The Nairobi Law Monthly

Special report: The foreign aid LSK Footprints: How game is changing: these are the Jomo Kenyatta stamped opportunities for Africa out oversight The Nairobi Law Monthly

Vol 12 • Issue No. 5 | September 2020 Ksh350 • Tsh5,570 • Ush10,450

CIVIL WAR Absurdity of a state against its own people The Nairobi Law Monthly 2 • September 2020 September 2020 Contents Vol 12 • Issue 5

Publisher: Ahmednasir Abdullahi Managing Editor: Kevin Motaroki Cover Story Inside Regulars Associate Editor: David Wanjala Consulting Art Director: 2 | LEADER Andrew Muchira 4 | OPENING STATEMENT Creative Design: 6 | LETTERS Denet Odhiambo From separation 6 | BRIEFING Staff Writers to delegation of Antony Mutunga 6-8 | NEWS Shadrack Muyesu powers P.32 Education emergency’ as third of David Onjili world’s children lack remote learning Victor Adar MPs push to have knotty gender Contributors: rule invalidated Prof John Harbeson Coalition launches $100 million PPE Dr Tom Odhiambo initiative for Africa’s community Barrack Muluka health workers Kibe Mungai Joel Okwemba Tioko Ekiru 10 | REVIEW Newton Arori Challenges to sound constitutional Special Investigative implementation Department: Payton Mathau Auditing the Bill of Rights under the Constitution, 2010 Business Executive: Why do people participate in Roseline Okayo election violence? Insights from Photography: Kenya’s 2007 elections Victor Adar Kenya is struggling to deliver justice NLM Library online: what needs to be done Courtesy Opening Administration: 20 | SPECIAL REPORT Samah Hassan Statement: Shadow war Fatma Yusuf The foreign aid game is changing: opportunities for Africa Printing: Africa’s most important heritage Emirates Printing Press, LLC, sites could be permanently lost to Dubai, UAE climate change Distribution: Internet shutdowns threaten The Newspoint – TNP democracy 36 | BUSINESS

Leveraging the employment potential of industries without smokestacks A house Kenya-US free trade talks are divided: underway: what Nairobi must get Kenya’s political right from start Data analytics is transforming The Nairobi Law Monthly may not be copied madhouse and or transmitted or stored in any way or Democratic supply chain management form, electronically or otherwise, without the prior and written consent of the publisher. backsliding The Nairobi Law Monthly is published at 50 | BLACK LETTER LAW Mayfair Office Suites, Parklands Road, by forensics The Nairobi Law Monthly Limited, Box Kenya: a constitutional crisis grows 57731 – 00200, and Telephone 0735 701702, P.4 P.28 0715 061658. Registered at the GPO as a Overcoming the next big hurdle for newspaper. remote law firms: efficiency [email protected] Rise of the nonequity partner: short- [email protected] term gain for long-term pain www.nairobilawmonthly.com All correspondence to the editor is assumed 56 | LIFE to be intended for publication. The Nairobi Law Monthly admits no liability for unsolicited articles or pictures, which must be accompa- Black Spartacus – the epic life of nied with a self-addressed, stamped envelope. Toussaint Louverture Whilst every effort has been made to ensure the accuracy of the information contained TikTok is a unique blend of social media platforms – why kids love it in this magazine, the authors, publishers CONNECT WITH US: and editors accept no responsibility for any Through the camera lens loss, financial or otherwise, sustained by any Facebook: nairobilawmonthly person using this publication. 60 | CLOSING No part of this publication may be repro- Twitter: @nairobilawmonthly duced, stored in retrieval systems or transmit- STATEMENT ted in any form by any means, without Email: [email protected] prior written permission of The Nairobi Law The constraints that bind (or don’t): Monthly. All rights are reserved. www.nairobilawmonthly.com integrating gender into economic constraints analyses www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 1 It is possible for Kenya to move Editorial forward, but citizens must exercise their constitutional rights and the right to self-determination to enforce a free and equal society.

implementation, including Parliament On the constitution: let’s and constitutional commissions. We must also address our failure to develop policies, based on robust analysis get our priorities right for of the process of implementation and the challenges we have experienced so far, to guide implementation. the next decade The emasculation of parliament has become significant as the Executive seeks to roll back some gains in the constitution tories of democracy and sustain- can still deliver if we become deliberate through ordinary legislation, and an assault ability can be told in many other about its implementation. on democracy through disregard of court ways too; ones that connect The Building Bridges Initiative (BBI), orders, arbitrary orders such as the one S much more deeply with human which has been tailored to support amend- directing that hiring of external lawyers by values. Consider this tale from India: ments, has identified a nine-point agenda ministries and government agencies have Ten years ago, sought to change their but most of those have nothing to do with to be approved by the Attorney General. social and political fortunes when they pro- implementation. None justify tinkering Some laws that the National Assembly mulgated a new Constitution. In their new with the document that has been both has passed have not been in line with governance contract, they recalibrated the source of national pride and chagrin. the letter and spirit of the Constitution. governance, to restore the power of the Our present focus should be on im- Institutional conflicts over mandate, and people, ensure dignity for all through a proving the quality of constitutionalism. general turf wars at different levels of comprehensive human rights Bill, and to The last decade has seen a fundamental government, have characterized imple- hold governments to account. increase in the levels of awareness on mentation thus far. There are vary perspectives on what the letter and content of the document. progress the country has made in the last Unacceptable culture decade since august 2010. What Kenyans A culture of constitutionalism In a brief ten years, the country cannot be agree on is that the job of implementing It is important that citizens and State embroiled in conversation about constitu- the constitution is an ongoing endeavour. agencies inculcate a culture of constitutional change. President Uhuru Kenyatta They also agree that we haven’t done the tionalism, to ensure we implement the and his Handshake ally Raila Odinga are best job about it. Instructively, we still charter in letter and spirit. pushing for amendments seen to be geared bear the yoke of bad governance. We must also work to strengthen the towards earning and entrenching them in institutions tasked with championing power for the foreseeable future. Curtailed at every bend While there exist critical issues exist that The 2010 Constitution was the outcome require review, the approach employed of pain, sweat and sacrifice. It was borne Kenya fared relatively well towards that end is unacceptable because out of sheer will and tenacity. Curtailed by sub-Saharan African it appears to favour the political elite to at every bend, it has also not run its full standards in that the the exclusion of the citizenry. cycle Certain key provisions have not been region declined on all 25 It is possible for Kenya to move for- effected, partly owing to their sometimes foundational indicators ward, but citizens must exercise their idealistic slant, and partly because of except corruption control at constitutional rights and the right to self- political compromises. a low 1.3 out of 4, freedom to determination to enforce a free and equal While there are discussions about hold property without undue society as provided in the Constitution of amending the charter, on the basis that it is interference, and freedom of Kenya 2010 — a society where the rule of a living document that must continuously marriage and family size (1.8 law is the standard to which all institutions be adjusted to reflect realities, the major- and 1.4 of 4 respectively. and persons are held. ( ity of Kenyans feel that the Constitution

The Nairobi Law Monthly 2 • September 2020 SPECIAL REPORT: Idling fees as EXCLUSIVE INTERVIEWS WITH DCI KINOTI AND DPP HAJI: the new frontierUhuru’s in graftgraft - gladiators focus on offer insights into their work ethic, PUNISHING JUDICIARY? NSSF, Kenyathreats Pipeline to the& KQ Kenyan P.31 state and the honour of public office Parliament’s budget coup and other omens P.12 The Nairobi Law Monthly The Nairobi LawVol 10 • IssueMonthly No. 06 | August 2018 Ksh350 • Tsh5,570 • Ush10,450 Vol 10 • Issue No. 07 | September 2018 Ksh350 • Tsh5,570 • Ush10,450 RESETTING THE CLOCK

STATE CAPTURE THE RAI REPUBLIC

GET IT ON PRINT •DESKTOP • MOBILE

Take advantage, subscribe today and receive the following benefits: • Get your copy delivered to your door step • Full access to nairobilawmonthly.com • Unmissable Nairobi Law Monthly special reports and exposé

www.nairobilawmonthly.com The Nairobi Law0715 Monthly 061 658 September 2020 • 3 Opening Statement with Prof John Harbeson

RECESSION Democratic backsliding

or the last fifteen years, de- late 90s, peaceful political competition mocracy has been in decline metastasized into violent conflict in worldwide in the opinion of fragile nascent democracies. Preoc- F most close observers of demo- cupation with elections that took place cratic practice. With the end of the Cold at the expense of strengthening other War until about 2005, there occurred a important dimensions of democracy, rising arc of democratic progress, most e.g,, the rule of law, has been a factor. notably in the Global South countries. Growing economic competition from In sub-Saharan Africa, eastern Europe China and other emerging economies and elsewhere, dictators were no lon- and a focus on counterterrorism have ger as coddled and propped up by the sidelined international support for de- principal Cold War adversaries, the mocratization. United States and the Soviet Union. A Somewhat surprisingly, detailed analy- younger generation, frustrated by cor- ses of specific dimensions of democratic ruption and economic malaise in their decline have been less numerous than countries created groundswells of sup- they should be in order to stimulate port for political democracy with active new approaches and momentum to international support. A high point of my regenerate democratic progress. For ex- own career was the opportunity to serve ample, it has been common practice for as USAID’s democracy and governance students of democracy to cite only the advisor for eastern and southern Africa most overarching scores of democratic in that period. progress, from 1 (high) to 7 (low) each Since then, democratic progress has for political rights and for civil liberties plateaued and receded for reasons still published annually for all countries by not adequately investigated. A relatively the widely respected Freedom House, small number of new democracies, per- now approaching its 50th year of annual Kenya fared relatively well haps a dozen in sub-Saharan Africa, surveys of democratic practice by all by sub-Saharan African have appeared to set down hardy roots, countries worldwide. standards in that the led interestingly by mostly by smaller But Freedom House for years released region declined on all 25 countries: Cape Verde, Mauritius, Ghana, much more granular data on democratic foundational indicators Sao Tome, South Africa, Namibia, and practice which illuminate important di- except corruption control at Botswana. But elsewhere, newly elected mensions of both progress and decline. a low 1.3 out of 4, freedom to leaders, less than fully committed to Its annual surveys for each country hold property without undue democracy and learning from each other, assign a score of 0 to 4 on 25 separate interference, and freedom of have found ways to erode democracy questions based upon extensive consul- marriage and family size (1.8 without directly abrogating it. In the tations among locally as well as regionally and 1.4 of 4 respectively.

The Nairobi Law Monthly 4 • September 2020 Ethiopia’s democratic progress may be dangerously imperiled because for whatever reason Abiy has not yet chosen to attempt to establish a constitutional consensus.

democratic decline for the world, for sub-Saharan Africa and for Kenya in particular? The average score for all countries has declined from 61.1 of a possible 100 in 2013 to 56.7 in 2020. Kenya’s score has declined from 55 to 48 over the same period. Notwithstanding this significant decline, Kenya remained an overall 4 on both political rights and civil liberties over this period. Kenya fared relatively well by sub- Saharan African standards in that the region declined on all 25 foundational indicators except corruption control at a low 1.3 out of 4, freedom to hold property without undue interference, and freedom of marriage and family size (1.8 and 1.4 of 4 respectively. By contrast, Kenya was stable over this period on most of the 25 questions except on freedom to organize parties and compete for political power under electoral process (both down from 3 to 2 out of a possible 4. Also, in the subcat- egory of freedom of expression, Kenya dropped from 3 to 2 on freedom of the media, 4 to 3 on academic freedom and freedom to express one’s views without fear of retribution, and from 3 to 2 in the area of associational freedom on freedom of assembly and human rights organization advocacy. I continue to find the Freedom House scale exemplary, but it is not without possible limitations. For example, civilian control of security forces domestically and internationally based specialists. in support of its overarching civil lib- is a problem, not least in Kenya. More (Full disclosure, I was a Freedom House erties scores: freedom of expression, generally, many successful democracies consultant on Africa for several years.) associational and organizational rights, have been innovative democratically in Since 2006, based on scores for those rule of law, and personal autonomy certain ways. There is certainly consid- questions, it has made available scores rights (e.g. freedom to marry, freedom erable room for African democracies to that group those questions around, three of movement, to own property, and add their own innovations to adapt es- larger subcategories: electoral process. freedom from exploitation). This year, tablished global standards on democracy political pluralism and participation and Freedom House has also released scores to their particular circumstances. ( quality of government functioning that on all those 25 foundational questions — Author is a professor of Political Science support its overarching political rights for 2013 through 2020. Emeritus as well as a professorial lecturer score. It has grouped others of these What does this more granular data for the African Studies Program, Johns 25 scores around four subcategories: bring to light about the dimensions of Hopkins University. www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 5 Briefing NEWS ‘GLOBAL EMERGENCY’ NEWS • PORTRAIT • OPINION • NEWS OF ‘Education THE WORLD • THE BIG INTERVIEW emergency’ as third of world’s children The Constitution at 10 lack remote learning

ne in three school- remote learning through children across the television and radio broad- O world have been casts or online classes and unable to access remote the availability of the correct learning during coronavirus educational materials on school closures, the UN chil- these platforms. dren’s agency said in August, It found students in Africa warning of a “global educa- were the most impacted, tion emergency”. with almost half unable to Nearly 1.5 billion children access remote education, were affected by school compared to 38% in South closures as countries locked Asia and 34% in eastern Eu- down to prevent the disease rope and Central Asia. from spreading, UNICEF said Latin America and the NDUNG’U WAINAINA: in a report. Yet at least one Caribbean had the lowest Challenges to in three students have had number of children affected, sound constitutional no way of continuing their with 9% of students unable education at home. to access learning at home, implementation “For at least 463 million said the report. children whose schools Most children lived in rural closed due to COVID-19, areas, in poor households there was no such a thing with no access to the inter- as remote learning,” said net, to electricity or to the KIBE MUNGAI UNICEF’s Executive Director educational television and Henrietta Fore in a state- radio broadcasts that many Auditing the Bill of ment. nations ran. UNICEF said Rights under the “The sheer number of that the situation was likely Constitution, 2010 children whose education far worse than the report’s was completely disrupted findings. for months on end is a global Even when children have education emergency. The the technology and tools at repercussions could be felt home, they may not be able Special report in economies and societies to learn due to factors such Why Africa’s most for decades to come.” as pressure to do chores, be- important heritage The report examined ing forced to work, or living sites could be lost 100 countries, looking at in a poor environment for children’s ability to access learning such as crowded,

The Nairobi Law Monthly 6 • September 2020 FOLLOW US: Facebook: /nairobilawmonthly Twitter: @nairobilawmonthly

THROWING IN THE TOWEL MPs push to have knotty gender rule invalidated

esgislators want the Maore said execution of the L elusive two-thirds gender two-thirds rule amounts to requirement on elective posts preferential treatment of one deleted through a referendum, gender and cannot work on arguing it is impossible to attain. elective positions. The lawmakers argue that it “I have a daughter in high is not possible to force Kenyans school; why I’m I not allowed to to vote a woman candidate pay less school because of her in a democratic exercise, and gender?” posed Maore. that the requirement should be After failing a record five deleted and only observed in times to pass the two-thirds appointive positions. Gender Bill, anyone at the Constitution Implementation moment can petition the Chief noisy accommodation, it ments to promote the safe Oversight Committee Chairman Justice, who shall then advise said. reopening of schools, while Jeremiah Kioni said the two- the President to dissolve Child rights organisations taking measures to limit the thirds gender rule was only Parliament. say the school closures have spread of the virus. agreed by politicians during The Law Society of Kenya had a devastating impact on “We must not be blind- the drafting of the 2010 (LSK) has petitioned the CJ on children - particularly girls - sided by our efforts to Constitution to stabilise the the matter, but Majority Leader in Africa who have become contain COVID-19 and end country and cool tempers. Amos Kimunya scoffed at the increasingly vulnerable to up with a lost generation,” “There is none of the Society’s petition. sexual violence and child said Matshidiso Moeti, WHO formulas that have a solution to “There are some noises marriage during lockdowns. regional director for Africa, the implementation of this rule being made outside there by A World Health Organi- in a statement. because you cannot take away somebody calling himself a zation (WHO) survey of 39 “Just as countries are my right on who to vote for. It is President of a society that he countries in sub-Saharan opening businesses safely, not implementable,” Kioni said can dissolve Parliament. Let us Africa found schools were we can reopen schools. This in a plenary discussion on the see if he can do that,” Kimunya fully open in only six. Some decision must be guided by thorny issue last month. dared LSK. nations including Kenya a thorough risk analysis to National Assembly Speaker According to Rarieda MP have cancelled the entire ensure the safety of chil- Justin Muturi said Parliament Otiende Amollo, dissolution of school year, with plans to dren, teachers and parents has done what is humanly Parliament on account that it is resume classes in January. and with key measures like possible to implement the rule, not properly constituted may UNICEF and the WHO are physical distancing put in but has not made headways. also mean that all the laws it has now urging African govern- place.” “This is our Constitution; passed since 2016 are illegal. When reopening is not let us live with its contents. Dr Amollo, who is one possible, governments Let’s change what we can and of the drafters of the 2010 should plan to incorporate live with other provisions, and Constitution, said the only way compensatory learning - I don’t think someone can out of the situation is to delete 1.5B especially for marginalised dissolve Parliament over two- the requirement from the Number of students - when classes thirds gender rule,” he said. Constitution via a referendum. children affected by school closures resume, said UNICEF, adding “You cannot compel citizens “We have a looming danger following COVID that education systems must to elect either men or the other because it is possible for lockdowns. be adapted to withstand gender,” Muturi said. the President to dissolve future crises..( Deputy Minority Whip Maoka Parliament,” Dr Amolo said. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 7 Briefing NEWS

MOBILIZING FOR COVID Coalition launches $100 million PPE initiative for Africa’s community health workers

n the largest mobiliza- raise up to $100 million (Sh10 tion of private resources billion) to supply PPE to com- I to protect Africa’s front- munity health workers in as line health workers from many as 24 African countries COVID-19, a new 30-mem- for approximately one year. ber coalition last month “This is a valiant and announced it has begun essential effort to mobilize delivering nearly 60 million PPE to protect our front- pieces of personal protective line heroes: community equipment (PPE) to coun- health workers,” says Agnes far purchased an initial 25 health workers in particular. tries across sub-Saharan Binagwaho, Vice Chancellor million surgical masks, 35 In the absence of PPE, com- Africa in the initiative’s first of the University of Global million gloves, 822,000 face munity health workers put round. Health Equity and former shields and 974,000 isolation themselves and the people The COVID-19 Action Fund Rwandan Minister of Health. gowns for the initiative. It is they serve at risk. The cur- for Africa (CAFA) is working “By preventing the spread of transporting the PPE to the rent drop in access to PPE in partnership with Minis- disease across their com- ports of entry in each of the in Africa has already been tries of Health to meet the munities while ensuring the African countries, where followed by a 203 percent essential PPE needs (includ- continuum of primary care, local CAFA partners will increase in COVID-19 infec- ing surgical masks, gloves, community health workers deliver the supplies to the tions among health workers. eye protection and more) of play a central role in all epi- community health workers The experience of past epi- up to one million community demics, especially COVID-19. in collaboration with the demics, including the 2015 health workers serving over As such, it is essential that Ministry of Health. The PPE West African Ebola crisis, 400 million people dur- we, as a global community, will fill the equivalent of nine has shown that disruption ing the COVID-19 pandemic. ensure they are respected, 747 cargo jets and weigh of essential health services CAFA is anchored by a $10 supported, and protected.” 441 metric tons. The first often leads to higher mortal- million (Sh1 billion) com- Responding to estimated 500,000 pieces have been ity rates than the epidemic mitment from Direct Relief, needs verified directly by shipped from Direct Relief’s itself. with additional support from Ministries of Health in each California warehouse, of As of Aug. 20, there were Crown Family Philanthro- country, CAFA has thus which some have arrived over 1 million confirmed pies, and in-kind contri- in Lesotho and Zimbabwe; cases of COVID-19 across the butions from over thirty shipments are in progress African continent and more collaborating partners. In for as many as 10 additional than 20,000 deaths. CO- partnership with CAFA, the countries in the first round. VID-19 threatens to reverse World Food Programme has While a global shortage the health and economic committed to provide donat- $200B of PPE is affecting all health progress of recent years, as ed freight and logistics worth Amount, in GDP, that workers, the brunt has fallen projections suggest its econ- more than $1 million (Sh100 African economies could on low- and middle-income omies could lose nearly $200 million). The Fund seeks to lose in 2020. countries and community billion in GDP in 2020. (

The Nairobi Law Monthly 8 • September 2020 QUICKTAKES

SELF PRESERVATION “Growing up with THE STATISTICS water as a scarce “Uhuru is the best president in resource, I knew IMD WORLD 1.7B the world. Pride is concerned a sustainable COMPETITIVENESS water source Consumers with who is right but humility RANKING 2020 will pay an would impact the additional Sh1 is concerned with what is right. lives of those who I wholeheartedly support 1. Singapore – 100 (score) billion annually elected me to 2. Denmark – 99.496 to Kenya Power the President because he is serve. I sourced for electricity 3. Switzerland - 98.373 pursuing what is right today. funding from thefts and He gave my constituents title Italy to create an 4. Netherlands - 98.352 leakages from elaborate water 5. Hong Kong SAR - 97.061 an ageing deeds. I’m your number one system resulting transmission loyalist.” in the growth of network. Kenya Mwingi.” Power was recently given Babu Owino, – Kalonzo leeway to bill for Musyoka system losses Embakasi East Member of Parliament following issuance of title deeds of informal settlements to it incurs for residents in his constituency by the President. electricity that HAMMER does not reach & TONGS homes and businesses.

