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Role of IEBC Chair and Commissioners: What Is in the Name “Returning Officer”?

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At the core of the latest IEBC controversy is the question of whether or not commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion is divided but what many pundits have ignored is the role and structure of the IEBC.

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Role of IEBC Chair and Commissioners: What Is in the Name “Returning Officer”?
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The Independent Electoral and Boundaries Commission (IEBC) sent shock waves across the country when different commissioners gave inconsistent positions on the credibility of the recent presidential election. Kenya is no stranger to public drama by IEBC Commissioners. In 2017, an IEBC Commissioner resigned ahead of a re-run of the presidential election and fled to the US. Then followed the resignation of three commissioners alleging the improper removal of the CEO and claiming lack of faith in the IEBC chairperson’s leadership.

Once again, and just as the IEBC chairperson was announcing the presidential election on 15 August 2022, four commissioners rushed to Serena Hotel to issue a presser disowning the results for what they termed as the “opaque” manner in which the results have been handled. Counteraccusations ensued, with the IEBC chairperson accusing the commissioners of attempting to “moderate results”, an allegation that they vehemently opposed. At the core of this IEBC circus is whether commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion has been divided over the role of the IEBC commissioners in the conduct of the presidential election but what many pundits have ignored is the role and structure of the IEBC, as part of the independent commissions, which might shed light on the commissioners’ role in the presidential election.

This piece argues that a holistic reading of the constitution on the conduct of the presidential election reveals that the IEBC, including the commissioners, should be involved in all stages of the election. To prove this, it makes three arguments. First, Article 138(3) (e) of the constitution enshrines the role of the IEBC as a body in the conduct of presidential elections. Second, the jurisprudence on the running of the business of the IEBC provides for the centrality of the commissioners as the “linchpin of the Commission”. Third, the architecture of the independent commissions as watchdogs of democracy ingrains internal checks and balances and disfavours limitless powers of an individual or of one arm of the commission. Lastly, the paper debunks the analogization of the role of the IEBC and chairperson and returning officers. It offers three reasons why the parallelism of the two positions commits the logical fallacy of false analogy or false equivalence.

This article proceeds on the assumption that the IEBC chairperson exercised the role of the national returning officers to the exclusion of other commissioners. It is informed by the chairperson’s statement released on 17 August 2022, where the chairperson quotes the role of returning officers as being to tally, verify, and announce results. He concludes, “The role of the National Returning Officer for Presidential Election is not shared responsibility and not subject to Plenary decision of the Commission.” The paper argues that the chairperson of the IEBC has failed to examine his role in the context of the entire constitutional provisions on the conduct of the presidential election and operations of the commission.

While the failure to involve the commissioners raises an important question, this piece observes that it is not enough to overturn the election. Beyond demonstrating the lack of participation of the commissioners, it must be shown that there is a “substantial effect” on the integrity of the election as a whole.

Role of IEBC chairperson vis-à-vis the other commissioners in the conduct of the presidential election

As in any other election, in the presidential election, under Article 86 (c) of the Constitution, the IEBC is required to ensure that the results from the polling stations are openly and accurately collated and promptly announced by the returning officer. This generic provision lays out the oversight role of the IEBC in the conduct of the election. Public discourse over the election has been engrossed in the question of the exact duty of the commissioners in the conduct of the presidential election. Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”. Others have argued that the law only requires the IEBC commissioners to vote only on the business of the commission, and the presidential election is not a business of the commission.

While the arguments on the commissioners’ role and the perception of subversion of the will of the people raise an essential question, these contentions fail to address the broader context of the presidential election. The presidential election requires a heightened oversight because of its importance and critical nature in Kenyan society. This part considers the constitutional provisions which give the commissioners a general oversight role, including verification of forms 34A and 34B to determine their accuracy.

Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”.

It is crucial to first clarify that this debate is not about the quorum of the IEBC. The quorum of the IEBC has been used to conflate it with the debate on the role of the commissioners in the presidential election. However, the question of the role of commissioners is distinct from the question of quorum. Quorum addresses the question of whether there are enough commissioners to transact business, an issue that was settled in the BBI case. The pertinent issue in the current discourse is the role of commissioners since they were present but did not participate for lack of a part to play in the process. For quorum to be an issue, all commissioners should have received a notice to attend the plenary, but only the minimum number availed themselves.

The structure of independent commissions as commission-centric 

A holistic reading of the constitution on the nature of the independent commissions reveals the integral role that commissioners play in overseeing the implementation of a commission’s functions. In this part, I argue that most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically. Specifically, they fail to examine the structure and functioning of the independent commissions, including the IEBC. An isolationist and narrow reading of Article 138 (10) of the constitution on the role of the IEBC chairperson will lead to an erroneous conclusion that the IEBC chairperson collates, tallies, and verifies forms 34A and 34B received from the polling stations. This piece cautions against drawing hasty conclusions regarding the role of the IEBC chairperson from reading a single article of the constitution.

Chapter 15 of the constitution provides for the architecture of the independent commissions. Article 249 of the constitution decrees the object of these bodies as the protection of sovereignty, and promoting democracy and constitutionalism. The commission’s composition and nature are listed in Articles 250 and 253 of the constitution, and it is stated to be a corporate body. The commission as a body functions in a manner that guarantees internal accountability, as depicted by the uneven number of commissioners and the insistence that the existence of the commission depends on the existence of commissioners.

Most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically.

