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Referendum Without a Constitutional Moment: The Kenyan Story

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With the country in the grip of a global pandemic and grappling with an ailing economy, is constitutional reform a priority when it’s not clear that the country is facing a constitutional moment?

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Referendum Without a Constitutional Moment: The Kenyan Story
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When they met and shook hands in March 2018, Uhuru Kenyatta and Raila Odinga pledged to address a number of issues that, to them, bedevil Kenya’s politics. A plan, formally referred to as the Building Bridges Initiative to a New Kenyan Nation—or simply, BBI—was announced in front of an audience that had witnessed a rather chaotic turn of events in the preceding months.

Raila had successfully contested Uhuru’s presidential victory at the Supreme Court and proceeded to boycott a repeat poll, citing lack of a competent and impartial electoral commission. Two months before the two leaders met, Raila had also made real his threat to take a symbolic presidential oath as the “people’s president” in defiance of Uhuru. A joint report by Amnesty International and Human Rights Watch stated that the police had behaved appropriately in some instances but, in many others, had shot or beat protestors to death.  Meanwhile, pressure from civil society organisations and the international community to find a political settlement was piling even as a debt-burdened economy was threatening to stall. Uhuru, like former president Mwai Kibaki before him, was probably worried about tarnishing his legacy.

Uhuru appointed an advisory committee in a matter of weeks. The members of the committee were instructed to make actionable proposals to address the BBI agenda, including proposals to review Kenya’s now ten-year-old constitution. The BBI’s nine-point agenda included ethnic antagonism, lack of a national ethos, devolution, divisive elections, security, corruption, shared prosperity, responsibility and inclusivity, as the main areas requiring intervention. It didn’t matter that protestors, including Raila himself, had singled out electoral malpractice as the main problem.

It wasn’t lost on many that nine days prior to the 8 August poll, the body of Chris Msando, the head of information, communication and technology at the Independent Electoral and Boundaries Commission (IEBC), had been found on the outskirts of Nairobi. Very few people, if any, thought that the Kenya 2010 constitution was the poisoned chalice.

Since then, the BBI bandwagon has threatened to change the constitution. It has taken particular issue with the winner-takes-all system, a feature that the 2010 constitution had actually been designed to dampen by diluting the powers of the presidency and distributing them across parliament, and devolving some responsibility to the 47 newly-established county governments.

Despite its pure presidential system, some supporters of the BBI have even argued that the 2010 constitution did not create an imperial presidency, that, in fact, it created a system of checks and balances on how the president should exercise his/her authority. In addition, the terms of reference for the Committee of Experts (CoE) who wrote the 2010 constitution were strikingly similar to those that, ten years later, were assigned to the BBI task force. Similar to BBI, the idea of building bridges and creating a national ethos had also been at the heart of the CoE’s mandate.

The constitutional draft that the CoE proposed (now Kenya’s constitution) not only received the popular vote during a referendum, but it also received the support of a broad section of the country’s political leadership, Raila and Uhuru included. What the 2010 constitution has not received since its promulgation is fidelity and adherence to its spirit.

A key weakness of constitutions the world over is their dependence on traditions put in place by human beings, which often makes them vulnerable to prevailing political interests. In Kenya’s case, the problem has never been a constitutional one in nature, but the result of deliberate efforts by Uhuru Kenyatta, and the Kibaki administration before him, to undermine the constitution and to reassert direct presidential control over devolution and over the other arms of government, the legislature and the judiciary.

I have written elsewhere about the significance of the reduction of the role of county governments by central government bureaucrats—the most significant structural change in Kenya since the 1960s—to simple units of administration and development, while minimising their political features. In this way, feelings of exclusion and marginalisation, underpinned by unaddressed historical injustices, have continued to exist despite constitutional change. Measures that would enable real participation in matters of governance and policy at the local level are frowned upon. Dismissed. Ignored.

Assertive County Governors are viewed as a nuisance that should go away. Responsibility over land administration, education, mega-infrastructure and parastatals has remained in the hands of the central government, and as such, under the direction of the presidency. In fact, matters of devolution have been domiciled within a national government ministry. Despite the establishment of a National Police Service Commission and an Independent Police Oversight Authority, police officers have continued to function outside the law with the express direction and support of higher-ups, with some shooting suspects dead in broad day light. President Uhuru Kenyatta has violated the constitution he wants to amend by refusing to swear in 41 judges appointed by the Judicial Service Commission. A resolution to the land question remains as distant as ever, despite the establishment of a National Land Commission.