‘INNOCENT’ BYSTANDER “This Mwingi water project “At least for once, it won’t be was undertaken WTF@#?! possible to be blamed for during Kibaki’s what someone said “started first term when Now that Biden’s Polls are dropping in Wuhan as a virus, landed Katuku was fast, he has agreed to get out of his minister of basement and start campaigning,“in in Italy as a pandemic and water. During the presidential ten days.” Sadly, that is a very slow now in Kenya as a multi-billion reaction time for a President. Our shilling corruption enterprise”. launch where I attended, Kalonzo beloved USA needs a much faster, Wacha niendelee kama (let me complained the smarter, and tougher response than continue being) spectator.” pipes used were that. Get out there today, Joe! the wrong plastic ones and thus Deputy President the project was William Ruto unsatisfactory.” — US President Donald Trump on the COVID-19 multi-billion scandal –Kivutha Kibwana

TOP TRENDING ON TWITTER: #ArrestCOVID19Thieves, #ReleaseChaosKibe, #UhuruLandReforms, #remakingnairobi

the estimated amount that THE BIG Kenya is using to build a NUMBER nuclear power plant in Tana River County Sh bn www.nairobilawmonthly.com540The Nairobi Law Monthly September 2020 • 9 Review

ANALYSIS AND CRITIQUE

THE CONSTITUTION AT 10 ince attaining independence in 1963, Kenya has undergone a constitutional crisis that has Challenges to sound S lasted over five decades. The rule of law has been sabotaged, subverted, incapacitated, undermined and alienated constitutional at every turn. Kenya’s post-colonial history was an era - it can be argued that it still implementation is - of dictatorship and pervasive, rampant, malevolent, endemic corruption. The colonial administration reflected orders from BY NDUNG’U WAINAINA Britain rather than consensus obtained from the local community leaders. This form of indirect rule kept governance at a distance, thereby centralizing, racializing and ethnicizing power. The British administrative system was adopted, along with copy-pasted laws, by Kenya’s post-independence regimes, which emulated the autocratic tendencies of the colonial administrators. This can be seen in the fact that Kenya’s post-colonial presidents maintained the same untouch- ability and unaccountability espoused in the colonial leadership. When Kenya gained independence, it only inherited and worsened the colonial crisis of governance with dire infringements on human rights and calamitous consequences on its economy. The state has been ethnicized by the political ethnic barons,who continue to mobilize the society at large around ethnic lines while deeply enmeshed in high level corruption and impunity to accumulate wealth and power. Kenya adopted a new Constitution in August 2010 with a view to building a new society and breaking away from the past. The various provisions, combined, address the challenge of inequities in development, poor governance, and service delivery. The Constitution provides opportunities for better development and realization of the aspirations of the people. The Constitution sought to put an President MWai Kibaki end to the 1963 independence constitution when he promulgated the Constitution in 2010. which for decades served the few rather than the many. However, disagreements

The Nairobi Law Monthly 10 • September 2020 and impediments to its implementation tation of the Constitution is proceeding opportunities for people to effectively continue to threaten what so many have without a policy to guide implementation. participate in issues that matter to them. died and suffered for. The factors under- Many of the laws required to facilitate The failure to effectively unbundle mining its application can be seen in the effective implementation of the Consti- functions is aimed at creating confusion country’s post-independence history. tution have also been enacted. However, in regard to devolved functions and their The new era, that is Kenya’s new con- many of them are too weak to further resources. This confusion led to a court stitution, was seen as a dagger to some the letter and spirit of the Constitution. case on the division of health functions and a beacon of hope to others, that would The failure to develop a policy based on between the two levels of government, drag some Kenyans kicking and screaming robust analysis of the process of imple- with the court emphasizing the need to and others dancing and singing into the mentation and the challenges experienced resolve issues regarding division of func- new age. Upon promulgation, a crucial has had several consequences. Some of tions through mutual consultation and process was needed to audit and review the laws passed have not been in line with cooperation. The failure to restructure all policies, laws and institutions in all the letter and spirit of the Constitution. and align the old order of government sectors with the key objectives of which Institutional conflicts over mandate, and especially ministries, departments and were to audit the county government general turf wars at different levels of departments to accord with and respect policies and legislation with the view of government, have characterized imple- devolution has had huge economic and analyzing their compliance with the Con- mentation thus far. Dispute resolution financial implications. stitution, and to review all national policy has not been effective, owing to lack of Conflicts have been a common feature and legislation with a view of ascertaining trust, suspicions and mistrust between of inter-governmental relations. There has the extent to which they conform to the the two levels of government, as well as been minimal dialogue on how to address devolved system of governance and to between the many players involved in the conflicts in intergovernmental rela- identify gaps and challenges and make tions, thereby undermining the principles recommendations for harmonization of the cooperative government envisaged and alignment. Further the unbundling When Kenya gained in the Constitution. and costing of the functions was to be independence, it only Restructuring of the provincial admin- done to ensure resources followed the inherited and worsened istration is not yet complete. Despite functions and also remove all elements the colonial crisis of sentiments that the administration is of duplications. governance with dire already restructured, the fact that the The constitution of Kenya was promul- infringements on human Ministry of Interior felt the need to de- gated in a ceremony witnessed worldwide rights and calamitous velop a policy to guide the process is and truly gave the sense that Kenya had consequences on its evidence that there are pending issues entered into a new era. This celebration economy regarding the restructuring. Undoubt- however, was to be short-lived as the edly, the restructuring process touches forces that had opposed the new constitu- implementation. on a number of stakeholders beyond tion reared their ugly heads. The first dent Both the National Assembly and the the national government. These include on the Constitution happened during its Senate have passed laws that tend to the county governments, independent promulgation day, when President Mwai undermine the Constitution. The National offices and institutions, the public who Kibaki invited Sudan President Al Bashir Assembly has on several occasions passed are consumers of national government (later ousted through a people’s coup and laws that go against the text and spirit of services and the private sector, among now being prosecuted for crimes against the Constitution such as the Constituency other stakeholders. humanity), who was an ICC indictee. It Development Fund, in security, finance, There are certain prevailing practices was a big blot and signaled danger in the media and communication, among others, of governance that negate the values and days to come. which have been publicly cited as failing principles enshrined in the Constitution; The frustration that has become the to meet the constitutional threshold, they tend to claw back the gains made. thorn in the flesh of Kenyans is the process forcing the courts to declare them un- Corruption and lack of prudence in use of of implementation of the new constitution. constitutional. public funds have never been more insidi- It has been sidestepped, emasculated, There is an absence of sufficient and ous. There is lack of effective enforcement undercut, diluted, destabilized, and has meaningful public participation in making of the law to constrain behaviour that demoralized the public at large. key decisions at both the national and threatens erosion of the principles of the What was seen to be a bright future for county government level. Both levels of Constitution. These and other factors our children has been raped and seems to government have (deliberately) failed continue to plague the implementation be slipping from our grasp. The implemen- to provide sufficient and meaningful of the new constitution and form the www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 11 Review priority for Kenyans of goodwill, who still overwhelmingly for an August election of politicians. fight to entrench the rule of law. but state actors are still trying to extend Sixth, the frivolous attempts at unnec- Firstly it is important to address the their terms in office in practice of their essary amendments to the Constitution deeply ingrained culture of authori- politics of the belly. are severely hurting the implementa- tarianism in the Kenyan state, which has Fifth, the arbitrary passing of laws tion process. All amendments to the been transmuted from Kenya’s colonial (example through omnibus Miscella- constitution must inherently enhance heritage. The Executive branch and the neous Bills) and corruption is a worrying the Constitution and not undermine its incumbency wield a lot of power and prospect that threatens the realization general spirit. The amendments and dis- have refused to accept its changing role of a new Kenyan society. Not only have agreements are the result of competing and responsibilities, thereby slowing members of Parliament been slow in interests. An example of such an amend- the pace of implementation. The powers passing Bills, but they are also out of ment would be the provisions relating to that be are in actual fact above the rule touch with the letter and spirit of the the gender representation requirement of law and exercise their powers in an Constitution. Various Bills have stalled in in Article 81(b), which would ensure the arbitrary manner with prerogative and Parliament after being drafted, making it full application of Article 27 and the not without discretion. difficult to institute any real reform. The more than two-thirds gender principle. Secondly, the law in Kenya has not been Parliaments are filled with non-reformers Seventh, the processes of constitu- stripped of all technicalities and Parlia- tional implementation are captured in the ment exercises its coercive powers to rule timelines outlined within the constitution the general public. Parliament has been The frustration that has itself. This has resulted in a rushed law passing laws to its benefits (consider their become the thorn in flesh and institutional reforms process where remuneration and CDF) while undermin- for Kenyans is the process bills pushed through parliament have ing other arms /organs of state through of implementation of the resulted in numerous errors and weak- abusing its legislative powers. new constitution. It has nesses creating disjointed, fragmented Thirdly, with the Constitution, Kenya been sidestepped, emas- and subverted constitution implementa- has attempted to change its legal and culated, undercut, diluted, tion. This has fundamentally weakened institutional framework, but the culture destabilized, and has the true sanctity of the Constitution of of subversiveness is so entrenched that it demoralized the public at Kenya 2010 as it is now. undermines the fundamental structure large Eighth, there has been the slow imple- and functionality of the legal systems. mentation of the security and judicial The culture of state and public service reforms. One of the many drawbacks impunity is so entrenched in the Kenyan affecting the implementation of the con- psyche that it has grown into a malignant The law in Kenya has stitution at the time of promulgation was cancer. not been stripped of the lack of a judicial arm capable of medi- Fourth, for decades, the political dis- all technicalities and ating the disagreements that arose. Prior course in this country has been driven by Parliament exercises its to the Supreme Court being established, vested political interests, non-reformism coercive powers to rule it was difficult if not impossible for the and tribalism, giving rise to special ap- the general public, while Judiciary to adjudicate any cases which pointments. Though there has been a undermining other arms warranted an interpretation of the new change in structure, the culture contin- /organs of state through Constitution at the time of promulgation. ues to be one that is reactionary and will abusing its legislative Ninth, there is a lack of resources as denounce and oppose any attempts to powers the bodies entrusted with overseeing create real and lasting change. This was the application and dispensation of the exemplified when politicians proposed constitution have been unable to insti- amendments to the Constitution of Kenya and are therefore inherently incapable of tute certain provisions for example with to alter the election date from August to instituting a reformist agenda that is the respect to the taskforce for devolution. December. The mismanagement and dis- new Constitution. National leadership is There is a lack of synergy between the agreements around this issue is hindering categorically not committed to the new various elements and commissions in the dispensation process. This proposal order and looks to implement legisla- charge of implementing the constitution. in itself underscores the continuation tion that is of a low standard in order to The formation of the various commis- of impunity and the lack of consensus protect the status quo. Parliament has sions has not been enabled to function on an election date threatens the very continuously watered down the leader- appropriately. The process has been fabric of Kenyan society. Kenyans voted ship and integrity law for self protection politicized and lacks the authenticity

The Nairobi Law Monthly 12 • September 2020 needed to institute reforms. THE CONSTITUTION AT 10 Finally, the National Government and its agencies have exercised undue power leverage against county governments, Auditing the Bill of including delaying and or cutting funds disbursements, enacting laws and taking administrative policy actions that coun- Rights under the ter the growth of devolution. There are a myriad national laws and policies that Constitution, 2010 are not in tandem with the Constitution, which need to be repealed while others require amendments in order to ensure BY KIBE MUNGAI conformity with the Constitution. This is well noted in devolved sectors such as health, agriculture, public finance, trade and industry, land, physical planning, urban development, natural resource management, water and roads which are functions that substantively fall under the jurisdiction of county governments. There are serious notable ambigui- ties in legislation, persistence of the old order in terms of laws, policies and practices across all sectors, inadequate consultation and cooperation between the two levels of government that can support and facilitate holistic development of laws and policies, and a dearth of capacity to facilitate effective development of laws and policies that are clear, coherent, comprehensive and compliant with applicable constitutional provisions. Further, the national government has systematically been passing laws and policies that essentially attempt to he Constitution 2010, for which recentralize devolved functions back to nearly 70 percent of Kenyans the National Government contrary to the voted to adopt on August 4, Constitution, prompting the Senate to take T 2010, did not come on a silver the National Assembly to Court several platter but after a long struggle, during times for passing laws that undermine which thousands of people lost lives, devolution. limb, property and suffered State terror It is possible for Kenya to move for- and humiliation. And so in the wake of ward, but citizens must exercise their the promulgation of the Constitution constitutional rights and the right to In human rights prac- on 27th August, 2010 President Mwai self-determination to enforce a free tise what matters is Kibaki rightly observed:- and equal society as provided in the not the enumeration “Many Kenyans have invested heavily Constitution of Kenya 2010 — a society of rights per se but over the years towards the realization of where the rule of law is the standard their actualization in this constitution. Some paid the ultimate to which all institutions and persons real life situations. price as they sought freedom for their are held. ( On this front, the Bill compatriots. Every Kenyan who con- — Writer is Executive Director, Africa Coun- of Rights scores in tributed their views to the constitutional- cil on Human Security; @NdunguWainaina every way making bodies, debated the proposals www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 13 Review upon which the new constitution was that the basic rights and freedoms are situations. On this front the proposed made, voted in the referenda of 2005 inherent to all human beings and not Bill of Rights scores very well in three and 2010 and ensured peace prevailed privileges granted by the State. ways. First, it contains few clawback in our country, are central architects of At a general level, the 2010 Constitu- clauses and grounds for derogation our new dawn.” tion enshrines three broad categories of from fundamental rights and freedoms It is no surprise therefore that the rights and freedoms. First are substan- compared to the former Constitution preamble to the Constitution declares tive and procedural political rights such adopted at Lancaster House in Britain that we adopted and enacted it to honour as right to life human dignity, privacy, in 1963 and subsequently amended to those who heroically struggled to bring liberty, fair hearing and freedoms from introduce a repressive dictatorship. freedom and justice to our land and to discrimination, slavery, servitude and Secondly, Articles 20, 21 and 22 set out realize “the aspirations of all Kenyans forced labour or freedoms of expression, progressive standards for application, for a government based on the essen- media, access to information, associa- implementation and enforcement of the tial values of human rights, equality, tion, movement and residence and of Bill of Rights. Thirdly, the Constitution freedom, democracy, social justice and course protection of right to property. deepens the independence of the judi- the rule of law”. The second category are what are ciary and specifically enjoins courts to Furthermore Article 10 sets out the generally known as social and economic enforce the Bill of Rights in a purposive national values and principles of gover- freedoms that include labour relations, way that will ensure real protection for nance that bind all state organs, state consumer rights, rights to adequate those in need. officers, public officers and all persons housing, clean and safe water, social se- As we mark the tenth anniversary of whenever any of them applies, interprets curity, education, emergency treatment the People’s Constitution, it is an op- or implements the Constitution, any law portune moment to audit and reflect or public policy. These values and prin- on the performance and efficacy of ciples include “human dignity, equity, Viewed against the back- the Bill of Rights. The record is not as social justice, inclusiveness, equality, drop of systematic state- rosy as many Kenyans hoped when we human rights, non-discrimination and sponsored human rights lined up in our thousands to vote for the protection of the marginalized”. violations, the real value of Constitution after a protracted struggle The book ‘They Lived to Tell’ is a heart- the Bill of Rights was that it that spanned over two decades. Broadly rending account of gross human rights would check against abuse of speaking, Kenya is far from becoming the atrocities committed during the Nyayo power by the police, adminis- human rights state that Kiraitu spoke era against hundreds of activists, who trative officials, the military about in the wake of NARC’s victory were lucky enough to survive to tell their and other armed or coercive in 2002 over the Nyayo dictatorship. tales. Thousands more did not survive agents of the State. This is More specifically, there are three major to record their harrowing experiences yet to become a reality shortcomings that have obstructed the in Nyayo House and other dark places free society and nation envisaged in the where those who dared to express dis- and freedom from hunger and such other Bill of Rights from becoming a reality. senting views on very basic public issues good things. The third category includes The first shortcoming relates to the were murdered in cold blood by state what many law textbooks describe as challenge of implementing the Constitu- agents. In 2002, when Kenyans united to controversial rights because they tend to tion. The main duty of the High Court is deal KANU a decisive electoral defeat, attract contentious arguments of moral to adjudicate cases concerning the Bill many people hoped that such atrocities and philosophical nature. Such rights of Rights and to protect the Rule of Law would never happen again within our include the right to qualified abortion by ensuring that all wielders of power shores. How wrong we were! under Article 26 (which also pretends act within the boundaries of the law. In early 2003, Kiraitu Murungi, then to settle the philosophical question of In recognition of the fact that Kenyans Minister for Justice and Constitutional when life begins by declaring that it be- have no easy access to High Court sta- Affairs, spoke about Kenya becoming a gins at conception), rights of minorities tions, Article 23(2) of the Constitution human rights state upon the enactment and marginalized groups, reproductive requires Parliament to enact legislation of a new constitution. It is against this rights and the right to found a family with to give original jurisdiction in appropri- background that Chapter 4 of the Con- a member of the opposite sex. ate cases to subordinate courts to hear stitution provides for one of the most It is prudent, however, to sound the and determine applications for redress comprehensive and progressive Bill of caveat that in human rights practise what of a denial, violation on infringement of Rights, more so because for the first time matters is not the enumeration of rights the Bill of Rights. Unfortunately, after the supreme law declares in Article 19 per se but their actualization in real life ten years Parliament is yet to enact

The Nairobi Law Monthly 14 • September 2020 this enabling legislation which means of legislations that negate or subvert things. The most we can say is that that only a small section of Kenyans the substance and spirit of the Bill of rights talk has legitimised individual can actually file cases concerning any Rights on the pretext of state security selfhood and authenticated every form alleged violation of the Bill of Rights. and maintenance of public order and of discontent with injustice, ascribed and The second challenge is that the Bill social decency. These laws are too many inherited status. Rights language has of Rights is yet to become an effective to discuss in this article but suffice it to been central not simply to the production touchstone and imprimatur of how state that their invariable effect has been of modern individuals. There are many power is exercised in Kenya. Viewed to weaken the efficacy and sanctity of ways to become an individual, but the against the backdrop of systematic the Bill of Rights. desire to be one on one’s own terms is a state-sponsored human rights viola- Back in 2020, President Kibaki im- universal aspiration. To the degree that tions, the real value of the Bill of Rights plored us to appreciate that the imple- it has helped to legitimise and empower was that it would check against abuse mentation of a constitution is a process that aspiration human rights has allied of power by the police, administrative and “it takes time to implement the itself with a need shared by several bil- officials, the military and other armed rights contained in a new chapter”. Ac- lions of our fellow creatures.” or coercive agents of the State. Unfor- knowledging all this, we must celebrate In Kenya, we should never forget that tunately, this is yet to become a reality the fact that the Bill of Rights remains there was a time when the Constitution because at the highest echelons of the intact and it cannot be amended with- was almost regarded as a seditious Kenyan State there is considerable re- out a Referendum. This means that document. Lawyer Mirugi Kariuki and luctance to accept the Bill of Rights as the challenges of implementation can Dr. John Khaminwa were detained for a legitimate bar to the orthodox style of easily be surmounted so long as we put defending clients who had taken the exercising State power in colonial and Constitution seriously and thereby post-colonial Africa. sought to vindicate its majesty in court. As illustration, in early 2016 lawyer We must celebrate the And when Dr. Kamau Kuria sought to Willy Kimani, his client Josphat Mwenda fact that the Bill of Rights secure Mirugi’s constitutional rights, and taxi driver Joseph Muiruri were remains intact and it can- he, too, was detained. Indeed, as a law kidnapped outside a court in Mlolongo, not be amended without a intern, I recall hearing chuckles in a executed by the police shortly thereafter Referendum. Kenyans are Nairobi court when Dr. Kuria, referred to and their bodies dumped in the Ol Donyo more conscious of their a constitutional provision in a case that Sabuk River. Thus the real tragedy for human rights and expect did not appear to have a constitutional this country is that the 2010 Constitution the wielders of power to bearing at first sight. And this was only could not save Willy Kimani and his col- respect them. The lan- in 1997 not 1987! leagues. Equally tragic is that whereas in guage of human rights Today, constitutional litigation is a the 1980s my senior colleagues Dr. John is a dominant feature of mainstream discourse as opposed to Khaminwa, Senator James Orengo, Dr. Kenya’s political life and a trade of political rabble-rousing by Gibson Kamau Kuria, Paul Muite, Gitobu legal adjudication. “political lawyers”. The most conserva- Imanyara and Mirugi Kariuki expected tive lawyers who barely two decades ago that a habeas corpus application would in power a government that respects espoused and defended single-party result into a court appearance for their human rights and freedom. We must despotism now publicly wear the garb clients, in 2016 a habeas corpus ap- also hasten to note that courtesy of the of “constitutional lawyers” with obvious plication I filed in Nairobi High Court 2020 Constitution today, Kenyans are pride. The long journey to freedom, or for Abdul Karuri Mwangi, an official of more conscious of their human rights and rather to the road of freedom, was ap- Pumwani Riyadha Mosque Committee expect the wielders of power to respect parently worth the broken limbs, shat- in Nairobi – who was suspected to be a them. Thus the language of human rights tered careers and liquidated souls. That collaborator of Al Shabaab terror group – is a dominant feature of Kenya’s political in Kenya the language of human rights was not enough to secure his production life and legal adjudication. has become a universal and common in Court dead or alive and in the end his This fact is more important than it heritage of all Kenyans is perhaps the family had to abandon the case after the seems at first mention. Michael Ignatieff, best monument to those who made the main witnesses of his abduction were a prolific writer in human rights law, silent human rights revolution a reality intimidated from swearing the affidavits observes: “The Universal Declaration as embodied in Chapter 4 of the 2010 required to prove the case. universalised rights talk at least allows Constitution. ( The third shortcoming for the Bill of people to speak the same language but — The writer is a constitutional lawyer Rights concerns the frequent enactment it doesn’t mean they will say the same ([email protected]) www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 15 Review

onversations in Kenya have started around the upcoming 2022 presidential elections. C Elections in Kenya tend to be highly contentious and there is often concern that, in some places, violence may erupt. Political violence has a long history in Ke- nya. It extends back to the British colonial state’s use of violence to control people, expropriate land, and suppress dissent. In independent Kenya, the regimes of Jomo Kenyatta and Daniel arap Moi continued to use violence as a way to control land and intimidate political rivals. With the reintroduction of multi-party elections in 1992, politicians used violence to shape electoral outcomes. In the 1992 presidential elections, around 1,200 people were killed and 300,000 people displaced from their homes. Fol- lowing the 1997 elections, between 300 and 1,000 people were killed and about 10,000 were displaced. And in the 2007 general elections, Kenya experienced its most violent election to date: around 1,500 people were killed and another 600,000 displaced. Studies of political violence tend to Opposition supporters protested against Kenya’s national election results in Kibera, focus on how the electoral incentives of Nairobi in 2017. Credit: Tony Karumba/Agence political leaders shape the use of violence. France-Presse — Getty Images. But the occurrence of violence is often a joint production between political elites ELECTION VIOLENCE and ordinary citizens. The participation of ordinary citizens was particularly stark after Kenya’s Why do people 2007 general elections. People set fire to homes and farms, burned tyres in the roads, and in some cases, killed and raped. participate in Violence escalated when the incumbent candidate, Mwai Kibaki, was announced election violence? as the president re-elect. The main opposition party, the Orange Democratic Insights from Kenya’s Movement (ODM), disputed the results and party leaders encouraged members to mobilise. Protests quickly turned violent 2007 elections and escalated across the country. Importantly, however, there was significant local variation in the sites and BY KATHLEEN KLAUS scale of violence. This raised questions that are central to my new book, “Political Violence in Kenya: Land, Elections, and

