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Will Trump Rig the 2020 Election?

By Alex Roberts

If you cannot reason beyond petty sentiments, then you are a liability to mankind. – Dr. Chuba Okadigbo

Wisconsin, the critical swing state that I’m from and currently live in, made resounding headlines worldwide on April 7th when the Republican legislature, in a Machiavellian maneuvre, insisted that the primary election be held in person without postponement, while also shifting the goal posts for absentee, mail-in voting and cutting the number of polling stations in the largely black, strongly democratic city of Milwaukee from 176 down to 5.

All this was to ensure that the down ballot vote for Jill Karofsky, a liberal upstart circuit judge, was soundly defeated by Republican incumbent Dan Kelly. Kelly, a staunch right-wing activist judge, was personally touted by Trump, who repeatedly pushed for him on social media.

The citizens of Wisconsin essentially acted in civic revolt, and smashed Dan Kelly out of office, despite the goal posts practically being burned down.

In Kenosha, Wisconsin, on April 6th, 2020, the typically conservative-leaning city on the banks of Lake Michigan flipped markedly Democratic in the controversy-laden special election for a Wisconsin Supreme Court seat. Months later – in August of 2020 – Jacob Blake was shot seven times in the back during a questionable altercation with the police, which permanently paralysed him. The video of the shooting touched off days of protests, unrest and violence. All of this weirdness and political sniping begs the question: Why would Trump bother with anything like this at all? Who cares? Well, if Kenosha, a small Middle America city, is an example, all this craziness looks like it might just encourage people to get out and vote. It certainly looked like that back in April, and things haven’t exactly improved in America since that time.

When the masses vote in the US, they tend to lean liberal. So the answer from the conservative side is simple: do everything in your political power to ensure it is much more difficult to vote.

The Wisconsin election for the Supreme Court seat in April of 2020 tipped the Republican hand; the 2020 presidential election will be an attempt to “legally” and illegally rig the vote to skew towards the incumbent, allowing Donald Trump and his ilk to cling to power. The key word here is cling. One must cling if one is the ruling minority that holds a disproportionate amount of power within a country.

Looking into the news, one would almost think that the United States is a fundamentally conservative and Republican country. But this isn’t true; it simply has some built-in systemic flaws tailored for exploitation. Most people know about the electoral college affording more importance to some states than others during elections, but there are other methods, including gerrymandering of districts to stack the government, packing the courts with interchangeable ultra-conservatives from an institute called the Federalist Society, and all states having two senators (despite some states having considerably larger populations than others) help the conservative cause further.

The Republicans are simply better at politics; they refuse to compromise, even when in the minority. The party plays the game with a win-at-all-costs mindset. A case in point is when the liberal Supreme Court Justice Judge Ruth Bader Ginsburg died of cancer on September 18th. The Republican leadership was quick to announce they’d rush to replace her ahead of the upcoming election, despite a pandemic and an economic crisis of unprecedented proportions. This would not be so bad if Senate leader Mitch McConnell had not blocked President Obama’s nominee to the Supreme Court, Merrick Garland, because it was the election year of 2016 and “the people should decide”.

A party that cares so little about what people say about it has an inherent advantage built in over the liberal wing, who have famously offered to continually compromise for “the good of the nation” Such offers of olive branches rarely benefit the people in any real way.

In this election year, however, this clear-cut Machiavellian tendency to bend or even break the rules can further muddy the waters. Take the crucial swing state of Wisconsin as an example. That same controversial judicial election in April of 2020 was made controversial by a state legislature that openly tried to rig the deck in every way they could think of doing so. They made the standards to vote by mail far more stringent, while simultaneously shrinking the time window in which voters could complete their ballots.

In the April judicial election, they played a hand in ensuring that the Democratic stronghold of Milwaukee County (the state’s biggest and most diverse city) was cut down to a measly five polling stations. All of this during a pandemic of historic proportions. Just because the Democratic candidate won in a landslide doesn’t mean that the attempt to suppress the vote wasn’t there. These efforts are sure to rear their ugly head ahead of the upcoming general election on November 3rd, and in some respects already are.

The state legislature of Wisconsin has become so blatant that Harvard’s Electoral Integrity Project, which analyses the health of election bodies around the world, rated the state’s electoral boundaries as a three on a scale of one to 100, akin to an authoritarian regime.They have within the last several years introduced some of the most stringent voting ID laws in the US, changed the parameters for absentee ballots, made it necessary to have an adult witness for someone fulfilling an absentee ballot, targeted black and Latino districts for suppression efforts, and systemically purged the voting rolls. (The last time they did this with particular gusto was in 2020.)

Now election officials in the state are weary of weariness. Voters who think that they have jumped through all of these hurdles may find themselves turning up at the polls only to not have jumped through a hoop that was only recently introduced and not publicly announced.

Strange regulations and laws

There are dozens of strange regulations and laws, perhaps hundreds, across the US, often in Republican-held states (such as Florida, whose former governor-turned- senator proposed on September 24th that all votes not counted within a 24-hour period should be thrown into the trash), which only serve to frustrate an already frustrated population.

This becomes a problem if Trump declares national emergencies in several cities in key swing states, limiting the number of hours voters will be able to vote in person. Or if, on election day, on orders from the White House, unofficial “poll watchers” show up in several districts at multiple polling places. Officials on the ground could report widespread voter intimidation, especially within black and Latino neighbourhoods.

Or there could be delays in absentee ballot counting. Despite an untold number of votes going uncounted, Trump could declare a narrow victory and the Biden camp could dispute this claim. The state legislature could intervene as “electors” due to the disputed nature of the election and ongoing public health emergency due to COVID- 19. The Democratic governor of Wisconsin, Tony Evers, could declare the election for Biden. Both results could be brought before Congressional committees in Washington, which could leave it up to the courts to decide. The proceedings could rapidly go up the court chain of command, all the way to the US Supreme Court, which just had another member controversially confirmed by the Republican-held Senate. The Supreme Court could mandate recounts must stop and that absentee ballots beyond a cut-off date be voided.

Trump could win.

This sounds far-fetched, but it isn’t, and is the exact circumstance in other key swing states such as Michigan. Recent history would suggest that the US Supreme Court is a partisan entity within the current political landscape, as it was in the 2000 presidential election, when it proved more than capable of overriding election processes to declare a victor. In that same ill-fated April election in Wisconsin, the US Supreme Court had the final say in forcing the in-person vote to go forward without a pandemic-induced delay.

This, unfortunately, is not the only controversial path for the Republicans to steal a victory in the convoluted and vastly outdated US election system, but it is a plausible one. Already in Wisconsin alone the blueprint was laid out in April, and in this unpredictable year of 2020, the Wisconsin GOP has been tightening the restrictions since then. Recent history would suggest that the US Supreme Court is a partisan entity within the current political landscape, as it was in the 2000 presidential election, when it proved more than capable of overriding election processes to declare a victor.

All of this becomes easier to achieve when compounded with the biggest handicap to American voters – that the election takes place on a Tuesday in the cold late autumn month of November, and that Tuesday is not a national holiday. This ensures that anyone with a bad vacation day/ sick leave policy and an inflexible boss will find it difficult to vote. Even Kenya, which to put it mildly, has had its fair share of election day mischief, declares a public holiday when it comes time for citizens to go to the polls. To that end, it almost seems as though the White House is finally listening to East African countries – albeit not by gleaning democratically constructive lessons but by maintaining a pseudo-legitimate grip on power.

Playing a rigged game

There are already rumblings of “norms” from Democratic Party officials (falling back on the very court processes that will fall to the Conservative-packed Supreme Court) and of trust in “institutions”, despite the said institutions being currently run by interim Trump appointees. It is these same institutions that lock-stop liberal Washington insiders continually decry as being mismanaged and corrupted and not adhering to the very norms that they now claim will be able to salvage an unprecedented election. It is unclear what these Democratic politicos believe to have changed or will change in the coming weeks and months ahead. When you know that there’s rigging within the game and you keep playing it, then you are a sucker. This rings two-fold as you make continual unforced errors, as the Democratic Party seems hell-bent on making across the last half year period.

For example, there is somewhat of a “unicorn” within the US voting bloc – that of the possibly conversion-prone moderate Republican. Under the Trump administration, such figures have sky- rocketed in value, even getting nods of approval from the most venerated of liberal circles if they espouse anti-Trump sentiments. The problem is that they’re unicorns, and unicorns, if they exist at all, are rare. The Biden campaign seems insistent on appealing to these voters, while simultaneously not leaning into the firebrand of righteous anger – the pandemic and the economic and racial inequality that is currently stewing within the massive swathe of 18-35 year-old voters.

One stark incident from recent weeks of Democrats falling into this trap comes with the Biden campaign’s eager acceptance of the endorsement of Rick Snyder, a former Republican governor of the State of Michigan. It was the Snyder administration that oversaw (and then attempted to cover up) the Flint water crisis, in which unneeded switching of water sources for profit directly led to the poisoning of tens of thousands of children within the city of Flint. Flint is a largely black city, and after the Obama administration didn’t sufficiently address or stop the crisis, 8,000 black voters who went twice to the polls for Obama didn’t show up in 2016 for Hillary Clinton. The entirety of Michigan was won by Donald Trump by approximately 10,000 votes. Snyder has multiple lawsuits against him, and among working class liberals across the hotly contested state of Michigan, he is a figure hated with more vigour than even Trump himself. So why accept his endorsement? Why walk the ball into your own post to shoot an own goal?

In an electoral system that could feasibly see Biden win by 10 million votes nationally, but lose if a few key states are won by Trump by even a singular vote a piece, there shouldn’t be such a margin for error. A horror show

To be sure, the Trump administration has been an abject horror show. It is inept, mean-spirited, openly corrupt, blindingly dumb, and blissfully ignorant and hateful – and that’s a generous assessment. Now, with more than 200,000 dead from the coronavirus in the US, there is open revolt in many cities against a system designed to oppress in an economically devastating period that will be felt for at least a decade.

The Trumpians are doing everything in their power to make sure there isn’t a need for a change in power. Trump said as much on September 24th during a White House press briefing. “Well, we’re going to have to see what happens,” Trump said. “You know that I’ve been complaining very strongly about the ballots, and the ballots are a disaster. We’ll want to have — get rid of the ballots and you’ll have a very — we’ll have a very peaceful — there won’t be a transfer, frankly. There’ll be a continuation.” He followed up by saying that the vote will probably be decided by the Supreme Court, a court he seems poised to skew hopelessly in favour of conservatives.

In September, after the death of Justice Ginsberg, members of the Democratic National Committee were already crying foul at Republican efforts to rush through the next interchangeable arch- conservative judge to the Supreme Court, lamenting the inherent unfairness of the system. While the point is well taken, the Democratic Party establishment at times reminds me of the election efforts of Raila Odinga, in that when you know for certain that your opponent will cheat you at every possible turn, what will you do to rise above it? Are you also willing to get your hands dirty to win? It may be difficult when the assorted second-in-commands surrounding you and propelling the campaign forward find new stumbling blocks to trip over. Raila, like the Democrats, always ends up compromising. The pattern is such that it almost makes one wonder if it was the plan outlined all along.

Now, with more than 200,000 dead from the coronavirus in the US, there is open revolt in many cities against a system designed to oppress in an economically devastating period that will be felt for at least a decade.

For the Democratic camp, there’s certainly reason to be nervous about all the seeking of compromise because Biden himself is an agent of such compromise. He’s inherently a self-described moderate, and has long been known as one of the most conservative Democrats in the US Senate. The country and circumstances have drifted markedly to the left since March of this year, and there is concern in the youthful left wing that Biden, “the establishment candidate”, will drift over to the right.

The continued appeal to the fabled “Reasonable Republicans” to convert is inherently a flawed one – why trade horses when the other man only holds a goat? There is concern among the activist wing that the Democratic National Committee may be giving up far too much, that they might not be that much better, that they are a part of the problem and not helping these ever-deepening emergencies.

On top of the ignoring and dismissive hand waves to the young, the active left wing currently taking to the streets in the latest wave of protests to march against the lack of criminal charges brought against the police officers who killed Breonna Taylor (a Louisville medical worker who was shot and killed in her house after police showed up at the wrong address to fulfill a no-knock drug warrant), there also seems to be a real gap in bringing in more Latino votes into the fold. There have been troubling reports that the Latino population is less in the Democratic camp than they were in 2016, and that Trump is siphoning off votes in key states like Florida and Georgia. When the Democratic National Convention took place in August, hardly any Latino voice was heard. In this year of brutal underrepresentation coming punching through to the surface, it may be a fatal error to ignore the second largest ethnic group in the country.

The Republican Party sure isn’t ignoring them, or blacks, for that matter. They’re hard at work ensuring that the voters are both too depressed to show up, and hassled drastically if they do so. Justin Clark, a deputy campaign manager for the Trump re-election effort, said as much (thinking he was not being recorded) at a sequestered meeting made up of top Wisconsin Republican litigators in late 2019: “Wisconsin’s the state that is going to tip this one way or the other…So it makes Election Day operations really, really, really important. Traditionally it’s always been Republicans suppressing votes, Democratic voters are all in one part of the state, so let’s start playing offense a little bit. And that’s what you’re going to see in 2020. That’s what’s going to be markedly different. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program, and we’re going to need all the help we can get.”

Clark later claimed that his comments were taken out of context, but such is almost an after thought. There’s a certain blatancy to the voter suppression efforts this year, and increasingly it seems that there’s little attempt to even hide them any more.

Curveballs

Republicans know a basic fact – that their party is no longer wanted in America; people know that when Republicans hold power, their civil rights are reduced, progressive ideals stagnate, their wages fall, economic recessions strike and wars start. Luckily for them, the system is on the Republicans’ side – and they are exploiting it fully.

On top of all of these factors, there still remains the foreign interference factor, which has already begun a misinformation campaign in earnest.

Such efforts at suppression, coupled with the Democratic Party’s repeated fumbling and falling back on “norms’ to save the process, are troublesome. There is nervousness in America now, but it seems that most people can’t quite comprehend what could happen. It is a certain naiveté that comes along with being taught concepts like “American Exceptionalism” and “Manifest Destiny” from a very young age (while not being taught the basics of civic government). Talking to Americans, it is almost colonialist thinking – they deny something exists because it simply hasn’t been discovered by them yet. I used to hear such sentiments frequently from Americans who had lived and worked in Kenya for years. “I absolutely cannot believe what the Trump administration is doing!” they’d say, to which I’d reply, “What do you mean you ‘can’t believe it’...you live in Kenya.”

Despite all of these nervous trepidations there seem to be only two possible outcomes. First, that all of what was just outlined above, combined with several curveballs yet to be revealed, allow Trump to eke out an electoral college victory while losing the popular vote (with more than vague overtones of foreign interference, mail-in voting miseries, voter suppression and Republican assistance). Or, the second option, and a vastly more optimistic one: that Wisconsin’s election in April of 2020 was a preview, a groundswell of anger of a population that had been messed with on a few too many fronts in too short a period of time. Now, with Trump having been infected with the coronavirus (probably the result of his own reckless advice to Americans to not wear masks or observe social distancing), what comes after November 3rd is an uncertainty of a scale that most Americans simply cannot wrap their minds around.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Will Trump Rig the 2020 Election?

By Alex Roberts

“Arrest them!” Across the globe, this is the popular demand whenever someone is accused of wrongdoing. Two weeks ago, the reigning Formula One champion, Lewis Hamilton, appeared before the press wearing a T-shirt emblazoned with the words “Arrest the cops who killed Breonna Taylor” – a reference to an incident six months ago in which US police shot and killed the unarmed African American in her own home during a drug bust. In Kenya too, demands for arrests are an almost involuntary reflex reaction whenever vices like murder, rape, robbery, poaching or corruption rear their ugly head.

We rarely give thought to this identification of incarceration with punishment and the consequences of doing this. Especially on the African continent, confinement as a form of punishment was largely unknown prior to colonialism. Jails, which did exist in some pre-colonial kingdoms, were established for the purpose of holding either suspects pending trial or convicts awaiting their fate.

Still, for much of the continent, the experience of confinement was a product of colonialism. Yet there does not seem to have been much resistance to the idea of incarcerating people. It is somewhat strange considering, as historian Daniel Branch observed, “prisoners were serving sentences in institutions with no historically derived meaning, having been convicted for activities that they would not themselves consider offences”.

Places of incarceration did form sites of activism and resistance – one here thinks of the March 16, 1922 protests at the Nairobi police station against the arrest of Harry Thuku, which were led by Mary Muthoni Nyanjiru and which resulted in the massacre of at least 21 and perhaps as many as a hundred protesters by the police and colonial settlers. However, one does not generally come across tales of attacks on colonial prisons in the same manner as, for example, the Nandi attacks on the “iron snake”, the colonial railroad foretold, the legend goes, by their fourth Orkoiyot, Kimnyole (who would ironically be stoned to death by Nandi following a sequence of failed predictions).

“There’s quite a lot of evidence to suggest that the removal of ‘criminals’ was welcomed – even if they had been convicted by a colonial justice system,” says Prof David Anderson. “Colonial goals were certainly sites of oppression, but they also served a social function of which some Africans approved.”

Still, for much of the continent, the experience of confinement was a product of colonialism. Yet there does not seem to have been much resistance to the idea of incarcerating people.

The seemingly rapid acceptance of incarceration as a mode of punishment was perhaps aided by the relatively permeable membrane that was the prison wall — at least for petty criminals who made up the bulk of the inmate population in Kenyan prisons in the early days. Branch documents prisoners hosting their families for tea, being allowed to go for strolls in town or brew their own hooch. And though life on the inside may have been brutal, so increasingly was life under colonial occupation on the outside.

Exceptions were made for individuals whom the colonial government viewed as a threat to their control, in which case incarceration was accompanied by deportation following ordinances enacted in 1923 empowering the governor to detain anybody and deport people from one part of the territory to another. Harry Thuku was, for example, deported to Kismayu following the Nairobi massacre and in the 1930s, as related by Prof Anderson, “the entire Talai clan was deported from the Kipsigis Reserve and detain[ed] indefinitely in an alien and inhospitable area of Nyanza province in what was, in effect, an open prison”. This followed attacks on symbols of colonial authority, including Europeans and Asians as well as chiefs and their assistants, including what came to be known as the Kinangop Outrage – the killing of a white settler, Alex Semini, and the assault on his wife during a bungled robbery.

