Spring 2017 THE POLICY JOURNAL

The Africa Policy Journal (APJ) is a student-run publication dedicated to promoting dialogue about African policy and current affairs in the realms of governance, law, education, business, health, design, and culture. The journal was initially started in 2006 by students at the Harvard Kennedy School of Government but has recently expanded to encompass all the schools of Harvard University. With its online platform (http://apj.fas.harvard.edu) and annual print publications, the APJ acts as a hub for timely debate, opinion, research, and analysis. All views expressed in the Africa Policy Journal are those of the authors or interviewees only and do not represent the views of Harvard University, the Harvard Kennedy School, and the staff of the Africa Policy Journal, or any of its affiliates. Cover Photo by Issac Opoku Cover Design Alicia Bello Layout by Monique Z Osius. © 2017 by the President and Fellows of Harvard College. All rights reserved. Except as otherwise specified, no article or portion herein is to be reproduced or adapted to other works without the expressed written consent of the editors of the Africa Policy Journal.

2 AFRICA POLICY JOURNAL CONTENTS

10 EDITOR’S REMARK

OPINIONS 11 Going Beyond the Model: Reimagining Education Policy in Africa VIVIAN OJO

FEATURES 17 Globalization and the Diffusion of Media Policy in Africa: The Case of Defamation of Public Officials LYOMBE EKO

45 The Anatomy of Government Neglect in the Nigerian Maritime Industry ADEKANMI ALEXANDER ABAYOMI

61 Historical Antecedents and Paradoxes that Shaped Kenya’s Contemporary Information and Communication Technology Policies DOUGLAS GICHUKI, ARTHUR GWAGWA, AND ISAAC RUTENBERG

83 The End of the Commodities Super-Cycle and its Implications for the Democratic Republic of Congo in Crisis LAURE GNASSOU

89 Economic Integration in Africa: Past, Present, and Future AATMIK GUPTA

101 Construction of Multidimensional Poverty Index of Kenya Using the Alkire-Foster Method WAMAITHA MUKUI AND LUCY MUTHONI

2016-2017 · VOLUME XII 3 MEET THE STAFF

Alicia Bello is a Co-Editor-in-Chief of the Africa Policy Journal (APJ) and a joint degree candidate at the John F. Kennedy School of Government and Public Policy at Harvard University and Harvard Law School. She previously worked on governance programs at the National Democratic Institute in Washington, DC, and provided input on governance proposals and programming in the Central and regions. She graduated with high honors from Spelman College in 2011.

Moctar Aboubacar is the Managing Editor of the APJ and a first-year student, pursuing a master’s degree in public policy at the Harvard Kennedy School (HKS). He is an international development practitioner focused on social protection systems and East Asian/African development cooperation. Before coming to HKS, Aboubacar worked for the World Food Program in Sudan, Rwanda, and at its headquarters in Rome, Italy. He covered social safety nets, cash transfers, and vulnerability targeting systems, in addition to working closely on South-South Cooperation initiatives with Korea, China, and India. Moctar has a master’s in Korean studies from Korea University and graduated from Brown University with a bachelor’s in development studies.

Malcolm Temple is the Editor for Academic Articles and a candidate for a master’s in public policy at HKS. Prior to enrolling at HKS, Temple worked for the UN World Food Program in Rwanda, and led classroom lessons on topics such as immigration and US social movements as a high school teaching assistant in France. A Phoenix native, he is passionate about migration and economic and environmental justice in the global south. In his spare time, Temple can be found riding his bike, practicing his photography skills, or listening to the latest Afrobeat and reggae hits.

4 AFRICA POLICY JOURNAL Stanley Nweke-Eze is the Editor for Online Submissions and a master of law (LLM) candidate at Harvard Law School. He has a recent LLM degree in commercial law from the University of Cambridge in the United Kingdom and a bachelor of law (LLB) degree from Nnamdi Azikiwe University in Nigeria. He has interned at different times in the London offices of Hogan Lovells International LLP, Clifford Chance LLP, Clyde & Co. LLP, Slaughter & May, and DLA Piper LLP. He is licensed to practice Nigerian law and was an associate at Templars, a top Nigerian law firm. Nweke- Eze is currently Submissions Editor of the Harvard Journal, and he was an editor of the Cambridge Journal of International and Comparative Law.

Memme Onwudiwe is the Partnerships Liaison and a first-year joint-degree candidate at Harvard Law School. Onwudiwe was born in Xenia, Ohio, to Nigerian and Ghanaian parents. He attended Ohio Wesleyan University and majored in international studies and French. He has worked as an intern at the Independent National Electoral Commission in 2013 and a research fellow at the Nigerian Extractive Industries Transparency Initiative in 2015.

CONTRIBUTORS

Adekanmi Alexander Abayomi is a barrister and solicitor of the Supreme Court of Nigeria. He is a partner in Aux’ander Advisors, a Nigerian maritime law and ship-broking firm. He obtained a bachelor of law (LLB honors) degree from Obafemi Awolowo University Ile-Ife, in Osun-State, Nigeria, and attended the Nigerian Law School in Abuja, Nigeria. Abayomi is a seasoned maritime lawyer, a shipbroker and a Baltic exchange, United Kingdom (UK)-trained freight derivatives and shipping risk management professional. He has in-depth knowledge and vast experience in freight market, maritime advisory services, ship finance, and investment. Abayomi is currently pursuing a professional qualification at the Institute of Chartered Shipbrokers in the UK.

2016-2017 · VOLUME XII 5 Lyombe Eko is a professor at the College of Media and Communication at Texas Tech University. He earned his PhD in journalism from Southern Illinois University at Carbondale. His dissertation was on French press coverage of American presidential elections. Eko’s areas of research and teaching interest are mass media law, comparative Internet law and policy, international communication, and visual communication studies with a focus on political cartoons. He has published three books: The Regulation of Sex-Themed Visual Imagery: From Ancient Clay Tablets to Tablet Computers (Palgrave, 2016); the award-winning Case Studies in Comparative Communication Law and Policy (Lexington Books, 2012); and American Exceptionalism, The French Exception and Digital Media Law (Lexington Books, 2013). Eko has also written numerous articles in law review journals, as well as international and visual communication journals. He has been a professor at the University of Maine and the University of Iowa.

Douglas Gichuki is a doctoral candidate at the University of Cape Town, in South Africa. His primary research interests are the legal and regulatory issues arising from cloud computing, such as information ownership, cloud contracts, and data protection. His research focuses on cloud computing and data protection law. Gichuki is a research fellow at the Center for IP and IT Law (CIPIT) at Strathmore University Law School in Nairobi, Kenya. He is also a law lecturer at Strathmore. Gichuki holds an LLB from the Catholic University of Eastern Africa (CUEA) in Nairobi, and an LLM in information law and IP from Norwich Law School at the University of East Anglia in the UK. He is an associate at the Nairobi law firm of Muma & Kanjama, where he leads the intellectual property and IT law department.

Laure Gnassou is an experienced economist with a particular interest in the Democratic Republic (DR) of Congo’s economy since 2004. Prior to her experience with the United Nations peacekeeping mission in the DR Congo, Gnassou worked with the European Parliament, the European Commission, and the Central Bank of Finland. She holds a pre-PhD in international economics from Grenoble University in France. An initial version of the paper “The End of the Commodity Super-Cycle and its Implications for the DR Congo” was presented during the Development Study Association (DSA) conference at Queens College, at the University of Oxford on September 13, 2016.

6 AFRICA POLICY JOURNAL Aatmik Gupta is a student currently in his senior year at Modern School, Barakhamba Road, New Delhi. He has a deep interest in economic policy research with a special emphasis on the political economy of trade. He has previously worked as a research assistant at the Center for Policy Research, a top Indian think tank, where he was a part of a team assessing the impact of the Indian government’s rural road building scheme. He has also interned in the Office of the Member of Parliament for New Delhi. In 2017, he won the Young Economist prize awarded by the Shri Ram College of Commerce, one of India’s top academic institutions. He is currently working on building on his research on intra-African trade by studying its impact on manufacturing production.

Arthur Gwagwa is a senior fellow with the Open Technology Fund (OTF), currently hosted by the CIPIT at Strathmore Law School in Nairobi, Kenya. Gwagwa also currently holds two roles, both as a research attorney with the Advocates Chambers in Zimbabwe, and as an international advocacy coordinator, responsible for research and advocacy on rule of law at the Zimbabwe Forum.

Wamaitha Mukui is an undergraduate student pursuing a bachelor of business studies in financial economics at Strathmore University in Nairobi, Kenya.

Lucy Muthoni is a PhD student at Strathmore University in Nairobi, Kenya. She is passionate about poverty reduction in Kenya.

Vivian Ojo is a Namibian-Nigerian student at Oxford University pursuing a master’s degree in public policy. She was formerly a Princeton in Africa fellow, where she worked for the African Leadership Academy in Johannesburg, South Africa. Ojo directly worked for the African Careers Network, the career and internship placement arm of the academy that managed hundreds of MasterCard foundation and ALA students. She has previously worked on the Brazil, Russia, India, China, and South Africa (BRICS) policy brief on commerce in 2013 when she was a researcher at the BRICS policy center in Brazil. Ojo graduated magna cum laude with a bachelor of science from Georgetown University’s School of Foreign Service, where she focused on natural resource management and international development in Africa and Latin America.

2016-2017 · VOLUME XII 7 ACKNOWLEDGEMENTS

Isaac Rutenberg, PhD, is a senior lecturer and the director of the CIPIT at Strathmore Law School in Nairobi, Kenya. Rutenberg has a bachelor of science (BS) in math/computer science, a BS in chemistry, a PhD in chemistry, and a joint-degree in law. At CIPIT, Rutenberg is training the next generation of Kenyan IP legal professionals; building the IP/IT infrastructure of Kenya and Africa; introducing IP- and IT- related skills that are otherwise unavailable; encouraging suitable IP and IT policies in government and the private sector; and conducting original research on IP and IT issues in Kenya and Africa.

FACULTY ADVISOR

Calestous Juma is a professor of the practice of international development and director of the Science, Technology, and Globalization Project. He directs the Agricultural Innovation in Africa Project, funded by the Bill and Melinda Gates Foundation. Juma also serves as faculty chair of Innovation for Economic Development executive program. He is a former executive secretary of the UN Convention on Biological Diversity and founding director of the African Center for Technology Studies in Nairobi. He was chancellor of the University of Guyana and has been elected to several scientific academies, including the Royal Society of London, the US National Academy of Sciences, the Academy of Sciences for the Developing World, the UK Royal Academy of Engineering, and the African Academy of Sciences. Juma has won several international awards for his work on sustainable development. He holds a doctorate in science and technology policy studies and has written widely on science, technology, and the environment. Juma serves on the boards of several international bodies and is editor of both the International Journal of Technology and Globalization and the International Journal of Biotechnology. His most recent book, The New Harvest: Agricultural Innovation in Africa, was published by Oxford University Press in 2011. Juma teaches graduate courses on innovation, development, and globalization; technology and sustainability; and an undergraduate seminar on biotechnology, sustainability, and public policy. He is currently working on a book on resistance to new technologies. Follow @Calestous on Twitter.

8 AFRICA POLICY JOURNAL ACKNOWLEDGEMENTS

e would like to recognize and thank the people who helped Wproduce this year’s journal. We thank Martha Foley, Assistant Director of Student Services, who provided endless support in our efforts to raise funds and expand the readership of APJ. We would also like to thank the Center for African Studies (CAS), the Mossavar- Rahmani Center for Business and Government, the Kennedy School Student Government (KSSG), the Malcolm Wiener Center for Social Policy, and the Africa Caucus at the Harvard Kennedy School (HKS) for their financial support and encouragement. A special thanks goes to HKS lecturers Richard Parker and Greg Harris for their editing and writing guidance. We also thank Skyler Lambert, our copy editor at the HKS, for his work to ensure the journal came together to meet the student journal standards of excellence. Last, but not least, we would like to thank all of our contributors who have turned their passions and research on Africa ­related topics into wellformed­ and articulate academic articles and opinion pieces that we are proud to share with our readers.

SPONSORS AND PARTNERS

. The Harvard Kennedy School Student Government (KSSG) . The Center for African Studies (CAS) . The Mossavar-Rahmani Center for Business & Government (M-RCBG) . The Malcolm Weiner Center for Social Policy . The Africa Caucus at the Harvard Kennedy School

2016-2017 · VOLUME XII 9 EDITOR’S REMARKS

am so excited to present the 2016-2017 edition of the Africa Policy IJournal. This edition of APJ showcases a range of topics, including information technology, education policy, and the commodities slump. These articles are the product of the hard work of our amazing contributors, who have graciously shared their expertise and knowledge of issues on the African continent.

I would like to thank my friends and editors emeritus Ngozika Amalu and Devon Maylie. Their support and feedback over the past couple of months has been invaluable. I’d also like to extend my thanks to this year’s editing team for their hard work. Finally, I extend my deepest gratitude to the Center for African Studies, Dean Doug Elmendorf, Martha Foley, the Harvard Kennedy School Student Government, and the Malcolm Wiener Center for Social Policy.

Thank you for reading and I hope that you will continue to be our partner in changing the African narrative.

Sincerely, Alicia E. Bello Editor-in-Chief, Africa Policy Journal, Harvard University

10 AFRICA POLICY JOURNAL OPINIONS

Going Beyond the Model: Reimagining Education Policy in Africa BY VIVIAN OJO

frica is not in the business of Aretrofitting. In his Chatham House address, economist Carlos Lopez discusses the opportunity for Africa to develop not just Figure 1. Solar panels in Dire Dawa, Ethiopia in spite of, but because of, its “latecomer” status. Lopez refers As one of five siblings who to the continent’s economic attended high school in Namibia, transformation in general, and I used the same tattered history speaks specifically about the textbook as my brother, who potential in the green energy attended high school in Apartheid industry on the continent. Rural Namibia almost twenty years areas surrounding Dire Dawa in prior. While this is ideal for any Ethiopia that had not previously parents with several children and had access to basic power grids a limited budget, the disheveled for electricity, now host solar O’Callahan history book sits on panels beaming more light, at my shelf as a reminder of how cheaper rates, for more people, little has changed in Namibian than ever before (see Figure 1). education content. Of course, Africa is literally lighting up, credit must be awarded where and though Afro-optimism due; several teachers, by their must be met with caution, this individual initiatives, work optimism must not stop short of tirelessly to revamp the style of application to education policy. teaching and improve the quality The opportunity to harness the of learning. This kind of quality challenges of the past in charting has, however, only emerged in a path for the future in the some schools, particularly those education sector is equally bright. where parents are most active

2016-2017 · VOLUME XII 11 and resources most abundant. The Case for Scale, Sadly, innovation in education Problem Solving, and is not happening at scale in Unconventional order to meet the demands of Teaching a rapidly growing population In a standard African of young people in Namibia Leadership University (ALU) data and in the broader African and decisions class in Mauritius, continent. In 2017, the research the twenty-something-year-old on cognitive learning is vast teacher, a Harvard graduate and the correlation between from West Africa, instructs quality education and productive the cohort of undergraduates citizens is largely undisputed. Our with confidence (see Figure 2). continent needn’t wait to make Today’s class will help students several mistakes; instead, learn to manipulate and refine the data from them and then fight to apply they will use in a presentation to those lessons into reshaping rigid Uber’s strategic head for South education systems. Africa later in the day. Their For Africa, the creative projects will attempt to identify process needn’t be stifled by which African market Uber past pedagogy that has proven should next enter. The learning ineffective. In meeting the is palatable, and there is true millennium development goals excitement in the eyes of students target for education, 2015 became who will see their work in class the first year that every Namibian integrated with work beyond child was able to enroll in primary it. ALU, the brainchild of Fred education. The opportunity Swaniker, is an audacious vision to implement thoughtful and for an African university with a quality approaches to this deep focus on integrating learning cohort’s learning is, in some with real-world problems, ways, a blank slate for Namibian empowering students to take policymakers—who should by ownership of their learning and to now have learnt, at the very least, think entrepreneurially. Swaniker what has not worked over the speaks openly about building preceding two-and-a-half decades twenty-five campuses across from the mistakes made in other Africa, serving over three million parts of the world. young Africans over fifty years. But like any policy issue, the The sheer scale of the ambition how can prove more critical and has never been seen before in the difficult to answer than the why. pan-African education space, and Knowing how broken the current yet somehow, it is the first of its system is, is unfortunately not in kind to truly match the scale of itself a solution to the brokenness. problem that awaits the continent A number of cases in and outside if the rampant broken education the African continent stand out systems are not quickly fixed. in their approach to going beyond the standard education model and drawing on innovative education methodology.

12 AFRICA POLICY JOURNAL Figure 2. Inside ALU in Mauritius

The Case for Epicenters millionaire who quit Microsoft of Excellence and Lib- to educate future leaders—sees eral Arts Ashesi as part of a much-needed “African renaissance.” He tells In Ghana, Ashesi University his friends that Ashesi does not is over a decade old and continues intend to scale. The school will, to become a competitive of course, have impact by virtue university, not just for Ghanians, of its alumni, but there is no but also for students across the intention to have several other Africa. On hundred percent of branch campuses across the Ashesi students will learn to continent. Not all great ideas are, code. A significant emphasis on or even should be, scalable. Ashesi career readiness, a diverse cohort, intends to stand out as an example and a liberal arts and sciences of excellent pan-African tertiary approach to tertiary education education and leadership with the will distinguish the university hope that the rest of the continent from its peers. Patrick Awuah, the can learn from this model (see founder of Ashesi—known as the Figure 3).

Figure 3. Ashesi University College amphitheater

2016-2017 · VOLUME XII 13 Cases for Student Own- compared with when they did ership, Choice, Tech- not have a choice.” The case for nology, and Travel in student engagement and overall Education responsibility to learning can be identified even on a secondary Outside of the continent, school level in schools like there exists a host of innovative African Leadership Academy, learning institutions on a where all students, regardless tertiary level. In programs such of financial background, are as Minerva, the learning occurs expected to pay an amount— in several major cities across sometimes as little as $10— the globe with students moving toward their school fees, which almost every term to allow are facilitated by on-campus for a diverse and immersive jobs (see Figure 4). This is done experience. For the founder, as an incentive so all students, emphasis on cross-subject regardless of socioeconomic collaboration among professors background, take partial to identify and address broader ownership and have significant learning gaps is important to stake in their own schooling. Minerva’s pedagogical philosophy. There is an exhaustive list At Minerva and in other of educational institutions and educational institutions, online platforms mushrooming across learning is increasing at a tempo the globe paying particular to match our rapidly digitizing attention to incorporating world. Sites like Khan Academy, cognitive science, ethical for example, are making subjects leadership, entrepreneurial more broadly accessible to thinking, and collaborative students around the world via teaching into their methodology. the Internet. Students are able to It is important to note that while not only learn at their own pace a lot of this work has been done from anywhere in the world, but outside of Africa, much of it is can also choose what they wish to new in practice, even to some learn. This move toward allowing of the world’s top academic increased student autonomy and institutions. There is, in this agency in the learning process is regard, the opportunity for predicted to have great effects. Africa to forge ahead in this area Erika Patall shares, in the Journal without trying to “play catch-up.” of Educational Psychology, an In fact, one could argue that our experiment that demonstrates continents positionality is a prime the importance of “choice” for vantage point to chart our own education performance. She path and avoid the natural pains reveals, rather definitively that that come with retrofitting. “when students received a choice The examples demonstrated of homework they reported above are not without flaws and higher intrinsic motivation to do fragilities. In fact, identifying the homework, felt more competent flaws of these models should be regarding the homework, and the work of any forward-thinking performed better on the unit test, African government. These

14 AFRICA POLICY JOURNAL examples, at their core, simply each aspect on its merit and present interesting possibilities for concerning its relevance to approaching education in a more modern-day African needs, interdisciplinary, collaborative, leaving no aspect immune and student-centred manner that from deletion or revision. On a policymakers should be exploring practical level this might mean and perhaps implementing in critical conversations with the public sector. This does not the recruiters of graduates in mean ridding ourselves entirely the private sector in order to of the standard education make learning more “customer- system. What it does suggest, driven,” and thus considering though, is allowing ourselves students, parents, and future the opportunity to imagine and employers as key stakeholders. build our own framework of Essentially, this approach means learning that captures some of the a complete evaluation and nuances of our culture, introduces reform of education policy to decolonial language, and pushes meet present-day needs. Such back at scale on the false notion reform may even inspire those of a singular structure of great African communities beginning teaching and learning. to access solar energy to charge As a policy issue, this calls their mobile phones, to start for a revision of the curriculum, using those very gadgets to the teaching methodology, and access relevant, comprehensive greater structure of the education education and illuminate, on their system. The process must hold own terms, a path to a brighter every tenant of the education future. system to the light, evaluating

Figure 4. African Leadership Academy in Johannesburg, South Africa

Endnotes can be found online at http://apj.fas.harvard.edu/

2016-2017 · VOLUME XII 15 Gihembe refugee camp in northern Rwanda on World Refugee Day, Hillel Bavli, Harvard Graduate School of Art and Sciences

16 AFRICA POLICY JOURNAL Globalization and the Diffusion of Media Policy in Africa: The Case of Defamation of Public Officials BY LYOMBE EKO

Abstract The legal and policy transfer perspective holds that due to asymmetric power relations between nations, policy diffuses from global centers of power and influence to the periphery of the international relations system. Over the years, aspects of the landmark New York Times v. Sullivan decision handed down by the United States (US) Supreme Court have diffused to Africa. This paper analyzes how law and public policy standards protecting journalists from the wrath of government officials in defamation cases have diffused from the US to the African Commission on Human and Peoples’ Rights and the African Court of Human and Peoples’ Rights. These African judicial bodies received, contextualized, and Africanized international defamation principles with respect to public officials. This piece also explores how four African countries—South Africa, Kenya, Uganda, and Zimbabwe—have echoed the public policies set forth in New York Times v. Sullivan in specific cases involving media defamation of powerful government officials. This development bodes well for freedom of expression in Africa, a continent that has had the unfortunate reputation of being the home of authoritarian “strong men” who’ve ruled over regimes of law and disorder.

2016-2017 · VOLUME XII 17 Introduction

Globalization and the specific religious faiths, sacred interconnection of nations, religious texts, revered religious cultures, and peoples through figures, sacred locations, icons, or information and communication rituals—with defamation. Since technologies has resulted in a some cultures and societies assign global society, which, despite higher status to revealed religions, political, economic, cultural, religious orthodoxy and religious social, and religious differences, rites often take precedence over is increasingly receptive to shared the human right of freedom of values of human rights and opinion and expression in many freedom of expression. These parts of the world, including a values often diffuse from centers number of African countries. The of international influence and “Mohammed cartoons affair,” a power to the periphery of the global, political, and diplomatic global system. The post-World controversy triggered by its War II international human rights publication in 2005, of twelve regime that was inaugurated satirical cartoons of Prophet under the auspices of the United Mohammed in the Danish Nations (UN) is best known newspaper Jyllands-Posten, for its emphasis on freedom of and later in the French satirical thought, conscience, religion, newspaper Charlie Hebdo, and opinion. The Universal brought the clash of freedom of Declaration of Human Rights expression and respect for religion specifies that the right of freedom to the forefront of international of opinion and expression “. relations. Muslims in many parts . . includes freedom to hold of the world were not amused opinions without interference by the satirical cartoons. Under and to seek, receive, and impart pressure from the Organization information and ideas through of Islamic Cooperation (OIC) any media and regardless of and the Arab League, the UN frontiers.” General Assembly passed However, because of the resolutions denouncing the diversity of political regimes, “defamation of religion.” This has religions, and cultures around resulted in the criminalization of the world, freedom of conscience blasphemy and globalization of and opinion are pluralistic respect for religion in numerous concepts that are conceptualized jurisdictions. and applied differentially in The African continent has politico-cultural and religious not been an enclave immune contexts. In recent years, the UN to international debates over General Assembly has passed a defamation and freedom of number of resolutions that equate expression. Althought Africa blasphemy—offensive statements is said to be on the margins of or writings that deny the existence globalization and international of God; parody, mock, or satirize power relations, international

18 AFRICA POLICY JOURNAL public policy on human rights expression of Achille Mbembe) and freedom of expression have has undergone a dramatic change diffused to the continent and due in part to the diffusion and are being domesticated at the domestication of international national and transnational levels norms of freedom of expression. under the auspices of the African This article describes how Union. This is especially true of international law and public defamation, a form of tortious policy standards protecting communication that, in Western freedom of expression in general, context, is defined as “publication and journalists in particular, of a statement about a person have diffused from the US to that tends to lower his reputation Africa. This piece is significant in the opinion of right-thinking because it focuses on criminal members of the community or defamation of presidents and to make them shun or avoid him government officials. This is an . . . Defamation is usually in area of law powerful political words, but pictures, gestures, and leaders and government officials other acts can be defamatory.” had used as a censorious cudgel Defamation, as defined in against journalists and the specific social, legal, political, media. Criminal defamation law and cultural contexts, is generally in Africa is a legacy of British, considered outside the ambit of French, Portuguese, and Spanish protected speech and expression. colonialism. These laws had The evolution of defamation been enacted to silence criticism law in Africa is a result of the of European colonialism and post-Cold war liberalization exploitation. Ironically, when and democratization that took African countries became place on the continent in the independent in the 1960s, most 1990s. During that period, of these postcolonies dusted off the African media presented European colonial defamation post-independence Africa as a laws and imposed them on “political jungle,” complete with their fledgling countries. The animalized, authoritarian military democratizations of the 1990s rulers, “strongmen,” “fathers helped pave the way for the of nations,” and “presidents diffusion of international for life,” and so on, who either human rights values to Africa. presided over systems of “law Specifically, it led to greater and disorder,” were essentially freedom of expression and to above the law, and beyond interrogation of the utility of criticism even on matters of criminal defamation laws at the public concern. The typical level of the . African “postcolony” (to use the

2016-2017 · VOLUME XII 19 Aim of Article

This article will focus on the innovation that diffused from the transfer and diffusion of human US to Africa. It analyzes how this rights and freedom of expression landmark American defamation policy from the center of the case has become persuasive global system to the periphery, authority in specific national and using as a case study the diffusion transnational jurisdictions. The of law of defamation of public first part of the article surveys officials from the US and the British and French colonial law international community to the of defamation as applied to their African Court of Human Rights respective colonies in Africa. The and Freedoms, as well as a select second part surveys American group of African countries. defamation law and policy values Specifically, the article explores that diffused to Africa in the how “New York Times actual post-Cold War era. The third part malice,” the public policy standard analyzes how the transnational for defamation of public officials African Court of Human and set forth in New York Times v. Peoples’ Rights adjudicated a Sullivan, a case decided by the defamation case from Burkina US Supreme Court in 1964, has Faso and issued a landmark diffused to the African continent decision regarding public officials via the African Court of Human and defamation. The fourth Rights, and is accepted or rejected part discusses how the African in context-specific iterations of Commission on Human and defamation law in South Africa, Peoples’ Rights conceptualized Kenya, Uganda, and Zimbabwe. and domesticated American These countries inherited the defamation policy with regard common law defamation tradition to public officials and applied it of the United Kingdom. This to a campaign to decriminalize study was carried out within the defamation. The fifth part surveys framework of policy transfer, a how courts in South Africa, theoretical approach that explains Kenya, Uganda, and Zimbabwe how legal traditions, laws, and negotiated and domesticated policies are transferred from the American defamation law and center to the periphery of the public policies to their respective global system in context of the jurisdictions. The question that unequal power dynamics like guided this exploratory study was colonialism. the extent to which the values This article conceptualizes of New York Times v. Sullivan the actual malice standard of New diffused and went “native” in York Times v. Sullivan as a legal Africa.

20 AFRICA POLICY JOURNAL Theoretical Perspective: Diffusion of Innovations

This study of the evolution they diffuse. While the concept of African public policy with of diffusion of innovations regard to the defamation of public has mostly been applied to officials was carried out within the technologies that facilitate the framework of the diffusion social change in developing of innovations perspective. In countries, the concept is an 1903, French sociologist Gabriel apt metaphor applicable to the Tarde theorized the world is in spread of novel ideas, policies, a perpetual state of innovation and governmentalities—logics of and change. He suggested this government and governance— situation of constant dynamism from international centers of and flux requires the emergence, power and influence to nations diffusion, and penetration of and transnational political entities inventions. He suggested that in the periphery of the global innovations usually diffuse like system.The contention of this widening ripples or enlarging article is that the American public concentric waves created by a policy standard of New York drop of rain when it touches a Times v. Sullivan, which accords quiet pool. Thus, each innovation the media enhanced protection has a geometric center from by requiring public officials which it spreads to the outer and public figures who sue for fringes of the globe, the so- defamation meet very exacting called periphery. Furthermore, standards in order to collect innovations are often modified damages, was a human rights or reinvented in the diffusion innovation that diffused to Africa process in order for them to be and other parts of the world domesticated into the cultures, through the process of policy environments, or spaces to which transfer.