The Nairobi Law Monthly 16 • September 2020 Claim-Making”. Specifically, I ask: how struggles over access to land and political munities in the coastal counties of Kwale do leaders organise political violence, representation. and Kilifi experienced far less violence and more so, why do ordinary citizens Many Kalenjin have come to view the than those in the Rift Valley. participate? Rift Valley as their ancestral land and see I find that a key mitigating factor was I carried out several years of fieldwork Kikuyu as ethnic outsiders. Many Kikuyu, the significant land inequality between a for the book. This included hundreds of meanwhile, argue that because they have small, but powerful group of “landlords”, interviews and a household survey with purchased the land and hold title deeds, alongside a large population of landless residents across the Rift Valley and Coast they are the rightful claimants. “squatters”. regions. I found that electoral violence For instance, after the results of the Landlords tend to be of Arab, Indian, is most likely to escalate where there is: 2007 elections were announced, violence or European descent, while most landless moderate (rather than significant) inequal- erupted when Kalenjin residents from identify as Mijikenda. The main cleavage ity in land rights between two nearby Mauche crossed into the neighbouring area line tends to be class, rather than ethnicity. and ethnically distinct groups; salient of Likia and burned property belonging Though the Mijikenda are the electoral and contentious narratives around land to Kikuyu residents. majority, such significant land inequality between these two groups; and a strong However, a short distance away in means that their own local leaders tend leader who can use these land narratives Ogilgei, where Kalenjin residents border to remain beholden to the interests of the to convince or compel ordinary citizens the mostly Kikuyu community of Kerma, landed elite, rather than their land-poor to participate in violence. violence never escalated. constituents. Election violence tended to happen Hence, while there are contentious where a group believed that their par- land narratives, many citizens tend to see ticipation in violence would advance their elected leaders as weak: unwilling or their personal interests, or those of their To prevent or mitigate unable to alter land rights in their favour. community. violence, there needs to This means that elections are far The book highlights the importance of be a better understanding less high-stake than in the Rift Valley land tenure reform as a key policy tool of how and why particular where many believe that the outcome to mitigate and prevent violent conflict narratives – built around determines who gets evicted and who in Kenya. It can also help to explain or identity, rights, and citi- can remain. anticipate patterns of election violence zenship – gain resonance based on local inequalities, for instance compared to others. Broader implications over land, jobs, or other resources. While the dynamics of violence that I describe in the book draw specifically from It’s about land the case of Kenya, there are a number of In Kenya, and many other agrarian-based broader implications. The book can help economies, control and ownership over A key difference between these two explain or anticipate patterns of election land shapes identity, livelihood, and cases is the degree of land tenure secu- violence. This dynamic has played out in power. Yet land tenure institutions are rity, and specifically, what I describe as countries such as Zimbabwe, Côte d’Ivoire, often weak and highly politicised. This “moderate land inequality”. the Democratic Republic of Congo, Indo- can give rise to certain narratives that Residents in Likia and Mauche are small- nesia, and Bangladesh. elites and citizens can use to coordinate scale farmers. But in 2007, most Kikuyu It also highlights the importance of the use of violence. residents in Likia held title deeds while strengthening land tenure institutions In Kenya, for example, the belief that most Kalenjin farmers in Mauche did not. so that a citizen’s access to land does not “outsiders” have invaded the ancestral For many Mauche farmers, this lack of hinge on a particular electoral outcome. land of “insiders” has justified violent tenure security shaped a defensive logic: Finally, it provides insights into how evictions, often during elections. “evict them before they can evict us”. political elites use particular appeals to I compared areas where ethnically- By contrast in Ogilgei, both Kalenjin divide populations, consolidate political distinct farming communities border one and Kikuyu residents held title deeds. support, and in some cases, incite violence. another. I selected several cases from Neither side linked the election outcome In order to prevent or mitigate violence, Nakuru County, in the central Rift Valley, with their tenure security, and thus had there needs to be a better understand- where predominantly Kalenjin farming few reasons to engage in violence. ing of how and why particular narra- communities bordered Kikuyu commu- tives – built around identity, rights, and nities. Political leaders have long pitted Coastal dynamics citizenship – gain resonance compared these communities against one another in In another example, I ask why many com- to others. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 17 Review

VIRTUAL BOTTLENECKS enya ordered the closure of courtrooms to the public in April in keeping with gov- Kenya is struggling K ernment measures to limit gatherings and mitigate the spread of COVID-19. Chief Justice David Maraga to deliver justice highlighted the risk posed by heavy human traffic. He also pleaded the case that most online: what needs judicial officers are older, and therefore fall into a more vulnerable category. to be done With judicial services scaled down, priority was given to applications that the courts deemed to be urgent. The immediate result was that those who couldn’t BY MERCY MUENDO demonstrate urgency could not access the court system. Access to justice was also impeded by rolling curfews imposed to limit the spread of COVID-19. Nor was the limited rollout of information technology good enough. This led to the Law Society of Kenya immediately petitioning before court. It argued that courts offer a dispute resolution service to the public without discrimination. They must therefore operate uninterrupted so as to check against excesses by the executive and reinforce the principle that there is no temporary suspension of the rule of law and principle of legality. To this end, the law society argued, legal services should be declared an essential service. The court ruled in society’s favour. The ruling meant that lawyers would have unrestricted movement to access clients and court services. They would also be able to traverse the country and access areas under lockdown. As a result of the ruling there was an increase in the number of court sessions and tribunal hearings. Registry services also resumed. The justice council, led by the chief justice, also ordered the presentation of suspects in court within 24 hours of arrest as required by law. But the question remains as to whether all Kenyans are now able to access justice as they did before the COVID-19 outbreak.

Chief Justice David Kenani Maraga Especially if we take into consideration explaining the importance of that Kenya’s internet coverage is unevenly E-Court filing during a press distributed. For Kenyans to access the conference. | PHOTO COURTESY judiciary, they need to be in a region

The Nairobi Law Monthly 18 • September 2020 where there is electricity and internet coverage. In the rural or upcountry areas, there is an issue with the internet. Proper technology infrastructure should be in- stalled to increase internet coverage. This infrastructure is paramount to improve access for Kenyans to the judiciary.

Adoption of a digital judiciary The judiciary functions to safeguard the rule of law, equality and justice with minimal delay. It’s required to provide mechanisms for all the litigant classes to access its services. The Kenyan judiciary has sought to address this partly by operating temporary open-air courts in strategic places where social distancing can be observed. In July, the chief justice launched an e-filing system which enables litigants to file and track their cases. The judiciary also conducts virtual court sessions with prisoners through video link sessions for matters such as bail and plea taking. Most proceedings are taking place on online platforms. Typically, court clerks A court prosecutor send Skype, Zoom, or Microsoft Teams analyzes a case through a links for a court session to the parties Zoom video call. involved. The litigants turn up at an appointed time and the application hearing litigants. The system requires one to management system for judicial officers takes place. In areas outside Nairobi register a case using a law firm or lawyer. and litigants. Such a system must be user metropolis, some courts are allocating The legal documents earlier prepared are friendly to self-represented consumers. litigants time slots to attend matters uploaded and court filing fees paid. The Underpinning all these is an electronic within the court premises. litigant then awaits the activation of the filing system that safeguards against Before the pandemic, higher courts, court file to be granted court audience. cyber-attacks. This is the case in the UK including the Supreme Court, had already This means that if litigants cannot find and the US, where disputes can be settled put in place guidelines allowing for digital a lawyer or understand the legal termi- online. They already have e-filing and case proceedings. The guidelines allow for the nologies, they won’t be able to access management systems that are efficient filing of applications and submissions via the judiciary. and well utilised with accountability and email and the judgement is posted to the All these could add to a huge judicial authenticity processes. participants. backlog. Currently, the earliest court Kenya needs not just the necessary But there are challenges. Most people dates for new hearings are available from laws and regulations but the information do not have access to or familiarity with 2021. Businesses that have been heavily and communication technology infra- the technology used by the courts. Typi- affected by the COVID-19 pandemic will structure. For example, there should be cally, one requires access to a computer, a not be able to receive relief soon and might cyber security software and hardware good internet connection and electricity. lose hope in the judicial system. free from software tagging. It also needs Depending on location, these require- institutional capacity to monitor its use ments disadvantage a large number of Way forward by litigants, the judiciary and the public people, especially in rural regions. For the judiciary to become fully digital prosecution office. ( Self-litigants are likely to face challenges it needs an everyday court management — (This article first ran in The Conversation) with the new e-filing platform because system of judges. This would be sup- Author is a Lecturer, Information Technol- the system is geared for representing ported by an electronic filing and court ogy and the Law, Daystar University www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 19 Special Report

A NEW NARRATIVE The foreign aid game is changing: these are the opportunities for Africa

BY DAN BANIK AND dichotomy since the introduction of NIKOLAI HEGERTUN the ambitious Sustainable Develop- ment Goals (SDGs) in 2015. Indeed, the here are growing signs that the development goals have strengthened aid relationship between the the narrative that the responsibility Global South and the Global for achieving sustainable development T North is changing fast. Many applies to all countries. Although each traditional Western donors are re-eval- country may face distinct challenges, the uating the role of aid while keeping a interconnectedness of global progress close eye on their own national interests. means that we are all in the same boat. These changes may not be all bad. Many African countries have engaged Since the turn of the century, aid in South-South cooperation with major policies have become both complex and powers like China and India. In building fragmented. Four major international large infrastructure projects, China high- development policies and goal-setting lights its impressive achievements in projects were launched in 2015 alone. lifting over half a billion people out of Africa Summit held in January 2020 These are the Paris Agreement, the Addis poverty. was an attempt to advance new initia- Ababa Action Agenda on Financing for India showcases the successes of tives and commercial partnerships with Development, the Sendai Framework for its green revolution and advances in the continent. Disaster Risk Reduction and the 2030 information and communications tech- And there is considerable uncertainty Agenda for Sustainable Development. nology and affordable healthcare. Both on the extent to which Nordic generosity The global development agenda now countries also flaunt their ability to of tying aid with “soft power” is com- includes multiple goals on poverty reduc- develop affordable, available, and adapt- patible with maintaining a well-funded tion, economic growth, the environment able technology and their established welfare state and achieving policy coher- and climate change. This unprecedented track record of solving developmental ence on sustainable development. The international policy overload is radically challenges. climate crisis has made it abundantly altering the aid landscape. With the growing global economic clear that the oil producing and generous As the world’s most developed coun- power and influence of China, India and aid providers like Norway cannot “lead” tries craft a new narrative that more other middle-income countries, develop- the global development agenda without strongly links aid to climate change and ment diplomacy is being reconstituted. undertaking bold initiatives at home. humanitarian crises, African countries It is not just the West but also other can tip the balance in their favour. This A ‘new page’ actors that are showing interest in Africa. can provide an opportunity to shape the The UK has often in the past shown a Russia has launched a major strategy to future of North-South relations. soft spot for its former colonies and open “a new page” and make the whole been hailed as a generous and innovative continent a foreign policy priority. Less talk of rich-poor country global leader. But it is now also openly Africa is thus attracting renewed There has been less talk of the rich-poor touting the national interest. The UK- global interest and rivalry among world

The Nairobi Law Monthly 20 • September 2020 THE ROLE OF AID

Three major challenges the primacy of the national interest in We identify three broad sets of concerns political decision making. One evident as African states become entangled in result has been the Trump administra- new and rejuvenated relationships with tion’s reduced support for multilateral major world powers. organisations. Another is the 20% cut in The first relates to fears of rising debt. the UK’s aid budget. International scholars and organisa- The wave of refugees into Europe tions have argued that a renewed com- in 2015 also contributed to an inward- mitment to debt relief should be a top looking mentality in many countries. The priority for the international community. result was a reallocation of aid budgets to Concessional loans and foreign exper- cover in-donor costs of housing refugees. tise have been used to build expensive There was also more explicit alignment infrastructure projects that African of aid with national interests such as countries cannot afford. Recent political commercial and security concerns. debates in Zambia and Nigeria illustrate How African leaders address these the growing concern over repaying three overarching sets of concerns debts to China. There are also concerns will greatly determine the future avail- over the environmental and financial ability of development finance on costs of Russian activities on the con- the continent. tinent. The willingness of Western powers to provide debt relief is also under Renegotiate terms question. A more explicit emphasis on the national The second relates to the increas- interest may encourage donor coun- ingly tense US-China relations. Paired tries to play “the long game” in Africa. with this is the lack of commitment to Ambitious foreign policy priorities and democratic principles in some of the innovative development programmes countries that are seeking closer ties may even achieve cross-political support with Africa. The Global North believes from taxpayers in parts of Europe where that the activities of China, Russia and aid policy is contentious. But increased others will weaken efforts to promote emphasis on the national interest also and strengthen good governance and exposes the seemingly altruistic “donor- As the world’s most liberal values. recipient” relationship. developed countries craft An illustrative example is the feud be- Courting closer ties with Africa will a new narrative that more tween Russia and China on the one hand not simply be about bringing gifts, but strongly links aid to climate and the African group of 3 within the UN also expecting reciprocity in some form. change and humanitarian Security Council. While the three – Côte But Western critiques of Beijing’s Belt crises, African countries d’Ivoire, Equatorial Guinea and South and Road Initiative will ring hollow in can tip the balance in their Africa – sought a strong council back- the absence of viable and state-led favour. ing for civilian rule following President alternatives from the West. Omar al-Bashir’s ouster in April 2019 Historically, many African states have the two permanent members demurred. had to accept the policy conditional- Kenya has shown that it can take a ity of donor alliances. There is now a tough stance against both the US and unique opportunity to demand what powers. Some even warn of a “new China. It recently rebuffed US efforts Africa needs. This is the moment to scramble for Africa” involving major to boycott Huawei and highlighted play external actors off against each and emerging powers who are all vying the poor quality of medical equipment other. The continent’s major economies for the continent’s attention. Although it had imported from China. must also take steps to enable smaller aid flows may decrease over time, there A third area of concern is greater un- countries to be more assertive. is now more interest in boosting trade certainty on the benefits of continued With a diverse field of competing world and investments. The key question for globalisation. The political turmoil in the powers involved, and in asserting its own us is how African countries can use this US and parts of Europe has strength- development vision, African unity and growing interest to their advantage. ened the voice of those arguing for coordination is of utmost importance. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 21 Special Report

CLIMATE CHANGE Africa’s most important heritage sites could be permanently lost to climate change Without significant intervention some of Africa’s most BY JOANNE CLARKE, important heritage will be lost as a result of the impacts of ELIZABETH EDNA WANGUI, climate change over coming decades. GRACE W. NGARUIYA AND NICK BROOKS

ery few academics or policy makers are talking about the impact of climate change on V heritage. Yet heritage is essential for social wellbeing, for identity creation, for safeguarding traditional knowledge and livelihoods and for sustainable development. The conversations taking place are mainly on the effects of climate change in wealthier countries. One recent study estimates that only 1% of research on the impacts of climate change on heritage is related to Africa. Yet climate change has already resulted in loss and damage to African heritage. Research for the Intergovernmental Panel for Climate Change’s sixth assessment report points to a total lack of quantifiable data on the impacts of climate change on heritage in sub-Saharan Africa. Without significant intervention, some of Africa’s most important heritage will be lost as a result of the direct and indirect impacts of climate change over the coming decades. There is a need for research into the impacts of climate change on different forms of cultural heritage in Africa, and to highlight the possible harmful effects these losses will have on society more generally. The next 10 years will be a critical period in which research agendas can be developed that will have a practical application

The Nairobi Law Monthly 22 • September 2020 CONSERVATION

water stand of the Inland Niger Delta has meant high quality mud has become scarcer. Mud bricks must be sourced further afield at greater cost, which locals simply can’t afford. The result is buildings being repaired in cheaper materials such as concrete and fired clay bricks. Traditional building methods are often perceived as being at odds with modernity and globalization. But earthen buildings such as those at Djenné emit fewer green- house gases, consume less energy and maintain a high level of internal thermal comfort. They are more sustainable against climate change than brick and breeze block construction. Sabratha, Libya Some hope Heritage has unseen potential. Tradi- for the management of African heritage in Tanzania, Mahilaka in Madagascar tional custodianship and community in the face of climate change. and Suakin in Sudan. A combination of engagement will be at the forefront of a underlying geology and low elevation sustainable futu. The good news is that The bad news make these sites extremely vulnerable to five years ago the World Heritage Conven- Coastal erosion and sea-level rise have coastal erosion. tion adopted Unesco’s World Heritage damaged African World Heritage Sites. The In addition, low-lying World Heritage and Sustainable Development Policy. The Roman city of Sabratha on the Libyan coast Sites that are densely populated, such policy is built on the principles of human and the colonial forts along the coastline as Lamu Old Town and the Stone Town of rights, equality and long-term sustain- of Ghana are slipping into the sea. Natural Zanzibar, are located in regions of Africa ability. It’s potentially groundbreaking for sites are also under threat. Relict Guinean predicted to be most severely impacted African heritage, which has been beset by coastal forests have largely disappeared, by shoreline retreat. a colonial legacy of centralized heritage partly through coastal erosion. Further inland, the World Heritage management. By 2050, Guinea, The Gambia, Nigeria, mud-built town of Djenné, on the Inland It represents an opportunity for the res- Togo, Bénin, Congo, Tunisia, Tanzania Niger Delta, is suffering multiple threats, toration of traditional custodianship and (including Zanzibar) and the Comoros exacerbated by climate change. Rock art local community engagement in heritage will all be at significant risk from coastal sites in the Golden Gate Highlands National management. As heritage is reinserted erosion and sea level rise. Park in South Africa are experiencing bio- into local lifeways, communities are able Villages and towns associated with deterioration due to microbial activity to re-engage with traditional ways of do- the historic Swahili Indian Ocean trad- arising from increased humidity. ing things, which are often much more in ing networks are all forecast to suffer But African heritage is predominantly tune with the environment. In this, African significant loss from sea-level rise and lived heritage, which presents unique countries have the opportunity to be at coastal erosion in the coming decades. opportunities for heritage conservation. the forefront of sustainable development. These are almost all located on the coasts And in our intergovernmental climate of Mozambique, mainland Tanzania, Ke- Why a site like Djenné matters report, the Africa chapter has for the nya, the Comoro Islands, Zanzibar and Take Djenné in Mali, a town composed first time included heritage in its assess- Madagascar. almost entirely of earthen buildings. Be- ment. It identifies heritage as critical for A host of unique heritage locations cause of its unique vernacular architecture a sustainable future. are built on coral, sand or mud—all at and its iconic mosque, it was inscribed on Resetting the research agenda towards a elevations less than 10 meters above the World Heritage List in 1988. There has sustainable heritage in the face of climate sea level. These include Ibo Island in been a conspicuous degradation of its mud change will not only enable reengage- the Quirimbas Archipelago in northern architecture. The reasons are complex but ment with the past, but will help mitigate Mozambique, Shanga and Pate islands climate change has definitely worsened the impacts of climate change beyond in Kenya, Pemba and the ruins of Kaole its degradation. The lowering of the high heritage. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 23 Special Report

RIGHTS UNDER TECH Who thought it was a good idea to have facial recognition software?