Even as prison conditions deteriorated markedly during the Mau Mau Emergency and after independence, attitudes towards incarceration did not change. Although Kenyan prisons continue to be heavily criticised by international groups for neglect, violence and abuse of human rights within the system, there has not been a popular movement for prison reform. The sporadic attempts at improving prisoner welfare have been led by a few religious and civil society groups and state officials, most notably former Vice President Moody Awori’s reforms in the early 2000s. However, they have yielded few tangible improvements and, more importantly, have not translated into public pressure for reform or even abolition of the prison system.

On its part, the state’s attitudes towards incarceration have barely budged. The recent arrest and detention of two legislators for “insulting” the president and his mother were telling. Following a model of harassment practised against activists, journalists and ordinary citizens, rather than requesting the two to come to the police station and without bothering with a warrant, contingents of cops were sent to haul them in. The courts thereafter sanitised this by allowing them to be held longer as police “completed investigations”. This abuse of the police powers of arrest and detention continues despite constitutional guarantees of liberty, presumption of innocence, freedom from arbitrary incarceration and bail.

Tens, perhaps hundreds, of thousands of Kenyans who have been convicted of no crime continue to spend days, weeks, months and even years in police or remand jails. The National Council on the Administration of Justice (NCAJ) points out that the Kenyan police have abused their powers of arrest “to harass Kenyans, especially the poor, vulnerable and marginalised individuals without sufficient legal knowledge to defend themselves or sufficient resources to either bribe the police officer to be released or to hire a lawyer to represent them in Court”. The scale of arrests is humongous. An audit by the NCAJ found that 145,000 people had been detained in just 15 of Kenya’s police stations between 2013 and 2014. That suggests that a total of 10 million people, or one in every five Kenyans, are arrested by the police every two years. This is in addition to the nearly 30,000 currently being held in remand, who constitute half of the prison population.

There have been recent attempts to decongest the jails by encouraging, for example, alternative dispute resolution mechanisms, plea bargains and non-custodial sentences. However, the efficacy of these are undermined by the fact that Kenyan courts, like the police, continue to treat liberty as a privilege to be earned rather than a right to be protected. Although four years ago the High Court declared unconstitutional the police practice of arresting “suspects” and then asking the courts for more time to complete investigations before charging them, judges and magistrates continue to indulge this practice, as we have seen.

An audit by the NCAJ found that 145,000 people had been detained in just 15 of Kenya’s police stations between 2013 and 2014. That suggests that a total of 10 million people, or one in every five Kenyans, are arrested by the police every two years.

Even more egregiously, an audit by the Office of the Director of Public Prosecutions revealed that courts routinely issue unaffordable bail and bond terms and that 90 percent of the suspects, who are legally presumed innocent but end up spending an average of one year in pre-trial remand, have actually been granted bail or bond but are too poor to execute them. In a country where nearly half of the households earn less than Sh10,000 per month, and where, as we have seen, the poor make up the vast majority of those targeted by the police, only six per cent of those in pretrial custody had been granted bail amounts below that figure.

In short, in the name of fighting crime, Kenya continues to deprive millions of its citizens of the right to liberty and to hold many of them in inhumane and deplorable conditions for extended periods of time. Yet this has not resulted in a significant decline in the crime rate over the last decade, with the rate of intentional homicides hovering between 4.5 and 5.5 per 100,000 according to the World Bank. So if arrests and incarceration are not working, why do we keep doing them? Are there viable alternatives we can explore?

Clearly, the Kenyan state continues to arrest and imprison Kenyans simply because it knows no better. From its founding in the colonial period, brutal incarceration has been the primary means by which the state has engaged with its citizens. Without fundamentally reforming and rebuilding the logic of the state, changing how it deals with Kenyans will be impossible. This reimagining of what the state could be and its relationship with the people is the work that the 2010 constitution called on us to do but that seems to have barely begun a decade later.

Faithful implementation of the spirit and letter of the 2010 constitution would end the prison state. Arbitrary arrests would be a thing of the past and confinement would be a last resort. If judges took the prohibitions against “cruel, inhuman or degrading treatment or punishment” seriously, they would stop sending suspects and convicts to violent, overcrowded, unsanitary death prisons.

As for alternatives to arrest and imprisonment, these are legion and would immediately become apparent once we sorted out the state. For one, Kenya could look to her pre-colonial past for ideas on how to deal with crime. At that time, criminal justice systems were more focused on restitution and reconciliation rather than punishment. They “were victim rather than perpetrator-centered with the end goal being compensation instead of incarceration” notes Prof. Jeremy Sarkin. It was only on the rare occasion when the crime was either sufficiently grievous or the offender had exhausted the society’s patience that severe penalties, including ostracism, banishment or death were imposed.

Brutal incarceration has the primary means by which the Kenyan state has engaged with its citizens. Without fundamentally reforming and rebuilding the logic of the state, changing how it deals with Kenyans will be impossible.

Saying that we could learn from the past does not necessarily mean we need to replicate their methods or that our ancestors had it all figured out. It just means there are lessons and attitudes to be learned about dealing with crime that could be adapted to modern times. One of this would be to discard the idea that all, or even most, wrongdoers and suspects have to be walled off from society and condemned to spaces of unimaginable suffering, humiliation and death.

Non-custodial sentences, especially for non-violent crimes, should be the norm. Community service orders in addition to having offenders pay compensation to their victims rather than fines to the state could be other innovations we could borrow from the past. Restitution, resolution and reconciliation should be preferred above retribution.

Granted, even with such reforms, there might still be a place for police cells, jails and prisons. If so, it would be a much smaller place. And one that is more befitting a space for the rehabilitation for habitual offenders than what we currently have.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future. Follow us on Twitter.

Will Trump Rig the 2020 Election?

By Alex Roberts

The Tonse Alliance that made history in June by winning the rerun of the presidential election, the first time this has happened in Africa. It represented a triumph of Malawian democracy, undergirded, on the one hand, by the independence of the judiciary, and on the other, by the unrelenting political resilience and struggles of the Malawian people for democratic governance. In short, we can all be proud of Malawi’s enviable record of political freedom. However, our democratic assets are yet to overcome huge developmental deficits. Our record of economic development and poverty eradication remains dismal, uneven, and erratic.

Malawi’s persistent underdevelopment does not, of course, emanate from lack of planning. In 1962, Dunduzu Chisiza convened “what was perhaps the first international symposium on African Economic Development to be held on the continent”. It brought renowned economists from around the world and Africa. In attendance was a young journalist, Thandika Mkandawire, who was inspired to study economics, and rose to become one of the world’s greatest development economists. I make reference to Chisiza and Mkandawire to underscore a simple point: Malawi has produced renowned and influential development thinkers and policy analysts, whose works need to be better known in this country. If we are to own our development, instead of importing ready-made and ill-suited models from the vast development industry that has not brought us much in terms of inclusive and sustainable development, we have to own the generation of development ideas and implementation.

I begin, first, by giving some background on the county’s development trajectory; and second, by identifying the three key engines of development – the quality of human capital, the quality of infrastructure, and the quality of institutions – without which development is virtually impossible.

Malawi’s development trajectory and challenges

Malawi’s patterns of economic growth since independence have been low and volatile, which has translated into uneven development and persistent poverty. A 2018 World Bank report identifies five periods. First, 1964-1979, during which the country registered its fastest growth at 8.79%. Second, 1980-1994, the era of draconian structural adjustment programmes when growth fell to 0.90%. Third, 1995-2002 when growth rose slightly to 2.85%. Fourth, 2003-2010, when growth bounced to 6.25%. Finally, 2011-2015, when growth declined to 3.82%. Another World Bank report, published in July 2020, notes that the economy grew at 3.2% in 2017, 3.0% in 2018, an estimated 4.4% in 2019, and will likely grow at 2.0% in 2020 and 3.5% in 2021.

Clearly, Malawi has not managed to sustain consistently high growth rates above the rates of population growth. Consequently, growth in per capita income has remained sluggish and poverty reduction has been painfully slow. In fact, while up to 1979 per capita GDP grew at an impressive 3.7%, outperforming sub-Saharan Africa, it shrunk below the regional average after 1980. It rose by a measly 1.5% between 1995 and 2015, well below the 2.7% for non-resource-rich African economies. Currently, Malawi is the sixth poorest country in the world.

While the rates of extreme poverty declined from 24.5% in 2010/11 to 20.1% in 2016/17, moderate poverty rates increased from 50.7% to 51.5% during the same period. Predictably, poverty has a gender and spatial dimension. Women and female-headed households tend to be poorer than men and male-headed households. Most of the poor live in the rural areas because they tend to have lower levels of access to education and assets, and high dependency ratios compared to urban dwellers, who constitute only 15% of the population. Rural poverty is exacerbated by excessive reliance on rain-fed agriculture and vulnerability to climate change because of poor resilience and planning. In the urban areas, poverty is concentrated in the informal sector that employs the majority of urban dwellers and suffers from low productivity and incomes, and poor access to capital and skills.

The causes and characteristics of Malawi’s underdevelopment are well-known. The performance of the key sectors – agriculture, industry, and services – is not optimal. While agriculture accounts for two-thirds of employment and three-quarters of exports, it provides only 30% of GDP, a clear sign of low levels of productivity in the sector. Apparently, only 1.7% of total expenditure on agriculture and food goes to extension, and one extension agent in Malawi covers between 1,800 and 2,500 farmers, compared to 950 in Kenya and 480 in Ethiopia. As for irrigation, the amount of irrigated land stands at less than 4%.

Therefore, raising agricultural productivity is imperative. This includes greater crop diversification away from the supremacy of maize, improving rural markets and transport infrastructure, provision of agricultural credit, use of inputs and better farming techniques, and expansion of irrigation and extension services. Commercialisation of agriculture, land reform to strengthen land tenure security, and strengthening the sector’s climate resilience are also critical.

In terms of industry, the pace of job creation has been slow, from 4% of the labour force in 1998 to 7% in 2013. In the meantime, the share of manufacturing’s contribution to the country’s GDP has remained relatively small and stagnant, at 10%. The sector is locked in the logic of import substitution, which African countries embarked on after independence and is geared for the domestic market.

Export production needs to be vigorously fostered as well. It is reported that manufacturing firms operate on average at just 68 per cent capacity utilisation. This suggests that, with the right policy framework, Malawi’s private sector could produce as much as a third more than current levels without needing to undertake new investment.

After independence, Malawi, like many other countries, created policies and parastatals, and sought to nurture a domestic capitalist class and attract foreign capital in pursuit of industrialisation. The structural adjustment programmes during Africa’s “lost decades” of the 1980s and 1990s aborted the industrialisation drive of the 1960s and 1970s, and led to de-industrialisation in many countries, including Malawi. The revival and growth of industrialisation require raising the country’s competitiveness and improving access to finance, the state of the infrastructure, the quality of human capital, and levels of macroeconomic stability.

Over the last two decades, Malawi has improved its global competitiveness indicators, but it needs to and can do more. According to the World Bank’s Ease of Doing Business, which covers 12 areas of business regulation, Malawi improved its ranking from 132 out of 183 countries in 2010 to 109 out of 190 countries in 2020; in 2020 Malawi ranked 12th in Africa. In the World Economic Forum’s Global Competitiveness Index, a four-pronged framework that looks at the enabling environment – markets, human capital, and the innovation ecosystem – Malawi ranked 119 out of 132 countries in 2009 and 128 out of 141 countries in 2019.

Access to finance poses significant challenges to the private sector, especially among small and medium enterprises that are often the backbone of any economy. The banking sector is relatively small, and borrowing is constrained by high interest rates, stringent collateral requirements, and complex application procedures. In addition, levels of financial inclusion and literacy could be greatly improved. The introduction of the financial cash transfer programme and mobile money have done much to advance both.

Corruption is another financial bottleneck, a huge and horrendous tax against development. The accumulation of corruption scandals – Cashgate in 2013, Maizegate in 2018, Cementgate and other egregious corruption scandals in 2020 – is staggering in its mendacity and robbery of the county’s development and future by corrupt officials that needs to be uncompromisingly uprooted.

Malawi’s infrastructure deficits are daunting. Access to clean water and energy remains low, at 10%, and frequent electricity outages are costly for manufacturing firms that report losing 5.1% in annual sales; 40.9% of the firms have been forced to have generators as backup. The country’s generating capacity needs massive expansion to close the growing gap between demand and supply. Equally critical is investment in transport and its resilience to contain the high costs of domestic and international trade that undermine private sector development and poverty reduction.

Digital technologies and services are indispensable for 21st century economies, an area in which Malawi lags awfully behind. According to the ICT Development Index by the International Telecommunications Union, in 2017 Malawi ranked 167 out of 176 countries. There are significant opportunities to overcome the infrastructure deficits in terms of strengthening the country’s transport systems through regional integration, developing renewable energy sources, and improving the regulatory environment. Developing a digitally-enabled economy requires enhancing digital infrastructure, connectivity, affordability, availability, literacy, and innovation.

The services sector has grown rapidly, accounting for 29% of the labor force in 2013 up from 12% in 1998. It is dominated by the informal sector which is characterized by low productivity, labor underutilization, and dismal incomes. The challenge is how to improve these conditions and facilitate transition from informality to formality.

Enablers and drivers of development

The challenges of promoting Malawi’s socio-economic growth and development are not new. In fact, they are so familiar that they induce fatalism among some people as if the country is doomed to eternal poverty. Therefore, it is necessary to go back to basics, to ask basic questions and become uncomfortable with the county’s problems, with low expectations about our fate and future.

From the vast literature on development, to which Thandika made a seminal contribution, there are many dynamics and dimensions of development. Three are particularly critical, namely, the quality of human capital, the quality of infrastructure, and the quality of institutions. In turn, these enablers require the drivers embodied in the nature of leadership, the national social contract, and mobilisation and cohesiveness of various capitals.

The quality of human capital encompasses the levels of health and education. Since 2000, Malawi has made notable strides in improving healthcare and education, which has translated into rising life expectancy and literacy rates. For the health sector, it is essential to enhance the coverage, access and quality of health services, especially in terms of reproductive, maternal, neonatal, and early child development, and public health services, as well as food security and nutrition services.

The introduction of free primary education in 1994 was a game changer. Enrollment ratios for primary school rose dramatically, reaching 146% in 2013 and 142% in 2018, and for secondary school from 44% in 2013 to 40% in 2018. The literacy rate reached 62%. But serious challenges remain. Only 19% of students’ progress to Standard Eight without repeating and dropout rates are still high; only 76% of primary school teachers and 57% of secondary school teachers are professionally trained. Despite increased government expenditure, resources and access to education remain inadequate.

Consequently, in 2018 Malawi’s adult literacy was still lower than the averages for sub-Saharan countries (65%) and the least developed countries (63%). This means the skill base in the country is low and needs to be raised significantly through increased, smart and strategic investments in all levels of education. Certainly, special intervention is needed for universities if the country, with its tertiary education enrollment ratio of less than 1%, the lowest in the world, is to catch up with the enrollment ratios for sub-SaharanAfrica and the world as a whole that in 2018 averaged 9% and 38%, respectively.

Human capital development is essential for turning Malawi’s youth bulge into a demographic dividend rather than a demographic disaster. Policies and programmes to skill the youth and make them more productive are vital to harnessing the demographic dividend. Critical also is accelerating the country’s demographic transition by reducing the total fertility rate.

As for infrastructure, while the government is primarily responsible for building and maintaining it, the private sector has an important role to play, and public-private-partnerships are increasingly critical in many countries. It is necessary to prioritise and avoid wish lists that seek to cater to every ministry or constituency; to concentrate on a few areas that have multiplier effects on various sectors; and ensure the priorities are well-understood and measurable at the end of the government’s five-year term. Often, the development budget doesn’t cover real investment in physical infrastructure and is raided to cover over-expenditure in the recurrent budget.

The quality of institutions entails the state of institutional arrangements, which UNDP defines as “the policies, systems, and processes that organizations use to legislate, plan and manage their activities efficiently and to effectively coordinate with others in order to fulfill their mandate”. Thus, institutional arrangements refer to the organisation, cohesion and synergy of formal structures and networks encompassing the state, the private sector, and civil society, as well as informal norms for collective buy-in and implementation of national development strategies. But setting up institutions is not enough; they must function. They must be monitored and evaluated.

The three enablers of development require the drivers of strong leadership and good governance. Malawi has not reaped much from its peace and stability because of a political culture characterised by patron-clientelism, corruption, ethnic and regional mobilisation, and crass populism that eschews policy consistency and coherence, and undermines fiscal discipline. Malawi’s once highly regarded civil service became increasingly politicised and demoralised. Public servants and leaders at every level and in every institutional context have to restore and model integrity, enforce rules and procedures, embody professionalism and a high work ethic, and be accountable. Impunity must be severely punished to de-institutionalise corruption, whose staggering scale shows that domestic resources for development are indeed available. To quote the popular saying by Arthur Drucker, “organisational culture eats strategy”.

Also critical is the need to forge social capital, which refers to the development of a shared sense of identity, understanding, norms, values, common purpose, reciprocity, and trust. There is abundant research that shows a positive correlation between the social capital of trust and various aspects of national and institutional development and capabilities to manage crises. Weak or negative social capital has many deleterious consequences. The COVID-19 pandemic has made this devastatingly clear – countries in which the citizenry is polarised and lacks trust in the leadership have paid a heavy price in terms of the rates of infection and deaths.

Impunity must be severely punished to de-institutionalise corruption, whose staggering scale shows that domestic resources for development are indeed available. To quote the popular saying by Arthur Drucker, “organisational culture eats strategy”.

The question of social capital underscores the fact that there are many different types of capital in society and for development. Often in development discourse the focus is on economic capital, including financial and physical resources. Sustainable development requires the preservation of natural capital. Malawi’s development has partly depended on the unsustainable exploitation of environmental resources that has resulted in corrosive soil erosion and deforestation. Development planning must encompass the mobilisation of other forms of capital, principally social and cultural capital. The diaspora is a major source of economic, social and cultural capital. In fact, it is Africa’s largest donor, which remitted an estimated $84.3 billion in 2019.

In conclusion, Malawi’s development trajectory has been marked by progress, volatility, setbacks, and challenges. For a long time, Malawi’s problem has not been a lack of planning, but rather a lack of implementation, focus and abandoning the very basics of required integrity in all day-to-day work. Also, the plans are often dictated by donors and lack local ownership so they gather the proverbial bureaucratic dust.

Let us strive to cultivate the systems, cultures, and mindsets of inclusion and innovation so essential for the construction of developmental and democratic states, as defined by Thandika and many illustrious African thinkers and political leaders.

–

This article is the author’s keynote address at the official opening of the 1st National Development Conference presided by the State President of Malawi, His Excellency Dr. Lazarus Chakwera, at the Bingu International Convention Centre, Lilongwe, on 27 August, 2020.

