will carry the transshipment containers from the ports to the final destination. Simplified procedures have seen ports such as Singapore and Salalah in Oman handle over 90 per cent of their cargo as transshipment.
The port of Mombasa handled 1.43 million TEUs in 2021 compared with 1.35 million TEUs handled in the same period in 2020, representing an increase of 75,986 TEUs or 5.6 per cent. However, the KPA’s transshipment traffic was at an abysmal level, recording only 220,489 TEUs in 2021, a slight increase compared to the 175,827 TEUs recorded in 2020.
Lamu Port has the potential to become the biggest competitor to Salalah Port in Oman and the Port of Durban in South Africa in the transshipment business. Mombasa is also better placed than Durban to handle transshipments from Europe, China, and Singapore, all major world exporting countries; smaller vessels can be used to move cargo from the port of Mombasa to others on the Southern African coast.
Lamu Port could attract transshipment cargo for Tanzania, Mombasa, Somalia, and the Indian Oceans Islands of Comoros, Madagascar, Seychelles, and South Africa.
Although the KPA has striven to market Mombasa as a transshipment hub, reforms to tap into the business have been painstakingly slow even though the increased infrastructure at the port of Mombasa—dredging of the channel, rehabilitation of the berths, and the construction of the second container terminal—has increased the potential of the Mombasa port to handle more transshipment cargo.
Over seven years ago, a joint task force of the KPA and the KRA created a working template to increase the transshipment volume after collecting views from all the stakeholders involved in this trade and recommended a major transformation that, once fully implemented, would have seen more shipping lines find Mombasa port attractive for transshipment cargo.
In 2015, the joint task force visited three ports in Europe, Asia, and Africa that were close to Mombasa in size—and which have recorded significant growth in transshipment—to gather guiding lessons for the Mombasa port transshipment initiative. The selected ports were Tangier Med in MorrocoMorocco, Colombo in Sri Lanka, and Malta’s Freeport.
According to the team’s report, one of the major factors for the success of these ports is the manner in which they have simplified the processing of transshipment cargo, a vital lesson that Kenya, which has been associated with lengthy processes, could embrace. When the team visited the three ports iIn 2015, the transshipment process in Malta took less than 24 hours to approve, Colombo and Tangier Med both took less than 12 hours, whereas at the port of Mombasa it took 8 to 10 days.
“The shipping business is a complex affair that rides on predictable trends,” said Captain Ruto, a member of the delegation.
In all the ports visited, the transshipment business has been simplified through the use of Electronic Data Interchange (EDI) for faster clearance and approvals. Shipping lines in the three ports are only required to lodge manifests with customs for approval whereas in Kenya nine steps are involved, causing delays, with the ships earmarked to deliver cargo departing without loading the containers.
“The shipping business is a complex affair that rides on predictable trends.”
Delaying a ship is very costly and the daily average additional vessel operating costs incurred by shipping lines can range between US$20,000 and US$35,000 depending on vessel size, a demonstration of how crucial it is for lines to save time in the shipping industry.
Kenya has made significant strides following the fact-finding mission to the three ports. Vessel processing at Mombasa port went paperless when the Single Maritime Window System went live in June 2021, allowing shipping lines to lodge documents online and thus significantly improving clearing and turnaround times.
KenTrade, which runs the online cargo clearing system, worked with the Kenya Maritime Authority (KMA) to implement the system that facilitates ship clearance procedures by providing a single online portal for the sharing of information on the arrival, stay and departure of ships between the shipping lines/agents and the approving government agencies involved.
Since 8 April 2019, it is a mandatory requirement for national governments to introduce electronic information exchange between ships and ports. The objective is to make cross-border trade simpler and the logistics chain more efficient for the over 10 billion tons of goods that are traded by sea annually across the globe.