Diffusion of the American Defamation Standard As Legal and Policy Transfer

The diffusion of defamation to the periphery of the global standards from the US to Africa system (the developing world). over the period of a half-century, Dolowitz and Marsh define exemplified the process of policy transfer as “a process in international legal and policy which knowledge about policies, transfer. This expression refers administrative arrangements, to the diffusion of human rights institutions and so on, in one and other pubic policies from time and/or place is used in centers of political, economic, the development of policies, and technological power (the administrative arrangements UN and the developed world) and institutions in another time

2016-2017 · VOLUME XII 21 or place.” Esin Örücü suggests agencies; and (iii) legal transfers legal transfers diffuse from imposed as part of colonial the centers of international domination, or post colonial political power to the global arrangements. African countries economic and legal periphery— have been on the receiving end the transitional or developing of policy transfers since the regions of the world—that he colonial era, which lasted roughly calls “extraordinary places.” The from 1800 until 1960. Indeed, policy transfer perspective holds colonialism was based on the that due to asymmetric power transfer of law and policy from relations between nations and European centers of power and regions, bundles of implicit and influence to African colonies. explicit communication laws and After independence, many policies almost always diffuse in a newly independent countries manner identical to the diffusion enacted national legislative of technological innovations. instruments that transferred or Policy transfer takes grafted European colonial policies place through jurisprudential and values onto post-colonial imposition, imitation, or through systems. Legal transfers are multilateral cooperation. Nelken characteristic features of national, advanced the notion there are supranational, and international three types of legal transfer: (i) communication policy regimes. legal transfers that take place One of the major uses of policy through processes of trans- transfer is to harmonize the laws territorial harmonization of of the recipient country with private law, as is the case with those of the colonial power of the European Union and the with international norms. An Council of Europe; (ii) legal example of this is the transfer and policy transfers that take of the freedom of religion and place within the framework of expression values of the Universal international conventions entered Declaration of Human Rights to into under the auspices of the African countries in the post- United Nations or its specialized Cold War era.

British Colonial Law of Defamation

The main source of West Africa Conference of 1884 defamation law in contemporary and 1885, which was hosted by Africa was European colonial German Chancellor Otto von defamation law and policy. Bismarck. When Germany lost The major European powers— World War I it also lost its African the United Kingdom, France, territories under provisions of Germany, and Portugal— the Treaty of Versailles of 1919. partitioned Africa among The United Kingdom, France, themselves during the Berlin and Portugal thus became the

22 AFRICA POLICY JOURNAL largest colonial powers in Africa defamatory “statements” were after World War I. One of the statements made in some branches of law the United “permanent and visible form, Kingdom and France transferred such as writing, printing, pictures to their African protectorates or effigies.” Furthermore, slander, and colonies was defamation law. defamation that was not in Given the colonial contexts, these permanent form, had an elastic laws and policies were generally definition. It included “spoken aimed at maintaining law and words or in some other transitory order through the enforced form, whether visible or audible, subservience of colonial subjects. such as gestures, hissing, or As such, these laws and policies other inarticulate but significant were skewed toward the colonial sounds.” In the colonies, this administrators and powerful broad definition ultimately colonial entities. Sir John William included African symbolic Salmond summarized the laws expressions of displeasure or of defamation that were in force dissent: foot-dragging, shuffling, in the United Kingdom and its foot-thumping, whistling, overseas territories at the turn of sighing, coughing, clearing one’s the twentieth century. Defamation throat, rolling one’s eyes, spitting, law in the UK and its African laughing, or giggling, drumming, territories was generally defined dancing, standing, sitting, wearing as “the publication of a statement African masks and masquerades about a person that tends to lower without authorization at the his reputation in the opinion of wrong time, in the wrong place, right-thinking members of the in the right location, at the wrong community or to make them time, or in the wrong manner shun or avoid him.” In the late could be construed as making nineteenth and early twentieth criminal defamatory “statements’ centuries, the eras of colonialism, against her majesty’s government, defamation law in British African the colonial authorities, their territories were an instrument of representatives, or their assigns. law enforcement. The law had the Cartoons and caricatures following provisions: were also covered by the law: A defamatory statement “An action will lie for the is not necessarily made in publication of a humorous story, words, either written or which exhibits the plaintiff in a spoken . . To exhibit an ridiculous light, or for a caricature insulting picture holding up of his personal appearance or the plaintiff to ridicule or manners.” This law made it a contempt is an actionable crime to draw cartoons of anyone libel. So also is the act of in a position of authority in placing an effigy of the the colonial administration. A plaintiff among those of fundamental characteristic of murderers and other British colonial law of defamation ill-famed persons in an was that the onus of proving exhibition. the information published was According to Lord Salmond, truthful and in the public interest

2016-2017 · VOLUME XII 23 lay with the accused: “The above from Zimbabwe and burden of proof rests upon the Sierra Leone demonstrate, the defendant; it is for him to prove post-independence defamation that the statement is true, not law regimes of many British for the plaintiff to prove that it African postcolonies have is false.” In short, under British continued to operate within the colonial law of defamation as draconian colonial straightjacket interpreted in different African they inherited from British colonial contexts, defamation colonialism. Not only are these was not merely an actionable tort laws patterned after British per se, in which proof of actual defamation law, they have in some damages was not required, but it cases continued to follow British was also a criminal offence that colonial legal precedent. was punishable by imprisonment or fine or both. As the examples

Defamation Under the French Law of July 29, 1881, on Freedom of the Press

In the French colonial under the law of criminal territories of Africa, defamation procedure. This emphasis on was governed by the law passed procedure was to provide media on July 29, 1881, on freedom defendants in defamation suits an of the press, which had been opportunity to demonstrate the enacted in France. Though truthfulness of their publications this law was considered the and their good faith. cornerstone of freedom of the The 1881 freedom of press in France, its colonies and the press law was extended overseas territories, after close to to France’s African colonies. a century of post-revolutionary Before passage of the law, the turmoil and restrictions on the colonial administrator was the press, had limiting provisions that sole, authorized newspaper incriminated certain behaviors publisher in each territory. He specific to the press. These délits had the power to delegate some de presse included offenses against of that responsibility to Catholic the president of the republic, missionaries. This was all part of publication of false information, France’s assimilationist policy, acting against the honor and which aimed at transforming consideration of a citizen, inciting Africans into black French citizens to commit crimes or men and women. Nevertheless, to violate the law, and criminal African colonial administrations defamation. Since defamation had no patience with the niceties was a criminal offence in France of procedural safeguards in their the law guaranteed the press a application of the press law in modicum of procedural fairness general, and criminal defamation

24 AFRICA POLICY JOURNAL in particular. Any opposition to délits de presse (press offenses colonialism and any implicit or against the law). The fall of the explicit sign of insubordination Berlin Wall in 1989, and the toward the colonial authorities “wind of democratization” that or the Catholic was censored blew across Africa in the 1990s and severely penalized. All emboldened African journalists publications had to be controlled and civil rights activists to and edited by a white, European challenge strict governmental French citizen, and all African control of the media in the journalists who did not follow British, French, and Portuguese- the dictates of the colonial speaking countries of the administration were either continent. Since many of these imprisoned or exiled to other countries had been shaken by the colonies. As we will see below, forces of globalization, emerging the government of Burkina Faso online technologies, and human argued in Konaté v. Burkina rights policies that diffused from Faso, a 2005 case adjudicated international communities, by the African Court of Human several democratized their Defamation Under the French Law of July 29, 1881, on and Peoples’ Rights, that the governmental systems and Freedom of the Press country’s criminal defamation reluctantly granted the media a law provisions met international modicum of freedom. Since our standards because they were focus is the diffusion of American grounded in the French 1881 defamation values regarding freedom of the press law. The law public officials to Africa, we will offers criminal sanctions against now survey these policies.

Emergence of a New American Defamation Policy: The New York Times v. Sullivan

The US is known for its exceptionalism. While the US exceptional First Amendment inherited a criminal defamation law and policy regime, which or “seditious libel” regime from guarantees Americans freedom the British colonial regime in of speech and of the press. While North America, this type of the US is noted for exporting defamation has, over the years, innovative technologies, popular been abolished in in favor of civil culture, and fast food to the defamation lawsuits. rest of the world, it has also Additionally, the US Supreme exported its culture-specific, Court has said prosecutions First Amendment-inflected for defamation against the version of defamation policy to government, as well as civil the rest of the world. Frederick lawsuits, are not tolerable under Schauer suggests defamation is a the American constitutional substantive area of law and policy system. Therefore, criticism of that is a hallmark of American government officials should

2016-2017 · VOLUME XII 25 not be construed as criticism regime in which the government of government officials. In and its institutions are not Rosenblatt v. Baer, the US permitted to bring defamation Supreme Court ruled that actions. Furthermore, these cases Criticism of government reinforced the idea of exceptio is at the very center of the veritatis (substantial truth as constitutionally protected a defense in libel), and cases area of free discussion. turn on the attitude of media Criticism of those defendants toward the truth, not responsible for government toward the plaintiff. Therefore, operations must be free, public officials who bring actions lest criticism of government for defamation in connection itself be penalized. It is with their official duties have a clear, therefore, that the virtually insurmountable task. “public official” designation This revolutionary turn was set applies, at the very least, to forth in the landmark 1964 case those among the hierarchy New York Times v. Sullivan, which of government employees as we see later, has influenced who have, or appear to the defamation law around the world. public to have, substantial As indicated above, the legal responsibility for or controversy in New York Times control over the conduct of v. Sullivan arose during the civil governmental affairs. rights era. The New York Times published a full-page editorial American public policy advertisement that described in on defamation is grounded detail an alleged “wave of terror” on the British common law that had been inflicted on Martin of defamation, which has two Luther King Jr. and other non- prongs: libel (written defamation) violent civil rights demonstrators and slander (spoken defamation). in some southern states. The Defamation law and policy in advertisement contained minor the US essentially stayed true inaccuracies: the song student to its British roots until 1964 protesters sang, the number of when it was brought within times Martin Luther King Jr. had the ambit of First Amendment been arrested, and so forth. Louis jurisprudence during the civil B. Sullivan, police commissioner rights era. In effect, many in Montgomery, Alabama, sued American public officials who the New York Times and the civil were intent on stifling the civil rights leaders who had placed the rights movement of the 1960s ad for libel. He claimed he was attempted to use defamation as identified in the advertisement a censorious weapon to silence because the word “police” had Martin Luther King Jr. and been mentioned. The trial other African American leaders judge in Alabama held that the clamoring for civil rights in inaccurate statements in the ad the US. The outcome of these were libelous per se, that is, they legal and political struggles was were defamatory at face value, the emergence of a defamation and that the jury had to decide

26 AFRICA POLICY JOURNAL whether the statements were from recovering damages made “of and concerning” the for a defamatory falsehood plaintiff. If they were, general relating to his official damages were to be presumed. conduct unless he proves The jury returned a verdict that the statement was made of $500,000 for Sullivan. The with “actual malice”—that Alabama Supreme Court affirmed, is, with knowledge that it holding that defamation was was false or with reckless not protected speech and malice disregard of whether it was could be found in the defendants’ false or not. statement. The New York Times The court essentially ruled appealed to the US Supreme that a public official could not Court, which agreed to review collect damages for defamatory the case. The question before falsehoods uttered in connection the court was whether finding with official duties because doing the New York Times and the civil so would violate the First and rights leaders liable for criticizing Fourteenth Amendments. This a public official in connection new policy brought defamation with his official conduct violated law within the ambit of the First the freedom of speech and of Amendment. It set forth the the press guaranteed by the First status of public officials under Amendment. The court stated defamation law, and specified that it was considering the case in the standard of proof they have the context of to show in order to collect . . . a profound national damages. This is a very high commitment to the principle standard because it is subjective that debate on public issues and essentially transforms public should be uninhibited, officials who sue for libel into robust, and wide-open, and mind readers who have the near- that it may well include impossible task of ascertaining vehement, caustic, and the state of mind of the media sometimes unpleasantly defendant at the time the alleged sharp attacks on government defamatory statement was and public officials. published. After ruling that erroneous The New York Times v. statements are inevitable in Sullivan represented a radical free debate, and even mistakes departure from the common must be protected in order to law defamation tradition the give freedom of expression the US had inherited from the “breathing space” it needs to United Kingdom. The New York survive, the court set forth the Times actual malice standard now famous New York Times is subjective, concerned with actual malice standard: the defendant speaker’s attitude toward the truth rather than The constitutional toward the plaintiff. The court guarantees require, we has broadened the New York think, a federal rule that Times actual malice standard prohibits a public official

2016-2017 · VOLUME XII 27 through the progeny of New limited purpose or vortex public York Times v. Sullivan. Gertz v. figures must meet the stringent Welch set forth the categories of New York Times actual malice plaintiffs in defamation suits and standard, while private figure the fault standards they have to plaintiffs have to meet the lesser meet to collect damages: public fault standard of negligence. officials, public figures, and

Diffusion of the New York Times Actual Malice Defamation Policy to Africa

We saw earlier Gabriel African Court of Human and Tarde advanced the idea that Peoples’ Rights, as well as to a innovations usually diffuse like number of African countries. widening ripples or enlarging Along the way, this defamation concentric waves created by a policy was reinterpreted, drop of rain when it touches a reinvented, rearticulated, and quiet pool. Thus, each innovation applied to local realities. has a geometric center from which it spreads to other areas. The African Court on Hu- Furthermore, innovations are man and Peoples’ Rights often modified or reinvented in the diffusion process in order When the Pan-African body, for them to fit each culture or the Organization of African environment for which they Unity (OAU) was formed come into contact. This model in Addis Ababa, Ethiopia, is applicable to the diffusion of in 1963, its main focus was the defamation policies set forth the political and economic in New York Times v. Sullivan to liberation of Africa, as well as other parts of the world. In the the eradication of apartheid last half-century, certain aspects and racial discrimination in of the landmark decision have . The priority of diffused from their geographic most newly independent African center of origin (the US) to the countries was the development periphery of the international of basic infrastructures: health system. Indeed, a few years after and sanitation, education, the New York Times v. Sullivan agricultural production, decision, its values diffused transport and communication, to some “early adopters”—the and so on. Individual rights and European Court of Human Rights liberties were not part of that and the United Kingdom. This equation. In the field of mass paper is concerned specifically communication, the media were with the diffusion of these policies conceptualized as catalysts for to the African Commission on development, not instruments Human and Peoples’ Rights, the for Western-style, liberal

28 AFRICA POLICY JOURNAL democratic debate, criticism, and and reinforce the functions of denunciation of governmental the African Commission on failures. What existed was Human and Peoples’ Rights mostly a tightly controlled, through adversarial litigation government-owned press. The and adversary opinions rendered result is that an authoritarian to member states of the African human rights situation existed Union. The protocol establishing in most African countries from the African court came into 1960 until 1990. Under pressure force on January 25, 2004. The from African and international ACHPR is a continental court Diffusion of the New York Times Actual Malice human rights activists who established by African countries Defamation Policy to Africa took African countries to task to ensure protection of human for condemning human rights and peoples’ rights in Africa. The violations in southern Africa court has jurisdiction over all while turning a deaf ear to such cases and disputes submitted to it violations in their own countries, concerning the interpretation and the member states of the OAU application of the African Charter adopted the African Charter on on Human and Peoples’ Rights, Human and Peoples’ Rights in the protocol itself, and any other 1981. This unprecedented charter relevant human rights instrument emphasized freedom, equality, ratified by the African states justice, peace, and human . concerned. This mandate includes The charter, which was passed interpretation of the United in 1986, limited African state Nations Universal Declaration sovereignty on matters of human on Human Rights in the African rights by ensuring that “human context. rights violations could no longer As of December 2015, only be swept under the carpet of thirty of the fifty-four African ‘internal affairs.’” Article 30 of countries have ratified the the charter created the African protocol establishing the court, Commission on Human and and only seven of twenty-nine Peoples’ Rights, and gave it a countries have made the required mandate “to promote human and declaration recognizing the peoples’ rights and ensure their competence of the ACHPR to protection in Africa.” receive human rights cases from In 1998, African states non-governmental organizations adopted the “Protocol to the and individuals. Many African African Charter on Human countries that have unsavory and Peoples’ Rights on the human rights records are loath Establishment of an African to submit themselves to the Court on Human and Peoples’ jurisdiction of the court, for Rights.” The African Court on fear of unleashing sandstorms Human and Peoples’ Rights of human rights litigation in (ACHPR) is a continental court a transnational court whose established by African countries decisions are echoed and to ensure protection of human amplified by the international and peoples’ rights. The court human rights community. was established to complement Nevertheless, the fledgling

2016-2017 · VOLUME XII 29 ACHPR, which was set up to based in Ouagadougou, capital complement and reinforce of Burkina Faso, in 2012. One the functions of the African of the articles suggested that Commission on Human and the prosecutor of Burkina Faso, Peoples’ Rights, has an impressive Placide Nikièma, three police docket. Taken together, the officers, and a bank official were jurisprudence of the African involved in counterfeiting, money Commission on Human and laundering, and banditry. Another Peoples’ Rights and the ACHPR article accused the prosecutor of constitute an emerging body of “torpedoing” justice, while a third law that is laying the foundation article suggested the prosecutor for a human rights law and policy was a rogue officer who was regime on the African continent. responsible for the miscarriage of justice in the country. The African Court of Hu- Nikièma filed a complaint in the man and Peoples’ Rights Ouagadougou High Court against the writers of the article and the and Defamation of Public editor of l’Ouragan for criminal Officials defamation, public insult, and In furtherance of their contempt of court. The court mission of protecting and found the editor-in-chief, Lohé promoting individual rights Issa Konaté, guilty of criminal on the African continent, the defamation and sentenced him ACHPR and the African Court on to twelve months imprisonment, Human and Peoples’ Rights have fines, damages, and costs reinterpreted and domesticated amounting to about $13,000 international human rights plus court fees. Additionally, norms and policies in Africa. the court ordered l’Ouragan In so doing, they have relied on be suspended with immediate other transnational courts, like effect for six months and that the European Court of Human the judgment of the court be Rights and the European Court published in three newspapers of Justice, as persuasive authority. including l’Ouragan, at the end of They have promoted freedom its suspension, at the expense of of expression and campaigned Konaté and his colleague Roland against the criminalization of Ouédraogo, who had written one defamation in Africa. This section of the defamatory articles. Konaté discusses a landmark media law was promptly incarcerated after case, Konaté v. Burkina Faso, that the judgment of the court. On was decided by the African court appeal, the Ouagadougou Court in 2014. This case demonstrates of Appeal affirmed the judgment how the court handled the of the Ouagadougou High Court. defamation of public officials in Seeing that he could not get Burkina Faso, a member country justice in Burkina Faso, Konaté of the African Union. applied to the ACHPR for review This defamation case rose out of the judgment. He claimed the of a number of articles published jail term, huge fine (by African in L’Ouragan, a weekly newspaper standards), civil damages, and the

30 AFRICA POLICY JOURNAL court costs, violated his right to met international norms, pursued freedom of expression protected a legitimate state objective, and under Article 9 of the African were a proportionate means Charter on Human and Peoples’ to attain that state objective. Rights and Article 19 of the The court ruled the restrictions International Covenant on Civil imposed by laws criminalizing and Political Rights. Article 9 of defamation of judges, magistrates, the African Charter states: and other members of the 1. Every individual shall judiciary were reasonable, were have the right to receive prescribed by laws that met information. international standards, and furthered respect for the rule of 2. Every individual shall law, a legitimate governmental have the right to express objective. However, the court and disseminate his ruled the nature of the plaintiff opinions within the law. was important in defamation cases. Therefore, in protecting Article 19 of the International the honor and reputation of Covenant on Civil and Political others against defamation, it had Rights states: to consider the function of the 1. Everyone shall have the person who was being protected. right to hold opinions In other words, the court had to without interference. make a determination whether the person was a public figure or 2. Everyone shall have a private individual: “The Court the right to freedom of is of the view that freedom of expression; this right expression in a democratic society shall include freedom to must be the subject of a lesser seek, receive, and impart degree of interference when it information and ideas of occurs in the context of public all kinds, regardless of debate relating to public figures.” frontiers, either orally, in The court cited an African writing, or in print, in the Commission on Human and form of art, or through Peoples’ Rights policy that states: any other media of his “People who assume highly visible choice. public roles must necessarily face In deciding this case, the a higher degree of criticism than African court employed the private citizens; otherwise public international proportional justice debate may be stifled altogether.” policy, which is based on the “idea The court held Burkina Faso had that punishment for a particular “failed to show how a penalty of offense should be proportionate imprisonment [for defamation] to the gravity of the offense was a necessary limitation to itself.” The issue before the court freedom of expression in order to was whether the restrictions on protects the rights and reputation freedom of the press obtained of members of the judiciary.” The in Burkina Faso and applied to court also ruled Burkina Faso had Konaté were provided by laws that failed to show that suspension

2016-2017 · VOLUME XII 31 of l’Ouragan for a period of six legacy of criminal defamation. months was necessary to protect Third, the court thoughtfully the rights and reputation of the considered Konaté’s argument prosecutor of Burkina Faso.” The regarding his failure to exhaust court concluded the custodial local remedies in Burkina Faso. sentence imposed on Konaté In effect, the internationally constituted a “disproportionate recognized requirement that interference in the exercise human rights complainants of freedom of expression by exhaust all national legal remedies journalists in general” and Konaté before they refer their cases to in particular: “any custodial international human rights courts sentence relating to defamation was a major obstacle facing is inconsistent” with the African Konaté. The editor of l’Ouragan Charter of Human and Peoples’ argued, and the Court agreed, Rights and other international that although he had not appealed human rights instruments. The his conviction and sentence to court ordered Burkina Faso to the Cour de Cassation, the highest repeal its French colonial criminal court in Burkina Faso, his case defamation laws within two years. was admissible before the African A number of things were court because he could not have remarkable about this case from obtained effective and sufficient a public policy perspective. First, remedy in Burkina Faso. Fourth, the African court grounded the court emphasized, like the US its legal analysis and ruling on Supreme Court did in New York African and international human Times v. Sullivan, that the status of rights standards of freedom of the state prosecutor as a “public expression. It expressly referred figure” meant he was expected to to the African Charter of show a high degree of tolerance Human and Peoples’ Rights, the for severe criticism related to his Revised Treaty of the Economic official duties. The court based Community of West African its reasoning on a 1996 African States, the International Covenant Commission on Human and on Civil and Political Rights, the Peoples’ Rights decision that UN Human Rights Committee, paraphrased and echoed New the European Court of Human York Times v. Sullivan: “people Rights, and the Inter American who assume highly visible public Court. Second, it was the first roles must necessarily face a time a continent-wide institution higher degree of criticism than had ordered an African nation to private citizens; otherwise public eliminate the censorious colonial debate may be stifled altogether.”

32 AFRICA POLICY JOURNAL The Decriminalization of Expression (DOX) Campaign of the African Commission on Human and Peoples’ Rights

The Konaté judgment was a public policy posture of the milestone in media law and policy African Commission on Human in Africa because it boosted the and Peoples’ Rights. Specifically, African Commission on Human the judgment echoed its 2002 and Peoples’ Rights continent- Declaration of Principles on wide campaign to eradicate the Freedom of Expression in Africa. criminalization of defamation. In This declaration calls on African effect, in 2010, the Commission countries to ensure their laws passed a resolution calling for relating to defamation conform a radical change in African to following standards: 1) no public policy on defamation. The one was to be found liable for resolution, which was entitled true statements, opinions or “Repealing Criminal Defamation reasonable statements regarding Laws in Africa,” called on state public figures; 2) public figures parties to the African Charter were to be required to tolerate a on Human and Peoples’ Rights greater degree of criticism than to “repeal criminal defamation private citizens; and 3) sanctions laws, or insult laws, which impede for defamation were never be freedom of speech.” In 2012, the so severe as to inhibit the right African Commission—and by to freedom of expression. The extension, the African Union— declaration also echoes the public launched the “Decriminalization official/private citizen dichotomy of Expression (DOX) Campaign,” of the New York Times v. Sullivan which aims to rid Africa of policy, according to which criminal defamation, insult, false public officials are expected to news, and sedition laws that are put up with severe criticism on vestiges of European colonialism. matters connected to their public The campaign is spearheaded functions. by the African Commission’s However, there is a difference special rapporteur on freedom between the US Supreme Court’s of expression and access to classification of defamation information in Africa,Pansy plaintiffs in New York Times v. Tlakula of South Africa. Sullivan and its progeny, and Indeed, when the ACHPR that of the African Commission ruled the law in Burkina Faso on Human and Peoples’ served a perfectly legitimate Rights and the ACHPR. The objective, namely, to protect the US Supreme Court classified honor and reputation of public defamation plaintiffs into four officials, but that imprisonment categories: 1) public officials, a of a journalist for defamation “designation [that] applies . . . constituted a disproportionate to those among the hierarchy interference in the exercise of of government employees who the freedom of expression, its have, or appear to the public to ruling was consistent with the have, substantial responsibility

2016-2017 · VOLUME XII 33 for or control over the conduct of or malpractice. For their part, governmental affairs”; 2) public the African institutions use the figures, celebrities, entertainers expression “public figure” to and the like; 3) limited purpose designate government employees of vortex public figures, persons and high profile politicians. This who inject themselves in the conceptualization is apt in the midst of public controversies in a context of human rights in Africa. bid to influence their outcomes; As we saw earlier, it is mostly and 4) private individuals. The African government officials and first three types of plaintiffs authoritarian politicians who have to meet the exacting “New have used criminal defamation York Times actual malice” as a censorious weapon against standard, while plaintiffs who journalists who report adversely are private individuals only have on public affairs. to prove journalistic negligence

The Diffusion of New York Times v. Sullivan Principles to Africa: The Cases of South Africa, Kenya, Uganda, and Zimbabwe

The media law environment political, social, cultural, and in contemporary Africa is historical experiences, these characterized by a system of technologies and ideas are given law and disorder, a model of what Jon Guice calls “new ideas, governance based on the triumph intentions, purposes, and contexts of arbitrary legalism (rule by of use in different times and decree) and authoritarianism that places, for different people and results in the supremacy of law groups.” In Africa, both media over individual rights. To make law in general and defamation a determination whether the law in particular consist of a public policy values set forth in series of policies (innovations) New York Times v. Sullivan have that diffused from the US to had an impact on post-colonial Europe and Africa in the colonial defamation law in Africa, we and post-colonial period. South next survey defamation case law African courts, which operate in a in South Africa, Kenya, Uganda, democratic country with a robust Zimbabwe, and Sierra Leone. system of rule of law, judicial These countries are former British independence, and a tradition of colonies in Africa. incorporating new ideas from the international community, seem to Diffusion of theNew York be open to persuasive authorities Times v. Sullivan to South from other jurisdictions. It is therefore not unusual to see South Africa African courts cite persuasive As technologies and ideas authorities from the United diffuse to countries with different Kingdom, Canada, Australia,

34 AFRICA POLICY JOURNAL the Netherlands, and especially case Khumalo v. Holomisa. Well- the US in defamation cases. It known South African politician is also not uncommon to see Bantubonke Holomisa—a former South African media defendants strongman of an apartheid-era in defamation suits attempt to tribal homeland, sitting member persuade judges to rely on cases of the South African Parliament, decided by the US Supreme Court and leader of a political party— in order to expand the scope of sued a newspaper, The Sunday media freedoms in South Africa. World, its parent media company, The foundational posture of and journalists, for defamation. the constitution of post-Apartheid The newspaper had written a South Africa is the recognition story that implicated Holomisa and protection of human dignity. in criminal wrongdoing. In its This foundational concept is defense, the newspaper and its front and center in defamation personnel stated the story about law, where reputation and human Holomisa was a matter of public dignity go hand in hand. As a concern, and that Holomisa had result, the law seeks to strike not alleged the information in the The Diffusion of New York Times v. Sullivan Principles to a balance between freedom story was false. The newspaper Africa: The Cases of South Africa, Kenya, Uganda, and of expression, reputation, and defendants further claimed the Zimbabwe dignity. The assumption is that common law of defamation damaging a person’s reputation in South Africa, which does is tantamount to damaging said not require plaintiffs to prove person’s dignity. Additionally, falsity or even raise a defense of under South Africa’s brand falsity, violated the freedom of of common law, defamation expression guaranteed by the Bill plaintiffs are not required to of Rights of the South African claim or prove falsity to prevail Constitution. The Transvaal High over media defendants. Indeed, Court rejected the argument of the South African Constitutional the media defendants because Court has held that under South African law only . . . although freedom of a narrow class of plaintiffs is expression is fundamental required to establish the falsity to our democratic society, of a defamatory statement to it is not a paramount value. collect damages. This class of It must be construed in persons includes the state, state the context of the other officials, and politicians who values enshrined in our sue for statements made about Constitution. In particular, their fitness for public office. the values of human dignity, In short, the requirement that freedom and equality. libel plaintiffs allege and prove falsity comes into play only In other words, human when the state, public officials, dignity and equality trump and politicians whose fitness freedom of expression; the for office is questioned, sue for feelings of the listener trump the defamation. Under South African rights of the speaker. These legal law, the falsity of a defamatory principles were evident in the statement is not an element of

