Perhaps one lingering question among many people is how and what it would take to change Kenya’s 2010 constitution after the Building Bridges Initiative (BBI) High Court judgment. In many ways, the answer to this question is in the judgment. But there is a bit more about what it would take – including strategies and tactics – that is not in the judgment. So first let’s look at what is in the judgment.
But first a note to offer context. It is not onerous to change many of the provisions of the constitution. BBI has been so contentious because it was conceived for, and involves, changes that are intended to benefit the political class and not the people. The constitutional drafters were aware that the first group that would wish to manipulate the constitution for personal gain would be the political and ruling elites. That is the history and the context that the judges eloquently explained in their judgment. In a bid to inoculate itself against political subterfuge, the constitution created principles and processes that make its core aspects quite onerous to change. This was the visionary sensitivity of a peoples’ constitution protecting itself and the people.
What the judges said
There are three key issues that the court dealt with which provide clarification on what it would take to change the constitution. I use the word “change” here, and not “amend”, to signal that the judges considered both what it would take to amend the constitution as well as (to some extent) to overhaul or replace it. They had to do this because of the nature of the questions presented to them.
The three key issues are the discussion on the basic structure, popular initiative, and the principles that should guide the formulation of a question or questions for a referendum.
But first a word on how the judges arrived at their judgment.
The constitution of Kenya is said to be transformative. It is. The nature of a transformative constitution is country-specific. What a constitution seeks to transform is very context-specific. The transformative aspect of Kenya’s constitution is rooted in the country’s governance experience especially post-independence. That experience was the strangulation the country suffered from an imperial presidency, which sponsored all manner of vices, especially the denigration of the role of the people in governance andstifled plurality of ideas. Public accountability by state officials was nil. No transparency or justification was expected on the exercise of public power.
The judges started by tracing this critical history and how the oppressive regimes of the past inspired the civil agitation and the making of the 2010 constitution. The judges then noted that any exercise of state power under the 2010 constitution must be audited for its compliance with the requirement to depart from this oppressive past. It is for this reason that the judges go to great pains to render this history at the onset of their judgment band to contextualize nearly every finding they make to it.
In discussing the basic structure, the judges mostly dealt with the nature of the power to amend the constitution. They clarified that, in constitutional change, there is a difference between constituent and constituted power. Let me explain the difference.
Constituent power is the power innate in the people as people that is beyond law. It is the notion that the people make the law and not the other way around. It identifies that the people have unrestrainable power to determine whether they even want laws at all – or to put it in less dramatic terms, whether they want a constitution at all. Sounds radical? Yes, but it is not. Britain for example does not have a written constitution. British people in their constituent state have decided that they are okay without a constitution and the heavens are yet to cave in on them.
The judges further clarified that constituent power has two facets to it: primary and secondary constituent power. Primary constituent power is the power to replace/overhaul or “radically change” the constitution. Again, what is critical here is that primary constituent power sits outside of and is unregulated by the constitution. In this regard, when invoking constituent power to change the constitution, the amending rules of the existing constitution do not (or hardly) apply. Again, sounds radical – no. Because this is the way we achieved the 2010 constitution whose making did not rely on the rules in or from the 1969 Constitution to make it.
British people in their constituent state have decided that they are okay without a constitution and the heavens are yet to cave in on them.
Primary constituent power is relevant in Kenya in two ways. First, when people are making an entirely new constitution. Second, when people want to amend the provisions of the 2010 constitution that form its basic structure. In either case, the judges said, a process outside the constitution will apply and, for them, it would at least have four parts to it, (i) civic education (ii) public participation (iii) constituting constituent assembly (iv) referendum.
Secondary constituent power is one that people have within the existing constitution but which is specifically restricted to making non-fundamental changes to the constitution that do not affect the basic structure. It is anchored in Article 1 on the sovereign power of the people that is exercisable directly. Concerning constitutional amendment, it is given more clarity in Articles 255 and 257 that require the people to initiate, participate, debate, and endorse proposed constitutional changes at a referendum.
What of constituted power? Constituted power is amendment power that is given by the people in (or through) the constitution to other organs. This power derives first from Article 1 where it says the people may exercise power “through their democratically elected representatives”. Given this background it is easy to conclude that parliament and county assemblies are part of the constituted power organs. Specifically, Article 256 which provides for the amendment of the constitution through a parliamentary initiative largely represents the constituted power to amend the constitution.
To be sure, the power of parliament to unilaterally amend the constitution relates to the most non-fundamental provisions of the constitution that don’t fall within the subjects enumerated in Article 255 on matters that must be subject to a referendum. Certainly, constituted power cannot be used to amend the basic structure of the constitution. Put differently, because the people thought themselves to be too important as to be bothered with minor tweaking of the constitution, they delegated that uneventful minor constitutional amendment work to parliament. However, where a fundamental amendment to the constitution is in question, it is the people, not parliament, that run the show.
The court was asked to decide who has the power/right to initiate constitutional amendment through a popular initiative. The court’s answer is straightforward. Only the people, in their private citizen capacity as voters, can do so. Importantly, the court unequivocally found that a state officer, and especially the president or any state or public agency, cannot be a promoter of a popular initiative. This finding is grounded primarily on two reasons.
Where a fundamental amendment to the constitution is in question, it is the people, not parliament, that run the show.
First, the court found – based on a historical constitution-making analysis – that the popular initiative pathway of amending the constitution is the tool that the people reserved for themselves whenever they wanted to change the constitution using their direct exercise of sovereign power under Article 1, as opposed to the power they donated to elected representatives. This was necessary to ensure that the people had an option – whose fate was not hinged on parliament – to amend the constitution.
Second, the court was even more specific on why the constitution does not permit the president to be an initiator/promoter of a popular initiative as Uhuru did with BBI where the president has been assigned the role of determining whether a popular initiative should go to a referendum. This makes the president a critical “referee” in the amendment process. In the words of the judges, the president cannot be both a “promoter and a referee” because it would “amount to a muddled up conflict of interest.”