These multiple assaults on the constitution and the law by executive fiat mean that it would be very difficult to remove an incumbent president from office through an electoral process, and in 2017 many paid the price of attempting to do so with their lives.

The question is, what has changed since then? Why has it become necessary to review or change a document that was written to avert the very conflict that the BBI task force was assigned to address? Also, should constitutional reform be prioritised when it’s not clear that the country is facing a constitutional moment but is in fact grappling with a global pandemic, an ailing economy, and a political leadership that has a penchant for behaving badly?

The theory

The theory of the “constitutional moment” refers to lasting constitutional arrangements that result from specific, emotionally shared responses to shared fundamental political experiences, or when there are unusually high levels of sustained popular attention to questions of constitutional significance. The constitutions of the United States, nineteenth-century Belgium, post-apartheid South Africa, and the Kenya 2010 constitution come closest to demonstrating this theory.

In the absence of a constitutional moment, a constitutional review usually serves other—more technical—goals and cannot be considered to be a fundamental choice regarding the political design of a country. One of the drawbacks of a constitution that emerges without the blessing of a constitutional moment is that it does not contribute to a sense of union, or the formation of identity, among the members of the society to which it applies.

In short, absent of a constitutional moment, the BBI is beginning to look, feel and behave like no more than a mere pact between the elite.

It is unlikely that the BBI will constitutionalise ordinary politics. Without popular enthusiasm for a new constitution, many Kenyans will perceive the plan to be no more than a pragmatic form of protection of the interests of the elite.

And this, since the handshake in 2018, is what has been taking place.

The problem

For Raila’s supporters, the BBI promises their leader a place in a future government. Uhuru’s supporters continue to be divided over the plan, as some remain suspicious of Raila’s intentions, and others believe that the BBI will consolidate Uhuru’s legacy at the end of his second term in office. For the supporters of the Deputy President, William Ruto, the BBI is meant to frustrate his efforts to succeed his boss come the next elections in 2022.

In an environment devoid of political trust, it is unlikely that the BBI will put an end to political tensions and instability in the country. In fact, a cursory survey of social media language during the COVID-19 pandemic reveals that extreme views and divisive political rhetoric are on the rise.

It is therefore more likely that the BBI will amplify the country’s ethnically polarised politics, setting the stage for future conflict. In this way, the BBI has quickly moved from building bridges to becoming the agent of their imminent destruction.

Kenya’s political class is yet again employing constitutional change as a tool to fight its traditional factional wars.

The results can only be disastrous.

The outcome

Raila Odinga, now BBI’s primary mover, has insisted that it is time to proceed to a referendum. Together with Uhuru Kenyatta, Raila has declared a second BBI report released on 21 October 2020 (the first was published on November 2019) to be final.

In his address to the Siaya County Assembly, Dr Adams Oloo, the BBI Steering Committee Vice-Chairperson and a close Odinga ally, intimated that only Uhuru Kenyatta and Raila Odinga have the final say on any further amendments to the document.

It is not clear whether it will be possible to complete the constitutional process in time for the embattled IEBC to effect the necessary changes ahead of the August 2021 referendum—which the IEBC estimates will cost Sh14 billion.

The electoral commission, whose term the BBI report has reduced from six to four years, has itself expressed reservations over the document.

Religious leaders and internally displaced people have also weighed in: the possibility of creating an imperial presidency and the fact that their concerns have not been addressed are, to them, key concerns. After promising the Pastoralist Parliamentary Group (PPG) that their concerns would be included in the document to be put to a referendum vote, Raila has backtracked, insisting that no changes will be introduced to the document after all.

The political struggles undergirding the BBI process have been laid bare. All language regarding consensus building has been thrown out. The main protagonists, in the wider race to succeed Uhuru Kenyatta in 2022, are Raila Odinga and William Ruto.

For the Ruto camp, a “Yes” vote in the referendum would be a disappointing measure of their popularity. For the Odinga camp, a delayed referendum would not leave them with much time to gauge Ruto’s and their own strength in the run-up to the 2022 polls.