2016-2017 · VOLUME XII 35 the civil wrong of defamation. decision represents the high-water However, truth may be an mark of foreign jurisprudence important factor the court takes protecting the freedom of speech into consideration when it decides and many jurisdictions have whether the statement was legal declined to follow it.” The court or not. In general, in defamation then proceeded to show the suits, the burden of proving the courts in the United Kingdom, truthfulness of the statement rests Germany, and Australia had with the media defendant. As a declined to follow the New York result, plaintiffs are not required Times v. Sullivan standard. The to claim or prove falsity. Plaintiffs court concluded that if adopted only need to show the defamatory New York Times v. Sullivan would statement was unlawful and offset the delicate balance between intentional. freedom of expression, reputation, In Khumalo v. Holomisa the human dignity, freedom, and media defendants appealed to equality that has been struck in the South African Constitutional South Africa. New York Times v. Court (the country’s Supreme Sullivan, the court said, would Court). The question before lead to a “zero-sum result . . the court was whether the . [that] fits uneasily with the South African common law of need to establish an appropriate defamation, which does not constitutional balance between require plaintiffs to allege and freedom of expression and human prove falsity, is consistent with the dignity . . . ” The court further freedom of expression provisions ruled that “in not requiring a of the South African constitution. plaintiff to establish falsity, but The court ruled it was. The in leaving the allegation and media defendants argued the proof of falsity to a defendant South African common law of to a defamation charge, the defamation inherited from the common law chooses to let the British colonial administration risk lie on defendants. After all, was inconsistent with the it is by definition the defendant constitution. They relied on the who published the statement and New York Times actual malice thereby caused the harm to the standard from New York Times v. plaintiff.” Sullivan, which states that in order Despite its refusal to apply to collect damages for defamatory the values of New York Times v. falsehoods uttered in connection Sullivan to the Holomisa case, in with their official duties, public order not to eviscerate the human officials must prove the defendant dignity of the plaintiff, the South published with knowledge of African Constitutional Court falsity or with a reckless disregard did not reject Sullivan outright. of the truth or falsity of the A few years later, a judge of that statement. same court noted that New York Of the New York Times actual Times v. Sullivan was a famous malice standard it was being case that provides guidance for asked to adopt, the South African future development of the law in Constitutional Court said: “This South Africa. It should also be

36 AFRICA POLICY JOURNAL noted that the Supreme Court a prominent role in public and of Appeals of South Africa used political debate . . . From the a progeny of New York Times v. viewpoint of history, it is clear Sullivan—Gertz v. Welch—to end that our political discourse would strict liability in South Africa. have been considerably poorer Though the numerous without them.’” The court then defamation suits filed by South dismissed the case. African president Jacob Zuma The cases discussed above against the media and cartoonists show South African courts are give the impression that South receptive to freedom of expression Africa is a defamation plaintiff’s values that have diffused to paradise, the country is getting the country from the major less defamation-plaintiff friendly. democracies. New York Times After the Holomisa case, a South v. Sullivan is mentioned with African court heard a defamation increasing frequency in African case in which a progeny of New courts as lawyers and judges seek York Times v. Sullivan—Hustler v. to come to terms with its global Falwell—was brought up. In Bheki impact, and with the reality that Cele v. AVUSA Media Ltd, a senior powerful South African leaders police official sued a newspaper like Jacob Zuma have used the for defamation over an article and human dignity clause of the South a manipulated photo in which African constitution to intimidate the officer was portrayed as a the media and their political lawless sheriff in the American opponents. Wild West. The issue before the court was whether the article and New York Times v. Sulli- photograph were defamatory. The van in Kenya court answered in the negative. It used language reminiscent of South Africa is a relatively New York Times v. Sullivan when young democracy whose it stated that “the law requires of apartheid past makes it very such public figures, politicians solicitous of human rights and and public officers (by virtue human dignity. Things are a little of their chosen professions) to bit different in Kenya, which had be robust and thick-skinned a different colonial and post- in relation to comments made colonial experience. However, against them . . . ” The court due to globalization, the common added: “Similarly, the United law tradition of Kenya has also States Supreme Court emphasized been influenced by the diffusion the value of the visual arts as a of media law and policy from medium of political and social centers of influence and power commentary in Hustler Magazine in the US and Western Europe. and Another v. Falwell, when it It is therefore not surprising that stated as follows: ‘[F]rom the New York Times v. Sullivan would early cartoon portraying George crop up in defamation cases in Washington as an ass down to the Kenya. In one such case, a well- present day, graphic depictions known member of Parliament and satirical cartoons have played and an assistant minister in the

2016-2017 · VOLUME XII 37 government, Mwangi Kiunjuri, have set the pace in defamation sued a journalist and two jurisprudence, and which it is media companies for a story not possible to overlook: New that appeared in the Sunday York Times v. Sullivan.” The court Nation newspaper. The article then cited cases in Australia, in question claimed police had the United Kingdom, and South arrested the minister and others Africa where New York Times v. as they consorted with half- Sullivan had served as persuasive naked prostitutes in the red light authority in defamation cases. The district of Nairobi. Kiunjuri was judge announced he was taking not amused by this accusation of into consideration the “new moral turpitude. criteria based on constitutional One of the media defendants principle, and on contemporary immediately advanced a novel developments in comparative “constitutional privilege” defense. law and human rights” to acquit He told the judge that Section the two media defendants. He 79 of Kenya constitution, which found the third defendant, a guarantees freedom of speech TV station, that had ironically and of the press, “embodies the raised the New York Times v. rule in New York Times v. Sullivan Sullivan constitutional defense, [emphasis in the original], and liable for publishing hearsay consequently a publisher is not information and imposed liable for publishing pertinent punitive and compensatory facts pertaining to a public damages for defamation. This figure upon investigation of case demonstrates an interesting the circumstances of the facts phenomenon of diffusion of legal published of the public figure.” innovation. Clearly, the defense The court observed that “the counsel bombarded the judge third defendant’s defense [sic] with the “constitutional privilege” is built around the persuasive defense from what they called authority of the American case the persuasive New York Times New York Times v. Sullivan . . . ” v. Sullivan case. They also added Whereupon, the defendant urged cases from several commonwealth the judge to abandon Kenya’s jurisdictions whose rulings they colonial era strict liability law and claimed were part of this new line follow the new legal developments of cases that have “set the pace in heralded by New York Times v. defamation law.” The judge was Sullivan. persuaded by this internationalist In the end, after giving a argument; he essentially lengthy exposé of New York Times abandoned the strict liability v. Sullivan, the High Court of system of Kenya in favor of New Kenya dismissed the defamation York Times v. Sullivan and its new charge against the newspaper international progeny as the new and the journalist, stating the defamation benchmark in Kenya. constitutional privilege of New Of the three defendants, the only York Times v. Sullivan was “the one who was not victorious was principle now well established the TV announcer who broadcast in the new line of cases that a report based on the newspaper

38 AFRICA POLICY JOURNAL story without investigating it. It the court the article was false is not clear whether under New and misleading because he was York Times v. Sullivan the public neither diabetic, overweight, nor official would have been able impotent. He said he had four to prove the broadcast rose to a wives and over thirty children. reckless disregard for the truth. In its defense, the newspaper It is interesting that in Kenya, stated the picture was not as in South Africa, the focus of defamatory because it “was true the court was on the status of in fact and was a fair comment.” the plaintiff public official; that The issues before the court were the official had to put up with whether the words and picture criticism, not on the standard of in the article were defamatory, proof he had to meet to collect whether the publication was damages. a fair comment made in the public interest, and whether Ali, Diffusion ofNew York a public official, was entitled to Times v. Sullivan Prin- remedies (damages). The court answered all questions in the ciples to Uganda: Ali v. negative. Judge R.O. Okumu Monitor Publications Ltd. Wengi wrote: “Unfortunately, In 2002, a Ugandan public officials are placed at an newspaper, The Monitor, awkward position in defamation published an article on the law since the promulgation of dangers of being overweight. It the 1995 constitution.” That stated that overweight people constitution had liberalized tend to be diabetic and sexually the political system in Uganda. impotent. A photograph of Hon. Judge Wengi said even though Moses Ali, a senior government the Uganda Supreme Court had official and politician who ruled the onus was on newspaper happened to be a “big man” of defendants to show there was no ample proportions, accompanied malice in their publications: the article. Ali was not identified it is the court to determine as the person in the picture and if indeed there was actual malice he was not mentioned in the and for the public official to show article. Nevertheless, he was not its existence . . . In the present amused his image was associated case there was no malice either, with diabetes and impotence. He but literary mischief only. For a sued The Monitor for defamation political leader this can do no in the High Court of Uganda harm to his reputation, and an at Kampala, claiming that by apology is all that is needed to using his picture to illustrate tone down the editorial mischief the article on the connection . . . In times of transition politics, between obesity, diabetes, and newspapers . . . will nibble at sexual impotence, the newspaper leaders of all categories with “meant and/or was understood to needling publications and assert mean by innuendo or otherwise . the ‘stand by our story’ position . . that he was overweight, obese, . . . This has consequences for diabetic, and impotent.” Ali told the much cherished freedom

2016-2017 · VOLUME XII 39 of the press when making publicly, unlawfully, and vehement, caustic, and sometimes intentionally— unpleasantly sharp attacks on (a) makes any statement government and public officials. about or concerning the For libel can claim no talismanic President or an acting immunity from constitutional President with the limitations: New York Times v. knowledge or realizing Sullivan 1974 (sic). that there is a real risk or The judge then dismissed the possibility that the statement case. In this Ugandan iteration is false and that it may— of New York Times v. Sullivan (i) engender feelings of the focus was again the public hostility towards; or official. However, the court went (ii) cause hatred, contempt, beyond the threshold that seems or ridicule of; to have developed in defamation the President or an acting law in Africa–the public official President, whether in should expect to be criticized. It person or in respect of the added that it was for the court President’s office; or (b) to decide whether the article makes any abusive, indecent, contained actual malice. This is a or obscene statement about departure from New York Times or concerning the President v. Sullivan, where the burden is or an acting President, on the plaintiff public official to whether in respect of the prove the article was written with President personally or the knowledge of falsity, or with a President’s office; shall be reckless disregard of whether it guilty of undermining the was true or not. authority of or insulting the President and liable to a fine Diffusion ofNew York not exceeding level six or Times v. Sullivan to Zim- imprisonment for a period not exceeding one year or babwe both. Zimbabwe has one of the The modern version of British harshest defamation law regimes colonial seditious libel further on the African continent. In specifies the word “statement” January 2012, three Zimbabwean includes any act or gesture political activists, Calvin Ncube, published in any printed or Mpumelelo Donga, and Gift electronic medium destined for Mlala—members of the youth reception by the general public. wing of the opposition Movement The three men were charged for Democratic Change (MDC)— with insulting and undermining were arrested in Bulawayo the authority of President Mugabe and charged with violating because they were found in Zimbabwe’s Criminal Law possession of newspaper clippings (Codification and Reform) Act of of a political cartoon (see Figure 2004. The act states in part: 1). The government alleged the (2) Any person who cartoon mocked the president,

40 AFRICA POLICY JOURNAL his wife, Grace, and Reserve Bank was the ultimate act of political of Zimbabwe governor Gideon defiance—ridicule of eighty-eight- Gono. The cartoon—originally year-old president Robert Mugabe published in The Daily Nation, and his forty-six-year-old wife in Nairobi, Kenya—was featured Grace. At the trial, a magistrate in on the website of the newspaper, Bulawayo, Thobekile Mkhosana- as well as the website of Radio Matimbe, acquitted the MDC Netherland African Service. youths of all the charges, due to The cartoon was downloaded in contradictions in the state’s case.

Figure 1. “Ménage á trois between Sally Mugabe, Gideon Gono, and President Robert Mugabe,” cartoon by Gado, The Daily Nation, Nairobi, Kenya, 2010.

Zimbabwe and distributed by It is remarkable the judge e-mail and social media. Printed courageously dismissed the case copies of the cartoon ultimately against the political activists, found their way to the streets of given the authoritarian nature Bulawayo where the cartoon was of President Mugabe. The case photocopied and passed from gives us a glimpse into the type person to person. The story in of criminal defamation and the cartoon was grounded on a insult laws that the African rumor that Grace Mugabe was Commission on Human and having an affair with Gono. It Peoples’ Rights and the ACHPR

2016-2017 · VOLUME XII 41 are trying to eradicate. It is was a limitation on freedom of notable that Zimbabwe has expression that is reasonably signed, but has not ratified, the justifiable in a democratic society. protocol to the African Charter The Constitutional Court of on Human and Peoples’ Rights on Zimbabwe answered in the the Establishment of the African negative. The court unanimously Court on Human and Peoples’ ruled that “what is distinctive Rights. The court therefore has no about criminal defamation, jurisdiction on the country. though not confined to that However, it is interesting offence, is the stifling or chilling that in 2014, the Constitutional effect of its very existence on Court of Zimbabwe took steps the right to speak and the right toward the elimination of to know . . . The overhanging criminal defamation. In 2011, effect of the offence of criminal editor Nevanji Madanhire and defamation is to stifle and silence writer Nqaba Matshazi, of the the free flow of information Standard Newspaper, published in the public domain.” The an article that claimed a medical court used the “chilling effect” aid society was on the verge vocabulary of American law. of bankruptcy. The reporters It further cited inter alia the were arrested and charged with African Charter of Human and criminal defamation, which People’s Rights, which calls on carried a maximum penalty African governments to repeal of two years imprisonment criminal defamation as persuasive under the Criminal Law Code authority, to support its ruling of Zimbabwe. The reporters that criminal defamation was declared the criminal defamation unconstitutional: “The offence of law of Zimbabwe, under which criminal defamation constitutes a they were being charged, was disproportionate instrument for unconstitutional and requested achieving the intended objective the court declare it null and void. of protecting the reputations, The issue before the court was rights, and freedoms of other whether criminal defamation persons.”

Conclusion

The New York Times v. parcel of a system where the press Sullivan actual malice standard is the watchdog of the public is a First Amendment, free interest, and performs a checking speech standard grounded in the function on the government and American constitutional mentality public officials. In the fifty years of skepticism, nay, outright since the US Supreme Court suspicion of the government, ushered in the new policy on public officials, and intolerance public officials and defamation of abuse of power. It is part and in New York Times v. Sullivan,

42 AFRICA POLICY JOURNAL the name of the case has diffused South Africa probably has across the globe where it has the most advanced democratic been reinterpreted, reinvented, political system on the African and adapted in multiple politico- continent. The values of New cultural and legal contexts. York Times v. Sullivan have While several principles of been evoked the most in South the case are specifically American Africa, as its modern democratic and do not travel well, those constitution sets forth a battery aspects that emphasize public of positive rights. Nevertheless, officials are not above the law, these rights create a high level of or even criticism, have been “entitlementality” that puts the domesticated in a number of key brakes on freedom of expression African jurisdictions. The African from time to time. Furthermore, Commission and ACHPR, and a South Africa muddies the waters number of African jurisdictions of freedom of expression by have embraced New York Times equating reputation with the v. Sullivan’s skepticism toward elastic, metaphysical concept of public officials. The reason for human dignity. The implication this is simple: authoritarian is that libel-proof plaintiffs— strong men have dominated post- persons whose reputations are so independence African countries tarnished that no further harm for a half-century. can be done to them—have no The offenses of insulting the human dignity. This takes the head of state, injuring a public law into the grey area of moral official’s ego, causing politicians judgment and metaphysics. to lose face, or damaging their Nevertheless, values of reputations through publication New York Times v. Sullivan and of truthful or substantially true its progeny have diffused to statements, are no longer what South Africa, and the courts are they used to be in several parts beginning to reinvent them to of Africa. It’s clear that some of suit the specific context of the the values of New York Times post-apartheid realities where v. Sullivan have diffused to an entrenched, ruling political numerous African jurisdictions party, the ANC, has a tendency and have been domesticated to abuse power and silence in various degrees along a media critics through onerous continuum. The two judicial defamation laws. President organs of the African Union: the Jacob Zuma’s long-running African Commission on Human million-dollar defamation suits and Peoples’ Rights and the (now withdrawn) against South ACHPR, as well as South Africa, African cartoonist Jonathan Kenya, Uganda, and Zimbabwe, Shapiro (Zapiro) demonstrated are at various points on that the current defamation law continuum. Though the Sullivan regime of South Africa is barely values have been evoked in a different from their nineteenth number of African countries, they century versions. In matters of have really not taken root in many defamation, South African law jurisdictions. resolves the tension between

2016-2017 · VOLUME XII 43 freedom of expression and the Sullivan principle, which holds reputation and dignity of political that powerful public officials, leaders and public figures by by virtue of the positions they tilting the scales in favor of occupy in government, should political leaders. The good thing is be willing to put up with harsh that African courts are beginning criticism of their stewardship of to apply the New York Times v. the public offices they hold.

Endnotes can be found online at http://apj.fas.harvard.edu/

44 AFRICA POLICY JOURNAL The Anatomy of Government Neglect in Nigerian Maritime Industry BY ADEKANMI ALEXANDER ABAYOMI

Abstract

The Nigerian maritime industry, with its enormous opportunities, has been articulated in several publications, but little has really been said about how government neglect has been a hindrance on the success of the industry. This neglect has not only eaten deep into the Nigerian economy, but it has also dented Nigeria’s integrity among the committee of international maritime nations—it has crippled the implementation of Nigeria’s Cabotage legislation. Nigerian mariners’ sea-time training, maritime businesses, shipyards, reforms and policies, seas and coastline, ports and investment opportunities, are all victims. Foreign dominance of Nigeria’s maritime industry has rendered Nigerian mariners idle; government chances of making huge revenue from maritime have been drained. It is still unthinkable why a nation like Nigeria could decide to undermine the strength of its maritime sector, which is capable of being a top revenue earner for the country. The federal government’s neglect to implement international conventions has cost the nation a huge fortune. Nigeria lost about $3 billion between 2012 and 2015, due to the non-implementation of the Sea Protection Levy (SPL) that was introduced in 2012. Nigeria also loses over $60 million annually, as a result of neglect, to unregulated fishing, according to the National Oceanic and Atmospheric Administration. This article aims to point out areas of government neglect on Nigerian maritime, and to put its challenges into perspective with an attitude to conscientize the government and its policymakers.

2016-2017 · VOLUME XII 45 Introduction

The 2015 Nigerian Maritime needs to complement these Expo (NIMAREX) left Nigerians endowments with investments in with numerous reflections, human capital and infrastructural including the unpleasant state renewal, ship acquisition of Nigerian seafarers, ineffective programs, scientific policies, implementation of Coastal and and automated port operations Inland Shipping (Cabotage) Act in order to fall in tandem with 2003, and foreign dominance of Goldman Sachs. Goldman Sachs Nigerian coastal shipping. These identified Nigeria as one of reflections and other challenges countries with the potential to confronting the industry are join newly industrialised nations products of government neglect. like Brazil, Russia, India, China, They also require serious attention and South Africa. because Nigeria’s maritime To show how insignificant industry is strategic to the nation’s the industry is to the government, economy. Apart from Nigeria the Central Bank of Nigeria being an exporting nation, announced plans to provide largely due to oil production, financial assistance to some the nation’s population and sectors in 2015, but maritime importing policies also make sector was unscrupulously it one of the biggest markets omitted from this arrangement. for foreign goods. Nigerian Despite the potentials of Nigeria’s relationships with shipping and inland waterways, it still has trade are tremendous. Totals of a long history of neglect. , 5,139 and 1,131 ocean-bound Government has made some vessels called at the Nigerian efforts to make the inland Ports in the first quarters of 2015 waterways attractive. Recently, and 2016, respectively, and cargo a section from Baro in Niger recorded during the first quarters State to Warri in Delta State was of 2015 and 2016 was 49,604,516 572-kilomeer dredged (National metric tons and 43,347,523 metric Inland Waterways Authority). tons, respectively (Nigerian With all the advancement of Ports Authority). In a statistical American inland waterways bulletin, the Central Bank of system, the U.S. is still desperately Nigeria reported that about eighty striving to improve its inland percent of goods consumed in waterways system. Lamar Nigeria are imported. Nigeria Alexander, a Republican senator is a coastal state. It is endowed from Tennessee, introduced with a coastline of about 870 the American Waterworks Act kilometers and about 3,000 in 2012, which sources funds kilometers of inland waterways for the improvement of the with vast exclusive economic nation’s inland and intra-coastal zone. Moreover, the nation still waterways.

46 AFRICA POLICY JOURNAL The State of Nigerian Cabotage Legislation and Challenges Facing Nigerian Cabotage Fund

Some of the reasons the disobey this provision because Coastal and Inland Shipping the seafarers are not capable to (Cabotage) Act of 2003 was man vessels. The experience, enacted are to encourage competence, and reliability of domestic participation in the crewmen are fundamental to the nation’s coastal shipping the profitability and safety of the and to restrict foreign access ships—which is why the price of a to Nigeria’s domestic coastal crew is among the highest costs of shipping and offshore operations. running of ship. Crewing of ships Unfortunately, the Cabotage Act is also a great source of income for of 2003 has done little to actualize nations. The Philippines export these objectives. To believe the seafarers to several nations. A Cabotage Act of 2003 will work sum of $3 billion was contributed without some basic structures to the Philippine economy in and regulations in place is like 2008 from exporting mariners to hoping that a camel will pass Japan alone, according to (Doris through needle’s eye. For instance, Magsaysay-Ho). the Cabotage Act of 2003 states The Nigerian Maritime that only vessels wholly-owned Administration and Safety and manned by Nigerian citizens, Agency (NIMASA) has failed built and registered in Nigeria, to protect the few good, local shall engage in Nigeria’s coastal seafarers. NIMASA has the territorial inland waters. These responsibility to moderate the provisions are difficult to comply flow of foreign seafarers to with because wholly-owned the system. Both NIMASA’s Nigerian vessels are extremely National Seafarers Development scarce, and are also sub-standard, Programme (NSDP) and the low-tonnage vessels. Nigeria’s ship Maritime Academy of Nigeria, owners are moribund with no Oron, Akwa Ibom State, in incentive or finance to compete Nigeria have wasted billions with foreign vessel owners; hence, in resources of naira in the they have been edged out of name of producing employable lucrative business opportunities in seafarers for the nation. NIMASA Nigeria’s oil and gas industry. initiated NSDP in 2009 to Section 23(1)(e) of the sponsor Nigerians for seafaring Cabotage Act of 2003 provides trainings abroad, but despite that vessels operating on Nigerian billions of naira squandered on waters shall be exclusively crewed getting NSDP cadets trained, by Nigerian citizens, except where is still highly uncompetitive. the Minister grants a waiver. Over time, NIMASA has shown Nigerian mariners are currently its cluelessness on the sea time perceived as mere classroom aspect of NSDP, the nucleus of the seafarers with no experience. Both project. The reported purchase foreign and local ship owners of a training vessel for the cadets

2016-2017 · VOLUME XII 47 for sea time training is still a certificates. Only the influential fantasy. Hopefully, the idea of Nigerian seafarers are fortunate using vendors to provide sea time enough to get space for sea time training for the NSDP’s cadet will training. No ship owner should materialize. Over $19 billion has entrust its vessels in the hands of been remitted to the account of inexperienced mariners. Maritime Academy of Nigeria, Keeping this all in mind, it is Oron, as the statutory allocation easier for the Nigerian Minister of of five persent from NIMASA, Transportation to grant a waiver in the last five years. Yet, the to foreign built, owned, crewed, institution cannot produce master and flagged vessels to operate mariners and chief engineers, and in Nigeria’s domestic coastal their seafarers are a mass of hare- trade and offshore; no Nigerian brained mariners. Mpkandiok shipbuilding company has the Ante Mkpandiok, acting rector capacity to construct ocean- of the Maritime Academy of going vessels. Nigerians are still Nigeria, recently confessed the earnestly waiting for the first set products of the Academy are half- of locally constructed ocean-going baked seafarers and the nation’s vessels by the Nigerian navy. To foremost maritime training be among the largest ship-owning institution lacks basic equipment nations like Greece, Japan, China, like training vessels for its cadets Germany, Singapore, and the and a Global Maritime Distress United States, investments in and Safety System (GMDSS) shipyards, shipbuilding, and ship simulator. A GMDSS is used to acquisition are key. The state of increase safety and make it easier Nigeria’s shipyards is chronic. In to rescue distressed ships, boats, spite of Nigeria’s maritime status and aircrafts. GMDSS training is in Africa, its shipyards can be mandatory for all seafarers. counted on the tip of one’s fingers; Mismanagement of funds and meanwhile, China has over corruption have ruined the future ninety established shipyards— of the only maritime institution constructing a wide range of recognized by the International vessels’ sizes and types and about Maritime Organization (IMO) thirty major new shipyards are in Nigeria. Even though Nigeria warming up. The few shipyards in is on the IMO white list, its Nigeria are either too expensive number-one training institution for ship owners or their delivery for seafarers cannot boost a pace is quite slow. Some Nigerian training vessel for the mandatory ship owners still prefer to take on-board tutelage of the seafarers their vessels to Dakar in Senegal before NIMASA issues a for repair because of the cheaper certificate of competency to each price, without considering the cadet on behalf of the school. distance and the cost of travel Even the few Nigerian seafarers to get there. Currently, Nigeria who have been able to maneuver does not have a dry dock capable in NIMASA to get certificates of of maintaining large crude competency are stranded because tankers. Large tankers sailing ship owners do not honor those to and from Nigeria have to go

48 AFRICA POLICY JOURNAL to South Africa for dry docking Act of 2007. Some members (Nigeria Liquefied Natural Gas of the NIMASA staff deserve Corporation). Dry docking of promotion due to their diligence these large tankers could be and service to the nation, but a major source of income for patriotism is not enough here. Nigeria but, unfortunately, South Competence and professionalism Africa is profiting. It should be are the yardsticks for driving a noted, though, that the Nigerian business organization like the ship navy is now ready to open up registration system. If Nigeria its dockyard for maximum truly desires to be the number- utilization. The Badagry Ship one Maritime Administration Repair and Maritime Engineering Agency in Africa by the year 2020, Company’s proposed $1.5 billion it must engage core professionals, dockyard project is an investment rather than the usual bureaucrats. in the right direction. Praise The campaign for must also be given to the Nigeria amendments of most of the Liquefied Natural Gas Company existing Nigerian maritime for prioritizing local content in its and shipping legislations keeps shipbuilding and repair project. amplifying. Amending the Flagging a ship is a business laws, in isolation of some basic relationship. One of the benefits infrastructural and developmental of flagging a ship to the flag state structures, will not solve the is to generate revenue. Nigeria’s challenges. Nigeria must ship registration system grapples structure a number of factors: its because bureaucrats have not set maritime capacity building, ports’ a clear long-term vision. Liberia’s infrastructures, ship acquisition, registry keeps growing at a rapid shipyards and shipbuilding, pace because its flag is driven channels dredging, shipping by core shipping and business- reforms, maintenance, and minded professionals. The installation of safety facilities if it Liberian flag is the second largest is really interested in making the in world. The Liberian registry laws and regulations workable. recently reached a 4,000-vessel The Cabotage Vessel registration milestone of more Financial Fund (CVFF) was than 131 million gross tons. established by Section 42 of the However, vessels registered under Cabotage Act of 2003 to boost the Nigerian flag are ones of low indigenous participation in tonnage. Nigeria has failed to use coastal shipping and offshore availability of cargo like crude operations by providing loan oil and liquefied natural gas to facilities to indigenous operators market its flag. for ship acquisition. But, with Maritime is an industry this stipulation, ship owners are driven by professional discipline. still stranded. The purpose of the The appointment of Nigerian CVFF is to encourage indigenous ship registrars and deputy ship-owning investment; refine registrars should not be based on the nation’s level of maritime a promotion system. The system technology and know-how; was created with the NIMASA assist local maritime operators