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Will Trump Rig the 2020 Election?

By Alex Roberts The influx of the Mau Mau transformed the prison population in Kenya from one predominantly made up of recidivist petty criminals and tax defaulters to one composed largely of political prisoners, many of whom had no experience of prison life and who brought with them new forms of organisation.

Prison life was harsh, with its share of brutalities and fatalities. Between 1928 and 1930, about 200 prisoners in Kenya died. According to British historian David Anderson, “Kenya’s prisons were already notably violent before 1952 [when the Mau Mau uprising began], more violent than other British colonies.”

However, the incorporation of prisons and detention camps into the “Pipeline” (the system developed by the colonial state to deal with the Mau Mau insurgents and to try and break them using terror and torture) inevitably led to the institutionalisation of the methods of humiliation and torture.

As Anderson notes, “Most of the staff in both the Prison Service and in the [Mau Mau] detention camps were Africans. Some were even Kikuyu. They certainly ‘learned’ these methods during their periods of early employment.” He goes on to say that “those who ran the service by the 1960s and early 1970s were all men who had been recruited and trained during the Mau Mau period”. He thinks it “very likely that these individuals practiced what they had learned as cadets and trainees in the 1950s…I think the Mau Mau experience certainly hardened Kenya’s prison system and introduced a greater range of punishments and harsher treatment for prisoners as a consequence of the conditions off the Emergency”.

Compare, for example, this account of the treatment of Mau Mau detainees in the 1950s published in Caroline Elkins’ book, Britain’s Gulag: The Brutal End of Empire in Kenya:

Regardless of where they were in the Pipeline (the system of camps established for deradicalizing Mau Mau detainees and prisoners), roll call meant squatting in groups of five with their hands clasped over their heads. The European commandants would then walk through the lines, counting and beating the detainees. “The whole thing was just so ridiculous,” recalled one former detainee from Lodwar. “Whitehouse [the European in charge] would just count us over and over again.” It bears stark similarities to this account published in the Daily Nation about conditions in Kenyan prisons 65 years later:

Omar Ismael, 64, a former Manyani inmate who served nine years till his exoneration in 2017, says he woke up at 5am, despite his advanced aged. They then squat in groups of five to be counted and checked by guards. “My knees are still hurting to date. I have a joint problem too as a result,” he says. He says they had at least six head counts per day. The first one at 5am, followed by 10am, noon, 4pm, 6pm and 7pm.

Kenyan prisons today carry the DNA of their forebears – the colonial prisons and Mau Mau detention camps. They are about brutalising prisoners into submission and, along with the police and military, scaring the rest of society into compliance with the state. They are places of dehumanisation, abandonment and retribution. And like their colonial parents, they prefer to employ the least educated. (At present, out of a staff complement of 22,000, the Kenya Prison Service only has about 700 graduate officers.) As of 2015, according to the World Prison Population List prepared by the Institute for Criminal Policy Research, Kenya has incarcerated more of its citizens per 100,000 population than any other country in Eastern Africa with the exception of Rwanda and Ethiopia.

Notably, about 50 per cent of Kenya’s 54,000 prisoners are pre-trial detainees or those held in remand as they await trial – people legally considered innocent. By comparison, the median proportion of pre-trial prisoners in Africa is 40 per cent and nearly 30 per cent globally. In Eastern Africa, only Uganda and Ethiopia have a higher proportion of pre-trial detainees than Kenya. As in colonial times, pre-trial detention is driven by two factors – the need to extract resources from the populace and the subjugation of the native through criminalisation of ordinary life.

In 1933, submissions to the Bushe Commission provided some flavour of how the threat of arrest and imprisonment was ever-present among the natives.

Relates one Ishmael Ithongo:

Once I was arrested by a District Officer on account of my hat because I did not see him approaching. He came from behind and threw it down. I asked him why because I did not know him. He called an askari and asked for my name. It was in a district outside. He asked me, “Don’t you know the law here that you should take off your hat when you see a white man?” Then he asked me, “Have you got your kipandi?’ I said “No, Sir.” So I was sent to prison… When an askari thinks that you look smart he asks if you have your kipandi. I have seen natives who are going to church in the morning who have changed their coat and forgotten their kipandi. They meet an askari. “Have you got your kipandi?” “No.” “Ah right” and they are marched off to prison.

This will sound familiar to many Kenyans today whose encounters with the police often begin with demands for the production of the kipande (ID card) and end with a stint in overcrowded police cells. However, there are some differences. An audit of pre-trial detention by the National Council on the Administration of Justice found that police generally arrested and charged people for petty offences, with close to half of those arrests occurring over weekends. Most releases from police custody also happened over the weekend with no reason recorded for two-thirds of those releases. Further, only 30 percent of all arrests actually elicited a charge, the vast majority for petty offences. This implies that most police detentions today are something of a catch-and-release programme designed to create opportunities to extract bribes rather than labour.

However, for those who get incarcerated, matters are somewhat different. The exploitation of prisoners’ labour continues. Like the Mau Mau detainees, they are required to work for a token amount determined by the government, which, unlike its colonial ancestor, does not even pretend that the 30 Kenyan cents per day is meant as a wage, with the Attorney-General declaring in court that “prison labour is an integral component of the sentence”. The courts have held that it is entirely compatible with the protection of fundamental rights for the Prison Service to do this as well as to deny convicts basic supplies such as soap, toothpaste, toothbrushes, and toilet paper. Apparently, the conditions the convicts are experiencing cannot be called forced labour and servitude because, the strange reasoning goes, “the Constitution and the Prisons Act do not permit forced labour or servitude”.

Notably, about 50 per cent of Kenya’s 54,000 prisoners are pre-trial detainees or those held in remand as they await trial – people legally considered innocent…In Eastern Africa, only Uganda and Ethiopia have a higher proportion of pre-trial detainees.

Like in colonial times, the beneficiaries of this prison industrial complex are the state and those who control it. Remandees and convicts are liable to be put to work cleaning officials’ compounds and there have been persistent rumours of them being compelled to provide free labour for the private benefit of prison officers and other well-connected government officials, as is the case in Uganda.

While in 1930 earnings from convicts’ labour accounted for a fifth of the total cost of the Prisons Department, the official goal today, as declared by the Ministry of Interior, is for the Department to transform into a “financially self-sustaining entity”. To achieve this, President Uhuru Kenyatta has created the Kenya Prisons Enterprise Corporation with the aim of “unlocking the revenue potential of the prisons industry” and to “foster ease of entry into partnership with the private sector”.

This basically entails deeper exploitation of prisoners’ labour. And even though Kenyatta speaks of improving remuneration, it is notable that this is not a free exchange. Whatever the courts might say, it is clear that the state and its owners feel entitled to the labour of those they have incarcerated, much like their predecessors (the colonial regime and the European settlers) once felt entitled to African labour.

In this regard, the attitude is very like that of the white settler in Kiambu, Henry Tarlton, who told the 1912 Native Labour Commission regarding desertion by African workers that “this is my busiest season and my work is entirely upset, and it is hardly surprising if I am in a red-hot state bordering on a desire to murder everyone with a black skin who comes within sight”. Another white settler, Frank Watkins, in a letter to the East African Standard in 1927 boasted of his “methods of handling and working labour”, which included “thrash[ing] my boys if they deserve it”.

This brutality, especially directed towards African males, was paired with forced labour from the very onset of the colonial experience. (Brett Shadle, Professor and Chair of the Department of History at Virginia Tech, notes that the settlers were much more reticent about their violence on African women, which tended to be sexual in nature.) These settlers were already pushing the colonial state to institute unpaid forced labour on public works projects in the reserves (which it eventually did) as a means of driving Africans to wage employment for Europeans. But it was within the prison system and Mau Mau detention camps that the practice of forced labour found its full expression. According to Christian G. De Vito and Alex Lichtenstein, “Conditions inside the detention camps created in Kenya in the 1910s and 1920s and in the prison camps opened in 1933 depended on the assumption that forced labour, together with corporal punishment, could actually serve as the only effective forms of penal discipline.” The influx of Mau Mau detainees, they explained, overwhelmed the system “since police repression by far exceeded the capacity of the already overcrowded prisons, and the colonial government decided to establish a network of camps, collectively called the ‘Pipeline’, characterized by violence, torture, and forced labour.”

These are the footsteps in which the Kenyan state is walking. Nelson Mandela once said that a nation should not be judged by how it treats its highest citizens but by how it treats its lowest ones. By that measure, the current Kenyan state is no different from its colonial predecessor.

“It is also worth thinking about what happens to the prison at the end of colonialism,” says Prof Anderson. “There is no movement for prison reform in Kenya after 1963 – rather the opposite: the prison regime becomes harsher and is even less well funded than it was in colonial times. By the end of the 1960s, Kenya is being heavily criticised by international groups for the declining state of its prison system and the tendency to violence and abuse of human rights within the system.”

Prof Daniel Branch stresses that “post-colonial prisons urgently need a history. The Mau Mau period rightly gets lots of attention, but there’s very little by scholars on the post-colonial period”.

It is critical, as Kenya marks a decade since the promulgation of the 2010 constitution, that we keep in mind Mandela’s words and ask whether, if at all, it has changed how those condemned by society – “our lowest ones” – are treated. That will, in the end, be the true measure of our transformation.

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Will Trump Rig the 2020 Election?

By Alex Roberts The New York Times praises the US-American NGO GiveDirectly (GD), a GiveWell top charity, for offering a ‘glimpse into the future of not working’ and journalists from the UK to Kenya discuss GD’s unconditional cash transfer program as a revolutionary alternative in the field of development aid. German podcasts as well as international bestsellers such as Rutger Bregman’s Utopia for Realists portray grateful beneficiaries whose lives have truly changed for the better since they received GD’s unconditional cash and started to invest it like the business people they were always meant to be. At first glance, GD indeed has an impressive CV.

Since 2009, the NGO has distributed over US$160 million of unconditional cash transfers to over tens of thousands of poor people in Kenya, Rwanda, Uganda, the USA and Liberia in an allegedly unbureaucratic, corrupt-free and transparent way. Recipients are ‘sensitized’ in communal meetings (baraza), the cash transfers are evaluated by teams of internationally renowned behavioral economists conducting rigorous randomized controlled trials (RCTs) and the money arrives in the recipients’ mobile money wallets such as the ones from Mpesa, Kenya’s celebrated FinTech miracle, without passing through the hands of local politicians.

In 2015 and after finalizing a pilot program in the Western Kenyan constituency Rarieda (Siaya County), GD decided to penetrate my ethnographic field site, Homa Bay County. On the one hand, they thereby hoped to enlarge their pool of potential beneficiaries. On the other hand, they had planned to conduct further large-scale RCTs (one RCT implemented in the area, studied the effects of motivational videos on recipients’ spending behavior). To the surprise of GD, almost 50% of the households considered eligible for the program in Homa Bay County refused to participate. As a result, the household heads waived GD’s cash transfer which would have consisted of three transfers amounting to a total of 110,000 Kenyan Shillings (roughly US$1,000).

In order to understand what had happened in Homa Bay County and why so many households had refused to participate, I teamed up with Samson Okech, a former field officer of Innovations for Poverty Action (IPA) who had conducted surveys for GD in Siaya. Samson had been an IPA employee for over ten years and belongs to the extended family I work with most closely during fieldwork. During our long qualitative interviews with recipients of GD’s cash transfer and former field officers as well as Western Kenyans who refused to be enrolled in the program, the celebratory reports by journalists and scholars were replaced by a bleaker picture of an intervention riddled with misunderstandings and problems.

Before I offer a glimpse into what happened on the ground, I want to emphasize that I am neither politically nor economically against unconditional cash transfers which, without a doubt, have helped many individuals in Western Kenya and elsewhere. It is not the what, but the how against which I direct my critique. The following two sections illustrate that a substantial part of Homa Bay County’s population did not consider GD’s intervention as a one-time affair between themselves and GD. In contrast, they interpreted GD’s program either as an invitation into a long-term relationship of patronage or as a one-time transfer with obscured actors.

These interpretations should make us aware of ethical problems entailed in conducting social experiments (see Kvangraven’s piece on Impoverished Economics, Chelwa’s and Muller’s The Poverty of Poor Economics or Ouma’s reflection upon GD’s randomisation process in Western Kenya). They can also crucially encourage us to think about ways of radically reconfiguring the political economy of development aid in Africa and elsewhere.

Instead of framing relations between the West and the Rest as relations between charitable donors and obedient recipients, in my conclusion I propose to ‘ungift’ unconditional cash transfers as well as development aid as a whole. Taking inspiration from rumors claiming that Barack Obama, whose father came from Western Kenya, has created GD in order to rectify historical injustices, I suggest rethinking cash transfers as reparations or debts repaid. Consequently, recipients should no longer be used as ‘guinea pigs’ but appreciated as equal partners and autonomous subjects entitled to reap a substantial portion of the value produced in a global capitalist economy that, historically as well as structurally, depends on exploiting them.

Why money needs to be spent on ‘visible things’

Those were guidelines on how to use the money. It was important that what you did with the money was visible and could be evaluated’, William Owino explained to us after we had asked him about a ‘brochure’ several other respondents had mentioned. One of the studies on the impact of GD’s activities in Siaya also mentions these brochures. In order to ‘emphasize the unconditional nature of the transfer, households were provided with a brochure that listed a large number of potential uses of the transfer.’

When being asked which type of photographs and suggestions were included in these brochures, respondents mentioned photographs of newly constructed houses with iron sheets, clothes, food and other gik manenore (‘visible things’). When we inquired further if the depicted uses included drinking alcohol, betting, dancing or other morally ambiguous goods and services, the majority of our respondents dismissed that question by laughing or by adding that field officers had also advised them against using the money for other morally dubious services such as paying prostitutes or bride wealth for a second or third wife.

One of our respondents in Homa Bay took the issue of gik manenore to its extreme by expressing the opinion that GD’s money must be used to build a house with a fixed amount of iron sheets and according to a preassigned architectural plan so that GD, in their evaluation, would be able to identify the houses whose owners had benefited from their program quickly and without much effort. Such practices of ‘anticipatory obedience’ are also implicitly at work in the rationalizations of another respondent. He expected that GD’s field officers who had asked him questions about what he intended to do with the money during the initial survey – questions whose answers had, in his opinion, qualified him to receive the cash transfer – would one day return to see if he had really used the money according to his initially stated intention. The logic employed is clear: The ‘unconditional’ cash transfers needed to be spent on useful and, if possible, visible and countable things so that GD would return with further funds after a positive evaluation.

Recipients understood the relation with GD not as a one-off affair, but as an entrance into a long- term relation of fruitful dependency. In contrast to GD which, like most neoliberal capitalists, understands unconditional cash as a context-independent techno-fix, the inhabitants of Homa Bay framed money as an entity embedded in and crystallizing social power relations.

From such a perspective, free money is not really free, but like Marcel Mauss’ famous gifts, an invitation into a ‘contract by trial’ which has the potential to turn into a long-term relationship benefitting both partners if recipients pass the test and reciprocate with obedience. While some actors framed the offer of unconditional cash as a test that could lead into an ongoing patron-client relationship between charitable donors and obedient recipients, others, the majority who refused to accept GD’s offer, interpreted it as a direct exchange relation with unseen actors.

Why money is never free

‘People in the market and those I met going home told me it is blood money’, Mary, a 40-year old mother remembered. After she had been sampled, Mary had never received money from GD but failed to understand why and believed the village elder had ‘eaten’ her money. She further told us that rumors about ‘blood money’ circulated in church services and funeral festivities. ‘Blood money’ refers to widespread beliefs that accepting GD’s cash implied entering into a debt relation with unknown actors such as a local group sacrificing children or the devil.

Comparable rumors playing with the well-known anthropological trope of money’s (anti)- reproductive potential circulate widely in Homa Bay: Husbands who wake up only to see their wives squatting in a corner of the room laying eggs, a huge snake that lives in Lake Victoria and vomits out all the money GD uses, mobile phones that can be charged under the armpit or find their way into the recipient’s bed if lost or thrown away (many people allegedly threw their phones away in order to cut the link to GD), money that replenishes automatically or a devilish cult of Norwegians that abducts Kenyan babies and transports them to Scandinavia where they are adopted into infertile marriages.

All of these rumors, which are epitomized in a phrase some recipients considered to be GD’s slogan, Idak maber, to idak matin – (‘You live well, but you live short’) – revolve around the same paradox: Money initially offered with no strings attached, but whose reproductive potential will soon demand blood sacrifice or lead to a fundamental change in one’s own reproductive capacities.

Local attempts to ‘conditionalize’ GD’s unconditional cash as well as rumors about tit-for-tat exchanges with the devil undermine GD’s assumption that their cash transfers are perceived by recipients as unconditional. This has two consequences. On the one hand, it questions the validity of studies trying to prove that the program was successful as an unconditional cash transfer program. On the other hand, it urges us to focus on the unintended consequences caused by GD’s intervention. While Western Kenyans who have given consent to participate in the intervention invested their hopes in an ongoing charitable relation with GD, those who have refused to participate – as well as some who did – have been haunted by fear and anxiety triggered by situating GD’s activities in a hidden sphere.

All this raises ethical and political questions about GD’s intervention in Homa Bay County. Did GD, an actor that is neither democratically elected nor constitutionally backed up, have the right to intervene in an area where almost 50 % of the population refused to participate? Did the program really reach the poorest members of society if accepting the offer depended on understanding the complex networks of NGOs that constitute the aid landscape? Should it not be considered problematic that a US-American NGO uses whole counties of an independent country as laboratories where they experimentally test the feasibility of unconditional cash transfers in order to assure their donors that recipients of unconditional cash ‘really’ do not spend donations on alcohol and prostitutes?

Apart from raising these and other ethical and political questions, the reactions of the inhabitants of Homa Bay County can be understood as mirrors reflecting a distorted but illuminating image of the development aid sector. Narratives about women laying eggs and satanic cults sacrificing children exemplify an awareness of the fact that, on a structural level, the development aid sector is shot through with inequalities and obscure hierarchical power relations between donating and receiving actors. At the same time, recipients’ anticipatory obedience to use the cash on ‘visible things’ unmasks a system that appears overwhelmed by the necessity to constantly evaluate projects in order to secure further funding.

By ‘conditionalizing’ cash transfers as long-term patronage relations or tit-for-tat exchanges with the devil, inhabitants of Homa Bay unmask GD’s ‘myth of unconditionality’ and thereby relocate GD into the wider development aid world in which they have never been equal partners.