Multiple question referendum
The third main issue that affects how the constitution can be amended relates to the framing of the question for referendum. The court held that, where a constitutional amendment bill is an omnibus bill – that is, it seeks to amend more than one issue – then each issue for amendment must be presented to the people as a separate question at the referendum. The court justified its finding on the basis that, one – having only one question at a referendum on an omnibus bill puts the voter in a dilemma where they are not able to exercise free choice to vote only for the things they like and reject those they don’t like. The court referred to this as putting the voter in a dilemma to facilitate “laundering” the bad things with the good.
The popular initiative pathway of amending the constitution is the tool that the people reserved for themselves whenever they wanted to change the constitution.
Two, the court noted that Article 255 – 257 speaks of “amendment” and not “amendments” which leads to the logical conclusion that what has to be presented to voters to choose at a referendum is each amendment and not the entirety of the omnibus bill as one question. Three, the court noted that the Elections Act 2011 already provides for the possibility to present more than one question to voters at a referendum.
Amending the constitution
What do the court findings in respect of basic structure, popular initiative and multiple question referenda mean for anyone who, in the future, hopes to mount a successful constitutional amendment especially on non-minor provisions of the constitution?
Nature of proposed amendment
The starting point is a thorough understanding of whether the provision(s) proposed to be amended implicate the basic structure. If the proposed amendment does not relate to a basic structure, then the task of amending it is less onerous even though it may or may not require a referendum. However, if they form part of the basic structure, the next level of inquiry is whether the proposed amendment relates to provisions/aspects that are unamendable eternal clauses or amendable clauses.
If the proposed amendment falls within the amendable category of basic structure, those sponsoring an amendment (working with the responsible state organs) would have a herculean task to ensure they meet the four pre-conditions, i.e. civic education, public participation, putting together a constituent assembly and finally subjecting the amendment to a referendum.
There are additional specific discernible implications on this.
To start, there likely will have to be a separate and specific law created to guide the amendment process of the basic structure, especially to determine how the constituent assembly is to be formed and regulated. Specific amendment law may be avoided if parliament was to craft an elaborate and comprehensive law on constitutional amendment which provides – in part – for the manner in which constituent assemblies are to be formed whenever necessary. The current referendum law being considered by parliament does not at present contain such guiding provisions.
But who determines whether a proposed amendment implicates basic structure? There are three organs that can decide or facilitate that determination. The first is parliament, especially if the proposed amendment is proposed under the parliamentary initiative pathway. Where parliament is professional and objective about its task, it perhaps can efficiently do so, either through an initial inquiry by its legal committee or through a ruling by the speakers.
The second is the Independent Electoral and Boundaries Commission (IEBC), especially on a bill brought through the popular initiative route. The IEBC has a constitutional obligation to promote constitutionalism and hence, its role in the constitution amendment process must include alerting on the implications of proposed constitutional amendments especially where a special procedure is needed like that of amending aspects of the basic structure.
The third and ultimately the most authoritative are the courts. No doubt, constitutional amendment will always be a high stakes issue because of the enduring and overbearing nature of the constitution. There are two ways in which the courts will be key in helping clarify the nature of a proposed constitution amendment. The first is pre-emptive where both the Supreme Court and High Court have the powers to make the call early enough by auditing the nature and (even constitutionality) of a proposed amendment. The path to the Supreme Court is through its advisory opinion jurisdiction – a path available only to state organs, including the executive, the IEBC and parliament. On the other hand, the High Court has jurisdiction to interpret the constitution – and that pathway is available to both private citizens and state organs. Critically, the pre-emptive approach has a salutary aspect to it since it clarifies early enough – and hopefully before investment of significant resources – the nature and likely viability of a proposed constitutional amendment.
The second way that courts may clarify on the nature and constitutionality of an amendment is post-facto, i.e. litigation that takes place after the amendment has gone through the key stages of consideration and passage, including possibly after a referendum.
A minimalist approach to amendments
A second strategic consideration those seeking to amend the constitution must be aware of is that a minimalist approach to amend stands better chance of success. By a minimalist approach I mean the fewer the issues of amendment the better. In fact, my own interpretation of Articles 255-257 is that the constitution allows for only one issue to be contained in a bill to amend the constitution. This is in contradistinction with what the High Court seems to have said which is that the restriction to single issue relates to the question presented in a referendum and not necessarily to the bill to amend the constitution. In framing it this way, the judges seem to have found nothing unconstitutional in having multiple amendment issues in a single bill to amend the constitution so long as the issues are separated for purpose of framing the referendum questions.
Regardless, a minimalist approach means that in the end voters are presented with only one or very few issues to vote for at a referendum – unlike, for example, the 74 issues that the judges counted in the BBI bill. Moreover, a minimalist approach allows for easier civic education (where required) and public participation and the framing of the question(s). Additionally, it helps to minimise the challenges the amendment is likely to face in court and, finally, reduces the chances of ultimately creating incoherence and internal inconsistency in the constitution.
In conclusion, the BBI Judgment has not made amendment of the constitution impossible or unjustifiably onerous. It has instead helped to tame the possibility of abuse of the amendment power by the “political and other elites”. It also requires that any serious effort to amend the constitution must be based on a more reflective, deliberative and genuine need to amend the constitution – just as it was intended especially since 2010 constitution was preceded by a “hyper-amendment” culture of constitutional amendment.
Ultimately, it is not that the 2010 constitution cannot be amended. It is just that the constitution is very sensitive about, abhors and will fight back and resist being changed unconstitutionally. That is why it is fighting BBI so hard. Because, in truth, BBI is a story about changing the constitution unconstitutionally.
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Hard Labour: The Surrogacy Industry in Kenya – Part II
Commissioning parents who venture into the legal minefield of surrogacy in Kenya also risk losing their money, children, or both – either to the state who might intervene by taking the child away, or to surrogates who later backtrack and decide they want to keep the child. Allegations of human trafficking are also a real concern.
Navigating the law
There is currently no legal framework in Kenya which provides for the uniqueness of gestational surrogacy, leaving its participants to work around the existing laws and, in some cases, to bend them to the limit. This journalist even recorded one agent who seemed to suggest that hospital staff could be bribed to falsify birth certificates.
“Because there is no legal framework for surrogacy that would transfer the child to the commissioning parent, the closest framework that exists to permanently transfer parental rights is adoption via the courts,” said Bobby Mkangi, a constitutional lawyer and expert in child rights and protection who served on the task force that drafted the Adoption Regulations.