Caught haplessly in the midst of these struggles, of course, are Kenyan citizens. They are now meant to forget that the Jubilee Administration had promised to tackle four big agendas –  affordable universal health care, food security, manufacturing and affordable housing –  now a near laughable prospect, given the ravages of the COVID-19 pandemic and the disastrous economic record that preceded it. A Jubilee politician has bragged that the BBI is a clever innovation to save the Big Four Agenda from completely turning to ash.

Broadly, the proposals of the second BBI report seem to have tightened control around the presidency. If successful, the president gets to appoint a prime minister from parliament who will also be the leader of the largest political party or the largest coalition of political parties. The president will also appoint two deputy prime ministers and cabinet ministers drawn from within and outside of parliament. The report has also recommended the disbandment of the National Police Service Commission and the creation of a National Police Council to be chaired by a cabinet Sscretary, that is, a presidential appointee. It has also established the office of an ombudsman within the judiciary, to be appointed by the president. A number of (early Christmas) gifts have been presented to various key players, perhaps as seductive (and useful) distractions from the proposed tyrannical changes.

Changing the 2010 constitution will not be easy given the high constitutional guardrails. It requires securing both a majority of the votes in a referendum and a majority of votes from members of the 47 county assemblies. In this way, the BBI report proposes an increase of the minimum revenue distributed to county governments from 15% to 35% of national revenue. Members of county assemblies will be allocated 5% of county revenue for a newly-created Ward Development Fund, modelled on the Constituency Development Fund. Businesses set up by young Kenyans will be tax-exempt for the first seven years of operation. The number of members of parliament has been increased, with an additional 27 new senators and 10 new members of the national assembly. The second runner-up in a presidential contest will be named the Leader of the Official Opposition, with a shadow cabinet, technical support and a budget.

All this is in complete disregard of the debt overhang that Kenya has found itself in since 2013. In fact, the external debt has grown by 15.6 per cent to Sh3.7 trillion between March and August 2020. Over the same period local debt expanded by 9.7 per cent to Sh3.4 trillion. The overall cost of running parliament is already 2 per cent of the national budget, and that of running the Executive has increased by 20 per cent over the last two years alone. As the government suspends health insurance for COVID-19 patients in the midst of a second, spiking wave, no one is talking about the possibility of the proposed referendum facing funding shortfalls.

In their response to the first constitutional draft that was published by the Committee of Experts in 2009, Kenyans cautioned against the creation of a bloated government—a concern that is still close to their hearts. This also means that Kenyans are not opposed to the existence of an opposition, per se, but that the loser of an election needs to feel that they have lost fairly. The dispute during every electoral cycle is usually over the sloppy manner in which elections are conducted, coupled with a high trust deficit often cultivated by politicians.

The solution, in my view, is to respect the law and cultivate a culture of constitutionalism. The Kenya 2010 constitution is not perfect, but it is also true that the leadership has not adhered to its letter and spirit.

Reviewing the constitution less than a decade after it was first promulgated may be right and proper, but one may ask, what is the constitutional moment this time?

Ngala Chome
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Ngala Chome is Doctoral Candidate at the History Department, Durham University. His email is ngala.k.chome@gmail.com.

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The Sea That Eats Our Children

The Mediterranean Sea is only 2,400 miles across, or about half the length of continental Africa, but in the 2010s it earned distinction as the largest mass burial site for Africans in the modern world.

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Although crossings between Africa, Asia and Europe are as old as settlement along its shores, in the modern era, restrictions on travel and violent border security have turned the sea into a mass graveyard, where countries would rather return vulnerable people to death or near-certain slavery than allow for a measure of safety. Almost all of Europe is complicit in turning people away at their most vulnerable, including by intimidating boats defying the fortress that Europe built.

The deaths on the Mediterranean Sea have wrongly been framed as an African, a Syrian or even a Libyan crisis; as being about migration. While Europe has been quick to hijack the discussion and declare this a crisis of the European border, in fact it’s a crisis of the European state—one that has everything to do with the history of conflict and division within that continent. So much of how the world’s states function and fear comes from Europe’s bloody and violent history.

There are three main routes that will get you across the Mediterranean from Africa or Asia into Europe. These routes have been used for almost as long as travel across the Mediterranean has been documented. Scattered across the coastline is the detritus of ancient civilisations that fed into the birth of the modern age—Sparta in Greece, Carthage in Tunisia, Alexandria in Egypt, historical Athens and Rome—telling a story of societies that have been in constant if not always friendly contact with each other.