Kenyan courts have discussed the place of commissioners in relation to the secretariat. A close look at some of the foundational cases on independent commissions will shed light on the relationship between the chairperson of the IEBC and commissioners as a body. One typical running theme is that the commissioners are the linchpin of the commission, and no duty is beyond the commissioners’ oversight since they are the nub of the commission. This argument does not mean they have unfettered powers—even to the extent of changing election results—but they can oversee and note mistakes on the report to be submitted to the Chief Justice.

At the centre of their function is policymaking for implementation by the secretariat, and oversight. The rationale for the emphasis on the centrality of commissioners is that they are responsible for realizing the mandate of the IEBC as an enabler of democracy and a guarantee of the right to self-determination. The secretariat assists the commission in the discharge of its mandate. Court decisions on the relationship between the secretariat and the commissioners reveal the vital place of commissioners in discharging the commission’s mandate. In the Constitutional Application N° 2 of 2011, the court was emphatic that “the several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and perform this role effectively”.

Courts in Kenya have termed the existence of commissioners as a foundation for the powers of the secretariat. The implication is that for a commission to exist properly, it must have commissioners; from there, all other functions flow. Ordinarily, the outcome of the functioning of the secretariat should be ratified by the commissioners of the IEBC. In Michael Sistu Mwaura Kamau v Ethics and Anti-Corruption Commission and 4 others 2017, the court stated,

“The Secretary and the Secretariat can only carry out the powers vested in their offices when the Commission exercises its powers since they implement what the Commission has resolved. The Commissioners must ratify the outcome of the tasks undertaken by the Commission’s staff if they are to be deemed as the decisions of the Commission” (Emphasis mine).

Therefore, given the central position of the commissioners in the conduct of all functions of the IEBC, they cannot be excluded from an essential role in the national conduct of the presidential election. Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners. Therefore, officials such as returning officers assist the commissioners in conducting the election at the lower levels. It is illogical to argue that returning officers can exclude the commissioners from oversighting the elections they are conducting.

Misuse of the tag of national returning officer

The general posture of the Kenyan constitution is that it adopts a pessimistic outlook on those who wield power. This position of the constitution informs the distribution of duties among various parts of the IEBC. Here, I will argue first that Article 138(3) (c) of the constitution provides for the general task of the IEBC as a body, the chairperson’s role being limited to the announcement of the presidential election results under Article 138 (10) of the constitution. Second, I will contend that the constitution does not eliminate the oversight role of commissioners regarding the presidential election. Third, the constitution is aversive to an individual exercising monopoly of power. Put differently, the constitution favours the distribution of powers, oversight, and internal checks and balances. Lastly, I will deflate the false analogies of equating the chairperson of the IEBC in the conduct of the presidential election with other returning officers. I will argue that it is a simplistic view of the conduct of the presidential election.

As a body the IEBC has the role of the conducting of the presidential election. Article 138 (3)(c) of the constitution provides that in the presidential election, the IEBC shall tally, verify, and declare the results after counting the votes in the polling stations. This role is given to the commission as a body to be discharged by its employees with the commissioners’ oversight. At the national level, the IEBC verifies and tabulates forms 34As and 34Bs to generate form 34C. All commissioners have a right to be involved in the tabulations in the exercise of their oversight role over the employees of the IEBC.

Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners.

Unlike Article 138(3)(c), which provides for the general role of the IEBC, Article 138(10)(a) of the constitution provides that the chairperson of the IEBC shall declare the results of the presidential election. The implication of this is that the role of the chairperson is exclusive in so far as the declaration of the presidential result is concerned. The chairperson does not single-handedly oversee the secretariat in the generation of form 34C, which contains the collated presidential election results. Additionally, the commissioners have a role under Article 86 of the constitution to ensure that results are accurately collated and announced by returning officers. In this case, and for argument’s sake, even if we equate the chairperson to the returning officers who announce the results, the commissioners will have an oversight role over him on how the national total results are arrived at. This oversight will ensure that the chairperson of the IEBC is accountable to the commission in the conduct of such an important role. The Court of Appeal in Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy and 2 others 2017 held that the commissioners formulate strategy and oversight IEBC employees and the commission’s functions, meaning that the tabulation of results in the forms was subject to the supervision of the commissioners.

To counter the above arguments on the commissioners’ involvement, some people have argued that commissioners are not required to oversee other elections before various returning officers announce them. This argument fails to consider the unique nature of the presidential election in our constitutional design. Of course, all polls are unique, and in substance, they are supposed to adhere to the same constitutional principles. However, due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee electoral integrity. Because of Kenya’s history in the presidential election, the constitution requires heightened oversight at all election levels, especially the final national tabulations.

The other counterargument offered is that the IEBC chairperson exercises the powers of a returning officer, which are individualized duties not subject to the plenary powers of the commission. To answer this claim, I make three arguments. First, the characterization of the role of the chairperson of the IEBC as a presidential returning officer does not mean that the commissioners are excluded from oversight of the national tallying of the presidential election. Put differently, the characterization should not affect examining the exact constitutional dynamics between commissioners. Thus, the commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.

Due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee election integrity.