But the adoption route is closed, by law, to many who might want to commission a surrogate baby in Kenya.
The Children Act says adoption is only permitted under “special circumstances” to sole applicants seeking to adopt children of the alternate sex (i.e. a single male cannot adopt a girl, and a single female cannot adopt a boy); and to sole foreign females.
The law does not allow adoption, even under “special circumstances”, to sole applicants or couples who are unmarried, to “homosexuals” and to “sole foreign males”.
The government went one step further in 2019 when it banned all international adoptions.
Despite these restrictions, agencies such as Gaurav Wankhede’s advertise Kenya to gay clients. “Unfortunately, gay surrogacy is not legal in every country. Which leads to many broken hearts in the LGBT community. Surrogacy Agency Kenya is right here to make your dreams come true and resolve all the obstacles related to gay surrogacy,” its website says.
New Life Global also recommended Kenya as a destination for “Single Intended Fathers or Same Sex Couples” on its website, although when contacted they said they had closed their Kenya branch down in 2019. Their Kenya website remained active until a few days after receiving our questions, which they explained as an oversight by their IT team.
“Despite the fact that surrogacy is not banned in Kenya, we saw that the legal part of the procedures was not regulated quite well,” New Life explained.
These agencies and their local handlers have been relying on narrow loopholes and other legal grey areas created in part by the lack of any legal recognition of surrogacy.
Surrogates are particularly exposed because the law recognises their rights as mothers, but not as surrogates. Lacking clear legal status themselves, they are seldom provided with independent legal guidance.
Commissioning parents who venture into the legal minefield of surrogacy in Kenya also risk losing their money, children, or both — either to the state which might intervene by taking the child away, or to surrogates who later backtrack and decide they want to keep the child. Allegations of human trafficking are also a real concern.
Enricah Dulo, a specialist family law advocate and a legal expert in gestational surrogacy practice in Kenya, explained that the formal adoption process set out in the Children Act is complex and will take “a minimum of three months”.
“The system is designed to protect the interests of the child at all times and to prevent human trafficking,” she said.
“Adoption involves a period of trial parenting that is supervised by officers from the Department of Children Services or an approved adoption society. The final adoption order is confirmed by a judge of the Family Division of the High Court, taking all factors into consideration.”
Heterosexual married couples do not have the same legal challenges as gay couples or single parents because the adoption route is open to them in Kenyan law.
One of the pathways some commissioning parents follow is to avoid adoption altogether, Dulo said, and to apply for legal custody and parental orders of the child instead.
Legal custody also sidesteps the government’s 2019 ban on international adoptions, it seems.
Dulo said she has been helping commissioning parents seek legal and parental orders for children born to them out of gestational surrogacy agreements by filing cases, not at the High Court, but the Children Court.
Dulo maintains that certain sections of the Kenya Constitution (Art. 53 (2)) and the Children Act (Sect. 4(2)) provide a degree of leeway because they state that the best interests of the child are of paramount importance when considering any matter.
Although less time-consuming and less complex than adoption cases, there are still some important checks that a Children Court magistrate will insist on. These include DNA test results to confirm a genetic link between baby and commissioning parents, as well as consent from the surrogate mother relinquishing all her rights over the newborn.
Once an order has been issued by the Children Court, Dulo approaches the Department of Civil Registration to issue a birth certificate in the name(s) of the commissioning parents.
But some agencies appear to have found a short-cut around even this shorter route. This reporter interviewed two surrogates who claimed, independently of one another, that their surrogacy agencies had arranged for the commissioning parents’ names to be entered straight into the surrogate baby’s birth records when they are born.
This method is thought to be illegal, as it not only risks children being trafficked but also denies the surrogates their legal rights as the birth mothers.
Kenya’s Births and Deaths Registration Act makes no special provision for the genetic variables of surrogacy. “By legal definition the person who gives birth is the legal mother whose name should be entered into the notification,” said Professor Marion Mutugi, a geneticist and Vice Chancellor of Amref International University.
Surrogate Minnie (details changed to protect her) was contracted by surrogate recruiter and one-time New Life Kenya manager Millicent Aoko Ogott to deliver a baby for a Kenyan couple whom she never met.
After the embryo transfer, Ogott put her in a rental house on the outskirts of Nairobi for the entire nine months of her pregnancy.
She attended all her antenatal clinics at the hospital where she would later give birth.
Minnie said she was checked into the hospital under the name of the commissioning mother.
She said she was not allowed to see the child after it was born, and claimed that the commissioning parents’ names were entered in the birth notification at the hospital.
The birth notification is later used to generate a birth certificate by the Registrar of Birth under the Department of Civil Registration.
Minnie was paid Sh685,000 by the agency.
Minnie also told the story of her friend who carried a child — this time for a foreign couple through an unnamed surrogacy agency. She, too, gave birth at the same hospital, never saw the child and the parents’ names were entered in the birth notification. (Asked to put this reporter in touch with her friend directly, Minnie said her friend did not wish to be contacted).
Another surrogate, Judy (not her real name) told this reporter about a fellow surrogate she knows who gave birth at another hospital in Nairobi and who also claimed that the commissioning couple (both foreigners) were entered in the birth notification at the hospital – again through an unnamed surrogacy agency.
We contacted both hospitals named to us by the surrogates. One did not respond to our queries, while the other, through a lawyer, confirmed that “our practice in the processing of birth notifications has always been that the gestational carrier of a baby is the birth mother of the baby and the carriers’ name is the only one that is allowed to appear in the Birth Notification”.
The lawyer adopted a hostile tone to any suggestion that the hospital’s staff might be complicit in bypassing the law.
Instead of offering to look into the allegation, the lawyer dismissed it as “frivolous and vexatious”.
Ogott denied all allegations and referred us to her lawyer who did not respond except to warn about the laws of defamation, criminal libel and malicious falsehood.
These denials notwithstanding, the impression that surrogate agencies do conspire with hospital staff in order to short-circuit birth registration laws was furthered when this reporter posed as a Kenyan commissioning parent called Angela, and approached the African Fertility Agency.
Agency co-owner Jahjah had the following taped phone conversation with the undercover reporter:
Jahjah: Ule mtoto wako atazaliwa (Your baby that will be born)
Angela/Naipanoi: ehh? (Yes?)