BY MARK MACCARTHY

ecounting her experiences working with Barack Obama as a candidate and as presi- R dent, Alyssa Mastromona- co says he would often challenge his staff with the question, “Uh, who thought this was a good idea?” It was an attempt to ensure his advisers took personal responsibility for the recommendations they made, especially when things went wrong. It’s about time someone asked that question about facial recognition software. It would oblige the developers and users of the technology to explain exactly why they think it’s a good idea to create something with that level of power. Asking that question of facial recognition software is one way of participating in what legal scholar Frank Pasquale calls the “second wave of algorithmic accountability.” In the first wave, computer scientists working on applied artificial intelligence (AI) algorithms asked how the tools could be made more accurate and less biased. In the current second wave, advocates and critics are asking developers and users why they are using the technology at all and whether the payoffs are really worth it. Major manufacturers of facial recognition software, including Microsoft, Amazon, and IBM, have responded to this second-wave thinking by pausing or abandoning their distribution of facial recognition technology to law enforcement. What is good for government use of the technology is good for the private sector as well. Asking how facial recogni-

The Nairobi Law Monthly 24 • September 2020 AI GOVERNANCE

tion software will be used commercially photos used for this purpose. Although, sion, the Ninth Circuit Court of Appeals strikes me as the right way forward. that is not what the statute demands—it said a statutory violation may cause a Despite its rapid evolution, a number requires affirmative “opt-in” consent. concrete injury if (1) the statutory provi- of things stand in the way of this values- There is also no indication that Microsoft, sions were established to protect the based idea of technology management. Amazon, or Google have taken steps to plaintiff’s concrete interests, and (2) the One of those obstacles is consent. For the notify all data subjects and obtain their violations alleged actually harm, or present commercial use of facial recognition tech- consent before collecting images from a material risk of harm, to such interests. nology data, subject consent seems to be IBM and using them to train their facial An intangible harm, like the violation of a the main mechanism adopted to manage recognition software. statutory privacy right, could therefore be the new technology. Another obstacle is grounds for a lawsuit. As the Ninth Circuit private right of action. Combining con- The Facebook Precedent said, “Using facial-recognition technology sent with a private right of action creates Legal precedent involving Facebook sug- without consent (as alleged in this case) conflicts to obtain the former. Previous gests that Microsoft, Amazon, and Google invades an individual’s private affairs and legal battles suggest a private right of ac- should be worried. In February of this year, concrete interests.” tion would likely lead to expensive legal Facebook settled a similar BIPA lawsuit Facebook wasn’t done. There was a split disputes—which is worth examining as for $550 million (Sh56 billion), one of the in the circuits. The Second Circuit inter- an almost paradigm case of technology largest settlements in history, after try- preted Spokeo differently, requiring tan- mismanagement. ing and failing to acquire a review of the gible harm as a concrete injury. Facebook Ninth Circuit decision. tried to get the Supreme Court to take its The Illinois Biometric Privacy Iden- Facebook had provided an opt-out case to resolve the split, but in January of tification Act option for users of its facial recognition this year, the Supreme Court rejected the The paradigm example is the Biometric software, but the statute specifies “opt-in.” appeal without comment. In February, Privacy Identification Act (BPIA), a 2008 After the suit began in 2016, it changed to Facebook settled. Illinois state law. It is a sweeping law for Commentators predicted that this would all private parties (but not state or local open the floodgates to copycat class-action governments) that collect or use biomet- “It would oblige the suits. Sure enough, the new cases against ric information, including facial images, developers and users Microsoft, Amazon, and Google appeared fingerprints, and retinal scans. BIPA of [facial recognition] in August. requires notice and affirmative written technology to explain consent for the collection and use of this exactly why they think The way forward information. It provides for a private right it’s a good idea to create To the average person, this back and forth of action and damages of up to $5,000 something with that level about legal standing is bewildering. It is (Sh500,000) per violation. With millions of power.” hard to believe that the fate of a promis- of users involved in some cases, the law ing new technology should depend on the exposes technology companies to fines way judges might parse the meaning of in the billions of dollars if plaintiffs can an opt-in option but still faced potentially “concrete injury.” But the bottom line is establish that they were injured. millions of violations for use of its software legal trouble for companies and less than Recently, three cases against Amazon, prior to making the change. Legal exposure fully rational policy for the country. We Google, and Microsoft were filed in Wash- easily ran into the billions of dollars. must change direction and find a new way ington and California, which makes them Facebook argued that even though there forward to manage the development and subject to the Ninth Circuit’s generous might have been a technical violation of introduction of facial recognition. interpretation of standing. The cases the statute, this was a case of no harm, no The time is ripe for several steps toward allege that the companies violated the foul. The company had a colourful argu- a national and even global strategy for requirement to obtain affirmative consent ment, too. Under the 2016 Supreme Court facial recognition. One step would be a when they used images from IBM to train Spokeo decision, a statutory violation is nationwide, pre-emptive facial recogni- their facial recognition software. IBM had not sufficient for a lawsuit—a plaintiff tion law. Commercial uses of facial tech- initially gathered the photos from Flickr has to show concrete injury as well. In this nology infringe on interstate commerce and painstakingly labelled them to enable case, Facebook argued there had been no and should be regulated at the national facial recognition developers to improve concrete injury in the difference between level. Conflicting state laws should be pre- the fairness and accuracy of their pro- the opt-out choice it offered its users and empted, creating a single national policy grams. IBM says it provides opportunities the opt-in consent required by the statute. for all. This would include BIPA in so far as to “opt-out” for those who don’t want their In the August 2019 Patel v. Facebook deci- its requirements are inconsistent with the www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 25 Special Report

new policy set out in the national statute. The second step would be to ensure that a federal agency would be responsible for implementation and enforcement, rather than through private rights of action with potentially unlimited liability for commercial users of facial recognition technology. Sensible management of a new technology is not possible when it can be disrupted by the oddities of court interpretations, the uncertainties of class certifications, and a myriad of other legal minefields. One further step is to question whether data subject consent is the right way to protect people from the potential harms associated with applications of facial recognition software. Of course, no one should be forced to buy a new technology if they don’t want it. But should we really have to ask every individual whose information technology. might be used to train a new algorithm “Even if a facial If there’s no good way to establish in if they want it used for that purpose? recognition program national law a mechanism for evaluating Training facial recognition programs to can identify major the uses of facial recognition technology, be accurate and free of bias seems to be a demographics in an then we are left with the legal tools we public good. Why should it be frustrated unbiased, accurate, and have. Many might believe that the com- by assigning even opt-out rights to data efficient way, we have to mercial uses of facial recognition under subjects? What have we gained as a na- ask ourselves if that is a current standards are so dangerous to tion if Microsoft, Google, and Amazon goal we want to pursue.” the public that throwing sand in the gears continue to use biased and inaccurate with billion-dollar class-action lawsuits facial recognition software? Should they of facial recognition technology will not is the best of the bad options available. face billions of dollars in lawsuit fines for be rare corner cases. As applications of Given the track record of the last 40 years seeking to perfect their products? facial recognition technology increasingly of regulatory indifference to the conse- The bill recently introduced by Sens. emerge, it will become clear that central quences of technology applications—and Bernie Sanders and Jeff Merkley un- uses of the technology will be questionable the resulting troubles that surround us fortunately would mimic many of the because of their underlying purposes. in the form of harmful spill-over effects problematic features of the Illinois BIPA This is what Pasquale is arguing for as of internet-related technologies—it is law, including affirmative opt-in consent part of the second wave of algorithmic hard to argue with the pessimistic as- for collection and use of biometric infor- accountability—to ask not just whether sessment that slowing facial recognition mation, enforcement by private right of the technology is fair and accurate, but technology down in this way might be a action, and damages per violation up to whether it should be used in a particular fully rational way to proceed if there are $5,000. And it does not preempt incon- case at all. no other alternatives. sistent laws. We recognize the dependence of tech- We have to recognize that this is a mis- Of course, we can argue about whether nology in the international arena, which erable way to manage technology and we the use of a facial recognition program seeks to promote “emerging technology can do better. When things go seriously in a particular case makes sense. A new that advances liberal democratic val- wrong with applications of facial recogni- law should set up a process for such ues,” in the words of Tarun Chhabra of tion technology, or when its introduction values-based evaluation. Even if a facial Georgetown’s Centre for Security and is unreasonably delayed by irrational recognition program can identify major Emerging Technology. The second wave lawsuits—as will inevitably happen if demographics in an unbiased, accurate, of algorithmic accountability is a domestic there is no sensible values-based plan to and efficient way, we have to ask ourselves version of this values-based vision of tech- manage its introduction—no one will want if that is a goal we want to pursue. These nology management. It is time to apply it to answer the Obama question: “Uh, who cases of improper or dangerous usage to the specific case of facial recognition thought this was a good idea?” (

The Nairobi Law Monthly 26 • September 2020 AI GOVERNANCE

HUMAN RIGHTS ONLINE Internet shutdowns threaten democracy

BY ANTONY MUTUNGA increased from 17 in 2018 to 25 in 2019. Uganda, the government imposed taxes Africa has witnessed a number of shut- and mandated licences on online plat- n recent times, the number of gov- downs being imposed as a result of civil forms. A daily social media levy was put ernments depending on Internet unrest and dissent such as the case of up on popular services such as Facebook shutdowns to control protests or Sudan, whereby protests, which led to and WhatsApp that caused many to stop I violence between communities has the removal of Omar Al-Bashir from the using it frequently. been on the rise. According to the #KeepI- power seat, were not dying out. Another With internet shutdowns on an upward tOn report on Internet shutdowns in 2019 case is that of Ethiopia, where a shutdown trend, it is important for ICT policies to published by AccessNow, the number of was imposed due to massive demonstra- be put up to protect the rights of online internet shutdowns across the world have tions following the killing of a prominent users. In some countries, court orders have increased from a total of 75 cases in 2016 individual from the Oromo tribe. The ruled internet shutdowns as unlawful and to 213 in 2019. Internet shutdowns are demonstrations had claimed the lives of this is a step in the right way. basically intentional disruptions on the over 200 citizens leaving tens of thousands Two examples illustrate this. One is internet and mobile applications making displaced. Zimbabwe, where in January 2019 the High them inaccessible or effectively unusable Shutdowns trample on the human rights Court ruled that the government went for a particular group of people or region. of those it is imposed to, as they violate beyond its powers in ordering an internet With the increase expected to continue, the freedom of expression and access to shutdown during a nationwide protest. Asia and Africa remain the most affected information. Inevitably, the longer the As well, in June 2020, the Court of Justice in the world, despite the fact that the two shutdowns are imposed, the longer the for the Economic Community of West Af- regions could be far apart in terms of what negative effect they have on the economy rican States (ECOWAS) ruled against the actually causes the shutdowns. For the Togolese government’s internet shutdown region in the East, internet shutdowns in 2017. The court stated that the govern- are at an all time high as governments A silver lining with ment had violated the rights of citizens use it to control threats, real or fictional the shutdowns is that who were protesting for constitutional to suit their agendas. Many governments they demonstrate that reforms in the country. couch the shutdowns under terrorism governments understand To bolster such efforts, the private sec- and internal conflicts as their motivation. the vital role Internet has tor, particularly internet service provid- The longest Internet restriction which in governance. The need ers, need to be recognized as important has been experienced in Myanmar for over to block social media actors. Another important player is civil a year since June 2019. It has caused an platforms shows that it is society. A partnership between the two information freeze in the area which has as a powerful tool. could provide both with a stronger role resulted in businesses reporting losses against shutdowns. and the economy slowing down. Also, State and non-state actors need to com- the shutdown has affected the COVID-19 as businesses, especially online businesses, mit to a standardised set of rules on key response as well as kept the citizens in the which rely on the internet, greatly suffer. thematic areas of digital rights in Africa dark over the pandemic. A silver lining with the shutdowns is that involves all stakeholders, including On the other hand, in Africa the growing that they demonstrate that governments private businesses and civil society. internet shutdowns have mostly affected understand the vital role the Internet has Digital access is crucial and thus human entire countries as compared to Asia, in governance. The need to block social rights online should be protected so as where the shutdowns or restrictions media platforms shows that it is consid- to preserve the internet as an enabling were on targeted areas. According to Ac- ered as a powerful tool to gather citizens space and tool for Africans to help them cessNow, the number of shutdowns have for common purpose. For instance, in better their lives. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 27 COVER STORY

A VERY BANTU BETRAYAL A HOUSE DIVIDED: KENYA’S POLITICAL MADHOUSE

BY PETER WANYONYI

he social evolution of agricultural versus pastoralist societies has long been the subject of fascinating research in African anthropol- ogy. One theory attributes the relative ethnic characters of African societies to their traditional economies. To wit: Agricultural societies relied mostly on crops for survival. When a farmer has planted crops, they take time to grow and be ready for harvesting. In the intervening period, any sort As the heat of tumult that results in the farmer being uprooted repre- is turned up Tsents an existential threat, since the crops cannot simply be on Ruto and uprooted and moved elsewhere: the interloper takes them his people in over, the farmer loses and might starve to death. Farming parliament, societies in Africa – and elsewhere – thus invested in various the deputy peaceful conflict-resolution mechanisms, including alliance- president will making, open deception, and the like. In such communities, quickly find society treasures peacemakers and dealmakers. out what Raila Pastoralist societies, conversely, have no such problems. discovered When a community’s livelihood depends on herding livestock long ago – that that can be driven from place to place easily, or on fishing – in Bantu political which case the community can jump into their canoes and groupings move to a new location in days – they have no incentive to make for invest in peaceful conflict-resolution mechanisms. In such unreliable communities, society treasures men of war, the warriors, coalition and strong men, who impose their will on rival communities partners”

The Nairobi Law Monthly 28 • September 2020 SHADOW WAR

www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 29 COVER STORY

by force of arms. In Kenya, the Bantu are traditionally farmers. The rest of the country, but particularly the Nilotes and Cushites, are herders and fishermen. And the conflicts in government today, and in Kenya in general, can be traced back to the differences in traditional economies between these groups. The Bantu, numerically far superior to the other groups, have in the Kikuyu a group that has tasted power, with no intention of relinquishing it. The Nilotic Kalenjin had power for a quarter of a century but, not being a settler community, did not know what to do with it beyond sporadic corruption and the occasional murder of annoying rivals. Today, the Central Kenya Kikuyu heartland is the most developed region in Kenya, with the best infrastructure, the best-educated population on average, the easiest access to capital and its supporting financial accoutrements, and the country’s most important economic levers. The Kalenjin heartland that the late President Moi hailed from is, in contrast, a pitiable place. Starvation, unheard of in Central Kenya, stalks even Moi’s own Baringo hometown. This depressing dichotomy between the home districts of the communities that have produced Kenya’s four presidents is at the code of the tussles in the Legislature over revenue allocation and the politics of the Kenyatta succession. It wasn’t too long ago that Kenyans could count on an opposition that, despite the depredations national taxpayer cake. of the ruling clique, remained a steadfast vox The intricacies of why the Senate is at war with populi denouncing the excesses of government itself over revenue allocation have been flogged impunity and the open theft of public resources to death in the Kenyan media, and only the most that passed for governance in the country. Those basic summary of events is necessary here. The days, tumultuous as they were, marked something Constitution charges the Senate with the power to of a zenith for our opposition – roles were clearly regulate most things that happen at County level, defined, the bad guys were well-known, the good and one of these is deciding how much money the guys were all in the opposition, and wananchi ral- counties receive from the national purse. The lied around every opposition position on national Within Jubilee Senate relies on several tools, the most important policy, knowing that the hearts of our opposition itself, the of which is an allocation formula that essentially leaders were in the right place – even if their actions political centre provides the foundation of how much the counties and behaviour sometimes left a bit to be desired. long ago fell will receive over the subsequent five years. We Those days are long gone. apart, and are at the point in the quinquennial formula-fixing the two sides cycle when the Senate must agree on the formula to Open war are now held guide our revenue-sharing for the next five years. What was until recently a debate couched in such together only Open civil war has thus broken out in the Senate. diplomatic and high-sounding terms as “equitable by a mutual Uhuru Kenyatta, already a lame duck serving his distribution of resources” and “development desire to second and last term as president, has reneged deficit” has long since boiled down to a naked continue on his political marriage with his deputy, William struggle over taxpayer funds, as legislators tussle looting Kenya Ruto, and instead has teamed up with perennial to promote the revenue-sharing agreement that until the presidential contender Raila Odinga in the much gives their own counties the largest share of the election” ballyhooed Building Bridges Initiative (BBI), a

The Nairobi Law Monthly 30 • September 2020 SHADOW WAR

President Uhuru and knowing the mega-monies that Kenya’s much- Kenyatta and Hon expanded economy has to offer those in the right Raila places in power, the Kikuyu elite are loath to let Odinga’s pact go of the levers of power now – or, indeed, ever. created a The strife in evidence in the Legislature, between new elite alliance. the president and his deputy, between Ruto and Will it last? Raila Odinga, and between their respective aco- lytes across the government, including within the revenue-allocation debates, is merely the symptoms of that underlying problem. Ruto cannot be allowed to succeed Uhuru, at least not if the Kikuyu elite have anything to do with it. Their latest play, the BBI, seeks to entice Raila Odinga with some pseudo- power and the promise of a constitutional change to hand him the presidency. Cleverly, though, the constitutional change would involve a hollowing- out of the presidency, turning it into a ceremonial role with no Executive power – which would be devolved to a powerful Prime Minister. And the person slated for that powerful premiership is none other than Uhuru Kenyatta. “Uhuru” goes the refrain among the Kikuyu elite, “is too young to retire”. What they mean by that is, “Executive political power must remain in Kikuyu hands.”

A low bar This, then, is the basis of Kenya’s coming civil chaos. Ruto will not take his humiliation lying down. Al- though Uhuru has recruited some powerful Kalenjin two-tribe coalition that essentially promises Raila voices into his camp – most notably his age mate and “his people” – the Luo – easy access to state Gideon Moi, Baringo Senator, and son of the late largesse in return for their political support shor- president – he seems to have reckoned without ing up Uhuru’s Kikuyu tribal base in opposition to The Judiciary Ruto’s remarkable political nous and survival Ruto’s Kalenjin base. The Kalenjin are numerically has become instincts. Most importantly, Ruto has been part insignificant, but their strategic importance is the de facto of Uhuru’s political machinery since decamping thanks to the large number of Kikuyus living in the opposition from Raila’s ODM in the run-up to the 2013 General Rift Valley, in close proximity to the Kalenjin – who, in Kenya, Election, and he knows where Jubilee’s political when irked, are not averse to picking up bows and attempting bodies are buried – where they get their money arrows to teach the Kikuyu some tribal manners. to stand up to from, which Jubilee governor or MP steals what This potential for anti-Kikuyu violence in the Rift the Executive money from which parastatal, and who facilitated Valley is William Ruto’s main bargaining chip and despite the Jubilee’s election wins both in 2013 and 2017 – in is the reason Uhuru Kenyatta cannot afford to structural which, curiously, Uhuru Kenyatta beat Raila Odinga completely alienate Ruto. difficulties both times – dubiously, some contend. And yet, that is exactly what the president is of doing so, Raila Odinga’s role as the unwilling bridesmaid doing. DP Ruto, heretofore a patient number two for it can only of Kenyan presidents is well-established. Although waiting for his political reward – a stab at the communicate he has won at least one presidential election out- presidency with the promised support of Uhuru its positions right – it is common knowledge that his victory – has found himself increasingly shoved aside as in judgements in the 2007 presidential election was stolen and the Kikuyu elite around Uhuru Kenyatta prepare that take time handed to Kibaki – Raila has often proved too to renege on the Kenyatta-Ruto deal. It is no secret to deliver, are power-hungry for his own good. In early 2008, that this cabal will not countenance a Ruto presi- a poor – and, with Kenya burning and outside powers intent dency. After the lean years of the Moi dictatorship, often, late” on forcing a recount at the least, or a rerun of the www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 31 COVER STORY

presidential election, both scenarios that would have seen Raila pronounced winner of the polls, Odinga unexpectedly agreed to give up his claim to having won and instead accepted the toothless position of prime minister under Kibaki, a position that was to see him frustrated and humiliated daily by Kibaki’s own Kikuyu inner circle. Indeed, it was this very humiliation that saw Ruto abandon the Raila coalition, seeing no point in backing a candidate that was seemingly ready to settle so quickly for so little after such a bitter struggle. The low bar that Raila sets for his support is now in evidence again. Despite the noises made about the BBI, it is notable that Raila and his people have been handed mere tokens in their partnership with Uhuru. The big plum positions, with access to the biggest state monies, are still monopolised by Uhuru and his Kikuyu appointees, who dominate every position that has to do with revenue collection and management in government. The proposed constitutional change to hand the presidency to Raila is unlikely to happen, given how close the election is. It follows, then, that Raila will almost invariably be short-changed – again. There are already palpable moves within the Kikuyu elite to groom former Gatanga MP Peter Kenneth as Uhuru’s successor, possibly with Gideon Moi as his running mate to sap Kalenjin anger and take advantage of the Mois’ extensive financial and political influence in the Rift Valley. This, while an interesting prospect, would be difficult to sell if Ruto was still politically The Bantu farming mindset sees deception as an relevant and able to argue his case from the role acceptable device to prolong an existing peace long of Deputy President. Public coffers enough for the crops to mature and be harvested. As Kenya gears up to the 2022 General Election, are a lucrative After that, all bets are off. Within Jubilee itself, therefore, heightened tensions and political tem- bounty whose the political centre long ago fell apart, and the peratures in the country – which always rise to rewards are two sides are now held together only by a mutual crisis point at election time – will be accompanied well worth the desire to continue looting Kenya until the election. by sporadic violence if Ruto and his advisors feel risk of being But even in this, one side controls the legitimate that they are under unacceptable pressure from prosecuted. tools of state violence, while the other can only the Raila-Uhuru coalition. But even as this hap- After 20 years resort to irregular but more devastating acts of pens, Raila too will come under pressure from his of Kikuyu violence against civilians of the wrong tribe. It is tribesmen to re-examine his coalition with Uhuru. presidencies, in this poisonous mix that one must now throw the the Kikuyu elite third element in the mess: the judiciary. The third element cannot lose Kenya’s Supreme Court won itself no friends in Will Uhuru’s Kikuyu minders seek to implicate Dr that power the Uhuru Kenyatta camp when it annulled the re- Ruto in one or the other scandal to neutralise him and privilege, sults of the 2017 presidential election and ordered a politically? That seems inevitable. And as the heat and will seek rerun. The enmity between the two continued after is turned up on Ruto and his people in parliament, to corrupt, the Executive, on Uhuru’s re-run “win”, declared the deputy president will quickly find out what co-opt, and that the Judiciary was little more than a hotbed Raila discovered long ago – that Bantu political neutralise any of judicial activists bent on legislating by stealth, groupings make for unreliable coalition partners. opposition” and one which itself is steeped in corruption and