Secondly, while the role of the IEBC chairperson has a similarity with that of the returning officers of other elections, they are not the same. Under section 38 of the Election Act, the returning officer is responsible for conducting the election. Further, section 39(1A) of the Election Act provides that the returning officer is responsible for tallying, collating, and announcing the election results. In contrast, Article 138(3)(c) of the constitution provides that the responsibility of conducting the presidential election lies with the IEBC. While the chairperson of the IEBC exercises specific duties similar to those of IEBC returning officers, the constitution explicitly adopts the language of the IEBC as a body when addressing the specific electoral duties such as counting, verifying, and tabulating the presidential election. Contrasting Article 138(3)(c) of the constitution with Article 138(10)(a) of the constitution, which provides that the IEBC chairperson shall announce the presidential election, demonstrates that he exercises constricted powers. When it comes to the announcement of the results of the presidential election, Article 138 (10)(a) of the constitution drops the language of the commission and specifically identifies the chairperson as the individual with the role of declaring the aggregated results. Therefore, if the constitution wished the chairperson to singlehandedly exercise the role laid out in Article 138(3)(c) of the constitution, it would have included it in Article 138(10) of the constitution or in any other part that exclusively addresses the duties of the chairperson of IEBC.

Thirdly, the involvement of the chairperson of the IEBC in announcing the presidential election demonstrates a constitutional intention of engaging the highest levels of the commission in the national tabulations of results and declarations. The functions listed under Article 138 (3)(c) of the constitution, especially the national tabulation of results, involve the highest organs of the IEBC. The rationale for this involvement of the highest organs of the commission is not hard to discern, owing to the perennial controversy surrounding the presidential election in Kenya. The commissioners are selected with a unique obligation of securing democracy, and what other level epitomizes this democracy if not the presidential election? The stakes in the presidential elections are very high in Kenya, and it would be barmy not to involve the entire commission or vest the national level powers only in the chairperson of the IEBC. Granting the IEBC chairperson the exclusive role of the presidential election returning officer to the exclusion of the commissioners has no serious constitutional value. With regards to the manipulation of results, the presumption should be that the more transparency and involvement, the less likely it is for them to be changed.

Relevance of the Maina Kiai case 

The import of the case of Maina Kiai on the powers of the chairperson of the IEBC has caused considerable controversy in the country. Some have argued that the Kiai case addressed the issue of whether the chairperson can change the results declared at the polling station. Others have argued that Kiai’s statement on the powers of the IEBC chairperson was an obiter dictum. This part seeks to answer these questions and make the fourth argument why the commissioners of the IEBC should have been involved in the conduct of the presidential election.

The answer to the concerns raised regarding the relevance of Kiai on the discourse on the role of commissioners is both “yes” and “no” because the case touches on the role of the chairperson of the IEBC and yet not in the manner in which the four commissioners cite it. On the one hand, the Kiai decision is relevant to the extent that it indicates the scope and nature of the role of the chairperson of the IEBC. Although not exactly dealing with the current crisis, it elucidates the role of the chairperson of the IEBC in the conduct of the presidential election. On the other hand, the Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election. The implication is that when the court is discussing the limitation of the powers of the chairperson of the IEBC, it is doing so in the context of whether the chair can alter the results announced at the polling level. Nevertheless, the Kiai case sheds light on the nature of the powers of the chairperson of the IEBC. From Kiai’s case, it is clear that the chairperson exercises limited powers, and the constitution disfavours the chairperson from having exclusive powers in the presidential election other than the announcement of the collated results.

The commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.

The constitution disrelishes the concentration of powers on one individual in the conduct of an important election such as the presidential one. This is to ensure an effective discharge of the role of the IEBC as the safeguard of democracy and the right to self-determination. The nature of the independent commissions as having embedded checks and balances was articulated by the Supreme Court in the matter of the National Land Commission (2015). The court believed that checks and balances were the mainsprings of accountability. It stated that “the spirit and vision behind the separation of powers are that there be checks and balances and that no single person or institution should have a monopoly of all powers.”

The commissioners provide a heightened level of oversight and verification, which means that the chairperson cannot act unilaterally in the tabulation of forms 34A and 34B. It is illegitimate for the chairperson to conduct the presidential election in an exclusionary way, especially the generation of form 34C without the involvement of other commissioners. This conduct goes against the rationale of the independent commissions, which is to be the people’s watchdog for democracy. The Court of Appeal captured this position in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017):

“To suggest that some law empowers the appellant’s Chairperson, as an individual, to correct, vary, confirm, alter, modify, or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power . . . We reiterate, as we conclude that there is no doubt from the architecture of the laws, we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the Chairperson of the appellant.” (Emphasis mine.)

In sum, while the Kiai case did not directly deal with the role of the commissioners and chairperson, the obiter indicates the limited powers of the IEBC chairperson. The court in Kiai’s case reinforced the need for a limited role of the chairperson of the IEBC in line with Article 138(10) (a) of the constitution. Thus, to ensure the IEBC’s accountability and checks and balances, it is constitutionally absurd to exclude commissioners from verifying the presidential election.

Failure to include the commissioners must substantially affect the election

Overturning an election should not be an easy task for any petitioner. This is because the election represents the people’s will, and the courts should be slow in overturning the people’s expressed will without clear and convincing evidence. There is also a presumption that the actions undertaken by government officials are legal unless they are impeached by evidence. The other concern is that elections are expensive, and for a developing country like Kenya, economic realities should be balanced with constitutional purity.

Globally, no election is perfect, so normal errors do not suffice to overturn an election. The core question is whether the errors or irregularities are substantial enough to overturn an election. Section 83 of the Election Act provides that non-compliance with the constitution and the law must substantially affect the election. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others (2017), the court held that trivial irregularities are not enough to overturn an election, and the error must have a substantial effect on the election. Further, the court noted that the election should be looked at as a whole to determine whether the constitution has been substantially breached.

The Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election.

The failure to involve commissioners in generating form 34C should not automatically invalidate the election. The constitution does not adopt a purist approach to the election. Instead, all mistakes must substantially affect the integrity of the election. A presidential election is a highly regulated process. If it is proved that the results in forms 34As and 34Bs were collated adequately at the national level, the non-involvement of the commissioner will not rise to the “substantial effect” level.

However, if it were to be demonstrated that the failure to include the commissioners led to unverified results, which have numerous mistakes, then the non-involvement would have substantially affected the election. The errors would not be characterized as “harmless errors” because they would have a tangible effect on the election’s credibility. The commission as a body would have failed to realize its mandate of conducting a free and fair election as enshrined in Article 86 (c) of the constitution. Thus, the commissioners’ oversight role in the conduct of the presidential election would be unconstitutionally impeded, leading to the unverifiable and inaccurate collation of results at the national level.

To conclude, a hasty and exclusive reading of Article 138(10)(a) of the constitution would lead to the erroneous conclusion that only the chairperson of the IEBC has the role of tallying, verifying, and declaring presidential results in forms 34A and 34B. However, a holistic reading of the constitution and jurisprudence on the structure and the functioning of the IEBC demonstrates that commissioners should be involved in generating forms 34C for the presidential election.

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Ian Mwiti Mathenge is an advocate of the High Court of Kenya. He holds a Master of Laws degree in constitutional law and climate change law from Harvard Law School in United States. He also holds a Master of Laws Degree (with distinction) from University of Pretoria in South Africa. Ian has a Bachelor of Laws Degree (First Class Honours) from Catholic University of Eastern Africa. His academic interests and practice areas are constitutional law, climate change, ESG and legal philosophy.

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Why Kenyans Are Not Mourning the Queen

Those who know the psychological, social and economic damage that colonisation caused in their countries have been vocal about Queen Elizabeth’s failure to acknowledge the harm her empire inflicted on colonised subjects, or even to issue an apology.

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Why Kenyans Are Not Mourning the Queen
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The non-stop coverage of Queen Elizabeth’s death on international media for more than a week was met with various levels of disbelief in countries that were once colonised by Britain. The BBC, naturally, covered the Queen’s death and funeral as if it was a global tragedy, while CNN and Al Jazeera devoted hours to the ceremonies preceding the funeral, including interviewing the thousands of people who stood in long lines to pay their respects to the late monarch. The coverage reeked of British exceptionalism, as if what happens to Britain and its royal family is of immense significance to the entire world.

There seems to be a general sense of amnesia surrounding the Queen Elizabeth and her rule, especially the horrors her empire was unleashing in many parts of the world when she ascended to the throne in 1952.  A friend based in Oxford told me that the police are even arresting people in Britain who are publicly protesting the Queen’s legacy. This kind of censorship seems bizarre in a land that describes itself as a champion of democracy and freedom of expression. It has become almost blasphemous to criticise the Queen and the monarchy.

Worse, British colonialism under her rule has been whitewashed and sanitised as if it never happened, or was a good thing. Most British people have also conveniently forgotten that the wealth their country enjoys today was built on the backs of African slaves who worked on the British Empire’s plantations in the Americas and the Caribbean, and through the exploitation of its colonies around the world, including in Africa.

For those who see the British Empire as a sinister force that destroyed communities and plundered people and territories, the extensive coverage of the Queen’s funeral appears like a slap in the face. An outfit called Economic Freedom Fighters in South Africa even issued a statement describing Queen Elizabeth as “the head of an institution built up, sustained, and living off a brutal legacy of dehumanisation of millions of people around the world”.

Kenya stood out as one country where the Queen’s death did not generate mass grief, even though the newly elected president William Ruto made an obligatory trip to London to attend her funeral and the outgoing President Uhuru Kenyatta declared four days of mourning. Kenyans on Twitter and other social media spaces did not send out messages of condolence to the Queen’s family, nor were there special state-led commemorations for the late monarch. This is not because Kenyans disliked the Queen; frankly, most of us view her as a nice – albeit extremely privileged – person who was trapped by her royal duties and did the best she could under the circumstances. But that is not the point. It is not the Queen that we resented but the institution she represented – and her failure to acknowledge the harm that the institution inflicted. As Kenyan journalist Rose Lukalo commented, “The Queen’s death and burial has resurfaced the uneasy truth of Kenya’s unfinished business with colonialism.”

Kenya stood out as one country where the Queen’s death did not generate mass grief, even though the newly elected president William Ruto made an obligatory trip to London to attend her funeral.

Many British people actually believe that the net impact of British colonialism around the world was positive because it established schools and railways and introduced Christianity to people who purportedly had no religion. They are not told that British colonialism in Kenya and other places was brutal and exploitative. It robbed indigenous people of their land, and created a class of landless people and squatters – terms that were virtually unknown in traditional African societies because all land was communally owned.

The history of slavery and Britain’s role in it is similarly whitewashed. Britain is often lauded for abolishing slavery in 1883, but what is not widely known is that when the Slavery Abolition Act was passed, there were more than 40,000 slave owners in Britain. What is also not talked about often enough is that one year after slavery was abolished, Britain and other European powers embarked on colonising Africa at the infamous Berlin Conference of 1884-1885, thereby unleashing another form of slavery on Africans.