Jahajah: Huwa tunachoranga na Hospitali alafu birth certificate inatoka na complete majina yenu, yako na mzee (We make arrangements with the hospital so the birth certificate has you and your husband’s name)
Naipanoi: Ohh majina yetu? So you talk with the hospital natoa kitu kidogo? (Oh, our names? You talk with the hospital and we give a small token?)
Jahjah: Na si unajua Kenya saa zingine unaeza fanya mambo mawili kidogo usaidiwe. (You know in Kenya, you need to do one or two things and you are assisted)
Naipanoi: Yes Kenya iko hivyo (Yes, Kenya is like that)
Jahjah : Alafu at the same time, hatutaki kurisk kazi ya watu huko hospitali. (At the same time we don’t want to place people’s careers at risk at the hospital)
Naipanoi: Yeah true. Pia unajuanga kusaidiana ni muhimu….. ‘cause unajua venye Kenya iko (Yeah that is true. It’s good to help out. That’s how things work in Kenya.)
Jahjah: Hio ni yangu na wewe, hakuna mtu mwingine anaweza (That is between you and me, no one else can deliver what I have offered)
Naipanoi: Ehh, ohhh..utatengeneza and I won’t have to undergo all that, the adoption, the nini..(So you’ll fix that and I won’t have to undergo all that, the adoption, and all that)
Jahjah : Hata hakuna mambo na adoption. Bila hata kutengeneza hio (birth certificate) hakuna adoption… (Adoption is not even necessary. Even without sorting that (birth certificate) you won’t go through adoption.)
Jahjah denied all allegations against him — including a specific question about the phone call with “Angela”.
Wankhede — Jahjah’s business partner in African Fertility Agency, and the person who had first put “Angela” in touch with him — did not respond to any questions.
Ironically, Dulo recalled that Jahjah and Wankhede had both attended her regular training workshop on “Gestational Surrogacy and Transfer of Parental Rights in Kenya”, in which she teaches participants how the legal framework applies.
She commented: “Whereas it is true that there is still no legal framework regulating gestational surrogacy and the transfer of parental rights in Kenya; this does not in any way mean that it is impossible to have the commissioning parents listed in the birth certificates, unless parties engage in deception and other unscrupulous activities.”
“Agencies, clinics and commissioning parents should engage an advocate and have the transfer of parental rights and orders directing the Registrar of Births to list the commissioning parents in the birth certificates done through the court process.”
This reporter is also aware of a case involving a surrogate and a single gay commissioning parent.
The case is sensitive and complex. The surrogate asked not to be named or identified in any way.
But in essence: after the surrogate had been implanted with an embryo (the commissioning parent’s sperm, and a donor’s egg) and carried the baby to full term, she and the parent pretended to have conceived the child sexually, and not through gestational surrogacy.
She then waived her rights to the child, and gave the commissioning parent custody.
The surrogate said the entire process was very stressful for her: “What I did was not child’s play,” she confided. “There were times when during the process I honestly feared I might end up in prison,” she said.
Like many businesses promoting surrogacy in Kenya, foreign-owned agencies like Become Parents and New Life Global Network (see previous story) appear to target foreign gay couples and lure them with attractive packages of around Sh3.5 million ($32,000).
This is a fraction of what it would cost in western countries like the United States, where packages cost around $120,000 (Sh13.1 million).
The bargain prices available in Kenya are at the expense of desperate surrogates, who are paid far less than their counterparts in the West.
While the businesses advertise Kenya as a safe, friendly and affordable country, parents are often unclear whether this option is legal or not. In reality, parents are at risk of losing their money, children, or both, to surrogates and to the state.
And while surrogacy can be an incredibly fulfilling experience for parents, some agencies have been accused of taking advantage of their naivety and desperation.
In March this year, a surrogacy agency owner called Winnie Warigia Maina appeared in court in a case that received front-page media attention. Maina had reportedly been charged with defrauding Dion William Van Aardt, a Dutch national living in Kenya.
Van Aaardt testified that he had paid Maina Sh2.9 million ($26,200) to arrange for IVF and a surrogate, but was discouraged by Maina from ever meeting the surrogate in person. Months later, Maina allegedly told Van Aaardt that the surrogate and baby had “died”, and requested funeral expenses, only for Van Aaardt to discover that his sperm lay untouched at the IVF clinic, and had never been used.
Warigia reportedly denied the charges and was released on bail. The case continues.
Monica, the surrogate who was forced to have a late-term abortion (see previous story), also claimed that her commissioning parent was overcharged and made to pay expenses that the agency co-owned by Wankhede and Jahjah never incurred.
The parent travelled to Kenya for two weeks as part of the surrogacy package offered by the agency.
During this time, the agency erected a barrier between Monica and the parent, Monica claimed, thereby ensuring there was no communication between them.
“I finally met the parent at the airport, when we flew out to his home country together where I was to give birth,” Monica said.
This was the point at which they both discovered the actual fees being charged by the agency, Monica alleged: “While we sat together on the flight, the parent discovered from me that a lot of what he had paid for seemed excessive. For example, I was just staying at the surrogate hostel but they said that I was costing over Sh100,000 a month for rental, food, upkeep and a personal maid.”
“They also claimed I had made several more visits to the hospital than I actually did,” Monica claimed.
Monica also claimed that six months into her pregnancy, Jahjah had offered her Sh100,000 extra to give birth in the commissioning parent’s country. She agreed.
But on the flight the parent revealed he had actually paid Sh300,000 to the agency, after being told that her family had demanded this additional sum to fly out with him.
Monica also learned, through her commissioning parent, that the surrogacy contract between the agency and the parent, which she was never given sight of, stated she would be paid Sh1.5 million. In fact, Monica claims she had been offered Sh630,000.
Monica’s allegations could not be independently verified, because she does not have direct access to the financial details in question.
However, she is not the only African Fertility Agency surrogate who claims to have discovered that her pay didn’t match the contract signed by the parent.
A pregnant surrogate on a Sh640,000 pay package threatened to run away after discovering the contract between parent and agency billed her services at Sh1.5 million, according to an insider sympathetic to the surrogate who claimed to have direct knowledge of these financial arrangements.