The requirement is part of a package of amendments in the revised Annex to the International Maritime Organization’s Convention on Facilitation of International Maritime Traffic (FAL Convention) adopted in 2016. It is intended to reduce or eliminate the manual, decentralized, duplicated, and unnecessarily lengthy processes in the maritime sector, which are affecting ships’ turnaround times and increasing costs at the port of Mombasa.
The FAL Convention recommends the use of the “single window” concept whereby the agencies and authorities involved exchange data via a single point of contact.
Another advantage of Mombasa as a transshipment hub is its capacity to attract major shipping lines. There are over 20 shipping lines currently using the port at Mombasa, the majority of which handle containers.
But what should concern Kenya most is the growing competition that is coming with the development of other regional ports and the emergencemergencee of new ones. Tanzania is inching closer to realizing several plans and strategies that have been initiated over the years to enhance its potential as a maritime country.
There are over 20 shipping lines currently using the port at Mombasa, the majority of which handle containers.
The country has direct access to the Indian Ocean, with a long coastline of about 1,424km at the centre of the east coast of Africa. It has the potential to become the least-cost trade and logistics facilitation hub of the Great Lakes region.
There is the planned expansion and modernization of Dar es Salaam port under the Dar es Salaam Maritime Gateway Project (DMGP). The DMGP will increase Dar es Salaam port’s capacity from the current 15 million metric tonnes annually to 28 million tonnes.
The improvement of maritime hard infrastructure has gone hand in hand with the overhauling of the soft infrastructure. The Tanzanian government has already introduced electronic systems that have made cargo processing and clearing easier. These systems include the electronic single window, which has reduced paperwork and has also removed the need to physically visit multiple government agencies and regulatory bodies to lodge documents as all this can be done digitally through the Tanzania Customs Integrated System (Tancis).
In May 2016, global port mega-operator DP World agreed to develop Berbera Port in Somaliland and manage the facility for 30 years, a move that is set to make it the most modern port in the Horn of Africa. Ethiopia has acquired a 19 per cent stake in the project, the other partners being DP World, with a 51 per cent share, and Somaliland with a 30 per cent share. The total investment of the two-phased project will reach US$442 million. DP World will also create an economic free zone in the surrounding area, targeting a range of companies in sectors from logistics to manufacturing, and a road-based economic corridor connecting Berbera with Ethiopia.
Port Berbera is now the closest sea route to landlocked Ethiopia, a journey of 11 hours by road. It has opened the route needed for growth in the import and export of livestock and agricultural produce.
Djibouti has undertaken significant developments in all its ports. The Djibouti International Free Trade Zone (DIFTZ) was officially inaugurated in July 2018. The initial phase, a 240-hectare zone, is the result of a US$370 million investment and consists of three functional blocks located close to all of Djibouti’s major ports.
The project has also created major business opportunities for Djibouti and East Africa as the region’s export manufacturing and processing capacity is expanded in key sectors such as food, automotive parts, textiles and packaging.
The Djibouti ports of Doraleh Multipurpose, Ghoubet and Tadjourah have all been completed in recent years. Doraleh Port is particularly strategically located, connecting Asia, Africa, and Europe. It can handle two and six million tonnes of cargo a year at its bulk terminal and breakbulk terminal, respectively.
Port Berbera is now the closest sea route to landlocked Ethiopia, a journey of 11 hours by road.
Another key milestone for the Djibouti ports is the standard gauge railway (SGR). A 750-kilometer SGR line connecting Addis Ababa with the ports in Djibouti has been constructed, cutting a three-day journey down to 12 hours.
Djibouti has also received global attention due to its strategic location. Virtually, all of the sea trade between Asia and Europe passes through the Red Sea on its way to or from the Suez Canal. As a result, Gulf and Middle Eastern powers, China, the United States, and France have developed great interest in this route and the country today hosts 5 military bases.
Having made significant gains in automating cargo clearing procedures and also expanded the port of Mombasa by constructing a second container terminal and a new port in Lamu, there is great need for the KRA to work with the other industry players to simplify transhipment cargo procedures. The capacity of Lamu Port—which is ideal for transhipment cargo owing to its deeper channel that can receive bigger vessels—has been under-utilised. In spite of its strategic location as a transshipment hub, the port has received less than 20 vessels since the three berths were commissioned in May 2021.