The Nairobi Law Monthly 32 • September 2020 SHADOW WAR

The Judiciary under CJ been side-lined by the powerful Kikuyu clique David Maraga has become around Uhuru and will likely be under pressure the de facto from court cases alleging corruption and similar. opposition, attempting Uhuru’s handpicked successor – who at this point to stand up to looks like Peter Kenneth – will be shoring up Ki- the Executive despite the kuyu financial and political muscle to mount a structural formidable presidential campaign. It will be left to difficulties of doing so. the Nilotes and the few allies they can command – particularly the ever-divided Luyia and Cushite vote bases – to try to mount a challenge that could put paid to the Kikuyu attempt to hold onto the presidency. And this is where the spectre of Rift Valley violence gets real. Anti-Bantu violence in the Rift Valley has been a feature of every multi-party election in Kenya since 1992. The Kikuyu have settled in the Rift Valley in vast numbers, as have the Luhya and the Kisii. These three Bantu groups are resented by the local Kalenjin for various reasons, chief among them the perception that the settlers are better-off than the locals, particularly in the fertile central and south Rift regions. The 2022 elections will be no exception. As Jubilee moves to defenestrate Ruto before 2022 so they can nominate a Kikuyu flag bearer in his stead, Ruto’s people will activate their Rift Valley cells, which can wage formidable tribal warfare. The resulting economic and security chaos will invariably result in calls for calm by the international community – as well as threats of re- activating charges from the International Criminal Court (ICC) “against both sides”, as the political ethnic jingoism. The situation is made worse by parlance from the ICC always puts it. the BBI: because the opposition in Kenya is now These threats will be in vain. Kenya’s public cof- quite literally in bed with the government, there fers are a lucrative bounty whose rewards are well is no opposition as such. The Judiciary, therefore, worth the risk of being prosecuted for instigating has become the de facto opposition in Kenya, at- political violence. After 20 uninterrupted years of tempting to stand up to the Executive despite the Kikuyu presidencies, the Kikuyu elite have gorged structural difficulties of doing so, for the judiciary themselves on public funds and are bursting with can only communicate its positions in judgements ethnic pride and ruling-class arrogance. They will be that take time to deliver and are a poor – and, often, unwilling to take the risk of losing any of that power late – response to the latest Executive pronounce- and privilege, and will instead seek to corrupt, co- ments from whatever roadside Uhuru happens to opt, and neutralise any opposition. Unfortunately be at on a given day. for the Nilotes of Kenya, this will mean that, like The Judiciary makes for a poor opposition though. 2007 and 2013 and 2017, Raila Odinga will mount a In the end, the opposition to Uhuru’s government valiant but ultimately doomed quixotic campaign and his tribal clique will come from the traditional for the presidency yet again. It is not for him and source of opposition to Bantu presidents in Kenya: his presidential hopes that we must weep, however. a coalition of Nilotic communities. Raila will be It is for the innocent lives that will be lost in the short-changed politically and will, with months process of ensuring that neither Raila nor Ruto to the election, abandon the BBI deal and seek becomes president of Kenya. That, in the end, is to paint himself as the spokesman of the poor the tragedy of this beautiful country. ( and the downtrodden in Kenya. Ruto has already — The author is an information systems professional. www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 33 COVER STORY

CONSTITUTIONALISM greatly contributed to the blurring of lines between the Executive and the Legislature. The seven years of the Jubilee administration have seen the emasculation of parliament, including MANUFACTURED through the recent parliamentary leadership changes in Jubilee to remove Dr Ruto’s allies from positions of influence, including majority leadership positions CRISIS: FROM in the Senate and the National Assembly. Among those affected in the purge was former Lead- er of Majority in the Senate Kipchumba Murkomen, SEPARATION TO a sworn Ruto ally, who was replaced by West Pokot Senator Samuel Poghisio; and Leader of Majority in the National Assembly Aden Duale who was replaced DELEGATION OF by Amos Kimunya. “An overbearing Executive that acts with impunity and disregards court orders and the rule of law POWERS has shown that a good constitution without being respected cannot transform governance and the economic and social conditions of our country,” The case of the marauding Executive and religious leaders under the aegis of Dialogue Refer- a whimpering Parliament ence Group (DRG) said in a statement on the eve of the 10th anniversary of the 2010 Constitution. The group added that both houses (Senate and National Assembly) have been reduced to mere rubber-stamps of the Executive. BY KEVIN MOTAROKI That parliament has been compliant to the executive’s excessive demands can be demonstrated by how it was used to push through the controversial n the seven years Jubilee has been in power, Security Laws (Amendment) Act, 2014 amid nationally it is countable the number of times that televised chaos involving heckling and fistfights, as Parliament has stood up to the Executive. some members sought to air their strong opposition The two instances that quickly come to to the proposal. mind are the current standoff over the third The controversial law amended 21 different laws, basis of revenue sharing among counties, including the Penal Code, Criminal Procedure Code, and secondly, in 2018 when Parliament Evidence Act, Prevention of Terrorism Act, and the Parliament rejected the Executive’s plan to implement National Police Service Act. The courts would later under the a 16 per cent value added tax (VAT) on fuel. declare significant parts of the law unconstitutional, Jubilee But even the two instances have to be put an indictment of parliament that paid very little at- government in their proper context: The standoff over the new tention to the constitutionality of the law they were has been a Iformula for sharing revenue has been exacerbated passing, and which was more interested in pleasing by the intra-Jubilee fights with those in President compliant the President. Uhuru Kenyatta’s camp supporting the Executive institution, Following the September 1, 2017 Supreme Court to ram through the formula while Deputy President which has ruling that nullified the presidential election, again William Ruto has been attracting those opposed to greatly acting at the behest of the Executive, Jubilee MPs Executive-favoured formula. contributed to rammed through parliament far-reaching amend- On the 16 per cent VAT on fuel, after parliament the blurring of ments to election laws. Again, like with the Security rejected the proposal, President Kenyatta, reacting to lines between Laws (Amendment) Act, 2014, the courts nullified public outcry, sent back the proposal to parliament the Executive the amendments. with the implementation spread over time. Parlia- and the The emasculation of parliament has become ment eventually adopted the proposal. Legislature” significant as the Executive seeks to roll back some Otherwise, Parliament under the Jubilee govern- gains in the constitution through ordinary legislation, ment has been a compliant institution, which has and an assault on democracy through disregard of

The Nairobi Law Monthly 34 • September 2020 CIVIL WAR

the role of defending the president from attacks by allies of the Deputy President. In another clear indication of the Executive recen- tralising power, in the Public Audit Act Parliament opened the doors for the government to manipulate audit reports and weaken the independence of the office of the Auditor General by granting power to the Public Service Commission (PSC) to hire, recall and fire officers in the National Audit Office at will. The Office of the Auditor General is an independent office which audits a PSC that currently has power over the former’s staff. There was also an attempt to amend the Judicial Service Act, which, without the courts’ intervention would have given the President a bigger say in the appointment of the Chief Justice and Deputy Chief Justice by requiring that the Judicial Service Com- mission (JSC) forwards to the President three names for each position so as to give him the latitude to appoint a person of his choice. In other instances, the Executive has used its stranglehold on the budget to beat constitutional commissions and independent offices to shape. But it seems the preferred way to emasculate the Photo courtesy of The Elephant. constitutional commissions and independent offices have come through the appointment of compliant court orders, arbitrary orders such as the one direct- commissioners, mostly losers in previous elections. ing that hiring of external lawyers by ministries and At the Commission on administrative Justice government agencies have to be approved by the (Ombudsman) for instance, Florence Kajuju was ap- Attorney General. pointed the chairperson after losing the Meru County For instance, in 2015 Parliament muted itself in the Woman Representative seat in the 2017 elections. recruitment of deputy Inspectors-General when it Priscilla Nyokabi Kanyua is now a commissioner passed amendments to the National Police Service at the National Gender and Equality Commission Act, 2011, where it allowed the President to appoint (NGEC) after she lost in the Jubilee nominations in from names forwarded from NPSC with the candidates 2017. There is also former cabinet secretary Kazungu not required to undergo vetting. The amendments All available Kambi who is now a commissioner with the National also did away with the two-third gender rule for the tools have Land Commission (NLC), and Eliud Kinuthia who lost top three police positions. As such, currently, the been deployed in the Jubilee nominations for governor of Lamu and holders of the offices of Inspector General and the to control who is the current chairman of the National Police two deputy Inspectors General are all male namely: the courts Service Commission. Hillary Mutyambai, Noor Gabow, and Edward Mbugua. including The same is true for the Judicial Service Com- The Directorate of Criminal Investigations (DCI) is budget cuts, mission (JSC) where allies of the president occupy also headed by a man, George Kinoti. threats and a number of positions. Following the March 2018 ‘handshake’, the role of the attempt As well, at the judiciary, all available tools have parliament in holding the Executive to account has to amend the been deployed to control the courts: threats to life further been eroded after opposition MPs were co- JSC Act to give and names of judges being dragged through the mud, opted to the government side and effectively abdi- the President lower-than-expected budget allocations, disobedience cated their role. Instead, the opposition has become more than just of court orders by the Executive, refusal to appoint the cheerleaders of the Executive and the president a ceremonial judges recommended by the JSC, and the attempt to in his intra-party wrestling match with his deputy. role in amend the Judicial Service Act to give the President As MPs allied to Dr Ruto have been taking on appointing the more than just a ceremonial role in the appointment President Uhuru Kenyatta, ODM MPs have assumed CJ and DCJ” of the chief justice and the deputy chief justice. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 35 FOLLOW US: Facebook: /nairobilawmonthly Business Twitter: @nairobilawmonthly While premature deindustrialisation is a global phenomenon, the process will be POLICY • REAL ESTATE • more consequential for the continent. ECONOMY • COMPANIES • INDUSTRY • STOCKS • M&A EMPLOYMENT Leveraging the GOOD BAD MONTH MONTH employment FOR... FOR... potential of industries without smokestacks

Hotels Equity Group BY BRAHIMA S COULIBALY has been the catalyst of the The Tourism Finance The group’s half year East Asian Miracle. In these Corporation (TFC) will net profit has reduced or decades, economic economies, large numbers of disburse Sh3 billion by 24.3% to Sh9.02 growth and struc- workers leaving agriculture stimulus package to billion after the lender tural transformation moved into manufacturing, the hardest Covid-19 increased provisioning was equated with driving growth, job creation hit hotels to boost the for loan defaults nearly F tourism and hospital- nine times to reflect manufacturing-led develop- and poverty reduction. How- ity industry. the economic hard- ment. This applied to most of ever, evidence is emerging that ships facing borrowers today’s advanced and many manufacturing-led develop- due to Covid-19. emerging economies. With ment is losing its effectiveness. a global trend of premature In 2015, Harvard economist deindustrialisation, an entirely Dani Rodrick documented a STOCK EXCHANGE different pathway could now global pattern of premature open up for Africa, as examples deindustrialisation – in other from several countries show. words, declining peak shares F D Economists have long re- of output and employment NSE 20 NASI garded economic transfor- at lower levels of income – in 1,723.96pts 131.75pts mation – the movement of recent decades. For example, workers from lower to higher whereas manufacturing could productivity employment – as absorb 30 per cent or more of essential to successful eco- labour for early industrialisers nomic development. Tradi- such as Great Britain or Swe- tionally, the development of STOCK OF export-oriented industries, THE MONTH notably manufacturing, has been a key driver of structural Kakuzi Plc transformation. Since the first Industrial Revolution in the Sh391.00 18th Century, manufacturing 10% has helped transform most of Share of manufacturing + Sh31.00 (+8.61%) today’s advanced and richest to total economic economies and, more recently, activity across Africa.

The Nairobi Law Monthly 36 •March 2019 FOLLOW US: Facebook: /nairobilawmonthly MANUFACTURING Twitter: @nairobilawmonthly

den, now its share of labour is peaking at made it an effective development escala- merchandise exports. Kenya, Rwanda, around 15 per cent or less in many emerg- tor. First, manufacturing goods are trad- Senegal and South Africa have vibrant ing markets and developing countries. able, which provides possibilities for coun- ICT-based services sectors. Tourism is Across Africa, manufacturing as a share tries to scale up production beyond the Rwanda’s largest single export activity, of total economic activity has stagnated consumption capacity of local economies, accounting for about 30 per cent of total at around 10 per cent, with economic thus boosting national income. Second, exports, and provides 14 percent of GDP activity moving from agriculture to low- manufacturing benefits from technologi- in Tanzania. In 2014, 9.5 million tourists productivity services instead. cal transfers, which allows productivity visited South Africa, contributing 3 per This global pattern of premature dein- of local production to converge with that cent to its GDP. Ethiopia, Ghana, Kenya and dustrialisation suggests that manufactur- of global production. Third, importantly, Senegal all actively participate in global ing-led growth may no longer serve as a manufacturing absorbs large numbers of horticultural value chains. Ethiopia has viable development model for current moderately skilled labour at a productivity achieved extraordinary success in flower low-income countries. In this context, new premium, delivering sustained aggregate exports, so much so that the country is now research by the Brookings Institution’s productivity gains and driving structural a global player in the sector. Industries Africa Growth Initiative finds a promis- economic transformation. without smokestacks are also relatively ing alternative path towards economic Within its research project, the Africa more labour intensive. transformation based on tradable services. Growth Initiative has identified an emerg- These tradable services or “industries ing, novel pattern of structural change Leveraging IWOSS to address the without smokestacks” (IWOSS) include in Africa based on industries without employment challenge sub sectors like tourism, horticulture, smokestacks. Indeed, these sectors are While premature deindustrialisation is a agro-processing and certain ICT-based outpacing manufacturing in many coun- global phenomenon not unique to Africa, services. tries. Between 1998 and 2015, services ex- the process will be more consequential Three salient features of manufacturing ports grew more than six times faster than for the continent, given the scale of the

www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 37 Business

demographic and employment challenges. non-IWOSS sectors. growth in IWOSS averaged nine per cent, By some estimates, Africa’s working-age In the face of premature deindustrialisa- three times higher than in the rest of the population will grow by approximately tion, South Africa already appears to be economy. Notably, employment in key 450 million people – about 3 percent on a path of structural transformation IWOSS sectors such as agro-processing per annum – between 2015 and 2035. By characterised by a shift toward IWOSS. and tourism expanded at double-digit 2050, Africa will have 362 million young Industries without smokestacks, notably rates. By 2035, IWOSS are projected to people between the ages of 15 and 24 years. agro-processing, horticulture and tourism, generate nearly 70 per cent of new em- Where will the region find the productive are all intensive in low- and semi-skilled ployment in Rwanda. jobs for such a rapidly growing, young labour; in fact, about 90 per cent of total population in the context of premature employment in these sectors can be Shared characteristics allow two- deindustrialisation? The ability to move characterised in such a way. Thus, these tier development large numbers of workers from lower to sectors have the potential to generate As the preliminary results for South higher productivity activities will boost employment for the low-skilled labour Africa and Rwanda illustrate, industries overall aggregate productivity and deliver force on a large scale, if the operating scale without smokestacks are tradable services structural transformation. of these sectors can be increased. Indeed, with the potential to support structural early projections indicate that, annually transformation in low-income countries The case of South Africa and on average, around 3.4 times more given their shared characteristics with Economic growth in South Africa has jobs are to be created in IWOSS sectors traditional manufacturing. Like manu- remained very low since 1994, averaging in comparison to non-IWOSS sectors, facturing, apart from being tradable, they just 2.7 per cent. The country’s youth un- and that IWOSS will account for nearly benefit from technological innovation, employment rate – at close to 55 per cent in 80 percent of all new jobs through 2028. and, very importantly, they are intensive 2018 – is considerably higher than in com- in low- and semi-skilled labour. IWOSS parable upper-middle-income countries sectors also benefit from agglomeration, or other countries in sub-Saharan Africa. This global pattern including information and knowledge spill- Moreover, both overall unemployment of premature overs. Most low-income countries often and youth unemployment have shown an deindustrialisation focus on developing special economic upward trend over the past ten years or suggests that zones (SEZs) to promote manufacturing. so. In short, like in many countries across manufacturing-led SEZs are relevant to IWOSS sectors such Africa, South Africa’s current growth path growth may no longer as agro-based industries as well. The has failed to provide enough jobs for the serve as a viable enabling environment that supports the low-skilled unemployed. development model development of manufacturing, including The post-1994 South African economy for current low-income an adequate investment climate, capacity has been characterised by an eroding countries. to export and agglomeration, is like that primary sector and a stagnant manufac- for industries without smokestacks. turing sector – both concerning trends. The case of Rwanda While economists have been increas- At the same time, there has been a shift In contrast to South Africa’s economy, ingly confident that development models towards services sectors, with finance, that of Rwanda has expanded rapidly, for today’s low-income countries, notably transport, construction and other services at an impressive eight per cent annually those in Africa, will be different from that experiencing modest employment growth. since 2000. However, like South Africa, of East Asia, they have been less certain Notably, the financial and community Rwanda’s economic transformation has about what shape these will take. The services sectors have accounted for over involved the movement of workers into industries without smokestacks model half of the increase in employment be- progressively higher-productivity in- offers an answer. Because manufacturing tween 2000 and 2019. In short, while the dustries without smokestacks. Labour and IWOSS have similar characteristics shift to services may offer South Africa productivity, defined as value-added per and enabling environments, from a public an opportunity for the type of structural worker, is comparable to that of manu- policy perspective, it is happily not a choice transformation previously anchored by facturing and twice as high as productiv- between manufacturing and IWOSS. growth in manufacturing, this achieve- ity in the overall economy. As such, the Policy-makers can develop industries ment depends, importantly, on the type of movement of labour into IWOSS sectors without smokestacks alongside efforts to services. Out of 8.9 million formal private is occurring at a productivity premium develop those with smokestacks, thus of- sector jobs in South Africa in 2019, IWOSS that is boosting aggregate productivity fering a multifaceted approach to achieve sectors account for over two thirds (68 and overall economic transformation. structural transformation and overall per cent), more than double the share of Between 2000 and 2017, employment economic development. (

The Nairobi Law Monthly 38 • September 2020 BILATERAL TRADE

If properly negotiated the agreement has the potential to rapidly enhance Kenya’s foreign BY ELIJAH MUNYI industrial investment and overall export volumes. he US and Kenya formally launched negotiations for a FREE TRADE AGREEMENT free trade agreement on July T 8, 2020. With the US gearing up for presidential elections in a few months, Kenya-US free trade these talks may not draw much global attention. But as a prototype for evaluating the substance of future US-Africa talks are underway: trade relations, a lot rides on Washington using this deal to make a bold statement of what Nairobi must its commitment to effective North-South free trade agreements. The US is the third most important des- get right from start tination for Kenyan exports after Uganda and Pakistan, accounting for 8% of its total exports. Kenya exported goods worth $527 million (Sh530 billion) in 2018, primarily apparels, coffee and nuts. Its imports were mainly commercial aeroplanes and other spacecraft, polymers and medicaments. Kenya has a slim trade surplus that the US will probably be keen to balance. Washington has a penchant for using free trade agreements to signal the status of partner states as regional strategic allies. Such agreements with Morocco, South Korea, Colombia and Bahrain were all intended to signal much deeper strategic alliances beyond trade. For the European Union and China the Kenyan agreement further signals America’s intent for commercial expansion and competition in Africa. The principal objective is to secure duty free access for American industrial, apparel and agricultural goods in Africa. It’s all about making American exports competitive. US trade officials have described the Kenyan deal as a model for other African free trade deals. Terming Kenya a “strategic partner, regional leader and commercial hub”, statements from both the US Trade Representative Robert Lighthizer and the US ambassador to Kenya Kyle McCarter highlight the seriousness with which Washington wants this deal done. This vigour affirms President Trump’s strategy outlined by the 2018 US-Africa policy. But since the Kenyan deal is an initiative of President Trump, the palpable www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 39 Business

pressure to conclude an agreement could commercial competition in Africa. should be the target. be detrimental to Kenya’s interests. The Trump is certainly more combative As an investment vehicle, the Kenya pressure hampers Kenya more given in wanting to nullify China’s huge com- US agreement should be modelled on the asymmetry of capacity between the mercial advantage in Africa. But a Biden the Jordanian “qualified industrial zones two states. presidency would be more receptive to the model” which increased bilateral trade Free trade agreements are protracted appeals of the US Congress Black Caucus between the two states tenfold since its affairs which take more than a year to which champions the unilateral extension inception in 2001. complete. The US-Morocco agreement, for of AGOA. Because of the uncertainty This model permits foreign owned com- instance, took 15 months. Talks with Peru about the whims of the US presidency, panies situated in select export processing (18 months) and Colombia (20 months) it is in Kenya’s interest to concurrently zones to qualify for duty free exports into lasted even longer. The Kenya-EU eco- lobby US democrats on the importance the US market. With apparel as Kenya’s nomic partnership agreements took more of this deal in case of a Biden presidency. principal target export, the success of its than 10 years to conclude. If AGOA is not extended without a free negotiating dexterity will be judged on how Additionally, there’s no guarantee that trade agreement, Kenya’s three biggest well it integrates the inputs and outputs Trump will be in office come January 2021. exports to the US – apparels, macadamia of its export processing zones. An agree- For this reason, Kenya’s team in Washing- nuts and cut flowers – would face duty ment that considers all apparel exports ton should consider informally engaging increases of 5%, 0.5% and 4% respectively. “Kenyan” irrespective of ownership and the democrats in case the deal has to be This would undoubtedly negatively affect input source for a reasonable duration concluded under President Biden. exports. should be the target. But if it is extended, and the US-Kenya Finally, the US will no doubt be keen on Kenya’s negotiating objectives agreement ratified by Congress, elimi- Kenya’s liberalisation of agriculture and It is my view that Kenya’s negotiations nation of duties on Kenyan non-AGOA services as part of its ambition to compete should be guided by four principal ques- exports (mainly minerals) will not amount with the EU as preeminent agricultural tions and objectives as follows: Does the to much in terms of export enhancement. exporters. Every country keeps a short proximity of the November election in list of goods that it is allowed to protect the US unduly compromise the quality Jordanian model either for infant industry protection or of negotiations? What are the prospects Constraints to Kenyan exports to the security reasons. Kenya’s highly protected for renewal of the African Growth and Op- US are not primarily tariff based. From commodities include wheat, matches, rice portunity Act (AGOA) in 2025? If extended, Kenya’s standpoint, therefore, these and cement which can attract customs would Kenyan exports not covered ben- trade talks are less about tariff and trade, tariffs of up to 75% in the case of certain efit from US tariff removal? Can Kenyan than they are about attracting foreign types of rice. negotiators defend against US pressure investment into Kenya. The most useful My view here is that Kenya should grant to liberalise industrial goods under the potential outcome will be the extent to the US the same agricultural exports con- East African Community Sensitive List? which Kenya draws manufacturing foreign ditions as those granted to the EU under Can the US extend to Kenya the “quali- direct investment from the US and other the Economic Partnership Agreement. fied industrial zones” model to bolster states, into its economic processing zones. But at the same time, it should defend the US foreign direct investment in Kenya? To achieve this, Kenya should negotiate continued protection of the “industrial” From a political perspective, a trade for liberal rules of origin requirements. goods in the sensitive list such as cement, agreement makes sense. It shields Kenya Such rules should not unduly constrain natural gas and most importantly worn from the uncertainties over the extension investors to use only US or Kenyan inputs clothing. These should be protected for of the African deal and the vicissitudes for Kenyan exports to qualify for the duty purposes of the modest infant industry of political party changes in Washington. free entry into the US. A rules-of-origin already in existence in production of these As a trade tool, the merits of a free trade threshold of no more than 30% value add products. But it could end protection for agreement depend a lot on the extension some agricultural products like wheat. (or not) of AGOA after 2025 under Presi- If properly negotiated the agreement dent Trump or Biden. has the potential to rapidly enhance Ke- More principally, whether democrats nya’s foreign industrial investment and or Republicans win in November, the overall export volumes. To do so, Kenya extension of the Africa market access 530B must pay more attention to the role of law will depend on the extent to which Value, in shillings, of this agreement as an investment attrac- sub-Saharan Africa states will be regarded Kenya’s exports to the tion vehicle and not just a simple tariff US in 2018, accounting as important flashpoints for US-China for 8% of all exports. centred ‘traditional’ pact. ( The Nairobi Law Monthly 40 • September 2020 BIG DATA