2016-2017 · VOLUME XII 49 to create synergy with foreign the CVFF and other Nigerian shipping and oil companies; ship-acquisition schemes are not empower Nigerians to effectively the only victims of government take control of the maritime neglect. Government programs activities of both Nigeria and the designed to refurbish and repair West African sub-regions; reduce Nigerian old vessels are also foreign companies’ influence complete messes, and government and dominance; generate keeps voting millions of naira foreign exchange for the nation into it every year. Twenty-one through freight rates; and help local vessels selected in 2011 by both the local shipping and oil the NIMASA for repair have yet companies, in terms of capacity to be fixed. It is essential for the and capability, to participate in nation to right its ship acquisition the lifting of Nigeria’s crude oil programs because these will ,which composes over ninety profoundly boost national percent of the nation’s exporting income, employment, local trade. Thirteen years later, the content, and maritime business. Cabotage Fund has not been The government guarantee system effectively implemented and remains the most effective way disbursed, as participation of of disbursing and managing Nigerian shipping companies a scheme like the CVFF. The in marine transportation has establishment of a Nigerian yet to ameliorate. Part VIII of national guarantee fund will drive Section 44 of the Cabotage Act of the loan scheme, and provide 2003 empowers the NIMASA to credit risk and financial security collect a two percent surcharge to shipping companies who on all vessel contracts involved want to either buy or sell vessels, in coastal trade and other tariffs, thus helping them mitigate the fines, fees for licences, and financial risks involved in the waivers under the Cabotage Act of investments. 2003; deposit it with commercial Disbursement of the CVFF is banks; and administer the fund not the only challenge confronting under guidelines proposed by its objectives; the nation also the Minister of Transportation, needs to look into the repayment subject to the approval of the system of this loan facility. The National Assembly. Until now, timeframe given for repayment the NIMASA has not been able to of the CVFF loans is too short specifically say the accrued sum and will make repayment of the CVFF—several figures are quite difficult for ship owners. in the air. The agency has also Presently, Nigerian ship owners announced several conflicting have extreme difficulty breaking dates for the commencement of even because foreign vessels the disbursement of the CVFF. have taken over all charterers It’s incomprehensible how the and offshore companies. It is NIMASA, with its partners, when local ship owners have intends to disburse this huge fund fixtures and contracts that they without a credible, consistent, and can employ, create wealth, and transparent platform. However, ultimately repay, loans. Even

50 AFRICA POLICY JOURNAL government cannot generate a fund to establish a national revenue when the local ships carrier, which would be operated are idle. Non-patronage of the and driven by foreign shipping local ships has made a lot of ship companies, is like robbing Peter owners close their shops. It will to pay Paul. None of the local be counter-productive if the loans shipping companies can bid for are granted, but the government a national carrier status because fails to create an environment for they are practically invisible on maritime business to flourish. international routes. No Nigerian- However, the majority of Nigerian owned ship is currently plying ship owners are naturally wired international routes (Indigenous not to repay loan facilities, even Ship-owners Association of if they are swimming in profits. Nigeria). Undoubtedly, Section A legal framework for enforcing 35(b) of the NIMASA Act of repayment of the CVFF loan 2007 empowers the minister to facilities needs to be put in place. grant national carrier status to Nigeria’s Ship Acquisition and a shipping company if a vessel Ship Building Fund (SASBF) operates on international routes failed in 1998 because local and deep sea, and not in Nigerian ship owners treated the loans coastal and inland waterways. But as their heritance. All loans the government will be violating were disbanded with the money the provision of Section 42(2) of leaving. The non-provision of the Cabotage Act of 2003 if the imprisonment for people who Cabotage Fund is used for any deliberately refuse to repay other purpose(s) rather than to loans is still a lacuna in Nigeria’s provide financial assistance to jurisprudence. It makes debtors Nigerian operators in the nation’s not seriously consider the offence. domestic coastal shipping and It is time for Nigeria to join offshore operations. The Cabotage nations like Greece, the United Fund is legally meant for the Arab Emirates, and Switzerland in advancement of local content imprisoning individuals who fail in Nigerian coastal shipping to repay their debts and loans. and to refrain from promoting The proposed diversion of any shipping company on the CVFF to establish a new international routes. national carrier is another The idea of a national carrier challenge confronting the loan is a welcomed development, scheme. The proposal is not only especially where the nation illegal, but also unfair. Rotimi earns no foreign exchange from Amaechi, Nigeria’s Minister of freight rates. Statistics show Transportation, has refuted this Nigeria annually exports about proposal. The CVFF is a scheme 900 million barrels of crude oil where local shipping companies and over 100 million tons of contribute two percent of their general cargo, and no Nigerian income and sweat to strengthen operator earns freight rate from their participation in the nation’s the international carriage of these coastal shipping and offshore goods. Nigeria loses $700 million operations. However, to use such monthly to the dominance of

2016-2017 · VOLUME XII 51 crude oil shipment by foreign ship is not sought. Hopefully, members owners (Nigerian Ship-owners of the committee, saddled with Association NISA). Nigeria is also the drafting of a national fleet the only oil-producing nation policy, will look into the concept without a national fleet; whereas holistically. Like oil and gas, Angola, which recently became an shipping is also a huge project. oil-producing country, has a fleet It requires the right quality of for its oil deliveries. national human capital to drive National carrier arrangement the ports, shipyards, ships, charter is not all about parading a fleet parties, ship investments and of ships or securing equity in finance, freight derivatives, and vessels handling the nation’s the trading. Despite the numerous international carriage of goods. shipyards in South Korea, the It must also prioritize maritime nation still could not meet its local content. A new proposed orders because of human capacity national carrier will further and capability. Availability of consolidate foreign dominance in shipyards alone without human Nigerian shipping and offshore capital is highly counter- operations if the local manpower productive.

Effect of Unlegislated Maritime Bills on Nigerian Port Reforms

The advent of port However, when excesses of concessionary in 2006 brought in the concessionaires became the private sector to drive ports unbearable, Nigeria had no choice operations in Nigeria, which but to appoint the Nigerian also caused the Nigerian Port Shippers’ Council (NSC) in 2013 Authority to cease from being the as interim regulator of the ports, permanent economic regulator of pending the enactment of the the ports. The National Transport National Transport Commission Commission Bill was drafted Bill. The temporary appointment to provide a new regulator for of the NSC was not only criticized not only the ports, but also the by the concessionaires, but inland waterways, railways, and was subsequently challenged roads. Unfortunately, the National in court. If Nigeria’s National Transport Commission Bill, Ports Assembly had passed these bills, and Harbour Bill, and Maritime concessionaires would not have Zones Bill are still before Nigeria’s sought judicial interpretation of National Assembly since the the roles, validity, and legality 5th Assembly (2003-2007) is of the action of the NSC as the unlegislated. Non-passage of economic regulator of the ports these bills is severely disturbing at a Federal High Court in 2014. the smooth regulation of the Justice Ibrahim Buba in Lagos Nigerian maritime industry. upheld the appointment of the

52 AFRICA POLICY JOURNAL NSC as the regulator in a lawsuit owning to multiple government filed by the concessionaires agencies and Ccstoms officers’ against the NSC. The judge did physical examinations. Nigeria not only declare the shipping yearly loses over $1 trillion to line agency charge levied by the inefficiencies and corruption concessionaires as illegal, but also in the cargo clearing process, ordered the concessionaires to according to a report titled refund the illegal charges that had “Nigeria: Reforming the Maritime been collected since 2006 and be Ports.” The concept of forty-eight- kept in the Cargo Defence Fund, hour port operations will make a department under the NSC, for Nigerian ports highly competitive the benefit of the shippers. in West Africa, mainly among The provision of a port the landlocked countries within regulator is an integral part of the sub-region. The inability of the port concession agreement the Nigerian Customs Service between the Federal Republic of to install a transhipment tariff Nigeria and the concessionaires. It hampers the use of Nigerian ports is meant to establish transparent in this way. and enforceable guidelines that The Ports and Harbour Bill, will drive the objectives of the on the other hand, was drafted port reforms. The provision to seek legislative framework ought to have been established for private sector participation Effect of Unlegislated Maritime Bills on Nigerian Port before the commencement of in Nigerian ports and terminal Reforms the port concession agreement. operations, and to provide a Obviously, if a permanent bold vision in creating today’s regulator had been in place, modern ports. Currently, the port actualization of automated cargo concession agreement still lacks handling, efficient pilotage, legislative backing, due to non- towage, dredging and allied port passage of the Ports and Harbour services, speedy cargo clearance, Bill. This does not give potential reasonable port operations investors any confidence; it rates, and forty-eight-hour port is also extremely difficult to operations could have topped the reassure foreign investors about agenda. Speedy cargo clearance Nigeria’s attitude toward the and turnaround time for vessels implementation of bilateral are important to the port agreements. Many investors seem reforms because their influence to be eyeing the exits. on port traffic and cargo dwell Non-passage of these bills time reduction is fundamental. holds backs the full benefits of the What the Nigerian Customs port reforms in Nigeria. It allows Service needs to do in securing abuses, illegal increment and revenue, achieving speedy and collection of terminal charges, cost-effective cargo clearance, storage charges at the ports, and and actualizing forty-eight-hour shipping lines agency charges. The port operations is an electronic, free storage period has also been single-window clearing system. reduced from seven days to three This will phase out the problems by the concessionaires, while the of delay, corruption, and bribery, demurrage period at the ports has

2016-2017 · VOLUME XII 53 been decreased as well. However, House subsequently referred the the Ports and Harbour Bill did bill to its committee on ports scale through a second reading and harbours and waterways for on November 8, 2016, at Nigeria’s further deliberations. House of Representatives. The

Neglected Areas Affecting the Growth of Nigerian Maritime Industry

The versatility of Nigerian sub-regions will remain elusive ports creates opportunities for without a deep seaport (Mr. Omar various sizes of vessels to call. But Suleiman – former MD of NPA). for Nigeria to generate revenue The investment ratio of 60:20:20 from these opportunities and to between the private sector and be known as one of the mooring the federal and state governments locations for bigger ships, it has in the development of some deep a lot of work to do in regards seaports in Nigeria is insufficient. to capital dredging, pilotage, Only the breakwaters, which the and breakwaters. Bigger vessels government provides, consume like the capesize, post-Panamax more than forty percent of both vessels, triple-E vessels, and super the federal and state governments tankers are suitable to serve only to the port development cost. large ports with a draft of up to The government is also still 24 meters (78 feet). Berthing of responsible for the dredging these bigger vessels in Nigerian and other infrastructures. The ports will improve the country’s breakwaters at Escravos terminal gross domestic product (GDP); are completely submerged, increase the bulk movement of thereby destroying the buffer crude oil, petroleum products, between the ocean and the river and other capital goods; reduce channel and restricting the operating costs and the time draft to a maximum of 5 meters in transit for goods; and boost (Warri-based Shipping Trade cargo-handling businesses Group). The non-functional and the turnaround time of nature of Nigerian ports has made cargoes. The depth of Nigerian it difficult for government to waterways is still not enough to generate revenue from them. The accommodate these larger vessels, ports in the Delta State of Nigeria and the warehouse capacities in comprise of the Warri port (the major seaports in Nigeria are main port), the Koko port, the microscopic. A WAFMAX vessel Burutu port, the Sapele port, and of 4,500 TEU and 260 meters crude oil ports and jetties, and long is the biggest and longest to they are all victims of government have ever docked in a Nigerian neglect. Warri port is one of port. Nigeria’s quest to become the Nigerian ports seriously the hub of maritime activities suffering from capital dredging. in the West and Central African Bulk carriers no longer call the

54 AFRICA POLICY JOURNAL Warri port because the channel is properly addressed, could be a practically blocked, as a result of gateway to the Nigerian ports’ non-dredging. Navigational buoys competitiveness. Multi-modalism in the Warri port channel had is the reliance of many modes of been swept away by water, which transport, from water transport makes safe navigation impossible; to rail, road, inland water, and vessels get stuck in the channel for pipeline. Nigeria must concentrate days and the government has no more on intermodalism because Neglected Areas Affecting the Growth of Nigerian tugboats to rescue the grounded there must be some connectivity Maritime Industry vessels (Warri Port Manager). between the modes of transport. However, the Nigerian Ports Multi-modal transportation has Authority recently purchased two the capacity to help Nigerian new tugboats to enhance marine market in terms of coverage, operations in the Lagos Pilotage quick delivery of goods, district. The unavailability of minimization of logistic expenses, a functional pilot cutter in the trade and commerce, revenue Warri-Sapele Pilotage district is generation for government disgraceful. The Warri port is so finance, and the development strategic to the Nigerian southeast of related economic activities. market because of its proximity. Goods transported by sea should From Warri to Onitsha, Anambra be able to get to the owner of State is the largest market in the cargo, and subsequently eastern Nigeria; by road it is less to their customers, as soon as than two hours, while it takes possible; through rail, pipeline, close to six hours from Lagos. and road transport and vice versa. The functionality of the Warri Multi-modal transportation port provides an opportunity for is a very interesting approach goods to get to both the south to solving a big part of cargo and southeast areas of the country mobility problems. Road traffic cheaply and timely. is a challenge to cargo mobility The Nigerian Shippers in Nigeria, mainly around the Council and the Nigerian seaports in Lagos, because the Ports Authority are enjoined movement of goods by road is to welcome fresh ideas on popular in Nigeria. The roads decongestion of Nigerian ports are subjected to traffic gridlocks and to facilitate infrastructural caused by container trailers and development in the nation’s dry petrol tankers trying to access the ports. The survival of Nigerian Tin Can Island Port Complex, dry ports is key to maritime Port of Lagos (Apapa), and fifty- businesses like ship broking seven tank farms in Apapa. The and agency, freight forwarding, Executive Secretary of the NSC stevedoring, towage, pilotage, Barrister Hassan Bello averred marine insurance and banking, road access to the ports in Lagos port warehousing and storage, has made the seaports unfriendly ship chandlery, and project cargo for businesses to thrive. management. According to him, traffic gridlock Multi-modal transportation has contributed to the slow pace is another area that, if of port operations, noting that the

2016-2017 · VOLUME XII 55 forty-eight-hour cargo clearance looked to as great hubs of income cannot be achieved if traffic generation and also capable of management is not in place. The boosting the nation’s fleet of ships. new ports in Lekki and Badagry, However, the ocean-shipping as well as Lagos, must feature industry faces a tough time, fast cargo railway and pipeline mostly the dry bulk market. It was networks to avert the road a dark year in 2015 for the dry congestion in Apapa. bulk sector, while it was actually The porosity of Nigeria’s the best year for the tanker sector territorial waters is a big threat to since 2008. The beginning of national income. The vulnerability 2016 did not change the story of Nigerian waters is not only of dry bulk market as the Baltic distracting foreign investments, Dry Index (BDI) reached a new but a lot of international ship all-time low of 290 points in owners are wary of fixing their February. However, the BDI rose vessels for charters that indicate seventy-one points on November Nigeria as the loading or 11, 2016—the first time the BDI discharging country. As result of will been above 1,000 points this, NIMASA loses three percent since August 14, 2015, when levy on each vessel. The ships the BDI sat at 1,055. All these ought to be entering Nigerian market fluctuations, including a waters, and this has really decline in new orders, changes suffocated maritime businesses in exchange rates, an increase in Nigeria, especially coast pilot, in economic risks following the ship chandlery, bunkering, freight “Brexit” vote in the UK, and the forwarding, ship agency, and growing labor unrest in China, broking. Nigeria monthly loses Japan, and South Korea, could be about $1.5 billion, due to the worrisome to the shipbuilding vulnerability of its sea (United industry. But, despite all these Nations Security Council). The challenges, the market still looks unrest in the Niger delta region is strong. Ship owners ordered a causing a lot of maritime-related good number of containerships crimes at the Gulf of Guinea, in 2015, while new orders for and has also forced a drop in the dry bulk ships rapidly declined. country’s crude oil production According to the Clarkson from nearly 2.3 million barrels Shipping Intelligence Network, per day to about 1.56 million. seventy-five ships were ordered More than thirty-five maritime with capacity of 1.03 million crimes were recorded in the first TEU in H1 2015. Based on the quarter of 2016 alone. Although containerships on order and the Nigerian navy has been planned deliveries, the supply responsive, a synergy with other capacity should see an increase of Gulf of Guinea nations is needed around 1.6 million TEU in 2017. to tackle this problem from The tonnage of the commissioned inland. containerships, approximately Rather than depending 3.7 million TEU, is currently solely on crude oil in Nigeria, equivalent to around eighteen shipbuilding and recycling can be percent of the present global

56 AFRICA POLICY JOURNAL container fleet’s capacity of 20.9 wrecks, such a sum should be million TEU (Hapag-Lloyd AG invested in dry dock. Recycling Q2 / H1 2016 Investor Report). those abandoned ships in Nigeria Even with the low ordering will aid investment and save of new dry bulk carriers, there ship owners a lot of money from is still a large order booked for towing shipwrecks abroad for future deliveries. Reduction in recycling. Ship owners abandon dry bulk newbuilding orders their ships in a country like is, however, a blessing to the Nigeria because the shipwrecks ship recycling market. In the are very expensive to tow abroad. first half of 2016, 373 bulkers The law on removal of wrecks and general cargo ships were in Nigeria does not specifically scrapped, representing 23.8 define the geographical million tons of DWT-carrying operational ambit of the receiver capacity (Shipbroker Intermodal). of wrecks, and the liability of the The Baltic and International ship owner with regards to the Maritime Council (BIMCO) cost of removing the wrecks is reported that international dry not well-defined. However, the bulk ship owners are scrapping Nairobi International Convention ships aged eighteen years or older, on Removal of Wrecks 2007, while some Chinese owners have addressed a lot of fundamental scrapped ships that were even issues on the international younger. Nineteen ships out of removal of wrecks, including twenty-eight built between 1998 the Lacuna in the Merchant and 1999 got demolished between Shipping Act of 2007. Nigeria 2013 and 2015. Scrapping of old needs to swiftly domesticate ships will continue, and by 2018 this international law because it and 2019, we might see an upturn would not be able to enforce the (Virtual Shipbroker). As a matter provisions of the convention on of fact, a rise in ship recycling has ship owners since it is not yet a contributed significantly to BDI, law in the country. reaching a mark of 704 points as One great advantage of April 2016. Nigerian companies have over Like Pakistan, India, and their international competitors Bangladesh, which are known is the cost of labor in Nigeria for the recycling of vessels, is highly affordable. Cost of Nigeria is also a potential labor has always been one of the destination for ship recycling. ruling factors in the business The scattered shipwrecks in of shipbuilding and recycling. Nigeria’s waterways have created Because the cost of living in some gaps for investment and business. countries is considerably lower Nigerian waters are littered with than in others means they can a large number of abandoned produce certain items at a much ships (Nigeria’s Association of lower cost. Big shipbuilding Marine Engineers and Surveyors). nations like China, Japan, and Instead of spending almost $25 South Korea are currently billion proposed by the Lagos expanding their production state government to remove the sites to more labor-friendly

2016-2017 · VOLUME XII 57 countries, mainly where labor year are also factors influencing is inexpensive. Saudi Aramco’s a turnaround in the market of partnership with South Korea’s new LNG tankers construction. Hyundai Heavy Industries (HHI) Nigerian bitumen deposit is for the development of a shipyard estimated at 42.74 billion metric in Saudi Arabia will add greater tons, (Blacks Greatest Homeland: value to Saudi Arabia’s economy, Nigeria is Born Again), an boost localization efforts, and indicator for more bitumen help to create jobs for Saudi carriers. The commencement nationals (President/CEO, Saudi of sulphur emissions rules Aramco 2015). Ship owners within certain geographic zones prefer to break their vessels on (Emissions Control Areas or south Asian beaches because the ECAs) and the Energy Efficiency cost of labor is criminally cheap, Design Index (EEDI) for new and they can easily make dirty buildings to a thirty percent profit from the south Asian ship- reduction in emissions by 2025 recycling sharp practices. Out of are indications toward a low 768 ocean-going vessels that were sulphur-shipping industry in the recycled in 2015, 469 were broken future. It is significant to say that on the beaches of Pakistan, India, the introduction of global sulphur and Bangladesh. And seventy- caps in 2012 has become a major nine percent of ships sold for driver in ship design. Therefore, recycling in the first quarter the global 0.1 percent sulphur of 2016 ended up on the same content limit intends to also south Asian beaches. Ships in increase demand for new ship Bangladesh, India, and Pakistan engines. are frequently dismantled on One interesting factor about beaches and piers, rather than in the shipbuilding market is that dry docks or dismantling slips it is versatile. It serves all the (International Law and Policy markets: tanker, containership, Institute). Ship recycling in Ro-Ro, dry bulk, multipurpose, these countries is subject to less etc., so it can easily switch control and inspection. Nigeria to where there is a demand. can carve a niche for itself in this For instance, with the sudden business by capitalizing on its return of interest in Aframax cheap working population. The crude carriers, 57 new orders dynamism of Nigerian population were placed in 2015. This is the is that it is relatively young and highest number of Aframax it can be regarded as a working crude oil tanker orders since population (International Finance 2006 when 101 were ordered. In Corporation, Nigeria). 2003, Hyundai’s Vinashin yard in The commencement of Vietnam shifted from its focus on a U.S. shale gas boom and bulk carriers into new business Russia’s Yamal LNG project have areas, such as tankers, with a fifty prompted surging demand for percent increase in its order book. both LNG and LPG carriers. The shipbuilding industry Iran’s 40 million and Nigeria’s 22 is part of a sophisticated marine million metric tons of LNG per cluster with upstream and

58 AFRICA POLICY JOURNAL downstream links, as well as much as 77.6 percent of South connections to other clusters Korean steel plate shipment including logistics and electronics went to shipbuilding (Korea (OECD 2013e). The shipbuilding Iron and Steel Association). The value chain is composed of many Nigerian shipbuilding industry different activities from design to is also capable of resuscitating post sales and the high degree of the Nigerian marine equipment modularity in the industry means and ship spare parts industries. production can be fragmented Around eighty percent of Korea’s across different units and marine equipment output is countries in a global value chain. produced by members of the Availability of steel in Nigeria Korea Marine Equipment is one of the domestic links to Association (KOMEA). KOMEA shipbuilding. Nigeria is one of companies recorded production the world’s largest producers worth $11.9 billion in 2011 (Korea of steel, but local demand for Iron and Steel Association) and Nigerian steel is still very low are still growing. Algeria’s heavy and this limits the growth of the investments in port capacity and nation’s steel industry. Many steel skills development helped the plants in Nigeria are currently nation to jump straight into the operating below thirty percent ten fastest-growing ship parts of their production capacity trading nations. If Nigeria is to as a result of low patronage revamp its ship construction (Manufacturers Association industry, it will require massive of Nigeria). Significantly, one investment, scientific industrial of the commercial ways in programming, a robust subsidy which Nigerian steel can be arrangement, a structured work locally patronized is through force and private sector, and shipbuilding because it is a huge smartness in negotiating strategic consumer of steel. Shipbuilding partnerships and bilateral has been a major driver of steel agreements with international consumption in Korea—as friends.

Conclusion

Nigeria remains a new Crimes Commission probing into destination for future maritime the sources of their funds. One investments, but no one will vital point worth noting is that invest in a country where there solutions to Nigerian economy is fear and uncertainty, policy woes are inherent. However, inconsistency, and no rule of law. that does not stop the nation At the moment, Nigerians are from cementing synergies with not even investing in their own non-Nigerians; the reality is economy because they are afraid that Nigeria needs to dutifully of the Economic and Financial harness its natural and human

2016-2017 · VOLUME XII 59 endowments for national gain. Nigeria, the National Shipping Until Nigeria embraces Policy Act of 1987, was enacted diversification of its economy; following Nigeria’s ratification total overhaul of legislation, of the United Nations Code institutions, and regulatory on Trade and Development framework; development of local (UNCTAD). The government content in the maritime industry; is making no effort to replace and professionalism as the this obsolete and faulty act. yardstick for appointing maritime Even the Nigerian Maritime administrators and practitioners, Administration and Safety its maritime industry will Agency have no clearly outlined continue to face obstacles, and vision for national maritime the hope to tap maritime revenue policy. A tailored national estimated to generate $7 trillion maritime policy that will provide annually will remain a mirage. definite long-term vision and an The Nigerian government is action plan for shipping reforms expected to demonstrate a strong built around direct participation political will in diversifying the is what Nigerians are anticipating. economy, but it seems President Those in charge of these proposed Muhammadu Buhari appreciates reforms in Nigerian shipping oil and gas more. The Ministry should be conversant with Section of Petroleum Resources, under 17 of the Nigerian Investment President Buhari’s supervision, Promotion Commission Act is set to present a new national of 1995, which allows a non- oil policy, national gas policy, Nigerian to invest and participate downstream policy, and fiscal in the operation of any enterprise reform policy to the Federal in Nigeria because it contravenes Executive Council of Nigeria. the principle behind Cabotage These new policies are to provide Act of 2003 and could be a big clear-cut policies, coordinate the challenge to the prospect of local business relationship between content in Nigerian shipping government and investors, reflect reforms. An oceans policy is also current trends in the global needed in Nigeria to modernize oil industry, and address fiscal the nation’s ocean management; issues in the petroleum industry. the port concession agreements However, the Nigerian maritime are overdue for review; and industry is being treated as an the Presidential Committee on orphan. Development of the Maritime Nigerian maritime is an Industry 2012 Report also industry with no direction. deserves implementation. The current shipping policy in

Endnotes can be found online at http://apj.fas.harvard.edu/

60 AFRICA POLICY JOURNAL Historical Antecedents and Paradoxes that Shaped Kenya’s Contemporary Information and Communication Technology Policies BY DOUGLAS GICHUKI, ARTHUR GWAGWA, AND ISAAC RUTENBERG

Abstract

Kenya National Information and Communication Technology (ICT) Master Plan 2013/14 -2017/18 is an ambitious undertaking, poised to cement Kenya’s position as Africa’s leading ICT Hub. The fact it is a part of, and derives strength from, the 2006 National Information and Communications Technology Policy (policy) demonstrates the policy is responsive to domestic and global developments. Since its adoption, it has provided a normative framework through which the Kenyan ICT sector has hugely contributed to the country’s economic growth. Most noticeable has been the growth in mobile commerce, with more than two-thirds of the adult population engaging in it, making Kenya the world leader in mobile payments. Although Kenya has come a long way in introducing liberal market reforms that have immensely benefited the technology sector, policy challenges remain. Just like most major economies, such as China, the government has actively promoted and supported the development of technologies that bolster the horizontal flow of information, but at the same time, has devoted substantial efforts to control the substance of information flowing via these technologies. Kenya, therefore, needs to introduce a number of policy reforms, key among which is addressing the current policy disjuncture between the policy’s liberal values on the one hand and the draconian and media national security laws.