These allegations were put to both Wankhede and Jahjah.
Kioko denied any wrongdoing. Wankhede never responded.
For gay Australian commissioning parents Ryan and James (thought to be their real first names), their experience in Kenya was hellish. The couple were stranded in the country after Wankhede’s Become Parents agency allegedly provided them with “not one, but two fake birth certificates” that their embassy rejected.
Their baby was born in 2018. They claim the surrogate provided fake details that were entered in the birth notification. The notification details helped generate the birth certificate.
After providing the certificates to the embassy for the baby’s passport and citizenship application, the embassy claimed they were fake and refused to assist.
“It soon hit the couple that their situation was dire. They were stranded with a 5-month-old across the globe in a third world country with no timeframe for when they could get out,” according to a blogpost about their experience that was posted by someone called Jet Lake in 2019.
According to the blog, they confronted Wankhede, who reportedly replied: “My agency had tasked obtaining the BC [birth certificate] through a local contact person, and I cannot reach him at present”.
It seems the illegal practice of bypassing Kenya’s birth registration requirements in order to smooth the path for foreign surrogates (see previous section) may have come back to haunt Become Parents and their unsuspecting clients.
Wankhede would later claim that “the certificate just wasn’t processed correctly by Kenyan Authorities and a new certificate was being generated”. But this, too, was reportedly rejected as a fake by the Australian High Commission.
The increasingly panicked couple then visited the Department of Civil Registration seeking help themselves, but found none. Going to court was riskier, their lawyer told them. They had a high chance of losing the child to the state because of their “illegal” marital status.
The blog doesn’t reveal how the plight of Ryan and James was resolved, but it continues to live online and paints Kenya as a “commercial surrogacy nightmare”.
According to Wankhede’s former business partner Bill Houghton, an Irish single parent, using an unnamed surrogacy agency, came unstuck when his baby’s DNA did not match his. The Irish Consulate in Nairobi initially declined to issue the baby with citizenship or a passport. After being stranded in the country for weeks, the embassy finally relented. He was required to adopt the baby in Ireland.
In this case, constitutional and human rights expert Bobby Mkangi smells a rat: “Unless he was appointed to act as a guardian through a guardianship order then everything else is illegal. It’s against the law in Kenya for single parents to adopt, and I can’t see how he would have been allowed to leave the country unless he paid off the immigration control officers at JKIA.”
Mkangi is also concerned that such situations could haunt the child’s life forever. “Any irregularities in the child’s legal status at this stage could mean they miss out on certain rights as citizens of their adopted countries,” he pointed out.
Wankhede did not respond to detailed questions, including about the incidents involving Ryan and James as well as the Irish single parent.
Arrested and left empty-handed
In a worst-case scenario, commissioning parents face arrest and losing their child.
In 2018, police arrested alleged surrogate mother Josephine Muthoni Kariuki (a genetic mother whose eggs had contributed to the embryo) together with commissioning parent Neo Kian Fu, a Chinese national, as well as a Mombasa doctor who had assisted the duo.
They were charged in a Mombasa court with engaging in “acts that promote child trafficking”, according to a charge sheet seen by this reporter.
The surrogacy agreement reportedly unravelled after Kariuki changed her mind about handing the baby over to the commissioning parent.
Police appear to have concluded that the agreement whereby the parent would adopt the baby before departing the country was illegal, and charged the trio. The baby was placed in a children’s home.
The accused denied the charges, and the case was eventually dropped due to a lack of evidence.
It is understood that the child now lives with the surrogate.
This reporter later found the surrogate in one of the surrogate WhatsApp groups she had joined. She claimed: “I was never a surrogate. If I was, why did the court grant me the custody of my son?”
Reviewing all these horror stories told by commissioning parents, Mkangi said: “This is why surrogacy agencies look for countries with weak legal enforcement regimes and weak child protection frameworks to exploit and manipulate. As a result, poor surrogates and desperate parents are put in situations that force them to break the law.”
Almost a decade and a half after the first surrogate baby was born in Kenya, the country still doesn’t have a legislative framework to regulate gestational surrogacy and assisted reproduction.
Over the years, however, there have been many efforts by female lawmakers to address this — all of them have so far been frustrated.
Suba North Member of Parliament Millie Odhiambo-Mabona has been at the forefront of the campaign. In 2014, she sponsored the In-Vitro Fertilization Bill, revived it in 2016 and then reintroduced it in 2018.
Former nominated Senator Judith Sijeny also tabled a bill in the upper chamber in 2014, but it was never passed. Latterly, Nakuru Senator Susan Kihika has also joined the effort by sponsoring the same bill that was initially introduced by Sijeny. However, these bills were never passed into law.
The current situation is not only stalled but it is also controversial and complex.
Two bills tabled in 2019 are waiting to be passed into law, each of them, among other things, laying out the conditions and procedures for surrogacy practice in Kenya.
One is before the Senate, while the other is in the National Assembly.
The Senate legislation, sponsored by Kihika, is called the Reproductive Healthcare Bill. It provides an overarching legal framework to govern safe access to a wide range of reproductive health services for women. This includes family planning, pregnancy terminations, adolescent reproductive health and assisted reproduction — including surrogacy.
But it has stirred strong opposition from the powerful religious lobby, who claim it promotes abortion and teenage access to family planning methods. As a result, the bill has become bogged down in the Senate, and is currently being overhauled entirely.
Kihika did not respond to requests for comment.
In the National Assembly, the experienced Odhiambo had cleverly sponsored two bills — a Reproductive Healthcare Bill and an Assisted Reproductive Technology (ART) Bill. “It was a purely tactical move,” she explained to this reporter. “The Reproductive Healthcare one is very contentious while the ART Bill — which tackles surrogacy — is less so. I had to separate the issues so that in case the former doesn’t pass, the latter would be.”
But it has not been plain sailing, either. Although the ART Bill was passed by the National Assembly, it was shot down in the Senate.
It has now undergone some amendments back in the National Assembly’s health committee, and underwent a second reading in the National Assembly earlier this month.
There are many similarities between the Odhiambo and Kihika bills. Whereas Odhiambo’s bill touches on surrogacy in brief, Kihika’s is much more detailed. Odhiambo is on record in the National Assembly saying that she would not object to the bills being harmonised.