Data analytics can reduce mundane, manual tasks and enable global trade teams to focus on strategic planning to that can lead to detecting frauds (e.g., deliver tangible benefits to their companies. smuggling of goods, under-invoicing) and identifying counterfeits and other restricted/prohibited goods.” Now, the European Union has embarked on a three-year project, titled PROFILE, to leverage machine learning, graph-based analytics, and natural-language processing to improve techniques for managing customs risk. Customs agencies’ adoption of data analytics, along with the move to electronic filing requirements, is producing information that can be shared between governments more efficiently. This should reduce error rates, shorten time of entry, and improve tax fraud detection, and provide threat prevention needs assessment for heightened security. Faster, deeper insight into customs GLOBAL TRADE MANAGEMENT filings through the application of data analytics also could increase the likelihood and volume of customs audits for Data analytics is multinational corporations and other importers and exporters. As a result, companies that lack the analytical tools transforming supply that Customs agencies are deploying may be at a disadvantage. chain management In a recent special report, ’How Big Data and Data Analytics Will Transform Supply Chains’, published by Thomson Reuters BY KEITH HAURIE border movement of goods and the trade ONESOURCE, many of these issues for community,” according to a report from corporations and importers/exporters ustoms authorities around the the World Customs Journal. were addressed. world are embracing the use The following year, International Cus- “The three biggest benefits for using of big data and data analytics, toms Day focused on using data analysis big data within supply chains are trace- C a development that creates to unlock insights from the huge volume ability, relationship management (e.g., risk and opportunities for importers and of data that customs agencies generate better customer service), and forecasting/ exporters. and collect from importers and exporters predictability,” the report states. “The ben- Indeed, the World Customs Organiza- in their day-to-day operations. efits of traceability are obvious. Knowing tion (WCO) has pushed this agenda for A year later, in 2018, the WCO pub- where your goods are located at any point several years. In 2016, for example, the lished draft guidance on the use of data of the supply chain, being able to predict WCO’s International Customs Day carried analytics to uncover patterns, associa- or be notified of supply chain disruptions, the theme ’Digital Customs: Progressive tions, and anomalies — and draw practical and having contingency plans to address Engagement’. Customs agencies were conclusions — from datasets. “By bringing these issues have an enormous impact urged to adopt the latest technology, all the data together from the entire supply on profitability, resource planning, and and WCO members were invited to use chain, Customs can obtain accurate and customer satisfaction.” cloud computing, blockchain, and other holistic pictures enabling them to identify Multinational corporations’ use of these technologies that could “improve coordi- trends — understanding who does what technologies is growing as they face pres- nation and data exchange mechanisms along the chain,” the draft guidance notes. sure to increase profit margins and shorten with other stakeholders, such as other “Identifying trends can enable Customs order-to-delivery cycles. The research government agencies involved in cross- authorities to spot suspicious activities firm Gartner recently reported 2019 sales

www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 41 Business

Aviation has yet to take full advantage of $24.6 billion in the business intelligence of the potential of APIs, and lags behind and analytics market, an increase of nearly others such as Telecoms and Fintech. 50% over three years. There are numerous ways data analytics can improve supply chain efficiency: GLOBAL TRADE MANAGEMENT validating data; detecting anomalies; benchmarking operations; allowing for mobile reporting and visibility into global 10 ways APIs can logistics’ offering real-time route optimi- zation, improved demand forecasts, and inventory management; and providing for revolutionize responses to government audits. The power of artificial intelligence (AI) aviation post the to assist in supply chain planning became clear during the COVID-19 epidemic. “Healthcare and aerospace companies coronavirus tasked with ensuring timely delivery of critical medical supplies leveraged AI to quickly modify shipment plans to minimize delays and service failures,” the report notes. “Airspace Technologies was one of the first logistics providers in this time-critical space to implement a breakthrough AI-powered platform that enabled them to swiftly adjust operations without interruptions to their 24/7, 365-days-a-year services.” Progressive companies are focused on prescriptive analytics to address opportunities and problems identified through predictive analytics. Gartner reports that the prescriptive analytics software market will reach $1.88 billion by 2022, representing a 20.6% compound annual growth rate from 2017. “Analyzing current data sets for patterns,” the Thomson Reuters report says, “prescriptive analytics evaluate the possible outcomes of the multiple courses of action. This not only provides decision- makers with multiple options on how to address the issue but also the hypothetical impact of each option.” At the same time, data analytics can reduce mundane, manual tasks and enable global trade teams to focus on strategic planning, deliver tangible benefits to their companies, and keep up with increasingly tech-savvy customs agencies. ( — Author is Vice President of Business Development, ONESOURCE Global Trade Management, Tax & Accounting, Thomson Reuters

The Nairobi Law Monthly 42 • September 2020 AIR TRAVEL

he air transport industry has “Telecommunications and finance are allowing everyone working across the been profoundly altered over more advanced than aviation when it industry to learn where the jams are, what the past few months and will comes to API usage. This is a massive gaps exist and how time can be saved in T continue to do so amid the on- wasted opportunity. Our industry is tre- all touch points of the passenger jour- going shifts from COVID-19. Airports are mendously data-heavy but there is still ney. By collating data related to external still unusually quiet in many places and a reluctance to share this information providers such as hotels, taxi firms and many airlines fear they may not recover with each other, even though the industry airline lounges means that travelers can their losses from seeing thousands of realizes the importance of this data. Not be offered new solutions to minimize planes grounded. The knock-on effect is doing so inhibits progress, growth, and disruption. already causing huge job losses with fears innovation.” of greater future potential redundancies, With this in mind, there are ways in Reduced costs, increased pro- including at major airlines, travel compa- which APIs can benefit aviation and ductivity nies and ground handlers globally. revolutionise how airports and airlines, APIs distribute information instantly and While some holidaying passengers and as well as suppliers and passengers can seamlessly in real time meaning everyone business travellers are gradually returning work together to help air travel recover knows what is happening alongside who, to airports, many others are still unsure in a post-COVID world. or what needs to be where. This can make when they will fly again. airline travel far more efficient, convenient “It is clear that a return to normal is Data from multiple sources in and enjoyable. It also has the potential to still very far off. In fact, the old normal an instant allow airports and airlines to save time, will likely never return,” says Mohamed APIs work like a plug-in to absorb and increase capacity and make the most Amin, Head of Data and Application collate data from numerous different of a variety of resources from staffing Programming Interfaces (APIs) at SITA, sources, such as real-time take-off and to ground handlers to security opera- the information and communication landing information, the length of turn- tors. Aviation is also exploring a number technology provider to Africa’s aviation around on stand or at a gate, how long of use cases around efficiency and seam- industry. “As the entire industry reels from it takes passengers to board, the exact less passenger journeys for consumer the fallout of coronavirus, this once-in-a- location of the luggage and much more. functions like mobile boarding passes to lifetime crisis offers everyone in travel the A dashboard then shows at a glance the web services. chance to examine new opportunities for full 360-degree picture of what’s going on increased digital transformation, cultural and this can be used to offer faster insight Unparalleled collaboration change and technological innovation.” into issues immediately as they arise, while Many barriers exist in data sharing across Amin adds that much of this could well offering automated predictions on how to the world. Different nation-states have come via APIs. “APIs specify how software improve in the future. their own compliance and data privacy components should interact in standard rules, such as GDPR in the EU. APIs harness ways – enabling software developers to Waiting times will be reduced data that is correct, up-to-date, cleaned access and process data from a wide range One of the biggest historical aviation and also harmonized with all regulations. of sources relatively quickly and easily. complaints from passengers has always Pulling this data from multiple sources This information is then used to provide been how long they have had to wait at and stakeholders will only need to be deeper insight and reporting as it can be an airport – in security queues, for board- done once, embedding the API and then displayed in easy-to-read dashboards, to ing or to get their baggage. APIs have the serving the entire industry with the results. power smartphone apps or be analysed potential to dramatically reduce this by with artificial intelligence and machine Better decision-making and plan- learning to find patterns and make pre- ning dictions. It also connects applications APIs can give airports and airlines the and services together to allow greater Better informed tools to make better decisions, do more collaboration between new partners or decision-making efficient resource planning, enable good competitors who were previously data- could prove vital time management and make optimal use siloed.” at a time when the of limited infrastructure. Better informed Amin believes that aviation has yet to aviation industry is decision-making could prove vital at a take full advantage of the potential of going through such time when the aviation industry is going APIs, and that the aviation industry lags unprecedented through such unprecedented change. behind many others such as Telecoms change. APIs can decrease processing times and and Fintech. help to accommodate differing levels of www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 43 Business

traffic – or at times like now, focus more data being transmitted and the limited toric flight information for a route and limited resources and staffing into the set of allowed characters. APIs can help detailing far in advance where delays or most important areas. transport messaging to more modern cancellations will occur based on weather standards. conditions, air traffic, the availability of The next-generation of app de- Increased reach and revenues runway slots and more – bringing fewer velopment The issues thrown up by the current errors and wastage as well as a decreased Software developers are the lifeblood pandemic crisis has shown just how many carbon footprint. for the aviation industry’s future. By aviation companies are able to ride out researching and developing new API unplanned disruption. Digitalization and Happier passengers mean return use cases centrally within the industry, shifting from being a traditional flight business developers can be challenged to harness supplier to a digital travel provider have There are already many touch points the data streams offered into new apps long been on many airline’s agendas and through which passenger data can be for both internal use by airports and APIs can facilitate this process. They allow gleaned, starting with when they book a airlines and external use by passengers the industry to reach global customers, flight through to check-in, dropping bag- and suppliers. First-hand feedback is then increase efficiency through better sup- gage, clearing security, boarding a flight, crucial to improving the quality of the API plier information and ultimately allow in-flight experiences, clearing border data, with continual work done to adapt passengers to learn from their travel control and claiming their baggage at a or enhance these models so that the data habits and change them too – making their destination. This can also be taken on a flowing through them is as relevant and journeys and experiences more enjoyable few more steps in the chain to the hotel accurate as it can be in real time. and efficient. they are staying in, their transfers to and from an airport and their reasons for a An end to outdated legacy sys- Artificial intelligence will drive stay. Currently, these are fragmented. tems transformation Each stakeholder knows what is hap- Aviation currently does not possess a The rise of AI and machine learning, pening but is not yet joining up with the single framework through which data alongside 5G networks, will give rise to others in that chain to be in a position to can be shared in a way that gives peace- the fastest and most disruptive change share the data for the wider good of the of-mind to each participant in the pro- the aviation industry has ever seen. With passenger – and ultimately for each of cess. Information is currently exchanged 5G allowing connected data points to be their own businesses to ensure greater through SITA’s core messaging network placed across airports and planes – col- satisfaction and repeat bookings. but there is still a huge reliance on data lecting and sending information through As travel begins to increase again after exchange in a legacy way using Type-B APIs – the opportunity for change has the pandemic has passed, this sort of messages. This is the pre-internet telex never been more present. joined-up thinking will be vital to its recov- format that industry members still use Reliable and accurate algorithms will ery, provided passenger data is handled and it has a lot of limitations including go on to make smart and accurate pre- securely and APIs adhere to strict privacy the small size of a message, the types of dictions, for example by studying his- and ethical standards. (

The Nairobi Law Monthly 44 • September 2020 CLIMATE ECONOMY

Every industry can be part of the solution — or the problem the CO2 that passed through it since 2017. It experienced outages on 367 days, but a CARBON CATCH-22 majority were either planned for routine maintenance or the result of something outside the system. The model for carbon But in part because of those outages, the system fell 17% short of its capture goal. Ultimately, it only captured about 7% capture is broken of the plant’s total carbon emissions, according to the Energy and Policy Institute. n the months since the pandemic loose the dregs stuck in subterranean Then the pandemic tossed the project’s cratered the price of oil, the finan- rocky pores. The technology is decades old, whole business model on its head. In order cial fallout has spread from drilling but has traditionally relied on CO2 pulled to operate, the system requires oil prices I companies to refineries and oilfield from natural sources underground. If the of at least $75 per barrel. Otherwise, it’s not maintenance companies. Now the crash CO2 comes from a power plant’s emis- worth the oil company’s money to bother has claimed another, more unlikely victim: sions, though, it can reduce the climate purchasing CO2 for EOR. Even before the The only system built to capture carbon impact of drilling. pandemic, the oil price was around $60; emissions from a coal plant in the US, one “EOR is a stepping stone,” says John after briefly dipping below zero in April, of only two worldwide. Thompson, technology and markets direc- it’s now around $40. Few experts expect The $1 billion system, known as Petra tor at the Clean Air Task Force, a research the price to return to pre-pandemic levels Nova, was built in 2017 to catch CO2 from group. “If you have to choose between oil anytime soon, if ever. one unit of a coal plant near Houston. That produced the conventional way or one “Petra Nova was a success in terms plant is one of the dirtiest in Texas, both in that’s reduced, you’d like all your oil to of technology,” says Daniel Cohan, a terms of climate and air quality impacts. come from that.” civil engineering professor at Rice who Petra Nova was meant to cut the unit’s co-authored the power plant study. “But carbon footprint by about a third—roughly The coal plant conundrum the premise behind it no longer makes the equivalent of taking 300,000 cars off Large-scale carbon capture and storage sense environmentally or financially.” the road each year. (CCS) systems, many of which rely on EOR, It’s not just coal plants feeling the But on July 28, the story broke out that have been rolled out at nearly two dozen pinch: A solar power farm in Oman that the facility has been shuttered since May. facilities worldwide. But they’ve remained produced concentrated steam for oil And while the plant’s owners have said elusive for power plants. In large part, drilling was liquidated in May because of they plan to get it running again once the that’s because the CO2 in power plant the low oil price. economy improves, Petra Nova’s shut- emissions is relatively diffuse. And that It’s a Catch-22: A promising technology down exposes the weird market dynamics means it’s more expensive to capture. for reducing emissions from coal requires that could threaten the sustainability of One groundbreaking coal plant CCS both high oil prices (aka, more oil being carbon capture facilities in the world. project in Mississippi turned into an infa- produced) and a lot of coal consumption. Capturing the carbon emissions from mous $8 billion boondoggle before it was “Proponents of these projects are selling power plants and other industrial facili- scrapped in 2018. The world’s only other an unproven dream that in all likelihood ties is widely considered a key part of any power plant CCS project, in Canada, has will become a nightmare for unsuspecting successful climate strategy. The trouble fared better: It claims to have captured investors,” Dennis Wamsted, an analyst is, there’s not a whole lot you can do with 3 million tons of CO2 since 2014, and has at the Institute for Energy Economics the CO2 after you capture it. That makes managed to stay open despite the low oil and Financial Analysis, said in a recent the economic case for installing a big, price because the country’s strict limits report on Petra Nova. “Investors would expensive piece of equipment a bit shaky on coal pollution make the economics do well to conduct their due diligence Some companies are helping create a more favorable. before investing in any coal-fired carbon market for CO2 by using it to make mat- The $1 billion Petra Nova project was capture project anywhere.” tresses, cement, and other manufactured supposed to top them all. But according “Wind and solar have gotten so cheap products. But the use with the greatest to a report the plant’s owners filed to that it’s smarter to close these plants than market potential today is, ironically for the Department of Energy in March, the keep them running,” he said. “My hope is a climate project, oil drilling. results have been mixed. that the carbon capture techniques dem- So-called “enhanced oil recovery” (EOR) The technology itself appears to be onstrated at Petra Nova can be applied to projects inject CO2 into oil wells to shake working: It managed to capture 92.4% of more sensible projects.” ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 45 ‘Let the record show’

CO-OPTED How Jomo stamped out oversight The era when the LSK paid for its colonial sins

BY GILBERT MUNYUMBU

nderstanding how the LSK attempted to restrain the Jomo Kenyatta regime from its excesses requires clarity in two U main areas. First, we need to understand the general state of rule of law under the Kenyatta rule, and second, we must interrogate the Kenyatta government’s attitude towards systematic oversight and restraint, which come through both horizontal and vertical accountability, by tracing the relationship the government built with institutions emerging powers to detain individuals without trial in order to out of these two types of accountability. deal with the political opposition that emerged in the The interaction with the LSK itself would need to aftermath of the falling out between Jomo Kenyatta be relayed in three phases: first, the interaction be- and Jaramogi Oginga Odinga. The overall justifica- tween the LSK and the Kenyatta regime in the early tion provided for the constitutional amendments days of independence; second, the interaction when under the regime was the need to build a stable and the regime took a turn towards a highly centralised united country. presidency after the departure of Jaramogi and the There is, nevertheless, at least one proposed assassination of Mboya; and third, the interaction amendment to the Constitution that the regime towards the end of the Kenyatta era. declined. This was the provision on the automatic If respect for a country’s Constitution is a measure replacement of the President by the Vice President of its government’s fidelity to the rule of law, then in case of the President’s indisposition, which had the Kenyatta regime began on a shaky footing. The been pushed by a certain section of politicians as- regime came into power under the Independence sociated with the GEMA movement. Constitution ratified during the third Lancaster Besides amending the Constitution, there existed Conference in 1963. Upon ascending into power, at least two other arenas where violation of rule of however, it embarked on dismantling this Consti- law was most blatantly exhibited under the regime. tution. It did this in phases, with the first decisive These were political assassinations and in dealing phase of amendments targeting the Majimbo (federal) with official corruption. Granted, assassinations did provisions, which the administration replaced with not commence under the Kenyatta administration, a centralized administration in which the Provincial since prior to independence, Senior Chief Waruhiu, Administration and ministries directly answerable and the two KAU officials, Tom Mbotela and Ambrose to Jomo Kenyatta were the ones to deliver public Ofafa, had been assassinated by suspected Mau goods and services, rather than regional govern- Mau agents. The regime, however, had its fair share ments. A significant amendment was The July 1966 of victims of assassinations in Pio Gama Pinto, Tom amendment. It gave the Minister for Home Affairs Mboya and JM Kariuki, among many others.

The Nairobi Law Monthly 46 • September 2020 LSK: FOOTPRINTS

ent relationship on institutions of accountability, both horizontal and vertical. Under horizontal account- If respect for ability, the Judiciary, Parliament and the political op- a country’s position were all subverted to the regime’s interests. Constitution The Judiciary, for instance, witnessed the regime’s is a measure wrath in 1968, when then Chief Justice, Justice Far- of its rell, sitting with Justice Dalton as an appellate court government’s reduced to six months the one-year sentence which fidelity to had been handed to KPU Vice President Bildad Kag- the rule of gia. Following this ruling, Jomo Kenyatta replaced law, then the the Chief Justice with the Solicitor-General, Kitili Kenyatta Mwendwa. regime began As for Parliament, the regime transformed it in on a shaky two main ways. First, it reduced the bi-cameral footing. The Parliament it inherited at independence into a Kenyatta unicameral House. Secondly, it merged with the regime foisted Opposition KADU, thus transforming Parliament a subservient into a single party House. Undermined in this way, relationship on Parliament became attuned more to agreeing with institutions of the Executive, rather than providing oversight. accountability, There were flashes of confrontation between the both two arms, for instance in the aftermath of the JM horizontal and Kariuki assassination. These were, however, rare vertical and did not result in any sanctions on the Executive. Furthermore, the Kenyatta regime directly violated parliamentary immunity, arresting and detaining at For official corruption, when the Kenyatta re- least three members - Martin Shikuku, Jean Marie gime came into power, there already existed The Seroney and George Anyona - for their utterances Prevention of Corruption Act of 1956. Although it and activities on the floor of the House. was strengthened further in 1967, this law was still For the political opposition, the Kenyatta regime unable to prevent widespread corruption by regime used at least five strategies to subvert accountability. functionaries. First was the use of direct violence against the Opposi- Overall, the relationship between the Kenyatta tion, as was witnessed initially against the Northern regime and accountability was marked by a distinct Frontier District (NFD) agitators who had declared style. In the first major crisis that it faced in the af- intention to secede from Kenya, and later against the termath of Mboya’s assassination in 1969, the regime KPU. The second strategy involved changing and/or turned to ethnic mobilization through oathing meant adjusting the law to suppress the Opposition. This was to bind the GEMA tribes to it. With the murder of witnessed mostly after the formation of KPU. With JM Kariuki in 1975, it embarked on a campaign of KPU threatening to turn into a mass party through disinformation, extracted pledges of loyalty from the defection of at least 29 Members of Parliament, cabinet ministers and publicly displayed its military the regime hastily enacted the fifth amendment power. In the aftermath of the October 1969 massacre to the independence Constitution, which now de- of residents of Kisumu, the regime downplayed the manded that those defecting to KPU had to resign incident by underreporting casualty figures, blam- and seek re-election to their new party. Besides the ing the incident on the Opposition and destroying constitutional amendment, the regime also passed photographic and video evidence of the incident. It a cabinet resolution, which banned KPU. should be granted, nonetheless, that in the aftermath The third strategy was through electoral malprac- of Ronald Ngala’s death in February 1973, the regime tices meant to deny Opposition politicians their par- staged a public inquest into the death, thus making liamentary seats. This was witnessed in the regime’s the death uncharacteristically transparent. fight against KPU, but also against regime critics such In terms of the relationship with systematic ac- as JM Kariuki. The fourth strategy involved concoct- countability, the Kenyatta regime foisted a subservi- ing propaganda against the Opposition, including www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 47 ‘Let the record show’