2016-2017 · VOLUME XII 61 Keywords Kenya, Information Communication Technology, information control, ICT policy, ICT policy stakeholders

Introduction

The Global Entrepreneur Fiber Backbone, which has now Summit, which took place in connected fifty-seven towns Nairobi in July 2015, marked a in thirty-five counties. This global watershed recognition of was aided by fairly market- Kenya’s quantum leaps in the ICTs friendly policies that encourage sector and its impact on rapid innovation, a knowledge-based economic growth. The impressive economy, and foreign investment. facts and statistics reveal Kenya Improved access to mobile, as one of the few successful fixed line, and fiber optic examples of technological broadband has aided a culture adoption in Africa’s transitional of innovation, as Kenyans markets, beyond Silicon Valley’s have been on the forefront well-developed, technology-based in developing Internet-based entrepreneurial ecosystems. Out services and applications that are of a population of 44 million, locally relevant to the Kenyan there are 29.6 million Internet economy and society. In the users in Kenya, representing field of mobile commerce, the a 69 percent penetration rate, figures are impressive. More while mobile penetration stands than two-thirds of the adult at 84 percent. According to the population engages in mobile July 2015 sector updates by the commerce, making Kenya the Communications Authority world leader in mobile payments. of Kenya (CA), the amount of At 86 percent penetration in international Internet bandwidth Kenyan households, mobile available in the country grew to payment such as M-Pesa® is 1.6 Gbps. The used bandwidth redefining the ways in which increased by 57 percent to 783,761 Kenyans perform transactions mbps. The mobile phone and 3G and has also facilitated financial modems continue to dominate in inclusion by promoting savings provision of connectivity. and financial transactions among The growth of ICT access the unbanked. in Kenya has been attributed The need to access these to massive investments applications, platforms, and in infrastructure from services has also, in turn, had telecommunications service a reciprocal, catalytic effect on providers, as well as aggressive the numbers that use mobile promotions to entice users. In phones. These innovations 2014, the Kenyan government have impacted Kenyan political launched the National Optic and economic activity in

62 AFRICA POLICY JOURNAL other fields, including citizens’ pursued. By reviewing Kenya’s participation and agriculture. history in ICT policy formulation, The Kenyan ICT sector has the country can learn from also attracted investment from its past and avoid prospective international corporations, policy relapses. This paper seeks including investments toward the to provide a review, explore the establishment of local Internet ongoing impact of such a relapse exchange points. For example, to the extent that it is occurring, the Google cache server helped and provide recommendations for lower the latency of all Google strengthening the impact of ICT traffic. Another example is the through effective policy. IBM Research – Africa campus, Through a combination which opened in Nairobi in 2013 of the "rationalist" and the as the first commercial technology "behaviorist” approaches research facility on the continent. to policy analysis—which The Facebook Africa Policy examines policy as an outcome division has been collaborating of complex social, political, and with the Center for Intellectual economic interactions—this Property and Information and paper assesses the evolution Communication Technology Law of Kenya’s ICT policy in the in Kenyan ICT multi-stakeholders areas of telecommunications, policy discussions. broadcasting, and the Internet Yet, in the middle of from 1963 to present day. In such progress, especially on developing the analysis that the economic front, signs of follows, this paper is guided by relapse have been noticed. The two main questions. First, to what government has passed laws and extent have Kenya’s successive introduced measures that restrict governments’ media policies civil liberties, ostensibly as anti- since its independence shape the terrorism measures, as well as origins, course, and outcomes to diffuse ethnic tensions. As of the country’s ICT sector? other eastern African countries Second, what were the contextual like Ethiopia have demonstrated and institutional channels before, without appropriate through which policy is made, safeguards, technologies of and to what extent have these expression could easily be institutional arrangements shaped turned into tools of repression and influenced the stakeholder used to curtail the free flow networks, processes, and of information, with potential power relations through which impact on long-term economic the Kenyan ICT policies are growth. This can be avoided if negotiated? Data for this research the state’s response to emerging was gathered through desktop threats such as terrorism and research and through in-depth cybercrime are curtailed to a interviews with experts in ICT, point where they are necessary media policy, and/or governance to achieve legitimate aims, are in Kenya. prescribed by the law, and are The paper has four sections: proportionate to the aims being 1) the illiberal roots of Kenyan

2016-2017 · VOLUME XII 63 media policy; 2) the digital age liberal market reforms enhanced and the liberalization agenda; the technical and regulatory 3) the factors that shaped the capabilities of its ICT sector adoption and implementation to drive economic growth, the of the National 2006 ICT policy; overarching political regulatory and 4) resurging illiberalism framework remains unsatisfactory to advance the goals of peace, and has been worsening as security, and prosperity. seen by recent legal and policy Suggestions are provided in the measures that curtail the exercise conclusion. Overall, the paper of civil liberties online. observes that although Kenya’s

The Illiberal Foundations of Kenyan Media Policy

The roots of Kenya’s modern- his administration introduced day digital information and restrictions that curbed media communication technology can freedom, mainly due to partisan be traced back to the earliest reporting. An example is the submarine cables connecting Official Secrets Act of 1968, which the country to the external etched away an already narrowing world that were laid by the media space. The negative impact Eastern and Southern Africa of this law on the media was Telegraph Company in 1888. immediately felt at the National These largely connected British Media Group where editorial administrators in the colony and controls and heavy-handed state the few settler farmers. After censorship contributed to partisan independence, the East African reporting and the departure of Post and Telecommunications independent and freethinking Corporation (EAPTC), owned editors. by Kenya, Uganda, and Tanzania, From 1978, the newly served as the main provider of sworn in Daniel Arab Moi telecommunications and postal administration inherited a services in the region until severely partisan media and 1976 when EAPTC eventually introduced further draconian disintegrated amidst acrimony, measures in a bid to consolidate paving the way for Kenya to put political power. A large in place a homegrown ICT policy. number of Kenyans lost trust When Jomo Kenyatta in mainstream media, leading came to power in 1963, he to the establishment of various inherited a fairly free and fair underground press outlets such media, albeit foreign-owned. as Pambazuka, Pambana, and Despite his reputation as the the Organ of the December 12 Republic of Kenya’s founding Movement. These outlets called father and liberator, under the for media reforms, which in guise to strengthen the state some cases, led to the arrest and

64 AFRICA POLICY JOURNAL prosecution of some of their the media was meant to promote editors, as well as the ban of national unity and economic independent critical media. The development. However, in reality, government also ordered local Moi’s policies were designed media to stop publishing news to fend off growing political by foreign wire services because opposition and public agitation they were allegedly misinforming against economic liberalization the world about events in Kenya. that affected the standards of This was in addition to the living of only a select few. deportation of a British journalist In 1991, owing to both in December 1988 for reporting internal and external pressure on the queue-voting fiasco. for reforms, the government The Moi administration adopted a multi-party political also introduced far-reaching system. This paved way for authoritarian reforms, which the liberalization of the media included nationalization of a and communications sectors, privately owned press, like the as seen by the proliferation of Voice of Kenya (VOK). A public independent newspapers and radio broadcast service was magazines such as Economic renamed Kenya Broadcasting Review and Finance. Despite Corporation and became these policy reforms, there were government’s mouthpiece. The further slippages in both media government rationalized their policy and practice, which saw heavy-handed approach on the the arrest of journalists and need to protect national security. confiscation of printing presses. They claimed that, as a fragile, The government also went on to transitional democracy, Kenya sponsor legislation that regulated needed stability, and therefore media operations.

The Digital Age and the Liberalization Agenda

The Moi administration the skepticism was its fear of witnessed the advent of new opposition, as the opposition technologies in Kenya, in party was better able to mobilize particular the computer and the and assert itself through these Internet. However, throughout new technologies. the 1990s, it viewed ICT with The government was great suspicion, partly due to compelled to liberalize the its fear that computers might media by external forces, for cause a loss of state secrets or example, globalization, which pose a threat to national security. partly fueled an increase in the The administration was also number of media houses. Further, concerned such technologies economic demands, as well as would take away jobs, although pressure from donors and civil the underlying reason for society, forced the government

2016-2017 · VOLUME XII 65 to review the laws governing IBA, the move demonstrated the media. In particular, they government’s historical political demanded the abolition of the interference and control over restrictive media, liberalization the ICT sector. Particularly, it of airwaves, and harmonization is indicative of how the Moi of the overlapping Kenya Post government dominated the media and Telecommunication Act and policy agenda. Kenya Broadcasting Act. Such control explains In response to these why the media rebelled again external demands, the attorney against government-led review general appointed Hillary processes and instead endorsed Ngweno to head a task force on the media review task force led press law to review and make by the Kenya Union of Journalists recommendations on the freedom (KUJ). One of the KUJ task of both print and electronic force’s accomplishments was its media. The Kenya Mass Media proposal of the media bill of 1998, Commission Bill of 1995 and the which proposed the framework Press Council Kenya Bill of 1995, for the free and independent both of which resulted from the press for the task force. The KUJ review, were rejected by most made recommendations for the non-state actors on the grounds establishment of an independent they did not adequately create mass media commission, a framework that guaranteed the institution of the Media access to information. There was Council of Kenya, and for the further discussion the bills didn’t replacement of section 79 of the adequately protect journalists, 1963 Constitution of Kenya with publishers, and broadcasters, and new provisions that guaranteed also that they gave government freedom of the media; protection unfair representation in the of journalists, publishers, proposed regulatory body. broadcasters; and right of access In the face of growing media to information. and civil society vigilance, At first, the government did government discarded the not take up the recommendations. proposed laws and appointed However, pressure to review Horrace Awori in 1996 to head media laws increased until Moi another task force. In 1998, the reluctantly compromised. In 1997, new task force recommended the the government repealed articles establishment of the Independent 52, 53, 54, 57, 58, 66, 67, and 121 Broadcasting Authority (IBA), of the Kenyan 1969 constitution tasked with the responsibility that hindered freedoms of of regulating the allocation of expression and assembly, and frequencies in the broadcasting which criminalized the free flow and telecommunications sector. of published or documented However, the government instead information in Kenya. The Moi established the Communication government slowly implemented Commission of Kenya (CCK). these new policies until it left Although not substantially power in 2002. different from the proposed

66 AFRICA POLICY JOURNAL As a sign of its lack of and the World Bank. The Moi commitment to transparency, administration was increasingly and how it reluctantly embraced encountering a dynamic and reforms, the first ICT policy vociferous opposition from civil drafts emanating from the Moi society, religious leaders, and administration were closely opposition politicians. guarded secrets that did not In response to donor welcome any stakeholder pressure, the government participation. These were issued two policy statements. In all authored by the National Sessional Paper No. 2 of 1996, Communications Secretariat it issued a policy statement (NCS), which was situated in the regarding the liberalization of office of the president. Outside the telecommunications sector. of government, the Computer The deregulation process was Society of Kenya was creating a further spelled out in a 1997 draft for an informatics policy, Sector paper. The 1998 Kenya while UNESCO was attempting Communications Act, which to establish a regional informatics repealed the Kenya Posts and network. Telecommunications Act, put As the 1990s drew to a forth measures to liberalize the close, the Kenyan private sector telecommunications sector; for increasingly pushed for policy instance, by opening up of the changes that would open the telco sector to private enterprises. media sector for domestic This move resulted in companies companies. These efforts were like Vodafone entering the largely channeled through Kenyan market. It also split Kenya chairpersons of private sector Post and Telecommunication into associations sitting at the National five separate entities, including Y4K Steering Committee. a fixed-line operator (Telkom), a Recommendations from the regulator (the CCK), and an in- committee to integrate ICT into house, policymaking organ (the national development did not, NCS). however, reach cabinet due to According to the Kenyan President Moi’s anxiety over a free Ministry of Finance and Planning media. (MFP) 2001 reports, the ICT By the late 1990s, however, policy agenda was again forced the Moi regime was both on a reluctant government by politically and economically multilateral donors through weak and greatly susceptible the Kenyan Poverty Reduction to external donor pressure Strategy Process. The Poverty for democratization and Reduction Strategy Paper (PRSP), liberalization. Donors also published in June 2001, was demanded reform of the print developed under the coordination media and the ICT sector. For of the United Nations instance, the privatization of Development Program, the Telkom was made a precondition International Monetary Fund, and to resume talks with the the World Bank in a consultative International Monetary Fund process involving government,

2016-2017 · VOLUME XII 67 civil society, the private sector, as one of eight sectors needing religious organizations, youth, prioritization to help reduce women, and other marginalized poverty and spur economic groups. The paper placed ICT growth.

The Road to Kenya’s National 2006 ICT Policy

It was in the context of and telecommunications increasing forced democratization into the newly created and increasingly free media that Ministry of Information and Mwai Kibaki came to power Communications, directed by in 2002 under the National Raphael Tuju. The new structure Rainbow Coalition (NARC). In yielded five organizations March 2003, the NCS convened that coordinated the Kenyan a stakeholder’s forum and government’s actions in the publicly released the first draft ICT sector. These included the of the government’s ICT policy, Ministry of Information and which was modeled highly on Communications; the CCK— the Common Market for Eastern the regulator; Government and Southern Africa (COMESA) Information Technology Service ICT framework. Although (GITS), which provides computer this was a commendable and technology support for attempt to formalize Kenya’s ministries; the NCS, which first ICT policy, and a high advised the government on watermark distinguishing communications policy; and the Kibaki’s administration from Directorate of E-Government. the Moi regime, the move was The newly elected NARC largely criticized for lacking a government also led an economic wider private ICT stakeholder recovery workshop in 2004 in involvement or input. The new an effort to promote economic framework provided a forum growth. The workshop proposed for government institutions the mainstreaming of ICT in all dealing with ICT. The NCS government operations, especially did not endorse the policy the adoption of a “master plan” for recommendations of this forum. e-government by the end of June Despite these deficiencies, 2004, but also an improvement the structural changes in the of the regulatory framework. The Kibaki government in 2003 2004 e-government strategy was came to affect the ICT sector in aimed at improving government progressive ways. efficiency through reciprocal In June 2004, President information sharing, encouraging Kibaki restructured the citizens’ engagement of the institutions dealing with ICT government, and attracting policy, eliminating the Ministry of foreign direct investment. Information and Transportation and merging broadcasting

68 AFRICA POLICY JOURNAL Intra-Government Institu- the liberalized media continued tional Dissonance more or less unabated until 2005, when President Kibaki lost One core challenge for a referendum vote on the new the Kibaki government with constitution to a well-coordinated respect to developing an ICT opposition led by Raila Odinga. policy was the chaotic dispersal This prompted his government of institutions making ICT to regress openly on its much- policy in government. The touted respect for the media Ministry of Transport and by invoking Section 88 of the Communications was responsible Communications Act of 1998, for telecommunications raiding media houses and seizing and postal matters, whereas broadcasting equipment. Information and Tourism was in Generally, the main source of charge of the electronic media news had been the mainstream and broadcasting. Although the printed press in the years e-government directive was a preceding Kibaki’s presidency; welcome initiative, government through non-traditional online continued with its adhoc resources such as blogs and approach to ICT policy and social media, Kenyans could now strategy, exacerbated by turf share and disseminate news in protection by various government alternative platforms. This was agencies. For instance, the ICT partly because of an increasing strategy was developed before an democratization and Kibaki’s ICT policy could be developed. institutional permissiveness on At best, the implication was the ICT growth, and partly due to the strategy preempted the policy; at inherent ability of online activities worst, an admission that policy and reporting to be (somewhat) statements did not actually guide anonymous. This resulted government implementation in frequent and unmediated actions. It was therefore not conversations by Kenyans at home clear how the e-government and in the diaspora, who could directorate in the office of the access news through the digital president would work with the editions of the main dailies, as new Ministry of Information and well as blogs and social media. Communications or with GITS in It could be argued that implementing the strategy. although the development of online media was a global Dissonance Between Me- phenomenon, it was aided to dia and ICT Policies take root in Kenya by Kibaki’s permissiveness. However, the While Kenya was clearly raid on the media houses is moving forward with ICT an indication of dissonance in liberalization and innovation, just policies governing media and like the previous administrations, those governing ICTs. Such the Kibaki government didn’t dissonance, it could be argued, harmonize the ICT and media was out of step with the growing policies. During the Kibaki era, global media convergence.

2016-2017 · VOLUME XII 69 Commitment to Multi-stakeholderism

The government’s challenges it made it one of the conditions in implementing an effective ICT for the Moi government to policy eventually underscored the liberalize the media, as part of need for increased engagement its poverty reduction strategy with the private sector, civil framework. This liberalization society, and international that undergirded media policy stakeholders. Although Kibaki reform cleared the path for the had initiated work with the private public sectors inclusive private sector since 2003 to agenda in the policymaking promote economic growth in process that culminated in the Kenya, the inclusion of ICT liberal 2006 National ICT Policy. represented a radical shift One major revolutionary outcome in Kenya’s approach to ICT from this was the three undersea policymaking. In addition, there fiber optic cables that landed at was a marked insistence on the Kenyan coast in September employing qualified technocrats 2009. They catalyzed an ICT to run ICT policy formulation revolution marked by cheap and operations in government. access to GSM feature phones and These policy entrepreneurs easy access to broadband Internet. created a conducive environment On November 18, 2004, for civil society and the private the second draft of the national sector to have open conversations ICT policy, which had been about the direction of Kenya’s put together by KIF, Kenya ICT ICT policy. By 2004, the private Action Network (KICTAnet), sector was fully engaged in the a multilateral donor fund, the ICT policymaking process. After International Development the launch of the government’s Research Center of Canada 2004 E-Government Strategy (IDRC), and the Ministry of under the leadership of Juma Information and Communication, Okech, the Kenya Private Sector was issued in a “National ICT Association and the head of the Visioning Workshop.” At the civil service agreed to bimonthly workshop, multi-sectoral teams meetings between the private designed sector visions around sector and government to education, health, government, review progress and discuss trade, and industry; small pertinent issues. The Kenya ICT and medium enterprises; and Federation (KIF), a group of agriculture. Unlike the 2003 draft private sector ICT organizations, of the national ICT policy that also initiated frequent meetings was rejected, the second draft with government and head of policy identified ICT as one of e-government. eight sectors of Kenya’s economy. It is also important to note Its provisions focused mainly that when the IMF supported on ICT education and training, Kenya’s recovery out of its tax reduction, and tax incentives economic stagnation in the 1990s, on both computer hardware

70 AFRICA POLICY JOURNAL and software. It also addressed of Kenya (TESPOK), and the impediments that discouraged the Computers Society of Kenya. growth of e-commerce. Donor groups such as the IDRC, The differences between UNDP, and UNESCO were also the 2003 and 2004 drafts of present. Kenya’s national ICT policies Unlike the 2003 version, the were important. The 2003 draft 2004 draft policy addressed the was a result of an exclusive issue of uncoordinated dispersal government process, while the of functions, and in addition, the 2004 draft included many private issue of broadcasting, which was aforementioned stakeholders. previously housed in the Ministry The 2003 process had failed its of Information and Tourism. objective to collect and collate The Ministry of Information views of stakeholders drawn from and Tourism did not closely the public and private sectors cooperate with the Ministry of as a basis for preparing Kenya’s Transport and Communications, national ICT policy. Though which was responsible for more than twenty background telecommunication regulation. papers were presented at the In a move to reset five-day workshop that resulted the relationship between in the 2003 draft, the policy government and the various remained confidential, circulating private stakeholders on ICT within government offices with policymaking, the Ministry of no stakeholders being allowed Information and Communication access to it until the national ICT called for public input on the 2004 visioning workshop convened in draft of the national ICT policy. November 2004. The resulting An electronic communication draft ICT policy from the forum was developed by the workshop was then published for Telecommunications Service wider stakeholder input before it Providers of Kenya, an umbrella was finalized in 2005. body of all telecom providers. It is on this basis that The compilation of their on March 9, 2005, the ICT viewpoints was led by Alice community, comprising private Munyua, director of KICTAnet. sector operators, academics, and CCK management also developed NGOs, gathered for the second a website on which comments or National ICT Convention, inputs could be posted to improve organized by KICTAnet. Civil the 2004 draft ICT policy. The society was represented by reports of Alice Munyua and the Catalyzing Access to ICTs in CCK—both based on the public’s Africa (CATIA), the Association comments—covered a number for Progressive Communications, of issues that were included: the Kenya WSIS Civil Society environment sustainability of Caucus, and the Kenya ICT, the use of ICT for poverty Community Media Network. The eradication, universal access in private sector was represented rural areas, promotion of local by KIF, the Telecommunications content on ICT, and protection Service Provider Association of the CCK from undue political

2016-2017 · VOLUME XII 71 interference. These reports were Kenya’s ICT sector, designating handed over to the ministry in roles to various categories of the April 2005. Having used the 2005 ICT stakeholders in a way that reports from the private sector to limits government’s mandate to revise the 2004 draft, the Kenya that of an enabler of policies that national ICT policy was finally are conducive to private sector adopted by the cabinet in January investment in ICT. It also enables 2006. development partners to support Kenya’s 2006 national ICT the capacity of building in the policy has as its mission to areas of ICT in collaboration with improve the livelihood of Kenyans the Kenyan government; civil by ensuring the availability of society, meanwhile, is given room accessible, efficient, reliable, to inform ICT policymaking, and affordable ICT services. specifically, concentrating on ICT It offers the broadest reach on access, ICT for learning, poverty stakeholder involvement in reduction, and good governance.

Implementation of the 2006 National ICT Policy

Since the adoption of the regulatory environment of the 2006 national ICT policy, the ICT sector in Kenya. Kenyan ICT sector has hugely The master plan signals contributed to the growth Kenya’s national commitment of the Kenyan economy. The to universal Internet access, growth is most noticeable in in particular a broadband mobile commerce, with more plan across policymakers and than two-thirds of the adult stakeholders, though Kenya population engaging in it, making should incorporate more detailed Kenya the world leader in mobile performance indicators in its payments. The ICT impetus has, plan to ensure transparency in part, been supported by the and accountability. Further, post-independence, market- and in line with Vision 2030, friendly policies that have also the master plan can only work contributed to overall growth in along with similar plans on the private sector. agriculture, manufacturing, A major strength of the tourism, education, and other national ICT policy is its areas mentioned in the vision. organic nature, demonstrated The ICT legacy planning should by its responsiveness to current not be on electoral cycles, or other challenges in the context of political considerations’ its stated Kenya’s economic aspirations. objectives should transcend the This is seen in the Kenya National politics of the day. ICT Master Plan launched in However, for the policy to 2013, which will further enhance yield maximum impact, not an enabling policy, legal, and only in the economic realm, but

72 AFRICA POLICY JOURNAL also in governance, the country media) was used to foment ethnic needs to reform its political violence; in the 2013 elections, culture, especially the role of the media, moved to the other the media and information extreme, with the overarching technologies in the advancement message on ICT platforms of of civil liberties. The antecedents “peace at all costs.” As a result, of the current challenges can the government enacted laws and be linked to the politics of the relied on old ones to enforce civil formative years of the Kibaki obedience and also, ostensibly, administration, especially in to quell terrorism threats. As an 2005 when the administration example, on December 5, 2013, launched an onslaught of Kenya's National Assembly passed the media after losing in a two contentious bills: the Kenya constitutional referendum to Information and Communication Raila Odinga. When the 2007 (Amendment) Act and the Media post-election ethnic violence Council Act. The enactment erupted in Kenya, the government of the new media law came used the same law to suspend amid measures to reinforce live broadcasting. It did so government control over the purportedly as a measure to Kenyan media in the wake of the curtail ethnic tensions. The 2007 September's 2013 attack by Al- election highlighted the uneasy Shabaab militants on the Westgate tension between Kibaki’s liberal shopping mall in Nairobi. Critical economic policies—particularly reporting exposed ineptitude as exemplified in the national in the government’s ability to ICT policy on one hand—and handle the insurgency, and an undemocratic culture in his caused it to rethink broadcasting administration, mainly through guidelines for issues that affect his administration’s control of trust in public institutions main media platforms. While and territorial integrity. In the others think Kenya’s rapid recent report submitted to the economic development will African Commission, the Kenyan eventually lead it to achieve a full government said it “acknowledges macro democratic stature, others, the threat that an unregulated or citing the Kibaki era, argue rogue media poses to national economic growth did not lead security.” to it attaining a full democratic In December 2014, President stature. Kibaki helped Kenya Kenyatta signed into law the reach some of its highest levels Security Laws (Amendment) of economic growth, but failed Act of 2014 amid protests from to address massive corruption, human rights defenders. The law, which led to claims of fraud in among other provisions, allows his 2007 presidential election, and admissibility in court of electronic in turn exploded into violence. messages and digital material, The contradictory role of the regardless of whether or not they ICT was amplified in the 2007 are in their original form. and 2013 elections. Whereas in These measures are also a 2007, the media (including social threat to innovation, in particular

2016-2017 · VOLUME XII 73 the flow of money through mobile legal provisions are aimed at applications such as M-PESA controlling hate speech, they have in the COMESA region. For had an impact on intermediary instance, in the aftermath of an liability, free speech, and media attack on a University in the freedom online, as well as on Kenyan town of Garissa in April privacy of communications. This 2015, the government made a is somewhat similar to Rwanda sweeping declaration that ordered where freedom of expression has all banks and microfinance been curbed and online media institutions to stop working with heavily regulated in the wake of people thought to be associated the 1994 genocide, during which with al-Shabab. traditional media fueled ethnic According to Opennet, tensions. while these actions and related

Conclusion

From the above discussion actively promotes and supports one conclusion can be drawn. the development of technologies The trajectory of the Kenyan that bolster the horizontal flow ICT story reveals that, although of information, but at the same Kenya’s liberal market reforms time, devotes substantial efforts enhanced the technical and to control the substance of regulatory capabilities of its information flowing via these ICT sector to drive economic technologies. growth, the overarching political At a policy level, Kenya regulatory framework remains needs to address these policy unsatisfactory and has been dissonances in order to ensure a worsening. This is seen through convergence between the values the successive contested elections embodied in its progressive ICT and recent authoritarian measures sector and national political that curtail the exercise of civil culture. This will ensure the sector liberties online. The result is a facilitates information access drop in Kenya’s state of freedom to all in line with the United in the world from “partly free” to Nations sustainable development “not free.” President Kibaki helped goals, which, alongside other Kenya reach some of its highest basic rights, include the right to levels of economic growth, access information. Kenya can but failed to address massive do so by realigning media laws corruption, which led to claims with its 2010 bill of rights, which of fraud in his 2007 presidential seeks to protect and promote the election, and eventually exploded right to freedom of information into violence. Yet, Kenya is not and expression, including in the alone in this. Such paradoxes are context of modern information also seen in major economies technologies. such as China, where the regime

74 AFRICA POLICY JOURNAL Although Kenya’s 2006 ICT an indication the government is policy makes no reference to not flatfooted, but is nimble in its freedom of expression— which application of the national ICT is explicitly mentioned in Kenya’s policy. The master plan should be 2010 constitution—the reference implemented in the framework of can still be incorporated as a Kenya’s socioeconomic blueprint cross-cutting theme in subsequent Vision 2030, which pushes for the ICT masterplans and strategies. realization of a middle-income, An alignment of the ICT knowledge-driven Kenya in 2030. sector with the constitution, as By doing this, the tenets of rule well as international norms and of law that undergird Vision 2030 standards, will enable Kenya will permeate every aspect of the to achieve a balance between implementation, as well as sit legitimate national security well with the principles of a fair, considerations and individual free, and professional media spelt liberties. Achieving this balance out in the Kenya Information will pave the way for the ICT and Communications Act of sector to play a digital diplomacy 1998. In addition, the rule of law role that transcends local and should be seen in the application regional ideological tensions. of effective anti-trust laws to On a positive note, the counter entrenched nepotism and subsequent ICT master plan is corruption in the media industry.

Endnotes can be found online at http://apj.fas.harvard.edu/

2016-2017 · VOLUME XII 75 Gihembe refugee camp in northern Rwanda on World Refugee Day, Hillel Bavli, Harvard Graduate School of Art and Sciences 76 AFRICA POLICY JOURNAL The End of the Commodities Super-Cycle and its Implications for the Democratic Republic of Congo in Crisis BY LAURE GNASSOU

Abstract

Peace is a prerequisite for a full implementation of the 2030 agenda for sustainable development and the African Union (AU) agenda 2063. Preserving peace remains a challenge in the Democratic Republic of (DR) Congo. Since 2015, the country has faced political and electoral crises. In the meantime, China’s economic slowdown hit the country hard, given a continued drop in commodities prices. According to the International Monetary Fund (IMF), the DR Congo’s growth rate is estimated at 3.9 percent in 2016. The country has entered a recession. It is confronted with pressure on public finance, mainly due to funding of the electoral cycle.

Introduction

In , the DR a longstanding security crisis Congo is a major rent-based fueled by the active presence economy, which is overwhelmed of armed groups in the eastern by crises. First, the country, a provinces. On May 11, 2016, the fragile state, has been embroiled constitutional court stressed that in political and electoral crises the constitution from February since 2015. In addition, it faces 18, 2006, authorized by President

2016-2017 · VOLUME XII 77 Kabila, would remain in place has entailed macroeconomic until the installation of the newly disorders. Furthermore, the DR elected president. Therefore, Congo faces internal shocks, such the 2016 presidential elections as sovereignty-related spending have been postponed until April linked to insecurity in eastern DR 2018, according to the African Congo and funding the electoral Union-facilitated agreement on cycle. Public finance is also under October 18, 2016. However, the pressure in the run up to the 2018 process was not sufficient enough presidential election. During the to diffuse political and electoral transition, the country might seek crises and prepare peaceful assistance from the IMF, which and transparent elections. The advised the country to implement opposition, in particular the an orthodox budget policy by not Union for Democracy and Social financing a fiscal deficit through Progress (UDPS), contested the the central bank. On the private agreement and the legitimacy sector side, the DR Congo, which of President Kabila through the emerged as an investment hotspot end of his second mandate on for the extractive industries, December 19, 2016. has to address a lack of investor Second, China’s economic confidence in the remaining slowdown hit the country hard time before the next presidential in 2015, which threatened a election. In such adverse context, decade of exclusive economic the IMF recommended the growth. A year later, the country country diversify export revenues, has entered a recession, mainly which has been restricted due to a continued drop in by the lack of electricity and commodities prices. This infrastructure.