Perhaps the most significant proposal is that both would abolish commercial surrogacy.
Commissioning parents would only be permitted to pay a surrogate’s direct medical expenses, loss of earnings suffered during the pregnancy period and insurance cover in case of disability or death, according to Kihika’s proposals.
Commissioning parents would enter into a signed gestational surrogacy contract with a surrogate. Each party would also be represented by a separate legal counsel, with the commissioning parents paying the surrogate’s legal fees.
Surrogates are divided over the possible demise of commercial surrogacy. On the one hand, Monica is elated: “Paid surrogacy encourages exploitation. If I could be a surrogate again, it would never be for money. I would only do it for free, for a couple unable to conceive a baby naturally.”
But surrogate Judy, on the other hand, is going through a difficult time financially and is considering being a surrogate again. “I closed my business. All the money’s gone. If they ban commercial surrogacy, how will I survive?” she asked.
The proposed change could spell the end of the more controversial agencies, although there is likely to still be a need for those which can provide a more limited administrative service.
As Kihika’s bill stands, the commissioning couple would need to prove their inability to have children naturally in order to be allowed to enter into a surrogacy arrangement.
The other significant change proposed in both bills is that the commissioning parents are recognised as the legal parents, with their names being entered in both the birth notification and birth certificate (a reversal of the current situation).
In addition, a child born as a result of gestational surrogacy would also take the citizenship of the commissioning parents and not that of the surrogate mother (another reversal).
With the passage of this law, a surrogate mother relinquishes all parental and custodial rights over the child as soon as she gives birth.
While these changes would smooth the path for commissioning parents, including foreigners, some experts have raised concerns.
Professor Marion Mutugi, a geneticist and Vice Chancellor of Amref International University, has proposed multiple amendments to the ART Bill which she said needed to be much clearer on who can contract a surrogate: “Is it a single woman, married, unmarried live-in partners, same-sex, who?”
Enricah Dulo, a specialist family law advocate and legal expert in gestational surrogacy practice in Kenya, said the legal parentage should not be transferred from a surrogate to commissioning parent based on the strength of a surrogacy agreement alone as there is also a need to protect children from incidences of human trafficking.
As a further safeguard, Dulo would also like the law to provide for a mandatory DNA test after birth, in order to ensure that either the sperm or egg or both were from the commissioning parent(s). This is also to confirm to the surrogate that she bears no genetic link to the child(ren) she carried to term.
“Kenya is known as a source, transit and destination country for human trafficking,” Dulo warned, adding that “parental rights should still be transferred through a court order” after DNA has confirmed a genetic link to the commissioning parents.
“Any surrogacy bill that passes must recognise the rights and welfare of the child as being of paramount importance,” Dulo said.
Postscript: My encounter with JahJah
At the beginning of this investigation, in mid-2019, I posed as a commissioning parent as a way to crack open the secretive world of commercial surrogacy in Kenya.
It was Gaurav Wankhede who first fell for my story. Posing as Angela, a married woman, I told him my “husband” and I desperately wanted a child.
After some toing and froing over email, he put me in touch with his “local manager”, Josephat Kioko Jahjah, who would arrange for me to visit an IVF clinic for tests and would also pair us with a surrogate.
I pumped Jahjah for as much information as I could, which was how he came to tell me about ways to bypass Kenya’s birth registration law.
As I was reluctant to expose myself to any medical tests, as commissioning parent “Angela” I slowly melted away.
But Jahjah came to know I was really a journalist in 2020. Some surrogates to whom I had identified myself as a reporter had forwarded my messages to him. He later sent me sms’s warning me to stop looking into his surrogacy business, as I was “not Police”.
At one point, he added my number to a surrogate WhatsApp group and then recorded a voice note warning surrogates to stop sharing information with me.
These bullying tactics made some of my surrogate contacts go cold; a few who had previously agreed to give interviews later changed their minds.
I could sympathise with them: some surrogates had already described the control Jahjah and other surrogate recruiters had wielded over them. Some told me how Jahjah had boasted of his financial muscle and good connections with the police.
Much later, when my research was done, I summarised all the allegations I had gathered against Jahjah and Wankhede and sent them via email to their advocate in mid-February 2021, asking for their comment in advance of publication.
Given that I had started this investigation by going undercover, and that I am a freelance journalist, I agreed with my editor and co-publishers, The Elephant and Africa Uncensored, to send the questions on a formal letterhead as a way of underlining my credentials.
Jahjah responded via the advocate the following day, dismissing the allegations as “false and untrue”, but offering to meet “any day and time … to support my claim”.
I was surprised at this offer, and immediately wary of it.
A few days after I responded to Jahjah, requesting a formal on-camera interview with him on a specific date, a surrogate texted me out of the blue to inquire if it was true Jahjah had reported me to the police for investigating and destroying his surrogacy business.
Although I was keen to interview Jahjah in person, I now decided to play things very safe. I would not confirm the exact venue of the interview until the last minute, and I went with two colleagues from Africa Uncensored.
On the morning of the interview I called his number, and an excited-sounding Jahjah picked up. He thanked me for confirming the venue, and said he was looking forward to the interview.
We had chosen the Distrikt Lounge, a restaurant in Ongata Rongai that would be quiet at that time of day. My colleagues had pre-booked a private room at the venue adjoining a pleasant lounge area where the manager had said we were welcome to film an interview.
Jahjah arrived 15 minutes late, curiously underdressed for the cameras. He was wearing a wrinkled loose-fitting sleeveless red T-shirt, baggy blue sweatpants, and casual black shoes. No mask.
He looked confident, arrogant even. Carrying two phones and a charger in one hand, he started distributing his business cards with the other. We each reciprocated with our press cards in turn, but it was mine that Jahjah was most interested in. He asked me to take off my mask, and his eyes moved back and forth between me and my card for some time.
Jahjah declined to sit where our cameraman, Sam Munia, requested and instead positioned himself by the doorway saying he was waiting for his advocate, whom he said was on the way.
It was at this point that Munia noticed three men sitting around a table in the outdoor lounge area taking photos of us on their phones. Pretending he needed a glass of water, Munia stepped outside and spotted another couple of men around the corner.