accusing it of seeking to overthrow the Government as GEMA, trade unions, academia and professional with the help of foreign powers, staging discoveries of organisations. In terms of the relationship with the weapon caches in the offices of Opposition leaders, The Judiciary Church, it complemented state efforts in the social and branding the Opposition with colourful names, the witnessed and economic realms. Kenyatta himself adopted most famous of which was Attorney General Charles the regime’s the Church as a platform for preaching unity in the Njonjo’s labelling of the group of vocal backbenchers wrath in 1968, country. Due to the minimal or largely negative role consisting of Koigi Wa Wamwere, James Orengo, when then that these churches had played during the decolonisa- Abuya Abuya, Chelagat Mutai, Chibule wa Tsuma, Chief Justice, tion period, they lacked the legitimacy to be critical Mwashengu wa Mwachofi and Lawrence Sifuna as Justice Farrell, of Kenyatta. In time however, especially with the the ‘Seven Bearded Sisters.’ The final strategy in- sitting with increased Africanisation of leadership within these volved direct removal of political opponents, either Justice Dalton mainstream churches, a more critical stance began through assassinations as witnessed in the cases of as an appellate emerging from some of them. This was largely cen- Pinto, Mboya and Kariuki, exile as was the case of court reduced tred on the National Council of Churches of Kenya Orengo and Mutai or detention, as was the case of to six months (NCCK) and was communicated through publications. at least the 26 detainees at the time of Kenyatta’s the one-year There were three main critical Church-sponsored death in August 1978. sentence publications during this period, namely Target, A key player in ensuring the subservience of which had Beyond and Rock. horizontal accountability institutions to the Kenyatta been handed Of the three, Target was the most radical, publishing regime was Attorney General Charles Njonjo. Njonjo’s to KPU Vice on politics. Its editor, John Schofield was, however, control of the rule of law institutions spanned the President dismissed after he criticized the Government for broad expanse of judicial, parliamentary, electoral, Bildad Kaggia. constructing the Kenyatta International Conference investigative, and prosecutorial spheres. Within the Following this as Kanu headquarters using public funds. He was Judiciary, at least one Chief Justice, James Wicks, is ruling, Jomo replaced by Henry Okullu, who continued Schofield’s on record indicating that he asked for direction from Kenyatta critical editorial policy. Okullu was responsible for Njonjo on how to decide cases. Within Parliament, replaced some of the explosive denunciations of the Kenyatta Njonjo wielded immense powers witnessed in the the Chief excesses through publishing articles such as ‘Com- swiftness with which he had laws passed such as was Justice with plaints of the Wananchi – a Confidential Report to the the case in passing the law which salvaged Paul Ngei the Solicitor- President’ and ‘Who Controls Industry’ both of which from sanctions over electoral malpractices. He also General, Kitili addressed ills of the Kenyatta regime. controlled Parliament through detaining and exiling Mwendwa It was, however, the oathing ceremonies in the vocal backbenchers. aftermath of the assassination of Tom Mboya in For electoral agencies, it was Njonjo who appointed 1969, which led to open disagreement between the the national election supervisor, and controlled the Kenyatta regime and the Church. Although Kenyatta entire electoral management system through district attempted to co-opt part of the Church into taking commissioners who acted as election returning part in the ceremonies, it rejected this and wrote at officers. For investigative agencies, he used them least three letters against the oaths, with the first to collect information on potential rivals including letter denouncing the oaths, the second decrying the cabinet ministers and MPs and used it against them. plight into which the oaths were pushing the GEMA In the prosecutorial sphere, Njonjo used his powers community and the third lamenting the brutality with of prosecution to punish opponents and media out- which the oath was forced onto people. Beyond the lets that were critical of the government. The list of letters, the Church staged a public anti-oath dem- people jailed in this way included Wangari Maathai, onstration, forcing Kenyatta to capitulate. media personality Salim Lone, MPs Mark Mwithaga, In general, however, the Church’s relationship with Muhuri Muchiri, Jesse Gachago, and LSK member AR the Kenyatta regime was one of, at best respectful Kapila. With such expansive influence on horizontal distance from, or at worst, complicity in the regime’s accountability institutions, Njonjo diminished their excesses. Not only were significant sections of the ability in restraining the Kenyatta regime. Church complicit in the land and property grabbing As for vertical accountability, which largely ema- prevalent during the Kenyatta era, it also relegated nates from actions of societal groupings, the Ke- any serious engagement with the regime’s excesses nyatta regime cultivated a chequered relationship to a few lone voices in the Church, particularly Okullu with many entities within this realm. Among these and David Gitari. were the Church, the media, ethnic groupings such Besides the Church, the media was part of societal

The Nairobi Law Monthly 48 • September 2020 LSK: FOOTPRINTS

groupings whose relationship with the Kenyatta re- sassination of JM Kariuki, although other protests gime was important in fostering accountability in the had been witnessed, for instance in the appointment regime. By Independence, Kenya had at least 2 major of Josephat Karanja as University of Nairobi’s Vice dailies – the East African Standard, which started in Chancellor, which was denounced as unmerited. 1902, and the Daily Nation, which emerged in 1960. With Kariuki’s assassination, the academia became In addition to the two newspapers, the Kenyatta era a vocal critic of the regime, with both students and witnessed the gradual expansion in media outlets, academic staff staging protests and generating radi- including the emergence of the Weekly Review in 1975 cal publications. This led the regime to ban certain and the rise of Church-affiliated publications. Besides, academic works, and target prominent anti-regime the broadcasting media witnessed the nationaliza- academics such as Ngugi wa Thiong’o, who was thrown tion of the Voice of Kenya radio and television and into detention and later exiled. its subsequent branding as the Kenya Broadcasting The final significant societal grouping that related Corporation in 1967. with the regime in a way that should have fostered In terms of editorial content under the Kenyatta accountability was the labour movement. The regime regime, the record indicates snippets of restraining inherited a robust labour movement that had cut its the regime by a section of the media, but which were teeth in opposing colonisation. Fully aware of the scuttled. As was the case with the Church-affiliated power which the movement wielded, the Kenyatta publications, they condemned the regime’s excesses, regime embarked on a systematic dismantling of the but this was at the risk of personal losses, as happened movement soon after independence. It did this by for the Target editor John Schofield, who was sacked appointing a nine-member committee comprising for denouncing use of public funds to construct the Cabinet ministers, among them former trade union Kanu headquarters. A more pronounced case of how leader Tom Mboya. The committee’s mandate was the regime treated the media was witnessed in its to review the trade union situation in the country, relationship with the Daily Nation. Under the editorial make recommendations on how to centralise move- direction of George Githii who had been Kenyatta’s ment in the country into one monolithic entity which personal press secretary, the Nation became more can be easily controlled by the government, and critical in its reportage of corruption and bad gov- provide justification for the expected clamp down ernance under the regime. One case reported under on the movement. this direction involved Nairobi Alderman Charles Following the committee’s recommendations, the Rubia, who wanted to purchase a Rolls Royce. The regime deregistered at least two unions, the Kenya Nation’s scathing attack of the purchase led to the Federation of Labour and the Kenya African Workers President forbidding it. Another case, which the Congress in 1965. Their members were prohibited Nation reported involved corruption at the National from affiliating to any external labour movements Maize Reserve, implicating veteran politician Paul and compelled to join the Central Organisation of Ngei. Kenyatta’s reaction in this instance consisted Trade Unions (Cotu), which the government created of dropping Ngei from the Cabinet and ordering an as the new union of all Kenyan workers. The President inconclusive inquiry into the matter. appointed Clement Lubembe as the union’s first Direct confrontation between the Nation and the secretary-general, affiliated it to the ruling party Kenyatta regime occurred over the Preservation of Kanu and kept its leadership under constant watch Public Security Act of 1966. The Nation vigorously to ensure it did not depart from supporting govern- opposed the Act, arguing that there was no justifica- ment policy. Hence, of all the societal groupings, it was tion for detention without trial. This stance brought the labour movement that was the most thoroughly its editor-in-chief in direct conflict with top regime co-opted by the Kenyatta regime. functionaries and prompted President Kenyatta It was under this regime of subservient checks and to summon and warn the editor against going ‘too balance institutions and co-opted and controlled far’. The newspaper also lost its Ghanaian expatri- societal groupings that the LSK was expected to ate deputy editor who was subsequently deported. restrain the Kenyatta regime. In part two of this The same ambivalent relationship may be said article, we shall explore how effective the LSK was to have applied in the regime’s interaction with in this endeavor. ( academia. By the time the regime wound up in 1978, — Muyumbu is researching the Law Society of there was frequent confrontation between its agents Kenya’s history for his PhD at Egerton University. and academia. This was particularly so after the as- Reach him on [email protected] www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 49 FOLLOW US: Facebook: /nairobilawmonthly Black Twitter: @nairobilawmonthly COMMENTARY Letter For Kenya, a Law constitutional crisis grows COURT DRAMA • SPOTLIGHT • LAW REVIEW And a forthright judge speaks

BY CARMEL RICKARD

s Kenya celebrated the 10th anniversary of its constitution, with virtual seminars, webinars and other discussions, one of A the most serious challenges yet brought under the constitution is making its way through the courts. That problem is the failure of the country’s President, Uhuru Kenyatta, to appoint more than 40 judges nominated by the Judicial Service Commis- sion. And, equally significant, his failure to abide by a court order that the judges be appointed. – Ambrose Bierce In February three Kenyan judges of the high court’s American journalist and poet constitutional and human rights division delivered a damning judgment. The first sentence of the judgment explained it all, as well as the context: “This is the Trial. A formal inquiry second time in the short history of our 2010 Consti- tution that this court is being called upon to resolve meant to prove the a stalemate between the President, a state officer, and the Judicial Service Commission, a state organ, blameless characters over the appointment of judges to superior courts.” After considering the law and the facts, the court of jurors, judges and found that the President “has no mandate to review, reconsider or decline to appoint persons recom- advocates. mended by [the Judicial Service Commission] as judges. We also find that the delay by the President in appointing the persons recommended, is unrea- sonable and unconstitutional.” The court thus issued a declaration that the President was “constitutionally bound” by the rec- Rise of the non-equity ommendation of the JSC, with a second declaration partner: short-term gain for that his failure to appoint those recommended by the JSC “violates the Constitution and the Judicial long-term pain? Service Act”. P.54 Last month, the high court considered another round in the same dispute, with a further application related to the problem. The Katiba Institute, a body that promotes and defends constitutionalism

The Nairobi Law Monthly 50 • September 2020 FOLLOW US: Facebook: /nairobilawmonthly Twitter: @nairobilawmonthly RULE OF LAW

in Kenya, asked that the judge hearing the matter President the country – wait for the Chief Justice to appoint should direct the dispute to be heard by a bench of Uhuru Kenyatta a bench to hear this highly contentious matter, and addresses a judges appointed by the Chief Justice. political rally. if possible to avoid a constitutional crisis, a series of What would the dispute be about? In the view His disdain for virtual discussions are taking place to mark the 10th the courts and of the court the matter to be heard by a bench of therefore due anniversary of that very same constitution. judges raised “rather novel and substantial ques- process is a Most recently, in the same month of August, the matter of public tions”, including what remedy was available when the record. African Network of Constitutional Lawyers, co-hosted President “disregards a court order”. For example, a symposium on the issue. One of the speakers was would the “doctrine of necessity be available” to Justice Johann Kriegler, retired member of South prevent further violation of the constitution by the Africa’s Constitutional Court. He chaired a six-person President? Judge William Musyoka added that the international commission of inquiry that investigated petition arises from the alleged failure by the Presi- Kenya’s disputed 2007 presidential elections. dent to comply with the judgment of the high court During the symposium he looked closely at the delivered in February and that involved “what are Kenyan electoral system and he had some strong clearly public interest issues”. words about the fact that yet more changes to the Judge Musyoka added, “I am of the considered new constitution were being proposed. view that the matter [involves] substantial issues He said much of what his commission recommended of a constitutional nature, on separation of powers in 2008 was included in the present constitution, and between the executive and the judiciary.” much had not been accepted. But, he said, Kenyans But while the Katiba Institute – and the rest of should understand that “constitutions do not make

www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 51 Black Letter Law

societies work. Rather, societies make their consti- ADAPTING TO THE TIMES tutions work.” “Constitutions and laws are only as good and as strong and as effective as the people want to make Overcoming them. We concentrated in the report in 2008 on trying to say that the problem is in your hearts, not in your laws. The problem is in your practices, not in the next your proposed or your propounded principles. It’s what you actually do that makes your elections fail and makes your systems fail.” big hurdle Justice Kriegler said he was disappointed though not surprised to hear that Kenyans are once again “seriously talking about constitutional amendments.” for remote “The problem is not with the constitution; whether it is parliamentary or presidential is really not the issue. Let me look at the electoral system. The talk law firms: has now been this afternoon – and I believe it is quite common in Kenya – that the electoral system should change because the first-past-the-post system is a efficiency system that excludes minorities and does not allow for proper representation of various interest groups Now that many firms have in society. And there are a lot of spoilt votes and a implemented comprehensive home lot of minor influences and opinions that are never office security measures, lawyers reflected in the public debate in the legislature. must turn their attention to increasing “In South Africa where we have a proportional efficiency while working remotely. representation system, the people, the voters, the commentators who are more or less informed, are agitating for a first-past-the-post electoral system. “The real problem in Kenya is unaccountability of representatives, people who go to parliament BY GULAM ZADE on promises and live on their salaries. The problem in South Africa is people who go to parliament on fter the transition to remote-work models promises and stay there on their salaries. The system in 2020 due to the coronavirus pandemic, of election does not make for honest, accountable lawyers faced an uptick in security and politicians. The system of government cannot make A privacy issues. Many home networks for polite policemen instead of thugs. The system of were not as secure as those in the office. Cyber government cannot make for honest judges instead criminals took advantage of fear and confusion sur- of agents of the governing party. rounding the virus and deployed targeted phishing “Civil society must keep its politicians honest. scams. Insecure passwords and the use of personal No electoral commission can function adequately devices for work tasks put private data at high risk without the support of the body politic as a whole. for exposure. Without the willing cooperation of the political class, Fortunately, now, months later, many law firms an electoral management body will fail. The electoral have been able to overcome remote work security commission in Kenya… cannot succeed unless and concerns through the use of cloud technology, training until the political players are prepared to say this is and the implementation and execution of updated, the referee, this is the person who is in control of the company-wide security policies and procedures. rules of the match, the contest for power. Now that security challenges have been addressed, “That is not the electoral commission’s fault. It law firms must face their next hurdle: efficiency. As is the fault of the political class. It is the fault of many law firms and their corporate clients continue the people of Kenya who allow the political class to work remotely, they need to increase efficiency to maintain the hegemony that they have had ever in this nontraditional environment. Here are a few since independence in the 60s.” ( places to begin.

The Nairobi Law Monthly 52 • September 2020 PROFESSIONAL PRACTICE

it can be used to further business goals and support efficiency. Cloud services are the easiest to update and can be quickly integrated across your entire organization. Tracking project progress is also simpler when technology systems are integrated and working together. The best way to achieve this is to use software, hardware and other programs with specific functions that won’t overlap with other technologies.

Over-communicate and collaborate Increased communication is also critical to maxi- mise remote-work efficiency. Overcommunication does not have to mean micromanagement. The use of communication and team collaboration tools, such as Microsoft Teams, allow attorneys to easily and securely message and share files. Messaging platforms like Microsoft Teams offer a quick way to communicate informal messages that may not necessitate an email. The use of videoconferencing, not only for firm meetings but also for client work like mediation, can also create efficiencies. When using Zoom for mediation, attorneys can use the screen share feature to show documents and make edits in real time, minimizing the back and forth of editing via email.

Operate remote technical support Technology doesn’t always run smoothly. Having a team of professionals available for remote trouble- shooting will help get attorneys back on track when issues arise and lessen their frustrations. When Update hardware and software implementing your virtual help desk, it’s key to If hardware and software is outdated or not func- ensure all end users are well trained on how to use tioning properly, it will be almost impossible to the firm’s system. It may also be wise to consider maximize efficiency. Outdated technology will not engaging an outsourced IT partner to improve the allow teams to perform at their full potential, leaving user experience and save time. attorneys and staff frustrated and diminishing firm An IT support partner will have the resources and growth capacity. expertise to resolve technical issues, leaving more This can also create ethical issues. Old technology time for attorneys to focus on providing exceptional makes it hard for attorneys to adhere to rules regard- service to their clients. Choosing to outsource remote ing technology competence. An assessment-based technical support often means receiving higher approach that evaluates all technology systems used quality support from specialists at a lower total and end user experiences is a good place to begin. cost to the firm. Then, complete updates or invest in new technolo- One of the biggest challenges when increasing gies. For remote work, cloud-based and subscription remote-work efficiency is knowing when team services are good options because they are scalable members are working and being able to track project and allow for access from anywhere with an internet progress. Require regular check-ins and reports to connection. help keep teams on track. Face-to-face interaction through the use of videoconferencing technology for Unify systems remote meetings can create camaraderie, strengthen Technology integration is a key indicator of how well attorney and staff relationships and build trust. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 53 Black Letter Law

PARTNERSHIP MODELS non-equity numbers, while keeping equity partners relatively flat or at least growing incrementally, firms can maintain high-levels of Profits Per Equity Rise of the non- Partner (PEP) and therefore bolster retainment of its top-performing equity partners. At the same time, a strong and growing PEP figure makes the firm a equity partner: more attractive proposition to prospective talent. Firms in the top echelons of the legal market have come to realise how useful PEP can be as a competi- short-term gain tive advantage in the lateral hiring market. For these firms, PEP is now not only one of the most important metrics at their disposal but provides the primary for long-term means to maintain a business model built largely on talent management, recruitment, and retention. This weaponizing of PEP has since trickled down pain? to the rest of the market, as more firms begin to grapple with issues of retainment and retention of As non-equity ranks continue to grow across top performers. The result has been a market-wide both sides of the Atlantic are firms losing sight of shifting of the partnership model. the need to maintain long term sustainability? Adjusting partnership models is a mechanism by which firms can bolster PEP quickly. This contrasts with other levers that can be used to increase PEP, principally cost reduction and revenue per lawyer BY JAMES WILLER growth.

hanges in partnership structure is a well- Rising costs established trend across the global legal Unsurprisingly, costs continue to increase for many market, impacting firms of all sizes. Central firms. In 2018, 85% of the Am Law 200 saw an increase C to this shift has been the rise of non-equity in Cost Per Lawyer (CPL). Amongst the UK Top 50, partners, now a recognizable industry staple. this figure stood at 60%. For 29% of these UK firms, Over the last ten years, the number of non-equity this cost growth was faster than the year before. partners across the Am Law 200 has increased by Costs are not just increasing but also proving more 36% from 17,086 to 23,166. On average, non-equity difficult to stem. Firms now have little choice but to partners now represent a 44% share of the overall spend on technology and process improvements, partnership at Am Law 200 firms. This contrasts with both to keep abreast with the rest of the market but 38% in 2009. In 2018 alone, 46% of Am Law 200 firms RPL slowdown meet client demands. Added to this are the spiralling increased the proportion of non-equity partners is a reflection of costs relating to lateral hiring and associate salary within their overall partnership. changing global increases. A similar trend has emerged in the UK. Across conditions. Furthermore, cutting costs can in itself pose a risk the same ten year period the number of non-equity Diversifying to PEP growth. There is only so much a firm can begin partners at UK Top 50 firms has rocketed by 92% market to reduce its cost base before it starts to impact the from 3,696 to just over 7,000. Furthermore, the aver- dynamics top line and consequently profitability. For example, age percentage of non-equity partners as a share of has resulted cutting costs by reducing footprint only serves to overall partnership has risen from 40% to 45%. This in reduced reduce the number of potential timekeepers and pricing power compares with the proportion of equity partners therefore billable hour activity. for many firms. which has fallen from 60% to 55%. These collective pressures are making it increas- This means conversations ingly more difficult to reign in spend and therefore, Weaponizing PEP around rate for many firms, continues to act as a drag upon main- Given the prevailing market climate across both increases are taining and bolstering profitability for their equity. sides of the Atlantic, this upward trajectory should proving more not come as a surprise. The trigger for this shift has difficult to RPL slowdown been the lateral hiring landscape. By increasing manage The other mechanism that can be used to boost

The Nairobi Law Monthly 54 • September 2020 SUSTAINABILITY SHIFTS

PEP is Revenue Per Lawyer (RPL). RPL is an organic ning or in the middle of a longer-term growth trend. measure of how efficient a firm’s lawyers are at If this trajectory does begin to gain momentum what generating revenue, be it from rate negotiation, bill- are the long-term implications? ing or utilization. In addition to increasing rates and Aside from aiding PEP growth, increasing non-equity worked hours, a firm can also boost RPL by building ranks has some other advantages. This includes ef- scale, utilising non-attorney timekeepers and making fectively catering to those associates who have no use of automation. intention from the outset of reaching equity partner Average RPL across the Am Law 200 grew 4% in status. For these, the rise of non-equity partner 2018, although this performance was varied across positions not only sufficiently caters for this career the board. In the case of the Am Law 100, 14% of firms expectation, but also enables a position of seniority posted shrinkage in RPL, while 10% of firms grew and recognition to be reached. RPL by less than inflation. Two-thirds posted slow This seniority status also acts as an advantage from to moderate growth. A similar trend is also impact- the perspective of firms. Non-equity partners still ing the UK market. In 2018, average RPL across the retain the title ‘partner’ and therefore from a client UK Top 50 grew by just 1%. This marked the second point of view with it, the accompanying expertise. successive year of slower growth. This enables non-equity partners to demand higher RPL slowdown is a reflection of changing global rates but at a lower cost to the firm in comparison to if conditions. Diversifying market dynamics has re- they retained the title of ‘associate’. This, in turn, can sulted in reduced pricing power for many firms. translate into improved business development efforts This means conversations around rate increases are and financial productivity at the more junior level. proving more difficult to manage. At the same time, At the other end of the spectrum, there are those new market entrants and increased client insourcing associates that do have every intention of reaching are capturing a growing proportion of demand that equity partner status. For these associates, they would have once been captured by firms. This has are now seeing their route to achieving this become resulted in issues with maintaining and increasing narrowed as firms begin to demonstrate increasing lawyer financial productivity. immovability within the top-echelons of partnership. These market changes have added to the time it Accordingly, as more associates instead begin to takes for firms to increase RPL. Executing strategies take up non-equity positions, there is a danger of to boost RPL, such as building scale, are not achiev- these ranks forming a bottleneck of non-progressive able overnight. This longer process means that talent. As this bottleneck continues to grow, issues Aside from firms can less readily rely upon RPL as a metric to of morale and lack of clarity over a firm’s progres- aiding PEP increase PEP quickly which is off the essence when growth, sion track could expose itself. This can translate it comes standing out in an ultra-competitive lateral increasing non- into declining financial productivity and an exodus hiring market. equity ranks of talent. Firms should not lose sight of the need to Partnership adjustments are therefore one of the effectively ensure that non-equity partners themselves must few remaining mechanisms at the disposal of firms caters to remain profitable and productive. A growing cohort that can be reliably utilized to increase PEP expedi- associates of non-business generating partners will in itself only tiously. However, firms should be wary of placing too who have no act as an impediment to PEP growth. much short-term emphasis on tweaking partnership intention from To ensure non-equity partners remain produc- structures. To do so runs this risk of losing sight of the outset tive, be it concerning generation or hours worked, the need to ensure that more organic measures of of reaching firms need to put in place robust and transparent long term sustainability such as RPL growth and costs equity partner structures of reward. This could include ensuring management still need to be adhered to. status. For contributions to firm profitability or business de- them, partner velopment are effectively incentivized or having in positions Bottleneck of talent place clear pathways of professional development. cater to career Shifts in partnership models are not unusual in the expectations, The steady march towards more non-equity part- professional services sector. For example, in con- and enable ners shows no sign of slowing. This shift is only likely sulting, the ratio of non-equity partners to equity attainment of to accelerate as the lateral hiring market’s requisite partners is currently much higher than that which a position of need for strong PEP growth intensifies. Firms need exists in legal. This suggests that if the legal market seniority and to have in place clear strategies from the outset to follows the same trajectory, the divergence towards recognition to secure and retain talent not just at the equity level, non-equity partners is a trend that is just at the begin- be reached. but across the full spectrum of partnership. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 55 FOLLOW US: Facebook: /nairobilawmonthly A gripping biography of Twitter: @nairobilawmonthly the leader of the slave revolt that led to Haiti’s independence, described Life as ‘the first black superhero of the modern age’

REVIEWS • SPORTS • ARTS • BOOKS • CULTURE • KENYA THROUGH THE LENS

THROUGH THE LENS Crelic innovations ↴P50

BOOK REVIEW Black Spartacus – the epic life of Toussaint Louverture The Nairobi Law Monthly 56 • September 2020 LITERATURE

Toussaint outmanoeuvred the French, emerged as the colony’s uncontested strongman, and brought Saint- Domingue (Haiti) to the brink of independence.