If Western philosophy is a cornerstone of Western politics and society, it’s worth noting that many of the most notable products of Western philosophy are in fact products of the free movement of people and ideas across the water. Augustine of Hippo was an African man whose theology and philosophy are at the heart of modern Christianity and Western political thought. His theory of the just war is still taught in international relations and political science classes all around the world. Historians say that Augustine was Berber—from a pastoralist people—and so migration and mobility were central to his worldview even before he moved to Rome and Milan to continue his work. Movement has always been central to the Mediterranean region’s intellectual fertility, and modern hostility to it is only contributing to its decline.

If Western philosophy is a cornerstone of Western politics and society, it’s worth noting that many of the most notable products of Western philosophy are in fact products of the free movement of people and ideas across the water

It’s not that there has never before been hostility between the communities of the Mediterranean. Remember: Europe has always been a violent place. But as Europe has coalesced into an enormous social and political project, the scope of the damage has become greater. Bertrand Russell once wrote that leaders have always been stupid, but they have never been quite so powerful before; he was writing of the period between the world wars, but the same can be said today. The human capacity to inflict harm is greater than it has ever been, which makes historical tensions and hatreds all the more dangerous. Alarming numbers of people are now dying while using routes that have been in place for hundreds of years.

The 1990 Schengen Convention found a way to keep both the historically open and the historically closed countries happy, despite the new system abolishing internal visa controls and agreeing common visa policies (to reduce bureaucracy at many European countries’ borders). The compromise was an invasive, humiliating and even violent process of scrutiny for people coming from countries considered to be too poor, and thus a risk for immigration.

Humanitarians will tell you that one thing the Schengen system did with alarming efficiency was to close off all humane routes into Europe for citizens of these unwanted countries who could not meet the required thresholds. For a young man or woman from Senegal or Sudan who couldn’t find work in a village ravaged by climate change, or a collapsing economy, the Schengen regime left no legal way to seek low-wage work in Europe. Of course, it was not ideal that people had been boarding flights to Europe and then claiming asylum or overstaying their tourist visas. But at least they’d been arriving alive. What the architects of Schengen seemed to ignore was the sheer number of people who would now be driven towards smugglers and clandestine routes instead. When people see their options as certain death while standing still, versus a minute chance of success if they move, they will move.

It’s not that there has never before been hostility between the communities of the Mediterranean. Remember: Europe has always been a violent place. But as Europe has coalesced into an enormous social and political project, the scope of the damage has become greater.

Whenever I make this argument to Europeans, I always get a version of “So why don’t the people in those countries just take charge of their politics and make their countries better?” Of course, that would be the better and even the ideal option. But go back to Wallerstein and the use of borders to export instability out of the West. Look at the twentieth century in Africa alone. First the violence of colonisation and invasion. Then the wide-spread, targeted assassination, with the collaboration of Western governments, of visionary leaders like Thomas Sankara and Patrice Lumumba. Then decades of active economic interference and sabotage, culminating in the Structural Adjustment Programs of the late 1980s: loans from the IMF and World Bank to economies in crisis, on condition of structural reforms. Now, we have digital colonialism and Western governments providing cover for private Western corporations to interfere in the politics of developing countries. Do you still think it’s fair to place responsibility on civilians for choices made by states? Why don’t the countries manufacturing and selling weapons to poorer governments just stop doing it? Why don’t governments just stop supporting dictators? Emigration doesn’t happen in a vacuum.

The number of people taking to the seas to get to Europe hasn’t just been increasing because there are simply more people. It’s because legal and safe passage to Europe has disappeared, for all but a small sliver of the world’s population.

This article was first published by Progressive InternationalProg

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Our Man in Kampala: Museveni and the Americans

America must make the choice to side with the majority of Ugandans who would like to see democracy take root in Uganda.

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Since taking power in 1986, President Yoweri Museveni has enjoyed total bipartisan support from six American administrations. Along with America’s help, Museveni’s domestic repression has grown steadily, stymying Uganda’s fledgling democracy. Uganda’s next general election will take place on 14 January 2021, a week before President Joe Biden’s inauguration. The Biden administration must not give Museveni carte blanche but should instead make America’s continued support contingent on good governance and accountability.