The DR Congo: Extreme Reliance on Commodities of a Fragile State in Central Africa

Despite a diversity of raw The Copper-Cobalt Belt of materials, the DR Congo’s the DR Congo in Turmoil economy depends primarily on a few commodity exports, such Since 2015, the global as base metals. In the meantime, economic slowdown has mainly the country has attempted to depressed commodities markets. address its conflict minerals issue From the first quarter of 2015 in the eastern provinces facing to the first quarter of 2016, they insecurity. It is challenged by the declined further. Copper declined impact of a commodity price by 11.8 percent, cobalt by 16.3 slump, which also slows down percent, and zinc by 50.3 percent. ongoing reforms for improving As a consequence, consumer the governance of the mining and nations, including China and hydrocarbons sectors. other emerging countries, have reduced their consumption of

78 AFRICA POLICY JOURNAL commodities, affecting rent-based companies (GECAMINES SA economies, particularly the DR and its partners) have reviewed Congo. Referring to the Central their strategies. Most of them Bank of Congo (BCC), from have temporarily interrupted their 2013 to 2014, a trade surplus operations. For instance, Glencore decreased from $899,014,864.03 Plc, a Swiss commodities trading to $366,395,382.77. In 2014, company, suspended the activities official exports from the country of Kamoto Copper Company amounted to $12,322,805,140.34, (KCC) in September 2015 for of which minerals and oil eighteen months. Other mining stood at $9,951,402,354, or 95.5 companies have delayed their percent of the total country’s investment projects. According export value. Mineral exports, to the Mining Chamber of the mainly base metals (copper, Fédération des Entreprises du cobalt, and zinc), produced by Congo (FEC), a reduction of the Générale des Carrières et des mining output has been noticed Mines (GECAMINES SA) and in the copper-cobalt belt. For its partners, accounted for 80.76 example, copper production percent. Crude oil produced by decreased from 265,636 tons to Perenco represented 6.3% percent 234,313 tons from the first quarter of the country’s export value. of 2015 to the first quarter of 2016 Pertaining to the mining (see Graph 1). The mining crisis sector, the DR Congo controls already led to about 13,000 jobs about ten percent and thirty-four lost among mining companies percent of the world’s copper and and their sub-contractors during cobalt reserves, respectively, in the first quarter of 2016. the former Katanga province in sout-eastern DR Congo. In 2014, the DR Congo was the world’s sixth-largest copper producer The DR Congo: Extreme Reliance on Commodities of a and the world’s leading cobalt Fragile State in Central Africa producer. In 2015, Katanga was split into four provinces: Haut-Lomami, Haut-Katanga, Tanganyika, and Lualaba. The newly created provinces, namely Haut-Katanga and Lualaba, are included in the so-called “copper- cobalt belt,” the cornerstone of the country’s industrial mining Graph 1. Copper Price and activities. Since 2015, the copper- Production in the Copper- cobalt belt has experienced a severe crisis, owing to a drop Cobalt Belt from 2007 to in base metal prices. This is the First Quarter 2016 next major crisis the country Source: FEC, Chambre des Mines, faced after the global economic Industrieminière en RDC, Premier Trimestre and financial crisis of 2008 (2016): 1-17. and 2009. As a result, mining

2016-2017 · VOLUME XII 79 The mining sector’s crisis the global economic and financial in Haut-Katanga and Lualaba crisis. Second, the government provinces has negatively impacted engaged in reform of the legal the provincial and national framework of the extractive economies, including public industries. In 2013, it opted for finance. It has also contributed a review of the 2002 mining to the deepening social crisis code with the Word Bank’s in the copper-cobalt belt. The assistance. As of March 2015, crisis has also contributed to the the draft of the mining law was deteriorating business climate sent to the parliamentary session. in the DR Congo. Paradoxically, Nonetheless, the commodity it has also created favorable markets slump prompted the conditions for Chinese companies government to halt the review to invest in the copper-cobalt belt. of the mining legal framework. For instance, on May 9, 2016, the Despite vast mineral deposits, the China Molybdenum Co. (CMOC) mining sector’s contribution to purchased a fifty-six percent fiscal revenues was limited over stake in Freeport-McMoRan Inc., the past decade. an American mining company, in TenkeFugurume Mining Focus on Conflict Miner- (TFM) Holdings Ltd. for $2.65 als in Eastern DR Congo: billion. TFM is one of the world’s largest copper and cobalt mines, Crisis of the Mining Sec- located in Lualaba province. tor in a Conflict-Affected The Congolese authorities were Area not informed of such a mining Given the longstanding deal and contested its validity security crisis in eastern DR as GECAMINESSA holds a Congo, the militarized economy twenty percent stake in TFM. On still prevails and stresses the October 27, 2016, the government complexity of the mining sector’s finally agreed on the sale of TFM development in a conflict zone. by the CMOC. However, the TFM As a matter of fact, the artisanal sale remains a complex economic mining activities are carried out and legal issue in a tense political and often controlled by armed and electoral environment. groups. The strategic minerals, Finally, the government has namely cassiterite (tin ore), attempted to reform the extractive gold, coltan, and wolframite, are industries for better governance. classified as conflict minerals. First, from June 2007 to October They have also been affected by 2010, the government launched a continued fall in prices. From a review of sixty-one mining the first quarter of 2015 to the contracts concluded between first quarter of 2016, tin and Public Sectors Enterprises (PSEs) wolframite prices dropped by and mining companies. However, 12.7 percent and 100 percent, the outcomes of the initiative were respectively. During the same limited. The review of mining period, tantalum fell by 26.2 contracts was largely uncompleted percent. and undermined by the impact of

80 AFRICA POLICY JOURNAL Beyond falling commodities (EU) reached an agreement on prices, the country is confronted a regulation related to conflict with the insufficient governance minerals with the aim to stop of conflict minerals (artisanal the financing of armed groups, mining) in the eastern provinces through the trade of tin, tantalum, due to insecurity. Besides military tungsten, and gold, in developing operations, a legal framework countries like the DR Congo. has been implemented to tackle Thanks to the regulation the EU the economic roots of conflicts aims to guarantee sustainable in the eastern provinces since sourcing for more than ninety- 2010. The objective of the five percent of all EU imports framework consists of reshaping of said minerals as of January 1, the organization of artisanal 2021. mining activities and curbing funding of armed groups in the eastern provinces. First, a six-month mining ban was implemented in the Maniema and Kivus provinces from September 2010 to March 2011. Second, US legislation (Section 1502 of the Dodd-Franck Act, July 21, 2010) was enacted in August 2012. Overall, it has entailed a de facto embargo on conflict minerals exports from North Kivu and South Kivu provinces as of April Graph 2. Tin Price and 2011. Since then, a difficult resumption of artisanal mining Production of Cassiterite activities in eastern DR Congo (Tin Ore) from 2007 to First is also limited by a continued Quarter 2016 deterioration of the security Source: FEC, Chambre des Mines, situation. It is also limited by Industrieminière en RDC, Premier Trimestre insufficient donor support to the (2016): 1-17. development of traceable exports of conflict minerals. The artisanal Moreover, security concerns and production of cassiterite reduced a lack of effective organization from about 19,000 tons to 9,000 of artisanal mining are key tons between 2008 and 2015 (see obstacles to the development of Graph 2). In addition to the US the industrial mining activities in legislation on conflict minerals the eastern provinces. They limit (Section 1502 of the Dodd- mining companies’ capacity to Franck Act), passed on November secure investments. 22, 2016, the European Union

2016-2017 · VOLUME XII 81 Impact of Commodities Slump on the DR Congo’s Economy

The DR Congo is exposed its major export commodities, to external shocks, in particular mainly resulting from the the volatility of commodity economic slowdown in China. prices. It is also confronted with On anuary 26, 2016, the country’s internal shocks related to political macroeconomic turbulence and security developments. prompted the Council of Altogether, public finance has Ministers to adopt a matrix of 28 been put under pressure since emergency measures to mitigate 2016. negative economic and financial trends. In such an adverse The DR Congo: A Decade context, the IMF has pointed out of a Non-Inclusive Eco- that the country’s growth rate is predicted to slow to 3.9% in 2016. nomic Growth in Jeop- For the second time since 2004, ardy the DR Congo has entered into Since 2001, the country has recession while facing a severe embarked on the transition from a political and electoral crisis (see war economy to a peace economy, graph3). except in the eastern side of the In 2016, the country country. Referring to the Central experienced renewed inflationary Bank (BCC), the annual growth pressures. From June 14, 2015, rate rose from 5.8 pecent to 6.3 to July 17, 2016, the annual percent between 2003 and 2007. inflation increased from 1.38 The country experienced relative percent to 2.37 percent. From macroeconomic stability. As August 29 to November 18, of September 2008, however, it 2016, it skyrocketed from 3.68 entered a recession caused by percent to 10.31 percent. As a the international financial crisis. consequence, the Congo Franc In 2014, the DR Congo GDP (CDF) has been low against the growth rate was estimated at 9.2 US dollar (USD). From June 12, percent, which was the third- 2015, to June 16, 2016, the CDF fastest growth rate in the world against the USD depreciated from according to the IMF. That year, CDF 924.83 per USD 1 to CDF economic growth was driven by 964.2 per USD 1. On November the primary sector (40.6 percent 28, 2016, it was officially traded of GDP) including the extractive at CDF 1,165.78 per USD 1. industries (22 percenet), the Given political instability, a rising seconday sector (20.9 percent), monetary depreciation was to be and the tertiary sector (31 expected, despite several foreign percent). exchange auctions recently Nonetheless, as of mid-2015, conducted by the BCC. In this the DR Congo has been severely context, from June 2015 to June affected by external shocks 2016, the central bank’s gross related to a drop in prices of international reserves dropped from $1.598 billion to $1.019

82 AFRICA POLICY JOURNAL Impact of Commodities Slump on the DR Congo’s Economy

Graph 3. The Evolution of Growth Rate from 2002 to 2016

billion in just over one month of 87.7 percent of the population imports. On August 27, 2016, they lived below $1.25 a day. The same stood at only $929.79 million, year, the country ranked 176 out given lower export earnings. of 188 countries in reference to Despite the implementation of the UNDP Human Development the austerity measures of January Index (HDI). Therefore, a sharp 2016, a lack of coordination fall in commodities prices has of macroeconomic policies is contributed to increased social observed. As of matter of fact, the tensions throughout the country. central bank has faced difficulties Since the welfare state barely for conducting a strict monetary exists, in particular in eastern policy. On September 28, 2016, DR Congo, the country has it unsuccessfully increased the been exposed to a longstanding benchmark interest rate from two humanitarian crisis with about to seven percent to prevent higher 1.9 million Internally Displaced inflation and defend the national People (IDPs) and returnees as of currency. September 30, 2016. The country has been on the Beyond the political and path to economic recovery since security crises, the newly formed 2004. Nonetheless, a decade of government of unity, led by Prime a non-inclusive growth rate is Minister Badibanga, will have to put in jeopardy, owing to the address the economic recession. commodities markets slump and It might seek the Breton Woods political turmoil. The United institutions’ assistance during Nations Development Program the transitional period leading (UNDP) stressed that, in 2014, up to the next presidential

2016-2017 · VOLUME XII 83 elections. Other countries’ driven crisis in eastern DR Congo, economies have already requested particularly in North Kivu support, in particular Nigeria and province; and (iii) the costs linked Suriname. However, it is worth to the decentralization process, noting that the last three-year the so-called “decoupage,” economic program between the dividing the country from DR Congo and the IMF ended eleven provinces to twenty-six in December 2012. Since then, newly created provinces in 2015. the IMF has established a policy Although fiscal decentralization dialogue and technical assistance is a prerequisite to guarantee with the country. the financial viability of the new provinces, additional fiscal Public Finance Under tensions have emerged between Pressure Following Com- provinces and the central government since 2015. They modities Markets Slump continue to fuel the political and Political Crisis crisis. Altogether, these internal As of January 1, 2016, the shocks are major budgetary government started executing constraints, which increase a limited 2016 state budget, pressure on the state budget’s estimated at $9,080,681,622. As yearly execution. it faced difficulties for mobilizing The 2017 draft budget was domestic revenues given a only estimated at $4.5 billion continued drop in commodities, due to the commodities markets on May 4, 2016, the council of slump. On October 25, 2016, ministers adopted a draft law it was presented to Parliament. amending downward the 2016 Key priorities of the 2017 state state budget. A month later, budget proposal are broadly Parliament adopted a revised similar compared to those of budget of $6,800,000,000, 2016 fiscal year. First, funding of which was reduced by twenty- the electoral process is critical, two compared to the 2006 although presidential elections state budget. On June 29, 2016, are likely to be held in April 2018. President Kabila promulgated the Donors’ financial assistance is said budget. needed for the preparation of free, fair, transparent, and peaceful Identifying Budgetary Con- elections. Second, insecurity prevailing in the eastern straints Pressuring Public provinces, notably North Kivu, Finance in 2016 and 2017 might prompt the government to further fund war efforts. The Besides falling commodities aforementioned priorities are prices, the DR Congo is also internal shocks, which will keep confronted with key internal putting a tremendous pressure shocks: (i) funding of the on public finance in 2017. In this electoral cycle; (ii) an increase case, Parliament could not adopt in sovereignty-related spending, the 2017 budget before the end owing to the recurrent security of 2016. It would have to adopt

84 AFRICA POLICY JOURNAL a law authorizing the opening of the African Union-facilitated provisional credits to guarantee agreement in October 2016. the continued functioning of Political opposition has the state. The provisional credits expressed concerns in regard would represent one-twelfth of to the third electoral cycle’s the revised 2016 state budget organization since 2006 by per month for a prior de of three regularly calling for strikes months. However, the longer throughout the country. From the country can go without the January 16 to 20, 2015, civil 2017 state budget, the more of unrest was observed in the main a problem it will become given cities (Kinshasa, Goma, and key electoral challenges during Bukavu), which led three business the transitional period. Overall, associations, in particular the the country might experience Federation des Entreprises du severe budgetary slippages in Congo (FEC), to denounce 2016 and 2017. In response, the violence related to the economic IMF advised the government to activities’ disruption. On August implement an orthodox budget 23 and September 19, 2016, the policy by not financing fiscal opposition called again for a deficit by the central bank. national strike. In response, the police prevented three times Business Climate under demonstrations against President Pressure in the DR Con- Kabila, whose second term was due to expire on 19 December gofacing Political and 2016. Major investment projects Electoral Crises might be postponed owing Given its attractiveness, the to lower commodities prices DR Congo has progressively associated with political and emerged as an interesting security crises in 2016 and 2017. investment hotspot for the FDI flows to the DR Congo could extractive industries in the Great significantly dropped in the Lakes region. Referring to the coming years (see Graph 4). UNCTAD, in 2014, Foreign Overall, the DR Congo Direct Investment (FDI) flowed is confronted with a growing to the DR Congo reached only country risk. According to $2.063 billion, down 1.7 percent the World Bank, in 2016 the compared to 2013. In 2015, it country only ranked 184 out was only estimated at $1.673 of 190 countries, stressing that billion. According to the IMF, a investors’ confidence vis-à-vis decrease in FDI flows to the DR the DR Congo remains critical. Congo was due to the “wait and In 2016, the country entered a see” attitude of the private sector recession, contributing further to in leading up to the presidential a deterioration of the country’s elections, which were supposed business climate. On June 17, to be held on November 27, 2016. 2016, the DR Congo received Nonetheless, the 2016 presidential a long-term rating at B3 with a elections have been postponed stable outlook. Nevertheles, it until April 2018, according to could downgrade the rating due

2016-2017 · VOLUME XII 85 Graph 4. Evolution of FDI Inflows from 1990 to 2015

to the institutional weakness and electoral crises, as well as resulting from the political insecurity in eastern DR Congo.

What Next?: Constraints Related to Economic Diversification of the DR Congo

Most African countries move to promote regional transport toward translating the objectives projects to further enhance its of the 2030 agenda and the AU economic integration in Africa. agenda 2063 into their national development policies. These Addressing Energy Secu- agendas are critical for shaping rity in the Country the structural transformation of African economies. The DR Although the DR Congo is Congo’s economic diversification a commodity-rich country, its is limited by insufficient energy supply model is rather infrastructure and energy supply. limited. It has opted in favor of Nevertheless, the country has the hydropower development. progressively reformed its legal The country’s energy potential is framework to liberalize its energy estimated at 100,000 megawatts sector. Furthermore, it has started (MW). In 2011, its installed capacity was only 2,442 MW,

86 AFRICA POLICY JOURNAL leading to an acute supply power the copper-cobalt belt; and (iii) crisis throughout the country. 1,000 MW for the population. On According to the Word Bank’s March 24, 2014, the World Bank 2014 developmental indicators, approved $73 million for funding in 2011 only nine percent of hydropower projects, including the population had electrical the construction of an Inga 3 power. The energy supply deficit dam. It has already allocated six has particularly hampered the percent of its financial assistance country’s industrial activities, to the country’s energy sector. notably in the copper-cobalt belt. On July 25, 2016, the World In response, the country reformed Bank suspended funding its energy legal framework. On to hydropower projects due June 17, 2014, President Kabila to a divergence of strategies promulgated the law n°14/011 pertaining to Inga 3 development. on the electricity sector’s Its decision occurred while liberalization. This led to end a the country has embarked in forty-four-year state monopoly political and electoral crises. on energy supply provided by the However, donor support to the “Societé Nationale d’Electricité” energy sector’s reform is crucial (SNEL). This law aims to foster to provide affordable, reliable, the country’s economic growth. and sustainable energy, which Through the Public Private a key prerequisite for reaching Partnership (PPP), investors a sustainable socioeconomic are likely to contribute to the development. rehabilitation of about five hundred hydroelectricity sites Weak Infrastructure De- owned by the SNEL. They velopment participate in building new energy power projects, including Despite its strategic location What Next?: Constraints Related to Economic grand Inga, estimated at about in Central Africa, the DR Diversification of the DR Congo $80 billion, in the Kongo Central Congo remains confronted province. It represents about with transport and logistics forty percent of the country’s infrastructure deficits. It only energy potential, corresponding possesses two international ports to 44,000 MW. It comprises the located in Matadi and Boma rehabilitation of Inga 1 (351 (Kongo Central province). Being MW), Inga 2 (1,424 MW), and a semi-landlocked country, the development of Inga 3 (4,800 there is a rising pressure for MW). Grand Inga development developing national and regional is a major asset of the energy infrastructure projects to enhance policy in Africa, in particular trade flows within the country South Africa. So far, investors and vis-à-vis the rest of the world. and the government have focused The country plans to become a their efforts on developing Inga regional trade hub in Africa by 3, of which the energy levels are developing key regional corridors. allocated as follows: (i) 2,500 First, the northern corridor links MW for South Africa; (ii) 1,300 the copper-cobalt belt to Durban MW for extractive industries of port (South Africa). It is the main

2016-2017 · VOLUME XII 87 corridor for mining companies Mombasa port (Kenya). Fourth, exporting raw materials from the rehabilitation of the Lobito the said belt. Second, the central corridor between the central,and corridor joins the central, and southeastern provinces (Haut- southeastern provinces (Kasai, Lomami, Lualaba, and Haut- Kasai-Central, Kasai-Oriental, Katanga) and Angola is underway. Lomami, Haut-Lomami,Lualaba, However, the DR Congo’s and Haut-Katanga) to Dar-El- involvement in developing Salam port (Tanzania). Third, corridors also has political the northern corridor connects and security implications with the eastern provinces (Tshopo, neighboring countries. North Kivu, and South Kivu) to

Conclusion

The DR Congo is at a crucial political and electoral crises, as juncture on its path from a well as insecurity in the eastern conflict economy to stabilization provinces. In such context, the and reconstruction. After a upcoming economic, political, decade of a exclusive growth, and security developments in the country entered a recession the DR Congo must be closely in 2016. Beyond the negative monitored during the transitional impact of commodities markets period leading up to the 2018 on its economy, the country faces presidential elections. major challenges, including the

Endnotes can be found online at http://apj.fas.harvard.edu/

88 AFRICA POLICY JOURNAL Economic Integration in Africa: Past, Present, and Future AATMIK GUPTA

Abstract This paper studies and evaluates the progress of economic integration in Africa. It analyzes the reasons for slow implementation of economic integration policies in the past twenty years. The piece also examines current levels of regional integration. It concludes by exploring key prospects and challenges for African regional economic integration in the future.

Introduction

Regional integration has economic integration and been a long-standing objective increased intraregional trade of African political leaders. have the potential to catalyze Policy experts have, for years, significant growth and emphasized the need for regional development in Africa. This economic integration. In this case, article briefly examines the integration means the reduction rationale for and history of of tariffs and other trade barriers economic integration in Africa. It between countries belonging to then analyzes the present levels of a certain regional group with the integration across the continent, objective of boosting intraregional and concludes by exploring key trade. challenges and opportunities the There is a broad consensus future may hold for the processes among policymakers that of regional economic integration.

2016-2017 · VOLUME XII 89 The Need for Economic Integration

When discussing the an unhealthy dependence on importance of intraregional resource extraction and lack the trade in Africa, economists industrial development and value- refer in particular to the theory added mechanisms required for of comparative advantage. The sustained growth. theory states that countries Bolstering intraregional and engaged in international trade intra-African trade is perhaps specialize in goods they can more the ideal way to achieve the efficiently produce (i.e. at a lower much-needed diversification opportunity cost) than other of the African economy. While countries. trading with each other, African Current data indicates that nations would no longer possess raw commodities and natural a comparative advantage in the resources account for eighty- production of primary goods. three percent of African exports. This would incentivize the This means African countries growth of other sectors and aid have a comparative advantage in the development of industry, over key trade partners, the providing African countries with European Union (EU), and China more stable paths to prosperity. in resource extraction. At the There is also considerable same time, these trade partners empirical proof to support this have a comparative advantage conclusion. Recent data from in producing finished and the African Development Bank processed goods; African nations, showed that sixty-seven percent consequently, import large of intra-African exports between quantities of consumer goods 2005 and 2010 consisted of from them. manufactured or value-added The resulting economic products. For exports to the system is often dubbed “neo- EU, the figure was thirty-two colonialist” for its startling percent; for US exports eighteen resemblance to the economic percent; and for exports to China frameworks enforced by imperial a mere fourteen percent. With powers in the early twentieth this in mind, the importance of century. Africa functions as intra-African trade for export a supplier of raw materials diversification in the continent and a market for finished appears to be an incontrovertible products. Its economies possess reality (see Graph 1).

90 AFRICA POLICY JOURNAL Graph 1

The Need for Economic Integration

Convinced of the benefits 2019, a common market by 2023, of regional integration, the and eventually, a monetary union members of the African Union by 2028. signed the Abuja Treaty in 1991. Despite the countries’ The treaty laid out a roadmap initial enthusiasm, the project for the establishment of the suffered from deeply apathetic African Economic Community implementation. Countries AEC), with harmonized were unwilling to sacrifice tariff economic policies and laws. More revenues to establish free trade importantly, the treaty recognized areas. Furthermore, there was eight Regional Economic little public interest in this grand Communities (RECs) to serve as undertaking, and consequently, building blocks in this process, politicians were unwilling which integrated and coalesced to take on the laborious task into the AEC. of negotiating with a host of The treaty also set clear neighbors to achieve united targets for achieving different policies. Another key problem levels of integration. It predicted was the lack of monitoring individual RECs would form free and evaluation mechanisms, trade areas and customs unions which exacerbated the slow by 2017. The treaty believed this implementation. would lead to the establishment Still, by the late 2000s, African of a continental customs union by nations’ interest in regional

2016-2017 · VOLUME XII 91 economic integration experienced Another recent reaffirmation a resurgence. In the last ten years, of African interest in economic the share of intra-African trade integration came in the form has slowly, but steadily, increasing, of Agenda 2063, the African driven by the dprogress toward Union’s flagship framework for integration among certain RECs, guiding the continent’s economic particularly in southern and and social development over the eastern Africa. A heartening next fifty years. The framework development was the creation of a prioritizes the creation of a tripartite free trade agreement in continental free trade zone by 2015, which included twenty-six 2017 (negotiations for which are member nations of three different in progress). It also commits to RECs. Even though the agreement a similar timeline for regional has yet to be finalized and ratified, integration as the Abuja Treaty, it is an important symbol of the making only minor two- renewed interest in regional year postponements for the integration. establishment of the common market and monetary union.

The Present Scenario

With these recent 2. The Economic developments in mind, it is Community of West natural to have an optimistic African States (ECOWAS) outlook on the future of African economic integration. While this 3. The East African optimism is unfounded, one must Community (EAC) remember the share of intra- 4. The Intergovernmental African in total trade, around Authority on sixteen percent, is still one of the Development (IGAD) lowest in the world. Furthermore, there is 5. The Southern significant heterogeneity among African Development different regional economic Community (SADC) communities, in terms of both policies enacted and actual trade 6. The Common Market levels. Using these two metrics, for Eastern and Southern this section seeks to analyze the Africa (COMESA) levels of economic integration of all eight RECs. The following 7. The Economic eight Regional Economic Community of Central Communities are officially African States (ECCAS) recognized by the African Union 8. The Community of (see Figure 1): Sahel-Saharan States 1. The Arab Maghreb Union (CENSAD) (AMU/UMA)

92 AFRICA POLICY JOURNAL Figure 1: Regional Economic Communities of Africa

An REC’s integration level is which generally follows after an classified in two broad categories. FTA is in full force. Countries The first level is a free trade participating in a customs union area (FTA). Participation in a not only liberalize trade with each free trade area puts countries other, but also impose a common under the broad obligation external tariff on any country of minimizing and ultimately outside the union that attempts to abolishing tariffs on goods trade with them. imported from other countries in the FTA. Countries are also REC Analysis: expected to eliminate any non- Policies Enacted tariff barriers inhibiting trade within the FTA. Nevertheless, the Let us now examine the exact requirements and policies policies enacted in different an FTA possesses are flexible; RECs with the goal of regional FTAs operate under different economic integration. rules and enjoy differing levels of Four of the eight RECs have integration. functioning FTAs: COMESA, The second level of EAC, ECOWAS and SADC. integration is a customs union, The AMU is currently finalizing

2016-2017 · VOLUME XII 93 a free trade agreement, while though the REC has no formal ECCAS has also formalized a FTA. It is followed by ECCAS, free trade agreement that has which too, has only a fledgling yet to be fully implemented. FTA with a 1.86 percent average IGAD and CENSAD are still not rate. On the other hand, the close to finalizing a Free Trade seemingly well-integrated SADC Agreement. Thus, even a quick and ECOWAS charge significantly glance informs us that half of higher tariffs on average: Africa’s RECs aren’t close to 3.8 percent and 5.6 percent, establishing even the most basic respectively. Only CENSAD fares form of regional integration, worse, with an average rate of 7.4 making one more cynical about percent. the establishment of a continent- Of the eight RECs, only two wide FTA as early as 2017 or have established customs unions: 2018. EAC and ECOWAS. COMESA However, one can glean even has finalized a customs union, more interesting information by which hasn’t yet been fully closely studying the actual levels implemented. Therefore, it is of tariff liberalization carried unlikely the Abuja Treaty’s target out by RECs (see Graph 2). One of all RECs operating as customs accurate measure of this is the unions by 2017 will be achieved. average tariff levied by REC members on imports from other REC Analysis: countries of the same REC. The Levels of Trade fully liberalized EAC is the clear winner with an average rate of 0.0 Though it is important to percent. More interestingly, the consider the policies enacted second rank is held by the IGAD, by different RECs, an equally with a 1.8 percent average, even important measure of economic

Graph 2

94 AFRICA POLICY JOURNAL integration is intraregional pro-integration policies, continue imports as a share of GDP (see to maintain high tariffs, but still Graph 3). While trade share have high shares of intraregional is affected by tariffs and trade imports. It is also strange how policies, it also accounts for formally non-integrated RECs other important extrinsic factors, such as the IGAD and ECCAS such as cultural and linguistic continue to have small shares similarities, infrastructure levels, of intraregional trade, despite etc. charging low tariffs.

Graph 3

The resolution of this Under this metric, the outlier apparent dilemma is simple: the is SADC, for which intraregional reduction of non-tariff barriers imports make up 6.6 percent and the facilitation of trade are GDP. It is followed by ECOWAS as important as tariff reductions. (3.0 percent) and EAC (2.7 Formally integrated RECs are able percent). The worst performers to jointly target non-tariff barriers are the AMU (1.2 percent), IGAD through agreements and treaties (0.9 percent), and ECCAS (0.5 with relative ease. Thus, they are percent). better able to foster intraregional Thus, we are faced with three trade with higher tariffs. sets of data—the policies enacted, The importance of non- the average tariff rates, and the tariff measures to economic intraregional import shares— integration is of particular which all seem to lead to differing interest and importance. Current narratives. It is initially confusing roadmaps to integration place as to how RECs like the SADC a disproportionate focus on and ECOWAS, that have passed liberalizing tariff regimes. While

2016-2017 · VOLUME XII 95 this is an indisputably important make it equally hard to and contentious issue, the key accomplish. barrier to liberalization is lack Keeping this in mind, the of political capital. On the other next section of the paper—on hand, while few are ideologically future prospects and challenges— opposed to the reduction non- examines issues of tariff policy, tariff barriers, difficulties in but focuses largely on non-tariff planning and implementation measures and related policies.