In response, France’s new leader Napo- leon Bonaparte sent a massive military expedition to reassert full French control. It ultimately failed, leading to Haitian independence at the start of 1804, but it did manage to defeat Tous- saint and take him prisoner. He died in the cold, lonely Fort de Joux in the Jura mountains of France in 1803. The story is astonishing – but also astonishingly difficult to write about. Sources for Toussaint’s life before the rebellion are scant and scattered. Histo- rians only discovered in the 1970s that he had gained his freedom in the 1770s and had himself briefly owned at least one slave. Much more documentary information about him survives, but it A statue of Toussaint is dispersed among dozens of archives Louverture. in several countries. Haitian historians have never had the resources to o figure from the 18th- tory and then moulded the rebels into a compile, let alone edit and publish it in century “age of revolution” remarkably effective army. the way that American historians have had as extraordinary a life In 1794 he agreed to join forces with done for their “founding fathers”. Only N as Toussaint Louverture. France’s radical first republic, which in the past quarter-century, thanks to He was born a slave in the 1740s, in one had proclaimed the abolition of slavery the academy’s turns towards “global” of the cruellest and deadliest environ- in its overseas empire. As a French and “subaltern” histories, has the ments humans have ever created: the army general and the colony’s lieuten- Haitian revolution attracted sustained French Caribbean colony then called ant governor he defeated a series of scholarly attention in North America Saint-Domingue (now Haiti), where enemies, including British invaders, and and Europe. rapacious white planters worked hun- saved Saint-Domingue for France. By Toussaint’s previous biographers dreds of thousands of captive people the end of the decade he had outma- have drawn on the surviving shards of to death to feed Europe’s growing taste noeuvred a series of French officials, information to produce wildly differ- for sugar and coffee. In the early 1790s, overcome black rivals, emerged as the ent portraits. For the great Trinidadian Toussaint helped start the largest and colony’s uncontested strongman, and intellectual CLR James, Toussaint was most successful slave rebellion in his- brought it to the brink of independence. an anti-imperialist freedom fighter www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 57 Black Spartacus is a tour de force: by far the most complete, authoritative and Life persuasive biography of Toussaint that we are likely to have for a long time. avant la lettre. The conservative French diplomat Pierre Pluchon cast him, much less convincingly, as an acquisi- Toussaint and his tive aspiring landowner interested in creole republicanism exploiting the plantation system for his own benefit. Most recently, the French- have remained American historian Philippe Girard has powerful sources of emphasised Toussaint’s ruthlessness hope, both in Haiti and tendencies towards dictatorship. Sudhir Hazareesingh would not seem and beyond. the most obvious candidate to write Toussaint’s definitive biography. He has not previously worked on Carib- bean history. He is best known for Ten of 12 chapters deal with these later books on contemporary French politi- years. cal history and for a sprightly, provoca- He characterises Toussaint as a tive volume entitled How the French canny “revolutionary political opera- Think. But his Black Spartacus is a tour tor”, who knew how to mobilise the de force: by far the most complete, black masses behind him, helping him authoritative and persuasive biography force out the successive French of- of Toussaint that we are likely to have ficials who tried to rein in his authority. for a long time. It is not without its own This support depended on more than very strong point of view, presenting just Toussaint’s own personal charisma. Toussaint above all as a fierce and ef- He forged what Hazareesingh calls fective opponent of slavery. But it is at a “creole republicanism” that drew times an extraordinarily gripping read. on French, African and indigenous The book is grounded in a remark- sources, was centred on a fierce, abso- able job of research. Hazareesingh has lute opposition to slavery, and inspired scoured archives in France, Britain, the genuine confidence and public spirited- US and Spain (not Haiti itself, where, ness among the former enslaved. regrettably, relatively little material In a careful study of a representative has survived). He has not been able to hamlet, Môle Saint-Nicolas, Hazareesi- resolve some of the greatest open ques- ngh speaks repeatedly of Toussaint’s tions about Toussaint, such as whether “success” in shaping a new sort of the black leader plotted the slave rebel- political community. And he quotes lion at the behest of French royalists, a report to France’s ruling Directory: who hoped it would undercut moves “The commander-in-chief has the confi- towards independence by white land- dence, respect, and love of nine-tenths ruthless. At one point, needing to win owners. Rumours to this effect have of the population.” Hazareesingh also British goodwill, he cynically betrayed circulated since the events themselves. makes clear that Toussaint possessed a Jewish agent he had helped send to Hazareesingh does not believe them, extraordinary personal qualities, in- Jamaica to start a slave uprising there but has little new evidence. However cluding exemplary personal courage (he (the man was hanged). Furthermore, in thanks above all to new soundings in was wounded in battle some 17 times), Toussaint’s desperation to restore the the French colonial archives, including strategic brilliance, powerful eloquence pre-revolutionary plantation economy, both the correspondence of French and an almost superhuman stamina he “became increasingly trapped in an officials and records of the colonial and work ethic. authoritarian spiral”. But Napoleon’s administration, he has provided a far This book does recognise that espe- invasion “brought him back to his richer portrait of Toussaint’s years in cially towards the end of his rule, Tous- republican self” as he again inspired power than was previously available. saint turned increasingly secretive and his followers to bond together to fight

The Nairobi Law Monthly 58 • September 2020 LITERATURE

own property, and provoked considerable discontent among the former slaves. As the historian Johnhenry Gonzalez has recently argued in Maroon Nation, these men and women themselves fiercely hated the quasi-industrial plantation system, and focused much of their revolutionary fury on smash- ing plantation machinery (Gonzalez calls them more successful versions of Britain’s machine-breaking Luddites). After independence, they defied the attempts of successive Haitian rulers to corral them back on to the plantations, and instead voted with their feet, moving into unsettled areas and taking up subsistence farming. The plantation economy, which Toussaint had brought back to roughly a third of its pre-revolutionary dimensions, collapsed for good. His increasing authoritarianism argu- ably prefigured the dictatorships that have plagued Haiti throughout so much of its history. Still, it would be a large mistake to hold Toussaint responsible for the ills that have plagued his country since independence. If that responsibility lies anywhere, it is with the western powers that long treated Haiti as a pariah state. In return for diplomatic recognition, France in 1825 forced Haiti to pay crushing reparations for lost colonial property (including human property). The US subjected it to 19 years of military occupation in the early 20th century, and later supported for their liberation. He died a martyr of plantations in what amounted to a the horrific dictatorship of the Duvalier freedom, and ever since his memory form of serfdom. Toussaint also treated family. Under these conditions, made has been venerated, especially but not white landowners with undue magna- worse by the difficult aftermath of only among people of African descent. nimity, protecting their property and revolution, and by repeated natural Hazareesingh goes so far as to call Tous- allowing them to fill most of the political disasters, any chance of establishing saint “the first black superhero of the offices in places like Môle Saint-Nicolas. a stable democratic state was vanish- modern age”. He certainly believed that without the ingly thin. Even so, throughout modern His admiration does lead him to skate wealth generated by largely white-run history, as Black Spartacus reminds us, lightly over the most troubling aspects sugar and coffee plantations, Saint- Toussaint and his creole republicanism of Toussaint’s career. The “authoritar- Domingue would be left defenceless have remained powerful sources of ian spiral” to which he refers involved against its many enemies. But he took hope, both in Haiti and beyond.( forcing former slaves to return to their some of the richest plantations for his — (This review first ran in the Guardian) www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 59 The combination of video media and the “feed” makes TikTok especially information Life dense. There’s a lot going on with each tiktok, and there is a never-ending stream of tiktoks.

‘A GEOPOLITICAL FOOTBALL’ TikTok is a unique blend of social media platforms – here’s why kids love it

BY KEVIN MUNGER How it works Each tiktok is a 3-to 60-second-long ikTok, a social media video that loops when finished. The platform targeted at young majority of the screen is taken up by mobile phone users, was the video uploaded by the user. The T the second-most down- app offers a wide range of options loaded app in the world in 2019. It was for customizing and combining these the most downloaded app in July 2020. videos, including video taken with the It’s also become a geopolitical user’s smartphone, photos uploaded football. Owned by Chinese company from the web, emojis and other text ByteDance, TikTok has been banned superimposed on the video, and special by India along with 58 other Chinese- effects. The app’s library of filters and owned apps in July in response to video-distorting effects is like Insta- escalating border tensions between the gram filters but for video. two countries. The Trump administra- The bottom of the screen contains in- tion issued an executive order banning formation about the “sound”: the audio TikTok and Chinese-owned messag- file that accompanies the video. These How it compares ing platform WeChat from engaging “sounds” can either be user-uploaded Comparing TikTok with other digital in transactions in the United States in or chosen from a library of popular media platforms shows what makes it August. The company sued the Trump sounds. This library contains both snip- unique. Like YouTube, TikTok consists administration in response to the ban. pets of songs by professional musicians entirely of videos. Like Facebook and As a political scientist who studies and silly recordings of people talking. Twitter the primary mode of consum- social media, I’ve looked at what makes “Sounds” have had a huge impact on ing tiktoks is by navigating through a TikTok unique and why young people the music industry: “Old Town Road,” “feed” of short, digestible posts. have flocked to it. In short, the phone- one of the most popular songs of all Like Netflix, the default mode of only app lets users record themselves time, first gained popularity as a TikTok encountering content is through dancing or goofing around to a music “sound” with an associated dance. the recommendation algorithm, not or spoken-word clip and then alter the When you open the app, you encoun- through the construction of “friend” or videos using a wide array of effects. ter a tiktok that starts playing. This is “follower” networks. And like Snapchat Despite its superficially frivolous na- the “For You Page,” which plays tiktoks and Instagram, TikTok can only be ture, young people have been using the that TikTok’s algorithm recommends produced on mobile phones, favoring platform to send political messages, co- for you. To go to the next tiktok, you younger users who are more fluent with ordinate political actions and hang out swipe up. To see the account that up- smartphones than computers. in an online space largely free of adults. loaded the current tiktok, swipe right. TikTok is the first social media plat-

The Nairobi Law Monthly 60 • September 2020 SOCIAL MEDIA

consumer to scan through several online platform for young people that pieces of bite-sized content per minute, feels unusually disconnected from the extracting information in a much more adult world, one in which they are sure efficient fashion than from a televi- to get some amount of attention. sion broadcast. In combination, these trends make scrolling through the “For Common sounds, unique moves You Page” a whirlwind experience, Finally, the “sounds” that users com- a significant advance in information bine with their personalized videos density. represent a novel way to categorize If you spend a few hours on TikTok, and navigate a social media platform, a you’ll see how this works. Other media feature unique to TikTok. If you click on begins to feel “slow,” even formerly the “sound” at the bottom of a tiktok, compelling products like a YouTube you can see all of the other tiktoks that video or Twitter feed. Younger people use that sound file. tend to love intensity – loud music, The most common example involves bright lights – and it’s no surprise they a specific dance routine paired with find TikTok compelling. the accompanying “sound.” The audio is constant across this group of tiktoks, Different costs and benefits but each user provides a unique video TikTok also shifts the costs and of themselves performing the dance. benefits of posting. On the costs side, These dances are examples of TikTok because TikTok is designed for smart- memes. “Memes” on more text- or phones it’s easier for some people to image-focused platforms involve use, and harder for others. As a general some fixed “meme format” that is then rule, the more years of your life you remixed by users who edit the image or spend using a technology – and the text to create a given “meme.” On Tik- earlier in the life cycle those years are Tok, however, the raw material being – the more skilled you become at using remixed is the user’s body, as the user that technology. performs the behavior associated with TikTok also encourages videos filmed the meme format, what I call “embod- in the vertical orientation inherent to ied memes.” form to combine these characteristics. smartphones, so they can be created This makes the body much more The result is a unique way of conveying wherever the user goes, whenever they prominent on TikTok than other plat- and consuming information. have a spare moment. forms. Whereas clever wordplay goes In terms of benefits, the importance a long way on Twitter, TikTok rewards Information density of the recommendation algorithm over conventionally attractive or otherwise The combination of video media and “friend” networks means that everyone striking bodies to an even greater ex- the “feed” makes TikTok especially in- is guaranteed to get at least a few views, tent than Instagram. formation dense. There’s a lot going on even on their first tiktok. On Twitter, This also means that the identity with each tiktok, and there is a never- say, you might log on and tweet dozens categories that are increasingly central ending stream of tiktoks. of times before you get any “likes” due to politics play a major role on TikTok. Unlike text, video media operates to the importance of “follower” net- Embodied memes often play with the on two parallel pathways, conveying works in determining what people see. race, gender, appearance or physical explicit information (the kind found in TikTok’s “For You Page” varies location of the TikToker. speech or writing) and implicit infor- between showing the user extremely More conventional image memes can mation (social cues like the TikToker’s popular tiktoks and tiktoks with only seem anonymous or disembodied as clothes and hairstyle, or emotional af- a handful of views, thus promoting they are shared around the web. With fect from music) at the same time. greater equality than on traditional so- TikTok, it’s impossible to separate the The “feed” enables a social media cial networks. Overall, TikTok offers an individual from the meme. ( www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 61 Every issue we highlight Kenya via the lens of time and history. We welcome any pictures you might have of old Kenya and you’d like featured in this Life section. Email us: [email protected]

1. 2.

The Nairobi Law Monthly 62 • September 2020 KENYA THROUGH THE CAMERA LENS CRELIC INNOVATIONS

1. Chayu –This is a food weighing scale from the Banjun community from the coastal 3. region. The basketry trays were woven by women, while the men carved the scale support using wood from the “Msumbari” tree, and the baskets were attached with a rope made of twisted coconut tree fibre. 2. Dwala – This is an iron goat bell from the El Molo community. It was created with wire made from aluminium. It is made by men and used to hang round the necks of male goats. 3. Sakha – This is a social status object from the Borana which shows that one has a son. It is made from leather, gourd and cowrie shells. This may be done six months or more after the birth, as the ceremony must wait until the bull to be slaughtered is big enough. A sakha must have an even number of tails. 4. Mukute – This thatching is made from the coconut palm. The leaves are removed from the main leaf midrib then used as the top of the thatching. Each small leaf is bent over the midrib and connected by overstitching. It is made by women in the Digo community. 5. Obosugunia – This is a fly whisk used as an ornament by women during traditional dances and circumcision ceremonies. It is made from the tail of a bull or ox. Also, it is decorated with a small coil of red, orange and white beads. It is from the Gusii community. 6. Ikhoni – These sickles from the isukha community were used by women for reaping ears of millet. A blacksmith made them by heating iron in fire and then hammering it into shape. The handle is made from wood of the musutso tree. 7. Eng’udi – This club, which is from the Njemps community, was made from salabani wood, which was carved by a Moran or an older man using a panga and a penknife. It would have been thrown at animals’ legs to put them down. 8. Chapaza namu– This is a carved wooden paddler from the Banjun that was used to put designs on bread. It is made by a craftsman from wood of the msaji tree. 7. Source: National Museums of Kenya

8. www.nairobilawmonthly.com The Nairobi Law Monthly September 2020 • 63 Closing Statement with Ana Revenga and Meagan Dooley

GENDERED DEVELOPMENT Children account for 44 percent of the poor, with girls overrepresented among this group. Efforts to promote women’s economic participation during these years The constraints can thus raise the income levels of the poor, leading to tangible impacts on household consumption as well as child health and well-being. Women’s economic that bind (or don’t): empowerment also matters for growth. At the extreme, when women are not permitted to integrating gender into work, a country misses out on half of its productive labour force. But even when barriers are not this economic constraints severe, women’s reduced labour force participation matters. When women self-select out of the workforce due to care work, social norms, or discrimination, firms analyses lose out on a pool of skilled workers, and instead hire less-skilled men to take their place. This shift results round the world, the lives of women in real losses in productivity. Beyond the impact on and girls have improved dramati- immediate growth, women’s economic empower- cally over the past 50 years. Life ment matters for future growth. When women bring expectancy has increased, fertility in additional income, they invest in their children’s rates have fallen, two-thirds of health, education, and nutrition, raising the human countries have reached gender capital of the next generation. Aparity in primary education, and women now make While most development organizations and in- up over half of all university graduates. Yet despite creasingly most governments tout the importance of this progress, some elements of gender inequality women’s economic empowerment, they often struggle remain incredibly sticky, resistant to change. Ac- to integrate gender analysis into their diagnostics cess to economic opportunities is one such domain. and prioritization processes. There are several rea- Women opt out of the labour force in many coun- sons for this challenge. First, due to the systematic tries due to structural barriers, social norms, and child and entrenched nature of gendered barriers, it is rearing responsibilities. When women do work, they often difficult to identify the root cause of gender often choose flexible, part-time jobs to accommodate inequalities and even more difficult to estimate the their unpaid care burden. These positions are typically aggregate economic returns that would come from lower skilled and lower paid. When women work in Understanding addressing them. formal, paid employment, they earn less than male the unique Second, the full returns to removing gendered bar- counterparts, even controlling for age, education barriers riers typically materialize over the long term, while level, and sector. Female farmers and entrepreneurs women face short-term effects may be more modest. In a world tend to be less productive than males due to limited in accessing characterized by short-term development budgeting access to land, capital, knowledge, and technology. economic and planning horizons, this usually works against These gaps in economic opportunities persist across opportunities, action toward gender equality. Third, within the all countries and income levels. and how world of economic development policymaking, those Understanding the unique barriers women face in these interact advocating for gender equality and those focusing on accessing economic opportunities, and how these with larger economic growth often do not collaborate effectively gendered barriers interact with larger structural structural and tend to move on parallel tracks. Finally, many forces, can help strengthen rigorous, evidence-based forces, practitioners mistakenly believe that integrating approaches to poverty reduction and growth pro- can help gender into development strategies equals a focus motion. The gender gap in poverty is widest during strengthen on women, instead of recognizing that a systematic women’s reproductive years, when there are 122 to poverty gender approach is about bringing a gender lens to women for every 100 men living in poor households. reduction the analysis of any development issue. (

The Nairobi Law Monthly 64 • September 2020

SPECIAL SUBSCRIPTION OFFER

Save up to 17%

SUBSCRIBE TODAY AND SAVE KES600

ANNUAL COVER PRICE SPECIAL OFFER PRICE KES 3,600 KES 3,000

SUBSCRIPTION ORDER FORM HOW TO SUBSCRIBE Surname Job title Company

VISIT US Delivery address: Please tick ~ Business ~ Private 1st flr, Mayfair Office Suites, off parklands road

Postcode City /Town CALL US 0715 061 658 Telephone E-mail Payment OR COMPLETE AND RETURN THE ORDER ~ Paybill number 670361 FORM ON THE RIGHT ~ Cheque enclosed, payable to The Nairobi Business Monthly Ltd

MAIL US Signature [email protected] Certified Secretaries (CS)

kasneb has enhanced the exemptions available to Advocates of the High Court who wish to pursue the CS qualification. Consequently, with effect from 1 July 2018:

• Advocates with more than ten (10) years experience will get exempted in thirteen (13) papers. • Advocates with more than three (3) years but less than ten (10) years experience will get exempted in eight (8) papers. • Advocates with less than three (3) years experience will get exempted in seven (7) papers. • Holders of Bachelor of Laws (LLB) degree who are not advocates will get exempted in four (4) papers.

For details on the exemptions, log on to www.kasneb.or.ke Other kasneb professional courses

Deadline for registration of May 2020 examination is 15 March 2020

Current and potential students are advised to download the e-kasneb app from Google Playstore for access to kasneb services

kasnebOfficial @kasnebOfficial +254 (020) 4923000 [email protected]

KASNEB is ISO 9001:2015 certified