The British Empire’s establishment of a “settler colony” in Kenya was particularly pernicious. In 1923, Britain forcibly possessed the most fertile parts of the Rift Valley – the so-called “White Highlands”, an area comprising 5.2 million acres.  The locals were moved to “reserves” where they were expected to pay taxes to a government that basically stole their land from them.

When the locals rebelled, the Empire’s lackeys tortured them and put them in concentration camps. Caroline Elkins’ book, Britain’s Gulag, documents these atrocities in detail, including the rape of women deemed sympathetic to Mau Mau freedom fighters that had taken hold in Central Kenya, and whose members were jailed and tortured by the colonial regime. It is worth noting that the places where these Mau Mau revolutionaries were arrested, detained and tortured in the 1950s was not far from the Kenyan Aberdares mountain range where the young Elizabeth and her husband found out that her father, King George VI, had died and she was the new British queen.  It is also worth noting that it took some 5,000 former Mau Mau members more than 60 years to receive compensation from the British government, a legal battle that has been lauded for its tenacity and boldness.

Colonialism’s lingering impact

Societies that have experienced the trauma of colonisation often become dysfunctional. Forced to abandon their traditional values and social security systems, uprooted from their ancestral lands and natural resources, and brainwashed to believe that they are inferior beings, these societies begin to manifest all the symptoms of a sick society. Colonisation separated families and introduced an economy based on exploitation, which changed the nature of African societies and economies.

Post-colonial governments did not reverse this sad state of affairs. On the contrary, post-independence Kenyan elites benefitted from colonial policies that alienated Africans from their own land and became the biggest beneficiaries of post-independence land grabs disguised as land redistribution or adjudication. It is believed that one of the main reasons Jomo Kenyatta was selected to lead the country’s transition to independence was because he had made a secret pact with the British colonial government not to hurt British and white settler interests in the country.

It took some 5,000 former Mau Mau members more than 60 years to receive compensation from the British government, a legal battle that has been lauded for its tenacity and boldness.

According to Kenya’s Truth, Justice and Reconciliation Commission report, “rich businessmen and businesswomen, rich and powerful politicians who were loyal to the colonial administration, managed to acquire thousands of acres at the expense of the poor and the landless.” Hence, “instead of redressing land-related injustices perpetrated by the colonialists on Africans, the resettlement process created a privileged class of African elites, leaving those who had suffered land alienation either on tiny unproductive pieces of land or landless.” Even today in Kenya, members of freedom fighting movements remain landless and poverty-stricken while those who sided with the colonialists are among the richest people in the land.

No royal apology 

People who know the psychological, social and economic damage that colonisation caused in their countries have been vocal about Queen Elizabeth’s failure to acknowledge the harm her empire inflicted on colonised subjects, or even to issue an apology. Many royalists have insinuated that perhaps the Queen was not aware or had not been informed of the atrocities committed by British colonial officers in places like Kenya. But as Elkins stated in a recent article published in TIME magazine, this argument is highly implausible. She wrote: “Beginning with her first prime minister Winston Churchill, the queen’s ministers not only knew of systematic British-directed violence in the empire, they also participated in its crafting, diffusion and cover-up, which was as routinised as the violence itself. They repeatedly lied to Parliament and the media and, when decolonization was imminent, ordered the widespread removal and burning of incriminating evidence.”

Shashi Tharoor, the Indian author and politician, has a similar view. He believes that even if the Queen was not in charge when the Empire committed the most violent atrocities, she had a duty to at least acknowledge that these atrocities took place. “We do know that much of colonialism’s horrors over the centuries were perpetrated in the name of the Royal Family but when she and her consort visited Jallianwallah Bagh, she could only bring herself to leave her name in the visitors’ book, without even an expression of regret, let alone of contrition or apology, for that vile British act of deliberate mass murder,” he said. (Jallianwallah Bagh was a site in the city of Amritsar where hundreds of pro-independence activists were killed or injured in April 1919. Although Elizabeth was not queen then, the scale of the massacre was so shocking that it has been viewed as one of the worst atrocities that the British Empire committed against civilians.)

Now that the Queen is dead, will her son King Charles take the responsibility of confessing to the sins of his mother and the Empire she presided over? Not likely, given that the idea that the British monarchy is above reproach has become even more entrenched since her death.

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Dandora Dumpsite: Where the Recycling Dream Goes to Die

While recycling is the preferred solution of plastic producing corporations, it is not environmentally sustainable as recycled plastic eventually returns to the environment leaving the original problem intact.

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Dandora Dumpsite: Where the Recycling Dream Goes to Die
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“Less plastic is fantastic,” says James Wakibia, an environmental activist who was instrumental to the 2017 ban on single-use plastic carrier bags in Kenya. And the world agrees with him. In fact, nations came together at the United Nations Environment Assembly (UNEA 5.2) in March 2022 and agreed to deal with the plastic problem by concluding a binding plastic treaty by 2024. Plastic pollution has become a pressing problem that affects every ecosystem in the world.

In Kenya, 4,400 tonnes of plastic waste are generated every single day. Of this waste, 73 per cent remains uncollected while 27 per cent ends up in dumpsites such as Dandora and other unsanitary landfills. The collected waste is mostly from urban centres that are the major polluters compared to rural areas. In urban centres such as Nairobi, Mombasa, Kisumu and Nakuru, the waste is only collected in the formal settlements; slums and other informal settlements, such as Kibera in Nairobi, have no waste collection services. Their waste is either dumped by the roadside, in rivers or burnt.