Future Prospects and Challenges

Considering the widespread Economic Communities. These acceptance, at least among include nations who belong experts, of the need for greater to more than one of the eight economic integration in Africa, officially recognised RECs, as the key point of contention has well as countries that are part been over how governments can of a recognized REC, while also best bring about such integration. being members of other regional This section of the paper groups. For example, many highlights four focal areas that countries in central Africa belong offer both opportunities and not only to ECCAS, but also to challenges in the quest for the Central African Economic regional economic integration. In and Monetary Community particular, it focuses on relatively (CEMAC). While ECCAS is under-explored policies that the REC recognized by the AU, are nevertheless essential to CEMAC is a powerful alliance in economic integration. its own right, with its members using the CFA franc as common Rationalizing and currency. Streamlining Membership Multiple membership of RECs undermines the standardization of RECs of policies RECs seek to achieve. Too many cooks spoil the Countries take advantage of their broth, and too many RECs multiple memberships to pick hamper economic integration. and choose policies espoused by The surfeit of regional groups different RECs at will, increasing in Africa has led to multiple confusion and red tape instead of overlapping memberships and reducing them. At the same time, duplicated initiatives, greatly regional institutions and schemes reducing the efficacy of RECs become less effective as resources in the quest for economic are allocated twice over to achieve integration. the same objectives. Around half of the African Rationalization of RECs—i.e. Union’s fifty-four member nations the removal of overlapping are part of two or more Regional memberships—is essential for

96 AFRICA POLICY JOURNAL strengthening these groupings. Africa have the least-developed It will improve adherence to networks. Thus, Africa’s regional policies and also increase landlocked countries, which rely efficiency of resources deployed most heavily on road networks, toward regional integration. have the weakest road networks Efforts at rationalization as well. have been attempted, but have New programs, such as been largely unsuccessful. At Program for Infrastructure this point, rationalizing RECs Development in Africa (PIDA) is no longer just important, it is have focused on infrastructure necessary. The Abuja Treaty calls development, but these focus on RECs to establish customs on flagship projects and further unions by 2017. By the very efforts are needed. Countries in nature of customs unions—that Africa’s interior, in particular, is, a common external tariff— should attempt to formulate no country can belong to two regional and interregional customs unions. Keeping this in frameworks for road corridor mind, the African Union should development. Considering the once again instigate an effort manifold advantages, RECs to end multiple membership of should give such policies an equal RECs, highlighting the economic priority in trade liberalization. advantages of doing so. Only by It is also important to achieving this essential clarity can consider that in spite of road the vision of African economic improvements, traffic can integration further progress. encounter obstacles. The multiple checkpoints and delays on Building Up Regional African roads inhibit regional Transport Systems to trade and integration. An extreme example is the Lagos-Abidjan Boost Trade Highway, which has sixty-nine Africa’s weak transportation checkpoints—seven checkpoints infrastructure is one of the most for every one hundred kilometers. significant barriers to trade within An interesting way of the continent. Transportation combating such problems, costs are the highest in the world, which has been implemented particularly in the landlocked by ECOWAS, it to set up a countries. Road transport is one monitoring system along its of the primary means of trade, but roads. Another interesting step the continent’s underdeveloped to reduce transport costs and road networks impede the times, taken by the SADC, has expansion of intra-African trade. been the introduction of one-stop Although Africa’s road border posts. Border posts have network has increased by over since been emulated by other twenty percent in the last decade, RECs. Such border posts integrate there remain strong regional customs processes and other disparities. Southern Africa has checks for countries on both the longest road network on the sides of the border, significantly continent, while north and central reducing delays.

2016-2017 · VOLUME XII 97 Ultimately, the improvement Confronting Poverty and of both the underlying Regional Disparities infrastructure and further monitoring and enhancement Regional economic of transport facilities is key for integration is often touted as a encouraging intra-African trade. tool for poverty alleviation. Less obvious, perhaps, is the link between high levels of poverty Enhancing Public Support and lower levels of economic for Economic Integration integration. ECCAS and IGAD— One of the reasons for Africa’s the two least integrated RECs lackluster performance in regional based on intra-REC import economic integration over the share—both encompass poor past twenty years has been lack regions of central Africa. of public enthusiasm for such Such regions have extremely policies. Dreams of economic low levels of industrial integration and pan-Africanism development and also often lack a may enthrall policymakers, but sizable, skilled workforce. In such they do not appear to excite the conditions, intraregional trade public. is unlikely to flourish with equal There is perhaps a need to ease when compared to a more increase awareness about the prosperous region like southern benefits of economic integration. Africa. This is what makes the This should hopefully provide REC “building block” model of the added political impetus for African integration necessary. making an integrated Africa a While regional integration should reality. be fully encouraged, one cannot An effective ways of garnering discount inescapable regional such support could be a pan- differences when measuring the African advertising campaign pace of integration. conducted under the aegis of the Regions such as these should African Union. Keeping in mind be given special attention during the considerable scholarly support negotiations for the planned for economic integration, it Continental Free Trade Zone. The should not be difficult to convince principle of variable geometry African citizens of its importance. should be held in mind and RECs A more novel way of should be given protections that gaining support would be to allow them to develop at their emulate Rwanda’s example of own pace. Otherwise, reckless organizing regional integration- policymaking will leave regions related competitions in schools. economically and industrially Educating the youth is an effective crippled. They will be unable to way to increase awareness and develop their own economies galvanize support for integration. due to aggressive competition from more developed African countries.

98 AFRICA POLICY JOURNAL Conclusion

This paper has sought to but counter-productive in others. examine the progress of Africa’s African governments need economic integration over time. to rapidly improve their track It is clear that African economic records if they aspire to match integration has the potential to the economic integration targets drive significant growth. However, set out in the Abuja Treaty and the implementation of this grand Agenda 2063. To realize they’re agenda has proven to be a difficult part of a united Africa with a task. flourishing, diversified economy, Despite a newfound optimism they must simplify the continent’s among policymakers, it is evident many regional groupings Africa is still far behind the rest of and enhance its transport the world in intraregional trade. infrastructure while garnering The continent’s many regional popular support for an inclusive economic communities have been and carefully planned continental partially successful in some cases, integration strategy.

Endnotes can be found online at http://apj.fas.harvard.edu/

2016-2017 · VOLUME XII 99 Gihembe refugee camp in northern Rwanda on World Refugee Day, Hillel Bavli, Harvard Graduate School of Art and Sciences

100 AFRICA POLICY JOURNAL Construction of Multidimensional Poverty Index of Kenya Using the Alkire-Foster Method BY WAMAITHA MUKUI AND LUCY MUTHONI

Abstract

In this paper, we use one specification of the Alkire-Foster approach, which is referred to as the Global Multidimensional Poverty Index (MPI), to calculate the poverty index of Kenya. This index was computed for 104 countries in Alkire and Santos (2010) and launched as a prominent feature of the annual United Nations Development Program (UNDP) Human Development Report, replacing the previous Human Poverty Index of the UNDP. The novelty of this paper is that it seeks to reconstruct the poverty index, which is used in Kenya’s revenue allocation formula. Currently, the country is using a modification of Human Development Index as used by UNDP, which gives weights to different aspects of deprivation, a method that has been dubbed “Lucy’s model,” (named after the person who developed it in December 2015) and was approved for use by the Commission for Revenue Allocation to distribute funds from the national government to county governments, by the National Assembly of Kenya on March10, 2016. The paper compares the allocations arrived at by both Lucy’s Model and Alkire-Foster method in terms of equality of means, variances, correlations, and other statistical tests of significance in differences between two or more data sets.

Keywords Multidimensional poverty, unidimensional poverty, deprivations, AF method. 2016-2017 · VOLUME XII 101 Introduction

Background approach also satisfies several desirable properties, or axioms, Defining poverty as a including decomposability, which phenomenon of multiple makes it particularly suitable for dimensions goes back to the policy analysis and targeting. seminal work of Amartya The AF method is an Sen. In practice, however, the accurate method for calculating vast majority of empirical the poverty index and it helps work on poverty uses a one- in making policies that are used dimension measure of wellbeing, to target the poor people in a usually household income or country. This paper seeks to expenditure. This is also the construct the multidimensional case in Kenya, although the poverty index of Kenya by conceptualization of poverty in calculating the poverty index of the country has steadily evolved Kenya’s forty-seven counties then since 2003. In terms of defining ranking from the wealthiest to the multidimensional poverty poorest. measure, several possibilities have been proposed in theoretical and empirical literature. Motivation for the Study Poverty is a multifaceted The motivation of this study concept that includes social, is to reconstruct the poverty index economic, and political elements. of Kenya, which will guide the Generally, poverty is viewed in national government on how to three dimensions, which are share revenues among counties standards of living, health, and for the purpose of poverty level of education. The human reduction. Poverty index is one of development index is commonly the factors considered in Kenya’s used by the United Nations Revenue Allocation Formula, and development program to calculate it is calculated as a modification of the poverty index of countries HDI index. The modified formula and rank them in order of the is termed as Lucy’s model, and is most developed country to the expressed as follows: least. In 2010, a new method CA=0.46PN+0.27ES +0.17PI+0.07LA+0.02FE +0.01DF was used to calculate the poverty i i i i i i i

index of 104 countries. This Where CAi is the revenue th method is known as the Alkire- allocation for the i county, PNi Foster (AF) method. This method is the population factor, ESi is is used to measure acute poverty the equal share factor, PIi is the by calculating the proportion poverty index, LAi is the land area of people who experience factor, FEi is the fiscal effort factor, multiple deprivations and also by and DFi is the development factor. calculating the intensity of those In the model above, it is deprivations. The deprivations are worth noting the poverty index based on indicators that explain bears one of the largest weights. the three dimensions stated. The The poverty index above was

102 AFRICA POLICY JOURNAL calculated using the human poverty into a single measure, development index, which is reflecting interconnections among used by the United Nations to deprivations and helping to calculate the poverty levels and identify poverty traps. development standards of a The AF method is also country or particular region. The quicker in showing the effects Human Development Index is of policy change, outside of a welfare index that combines income alone. For example, if the aggregate dimensional a new social program aimed achievements of all people into at increasing good education one overall score. In other words, is introduced to an area, it this method identifies the poor will be a long time before any and ignores the data of the non- positive return from education is poor. reflected in an income measure. The Alkire-Foster (AF) In contrast, a multidimensional method is a new approach that poverty measure that includes actually determines the number child enrollment and achievement of people who are poor and the could reflect a reduction in number of deprivations they have. this aspect of poverty relatively This is important for economic quickly because it measures it policies since governments can directly. Different dimensions, use this information to plan measures, and cutoffs can be and cater for the poor in the used to create measures tailored economy. With the AF method, to specific uses, situations, policymakers can identify the and societies. This method poorest people and the aspects can be used to create poverty in which they are most deprived. measures to target poor people as This information is also vital in beneficiaries of conditional cash investing resources where they transfers or services, and for the are likely to be most effective at monitoring and evaluation of the reducing poverty. Policymakers programs. The AF method also can identify which deprivations shows the intensity of poverty and constitute poverty and which the measures created using the are most common among and AF method are transparent. This within a group, so policies can means they can be quickly and be designed to address particular easily broken down by region or needs. The AF method integrates social group. many different aspects of

Literature Review

This chapter covers literature provide an alternative lens on the Global Multidimensional through which poverty may be Poverty Index (MPI). viewed and understood. How we Multidimensional measures measure poverty can influence

2016-2017 · VOLUME XII 103 how we come to understand it, this setting? If the underlying how we analyze it, and how we concept of poverty admits a create policies to influence it. natural way of aggregating the For this reason measurement various dimensions into an overall methodologies can be of practical variable, then a unidimensional relevance, according to Alkire and methodology can be used. In a Foster. unidimensional approach, the Recently, Alkire and Foster poor are identified by a single attempted to offer a practical cutoff; overall poverty is evaluated approach to identifying the using a unidimensional measure, poor and measuring aggregate such as the Foster, Greer, and poverty. The Alkire-Foster Thorbecke (FGT) class. The FGT methodology is perhaps best class of index is a traditional seen as a general framework for measure of poverty that basically measuring multidimensional involves aggregating various poverty, since many decisions dimensions into an overall are left to the user. These include variable and viewing through a the selection of dimensions, unidimensional lens. dimensional cutoffs, dimensional However, if an aggregate weights, and poverty cutoff. This variable cannot be plausibly flexibility makes it particularly constructed, and instead there useful for measurement efforts are several important distinct at the country level—and even at dimensions, how can we identify the county level, as in the case of the poor and measure poverty Kenya. These decisions can fit the in this case? Bourguignon and purpose of the measure and can Chakravarty propose the use of embody normative judgments dimension-specific lines (called regarding what it means to be deprivation cutoffs in Alkire and poor a respective country. As Foster’s work) as the basis for this is quite a departure from determining who is deprived and the traditional unidimensional in which dimension. Alkire and and multidimensional poverty Foster then posit the existence of measurements, further an identification function, which elaboration may be warranted. determines whether a person The method delivers an aggregate is deprived enough to be called poverty measure that reflects the poor, and a poverty measure, prevalence of poverty and the which evaluates how much joint distribution of deprivations. overall poverty exists. Axioms Useful partial indexs are reported analogous to the ones used in that reveal the intuition and layers the unidimensional case can of information embedded in the ensure that the measure properly summary measure. reflects poverty and that it can be If, on the other hand, there is decomposed by subgroup. The data on achievements in several axioms also ensure the poverty dimensions distributed across measure is consistent with the a population, it is important to identification function. ask, who is poor and how should Much of the research in this overall poverty be measured in area has been concerned with

104 AFRICA POLICY JOURNAL finding an appropriate poverty and Chakravarty’s discussion measure, rather than devising on concerns of identification new methods of identifying functions show tradeoffs are the poor. Two benchmark being made between continuous identification approaches are dimensional variables. However, discussed by Atkinson: the union this leads the discussion back to and intersection approaches. the original question of whether a Under union identification, a coherent aggregate variable can be person who is deprived in any constructed from the individual dimension is considered poor. dimensions. If the answer is no, Under intersection identification, as postulated above, then it may only persons who are deprived be somewhat difficult to justify in all dimensions are considered the aggregation needed for a poor. Both approaches are easy general identification function. If to understand and have useful yes, there may be good reason to characteristics, such as being able explore a unidimensional method. to be applied to ordinal variables. One important omission in However, they can be particularly this literature is proper discussion ineffective at separating the poor of the axiomatic structure for from the non-poor. In a recent identification functions (or, study by Sabina Alkire that uses more generally, for overall ten dimensions to identify the methodologies) that could help poor in India, the union approach guide the construction of new identifies 97 percent of the identification techniques. Too population as poor, whereas the little attention has been paid to intersection approach identifies 1 developing practical alternatives percent of the population as poor. to the union, intersection, and Such a range of values is common unidimensional identification in many studies. Bourguignon approaches.

General Framework of the AF Methodology

AF Method compared to implemented at the village, state, the Human Development or national levels. The specific Index (HDI) choice of measures might vary: one institution might implement The AF methodology a measure with cardinal data is a general framework for to reflect the depth of poverty multidimensional poverty or inequality among the poor, measurement, which can be filled whereas another could only have in different ways. The dimensions ordinal data available and would and cutoffs could vary, as could report the adjusted headcount the weights and poverty cutoff. ratio and the breadth of poverty. The measure could be applied In sum, the AF approach is a at different levels. For example, flexible framework and can give a poverty measure could be

2016-2017 · VOLUME XII 105 rise to a number of concrete and guided by the purpose of applications whose shapes depend the exercise and commonly upon the purpose for which they held understandings of what are designed. that purpose entails. Traditional There is a chance the AF unidimensional measures require method might be confused decisions that are qualitatively with the Human Development similar. For example, should Index (HDI), which aggregates the variable be expenditure or across achievements in health, income? What should the poverty education, and standard of cutoff be? Other implementation living. In fact, the two measure choices are less apparent, but very different things. The AF can likewise be important for methodology (and its particular final results. Robustness tests example of the MPI) measures are crucial both for ensuring poverty; it identifies who is results obtained are not unduly poor and ignores the data of dependent upon the calibration the non-poor. In contrast, the choices and for allowing these HDI is a welfare index based choices to be made in the first on three marginal distributions place. The calibration of choices that combine the aggregate will depend upon the purpose of dimensional achievements of the measure, such as the space in all people (not just the poor) which poverty is evaluated, the into one overall score. While relevant comparisons across time the HDI may be limited in or populations that the measure terms of data, dimensions, and will inform, or the particular methodology, it has helped bring programs or institutions that will into view people’s achievements be evaluated. Calibration choices in nonmonetary spaces, and made also reflect data and resource it possible for other categories constraints. of multidimensional measures Enabling people to choose (such as poverty measures) to be parameters according to a range envisioned. of processes provides an essential flexibility and adaptability to Who Chooses the allow the measures to be tailored Parameters? to institutional, cultural, and data-specific circumstances. In The AF methodology is a addition, the AF methodology general framework for measuring is relatively transparent and multidimensional poverty, an this feature can be helpful when open source technology that can parameters are set by (or at least be freely altered by the user to opened to) public debate. It best match the measure’s context uses explicit indicators, weights, and evaluative purpose. As with and cutoffs, so that serious most measurement exercises, it shortcomings in the choice of will be the designers who will parameters can be debated and have to make and defend the changed. To counterbalance specific decisions underlying and inform this flexibility, the the implementation, limited use of dominance results and of

106 AFRICA POLICY JOURNAL robustness and sensitivity tests, Individual researchers working to which will show whether key advance capability measurement points of comparison are robust are developing surveys and to a range of plausible parameter undertaking studies using choices. both micro and primary data. Community-based monitoring Missing Dimensions of systems have incorporated and Poverty in Data explored missing indicators related to capabilities and Human development is the functions. This initiative to process of expanding freedoms shortlist missing key indicators that people value and have reason of human development for to value, according to Sen. If we international data collection has understand development to be drawn upon and endeavored to the key process of expanding support such initiatives. the freedoms that people value Third, these dimensions may and have reason to value, then be important triggers of human a key aspect of assessing these development in other dimensions freedoms is to measure them in (and oversight of them may also a manner that is consistent and block or slow poverty reduction comparable over time and space. in other spaces), because each There are a number of reasons of these dimensions seems to why an initiative to identify be casually interconnected and advocate a small set of with other aspects of poverty indicators for important but non- in complex ways. The lowest- standard dimensions of human ranking countries in terms of development may be both useful the HDI are countries in or and feasible. emerging from violent conflict. It First, more such data exists has been repeatedly argued that than in any previous generation, empowerment is instrumentally to such an extent that more data significant for poverty reduction, is present in some countries and addressing social exclusion than can be fully analyzed. and disrespect by , religion, The indicators are generated age, race, or other categories by household surveys and seems an inescapable part of community-based surveys, as addressing poverty. well as censuses and demographic Fourth, the missing and social surveys. Thus, there dimensions are arguably is a wealth of experience with intrinsically important—hence non-standard indicators that can their selection. Multidimensional inform the selection of technically poverty measures can illuminate accurate and cross-culturally certain issues better (i.e. targeting, comparable indicators. and distribution of acute poverty) Second, a number of if data are aggregated firstly across initiatives are already exploring dimensions, and secondly across how to measure capabilities individuals. For the HDI, data are and how to structure national aggregated across all individuals and regional assessments. for each domain. However, a

2016-2017 · VOLUME XII 107 distinct advantage emerges if the human development and poverty data are all available from the reduction policies, or at least not same survey or from surveys that considered in sufficient depth. can be matched at the individual Employment is the main source level. of income for most families in the world. Having a good and Grounds for Indicator decent job is generally associated Selection with being out of poverty, however poverty is defined. First, the indictors Additionally, employment can need to be internationally give a sense of self-respect and comparable. This is particularly fulfillment. There is hence no important, as there is a dearth question as to the importance of of information available on employment as a fundamental comparative indicators of the aspect of individual wellbeing. missing dimensions. Second, However, existing employment the indicators seek to assess not data generally focuses on formal only the instrumental, but also employment and overlooks the the intrinsically valuable aspects kinds of employment open to of the dimensions. Third, it is poor people, as well as indications essential to select indicators of the potential meaning of that would be able to identify employment. Lugo proposes changes in the dimension over five indicators of employment: time. Fourth, and crucially, the informal employment, income choice of the indicators draws from self-employment, on experience with particular occupational safety and health, indicators to date; that is, how and under- and overemployment. frequently these indicators have The final indicator relates to been previously fielded and found quantity; it seeks to determine to be adequate measures for the level of discouraged research purposes. unemployment, that is, people who would like to be working but Missing Dimensions have stopped looking for a job. Having pointed out the need for additional poverty data, there Agency and are specific dimensions that are Empowerment valued by poor people and have policy relevance. The following Agency has been defined describes the rationale behind the as “what a person is free to five dimensions that have been do and achieve in pursuit of selected. whatever goals or values he or she regards as important.” Employment Quality More simply, it is defined as “someone who acts and brings Employment is certainly not about change.” The opposite of a a new dimension of wellbeing, person with agency is someone but it is sometimes forgotten in who is coerced, oppressed, or passive. Agency and its expansion

108 AFRICA POLICY JOURNAL (empowerment) recur as a is not inevitable to human variable that is of intrinsic and interaction. Most multi-ethnic, instrumental importance to multi-religious, and poor people impoverished communities. live in peace. There is need for Building on a growing body of reliable and comparable data of empirical research, Ibrahim and violence against both person and Alkire, propose a “short list” of property to greater inform our indicators aimed at capturing understanding of these concepts. the individual and collective facts of agency. In brief, they use The Ability to Go About decision-making questions to Without Shame identify perceptions of control. Who makes decisions about Shame and humiliation are different areas of household life essential to the understanding and whether the respondent could of poverty, yet internationally if he or she chose. To measure comparable data on these the extent to which people feel dimensions are missing. Based on themselves to be coerced, and/ existing indicators from related or acting on their own initiative, fields, Zavaleta proposes eight the article proposes, uniquely, indicators to measure specific autonomy measures from aspects of shame and humiliation. psychology that have been tested Indicators for measuring shame across cultures and recently have been selected from the HIV/ in poor communities. Other AIDS-related stigma literature, questions explore the extent to from literature on discrimination, which individuals feel empowered and from instruments used in to bring change at both the psychology. The first indicator individual and communal levels. relates to the shame of being associated with poverty, or the Physical Safety stigma of poverty. The second indicator relates to shame One of the greatest proneness, which refers to the impediments to human security “tendency to experience the in the post-Cold War era is not emotion of shame in response war fought by the armed forces to specific negative events.” of nation states, but violence Shame proneness is particularly perpetrated by individuals, relevant because it affects social groups, and state actors within relationships, self-respect, and nations’ internal borders. the ability to go about without Violence undoes the development shame—all aspects of capability gains achieved in area such as poverty. Indicators of humiliation education, health, employment, refer to that experience in income generation, and response to external events infrastructure provision. Further, and to the internal experience it impedes human freedom to of humiliation. The questions live safely and securely, and can on external humiliation center sustain poverty traps in many on respectful treatment, unfair communities. However, violence treatment, discrimination, and

2016-2017 · VOLUME XII 109 perceptions that one’s background perspective to the understanding impedes mobility; the question of human experience and values, on internal humiliation seeks and particularly the importance to gauge levels of accumulated of its non-material components. humiliation at the individual level. There are two approaches: perceptions of the meaning of life Psychological Wellbeing and the ability to strive toward excellence in fulfilling this idea. The final aspect pertains In conclusion, it is important to psychological and subjective to recognize the limitations of this states of wellbeing, which have exercise of attaining missing data. clear intrinsic and instrumental The eventual goal is not merely value. They are a key component to measure poverty, but rather to of the other dimensions proposed create a framework for research here, as well as an end result and policy that will lead to lasting of their attainment. Moreover, poverty reduction. they stand to contribute a richer

Methodology

This chapter outlines the National Bureau of Statistics in research methodology the study 2009. As noted, our choice of will adopt. It looks at the research data is guided by the objective design, population of the study, of establishing comparability sampling methods used, data with the global MPI estimates collection techniques, and data presented in Alkire and Santos’ analysis techniques. work and the UNDP 2010 report. A key advantage of the Research Design MPI methodology is it is based on a consistent methodology This study will adopt that seeks to use comparable a descriptive approach of data that facilitates international poverty indexes in Kenya. The comparison. This data is also main reason for this selective, available at the Commission for descriptive research design is Revenue Collection in Kenya. because it provides a knowledge base when little is known. It Population Sampling also allows one to establish a relationship between variables. The study focuses on all forty- seven counties of Kenya. Data Data from the 2009 population census will be used. The forty-seven Secondary data will be counties are heterogeneous in employed in this study. The data terms of their population sizes. used for this analysis is from the census, conducted by the Kenya

110 AFRICA POLICY JOURNAL Alkire Foster Method number of people who This is the method that will cannot access clean water be used to calculate the poverty (clean water is as far as a index: 30-minute walk) and the number of people who • Step 1: Choose the unit of use inferior fuel. analysis. In this case, the • Step 4: Set poverty lines. unit of analysis will be at A poverty cutoff is set the county level. for each dimension. • Step 2: Choose This step establishes dimensions. In this case the first cutoff in the it will be the level of methodology. Every schooling, level of health person can be identified care, and standard of as deprived or non- living. deprived with respect to • Step 3: Choose each dimension. Indicators. These • Step 5: Apply poverty are chosen for each lines. This step replaces dimension on the the person’s achievement principles of accuracy with his or her status with (using as many indicators respect to each cutoff. as necessary so that the • Step 6: Count the number analysis can properly of deprivations for all the guide policy) and dimensions. parsimony (using as few • Step 7: Set the second indicators as possible to cutoff. Assuming equal ensure ease of analysis weights for simplicity, for policy purposes and set a second cutoff “k”, transparency). Level of which gives the number education is indicated of dimensions in which a by the number of people person must be deprived who are completely in order to be considered illiterate, the number mutidimensionally poor. of people who have Robustness tests can been educated up to the be performed across all primary level, and the values of k. number of people who • Step 8: Apply k to obtain have been educated up the set of poor persons to the secondary school and censor all non-poor level. Health care is data. The focus is now indicated by the number on the profile of the poor of people not immunized and the dimensions in and the number of people which they are deprived. who go through home • Step 9: Calculate the deliveries. Standard of headcount, H. Divide the living is indicated by the number of poor people number of people living by the total number of in poor sanitation, the people.