When he first became president five years after launching a rebellion against President Milton Obote over the disputed December 1980 election, Museveni portrayed himself and his movement, the National Resistance Army/Movement (NRA/M) as the antithesis of all previous groups. After 33 years at the helm, Museveni and the National Resistance Movement are indistinguishable from the people he launched a rebellion to dislodge from power.

The speech and the memo

A speech given and a memo written 13 years apart, laid out the vision and the contradictions within the NRM, and more broadly within Uganda, and cast the authors as protagonists in the struggle for democracy in Uganda. The speech was given by Yoweri Museveni in 1986, shortly after he seized power. Kizza Besigye issued the memo on 7 November 1999.

The speech, often referred to as the “fundamental change” speech, laid out the future of Uganda under the NRM, while the memo, “An insider’s view on how NRM lost the broad base”, was the most realistic appraisal of the NRA/M 13 years after it took power.

When he delivered his speech on 29 January 1986, Museveni said, “No one should think that what is happening today is a mere change of guard: it is a fundamental change in the politics of our country.” Museveni added,

“The people of Africa—the people of Uganda—are entitled to democratic government. It is not a favour from any government: it is the right of the people of Africa to have a democratic government. The sovereign power in the land must the population, not the government. The government should not be the master, but the servant of the people.”

Regarding democracy, Museveni said, “It is a birthright to which all the people of Uganda are entitled.”

In November 1999, while still a serving army officer, Col. Kizza Besigye offered an opposing view of the NRA/M when he said, “All in all, when I reflect on the Movement philosophy and governance, I can conclude that the Movement has been manipulated by those seeking to gain or retain political power in the same way that political parties in Uganda were manipulated.” Besigye went further to say that, “[W]hether it’s political parties or Movement, the real problem is dishonest, opportunistic and undemocratic leadership operating in a weak institutional framework and a weak civil society which cannot control them.”

Museveni’s vision of “fundamental change” has produced “no change” and the servant leadership and democracy espoused in his speech are illusory. Besigye’s assessment of the selfish, opportunistic and undemocratic leadership within the NRA/M and in Uganda is all too familiar and the competing realities embodied by Museveni and Besigye have dominated Ugandan politics for over a decade.

A central plank of the NRM was the establishment of a broad-based government and the elimination of all forms of sectarianism. To make good on its promise, the NRM introduced an anti-sectarian law in 1988.  The NRM also instituted a no-party system where elections were contested on personal merit rather than party affiliation. For Museveni and the NRM, political parties were the root cause of Uganda’s crises since independence—as they inherently promote “sectarianism”, unlike the Movement, which “fosters consensus”.

Three elements have sustained Museveni’s vice-like grip on power in Uganda: the use of the security apparatus to suppress the opposition, the passing and selective application of laws—even when the courts strike them down—and America’s generosity despite Uganda’s dubious human rights and governance record.

Electoral violence 

Three years after publishing the memo, Besigye ran against Museveni in the 2001 general election. The electoral commission declared Museveni the winner. The run-up to the election saw the arrest and assault of Besigye’s supporters.  A Select Parliamentary Committee established to examine electoral violence stated that, “violence experienced in elections includes physical assault and shooting, intimidation, abduction and detention of voters”. In all, according to the commission, 17 people were killed and 408 arrests were made.

A few months after the election, Besigye was detained and questioned by the Criminal Investigations Division (CID), allegedly in connection with the offence of treason. Besigye left the country In September 2001, citing persecution by the state. He returned on 26 October 2005.

Unlike in the 2001 elections, in 2006 the state was keen to derail Besigye’s candidacy through legal manoeuvres from the outset to prevent his name from appearing on the ballot. The police filed a case in court accusing him of rape and treason, and arrested him on 12 November, barely a fortnight after he returned to Uganda from exile, and a few months before the election scheduled for March.

When the military realised that the civilian court would grant bail to Besigye and his co-accused, the military prosecutor brought terrorism and weapons offences charges. The court eventually acquitted him of the rape charge. In dismissing the case, high court Judge John Bosco Katutsi said, “The evidence is inadequate, impotent, scandalous, monstrous against a man who brought himself up to compete for the highest position in this country.”

Despite already competing in an election with the odds stacked against him, Besigye lost six weeks to legal fights in the courts where he spent as many days as he did on the campaign trail.