It is this glaring lack of solid waste management and the untethered use of plastics that has prompted the National Environment Management Authority (NEMA) to develop the draft Plastic Management Regulations 2018 that are yet to pass into law. David Ongare, Director in charge of compliance at NEMA, explains that plastic pollution in Nairobi has led to clogged drainage that causes flooding in the city each time it rains. Ongare further explains that microplastics from disintegrating plastic waste dumped in the environment are now being found in the human body. The toxins and particulate matter released when city dwellers burn plastics cause ill health among Kenyans and contribute to climate change.

The ill effects of plastics on human health and their long-lasting impact on the environment have led to calls from some quarters for a ban on nonessential plastics such as single-use plastic bottles. Some sectors have taken action, such as the tourism industry in Kenya where the Kenya Wildlife Service has banned single-use bottles in Kenyan parks. However, the call to ban single-use plastic bottles such as soda and water bottles has been fought vigorously by corporations in the business; they claim that there is no need to ban nonessential plastics since they can be recycled.

Stanley Didi, project coordinator at Nairobi Recyclers, says that recycling of plastic had stopped for a time due to the high cost of electricity in the country and the low prices that recycled plastic fetches on the Kenyan market. Didi explains that before Nairobi Recyclers advocated for a price increase to between US$0.13 and US$0.20 per kilogramme, recycled plastic was trading at US$0.034 per kilogramme. A hard-working waste picker could barely collect 10 kilogrammes in a day, earning the equivalent of just US$0.34, an amount that was not enough to buy one meal, let alone three.

Nairobi’s waste pickers work at the Dandora dumpsite, Kenya’s largest dumpsite that opened in 1975 and was declared full by public health officials in 2001. It is still in use over two decades later despite a June 16th 2021 court ruling ordering its closure within six months. The Dandora dumpsite receives over 2,000 tons of waste a day, making it the most viable working site for waste pickers to find plastics and other items that can be recycled.

Waste pickers at the Dandora dumpsite have no Personal Protective Equipment (PPE), which exposes them to toxins such as lead, dioxin and mercury. Moreover, poor pay that barely covers food means that most waste pickers sleep rough on the streets and are undocumented as they lack the means to access government services. The kind of life they lead also takes a toll on their mental health, causing them to use and abuse marijuana, glue, jet fuel and other drugs that are said to turn them into zombies.

Four waste pickers died of unknown causes even as the UNEA 5.2 convention was ongoing. They had been feeling ill but had no money to visit the hospital, Didi explains. Poor health is common among waste pickers who are exposed to toxins from burning plastic. Neurological impairment, kidney failure, lung and prostate cancer, irritation of the lungs and gastrointestinal tract, kidney damage, abnormalities of the skeletal system and suppression of the haematological system are some of the health complications suffered by waste pickers and recyclers because of the pollutants to be found in the waste.

But the recycling challenges are not confined to waste pickers at dumpsites. Wakibia explains that the manner in which the recycling process is handled in the various plastic recycling plants that he has visited across the country leaves a lot to be desired. Workers at these plants also lack PPEs, which exposes them to dangerous toxins while the plastics themselves are mixed and smelted without regard to classification which results in a recycled plastic product of low quality. After use, the recycled plastic product returns to the environment and as it can no longer be recycled, the original problem of plastic pollution remains unsolved. Moreover, recycling plants pollute the air and release untreated wastewater directly into the environment. A process that seeks to mitigate the effects of plastic pollution ends up creating more pollution.

“The problem is that Kenya operates in a linear economy where the producer’s responsibility ends once the goods are placed in the market and takes no concern on the post-consumer stage”, says Ongare. The “polluter pays” principle should be in use in Kenya where the corporations responsible for polluting pay for the cost of clean-up and compensate those that have been negatively affected by their actions.

But this has been difficult to put into practice. With its 41.7 per cent share of the PET plastics category, Coca Cola has been named as the leading plastic polluter in Kenya. The company has consistently preached recycling. Dandora HipHop City is a group that exchanges plastic bottles for food for the children of Dandora who would otherwise sleep hungry. The group depends on donations as the low income from recycling plastics cannot sustain its activities. When the group sought support for their recycling programmes from Coca Cola, they were offered a fridge full of plastic bottles of soda. Following a similar request, Nairobi Recyclers received a donation of plastic gurney bags. And nor did Clean Up Kenya fare any better; when the group organised cleaning events in conjunction with Coca Cola, the corporation provided only soda in plastic bottles  at the end of the gruelling day.

Corporations such as Coca Cola prefer to deal with Kenya PET Recycling Company Limited (PETCO), an organisation bringing together plastic dealers in Kenya that was created in 2018 when calls to ban single-use plastics in the country began to gain momentum. The organisation, which is housed within Coca Cola’s premises, has done little to contribute to recycling efforts in the country, says Didi. As of this year, recycling in Kenya was still at a bare 8 per cent.

The government also sings the praises of recycling while leaving it to waste pickers, volunteers and nongovernmental organisations. In fact, waste pickers and recyclers have to pay NEMA and county governments approximately US$259 annually for permission to pick or recycle waste. 

Kenyans thus find themselves in a plastic quagmire. Plastics are choking their cities, their homes, their streets, their rivers and parks. Nairobi’s only dumpsite is full and can no longer handle the 4,400 tons of plastic waste that Nairobians dump each day. Recycling, the preferred solution of plastic producing corporations, is not only environmentally unsustainable but it releases long-lasting toxins into the air Kenyans breathe and the water they use. Devolution of waste management to the counties has not led to an improvement of the situation and the government continues to face a growing solid waste management problem.