Why we must ‘ungift’ development aid

‘I think it was because of Obama’, a former colleague of Samson who had administered the surveys of GD in Siaya County told me while we enjoyed a meal in a restaurant along Nairobi’s Moi Avenue after I had asked him why the rejection rates of GD’s program in Siaya had been so low. According to rumors that circulated widely during GD’s first years in Siaya, Barack Obama, whose father came from a village in Siaya County, had teamed up with Raila Odinga, an almost mythical Luo politician, in order to channel US-American funds ‘directly’ to Western Kenya, i.e. without passing through the Central Kenyan political elite who had – in 2007 as well as 2013 – ‘stolen’ the elections from Raila.

As a consequence, at least some recipients did not agree with interpretations of the cash transfers as market exchanges with shadowy actors or invitations into long-term relationships of patronage. Rather, they conceptualized the transfers as reparations originating in Obama’s attempt to recoup losses accumulated by the Luo community due to political injustices provoked by the actions of what many consider to be a corrupt Kikuyu elite. This conjuring of a primordial ethnic alliance between Obama and Western Kenyans might strike many as chimerical.

Be that as it may, we should acknowledge that the rumor of Obama’s intervention situates the cash transfers in a social relation between two equals who accept their mutual indebtedness and act accordingly by putting things straight. By reinterpreting GD as a clandestine operation invented by their political leaders, Barack Obama and Raila Odinga, inhabitants of Siaya portray themselves as belonging to a community of interdependent equals whose members are entitled to what the anthropologist James Ferguson has called their ‘rightful share’.

How would development aid look like if we dared to transfer this idea of a community whose members acknowledge their equality and mutual indebtedness to our global economic system? One way to redeem the fact that we all live in a highly connected capitalist economic system spanning the whole globe and depending on exploiting a huge portion of the global community would be to follow in the footsteps of the inhabitants of Siaya and rebrand cash transfers as reparations being paid for historical and structural injustices.

By way of conclusion, I want to suggest the idea of ‘ungifting’ development aid, i.e. to reframe it as a duty and to accept that recipients of cash transfers have the right to receive their share of the value produced by the global capitalist economic system. Consequently, cash transfers should be considered as debts repaid and not as gifts offered.

–

Names of individuals in this article have been anonymized.

This article was first published in the Review of African Political Economy.

Names of individuals in this article have been anonymized.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Will Trump Rig the 2020 Election?

By Alex Roberts Nothing has exposed neoliberalism as a hoax as intelligently and most strikingly as COVID-19 has done. (Though at the expense of millions infected and hundreds of thousands dead.) All over the world, people have come to depend almost exclusively on their national governments not only to stay safe against the deadly pandemic but also for economic survival. Against a painful history of relentless assaults on so-called “big government,” COVID-19 has grown the size of government bureaucracies and budgets in size to what was hardly imaginable only a few months ago.

This change has brought about another debate about the role of non-governmental organizations (NGOs). Nowhere is this debate about NGOs more palpable than in my home country of Tanzania, where at the time of writing the East African nation had recorded a total of 480 confirmed coronavirus cases, 18 deaths and 167 recoveries. The situation here seems to be getting out of control as more fatalities continue to be reported, exacerbated by the increasing tendency of hospitals, especially in the country’s commercial capital of Dar es Salaam, to reject patients suspected of having the coronavirus disease. Several people (see here and here) have reported having their relatives turned away by hospitals, after which some died. The government has been trying hard to underestimate the magnitude of the pandemic, including by underreporting the number of fatalities and doing night burials.

Nearly every action taken by national governments throughout the world in their efforts to contain the spread of COVID-19, and thus to save lives and communities, goes directly against the dictates of neoliberal fundamentalism. For a number of decades, advocates of this ideology would propose murderous cuts in public spending on critical sectors like health and education. In addition to the breakneck privatization of public services was the massive growth of NGOs whose missions varied widely; from those advocating for government accountability and democratic institutions to those championing girls’ rights, citizens’ agency, and countless others providing services.

This is no coincidence. The missionaries of neoliberal evangelism have been pushing for the social services provision role of governments to be replaced by NGOs and private individuals, arguing that this will ultimately improve service efficiency for governments. Perhaps there’s no stauncher proponent of that argument in Tanzania than former President Benjamin Mkapa—or at least until recently. It was under Mkapa’s administration that both privatization and NGO growth in the country took root. “Soon after assuming office, in November 1995,” said Mr Mkapa in his speech at the official launch of Tanzania National Business Council (TNBC) on April 9, 2001, quoted in “A Capitalizing City” by Dr. Chambi Chachage, “I realised the need to change the way the national economy is managed. This need was made more acute by the fact that our country was moving from a public sector led economy to a private sector driven market economy.” (Later, Mr. Mkapa would describe the privatization drive unleashed by his administration as the “worst mistake” of his presidency in his memoirs My Life, My Purpose.) In the ongoing battle against COVID-19, however, both NGOs and the private sector have been conspicuously absent on the frontlines where the war against the virus is being waged.

The role of NGOs in Tanzania has been made more interesting both by the Tanzanian government’s handling of the pandemic (which I discuss here), and NGOs’ responses (or lack thereof). So far, the responses of NGOs to the pandemic have been simply bewildering, opaque, and ambiguous. Part of this ambiguity, I think, is due to both the history of NGOs in Tanzania and the issues that they continue to remain deadly silent about. In this latter category is what seems to be an almost unanimous agreement among the NGOs, with very few exceptions, of forgoing what they claim to be their main mission, that is: to cultivate a culture of accountable governance as well as the building of strong democratic institutions in the country. This abandonment is disappointing and surprising at the same time, because during a crisis like the one we are in now, one would have expected that the NGOs, far from pretending as if they no longer exist, would double, or even triple, their efforts to force those in power to act more responsibly and deliver to their constituents.

But from the way things appear on the ground, it is as if the coronavirus disease has forced the NGOs to take some time off their work and give the government, whose handling of the pandemic has made Tanzania the laughing stock of the world, a free reign to act as it wishes. One area of concern is the way the government has entirely left people to fend for themselves amidst the crisis. In fact, instead of helping its people, the government’s asking the people to donate to it! The fact that no NGOs have so far called the government out means that the people have not just been abandoned by their government, but also by the organizations that claim to work on their behalf.

The NGOs have failed to condemn President John Magufuli’s statements and actions that threaten to put the lives of thousands at risk. These statements include the recent one he made during a televised address from his hometown of Chato, in the Geita region of northwestern Tanzania where the president has been “self-isolating” since the pandemic started. There he urged Tanzanians to consider inhaling steam from a boiling pot of water as a means to cure coronavirus, a suggestion medical doctors have nevertheless advised against. During the rare address, President Magufuli also dismissed the exercise to disinfect public spaces as “nonsense.” Earlier, President Magufuli took to Twitter to declare three days of national prayers “to help defeat coronavirus,” and his government even organized a national prayer to save Tanzania from the pandemic. All this had Matshidiso Moeti, WHO Regional Director for Africa, concerned, according to journalist Geoffrey York who reported via Twitter. In another address, where Mr. Magufuli accused Tanzania’s lab technicians of conspiring with “imperialists” to sabotage the country by increasing the number of positive cases, something which led to the sacking of the national community health laboratory director Dr. Nyambura Moremi, the President said that his government would dispatch a plane to fetch the herbal treatment for the coronavirus touted by the president of Madagascar despite a warning from the WHO that a herbal tonic cannot cure the disease. (One observer of Tanzanian politics described the address as “totally reckless” and even called on people to boycott Magufuli’s subsequent addresses on the coronavirus pandemic lest they go bonkers.) Dangerous and irresponsible as these statements and measures seem, not a single NGO that works in the area of public health—and there is no shortage of them—uttered any public criticism of Magufuli.

Nor are the democratic-championing NGOs concerned by the government’s resolve to centralize the flow of information on coronavirus. No NGO, for example, has come out against the Tanzania Communications Regulatory Authority’s (TCRA) directive to members of WhatsApp groups to screenshot “fake information” posted in these groups and report it to authorities. No NGO seems bothered by the Tanzania Police Force’s irresponsible act to storm and interrupt a press conference by the main opposition party CHADEMA intended to give Tanzanians an alternative appraisal of the coronavirus situation from that given by the government. (The party was subsequently able to organize a press conference where its national chairperson Freeman Mbowe outlined twelve issues that he thought were fundamental in the fight against the pandemic.) The same silence on the part of the NGOs was noticeable after a cabinet minister suggested that people should consider using honey when responding to a spike in the price of sugar. (Following a backlash, however, the government later announced a cap on sugar prices.)

While everybody was busy examining their role in combating the coronavirus in the country, some of Tanzania’s “top-notch” NGOs were spotted presenting the government with a 79 million Tanzanian shillings check (about US$34,000) to help fight the virus. The NGOs did that while little or nothing at all was known in the general public of the government’s strategy or even how the money will be used.

I find the move disturbingly ironic, however, given the fact that this money was originally supposed to come directly from the donors to the government coffers but the “development partners” gave them to the NGOs because, as shown above, they are thought to be best placed to deal with social problems. It is also mind-boggling to find the NGOs donating to the government amidst a funding crisis that has hit NGOs across the continent. If the NGOs themselves are convinced that the Tanzanian government can deal with the COVID-19 crisis far better than they can to the extent of giving it money, what does it say of their ideological justification to exist? To their credit, since then a coalition of Tanzania’s NGOs released a position paper and “strategic areas” on COVID-19. In the paper, the NGOs confess to have been caught “unprepared” by the pandemic, something that hampered their ability to respond “promptly.”

A close friend of mine, who works in Tanzania’s NGO sector, thought it was a bad idea for me to go ahead with this piece, saying it was unfair to criticize the NGOs given the fact that I understand the political environment within which the organizations operate and the repression unleashed on them by the state. For a moment I thought this friend of mine was right because it’s true that they work in a tough environment. But then I thought: wasn’t this very attitude on the part of the NGOs to allow themselves to be pushed around by the government responsible for their own miseries, and ultimately, their failure to do what they were founded on?

This led me to revisit 2007, when acclaimed legal and development scholar Professor Issa Shivji published a book, Silences in the NGO Discourse, which served as advice on how Tanzania’s NGOs can remain accountable. He wrote then that if the NGOs are to live up to their missions, which include ensuring democratic reforms in the country, then their entire strategy of engagement with the state would have to change radically. For example, in place of stakeholder conferences, there should be protracted public debates, wrote Shivji. Where previously the NGOs used to dialogue with the state “in five-star hotels,” now there should be demonstrations, protest marches and teach-ins in streets and community centers to expose serious abuses of power and bad policies. “Democratic governance would be an arena where power is contested, not some moral dialogue or crusade for good against evil, as the meaningless term ‘good governance’ implies … You cannot dialogue with power,” the renowned author writes poignantly.

In the wake of the ongoing debate on the role and relevance of NGOs amidst a global pandemic, and the government’s ambiguous response, it appears that more than ten years since Shivji’s book, the country’s NGOs have not been able—or willing—to learn a lesson. Nor, telling from the way they behave amidst the current crisis, is there any indication that they will do so in the near future. This post is from a new partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Will Trump Rig the 2020 Election?

By Alex Roberts

2010 – 2020: Ten years of constitutional resilience

Most of the commentary about the first ten years of the Constitution of Kenya 2010 have largely revealed a constitution under siege. The assault on the constitution has intensified in the last eight years during Uhuru Kenyatta’s presidency. This is not surprising since it is an open secret that Uhuru has little regard for the constitution, for the rule of law and for constitutionalism.

Worse, in the last few years, formal organised opposition – a significant guard rail of the constitution – crumbled. With the rapport between Uhuru and Raila Odinga through the so-called handshake, the opposition, a significant buffer that previously gave Uhuru’s government a bit of pause on assaulting the constitution, was eliminated. It is therefore not surprising that Uhuru and Raila are making a concerted effort to amend the constitution largely to suit their personal and political interests.

There is no doubt that the constitution has performed sub-optimally in the last ten years, especially because of the antagonism from state officers and agencies. Still, it is remarkable that it has survived the first ten years of its birth, despite the consistent and sustained assault on it by Uhuru’s regime.

But how much longer can the constitution endure the intentional, well-orchestrated and nefarious scheme to kill it? Will the constitution last long enough to see the passing of another decade? Even if it does, what state of ruin will it be in? Are there obvious things that will accelerate its death or strengthen its resilience?

Why constitutions die

Professors Zachary Elkins, Tom Ginsburg and James Melton, who have conducted empirical studies on the endurance of constitutions, identify the key factors that help predict how long a constitution will last. However presented, the factors boil down to two things: the design of the constitution and the environment under which the constitution operates.

There are different ways to expand on each of these factors, but first a critical statistic on the average age a constitution. In their analysis of national constitutions enacted since 1789, Elkins, Ginsburg, and Melton found that national constitutions only lasted an average of seventeen years. Yes, 17. This is a depressing fact, especially when one looks at how much effort and time goes into bringing about a new constitution. For example, the 2010 Kenyan constitution was the result of more than thirty years of active and persistent citizen and civil society agitation. And this is not appreciating that even the initial constitutional tensions immediately after independence were the first signs of the need to bring about a home-grown and more responsive people-centred constitution.

Operating environment and design of the 2010 constitution

No doubt, the ruling class has poisoned the environment in which the 2010 constitution has operated since its promulgation. It started with President Mwai Kibaki who tried to subvert it by usurping the powers of constitutional agencies through the illegal nominations of the Chief Justice and the Director of Public Prosecutions. The courts had to step in to restrain him. Many times, he violated the transitional provisions of the constitution by failing to follow the procedures that required him to consult with the Prime Minister before making significant decisions affecting the state. Worse, and despite working under a constitution that stipulated national values of leadership to include inclusion, Kibaki continued to perpetuate nepotism and tribalism in the manner in which he chose high-level public officers.

But while Kibaki was bad at priming the environment under which the constitution operated, his successor, Uhuru, has been worse. Although Kibaki regularly flouted the constitution, he was often quick to walk back whenever he was called out on his transgressions – in a sense confirming that the constitution was the ultimate decider. Unfortunately, this has not been the case with Uhuru, who obstinately disregards the constitution, consistently ignores court orders and actively encourages other public officers to do the same. Worse, he has perfected many of the vices that the constitution intended to eliminate – centralisation of power; rule by law; unmeritorious and unprocedural appointments; corruption; fanning nepotism and tribalism; undermining decentralisation, name it. His has deliberately and fully contaminated the environment under which the 2010 constitution has operated for the last eight years.

Perhaps what has helped sustain the constitution is its design. No doubt, the 2010 Constitution was designed with the full awareness that the political elite will attempt to undermine it. A few illustrative design issues will make the point much better. These include the provisions on defending the constitution, including empowering any citizen to go to court and to petition other institutions, such as Parliament, to enforce it; and strong separation of power provisions, including setting up an independent Judiciary which can invalidate anything that is done by anyone outside the law. Other provisions include the creation of independent offices and commissions that are intended to be the front line enforcers of the constitution. Finally, and perhaps the most critical design aspect on the endurance of the constitution, is its provisions on amendments, which are complex, onerous and mostly impossible without critical national consensus.

Saving the constitution from premature death

If one was to obsess about the seventeen years statistic on the average life span of constitutions, it would suggest that the 2010 constitution is already past its mid age, with a great likelihood it will die before its 20th anniversary. However, the short life of national constitutions begs a much more important and forward-looking question – what could help save the 2010 constitution from possible early death?

I identify three things that need to be put into place if we are to save the constitution from premature death, and especially if we wish to see the constitution survive the next decade unscathed. Even if the constitution is amended, how can we ensure that the amendments will benefit Kenyans and not the political elites? Three things need to happen: (i) rebuilding confidence in the constitution; (ii) finding critical formal actors that believe in and can defend the constitution; and (iii) an implementation that delivers tangible constitutional goods to citizens.

Rebuilding confidence in the constitution

Perhaps the greatest threat to the constitution is the waning sense of confidence in it. There are fears that the constitution is taking too long to find stability. But we should have foreseen and prepared for this.

Kenya’s political life has been built on a scaffolding of simplistic narratives of messianic moments. It started with the struggle for independence, with a narrative that the coming of independence would obliterate Kenyans’ political and economic misery. Then there was the expectation that a change of guard from Jomo Kenyatta to Daniel arap Moi would be a turnaround opportunity for the country – and for a moment, Moi seemed to have fed that hope, especially by releasing political prisoners and developing a high-sounding but essentially hollow “Nyayo philosophy” of peace, love and unity. All this soon buckled under the weight of the lie for which the simplistic and feel-good “philosophy” was constructed. The next messianic moment was in 1991 with the deletion of Section 2A from the 1969 Constitution which prohibited multipartyism. However, with the opposition politicians endlessly feuding, that messianic moment was also quickly lost.

Then in 2002 the country seemed to pin all its hopes for rejuvenation in the seemingly nationalistic alliance led by Mwai Kibaki. But Kibaki quickly killed the budding sense of nationalism as soon as he took over as president by denigrating the role that Raila Odinga and other key political actors were to play in the government. This disillusionment would – in less than five years – bring a people, who had been regarded as the most optimistic in the world in 2003, on the verge of civil war because of ethnicised political contestations.

But even the devastating events of the post-election violence of 2007/2008 were not sufficient to dissuade Kenyans from believing that there was still a chance for a magic wand moment. So, when the 2010 constitution was promulgated, many believed that this was the tool that would, with speed, transform Kenya politically and economically. The 2010 constitution was the ultimate political-legal messiah.

In many ways, placing overbearing hopes on the new constitution was not overly irrational. When fully implemented, this constitution has the potential to transform Kenya into an egalitarian society that places human dignity and social transformation for all at the centre. Devolution, even with all its infirmities in design and implementation, offers snippets of evidence of this. But because of the constitution’s social transformation potential, the political and economic elites, who thrive on an environment of lawlessness, have invested their last penny to undermine it.

Worse, those hell-bent on immobilising the constitution have done so by conjuring up and feeding a narrative that it is an idealistic and unrealistic charter. Because they wield power, they have used their vantage points to counter most of the salutary aspects of the constitution. Uhuru Kenyatta’s consistent and contemptuous refusal to follow basic requirements of the constitution in executing the duties of his office, including his endless defiance of court orders, stands out as the most apt example here.

Yet all this is calculated to create cynicism among Kenyans about the potency of the constitution. Hoping that the cynicism will erode whatever goodwill Kenyans have towards the constitution, the elites believe that they can fully manipulate or eliminate the constiution entirely and replace it with laws that easily facilitate and legitimise their personal interests, as did Jomo Kenyatta and Moi.