They called him over and identified themselves as officers from the Directorate of Criminal Investigations (DCI). One of them said they “wanted Naipanoi”.
Munia played for time, giving them his ID and press card details. Our producer, Peris Gachahi then stepped out to do the same.
Left alone with Jahjah, he took out his phone and started photographing me. “Why are you taking my photos?” I asked, and requested that he stop. “I just have to,” he replied, and carried on.
The officers were now losing their patience. Gachahi summoned me to their table, where they inspected my official Kenya Media Council press card and took down my details. They then claimed I was a fake journalist who had malicious intentions towards Jahjah. According to them, a sign of this was because my original letter inviting Jahjah to comment on allegations was formatted incorrectly.
Relief washed over me as my experienced colleagues handled the situation with calm confidence. Yes, they had permission to film there, and the restaurant manager was summoned to confirm it.
The policemen then questioned them about their boss. As soon as my colleagues mentioned John-Allan Namu, co-founder of Africa Uncensored and a respected investigative journalist whose track record has made him a household name in Kenya, the officers backed off.
They said they would wait for the advocate, who arrived a short while later. The officers welcomed her familiarly, one offering her a seat and saying, “Karibu wakili” (‘Welcome, attorney’). She fist-bumped them and sat down, while her eyes seemed to flash concentrated anger and hatred in my direction.
The officer in charge informed her I was a genuine journalist, and showed her my press card. She complained we were forcing this interview on her and Jahjah, but my colleagues and I disputed this. Getting up from their seats, the officers politely informed all of us that “our work is done, we don’t want to interfere,” and took their leave.
Jahjah and his advocate both looked crestfallen, defeated. Things had clearly not gone as they had planned. They conferred with each other briefly, then the advocate informed us that her clients — Jahjah and the absent Wankhede — would not be commenting. “If you want answers, get a court order,” she said. Then they left.
The three of us later drove to the nearby police station, where the DCI officers had told us they were based, to report Jahjah for harassing me by taking photos without my consent.
The officers told us that Jahjah had been there the previous day, to report his suspicions that I was a fake journalist. The officers proposed summoning him to the police station the following week to apologise to us directly. We declined.
Reflecting back on this crazy encounter with Jahjah, his advocate and the cops, I wondered how their ambush might have played out had I arrived at the venue alone.
Then my thoughts turned to the surrogates whose lives and livelihoods are tied to the African Fertility Agency. Is this how they are coerced and intimidated? And what apology will they ever be offered?
Story editing and additional reporting by Lionel Faull, of Finance Uncovered. This article was developed with the support of the Money Trail Project (www.money-trail.org)
Hard Labour: The Surrogacy Industry in Kenya – Part I
Commercial surrogacy agencies market Kenya as a safe, affordable and welcoming surrogacy destination to desperate and guileless foreign couples via dozens of websites. They mostly operate legally under Kenyan laws. Some operate quietly out of private houses in the Nairobi suburbs. In one case, the actual ownership trail disappears into the secretive and anonymous offshore world via the UK and the obscure Marshall Islands.
An investigation has raised serious concerns that vulnerable women and babies may have been exploited by commercial agencies which market Kenya to foreigners as a highly affordable destination for surrogacy.
Surrogate Monica was hired to deliver a baby for a commissioning parent who later changed their mind. Forced into a late term abortion, for which she says she was never fully compensated, she wakes up from a recurring nightmare that the dead baby is lying on her bed.
Monica is one of scores of poor Kenyan women who have turned to commercial surrogacy to lift their lives out of poverty.
Commercial surrogacy is when an individual or a couple who are unable to conceive their own children hire a woman and pay her to carry and deliver a child for them (see sidebar below).
The demand for their services in Kenya is driven mainly by foreigners — many of them either gay or lesbian couples — who are attracted to the country due to its affordability.
Commissioning parents can commission a child from a Kenyan surrogate at quarter of the cost in some Western countries.
But unlike other countries where the surrogacy laws are clear and dutifully followed, the industry in Kenya operates in a legal and regulatory void.
Kenyan legislators have for years failed to pass a law that would protect surrogate babies as well as the mothers commissioned to carry them.
Ironically, some surrogacy agencies advertise Kenya as an open and tolerant country, whereas the reality is that homosexuality is illegal.
The law also expressly forbids gay or unmarried couples from adopting children.
In September 2019, the government also banned the adoption of children by foreign nationals.
The allegations by surrogates include:
- coercion, exploitation and intimidation of surrogates;
- apparent human trafficking of surrogate mothers and children;
- forced abortions; and
- identity forgery and fraud.
This is allegedly happening in the shadows while lawmakers dither over passing a number of bills currently tabled before both the National Assembly and the Senate.
More than a third of Kenya’s population is classified as poor, according to a report by the National Bureau of Statistics (KNBS) in 2020.
With a lack of clear regulations and laws in this area, Kenya provides a perfect environment for such businesses to flourish.
Commercial surrogacy agencies market Kenya as a safe, affordable and welcoming surrogacy destination to desperate and guileless foreign couples via dozens of websites.
They mostly operate legally under Kenyan laws.
Some operate quietly out of private houses in the Nairobi suburbs.
In one case, the actual ownership trail disappears into the secretive and anonymous offshore world via the UK and the obscure Marshall Islands.
Before moving to Kenya, one of the other main players shifted his business from country to country in Asia.
The agencies hire local fixers, some without medical backgrounds.
These fixers can obtain identity documents, court orders and free passage through immigration with remarkable ease.
Some international agencies are now warning their clients against using Kenya as a surrogacy destination. They despair about what they claim are fly-by-night operators who give the wider industry a bad name.
To crack open this secretive and fear-filled world, reporter Naipanoi Lepapa spent months posing as a commissioning parent and later as a candidate surrogate.
She then broke her cover to interview five surrogate mothers, who shared their stories — and that of a wider circle of surrogates — on condition of anonymity. Their reluctance to be identified stems in part from the social stigma that exists around surrogacy; but mainly, these women are vulnerable and scared.
This reporter faced threats of legal proceedings and an attempted arrest after confronting one of the agencies about the allegations against them.
This is also a story about how a national failure to confront the complexities of sexual reproduction has created these issues.