For how long will plastic pollution continue to cause harm before the country says enough is enough? It is time to pull the plug on all nonessential plastics in the country. Kenya has done this before with the 2017 ban on single-use plastic carrier bags. Not producing and not using plastics is the only formula that will work in the fight against nonessential plastics.

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Kericho County: Tea, Foods and Shifting Weather Patterns

Kericho County has experienced a gradual change in climatic conditions over the past three decades, with rainfall becoming irregular and unpredictable and drought more frequent. As a result, the region’s agricultural output is deteriorating.

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Kericho County: Tea, Foods and Shifting Weather Patterns
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Climate change has become a central topic in recent conversations. And however much we may wish to bury our heads in the sand and act like the implications aren’t dire, we must acknowledge that the impact is profound. From the inconsistencies in the weather patterns and the rise in temperatures among many other indicators, we are now seeing the effects of neglecting our environment.

Kericho County lies within the bread basket zone that is Kenya’s Rift Valley, enjoying adequate rainfall, a cool climate, and fertile soils that have made it a food hub and a cog in the wheel of Kenya’s urban food supplies. According to the 2014 Agricultural Sector Development Support Programme (ASDSP), agriculture was the primary occupation and a direct and indirect source of livelihood for over 50 per cent of Kericho’s the residents.

However, a worrying trend highlighted by climate experts points to a gradual change in the region’s climatic conditions over the past three decades. With rainfall becoming irregular and unpredictable and drought more frequent, the region’s agricultural output is deteriorating.

A June 2020 report by the Kenya Meteorological Department, and a March 2020 report by the Kenya Agricultural and Livestock Research Organization (KALRO), show growing disparities in how the climatic shifts affect different regions. Kericho’s daytime temperatures have gone up by 11 per cent while night-time temperatures have increased by 24 per cent. The changes have brought with them their fair share of problems and challenges to the region. For instance, the county is now witnessing crop diseases that were previously unheard of. Moreover, failures and reduced yields are forcing farmers to look for alternatives to crops like tea and coffee that used to do well in the county.

An estimated 79 per cent of the land in Kericho is arable and a majority of residents live in the county’s outlying rural areas such as Cheborge, Soin, Londiani, Chepseon and Buret where farming thrives. The county has four agro-ecological zones: Upper Highlands, Lower Highlands, Upper Midlands, and Lower Midlands. The main crops farmed in the county include tea, coffee, maize, and beans. Potatoes, wheat, flowers, and pineapples are also grown in parts of the county while dairy farming also does well in the region. Data from Kericho’s Second Generation County Integrated Development Plan 2018- 2022 indicates that on-farm employment accounts for over 50 per cent of all the jobs in the county, while the Tea Agricultural Authority affirms that tea farming supports over 5 million people directly and indirectly nationally. Kericho, Bomet and Nandi counties produce 46 per cent of all the tea grown in Kenya, an indication of the significance of tea to Kericho’s economy.

Tea farming in Kericho involves both smallholder farmers and large-scale multinational companies such as Finlays, Kaisugu, and Unilever.  However, available reports show that incomes from the cash crop have been dwindling over the years, mainly due to the changing weather patterns that have contributed to low yields, while the crop is fetching less in the international markets. Some tea farmers in the region are now uprooting their tea plantations that have been adversely affected by prolonged dry spells, hailstorms, frost, and crop diseases, opting instead to venture into real estate, dairy farming, and farming of crops that can withstand the changing climate. While the shift is important in ensuring food security and sustainability of livelihoods, it also to a significant degree puts a dent in the county’s revenues owing to reduced tea exports.

Besides providing food to the country, agriculture also contributes to improved livelihoods. Managed well, it spurs economic growth, drives national short and long-term goals, and contributes to sustainable natural resource use and ecological balance within the farming communities. Agriculture also contributes significantly to household nutrition, savings, and county revenue, and is therefore a crucial sector in terms of investment and innovation. 

However, climate change is making it impossible to sustain high agricultural production in a county where residents rely on rain-fed agriculture for their livelihoods, with poor yields translating to loss of income for those who rely on agriculture both directly and indirectly.

Crop failure means reduced incomes for farmers and other key players in the production value-chain, leading to a lower purchasing power and lower yields for other businesses that rely on farming. Low purchasing power means that the farmer cannot purchase farm inputs, which leads to poor yields in subsequent seasons. Moreover, low purchasing power affects education in the county, as farmers become unable to keep their children in school, thereby increasing the number of dropouts in the region.

Climate change is making it impossible to sustain high agricultural production in a county where  residents rely on rain-fed agriculture for their livelihoods.

Forty-six-year-old Pauline Kimengich, a teacher in Kericho County, observed that there were cases of students in the region opting for early marriage after their parents were unable to raise money for their high school education, a trend which threatens the literacy levels of the county. Her sentiments are echoed by Enoch Tanui, 52, a small-scale farmer who admits to having his children help him out on the family farm because of lack of school fees.

According to the Agricultural Sector Development Support Programme (ASDSP), most of those involved in the various agricultural activities in the region are the youth and women, although the men do participate in information-sharing and decision-making. For instance, most of the workers in the tea farms are women and youth who work primarily as tea pickers. Given the role a woman plays in the community, loss of income due to dwindling fortunes in the agricultural sector adversely affects the running of households in the region.