Still, this constitution is unique because of the participatory manner through which it was developed and the fact that it is a consensus document for the people and not – as was with all past constitutions – a pact between the political and economic elites. The people’s goodwill towards it still seems inordinately firm.

Regardless, to give the constitution more authority, it is important to eliminate the growing sense of cynicism towards it and regenerate confidence amongst Kenyans about its the potential as a social transformation charter. A significant part of that regeneration must come from recruiting new critical formal actors who believe in and are committed to the implementation of the 2010 constitution. Recruiting formal supporters of the constitution

The 2010 Constitution of Kenya survived the last ten years largely because of the Judiciary, some Chapter 15 Commissions and independent offices (especially the now defunct Commission for the Implementation of the Constitution), the Office of the Auditor General, the Kenya National Commission on Human Rights, and the first Salaries and Remuneration Commission (SRC). It has also survived because of a few vigilant citizens – leading among them being Okiya Omtatah Okoiti. Equally, there have been numerous civil society organisations that have sustained citizens’ mobilisation for the support of the constitution and relentlessly pushed for its implementation.

Ironically, two of the primary state organs created by the constitution – that is the Executive and Parliament – have posed the greatest threat to the constitution. Worse, Uhuru has been on a nefarious campaign to weaken even the key formal institutions that have been pro-constitution – especially the Judiciary and Chapter 15 commissions and independent offices. Presently, he has found a way to fully capture Chapter 15 institutions through a warped process of hiring commissioners and heads of independent offices to capture those institutions, thus isolating the Judiciary as the only state agency that is largely committed to constitutionalism.

But it is too much (and quite unfair) to expect the Judiciary to be the only state agency that shoulders the burden of trying to keep the constitution alive. Kenyans must find ways to generate sustained support for the constitution from other state officers and agencies.

If the constitution has a chance of surviving the next ten years, it must have additional state agencies who unequivocally believe and support it. The starting point must be the Executive. There is no doubt that if the next president (post-2022) is not a strong defender of constitutionalism, the 2010 constitution will likely irretrievably wither. Even if the document survives, we will not only have the situation that Prof. Okoth Ogendo aptly described as “constitution without constitutionalism”, we will be left with just a shell – a constitution without any pulse.

Why is the president so critical? Although the 2010 constitution dispersed power as much as possible, it still gave the resident a significant responsibility. Article 131 states that the president is the symbol of national unity. This requires him or her to be the first at respecting, upholding and safeguarding the constitution and the rule of law, as well as promoting and enhancing the unity of the nation. Hence, while there are many checks on the powers of the president, in practice he still wields significant legal, political and symbolic influence on all aspects of governance. If the next president leads at disrespecting or showing utter contempt for the constitution – as has been the case with Uhuru – the chances that the constitution will survive will be negligible.

Following the promulgation of the constitution in 2010, Parliament showed mixed results on its conviction on constitutionalism. But for all its faults, the 10th Parliament did a lot to help set up the infrastructure that the constitution needed for its implementation. This included laws and approval of persons to critical offices – including the Chief Justice and Chapter 15 commissioners who strongly believed in the rule of law. The then Speaker of Parliament, Kenneth Marende, also helped greatly to give Parliament some institutional integrity.

Regrettably, that cannot be said of the two current speakers of Parliament or the parliamentarians of the 12th Parliament. In fact, in 12th Parliament we have seen an institution that is so keen to supplicate at the feet of the president that it has fully eroded the enormous institutional power the constitution gives it and has fully compromised on its role as a check on the Executive.

Hence, for the constitution, what will be worse than a president who does not believe in constitutionalism will be the continuation of the unholy alliance between Parliament and the Executive. Yet, if Parliament was to fully appreciate its power of fostering the entrenchment of constitutionalism and its primary role of being the critical check on the Executive, the 2010 constitution would not only have a chance at survival, but would also likely deliver the tangible transformation it intends.

In a nutshell, it is unlikely that the Judiciary alone will be able to save the constitution in the next decade. In fact, it is unlikely that left as the lone ranger that fights for the constitution, the Judiciary itself will survive or manage to maintain any modicum of professionalism and independence. All this is to say that 2022 is a critical year for the 2010 constitution. A great deal of its survival largely depends on the persons who becomes president and who are the speakers in Parliament.

Implementation of the constitution must yield tangible goods

This takes me back to constitutional cynicism. Having executive and parliamentary leadership that believes in the 2010 constitution and constitutionalism will be key – but citizens’ patience of trying to relate a constitution to their economic and social welfare is running thin. This is not because people have no ability to do so since, even with all its infirmities, they have been able to see how the patchwork implementation of devolution has brought about tangible transformation.

This is sad for at least a couple of reasons. First, the national government has been undermining devolution either directly or indirectly by undermining county leadership, by failing to devolve sufficient funds or by undermining county functions through function-hogging or recentralisation.

Second, the leadership has also undermined the most critical pillar of the 2010 constitution, which is on social and economic transformation. There are few constitutions in the world that have detailed what the state must do in order to bring about equitable social transformation as does Kenya’s constitution. Yet, the government has refused or failed to follow through on the roadmap provided by the constitution, opting instead on ad hoc, politically inspired, unsustainable and mostly badly thought-out and short-lived programmes designed to benefit only a few.

The operating environment that will save the constitution

And it is back to where we started – constitutional design and the operating environment as the two overarching factors that dictate the survival of a constitution. For the last ten years, the constitution has operated under a toxic environment – with most of the toxicity coming from the Executive. Parliament (especially the 11th and 12th) surrendered most of its authority to the Executive and hence failed miserably at defending the constitution. The complete capture of all the independent offices and commissions by the Executive has mostly left the Judiciary as the sole state institution struggling, albeit now in a wobbly way, to defend the constitution.

Constitutional design contributed greatly to the survival of the 2010 constitution in the last ten years. But design alone will not save it for the next ten years. Whether it dies or not will now largely depend on whether our next heads of the Executive and Legislature are believers of constitutionalism and whether they are keen to provide the constitution with the enabling environment that the people intended for it to thrive. Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Will Trump Rig the 2020 Election?

By Alex Roberts

On 8 June 2020, the head of the Judiciary in Kenya, Chief Justice David Maraga, publicly accused the Executive and President Uhuru Kenyatta of grave constitutional violations, including disregarding court orders, failing to approve the appointment of new judges, and generally acting in a manner likely to suggest that the president’s agenda was to diminish the stature of the Judiciary.

In mid-2019 the Judicial Service Commission (JSC) recommended 41 individuals to be appointed a judges to the president. The JSC is an independent constitutional commission that was created to ensure the independence and accountability of the Judiciary, to oversee judicial appointments, as well as to receive and investigate complaints against judges. The JSC was set up in response to a long history of the Executive’s dominance over the Judiciary.

To date, none of the 41 recommended individuals has been appointed. The Executive cites integrity questions as regards some of them, as well as sitting judges, saying that he is not a mere rubber stamp for the JSC. The Judiciary, on its part, maintains that under the 2010 Constitution of Kenya, the president has no power to refuse names recommended to him by the JSC, that the Executive is attempting to claw back powers taken away from it by the constitution, and that the delay in effecting the appointments is one of several measures the Executive has undertaken to undermine the Judiciary’s efficacy.

Legal commentators have pointed to the centrality of the Supreme Court in resolving election disputes and discerned intent by the Executive to fill the Judiciary with appointments that are more in line with its point of view. The Executive has defended its position by pointing the finger back saying that the Judiciary is the author of its own misfortunes, often citing a historical legacy of case backlogs, on the one hand, and delays in prosecution of corruption cases brought by the Executive, on the other.

Why is this happening now?

In a potent and unprecedented display of judicial independence and might, the Supreme Court of Kenya famously annulled the 2017 presidential election and ordered a re-run. The incumbent’s laudable acceptance of the judgement was nonetheless beset with ominous overtones directed at the Judiciary to the effect that there would come a time of reckoning. Subsequent behaviour and public statements by the Executive indicate a perception on its part that the Judiciary is a hotbed of activists rather than neutral arbiters. Furthermore the Executive has accused the Judiciary of being a hindrance to its efforts in fighting corruption, a matter this author has previously discussed.

Efforts by Kenya’s Executive to undermine the Judiciary point to a regime that is intent on concentrating decision-making power within itself. Part of the reason why the Judiciary is under pressure is because Parliament is not playing its constitutionally-mandated role in checking the Executive’s power.

Public spats between the two branches of government are surprising given the existence of formal mechanisms of communication. The National Commission on the Administration of Justice (NCAJ) is a high level co-ordination mechanism established by statute whose members include the Chief Justice, the Attorney General and the Director of Public Prosecution. That these parties have often chosen to ventilate their differences through the mass media is indicative of a communications breakdown.

Furthermore, as a result of the political détente between Uhuru Kenyatta and his main rival-turned- collaborator, Raila Odinga (popularly known as “the handshake”), there does not currently exist an effective opposition in Kenyan democracy. As a result, it would appear that the Judiciary is the last remaining institution capable of standing up to the Executive, keeping it honest and maintaining checks and balances. However, the Judiciary is not adept at playing political games. It communicates mainly through judgments which are long, complex and take a long time to emerge. As such, it is likely to suffer in any public conflict with the Executive, which has a well-oiled public relations machine adept at swaying public opinion.

Public spats between the two branches of government are surprising given the existence of formal mechanisms of communication…That these parties have often chosen to ventilate their differences through the mass media is indicative of a communications breakdown.

Surprisingly enough, a factor behind the current impasse could be that elections in Kenya, and indeed in Africa, have not consistently been free and fair. It has been argued that in order for a sitting regime to encourage judicial independence, two things need to happen. First, the regime needs to believe that elections will be held regularly. This happens in Kenya. Secondly, the incumbent regime needs to believe that it could be defeated in a subsequent election. Such a mentality is likely to exist if elections are ordinarily free and fair and widely regarded as such. Since the primary responsibility of ensuring this falls upon the Independent Electoral and Boundaries Commission (IEBC), which has been found wanting in the past, not only is the Judiciary bearing the burden of a weak Parliament, it is also bearing the brunt of a weak electoral body.

Why is this concerning?

The current situation has a variety of potential consequences, none of which are particularly appealing. It negatively impacts the performance of the Judiciary. If judges are not appointed and sufficient finances are not availed, this exacerbates the existing case backlog and undermines the existing process of institutional reform within the Judiciary. If court orders are not obeyed, this undermines pubic confidence not only in the Judiciary but in the institutional framework established by the constitution. If the political class is encouraged to ventilate grievances outside of the constitution, this is likely to lead to civil strife, particularly come election time.

The Executive will find its war on corruption more difficult since judicial independence is an essential tool to keep bureaucrats and politicians in line, particularly when to do so overtly would be politically costly or even just expensive in terms of expenditure of manpower and finances required for oversight.

The Law Society of Kenya (LSK) was and remains a key actor in establishing the rule of law in Kenya. Political wars could split the LSK, resulting in a division of the bar along political lines. In the latest campaign, Nelson Havi cast himself as the anti-establishment candidate and defeated his main rivals, Maria Mbeneka and Charles Kanjama. The period preceding the election resembled a political campaign, with large sums spent on slick PR campaigns by candidates who represented opposing sides of the political divide. A live debate among the candidates was held on national media prior to the vote. A divided bar would undermine a key player in the struggle for democracy and accountability in Kenya.

The way forward

There is nothing particularly surprising about the current tension between the Judiciary and the Executive. Indeed, it might be argued that such tensions from time to time are healthy and that without them the Judiciary would not be doing its job.

When politicians criticise the Judiciary, they often demonstrate a lack of knowledge of the law. Indeed, rarely will a politician even bother to state the section of the law that they allege the Judiciary to have violated. Furthermore, there is always the tacit implication that the rule of law should be subordinate to the objectives of the Executive branch. This perspective returns Kenya to colonial times when the Judiciary existed to serve the purposes of the Executive. It was treated as an arm of the civil service. This view was further cemented during the Jomo Kenyatta and Daniel arap Moi regimes prior to the promulgation of the Constitution in 2010. The Executive would do well to realise that the Judiciary does not exist to offer services to it. It exists to pass judgements in accordance with the law.

Generally speaking, the Judiciary enforces individual rights, while Parliament exists to provide negotiated solutions to social issues. In enforcing individual rights, the question arises “against whom?” As Kenya is finding out, individual rights need to be enforced not only against other individuals but frequently against the government itself. In early May 2020, for instance, the government evicted more than 7,000 people from the Kariobangi informal settlement in Nairobi after giving a two-day notice and notwithstanding the existence of a court order barring the eviction pending the hearing of a case brought by a local civic group. The interim court order was not an unintended consequence of the system; it is a feature that was very deliberately designed to be part of it.

The Judiciary can help the Executive achieve its aims, particularly where these are difficult to obtain politically. A good example is the war on corruption. The alliance, however, needs to be one borne of separation of powers. Increased authoritarianism by the Executive will not help and neither will judicial activism.

It must be said, however, that the Executive, in making claims of judicial activism, has not satisfactorily demonstrated whether and how the Judiciary has failed to enforce or has gone against the letter and spirit of the constitution or whether the constitution perhaps needs to be amended.

Parliament, the IEBC and the BBI

Part of the reason why the Judiciary is under pressure is because Parliament is not playing its role in checking Executive power. Whereas courts may be better at enforcing individual rights, legislatures are better at negotiating conflicting values. If the court renders something unconstitutional, there is then a burden on Parliament to see whether that thing is in the public interest and requires legislative change or not.

Upon the successful conduct of free and fair elections (a duty given to the IEBC), it is Parliament that bears the primary responsibility of representing the people of Kenya. However, parliamentarians of both houses are disinclined to be overly concerned with their constituents simply because they owe their positions to state largesse dispensed during lavish campaigns. The problem begins before the election though, at the stage of political party primaries, which resemble a process of nomination rather than election and are characterised by widespread irregularities, candidate intimidation and outright bribery.

Thus, from the very beginning, parliamentarians are ill-equipped to play a representative role. A large proportion of Kenya thus feels marginalised at the national level. This is exacerbated by the incumbent’s legitimacy issues arising from the conduct of the last election. This gap in representation is real and is what the Building Bridges Initiative (BBI) seeks to fill.

Why does the BBI exist? Primarily as a response to the crisis of legitimacy that President Uhuru Kenyatta suffered subsequent to the last general election, its nullification and the opposition boycott of the re-run. In its Introduction, the BBI report states that Kenyans are weary (and presumably also scared) of divisive politics, and of tense and violent elections that produce a winner who is unacceptable to a large portion of voters.

Returning to Parliament: the constitution may have been reformed. However, the current statutory (as opposed to constitutional) regime that we inherited not only from the past regime but going back all the way to the colonial regime remains largely intact. The colonial legal regime was meant to exercise a high degree of control over the governed. It granted a large degree of discretion to administrators, such as chiefs, that the Judiciary could not touch. Upon independence, successive regimes found such a legal order convenient to their purposes and have sought to retain it. Therefore, there remains a large legislative agenda incumbent upon Parliament to bring Kenyan laws in line with a constitution that returns power back to the people. As may be observed, the more authoritarian a regime is, the more it will seek to establish a compliant Parliament that ignores this responsibility.

Parliament has been ceding key functions to the Executive. Importantly, the critical role of budget- making has increasingly been abdicated to the Executive. It may be expected that without oversight, the Executive would tend towards greater and greater spending. Indeed, what has been witnessed is a huge and growing public debt, inflated and unrealistic revenue collection targets, and consequent pressure on the Kenya Revenue Authority to be as aggressive as possible in raising revenue.

If Parliament abdicates its role in checking the Executive, and leaves this role entirely to the Judiciary, it sets the stage for excessive judicial intervention and renders the Judiciary more prone to attacks of overreaching. This has happened elsewhere. Following the Brexit vote in the United Kingdom, the High Court ruled that the power to begin the process of exiting the European Union lay with Parliament and not the Prime Minister. Tabloid newspapers, inevitably pro-Brexit, saw this as a delaying tactic and labelled three judges as enemies of the public. This undermines constitutionalism as a whole.

Parliament needs to play a bigger role in evaluating the constitutionality of legislation, particularly where this legislation is of great political impact or when there is a conflict between the Judiciary and the Executive. Parliament has a large budget (some say too large) and it seems fair that some of this money be directed towards the kind of research and technical expertise it would take to explore these questions more fully.

The implications of a weak Parliament go well beyond putting pressure on the Judiciary; they undermine democracy as a whole.

The politics of patronage as a whole, of which both the ruling party and the opposition are guilty, means that areas vote as a bloc and remain resolutely divided between the opposition and the government, almost always on tribal lines. The politics of patronage entrenches ethnic divisions, discourages independent thinking and prevents powerful leaders from being challenged in their own backyards by their own supporters.

Conclusion

The 27th of August 2020 marks ten years since the promulgation of the 2010 constitution. Now is an appropriate time to reflect on whether the Executive has honoured its constitutional mandate in its relationship with the Judiciary. The foregoing discussion shows that the current tension is to be expected, given Kenya’s past and the powers and duties imposed upon the Judiciary by the constitution. Moreover, there are constitutional means of addressing the conflict that have not been used so far. Again, this is to be expected, given that the constitutional regime is relatively young and its strictures and institutions are yet to come naturally to a political class that often equates faithfulness to the constitution with an attack on its freedom to act.

It is clear that there is a consistent attack by the Executive upon the Judiciary through a variety of means, including the targeting of individual judges for recrimination, the withholding of funds, the failure to abide by the decisions of the Judicial Service Commission, and the disregarding of court orders. This is extremely concerning when seen in light of the fact that in two years, the country will hold a general election. The attacks are likely to result in a chilling effect upon the resolve of the Judiciary to hold the Executive accountable to free and fair elections.

The undermining of public confidence in the Judiciary is likely to result in a public less likely to side with it in a public relations battle rigged in favour of the Executive. Time and again, this country has witnessed that the alternative to judicial arbitration of electoral disputes is violence. If President Uhuru Kenyatta considers peace in Kenya a priority, his administration must obey the constitution and foster judicial independence.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Will Trump Rig the 2020 Election?

By Alex Roberts In the last few weeks, the country has witnessed a roller coaster drama on revenue allocation in the senate. There has been shouting, singing, threats of prosecution for alleged default on taxes, pushing and shoving for the microphone, dramatic gesturing from the rostrum, and arrests. At the centre of it all has been Speaker Kenneth Lusaka who, with each passing moment, looks more clueless and unable to offer leadership.

There have also been the unintended outcomes—one of which is high-level constitutional education on revenue sharing and how the senate works. I will return to this shortly.