2016-2017 · VOLUME XII 111 • Step 10: Calculate the Identification average poverty gap, A. A is the average number In unidimensional analysis, of deprivations a poor identification is normally person suffers. It is accomplished by the use of a calculated by adding poverty line or threshold, with the proportion of total poor people being identified deprivations each person as those whose resource or suffers and dividing by achievement variable falls the total number of poor below the poverty line. In the persons. multidimensional measurement • Step 11: Calculate the setting, where there are multiple adjusted headcount, M. variables, identification is a If the data are binary or substantially more challenging ordinal, multidimensional exercise. This part of the AF poverty is measured by method is most commonly M, which is calculated as overlooked or misunderstood. H times A. Headcount Therefore, it is important to poverty is multiplied by begin by understanding the basic the “average” number of elements of the AF method dual- dimensions in which all cutoff identification approach. poor people are deprived to reflect the breadth of Deprivation Cutoffs dimensions. A vector z = z ,...,z of the A systematic overview of the 1 d deprivation cutoffs (one of each multidimensional methodology dimension) is used to determine of Alkire and Foster’s work in whether a person is deprived. If (2007) and (2011) is used to the person’s achievement level in describe the poor people using a a given dimension j falls short of ‘dual cutoff’ method. In this work, the respective deprivation cutoff z there is construction of poverty j the person is said to be deprived measures and each measure is in that dimension; if the person’s drilled down to unfold distinctive level is at least as great as the partial indexes that can illuminate deprivation cutoff, the person is policy questions. Decompositions not deprived in that dimension. are exhibited that explain and clarify the aggregate poverty level. What follows will assume the Weights range of dimensional variables A vector w = w ,...,w of has been selected and data are 1 d available in the form of a nxd data the weights or deprivation matrix Y for n persons and d≥2 values is used to indicate the dimensions. relative importance of the different deprivations. If each deprivation is viewed as having equal importance, it leads to a benchmark case where all weights are one and the sum to

112 AFRICA POLICY JOURNAL the number of dimensions d. If Identification Function dimensions are viewed as having differential importance, this is The identification function reflected by the sum of a vector summarizes the outcome of whose entries equal d but can vary the above process and indicates from one with higher weights, whether a person is poor in indicating greater importance. Y given deprivation cutoffs z, Deprivation values affect weights w and poverty cutoff identification as they determine k. If the person is poor, the the minimal contributions of identification function takes on a deprivations that will identify a value of one; if the person is not person as being poor; they also poor, the identification function affect aggregation by altering has a value of zero. the relative contributions of One of the interesting deprivation to overall poverty. properties exhibited by the AF method approach is its Deprivation Counts applicability, even when one or more variable are ordinal. All cardinalizations of the ordinal A column vector c = (c1,...,cn)’ of deprivation counts reflects variable (found by applying a the breadth of each person’s monotonic transformation to deprivation. The ith person’s the variable and its cutoff) yield identical conclusions regarding deprivation count ci is the number of deprivations experienced by whether a person is deprived in i (in the case of equal weights), the dimension and whether the or the sum of the values of the person is poor. This expands deprivations experienced by i (in the potential reach of the the general case). methodology by allowing it to be meaningfully applied to data Poverty Cutoff with lower-level measurement properties. A poverty cutoff k satisfying 0 < k ≤ d is used to determine The Alkire-Foster Multidi- whether a person has sufficient mensional Poverty Index deprivations to be considered poor. If the ith person’s deprivation The MPI is an extension of the one-dimensional class count ci falls below k, the person is not considered poor; if the of decomposable poverty person’s deprivation count is k or measures proposed by Foster, above, the person is identified as Greer, and Thorbecke in 1984. It poor. Note that when k is less than emerged from the dimensional or equal to the minimum weight adjusted poverty headcount ratio across all dimensions we have a proposed by Alkire and Foster union identification. When k = in 2007. The index is made up d, the intersection approach is of two components: the poverty being used. The deprivation count headcount, H, and an adjustment and poverty cutoff can also be measure, A, that represents the expressed as percentages of d. number of deprivations suffered

2016-2017 · VOLUME XII 113 on average by the poor. is defined as mutidimensionally MPI = H x A (1) poor only if deprived in all Where; dimensions. The poverty status of an individual is defined as a q H = n- (2) dichotomous variable equal to This is simply the total one if the number of deprivations number of poor, q, divided by counted ci, for each individual the total population, n. Since ci≥k, and zero if not. this study is using data from a It is useful to organize the representative household survey, multiple dimensions d according and since it wants to adjust to T partitions with respective for variations in household sizes: d1, d2,...... , dT, with d = ... size (notably to ensure the d1 + d2 + + dT. Each partition measurement takes into account can be thought of as representing poorer households typically a domain containing dt nested have more members), a weight dimensions. Domains, or x broad dimensions, considered wi = si hi is applied where si in multidimensional welfare is the sample weight and hi is analysis vary in terms of how the household size; wi could be n many are included and how these normalized so that ∑ i =1wi =n The total number of poor are defined. The MPI, however, people is given by: uses three: health, education, and material standard of living. q = ∑ n = w ρ (y ; z) (3) i 1 i k i, Previously, the terms domains This is the sum of individuals and dimensions have been identified as poor using a dual interchangeably used, a practice cutoff approach represented by from which this paper seeks to ρk(y;z), where yi = (yi1,...,yij... depart. Specifically, a formal ...... ,yid) represents the profile distinction between domains household i’s achievements and dimensions is introduced to across d dimensions. The first extend the use of the MPI. This cutoff is given by zj, which is the enables us to differentiate between deprivation threshold in each domains and deprivations that dimension, j = 1,... .,d of poverty occur exclusively in one domain, that separates the deprived as opposed to deprivations that from the non-deprived. The occur across several domains. second cutoff is represented This is particularly important by k, which is the number of for the MPI, which has several deprivations required in order for indicators in a single domain, the individual to be considered notably the one capturing material mutidimensionally poor. At standard of living, that tend one extreme when k = 1, the to be highly correlated. In the identification cutoff is equal to the extended application of the MPI, union approach, whereby poverty the multidimensional poverty is defined as being deprived status first needs to be defined in just one dimension. At the by the condition ci ≥ T, where other end, k = d is equal to the the multidimensional cutoff k is intersection approach, where one equal to the number of domains

114 AFRICA POLICY JOURNAL T. We then need to include an of deprivations in which the additional condition in which the individual is deprived. The MPI is number of deprivations counted automatically adjusted to reflect ci includes non-zero values for the weighting scheme. each dimension. Formally, ci can (5) be composed by dimensions as d1 d2 ... dT Where ci + ci + + ci . The second di condition holds if ci ≥ 0 t. This and 0 otherwise. definition is more restrictive The MPI can be decomposed than the one only based on the by the subgroup: first condition since it excludes individuals with T deprivations, (6) but without deprivation in at least Where φl is the population one dimension indicator of any share of subgroup l (i.e.nl/n). This domain. The multidimensional type of decomposition is useful cutoff for this alternative will for developing poverty profiles be denoted by k*, and an as it allows for identifying which individual is considered to be subgroups have higher levels of multidimensionally poor when ci poverty. In turn, this is useful for ≥ k*. purposes of targeting anti-poverty Since H is sensitive to the interventions. Equation (1) can number of dimensions in which also be used to evaluate the a poor person is deprived, as a contribution πl of each subgroup poverty measure on its own it to overall poverty: violates a principle that Alkire and Foster refer to as “dimensional (7) monotonicity,” which states A useful complementary that if a poor person becomes analysis is to decompose MPI newly deprived in an additional by dimension and assess the dimension overall poverty should contribution to overall poverty increase.Therefore, H is adjusted levels by each dimension: by a measure of the number (8) of deprivations a poor person suffers, reflecting the intensity of Where c*i,j is the same as d A of poverty: Pz(yi,wj ) when ci ≥ k and equals zero otherwise. While the MPI is sensitive to the number of (4) deprivations of poverty, it is

Where ci* indicates we are not sensitive to the depth of only counting deprivations for poverty. If a person becomes individuals for whom ci ≥ k. It more deprived in one dimension is possible to assign different the measure will not change. The weights wd to the dimensional depth and severity of poverty can deprivations in order to reflect be assessed using other members differences in the importance of the Alkire and Foster class attached to each of the multiple of poverty measures, or others, dimensions of poverty. In that such as those suggested by case, ci is the weighted number Bourguignon and Chakravarty

2016-2017 · VOLUME XII 115 in 2003 and Tsui in 2002. For Ranking Test: Mann- purposes of this paper the Whitney U Test incidence of poverty is focused on as represented by the MPI. The Mann-Whitney U test For purposes of the MPI, is a non-parametric test that can three domains, or broad be used in place of an unpaired dimensions, will be considered: t-test. It is used to test the null health, education, and standard hypothesis that two samples of living. Two dimensions or come from the same population, indicators will be retained in the or alternatively, whether health domain and the education observations in one sample tend domain, while six dimension to be larger than observations indicators will be considered in another. Although it is a non- for the standard of living parametric test it does not assume domain. Some of the indicators that the two distributions are will be drawn from individual similar in shape. sections of the surveys and other household sections. The MPI Carrying Out the thus applies a unitary definition Mann-Whitney U Test of the household, whereby all members of a given household are Suppose there is a sample of

afforded the same poverty status nx observations x1, x2, ...... , xn in and intra-household inequality one group (from one population)

is not considered. The unitary and a sample of ny observations y1, household definition poses y2, ...... ,yn in another group (from certain challenges when it comes another population). The Mann- to comparing two distributions of Whitney test is based on every

multidimensional poverty when observation yj in another sample. household sizes are different. The total number of pair-wise The weights are set such that comparisons that can be made is

each broad dimension is equally nxny. weighted at 1/3, and using nested If the samples have the same

weights, each indicator dimension median, then each xi has an is also weighted within each equal chance (a probability of broad domain. The issue of which 0.5 percent) of being greater or

weights to apply is of considerable smaller than each yj. Therefore, importance in compiling the procedure is as follows: dimensional indexes, as indicated 1. Arrange all observations by Decanq. For purposes of in order of magnitude. the MPI, the Alkire and Santos 2010 method of using equal 2. Under each observation, weights across domains to ensure write down X or Y (or a methodology that enables some other relevant international comparability is symbol) to indicate from used. which sample they come. 3. Under each x write down the number of ys to the

116 AFRICA POLICY JOURNAL left (smaller than it); this 6. Use statistical tables for

indicates xi > yj. Under the Mann-Whitney U test each y write down the to find the probability of number of xs to the left; observing a value of U or

this indicates yj > xi. lower. If the test is one- sided, this is the p-value; 4. Add up the total number if the test is two-sided, of times xi > yj, denote double the probability to by Ux. Add up the total obtain the p-value. number of times xi > yj, denote by U . Check that Note that if the number of y observations is such that n n is U + U = n n . x y x y x y large enough (>20), a normal 5. Calculate U = min approximation can be used with , where N = n + n . (Ux,Uy). x y

Analysis and Discussion

Comparing the According to Lucy’s model, Allocations which uses the HDI to calculate the poverty index, the largest The money allocated toward allocation toward poverty counties by the Kenyan National alleviation would go to Turkana government every fiscal year is County. The largest allocation roughly Kshs. 300,000,000,000; of money using the AF method eighteen percent of this amount would go towards Nairobi County (Kshs. 54,000,000,000) is (see Figure 1). channeled toward poverty alleviation and reduction in each of the forty-seven counties.

Figure 1: Poverty Allocations by Alkire-Foster’s Method vs. Lucy’s Model

2016-2017 · VOLUME XII 117 Principal Component Analysis of the Allocations

Figure 2: Principal Components Analysis

The correlation between of the means (see Figure 3). This the allocations derived from the may be due to the difference in AF method and the allocations the poverty indexes according derived from the HDI method is to both methods. For example, 0.894789. The variance between according to the AF method the both sets of allocations is county with the largest poverty 0.707107, whereas the covariance index is Nairobi, and according is -0.707107, 0.707107 (see Figure to the HDI the county with the 2). largest poverty index is Turkana. Therefore, the difference in Test of Equality of Means allocations is significant and this can be explained by the difference Between the Allocations in the standard deviation and the The mean of the allocations standard error of the mean. derived from the AF method and the allocations derived from the HDI is the same at 1.15. The standard deviations significantly vary, as well as the standard error

118 AFRICA POLICY JOURNAL Figure 3: Test for Equality of Means Between Series

Test of Equality of Correlogram of Allocations Variances Between the Allocations The data in the analysis was lagged at 4. Autocorrelation The standard deviations of is the highest at lag 3 with the HDI and the AF method autocorrelation function (ACF) significantly varies. The Bartlett of 0.074, which alternates and weighted standard deviation is becomes negative in the fourth 8.13 (see Figure 4). This means lag. Partial autocorrelation is the variations are significant for evident at lag 4 only with partial the allocations that are generated correlation function (PACF) of for each county by using both the 0.8206. The probability that the AF method and the HDI. AF method and HDI are auto

2016-2017 · VOLUME XII 119 Figure 4: Test for Equality of Variances Between Series

Figure 5: Correlogram of Allocations

correlated varies between 0.635 Cross-Correlogram of and 0.936, which is high (see Allocations Figure 5). This is attributed to the fact the same data was applied to The highest significant both methods and the indicators correlation is at lag zero which is used in both methods are the 0.8948 (see Figure 6). same.

120 AFRICA POLICY JOURNAL Figure 6: Cross-Correlogram of Allocations

Ranking Test Results method is Nairobi County, To check if there is a while the county with the largest difference in ranking between poverty index using the Human the Alkire-Foster method and Development Index is Mandera the Human Development Index, County. This is because the the Mann-Whitney U test is Alkire-Foster method uses a applied. The null hypothesis states dual-cutoff approach; it is biased there is no difference between toward the size of the population. the rankings of counties using If the county population is large, both methods. The alternative the poverty headcount and the hypothesis states there is a poverty index tend to be large difference in the rankings of since there are a large number counties using both methods. of households in a county with a The results from the test show. large population. The test carried out is a two- The Human Development tailed test with a 95 percent Index is a method based on level of significance. Therefore,. weights assigned to the different The decision is to reject the null indicators that characterize if . In this case, Therefore, the poverty. This means if a county decision is to fail to reject the null has a large number of people hypothesis. The test validates the that lack in a certain aspect (e.g. null hypothesis, which means many people who are illiterate), there is no difference between the then when multiplied by a rankings of counties using both certain weight the county will be methods. considered poor in that aspect. The HDI fails to specify the number of people who Discussion of Results are completely deprived in a From the results above, the particular aspect. It generalizes county with the largest poverty poverty and fails to identify the index using the Alkire-Foster truly poor people in a particular

2016-2017 · VOLUME XII 121 aspect. This can be shown by the poor. The HDI is a welfare-based index deviations in allocations in each based on marginal distributions that county. The money allocated using combine the aggregate dimensional poverty index derived from the Alkire- achievements of all people into one Foster method is less in most of the overall score Alkire.46 counties than the money allocated The correlation of the allocations using the poverty index derived from derived from the AF method and the the Human Development Index. allocations derived from the HDI This is a clear indication the Alkire- method is 0.894789. This is a strong, Foster method is more objective since positive correlation between the it targets the truly poor people in allocations from both methods. The each county. It is worth noting the correlation of the AF method indexes total amount of money allocated to and HDI method indexes is 0.471475, poverty alleviation is the same in both which is moderate. This means the two methods. indexes have a moderate correlation, The results prove that the Alkire- explaining the difference in the poorest Foster methodology identifies who is counties from both methods. poor and ignores the data of the non-

Conclusion

The two main objectives of this model is 0.894789—which is quite study were to reconstruct Kenya’s high—indicating a strong positive poverty index using the Alkire-Foster correlation between the allocations Method and compare the difference from both methods. When we tested between the poverty allocations arrived the significance of the difference in at by AF method and Lucy’s model ranking, the results from the test show allocations. Based on the results of the with a score of. The test validates the study, we aimed to offer suggestions for null hypothesis, which means there is improving the poverty index used in no difference between the rankings of Lucy’s model. counties using both methods. We constructed the Kenyan In conclusion, we find that though poverty index using the AF method both methods indicate different and data from the Commission for counties as the neediest (Nairobi-AF Revenue Allocation. The cutoffs method, Mandera-HDI; Lucy’s model), described in the methodology were there is no statistically significant used and from this we were able to difference between the allocations come up with the indexes shown in arrived at by both models. We cannot Appendix A. offer suggestions for the improvement The correlation between the of Lucy’s model given the results of the allocations arrived at using both the study. AF method and the HDI in Lucy’s Appendices

Appendix A: Poverty Indexes by Alkire-Foster Method

County PI (AF Method) County PI (AF Method) BARINGO 0.011795040 MARSABIT 0.003725859 BOMET 0.015756143 MERU 0.042395773 BUNGOMA 0.051083904 MIGORI 0.024611453 BUSIA 0.015941833 MOMBASA 0.010572368 ELGEYO- MURANG’A 0.021764831 0.004028614 MARAKWET NAIROBI CITY 0.089287034 EMBU 0.006594597 NAKURU 0.045913698 GARISSA 0.017788094 NANDI 0.014381295 HOMA-BAY 0.031143334 NAROK 0.028158550 ISIOLO 0.000664133 NYAMIRA 0.008637370 KAJIADO 0.012215570 NYANDARUA 0.007345022 KAKAMEGA 0.068857921 NYERI 0.008595484 KERICHO 0.014117713 SAMBURU 0.002266359 KIAMBU 0.033004206 SIAYA 0.019689301 KILIFI 0.039435142 TAITA-TAVETA 0.001973413 KIRINYAGA 0.005577941 TANA-RIVER 0.002521441 KISII 0.029046053 THARAKA- 0.004224201 KISUMU 0.022540348 NITHI KITUI 0.033384776 TRANS-NZOIA 0.020162449 KWALE 0.014870893 TURKANA 0.043079641 LAIKIPIA 0.003967731 UASIN-GISHU 0.015785752 LAMU 0.000285003 VIHIGA 0.007934874 MACHAKOS 0.031021464 WAJIR 0.023367883 MAKUENI 0.024198070 WEST POKOT 0.012131929 MANDERA 0.054155499

2016-2017 · VOLUME XII 123 Appendix B: Poverty Indexes by Lucy’s Model

County PI (LNF) County PI (LNF) BARINGO 0.0207376224 MARSABIT 0.0112521568 BOMET 0.0200914965 MERU 0.0315341078 BUNGOMA 0.0270298910 MIGORI 0.0247011611 BUSIA 0.0184203234 MOMBASA 0.0164538961 ELGEYO- MURANG’A 0.0238309924 0.0103980195 MARAKWET NAIROBI CITY 0.0421147467 EMBU 0.0130963157 NAKURU 0.0335683452 GARISSA 0.0257039025 NANDI 0.0183739978 HOMA-BAY 0.0302572738 NAROK 0.0303429736 ISIOLO 0.0044140450 NYAMIRA 0.0143705917 KAJIADO 0.0202085850 NYANDARUA 0.0121814639 KAKAMEGA 0.0349231529 NYERI 0.0142100272 KERICHO 0.0189801493 SAMBURU 0.0089179940 KIAMBU 0.0282422752 SIAYA 0.0221005326 KILIFI 0.0320465496 TAITA-TAVETA 0.0069101391 KIRINYAGA 0.0110786765 TANA-RIVER 0.0094341149 KISII 0.0245369095 THARAKA- 0.0106739335 KISUMU 0.0247058716 NITHI KITUI 0.0301530962 TRANS-NZOIA 0.0213039003 KWALE 0.0210968327 TURKANA 0.0409373504 LAIKIPIA 0.0099663700 UASIN-GISHU 0.0168914782 LAMU 0.0025889848 VIHIGA 0.0118903015 MACHAKOS 0.0284671227 WAJIR 0.0287610083 MAKUENI 0.0248016747 WEST POKOT 0.0214130171 MANDERA 0.0458866294 Appendix C: Indexes from the Richest to the Poorest

County PI (LNF) County PI (AF Method) County PI (LNF) MARSABIT 0.0112521568 LAMU 0.000285003 LAMU 0.0025889848 MERU 0.0315341078 ISIOLO 0.000664133 ISIOLO 0.0044140450 MIGORI 0.0247011611 TAITA-TAVETA 0.001973413 TAITA-TAVETA 0.0069101391 MOMBASA 0.0164538961 SAMBURU 0.002266359 SAMBURU 0.0089179940 MURANG’A 0.0238309924 TANA-RIVER 0.002521441 TANA-RIVER 0.0094341149 NAIROBI CITY 0.0421147467 MARSABIT 0.003725859 LAIKIPIA 0.0099663700 NAKURU 0.0335683452 LAIKIPIA 0.003967731 ELGEYO- 0.0103980195 NANDI 0.0183739978 ELGEYO- MARAKWET 0.004028614 THARAKA- NAROK 0.0303429736 MARAKWET 0.0106739335 THARAKA- NITHI NYAMIRA 0.0143705917 0.004224201 NITHI KIRINYAGA 0.0110786765 NYANDARUA 0.0121814639 KIRINYAGA 0.005577941 MARSABIT 0.0112521568 NYERI 0.0142100272 EMBU 0.006594597 VIHIGA 0.0118903015 SAMBURU 0.0089179940 NYANDARUA 0.007345022 NYANDARUA 0.0121814639 SIAYA 0.0221005326 VIHIGA 0.007934874 EMBU 0.0130963157 TAITA-TAVETA 0.0069101391 NYERI 0.008595484 NYERI 0.0142100272 TANA-RIVER 0.0094341149 NYAMIRA 0.008637370 NYAMIRA 0.0143705917 THARAKA- 0.0106739335 MOMBASA MOMBASA NITHI 0.010572368 0.0164538961 TRANS-NZOIA 0.0213039003 BARINGO 0.011795040 UASIN-GISHU 0.0168914782 TURKANA 0.0409373504 WEST POKOT 0.012131929 NANDI 0.0183739978 UASIN-GISHU 0.0168914782 KAJIADO 0.012215570 BUSIA 0.0184203234 VIHIGA 0.0118903015 KERICHO 0.014117713 KERICHO 0.0189801493 WAJIR 0.0287610083 NANDI 0.014381295 BOMET 0.0200914965 WEST POKOT 0.0214130171 KWALE 0.014870893 KAJIADO 0.0202085850 BOMET 0.015756143 BARINGO 0.0207376224 UASIN-GISHU 0.015785752 KWALE 0.0210968327 BUSIA 0.015941833 TRANS-NZOIA 0.0213039003 GARISSA 0.017788094 WEST POKOT 0.0214130171 SIAYA 0.019689301 SIAYA 0.0221005326 TRANS-NZOIA 0.020162449 MURANG’A 0.0238309924 MURANG’A 0.021764831 KISII 0.0245369095 KISUMU 0.022540348 MIGORI 0.0247011611 WAJIR 0.023367883 KISUMU 0.0247058716

2016-2017 · VOLUME XII 125 Appendix C: Indexes from the Richest to the Poorest cont.

County PI (AF Method) County PI (LNF) MAKUENI 0.024198070 MAKUENI 0.0248016747 MIGORI 0.024611453 GARISSA 0.0257039025 NAROK 0.028158550 BUNGOMA 0.0270298910 KISII 0.029046053 KIAMBU 0.0282422752 MACHAKOS 0.031021464 MACHAKOS 0.0284671227 HOMA-BAY 0.031143334 WAJIR 0.0287610083 KIAMBU 0.033004206 KITUI 0.0301530962 KITUI 0.033384776 HOMA-BAY 0.0302572738 KILIFI 0.039435142 NAROK 0.0303429736 MERU 0.042395773 MERU 0.0315341078 TURKANA 0.043079641 KILIFI 0.0320465496 NAKURU 0.045913698 NAKURU 0.0335683452 BUNGOMA 0.051083904 KAKAMEGA 0.0349231529 MANDERA 0.054155499 TURKANA 0.0409373504 KAKAMEGA 0.068857921 NAIROBI CITY 0.0421147467 NAIROBI CITY 0.089287034 MANDERA 0.0458866294 Appendix D: Allocations to Counties by Both Methods

County PI (LNF) Allocations Poverty Allocations County From Lucy’s Deviation MAKUENI 0.0248016747 Index (AF Method) New Model GARISSA 0.0257039025 1 BARINGO 0.01179504 636,932,182.72 1,119,831,607.52 (482,899,424.80) BUNGOMA 0.0270298910 2 BOMET 0.015756143 850,831,715.87 1,084,940,812.43 (234,109,096.55) KIAMBU 0.0282422752 3 BUNGOMA 0.051083904 2,758,530,833.71 1,459,614,111.40 1,298,916,722.30 MACHAKOS 0.0284671227 4 BUSIA 0.015941833 860,859,001.70 994,697,466.28 (133,838,464.58) WAJIR 0.0287610083 ELGEYO- 5 0.004028614 217,545,164.06 561,493,052.48 (343,947,888.43) KITUI 0.0301530962 MARAKWET HOMA-BAY 0.0302572738 6 EMBU 0.006594597 356,108,250.52 707,201,047.84 (351,092,797.32) NAROK 0.0303429736 7 GARISSA 0.017788094 960,557,079.68 1,388,010,736.83 (427,453,657.16) MERU 0.0315341078 8 HOMA-BAY 0.031143334 1,681,740,050.74 1,633,892,786.67 47,847,264.07 KILIFI 0.0320465496 9 ISIOLO 0.000664133 35,863,206.39 238,358,427.39 (202,495,221.00) NAKURU 0.0335683452 10 KAJIADO 0.01221557 659,640,800.12 1,091,263,591.32 (431,622,791.19) KAKAMEGA 0.0349231529 11 KAKAMEGA 0.068857921 3,718,327,722.44 1,885,850,254.80 1,832,477,467.64 TURKANA 0.0409373504 12 KERICHO 0.014117713 762,356,476.55 1,024,928,060.74 (262,571,584.18) NAIROBI CITY 0.0421147467 13 KIAMBU 0.033004206 1,782,227,127.71 1,525,082,860.68 257,144,267.03 MANDERA 0.0458866294 14 KILIFI 0.039435142 2,129,497,646.23 1,730,513,676.47 398,983,969.77 15 KIRINYAGA 0.005577941 301,208,838.17 598,248,528.56 (297,039,690.39) 16 KISII 0.029046053 1,568,486,837.65 1,324,993,114.47 243,493,723.18 17 KISUMU 0.022540348 1,217,178,788.01 1,334,117,065.74 (116,938,277.73) 18 KITUI 0.033384776 1,802,777,900.73 1,628,267,192.61 174,510,708.12 19 KWALE 0.014870893 803,028,201.63 1,139,228,967.68 (336,200,766.05) 20 LAIKIPIA 0.003967731 214,257,462.31 538,183,978.22 (323,926,515.91) 21 LAMU 0.000285003 15,390,149.17 139,805,181.66 (124,415,032.49) 22 MACHAKOS 0.031021464 1,675,159,038.89 1,537,224,623.51 137,934,415.38 23 MAKUENI 0.02419807 1,306,695,805.20 1,339,290,433.49 (32,594,628.28) 24 MANDERA 0.054155499 2,924,396,930.41 2,477,877,985.35 446,518,945.06 25 MARSABIT 0.003725859 201,196,368.65 607,616,466.56 (406,420,097.91) 26 MERU 0.042395773 2,289,371,741.40 1,702,841,818.83 586,529,922.57 27 MIGORI 0.024611453 1,329,018,451.58 1,333,862,700.97 (4,844,249.38) 28 MOMBASA 0.010572368 570,907,849.10 888,510,391.94 (317,602,542.84) 29 MURANG’A 0.021764831 1,175,300,871.93 1,286,873,588.63 (111,572,716.70) NAIROBI 30 0.089287034 4,821,499,856.16 2,274,196,322.12 2,547,303,534.04 CITY

2016-2017 · VOLUME XII 127 Appendix D: Allocations to Counties by Both Methods cont.

Allocations Poverty Allocations County From Lucy’s Deviation Index (AF Method) New Model 31 NAKURU 0.045913698 2,479,339,678.58 1,812,690,641.01 666,649,037.57 32 NANDI 0.014381295 776,589,906.49 992,195,880.07 (215,605,973.58) 33 NAROK 0.02815855 1,520,561,689.47 1,638,520,576.03 (117,958,886.56) 34 NYAMIRA 0.00863737 466,417,984.61 776,011,952.59 (309,593,967.98) 35 NYANDARUA 0.007345022 396,631,174.75 657,799,053.05 (261,167,878.31) 36 NYERI 0.008595484 464,156,156.69 767,341,470.24 (303,185,313.55) 37 SAMBURU 0.002266359 122,383,383.79 481,571,674.42 (359,188,290.63) 38 SIAYA 0.019689301 1,063,222,258.07 1,193,428,762.73 (130,206,504.66) TAITA- 39 0.001973413 106,564,299.02 373,147,509.42 (266,583,210.40) TAVETA 40 TANA-RIVER 0.002521441 136,157,803.15 509,442,206.57 (373,284,403.42) THARAKA- 41 0.004224201 228,106,828.05 576,392,409.40 (348,285,581.35) NITHI TRANS- 42 0.020162449 1,088,772,252.98 1,150,410,616.74 (61,638,363.75) NZOIA 43 TURKANA 0.043079641 2,326,300,597.67 2,210,616,920.90 115,683,676.76 44 UASIN-GISHU 0.015785752 852,430,584.79 912,139,825.29 (59,709,240.50) 45 VIHIGA 0.007934874 428,483,186.37 642,076,280.56 (213,593,094.19) 46 WAJIR 0.023367883 1,261,865,695.46 1,553,094,445.73 (291,228,750.28) 47 WEST POKOT 0.012131929 655,124,170.63 1,156,302,922.06 (501,178,751.44) 48 54,000,000,000.00 54,000,000,000.00 Appendix E: Results of Mann-Whitney Ranking Test

COUNTY PI Rank COUNTY PI Rank BARINGO 0.000285003 1 NYANDARUA 0.014370592 35 BOMET 0.000664133 2 NYERI 0.014381295 36 BUNGOMA 0.001973413 3 SAMBURU 0.014870893 37 BUSIA 0.002266359 4 SIAYA 0.015756143 38 ELGEYO- TAITA-TAVETA 0.015785752 39 0.002521441 5 MARAKWET TANA-RIVER 0.015941833 40 EMBU 0.002588985 6 THARAKA-NITHI 0.016453896 41 GARISSA 0.003725859 7 TRANS-NZOIA 0.016891478 42 HOMA-BAY 0.003967731 8 TURKANA 0.017788094 43 ISIOLO 0.004028614 9 UASIN-GISHU 0.018373998 44 KAJIADO 0.004224201 10 VIHIGA 0.018420323 45 KAKAMEGA 0.004414045 11 WAJIR 0.018980149 46 KERICHO 0.005577941 12 WEST POKOT 0.019689301 47 KIAMBU 0.006594597 13 0.020091497 48 KILIFI 0.006910139 14 0.020162449 49 KIRINYAGA 0.007345022 15 0.020208585 50 KISII 0.007934874 16 0.020737622 51 KISUMU 0.008595484 17 0.021096833 52 KITUI 0.00863737 18 0.021303900 53 KWALE 0.008917994 19 0.021413017 54 LAIKIPIA 0.009434115 20 0.021764831 55 LAMU 0.009966370 21 0.022100533 56 MACHAKOS 0.010398019 22 0.022540348 57 MAKUENI 0.010572368 23 0.023367883 58 MANDERA 0.010673934 24 0.023830992 59 MARSABIT 0.011078676 25 0.02419807 60 MERU 0.011252157 26 0.024536910 61 MIGORI 0.01179504 27 0.024611453 62 MOMBASA 0.011890301 28 0.024701161 63 MURANG’A 0.012131929 29 0.024705872 64 NAIROBI CITY 0.012181464 30 0.024801675 65 NAKURU 0.01221557 31 0.025703903 66 NANDI 0.013096316 32 0.027029891 67 NAROK 0.014117713 33 0.02815855 68 NYAMIRA 0.014210027 34 0.028242275 69

2016-2017 · VOLUME XII 129 Appendix E: Results of Mann-Whitney Ranking Test cont. SUBSCRIPTIONS AVAILABLE COUNTY PI Rank 0.028467123 70 0.028761008 71 0.029046053 72 0.030153096 73 0.030257274 74 0.030342974 75 0.031021464 76 0.031143334 77 0.031534108 78 0.032046550 79 0.033004206 80 0.033384776 81 0.033568345 82 0.034923153 83 0.039435142 84 0.040937350 85 0.042114747 86 0.042395773 87 0.043079641 88 0.045886629 89 0.045913698 90 0.051083904 91 0.054155499 92 0.068857921 93 0.089287034 94

Endnotes can be found online at http://apj.fas.harvard.edu/

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