The defiance campaign 

After losing two elections, Besigye realised it was almost impossible to beat Museveni at polls which were neither free, nor fair, nor peaceful, or by having the courts overturn the election results and sought to employ other means.

In 2011, Besigye joined other activists in a Walk to Work campaign, a simple yet profound form of protest that highlighted the stark economic realities in Uganda. Even as many Ugandans were struggling to meet their daily needs, the country bought at least eight fighter jets and other military hardware worth US$744 million. Museveni’s inauguration ceremony cost US$1.3 million. That the protest came a few weeks after the electoral commission declared Museveni the winner of the election with over 60 per cent of the vote illustrated the hollowness of Museveni’s victory.

The election took place against the background of the Arab Spring and its potential for contagion, with Museveni viewing the remarkably benign act of people walking to work instead of driving an existential threat. Museveni and the security agencies could not countenance the Walk to Work or other similar activities turning into a popular movement. The 2013 Public Order Management Act and its convenient interpretation came in handy.

Museveni fell back on the template set during the 2001 election. Security agencies visited unspeakable violence on Besigye and his supporters during the election campaign and Museveni was declared the winner by the electoral commission. Besigye contested the validity of the election in court but, while it recognised that there were irregularities, the court ruled that they were not sufficient to modify the outcome of the election.

Enter Bobi Wine

State violence against Besigye and his supporters has been a constant in the Besigye-Museveni contest but for the first time, Museveni‘s opponent is not Besigye. He will be competing against the Kyaddondo East Member of Parliament, Robert Kyagulanyi, popularly known by his stage name Bobi Wine. Kyagulanyi was four years old when the NRM came to power in 1986.

And just like with Besigye, Bobi Wine has been at the receiving end of the violence of the state agencies ahead of 2021 election. The police have disrupted his campaign and detained him several times and he has on occasion suspended his campaign in protest at the violence meted out against him and his supporters. He was recently arrested for defying the COVID protocol while campaigning. Predictably, the protocol does not seem to apply to President Museveni, who has been campaigning unimpeded.

America’s support 

Museveni’s ascension to power also coincided with the deterioration of the security situation in Sudan and the Democratic Republic of Congo, and with Muammar Gaddafi’s actions to prop up various African regimes. An astute political entrepreneur, Museveni put Uganda at the service of America and in return, successive American administration gave him political support and financial backing.

When President Ronald Reagan warned him to be wary of Gaddafi’s activities during their first ever meeting, Museveni told Reagan that he had fought Gaddafi before the Americans started fighting him, to which Reagan replied, “I am preaching to a choir.”

Since then, Museveni has made himself indispensable to America’s security calculus in the region. During her visit to Kampala in 1998, Secretary of State Madeleine K. Albright called Uganda a beacon in the central African region.

Uganda is among the largest beneficiaries of the Department of Defense “Train and Equip” programme. The Department of Defense has notified Congress of over US$280 million in equipment and training for Uganda since the 2011 financial year, over US$60 million in joint support to Uganda and Burundi for AMISOM and significant funding for the 2011-2017 counter-LRA effort (Lord’s Resistance Army insurgency). Additionally, Uganda also receives counterterrorism aid through State Department funds. It received over US$30 million in support via the African Peacekeeping Rapid Response Partnership (APRRP).

The state is coming down hard on Bobi Wine because he is tapping into and articulating the latent discontent among the vast majority of Ugandans, those under under 30 who make up over 70 per cent of the country’s population and who cannot relate to Museveni’s self-aggrandising rendering of the Bush Wars or the Idi Amin scarecrow. America has a choice: to side with most Ugandans who would like to see democracy take root in Uganda or with Museveni under the pretext of maintaining stability.

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The IMF’s Austerity Is Strangling Ecuador – Again

Only with careful concerns for the human cost of Ecuador’s capital outflows, fiscal consolidation, and wage ‘rationalization’ can the IMF make good on the bloody legacy of its program in Ecuador, and ensure that its call for consultation is not simply a dialogue of the deaf. By Progressive international

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In October 2019, the people of Ecuador rose up against the International Monetary Fund and the austerity demands attached to a $4.2 billion loan to the government of Lenín Moreno. Marching through the streets of Quito, demonstrators called to end the brutal cuts imposed as conditions of IMF support. “What the government has done is reward the big banks, the capitalists, and punish poor Ecuadorians,” a trade unionist told Al Jazeera. “Out with the IMF!” said another.