A strong and resilient constitution

But perhaps what has been lost in the revenue formula hullabaloo is how the moment has proved that we have a solid and resilient constitution—and no, that is not sarcasm. Let me elaborate.

Good democratic constitutions provide strong checks and balances. Effective checks and balances ensure that power is dispersed and not concentrated either in an individual or in one institution. Unlike the current constitution, the 1969 Constitution centralised power around the president. Essentially the president had significant control on parliament. He appointed ministers from among members of parliament and hence most MPs were overly loyal to the president to bolster their chances of being elevated to ministerial jobs. Additionally, the president had significant say on who constituted the leadership of parliament, including the speaker, leader of government business, heads of departmental committees—name it. The president also had immense powers in resource allocation, directly but also through his ministers. Hence, it was not unusual for the constituencies of those MPs who were perceived to be opposed to the president to be starved of resources and maendeleo.

Because bad habits take long to erase, in practice—and especially for Uhuru Kenyatta—there is still some obsession with the imperial presidency. This explains why Uhuru used intimidation, de- whipping and the political party disciplinary infrastructure—and other nefarious tactics—to keep a tight leash on MPs. However, unlike the former constitution, the law does not support his obsession with an imperial presidency hence the constant pushback and legitimacy challenges he has faced even from within his party. The current wrangles in the senate on the revenue allocation formula are a classic example of how the constitution is designed to respond in order to protect itself and an institution (in this case the senate) that constitutionally should be largely autonomous.

In many ways the tensions are therefore a hallmark of a good constitution. But first, some basic information on revenue allocation.

The revenue allocation process

The constitution provides the senate with the power to provide a regulatory framework on most of the issues that affect the counties. Determination of the level of funding allocated to a county is perhaps one of the more critical roles of the senate.

In this regard, there are at least three ways in which the senate gets to determine the money to be allocated to counties. The first involves a process it jointly conducts with the National Assembly during the division of revenue process. This is when Parliament (national Assembly and Senate) determines how much money should be allocated to the national government and the county governments. The second follows very closely after the division of revenue; it is a process that is exclusive to the senate and is achieved every year through the Counties Allocation of Revenue Act. Here the senate determines the allocation to go to each county during the financial year from the amount allocated to the counties through the division of revenue.

However, not much happens during the annual counties’ allocation of revenue process, because most of what is decided is already regulated by an allocation formula determined every five years. Essentially, the annual counties allocation of revenue process by the senate involves basic application of the pre-determined formula on the amount of money allocated during the division of revenue process, which varies each year because the division of revenue is anchored in the shareable amount available based on the last audited accounts of revenue received by the national government.

What is high-stakes then is the fixing of the formula every fifth year and that is the moment in which we now find ourselves. But beneath all the drama, there are great and complex workings of the constitution.

The constitution on overdrive

While the role of the senate in deciding on the formula is political, the constitution had the foresight to temper it with significant technical and expert input. The Commission on Revenue Allocation (CRA) is required to professionally determine the relevant factors and develop the technical criteria that should guide the development of the formula and make recommendations to the senate. While the CRA’s recommendation is not binding on the senate, on a comparable issue, the court has determined that if parliament was to deviate significantly from the criteria developed by CRA, it must have good reasons for doing so.

In the run-up to this revenue allocation formula vote, there was a stark political alignment emerging in parliament anchored on the politics of the handshake and the Building Bridges Initiative (BBI). On one side were MPs who supported Uhuru Kenyatta and Raila Odinga and on the other those perceived to be loyal to Deputy President William Ruto. Punishment had already been meted out on perceived renegades who went against Uhuru’s and Raila’s wishes, with Kipchumba Murkomen, Susan Kihika and Kithure Kindiki losing their prime positions in the senate. Those considered to be the president and Raila’s yes men and women were the beneficiaries—among them, the colourless Samuel Poghisio and the self-irritable Murang’a Senator Irungu Kang’ata. In many ways, one would have thought that the line was drawn on marble—that Garissa Senator Yussuf Haji, who heads the BBI, would always vote according to the president wishes and that my home senator, Susan Kihika, would oppose what was favoured by Uhuru and Raila.

Then the first round of voting took place.

Many senators perceived to be Deputy President Ruto’s allies voted in support of the one-man-one- shilling formula and Yusuf Haji and the Isiolo Senator Fatuma Dulo, who is also deputy majority leader in the senate, voted against. There were outliers. Among them, Mutula Kilonzo (Makueni), Kipchumba Murkomen (Elgeyo Marakwet), Johnson Sakaja (Nairobi) and Kabaka Mutinda (Machakos).

This tells us a story about the intricacies and complexities of our constitution—about the true and practical restraints on power that the constitution has established to guard against the possibility of run-away authoritarianism. The constitution gives parliament significant power—although with the current parliament that is not always readily discernible. MPs now control how government resources are allocated, including how much to allocate to the presidency or the president’s favoured projects. Through vetting, they can decide who the president does not hire as cabinet or principal secretary. And the ultimate fate of the president largely lies with parliament based on its power to impeach. If and when MPs fully appreciate the extent of their powers they will be the best and most effective check on the president and his incorrigible executive.

However, their exercise of this enormous constitutional power does not go unchecked. One of the critical checks are the people. This is perhaps part of what explains the seemingly crazy voting matrix on the revenue allocation formula. MPs have their voters to answer to, and I guess they are aware that, on devolution and resource allocation, voters are extra-attentive. Critically, not only does the constitution give the voters the traditional tool of the general election to kick out those representatives they are unhappy with, it also gives them a tool of recall which they can use midway through an MP’s term to remove him or her from office.

Moreover, the constitution has also created space for idealists by providing that leadership should be value-based and enumerating some of those values to include nationalism and protection of the marginalised. Hence, while one may have thought that all senators would be waiting for the signal from Uhuru, Raila and Ruto on which way to vote, the constitutional labyrinth of accountability made the decision for most of them much more complex than just the sighting of a signal.

Arrests and delegation

The constitutional design on checks and balances also overcame even the nefarious scheme of abduction and arrests as the ultimate tactic to keep away some of the senators from the vote.

An indispensable tool of an imperial presidency is the control of the instruments of state violence. In Kenya, at the peak of the instruments of violence sits the police. Because the division on votes was so tight, it meant that if just three of the senators who are opposed to the handshake revenue allocation formula were prevented from voting, then Uhuru and Raila’s formula would triumph. The last card was played. The police stepped in and arrested three senators on the eve or the morning of the symbolic vote: Senator Cleophas Malala of Kakamega, Senator Christopher Langat of Bomet and Senator Steve Lelegwe of Samburu.

But the constitution had anticipated such simple authoritarian tricks would be attempted in order to subvert it.

Voting in the senate is a complex affair. The senate has 67 members of which 47 are directly elected and 20 are elected through party lists. Because those elected through party lists are more likely to be loyalists of the party leadership and much more politically vulnerable, the constitution anticipated that they could unfairly skew voting on critical matters that required equality of the vote between counties.

Theoretically, it is possible that all the 20 party-list senators could be from the same region—which means that if there is voting in the senate on an issue that affects all counties, then the region from which most party-list senators come would be significantly advantaged if all senators (elected and party-list) were allowed to vote. To remove the possibility of this unfair outcome, on some matters (those affecting counties) the constitution requires that voting at the senate be through a delegation—meaning that every county gets one vote and if there is more than one senator from a county (elected plus party-list), then only one vote is counted for that county. The elected senator is the leader of the delegation and has the ultimate say on how his or her delegation votes. He or she must also give written confirmation to the speaker on who he or she has authorised to vote on behalf of the delegation in his or her absence. He or she can revoke the authorisation at any time by written notice to the speaker.

This explains why Malala, Langat and Lelegwe were the ones targeted for arrest. They come from counties which have party-list senators. If they were not physically present in the senate to vote, the other senators in their delegation would be eligible to vote. It was expected that these party-list senators would help Uhuru and Raila’s formula to sail through.

Genius!

Not so fast. The three senators wrote to the speaker from detention revoking the authorisation for those in their delegation to vote on behalf of their counties. The impact of the arrest had been neutralised.

In the end (if there is an end) this means that what is left now is for senators to find a way—without coercion or intimidation—to negotiate and develop a formula that is fair and largely acceptable to all parts of the country. In such negotiations, those senators from traditionally marginalised counties have as much power as those who constantly find favour to sit on the laps of the president and Raila Odinga. The outcome will likely not be skewed in favour of Raila’s and Uhuru’s wishes. It will also not be written under the heavy breathing of Senator Kang’ata. It will involve significant and complex balancing.

Ultimately, it should not be a “win-win” or a “one-man-one-shilling” formula. It should, instead, be the formula that the constitution intended.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

By Alex Roberts

COVID-19 has provided a useful lens through which to examine the capacity of counties to cope or break under the stress of this uniquely severe health crisis. While devolution is still nascent and while it must be recognised that no institution could possibly be prepared for a pandemic of this scale, yet even at this early stage a clear pattern is emerging; northern counties are poorly prepared for large-scale epidemics because of large-scale corruption and mismanagement.

When the novel coronavirus hit Kenya, it prompted a national stocktaking. It emerged that in northern Kenya there is only one county with a functionally equipped Intensive Care Unit (ICU). Eight years after devolution; this is an inexcusable dereliction of duty.

For almost 50 years of Kenya’s independence, the stock-in-trade of northern Kenya’s political elite was to blame the region’s underdevelopment on the central government’s failure to allocate adequate resources to the region. Everything could be packed into a convenient single narrative: we are marginalised by the central government. As a result, the political elite hardly took responsibility for their failure.

If marginalisation was caused by the national government’s failure to allocate adequate resources, significant amounts of money have been allocated to the counties under devolution, money which, had it been optimally used, could have transformed the fortunes of these counties. Devolution as an antidote

Sirkal Saidia, government to the rescue, was the modus operandi of the leadership in northern Kenya, a call mostly made when an official from the national government visited. It was pervasive during President Daniel Moi’s era; at public rallies, a leader’s eloquent narration of the problems facing the area was celebrated and in fact recognised as the hallmark of a good leader.

This turned visits by former president Moi or other powerful political leaders into a spectacle as local leaders attempted to outdo each other in presenting the laundry list of problems afflicting the region. The list would always include a road here, a school there, and a hospital in between, that required fixing through the goodwill of the visiting national government official.

But central to devolution was bringing resources and power to the counties and hence closer to the people. This was heralded as the antidote to the decades of marginalisation. Yet eight years after devolution, the level of development does not match the resources allocated. There are of course areas where things have improved but overall, devolution has merely spawned a phalanx of local extractive “tender mafia networks” that have captured these marginalised counties and continue to subvert the benefits of devolution.

For the average citizen, the only thing that has changed is that their marginalisation now has a local flavour. The money meant for them has created overnight millionaires who are putting up all manner of grotesquely designed vanity projects like multiple-bedroom houses without electricity, marrying second/third wives, and purchasing vehicles worth many times the salaries of county officials. Some are so brazen that they flaunt their newly acquired wealth, a case of eating with their mouths open.

There are deep parallels between how the Kenyan state was imposed from the top as a control tool, and how the county governments, with a few shrewd “businessmen”, determine what gets done or not. Devolution is moored not to the constitutional provisions or even the needs of the citizens but to these men. Devolution was reimagining governance away from the centralised, colonial, top-down extractive state—which gave way to the centralised post-colonial state— and towards a more bottom- up, people-friendly, accountable model.

But in northern Kenya, that vision has been perverted. The elite are engaged in industrial-scale corruption that makes the corruption of the pre-devolution days look like child’s play. Before devolution, the gripe was that those engaged in corruption were civil servants from southern Kenya who were not locals, for instance, junior civil servants deployed to Marsabit who owned top of the range vehicles which they would park in Isiolo, mwisho wa lami, from where they would be driven to Marsabit by a government driver, (probably a local) in a government vehicle, returning to their cars in Isiolo to drive home at the end of the day.

This was always rationalised as the behaviour of outsiders who cannot be deterred by social shame. But with devolution, and because of the weakness of the county governments, especially the governors, corruption has become deeply entrenched and the prime beneficiaries are the local political elite. In one case, a former governor had the government’s Integrated Financial Management Information System (IFMIS) installed in his bedroom rather than at the county office. This has eroded the trust and legitimacy of county government institutions.

In northern Kenya, as elsewhere, corruption has become the central activity with all its elaborate bureaucracy, processes and structures, and deception is used to make it look like a government process. The present pandemic, combined with a cholera outbreak in one corner, floods in another corner and locusts in yet another, has revealed how ill-prepared the counties are and by the same token also revealed the cost of corruption, leaving the Marsabit, Turkana and Mandera governors with no place to hide.

Northern Kenya counties feature prominently in the list of most corrupt counties produced by the Ethics and Anti-Corruption agency. Four counties in the region consistently among the top 10 most corrupt counties in Kenya when these three forms of corruption are considered: top ten counties by proportion of those who paid bribes, top ten counties by average number of times a bribe was demanded, top 10 counties by average number of times a bribe was paid.

Top 10 counties: Amount paid in bribe

Top 10 counties: Times bribe is demanded Top 10 counties: Times bribe is paid

COVID-19 and the health system in northern Kenya

Reports of a COVID-19 case in Mandera sent a wave of panic across the northern region. This was partly because of the general anxiety around the lack of health facilities, which makes the region a sitting duck because the health infrastructure to deal with even controllable disease outbreaks is non-existent and the resources allocated are missing.

How, despite all these limitations, the people of northern Kenya endure is a story of luck and resilience. As a mode of production, pastoralism has not relied so much on the state’s service provision. Pastoralists have bent the market to their will and survive by sheer grit by developing complex social structures of livestock redistribution systems to cushion themselves.

A certain level of baked-in fatalism in the nomadic lifestyle, some of it often buttressed by an uncritical understanding or a downright misinterpretation of Islam—death is not to be feared—has also emerged. Immediately coronavirus was announced in Kenya, some of the more memorable television interviews were of elderly Cushitic men saying that death was inevitable and so there was no need for alarm. The uncertainties produced by the nomadic environment have made pastoral communities prone to shocks and epidemics which they have recorded in elaborate oral narratives. For example, the Gabra people have recorded all livestock and human diseases in the names of the years the epidemics occurred. Whenever epidemics erupt, past effects and coping mechanisms are revisited.

The ailing health sector

The healthcare infrastructure in most of northern Kenya survived on the benevolence of Christian missionaries’ networks of hospitals, dispensaries, and medical clinics spread across the region. Following devolution, Marsabit county government initially recognised the complementary role of the mission hospital, but as the years went by the county government sought to supplant the missionary investment by building their own hospitals in close proximity. The death of mission hospitals and the emergence of more but poorly equipped, ill-staffed, and poorly managed health facilities have contributed to the conundrum currently facing the north.

The number of dispensaries is a different matter; most of them are not operational. A key medical staffing officer recently acknowledged that Marsabit County alone needs at least 1,000 more staff to operationalise many of its newly built health facilities.

Data shows that northern Kenya has the lowest percentage distribution of health professionals with the number of doctors, nurses, and clinical officers being 2%, 2%, and 5% respectively. Based on 2009 figures a 2013 survey shows the high vacancy rates in healthcare.

Public health, corruption, and unsound investment

Most of the disease outbreaks in northern Kenya fall within the public health domain rather than clinical or veterinary medicine. Public health in Kenya has suffered since it was collapsed into a department under the Ministry of Health

There have been occasional outbreaks of viral diseases and epidemics in Marsabit county. Ebola, MERS, Rift Valley Fever and Zika virus have also been reported as being present in camels and bats in the vast county. However, the county lacks even the most basic public health infrastructure and in Isiolo, even old quarantine facilities like the Tuberculosis Village have been taken over by the county government. COVID-19 should have found a better health infrastructure. Marsabit takes its blood to Eldoret for testing. Even the limited available health infrastructure is saddled with corruption, poorly prioritised investments, and a lack of a sound turnaround plan which has further compounded the problem.

One year ago, a court ruling froze the account of an Isiolo businessman who had received Sh80 million by defrauding taxpayers allegedly through the construction of two oxygen plants in 2017 “yet no such facility existed in the county”. The deal signed between the Isiolo county government and a private company called Living Goods thus became a serious point of contention. Petitions to the senate committee and several inquiries and amendments later, Living Goods was given the go-ahead to run the community health services in Isiolo County.

In Marsabit, the County Assembly canceled the procurement of two lifts that were to be installed in a hospital that is yet to be built. Eight years after devolution, Kiirua Mission Hospital still runs a special unit for patients from Marsabit County; the number of referrals to the hospital is alarming. The county government has also launched ambitious health-related programmes like the 10,000 households National Hospital Insurance Fund (NHIF) cover, building of health centres and one Level Four Hospital, and the 10 ambulances bought in 2015 at Sh172 million. The NHIF scheme has been largely a PR campaign and the health sector is still ailing.

Isiolo and Garissa Counties each have a Kenya Medical Training College (KMTC) but according to Marsabit’s leadership, the two institutions cannot serve Marsabit’s long-term vision of meeting its personnel needs, and so a Sh200 million medical training college is being built in Marsabit County. This project will only be viably operationalised in three to four years but given the lackluster leadership could take much longer.

Services in fits and starts

The health sector is an “essential service”, as evidenced by COVID-19, yet the manner in which devolved units in northern Kenya conceive “development” so far seems to preclude this continuous service provision resulting in a fits-and-starts healthcare service. The construction of big hospitals is a good beginning, but it is also a magnet for corruption. The bigger headache for the health sector in northern Kenya is how to strengthen service provision through the timely purchase of medical supplies, proper management of ambulance services, and proper record keeping.

The lack of basic health services is a recurring problem in almost all the counties of northern Kenya. In Mandera the county assembly health committee recently decried the lack of very basic health supplies. For a period of 9 months last year, Marsabit County lacked essential medical supplies like painkillers and antibiotics because of a Sh22 million debt to the Kenya Medical Supplies Authority (KEMSA). Marsabit joins other countries like Nairobi, Murang’a and Narok, which breached a KEMSA debt repayment agreement.

Despite the chief purpose of devolution being to bring resources closer to the people, vestiges of marginalisation remain; distance from the centre is still a factor hindering the availability of basic health supplies. Stringent government procurement procedures are another obstacle to timely provision of supplies, as well as lack of qualified staff in the region to maintain an inventory of medical needs.