Moreover, loss of income forces a change in the eating habits of families. Changes in eating habits pose nutritional challenges to the family which affect, most notably, children’s health, and lead to early marriages and increased levels of crime. According to the National Crime Research Centre’s 2018 report, Kericho’s recorded rate of theft stood at 42 per cent against a national rate of 40.4 per cent. This can be attributed to the loss of income as a result of changes in climatic conditions, as a majority of the county dwellers depend on agriculture. Moreover, the county also recorded high rates of cattle rustling (34.3 per cent), burglary and break-ins (21 per cent) and theft of farm produce (15.5 per cent) which can also be linked to the dwindling fortunes in agriculture.

The changes in farming techniques and the resulting challenges and strain on the food system are a wake-up call for all interested parties to act. When a county such as Kericho, which feeds our national forex basket through exports, feels the impact of climatic changes to such a great extent, one can assume that other cash-crop farming counties have not been spared either.

Climatic changes that lead to prolonged droughts and low agricultural yields mean that the government must invest heavily in relief programmes and other measures to mitigate their effects. This may imply the government diverting resources meant for development towards curbing the effects of climate change. Through the Ministry of Agriculture, Livestock, and Fisheries (MoALF) and with funding from the World Bank’s International Development Agency, the Kenyan government is implementing the Kenya Climate-Smart Agriculture Project (KCSAP) to build resilience against climate change and increase agricultural productivity.

By establishing Climate Risk Profiles, county governments are made aware of the climate change risks and opportunities in their counties and how to best incorporate these perspectives in their planning and county development projects. The National Climate Change Response Strategy (NCCRS), developed in 2010, recognizes the impact of climate change on a nation’s development. The formation of NCCRS birthed the National Climate Change Action Plan (NCCAP) in 2012, whose core mandate is to provide an implementation strategy for the proposals of the NCCRS. These two bodies have been fundamental to how Kenya responds to climate change and the steps to be taken towards achieving meaningful change.

Climatic changes that lead to prolonged droughts and low agricultural yields mean that the government must invest heavily in relief programmes and other measures to combat the effects.

The creation of county chapters of NCCAP that can work closely with the agriculture dockets in the counties to identify the challenges on the ground would be ideal in combating the effects of climate change as opposed to having an umbrella view of the situation. Farmers at the grassroots need to feel the impact of these programmes and benefit from the extension services if the country is to witness a meaningful impact.

The risks have led both national and international agencies to take action to fix the problem. With the world warming faster than at any time in recorded history, the United Nations Environmental Programme (UNEP) 2020 Emissions Gap Report proposed a solution across six sectors—energy, industry, agriculture, ecological, transport and cities—that member states can adopt. In agriculture, it proposes reducing wastage, adopting more sustainable diets, safe agricultural practices, and cutting back on emissions.

In the case of Kericho County, while the government is encouraging diversification, crops that can do well in the region but are only grown on a small scale need to be considered. For instance, local vegetables, chicken-rearing, and other agricultural produce should be produced on a large scale to reduce the over-reliance on one crop. This will ensure that people in the county have a source of livelihood even when one crop fails. Further, agricultural extension services, especially in the rural areas, need to be given a shot in the arm to ensure that farmers employ safer farming methods and are enlightened on the best ways to maximize yields while being mindful of their environment.

Rivers in Kericho such as Sambula, Chebilat and Tuyiobei have been drying up, reducing the water available for livestock and farming. Encouraging agroforestry, reforestation and afforestation will not only increase the diminishing forest cover but will also ensure water catchment areas are replenished.

Article 11 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and Article 25 of the Universal Declaration on Human Rights recognize access to food as a legal right, as does Article 43 of the Constitution of Kenya. The right to food gives rise to three obligations by governments: the obligation to respect this right by not taking measures that deprive people the right to food; the obligation to protect this right by enforcing laws that prevent third parties from infringing on others’ right to food; and the obligation to fulfil this right by facilitating and providing for the empowerment of people to feed themselves.

The reduction in the yields of different crops imperils the right of all Kenyans to live a dignified life, free from hunger and malnourishment. Poor crop yields further reduce the purchasing power of farmers, which has a ripple effect on other sectors that are dependent on agriculture. The effects of climate change and poor agricultural yields also mean that food suppliers have to import or seek alternatives to meet demand in the market. This leads to an increase in rural-urban migration, which creates congestion in the urban centres and puts a strain on the available resources and opportunities in the urban settings. The failure of the tea crop, specifically, means that the nation loses export revenues, shifting the equilibrium in the balance of trade.

The reduction in the yields of different crops imperils the right of all Kenyans to live a dignified life, free from hunger and malnourishment.

Changes in climate also mean that those farmers who previously relied on tea will be forced to look for alternative means of livelihood. In an economy where creation of employment is low, job losses in the agricultural sector aggravate the dire situation in the already flooded job market. Lack of employment leads to crime as those formerly employed in the agricultural sector strive to fend for their families.

These changes underline the importance of environment conservation and working towards combating climate change. Good weather leads to flourishing agriculture. Investing in agriculture opens up employment opportunities in the farms and other industries that depend on agriculture, which reduces unemployment and brings down crime rates. Employment opportunities improve the purchasing power of citizens, enabling them to make informed and better choices in nutrition, education and other areas which translates to improved livelihoods and a more prosperous nation.

This article is part of The Elephant Food Edition Series done in collaboration with Route to Food Initiative (RTFI). Views expressed in the article are not necessarily those of the RTFI.

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