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The Perfect Tax: Land Value Taxation and the Housing Crisis in Kenya
The Kenyan government has proposed a compulsory housing levy from workers salaries to support contractors to build affordable homes for the working class. As incomes are squeezed and living standards collapse, Ambreena Manji and Jill Cottrell Ghai argue that the case for asking workers to bear the cost of housing development has not been made.
The proposal in section 76 of Kenya’s Finance Bill 2023 to amend the Employment Act 2007 so that employers will compulsorily deduct 3% from workers’ salaries and send that, plus a further 3% contributed by the employer, to the National Housing Development Fund has met with widespread consternation.
The levy is expected to raise around £460 million a year for the National Housing Corporation that administers the fund. Following legal action, earlier proposals for a housing levy under the previous regime had been made voluntary and set at a lower rate of 1.5%. Now, the 3% levy will begin with civil servants before being extended to other parts of the formal and non-formal sectors.
The money will be used both to support developers and building contractors to build 200,000 affordable units and to subsidise mortgages for low- and middle-income households who would be offered an interest rate of 7%, half the market rate. By some calculations, affected employees’ net monthly salaries will be cut by about 52% when all statutory deductions including tax, the National Health Insurance Fund and the National Social Security Fund, as well as this new deduction, are taken into account.
Trade unions have spoken out against the levy, arguing that a variation in employment law cannot be imposed without consultations. The Kenya Constitution of 2010, Article 118, says that Parliament must facilitate public participation in its legislative work.
According to the 2022 Kenya Economic Survey, there were 2,907,300 employed in the formal sector and an annual rate of affordable home construction by the national government of around 500 units a year. It is not clear under the Constitution that the national government has this responsibility, as opposed to the devolved government at county level.
Kenya’s skewed land ownership
Whilst there is manifestly a need to address Kenya’s dire shortage of affordable homes, it is important to diagnose fully the reasons for this. Land shortages and the high costs of building materials are important causes as Steve Biko Wafula has argued. Kenya’s skewed land ownership is attributable to long-term land grabbing, going back to the colonial period. Importantly, one constitutional provision designed to address this – which calls for the development of minimum and maximum land ceiling laws – has been studiously ignored, especially the setting of a maximum holding. The housing levy will not address this problem: it cannot increase the supply of land for housing.
The levy is designed to encourage developers to enter the affordable housing market by offering them lower land and construction costs and providing tax exemptions, as well as guaranteeing contracts with the government. However, Wafula has also pointed out that the administration of the housing fund is not clear because it relies ‘on a complex system of collection, allocation, and disbursement of funds that could be prone to errors, delays, and fraud’.
Moreover, Kenyans have seen funds such as the National Housing Development Fund used as a revenue kitty. The 2005 Ndung’u report on Illegal and Irregular Allocation of Public Land detailed how state corporations were in effect forced into buying grabbed land, as ‘captive buyers of land from politically connected allottees’. The primary state corporation targeted to purchase land was the Kenyan workers’ pension scheme, the National Social Security Fund (NSSF). It spent Ksh30 billion (£175 million) between 1990 and 1995 on the purchase of illegally acquired property.
At a time when the government is desperate to increase its resources through raising taxes, Kenyans are also understandably suspicious that some of this money, at least, will end up in general government coffers rather than in the fund for which it is statutorily earmarked – other than that which ends up in party or private pockets, of course.
Household incomes
Whilst some prospective home-owners may be lured by the offer of lower interest rates and longer repayment plans, the proposed fund is also being seen as an unwelcome compulsory saving scheme. Funding can be drawn down after seven years or at retirement whichever is the sooner. But with standards of living being severely squeezed by inflation and with longstanding constraints on wages, as well as existing deductions which yield little benefit, many households will struggle to take a further cut to their take home pay.