Additionally, despite the development of health service infrastructure, private interest is visible across northern Kenya with private clinics, maternity, and private hospitals run by health personnel most of whom are employed in public hospitals. This blurring of lines between the public sector and the private sector has turned patients into customers or clients, just like at the national level. Moreover, in northern Kenya medical doctors eventually run for elective office; Dr Mohammed Kuti, the governor of Isiolo County is a trained surgeon, and is a member of COVID-19 Control Committee, while his deputy Dr Abdi Ibrahim Issa is a medic. In neighbouring Marsabit, medical doctors ran for office as Members of Parliament.

The challenges facing the northern region are myriad but the issues raised here should not be understood as constituting a case against devolution but rather an argument for better devolution.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

By Alex Roberts

The unrest in Oromia is complex. Long-festering grievances, discontent with Prime Minister Abiy’s policies and a deepening fracturing of the Oromo, have combined to create a volatile situation. The escalating divisions, factionalism and contest for supremacy in Oromia packs enough destabilising power to upend PM Abiy’s transition.

Urgent steps must be taken to mend the intra-Oromo rift, improve inter-ethnic relations, and put regional and national politics on a less combustible course.

A mystery killing

The killing of the singer and activist Hachalu Hundessa on 29 June triggered a bout of violence and protest, the worst since Abiy came to power in April 2018. A week of communal clashes in Addis Ababa, the capital, and in Oromia, Ethiopia’s largest and most populous federal state, left close to 300 people dead. Protests engulfed much of Oromia and spread quickly to several cities with large Ethiopian diaspora communities in North America and Europe.

Businesses owned by non-Oromos were looted and shops torched. The government imposed a curfew, shut down the internet, rounded up dozens of opposition leaders and stepped up the brutal security crackdown in Oromia.

The deaths, mayhem and destruction were not inevitable; in hindsight, it is not too difficult to see how a measured, sensitive and less heavy-handed state response could have produced a different outcome.

By failing to institute an open and credible commission of inquiry into the death of Hachalu, coming out with inconsistent statements barely hours after the killings, and arresting opposition leaders, the government simply reinforced mistrust and inflamed sentiments.

The Ethiopian government has since lifted the internet ban and eased restrictions on movement. A semblance of normality is returning to many parts of Oromia. But tensions still remain high and ethnic relations are increasingly toxic.

Much of the current tense and ominous stand-off can be attributed to the series of missteps and knee-jerk responses by the federal authorities. But these factors, in of themselves, cannot explain the speed at which the situation deteriorated. Even without Hachalu’s death and the violent aftermath, a showdown seemed inevitable. To understand why, an analysis of the wider context is necessary.

From accommodation to coercive containment

The crisis in Oromia is emblematic of the inherent tensions, contradictions, and disjuncture between two forms of politics – the “vernacularised” and the national.

Oromia offers a fascinating case study on how Abiy’s posture and calculations changed over time; how the evolution from a policy of accommodation to one of coercive co-optation and containment is feeding the current unrest.

Prime Minister Abiy inherited a dysfunctional state that had run out of road and was desperate for a new direction. Years of rolling mass protests in Oromia and Amhara states had brought the nation to a political impasse.

Oromia offers a fascinating case study on how Abiy’s posture and calculations changed over time; how the evolution from a policy of accommodation to one of coercive co- optation and containment is feeding the current unrest.

The EPRDF (Ethiopian People’s Revolutionary Democratic Front), once a strong and progressive party, had run out of steam and ideas; deeply riven by factionalism and power struggles. These divisions mirrored wider cleavages in society and the resurgence of competing ethno-nationalisms.

The economy was on the ropes, done in by a combination of frenetic growth, expensive infrastructure modernisation and unsustainable debt. The treasury barely had enough foreign reserves to cover a month’s worth of exports.

The challenges before the new PM were both complex and difficult. Over and above the onerous task of consolidating power, stabilising the economy, reforming politics and putting the transition on a solid footing, Abiy had to grapple with the weight of public expectations.

Abiy’s administration in the first few months in office was characterised by a conspicuously Oromo theme. The premier ditched the suit for the flowing white cotton Oromo outfit. He treated visiting dignitaries to lavish banquets at which Oromo chefs laid out the finest of traditional cuisines. He gave away horses to special state guests.

This overt display of Oromo pride was deliberate and went down well in Oromia. Beyond winning the hearts and minds of his people, the strategy had the potential to help him build a solid ethnic, regional support base, which is crucial in an ethnicised political system.

But to establish credibility and earn the trust of his Oromo ethnic group, the PM needed to do more. He released political prisoners, among them prominent Oromo leaders. He appointed a record number of Oromos to key posts in the cabinet, the army and the security services. He unbanned the Oromo Liberation Front (OLF), reached out to exiled activists and facilitated their return home.

Consolidating Oromo support proved more complicated for the PM. Despite his popularity, he had to contend with a diverse array of factions and personalities with local and national political ambitions, and, in some instances, with a large following and influence.

Roots of Oromo nationalism and discontent

The Oromo are the single largest ethnic group in Ethiopia, and make up roughly two-fifths (about 40 million) of Ethiopia’s total population of more than 100 million. They inhabit a vast geographical territory and are dispersed across much of south, central and western Ethiopia, as well as across the border in Kenya. Sub-families of the Oromo, such as the Boran, Gabra, Burji, Orma, live in the counties of Marsabit, Isiolo and Tana River.

However, this sheer demographic size did not translate into political and economic power. The Oromos’ history has been one of marginalisation and exploitation.

The large-scale uprisings in Ethiopia since 2012, largely driven by the Oromo, and which eventually thrust PM Abiy into power, made the Oromo a potent political force that cannot be ignored.

The Oromo are not monolithic. They are the most internally-diverse of Ethiopia’s ethnic groups, with sub-groups differentiated by significant linguistic, religious and cultural variations.

These factors in turn inflect political dynamics and ways in which communities respond to political pressures

Dispersal over vast territories, diversity and heterogeneity makes Oromo society uniquely pluralistic and the least insular of all the ethnicities found in Ethiopia. These traits have been a major source of strength but also weakness.

The large-scale uprisings in Ethiopia since 2012, largely driven by the Oromo, and which eventually thrust PM Abiy into power, made the Oromo a potent political force that cannot be ignored.

Religious pluralism, historically manifested in the peaceful cohabitation between different faith systems (Islam, Christianity and the ancestral faith, Waqqeffana), makes Oromo society the least prone to religious bigotry and militancy. It also explains why hard line strains of Salafi Islam have found Oromia unconducive to put down roots. This culture of tolerance is now under strain from evangelical proselytism and encroachment.

Divisive political co-optation tactics by state and rival political factions feed off these rich diversities within Oromo society and drive much of the tensions and fragmentations we are seeing today in Oromia.

No subject polarises Ethiopia today more than Oromo ethno-nationalism. The bloody violence and protests in the wake of Hachalu’s killing have made the debate even more heated, emotive and divisive.

To understand the drivers of Oromo discontent and nationalism, to untangle the underlying trends and dynamics, and to plot the potential future trajectory, it is critical for policy makers to widen their analytical lens and develop deeper contextual insights into its specificity.

Complexity

Oromo nationalism, not unlike other nationalisms, is complex and dynamic. It is fed by multiple streams, taps into a reservoir of potent, accumulated grievances and draws energy and sustenance from a rich repository of cultural memory and aspiration. The latter point is important, not least, because there is a misperception it is primarily/wholly driven by politics.

In fact, the political manifestation of Oromo nationalism is fairly recent and comes off the back of decades of struggle for cultural freedoms. Key demands of the Oromo cultural revivalist movement included the right to accord Afaan Oromo the same official privileges as Amharic and the freedom to openly observe traditional rituals (such as Irreecha).

Pride in Oromo identity and the need to affirm it inspired generations of young people. Hachalu was, therefore, the spokesman of this new generation – a proud, unapologetic and self-confident Oromo. His popular song Jirra struck a chord because its lyrics encapsulated those aspirations in one simple and powerful line: We are here!

It is worth bearing in mind that all ethno-nationalisms are forms of myth-making, constructed around romanticised notions of the past and links with a self-defined ancestral homeland, and impelled by powerful emotions.

Narrative

The current debate about Oromo nationalism comes against the backdrop of an increasingly febrile and polarised political climate. The language of discourse, reflecting these tensions, is emotionally charged and adversarial; much of the discussions, invariably, are as simplistic as they are decontextualised. More disconcerting is the fact that public opinion is increasingly being shaped by misperception – a narrative of mutual “othering” and demonisation.

Current anti-Oromo sentiments are varied and cover a wide spectrum. The most dominant is a generalised fear of Oromo hegemony, sometimes laced with the perception that Oromos are prone to violence. This is especially the case among smaller ethnic groups that have borne the brunt of targeted violence.

The debate about the Oromo has assumed a reductionist dimension and is dominated by essentialism – a tendency to ascribe a category of problematic and negative “essences” to the ethnic group and its politics.

This strain of Oromophobia is now largely driven by an amorphous group of old elites, loosely described as neftegna. The term is controversial and contested. The animating force of the neftegna ideology is a set of exaggerated “patriotic” ideas that revolve around the imperative to preserve Ethiopia as a single, strong, centralised state. The Christian character of the Ethiopian state, though less accentuated, forms an essential part of the narrative repertoire.

Current anti-Oromo sentiments are varied and cover a wide spectrum. The most dominant is a generalised fear of Oromo hegemony, sometimes laced with the perception that Oromos are prone to violence.

Oromo discontent in recent months has been inflamed by perception PM Abiy has bought into aspects of the neftegna narrative. Even if not true, the PM’s rhetorical appropriation of Ethiopiawinet (Ethiopianness) and the strident airplay it is getting on state media is polarising. It is a divisive term; a throwback to the imperial age when it was instrumentalised to subjugate and control Oromos.

There is nothing exotic about Oromo nationalism and protest. The sense of alienation, disillusionment and grievances activists articulate have their roots in real material conditions. The primary engine feeds on long-festering socio-economic and political factors – massive unemployment, wealth and income disparities, elite-driven land grabs, corruption and youth aspiration.

Ethno-nationalism and violence

There is no doubt that violent ethno-nationalism constitutes Ethiopia’s gravest threat in the short to medium term.

The last two years saw a resurgence of volatile strains of ethnic identity politics in Ethiopia that ratcheted up inter-communal tensions and stoked violence.

The most serious of these conflicts were in Oromia-Somali Regional State (SRS) borders, Oromia- Afar regional state borders, the Guji Oromo-Gedeo community border areas, the Amhara-Gumuz regional state borders, the Oromo-Benishangul Gumuz regional state borders, and the Oromo special zones in Amhara region. Hundreds were killed and the violence triggered waves of fresh displacements, one of the worst in the country’s history, bringing the number of IDPs to over 3 million in early 2019.

The upsurge in violence is not surprising. While much of it could be attributed to the disruptive power of Abiy’s speedy dismantling and opening up of the old state, subsequent state response played a significant role in compounding the crisis.

State-driven violence is a major contributor to localised violence in Oromia. Aggressive and hostile policing, mass arrest of activists, and indiscriminate and disproportionate use of lethal force to quell protests have all combined to create a combustible environment of siege that stokes counter- violence.

Oromo fracture

Oromia is today more deeply divided and unstable than it has ever been in decades. The region is now both an incubator (generating destabilising currents outward) and a barometre (to gauge the undercurrents of unresolved tensions in PM Abiy’s transition).

That the worst fracturing of the Oromo is occurring in a state led by an Oromo prime minister is ironic, and, arguably, an indictment. But before delving into the causes, two general pointers are worth noting. First, Oromo politics was, and is, never monolithic. The region’s politics have always had a distinctly localised flavour, influenced mostly by a whole host of “structural” factors: strong sub-group loyalties and identities, geography, and an inter-generational divide.

Second, a convergence of two powerful political homogenising trends – one driven by national imperatives, the other by a “vernacularised” politics of resistance – aggravates the situation.

The multiple splits in Oromia partly reflect old regional cleavages. The traditional regional rivalry (Gaanduumma) between Bale and Arsi Oromos (the latter predominantly Muslims) now appears more pronounced. The Bale-Arsi rivalry constitutes a potentially dangerous fissure, in large part because it is assuming religious dimensions and is likely to stoke sectarian tensions.

There is also an emerging three-way split, partly animated by traditional regional identity politics but also stoked by intra-elite contestation: the Wollaga (where Lemma Megersa is from); Shewa (the seat of the Oromia regional state), and Jimma (home region of PM Abiy).

Abiy-Jawar rivalry

The power struggle between Prime Minister Abiy Ahmed and Jawar Mohammed, an Oromo activist and founder of Oromia Media Network, has in the last one year moved to the centre of Oromia’s unsettled politics. The intensifying battle for supremacy between the two men is the single most potent wedge factor currently feeding intra-Oromo fragmentation.

PM Abiy and Jawar were not always adversaries. Jawar’s media outlets and influential social media presence were instrumental in fomenting and directing the popular protests that eventually catapulted Abiy to power. The two men fell out quickly after Jawar returned from exile in the United States, began building his own political base and turned into the premier’s most vocal critic.

Abiy and Jawar share a common interest. They have national leadership ambitions and a desire to consolidate Oromo support ahead of the next elections. A solid ethnic constituency is a great advantage in an ethnicised political system, but even more crucial in competitive politics if it translates into votes.

Abiy and Jawar’s leadership styles are not too dissimilar. Both men are populists, relish playing to the gallery, have a penchant for exaggerated rhetoric, and rely more on the sheer force of charisma to win supporters.

Jawar seems to enjoy significant advantage over Abiy in the contest for Oromo hearts and minds. His popularity has soared since he teamed up with Bekele Gerba, a widely respected Oromo politician, to lead the Oromo Federalist Congress (OFC). Unlike the PM, he is on the ground and not distracted by juggling competing priorities. He is more adept at grassroots politics and his “vernacularised” brand of politics has huge traction with a broad cross-section of Oromos disenchanted with state policies. This is especially true of the youth movement, Qeerroo.

More important, Jawar’s initiatives to repair Oromo divisions and to intervene in easing localised tensions and conflicts endeared him to many Oromos. This contrasted with Abiy’s top-down approach and co-optation strategies that catalysed divisions. The PM’s use of mass arrests and draconian security crackdowns to undermine Jawar’s support base have, so far, not only been unsuccessful, but have also generated widespread resentment.

Their differences have progressively widened in recent months, but whether they have solidified into an organic ideological and policy split is debatable.

Federalism

The ethnic federalism model in Ethiopia still remains hugely popular. Bigger ethnicities see it as a system that protects their interests and privileges; the smaller ones see it as the only viable route out of marginalisation.

Much of the disenchantment with the system in recent years is driven by perceptions that it had become hollowed out, conferred no meaningful autonomy, bred its own inequities and stoked inter- ethnic tensions and violence. Yet, the preference, it would seem, of many, is reform, not dismantlement.

PM Abiy’s ambivalent and initial mild aversion to ethnic federalism seems to have hardened – rhetorically, at least – in the last one year. The PM is instinctively a centralist and the recent lurch into the traditional default narrative of his predecessors did not come as surprise. There was always an implicit anti-federalism tenor to his rhetoric and a bias for a centralised state.

But what alienates Oromos more than the PM’s views on federalism is the strident patriotic messaging that now accompanies it – on the imperative for a united and strong law and order state. This type of discourse tends to be associated, rightly or wrongly, with the “assimilationist nationalism” of the past.

The prime minister’s dissenting views on the issue of ethnic federalism seem not to have evolved much since 2018. In practice, his approach has shifted, somewhat. Whether due to electoral calculations, realism and political opportunism (understandable in an election year), he does appear more accommodating than many had expected.

The creation of Sidama Regional State, Ethiopia’s 10th ethnic federal state, in late 2019 may lend credence to this tentative “softening”, even though it is worth pointing out that the process to establish the state has been in train for many years.

Abiy’s anxiety about Jawar stems, partly, from awareness of his vulnerability on the ethnic federalism question. By being strong on federalism and making it a central plank of his national campaign, Jawar was in effect signaling intent to leverage his competitive advantage to the maximum.

Arrest

Jawar is loved and loathed in equal measure. Despite his huge popularity in Oromia, he has struggled to develop an appealing national profile and support base. His critics continue to exploit some of his past incendiary rhetoric and links with the Qeerroo to paint him as a narrow ethno- nationalist bigot wedded to violence.

His potential to grow into a national leader and his electoral prospects ought not to be discounted. He was beginning to develop links with opposition groups beyond Oromia. Crucially, his strong focus on federalism attracted national attention and galvanised important ethnic constituencies.

The arrest of Jawar on 30 June, and his trial, which is likely to last months (and possibly years if he is convicted), gives the Ethiopian prime minister the space and time, potentially, to reconfigure Oromo politics. This is a prospect almost certain to be complicated, if not likely to fail.

First, Jawar’s popularity has not waned; if anything, it has increased. Second, the massive security clampdown and campaign of mass arrests of opposition activists and leaders has dented the PM and tilted Oromia into a less sympathetic political terrain.

OLF splits

The Oromo Liberation Front (OLF), its ambitions, and, increasingly, radical brand of politics, adds another volatile and complicated layer to the fractured politics and insecurity in Oromia. The ex- insurgency’s combatants and commanders returned home in September 2018 under a general amnesty and negotiations facilitated by Eritrea. A botched integration process served as the initial spark that ignited open dissent against the regional and national government. This quickly morphed into a low-grade conflict, pitting regional troops supported by federal troops against armed factions of the OLF in late 2018.

The OLF’s swift transition from an ally of the Abiy government to an adversary can be attributed to several factors. The amnesty deal negotiated in Asmara was vague and done in haste. Important issues were either overlooked or not properly addressed. As a result, trust broke down quickly. Disputes over the troop integration process and the latitude of political freedoms allowed to its the leadership soon became problematic wedge issues.

A series of failed talks, peace pacts and mediation led by deeply-riven traditional Abba Gadda councils between November 2018 and April 2019 tipped the stalemate into a full-blown crisis and put the ex-insurgency on a fatal collision course with the federal government.

The decision by the OLF leader, Daud Ibsa, to join other opposition politicians and the youth movement, Qeerroo, and coalesce around a common Pan-Oromo platform under the umbrella of the Oromo Federalist Congress (led by Jawar Mohamed and Bekele Gerba) was deemed especially threatening to both regional and national governments.

In response, Addis deployed heavy fire power to subdue the OLF dissidents. This made a bad situation worse, fomented the further breakup of the OLF into small competing splinter factions, made engagement and peaceful settlement difficult and compounded the overall security situation.