The IMF, however, has stayed. Following a year of deadly unrest, the IMF and the Ecuadorian authorities continue to advance budget cuts, salary reductions, and sell-offs in exchange for bail-out funds to the government. On 15 December, the newest Ecuador program — a $6.2 billion Extended Fund Facility — will undergo a revision ahead of a fresh disbursement of $2 billion. The revision offers a critical opportunity for the IMF to reflect on the failures of its austerity agenda, and to respond to rising discontent across the country. We worry, however, that this will be yet another opportunity missed — for which the people of Ecuador will suffer the most.

As the early epicenter of the Covid-19 pandemic in Latin America, Ecuador has already suffered an historic year of poverty, unemployment, and disease. Thousands of lives and millions of livelihoods were lost as Covid-19 spread through the country. The city of Guayaquil became a global symbol of the human costs of the coronavirus, with stories of overwhelmed hospitals and street-side corpses reported widely.

But the tragic outcomes of the Covid-19 pandemic were not incidental. On the contrary, they follow directly from the austerity reforms attached to IMF money. To take one striking example, the IMF bailout resulted in the dismissal of 3,680 public health workers. The impact of these cuts on pandemic preparedness were all too predictable.

The IMF has promised to break with the dogma of austerity in response to these unprecedented conditions. “Spend what you can but keep the receipts,” President Kristalina Georgieva has instructed IMF member-states, giving the green light for major spending increases. “Exceptional times call for exceptional measures.”

In Ecuador, however, there is little evidence of this change of heart. The general objectives of the new Extended Facility, currently under review ahead of the 15 December deadline, appear to incorporate the concerns of Ecuador’s aching communities, calling for greater protection of life and livelihoods during and after the Covid-19 pandemic.

But the IMF’s apparent sensitivity to these struggles is immediately undermined by the agreement’s call for a drastic fiscal adjustment of 5.5% of Ecuador’s GDP until 2025. Our research on the new agreement suggests instead that the IMF remains committed to the very same austerian principles that rocked the country one year ago.

Consider its provisions for Ecuadorian workers. The new agreement calls for the “rationalization” of wages, adjusting the basic salary to more “competitive” levels. But the call to “rationalize” workers’ wages violates Ecuador’s own Constitutional Article 328, which establishes the obligation that “remuneration will be fair, with a living wage that meets the basic needs of the working person as well as that of his family.” The IMF — and the government of Lenín Moreno — has a legal obligation to respect these articles and ensure that the people of Ecuador can access their constitutional rights to a fair wage.

Consider also the agreement’s changes to Ecuador’s central banking. The IMF is calling for a reform of the Monetary and Financial Code to establish greater “autonomy” for Ecuador’s Central Bank — in short, to disassociate it from the executive branch and pass it into the hands of a Board with the participation of private actors. But this “autonomy” would take away the tools of liquidity management that allow governments to protect the lives and livelihoods of the population. Here again, the ‘good governance’ agenda advanced by the IMF threatens to undermine the democratic accountability — and capacity — of the government on the other end.

Finally, the IMF is obliged by its Articles of Agreement to ensure that there are no significant outflows of capital in the countries that are undergoing its programs. The IMF understands well this is a particular problem for Ecuador, given its dollarized economy. But the IMF program in Ecuador excludes this. Paradoxically, the same day the agreement was approved, the IMF’s Independent Evaluation Office released their capital flows report suggesting that controls should be strengthened to address the problem of dangerous outflows. Will the IMF listen and learn, or look aside once more?

15 December should mark a critical juncture in the IMF’s relationship to the people of Ecuador: a chance for reflection, a fresh start in a new year, an opportunity to deliver on President Georgieva’s new promises of social protection.

But the IMF can only realize this opportunity with a clear and honest review of the impacts of its austerity measures, and a fundamental realignment of its policy agenda to respect the constitutional rights of the Ecuadorian people. Only with careful concerns for the human cost of Ecuador’s capital outflows, fiscal consolidation, and wage ‘rationalization’ can the IMF make good on the bloody legacy of its program in Ecuador, and ensure that its call for consultation is not simply a dialogue of the deaf.

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