Indeed, government workers were not paid their salaries earlier this year due to cash flow problems caused by the country’s mounting debt. It is ironic then that the proposal is in effect asking Kenyans formally to agree to defer a portion of their wages. Furthermore, because contributions are payable from income that has already been taxed and are taxed again when the funds are drawn down, workers are exposed to double taxation.
Workers are being asked to stake their long-term security on the success of a housing fund about which many have unanswered questions. If the promised housing materialises, how can we be sure that it will not be developers and landlords who benefit rather than the intended beneficiaries? There are real prospects that the housing units will be taken up by landlords and that Kenyan workers – having already accepted lower wages because of the housing levy deduction – could still find they have to pay high rents to access housing. What guarantees will there be that the housing will not be financialised in such a way as to put the notion of housing – as shelter and personal security – at grave risk?
Building on Serap Saritas Oran’s work on the financialisation of pensions in Turkey which theorises pensions from a political economy perspective and argues that pensions are fundamental to working class standards of living, we can see how the housing levy proposal similarly financialises a right to housing. Housing is a critical factor in social reproduction, that is, in how life is maintained and labour power reproduced. Turning housing from what Oran calls ‘a social right’ into an individualised personal investment, the levy creates opportunities for speculation and extraction. In this schema, there is a real risk that some who should be the beneficiaries of affordable housing will find that because of interest rates or the accrual of high rent arrears, they in fact become debtors.
Progressive taxes
We recognise that providing affordable housing is an important goal but we believe other, much fairer ways of raising much needed revenue for housing should be considered.
Might the time have come to have a well-informed national conversation about Land Value Taxation? Given Kenya’s worsening gini coefficient which demonstrates how skewed the country’s wealth is, why should workers bear the brunt of the government’s house building programme?
Land Value Taxation is a progressive tax which ensures that the tax burden is instead borne by landowners who can well afford it. Because land ownership generally correlates with wealth and income, it is much fairer to require those already advantaged to fund the needs of those who do not yet have homes.
Land Value Capture should also be considered. This taxation can be used for example if a road is built or other infrastructure such as a park is improved, causing a rise in the value of neighbouring properties. The principle is that these property owners should share some of their unearned gain with the public.
Elsewhere in the world, funds raised in this way have been used to build lower-cost housing. In addition, the money raised could also be used to fund ongoing operational costs such as maintenance of local roads, schools, and parks. Wouldn’t that be a fair and – given the infrastructure boom of recent years which has bestowed windfall gains on many property owners – very effective way to tackle the shortfall in affordable housing?
A raid on wages
Speaking on Kenya’s NTV news channel Mercy Nabwire, Kenya Medical Pharmacy and Dentistry Practitioners Union National Treasurer, recently described the proposed housing levy as ‘a raid on workers’ wages.’ The economy is in bad shape and public services are threadbare, but the case for asking workers to bear the cost of righting this – especially when their incomes are squeezed and their standard of living plummeting – has not been made. Still less the case for compelling them to surrender their already precarious wages for some nebulous future promise.
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This article was first published by ROAPE.
Op-Eds
America’s Failure in Africa
It is evident that only an investment of this type – in capital, in human resources and in qualified training – can allow the United States to leave a real mark of progress in Africa, following a counterpoint strategy to that of China.
Gone are the days when Melania Trump traveled to Africa in tropical colonial clothes, showing the complete lack of interest of the United States, led by her husband, in the continent. Since then, official American policy has changed significantly.
Africa is, once again, a continent disputed by the great powers. This dispute results from the new race for raw materials and markets, the search for influence in the world chess, namely African votes in the United Nations, and also the presentation of a social laboratory to show the world which recipe for prosperity works best. : the developmental authoritarian Asian or the liberal western.
All of this, in the context of the new competitive dispute with China, led the United States to once again focus its attention on Africa and place it at the forefront of its foreign policy priorities.