Regional spillover

There is a regional dimension to the crisis in Oromia. A protracted and serious conflict in Oromia could spill over into much of northern Kenya because Oromia’s politics and conflict dynamics are closely intertwined with those of northern Kenya. The immediate risk is massive displacement and a new humanitarian crisis in the Kenyan districts of Moyale, Marsabit and Isiolo.

It is also likely that conflict fragmentation in Oromia could lead gradually to proliferation of armed criminal syndicates. There are already many armed smuggling syndicates operating on the border between Ethiopia and Kenya.

There is a regional dimension to the crisis in Oromia. A protracted and serious conflict in Oromia could spill over into much of northern Kenya because Oromia’s politics and conflict dynamics are closely intertwined with those of northern Kenya. Kenya worries in particular about the possibility of Oromia’s serious rifts sowing divisions within sub-groups of its own large Boran population.

Recommendations

The crisis in Oromia is complex, serious, and multi-layered, and its causes and drivers are varied. Left to fester, it certainly will become intractable, result in large-scale violence and undo PM Abiy’s wobbly transition.

The federal government, the Oromia regional administration, traditional authorities, political parties and civil society need to take concerted urgent action to defuse the crisis.

Below are some of the key areas where sensible and pragmatic policy interventions and change could make a big difference and mitigate risks:

1. Put ethno-nationalisms on a benign course Oromo nationalism is inflamed and risks becoming virulent. It feeds off Oromia’s mass disillusionment, acute grievances and multiple fracturing. But the single biggest aggravating factor risking to radicalise it and put it on a violent course is state response (a self-fulfilling prophecy). To mellow Oromo nationalism, the following steps are worth considering:

A Pan-Oromo conference to de-escalate tensions, repair social cohesion, rebuild trust and address the roots of fragmentation; A follow-up inclusive national conference with representatives from all ethnicities to improve relations, foster dialogue, and end mutually hostile narratives, demonisation.

2. Invest more in conflict resolution and peacebuilding Ethiopia’s disappointing record in resolving and managing localised conflicts in Oromia highlights a number of crucial lessons. First, the state-driven, top-down conflict-resolution model is ineffective, and often conflict-inducing. It bureaucratises peacebuilding, diminishes local buy-in, sows social divisions, and imposes unsustainable settlements.Second, traditional councils of elders, when given sufficient autonomy and not co-opted by the state, are the most effective agencies with credibility to mediate and resolve conflicts. To improve outcomes, the federal government ought to:

Reduce its role, allow influential grassroots groups to take lead in local peacebuilding initiatives, allocate resources to sustain them; Promote greater inclusivity in peace councils by encouraging credible elders, faith leaders to join; Establish a national conflict advisory to monitor local unrest, improve knowledge on conflict drivers and provide early warning to regional and national governments.

3. End state violence and repression Prime Minister Abiy has turned the crisis in Oromia into a law and order problem. His pursuit of lethal force to suppress Oromo dissent, the draconian curbs on media freedom and free expression, internet shutdowns, and mass arrests have put the region and the whole country on a perilous course. Unless there is a fundamental shift in Abiy’s current posture and renewed efforts to promote pluralism, inclusivity, civil liberties, and dialogue in Oromia, the situation will worsen. In concrete terms the government must:

Free all political prisoners arrested recently; Pull out troops from Oromia and end all military operations; Stop aggressive and hostile policing, and invest more in training police on de-escalation techniques. Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.

Will Trump Rig the 2020 Election?

By Alex Roberts

Throughout the world, cyberbullying (the use of the internet and/or mobile technology to harass, intimidate or cause harm to another person) and online harassment have emerged as a new pandemic with devastating consequences for a wide spectrum of people, including children and adults, the powerful and the powerless, celebrities and media personalities.

The ever-growing and fast expanding reach of the internet, coupled with the rapid spread of information and communication technology (ICT), as well as the wide diffusion of social media globally, have presented new opportunities and challenges to online users. In fact, technology as we know it today is fraught with the good, the bad and the ugly. This technological revolution could rightly be described as a “double edged” sword, where the user is continuously balancing between risks and opportunities.

On the one hand, this technological revolution has shrunk our world into a global village where people can easily connect, share, and engage in conversations about issues that concern them. It can be used to support and fundraise for important global and national causes, create and inspire social movements like the blacklivesmattermovement, Metoomovement, Bringbackourgirls for the public and global good, and mobilise the world for humanitarian action, such as coming together to help the Haiti earthquake victims.

On the other hand, it has exposed the invisible evil world of cyberbulling and online harassment that have wrecked lives, caused deep pain and hurt to millions of online users, destroyed relationships, and affected people’s integrity, health, well-being and career development. It is increasingly becoming apparent that cyberspaces have become violent and ungovernable civic spheres.

Technological advancements have led to the emergence of new forms of violence, such as online trolling, sexual harassment and gender-based technologically-driven violence against both men and women, although women and young girls are particularly on the receiving end because they are more vulnerable. Cyberspaces are today characterised by online anonymity. Technologically- mediated violence nowadays is performed using electronic devices, such as mobile phones, tablets and computers.

While gender-driven sexual violence is viewed as the norm by many people, this traditional form of violence has recently gained a new space and currency and is now part of the online violent experience. Traditionally, bullying had been a preserve of school compounds and sports arenas, but it has now moved to media spaces where online anonymity allows bullies to hound their prey with their predator tactics unperturbed. Bullying is a form of abuse that is based on an imbalance of power. In fact, it can be defined as the systemic abuse of power.

Bullying is often defined as an aggressive, intentional act or behaviour that is carried out by a group or an individual repeatedly over time and space, against a victim who cannot defend himself or herself.

Cyberbullying, on the other hand, is a form of bullying that has recently become more apparent as the use of electronic gadgets continues to expand. Here, it is defined as the intentional use of the internet and social media platforms to degrade, demean, belittle and embarrass another person. It employs electronic forms of contact and can take many forms that include, but are not limited to, unwanted trolls, sharing of unwelcome content, sexual harassment or threats of sexual violence, such as threats of rape, cyberstalking, body shaming, sending or publishing or sharing of nude pictures, death threats, hate speech, and professional sabotage with the aim of stripping someone of their sexual or personal integrity.

Bullying is a form of abuse that is based on an imbalance of power. In fact, it can be defined as the systemic abuse of power.

Global emerging trends suggest that cyberbullying is now recognised as a serious threat not just to the physical health of people, but also to their emotional well-being. Yet, despite much awareness about this serious challenge, it seems that the problem will continue to grow if no concerted effort is taken by the relevant authorities. Cyberbullying in Kenya

In the past one and half decade or so, Kenya has undergone a significant ICT revolution. Kenya has been ranked as the second leading innovation hub in sub-Saharan Africa, after South Africa, according to the 2019 Global Innovation Index. Similarly, internet penetration in Kenya currently stands at 90 per cent, according to the Communications Authority of Kenya (CA). Broadband internet take-up, as of September 2017, rose by more than 14 per cent. Consequently, the number of internet users has increased from 45.5 million to 51 million users, with the popularity of mobile internet being the biggest factor behind this meteoric rise and expansion.

Thanks to increased internet connectivity across the country, more Kenyans than ever before are using social media platforms to share, communicate, interact and generate important conversations on topical issues in the Kenyan public sphere. According to a survey conducted by the Google Consumer Barometer, about 90 per cent of Kenyans go online to visit social networks platforms, which include Facebook, Instagram, Linked-in, Snap Chat and Twitter, among others. In addition, 80 per cent of Kenyans use the internet to check emails and access instant message services.

The ever-growing and expanding appropriation of the internet and other communication technologies in Kenya and across the African continent has, unfortunately, led to the proliferation of cyberbullying. While cyberbullying is on the rise globally, in countries with weak policies like Kenya, it is becoming a nightmare for many people.

In April 2020, the United Nations Office for Drugs and Crime (UNODC) ranked Kenyans as “the worst bullies on Twitter”. In the UNODC survey, Kenyans were described as having the capacity to “come together and attack their common enemies, as well as deconstructing both real and perceived enemies”. The survey stated that Kenyans on Twitter (#KOT) will attack anybody – the famous and the-not-so-famous “with little regard for truth, fact or any benefit of doubt that can be given”.

The survey further observed that “various brands like CNN and New York Times now have to think twice before they tweet about Kenya”, and noted that “today no country dares start an online feud with Kenyans unless they have a well-functioning mental healthcare system”. Countries that have suffered the wrath of the #KOT army include China, Nigeria and South Africa.

Like all other forms of violence that are prevalent in Kenya, including gender-based, sexual and political violence, cyberbullying is not only rife, but continues to thrive in Kenya’s ungovernable online space, even as it keeps evolving.

Academics, business leaders, the clergy, female leaders, judicial officers, media personalities, politicians, performing artists and senior government officials, among others, have all been cyberbullied by faceless predators who hide behind their anonymous identities.

#KOT cyberbullies are notorious for having harassed a wide spectrum of Kenyans. Some of the more well-known Kenyans who have been victims of cyberbullying include Chief Justice David Maraga, who has been trolled and bullied online. Chief Justice Maraga recently shared his frustration about trolls and bloggers who torment public figures by portraying them negatively with a view to destroying not just their integrity, but also their careers. #KOT also ran President Uhuru Kenyatta out of town, forcing him to close his Twitter and Facebook accounts.

While oftentimes such trolls and memes on public personalities tend to be hilarious, even entertaining, much of the bullying take the form of personalised attacks, which are humiliating and vicious. Hence, cyberbullying crosses the line between freedom of expression and human rights and ethics.

Why are people so mean?

Current research suggests that the youth, especially young women, are most vulnerable to cyberbullying, with 6 to 10 per cent of women and men in developing countries aged between 18 to 24 years who regularly use the internet indicating that they had suffered online abuse at one time or another.

Why are cyberspaces becoming such violent, unsafe and ungovernable arenas? Why are people being so mean to each other? How can we understand and explain cyberbullying?

Firstly, bullying and violence are a normalised part of our public and private culture. As bullies used to be found in schools, they now seem to have relocated to cybernetics, where the anonymity of this space has enabled these “keyboard warriors” to wreck peoples’ lives. The motivating factors of cyberbullying could be anger, boredom, frustrations, jealousy, revenge, or the fact that some bullies derive pleasure from hurting other people.

With the advent of the coronavirus pandemic and lockdowns that have trapped many people in their homes, cyberbullying seems to have spiralled. Therapists and psychologists are pointing to the increased mental health issues relating to anger, anxiety and stress that are being experienced by a wide spectrum of people cocooned in their houses. Already the UN, the World Health Organisation (WHO) and the Kenya Police have sounded the alarm about increased levels of domestic and sexual violence.

Cyberviolence against women and girls could be considered a pandemic that now affects one in three women who are said to have experienced some form of cyberbullying and online harassment, according to recent studies. A study commissioned by the African Development Bank suggests that up to 70 per cent of women have endured cyberviolence and that women are 27 times more likely than men to be harassed online.

Studies further suggest that while more males are exposed to cyberbullying related to physical aggression, more females are victims of cyberbullying that includes non-consensual sharing of intimate images, unsolicited sending of sexual and pornographic images and other forms of cyberbullying that entails sexualised behaviour.

Of the several women that I interviewed between the ages of 20 and 35, more than half of them said they had been, in one way or another, victims of cyberbullying and online harassment. They said people, both unknown to them as well those they knew (mostly ex-partners) posted their pictures online without their consent. Others intimated that men solicited for sexual favours online and when they were refused, they verbally and sexually abused or threated their victims online.

A study commissioned by the African Development Bank suggests that up to 70 per cent of women have endured cyberviolence and that women are 27 times more likely than men to be harassed online. The young men I interviewed also spoke about being cyberbullied sexually and verbally by their jilted female lovers, who either threatened or actually published their intimate photos for revenge. One told me that he actually paid his ex-girlfriend money to take down what she had published, but this only helped to open up a new avenue for extortion and threats of further postings every time she needed money, forcing him to finally report her to the police.

Sexualised cyberbullying

Why are women’s bodies sexualized and demeaned not just by Kenyan society but globally? More importantly, why is this oftentimes not just tolerated, but also increasingly normalised?

There are several explanations for this: Violence against women is gendered as it is rooted in stereotypes about gender roles, sexuality and sexual norms for women. For example, the non- consensual sharing of intimate images or the threat to share such images is meant to humiliate and intimidate women. This occurs in the context of the patriarchal sexual double standard, which unfairly judges women – but not men – for enjoying their sexuality. It is often a coercive method used for controlling behaviour in on-going relationships that is breaking down or has ended.

Secondly, the underlying cause of violence inflicted through cyber-meditated violence lies in the hierarchical nature of how gender is socially structured. More importantly, it is disdain for women with voice, power and agency. At the same time, men’s disdain for feminism, which most of them do not critically understand, has pitted them against women. In short, violence and bullying are generally strongly linked with gender dynamics and sexuality and their construction and on-going contestations in the public sphere. The normalisation of male violence against women and girls, as well as the restrictive expectations about women and girls, are some of the key drivers of sexualized cyberbullying and online harassment of women.

There are clear gendered differences in the harassment itself. Men are largely attacked for their opinions but women are attacked for their gender, sexuality and appearance. The recent cases of Brenda Cherotich and Brian Orinda, who were alleged to have survived COVID-19 and became the face of survival in a pandemic that has scared the hell out of many people, were both heavily trolled on Twitter. Brenda’s case immediately assumed sexual overtones with sexual and nude pictures of Brenda circulated online. When TV personality Yvonne Okwara Matole spoke against this sexual violence against Brenda, she too was personally and sexually attacked. She was body shamed, trolled and bullied for speaking up against the rampant sexual violence against women and girls in Kenyan society.

Why is the cyberbullying and online harassment of women and girls sexualized? Well, it is simply a question of power relations and who holds the power at the time. It is not only men who are responsible for gendered harassment and it is not always directed at women; it is about one group experiencing loss of status and power to another group. Kenyan women are emerging and contesting not just political power, but economic, social and cultural power as well.

Bullying someone in a sexual manner is a typical and highly effective master oppression technique. Threats of sexual violence have always been about power, as well as a sign of a change of status between men and women. Today, many women are increasingly gaining a voice and agency, and are participating in public debates and conversations on various issues, such as governance, human rights and leadership. This certainly has given them visibility in the public sphere, including in media spaces, to the chagrin of misogynists.

These prejudices hinder women’s participation in public discourses and processes as many cower, self-censor, and in some instances, totally withdraw from public, civic and social media spaces. To properly combat cyberbullying, the government needs to recognise that technology-based violence is the new arena that is preventing women from achieving their full potential.

The experience of bullying is intensified in cyberspace because the perpetrator can hide behind a screen name and can act unhindered without fear of reprisal. In addition, the arena for the bullying is not just a playground, but part of a huge cyberspace spanning countries, cultures and even times.

A sharp rise in technology-related violence against women and its normalisation have made the internet a gendered space. Social network spheres, including Facebook, Twitter, Instagram and Snap Chat, are the new frontiers for not just gender-based and sexual violence, but also for the expression of toxic, patriarchal and violent masculinities. These social network spaces have become a nightmare for many people, especially women and girls.

A baseline report by the Kenya ICT Action Network on the challenges faced by Kenyan women on the internet lists non-consent, distribution of intimate images, sexual harassment, stalking, hate, offensive comments and body shaming as some of the most prominent violations of women’s rights and well-being. Female journalists between the ages of 25 and 35 are twice as exposed to cyberbullying and threats than their male counterparts.

A 2016 study by the Inter-Parliamentary Union (IPU) indicated that online societies judge women politicians more harshly than they do male politicians. The study suggested that on social media, women politicians were at the receiving end of sexual comments, with their appearance and marital status often being the subject of discussions on gauging their fitness for public office.

Cyberbullying puts a premium on emotional health, personal and workplace time and resources. The impacts of cyberbullying on women are psychological, social, physical, emotional, and economic. Anxiety and self-esteem affect young women in particular. For one, many younger women internalise this by self-objectifying themselves as either beautiful or ugly, or as an object to be looked or evaluated on the basis of their appearance. This has many consequences for the mental and emotional well-being of young women and girls who more often than not grapple with issues of self- esteem and confidence in a heavily patriarchal society that does not value women very much.

Enlarging women’s online engagement

Digital technologies offer people innovative ways to get involved in politics and governance issues. From receiving instant news notifications on political developments to engaging in online debates and discourses and expressing personal opinions on a wide array of issues, social media can enhance the political and civic engagement of women in a way that traditional media cannot.

Social media platforms allows women to speak up. They are the only forum where women have control and space. Other spaces for civic engagement may not always be welcoming of women’s voices. Thus digital spaces can be both empowering and dangerous for women. They can be spaces for mobilisation, for the formation of voice and agency, but they can also be spaces fraught with abuse and violence.

Cyberbullying, therefore, restricts the civic opportunities offered by digitisation. It restricts women from having a voice and agency online. Young people, especially young women, are hence discouraged and put off from taking part in political discussions and online debates and conversations.

In contrast, young men are more politically active online, posting their comments liberally, and reading and sharing articles on social networks, thus contributing to robust conversations on social and political happenings and discourses. Social media allows women and men to voice their opinion on a wide array of socio-economic political and cultural issues. With thousands of online resources posted every minute, social media could be a potential educatiional platform, especially when used responsibly.

However, cyberbullying or abuse has to be prevented so that women can fully participate in conversations about governance and human rights, among other topics affecting them. Participation of women, especially young women whose voices are less heard, could be important, not just for their visibility, but also for civic engagement. Women will only navigate their voice and agency if civic spaces like social media are made safe for them.

There is no gainsaying that social media has become an important tool for social and professional advancement, more so for women. Many women have built their businesses online and in the process have learned how to connect with others. Many find clients to buy and sell their products online. Others find platforms to incubate ideas, leading to hundreds if not millions of social enterprises that not only spur economic growth but directly empower young men and women economically. They have also learned how to improve their entrepreneurship skills online. No doubt then, social media has emerged as a great space to do business. This is important for women’s economic empowerment and visibility.

But the internet needs to be a safe place to enable young people to express their opinions and build their careers and social enterprises. Given that it is nearly impossible to govern gender- and sexual- based cyberviolence, such as cyberbullying and online harassment, without stepping on peoples’ civic liberties, including freedom of expression, it is important to rethink safe civic spaces for everyone, especially women and girls.

Cyberbullying and online harassment must not be normalised but must be fought to create a safe place for respectful, civil, ethical and lawful online conversations. However, this can only happen if online spaces could engender conversations that rethink the toxic masculine, patriarchal, and hypersexualized social and gendered norms about women and girls that currently prevail in Kenyan society.

Published by the good folks at The Elephant.

The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future.