In recent months, American initiatives related to Africa and the trips of high dignitaries have been constant. Vice President Kamala Harris, Secretary of the Treasury Janet Yellen, First Lady Jill Biden, to mention just the most important recent trips (Harris, March 2023; Yellen, January 2023; Biden , February 2023). Only Joe Biden’s tour is missing to culminate this high-level political-diplomatic offensive.
However, the impression that remains from these trips is that, apart from beautiful speeches, splendid photographic opportunities and some circumstantial financial support, they add nothing to the resolution of African problems and, above all, they do not diminish the supposed Chinese influence, nor do they oppose it.
The problem is in the model adopted by the Americans. It is a model that is not very interactive and does not address African structural problems. Essentially, US leaders distribute smiles and marketing, warn of the Chinese danger, announce small foreign aid and refer the big questions to the International Monetary Fund (IMF), talking with greater or lesser intensity about good governance. Janet Yellen’s visit to Zambia was emblematic of this failure. When Hichilema was elected, he became a sort of poster boy for American good intentions.
However, what is certain is that Zambia has a serious foreign debt problem and has defaulted, finding itself in an endless labyrinth between China and the IMF, which ends up greatly harming the population. It is not enough to say that China is to blame and order the IMF to move forward, which in turn makes everything depend on agreements with China, which is waiting for the country to agree with the other creditors, getting into a tailspin – prolonged pong.
This kind of attitude will only lead to the US being criticized for talking but doing nothing.
The truth is that China’s entry into Africa from the 2000s onwards was not due to any historical relationship, practically irrelevant, but to a void, a void left by the West. Now, it is this void that persists, despite the new rhetoric and the countless initiatives, trips and forums held in the American capital or in Europe.
Africa does not need economists with their Harvard and MIT textbooks, which apply recipes from developed market economies unable to serve African populations and leading to their impoverishment. The manual to be applied must be the previous one, that of the very creation and structuring of economies and markets. Bringing consultants, economists, managers and people of intentions ashore doesn’t help – it only complicates things.
Obviously, to be successful, the North American perspective has to be different, resembling what was done in Europe after the Second World War (1939-1945). In other words, launching their money helicopters over Africa, while creating domestic markets on the continent.
Very simply put, the US will only compete with the Chinese in Africa if it replaces them, if it spends money. Arriving in Africa empty-handed or with promises of future private investment, which may or may not materialize, is no use.
Strictly speaking, if they really want to help Africa, the Americans should start by swapping the Chinese debt, that is, lending financial funds to African governments at lower interest rates and higher maturities, so that governments pay China. In this way it would certainly be possible to introduce competition into the African debt market and remove the monopoly from China.
In the same vein is the financial support for structural projects on the continent, from the massification of electricity and basic sanitation to digitization.
It is clear that the American people may disagree with this option and politicians may not want to embrace it, but the only realistic path is this and not another — this is how the US has gained influence in the past.
Furthermore, in addition to real capital, Africa needs specialists: not economists or consultants, which are in abundance, but professionals in essential areas, such as doctors, nurses, engineers, IT professionals, teachers, etc.
It is necessary to recover the initial spirit of the Peace Corps, idealized by President Kennedy, and massively send to Africa “men and women from the United States qualified for service abroad and available to serve, if necessary under difficult conditions, to help people in areas that help countries meet their needs” (Peace Corps Goals).
Finally, good governance should not focus on the constitutional apparatus, but on something simpler and more fundamental: public administration.
What is essential is to prepare public administrations in African countries to function efficiently and effectively, even if governments do not meet their objectives. Shifting the focus of good governance from the executive to the administration is a structuring element of any functioning society, overcoming disagreements and fears of political interference.
It is evident that only an investment of this type – in capital, in human resources and in qualified training – can allow the United States to leave a real mark of progress in Africa, following a counterpoint strategy to that of China. Otherwise, good intentions will be just that: good intentions without results.
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