Only a comprehensive law can address the legal and ethical issues around commercial surrogacy. It would define the kind of surrogacy to be practiced in Kenya, set standards for all parties, and provide a regulatory framework.
Two bills — one before the National Assembly, one in the Senate — promise to accomplish all this, but they have stalled in the face of concerted opposition.
The bills would provide an overarching legal framework to govern safe access to a wide range of reproductive services for women such as family planning, pregnancy terminations, adolescent reproductive health and assisted reproduction — including surrogacy.
The Senate bill has stirred strong debate particularly on issues on abortion and teenage access to family planning methods. Its critics wants it voted down, saying it promotes underage sex and abortion. Others claim surrogacy is an unnatural process and would allow same-sex couples to have children.
Its supporters say it would make surrogacy legal for the first time in Kenya thereby protecting surrogate children, mothers and parents from exploitation.
If passed, it would make Kenya only the second country in Africa to legally recognise surrogacy, after South Africa.
A reproductive practice where an individual or couple who are unable to conceive their own children contract a woman and pay her to carry and deliver a child for them.
There are two ways this can happen:
- In gestational surrogacy, the couple’s sperm and eggs or donor eggs are fertilised in the lab to make an embryo that is then implanted in the surrogate’s womb — a process known as in vitro fertilization (IVF).
- In partial or traditional surrogacy, the surrogate uses her own eggs and becomes pregnant through artificial insemination often using the commissioning father’s sperm.
The alternative to commercial surrogacy is altruistic surrogacy, in which a surrogate agrees to carry a child for free.
A couple that enters a commercial surrogacy arrangement with a surrogate who they pay to carry and deliver their child. A surrogacy agency typically acts as a go-between for the commissioning parent and the surrogate.
Kenya does not currently have any legal framework which either permits or bans surrogacy.
A patchwork of laws make it possible (but not straightforward) for married heterosexual couples to either adopt, or get custody of, a surrogate baby through the courts.
The law outright forbids adoption by sole applicants or unmarried couples, as well as by “homosexuals” and “sole foreign males” — although this appears to be a major target market for surrogacy agencies who offer Kenya as a surrogacy destination.
Custody is a quicker, simpler route through the courts, provided the surrogate gives her consent.
Some surrogacy agencies short-circuit the process entirely by arranging for the commissioning parents’ names to be entered straight into the surrogate baby’s birth records when they are born.
This method is thought to be illegal, as it not only risks children being trafficked but also denies the surrogates their legal rights as the birth mothers.
A number of mostly foreign-owned agencies market surrogacy services in Kenya, but there are no official estimates of how many IVF and surrogacy agencies exist in the country.
The Ministry of Health was unable to provide any data on the numbers of foreigners coming to Kenya for surrogacy, women working as surrogates, or children born out of these arrangements. Officially, the ministry says they don’t have data because there is no law in this area.
Globally, commercial surrogacy is big business with revenues expected to exceed $27.5 billion in the next five years, according to a market research report from 2019.
Kenya is a relatively new and niche surrogacy market, and is likely to be a tiny player. Its principal attraction as a commercial surrogacy destination appears to be because it is cheap and English-speaking.
A typical package costs commissioning parents Sh3-4 million ($30,000-$35,000) – which is around one-quarter of what it would cost in the USA, for example.
The cost of surrogacy in Kenya makes it competitive with countries in eastern Europe, like Georgia and the Ukraine.
Meet the surrogates
Monica (not her real name), a single mother of two, earned Sh6,000 ($55) per month as a house help before being fired. Months after losing that job, and getting desperate, Monica was scrolling through Facebook when she thought she had found a life-changing opportunity. A Kenyan surrogate in Russia posted a WhatsApp link seeking surrogates.
Monica jumped on the opportunity and joined the WhatsApp group, where she met Josephat Kioko Jahjah, a former taxi driver and tour guide turned surrogate recruiter for African Fertility Agency Limited.
Jahjah immediately sent her the transport fare to meet him at a hotel in downtown Nairobi the following day. Monica remembers it was the first day of the month and, coincidentally, the first day of her period. In the brief meeting, Jahjah, a tallish middle-aged man who at first acted charmingly told her said he would pay her Sh630,000 ($5,700) for the entire process, comprising a monthly stipend of Sh20,000 ($180) and Sh450,000 ($4,100) after delivery.
After the brief meeting, Jahjah instructed her to meet him at Fertility Point, a IVF clinic located in the Upper Hill suburb of Nairobi, a leafy area favoured by multinational companies and major banks, for medical tests the next day.
On the third day of the month, Monica met him at the fertility clinic where she was subjected to many tests, including for sexually transmitted diseases, hepatitis, and hormonal balance.
The doctor in charge immediately put her under hormonal medication to help prepare her uterus for pregnancy.
Just two weeks later, with her verbal consent, but without her signing any contract, an embryo was implanted in her womb at the facility and afterwards she relocated to a private hostel in Buruburu, a middle-class residential area of Nairobi.
The hostel is one of several run by African Fertility Agency, where surrogates remained for the whole nine months.
“From this point on, Jahjah dictated every part of my life. What I ate, where I travelled, and when,” Monica said.
Six months later, Jahjah took Monica to Nyayo House, the government’s immigration centre in Nairobi, to get a passport. She would need to make a journey to a foreign country where the commissioning parent of the baby inside her lived.
Monica had never been out of Kenya before. Jahjah told her to pay Sh3,000 ($27) and three days later, Monica’s first passport arrived. A few days later, she boarded the flight.
Upon arrival, Monica was put up at a hotel where she lived for a further two months. The commissioning parent lived a five-hour drive away. Sometimes he visited to check up on her but mostly they communicated via WhatsApp.
In the eighth month of her pregnancy, Monica got a call from the parent, instructing her to pack her bags. He said he’d pick her up in a few hours’ time, and gave her the impression that he was taking her to live with his parents where she would be better cared for.
When he arrived, he tearfully informed her that his parents were not in support of the arrangement and that he had changed his mind and didn’t want the baby.
He was accompanied by a friend, and they drove to another hotel where Monica was checked in. Over the next few hours, a doctor injected her with a drug that gave her severe contractions.
As her pain grew, the parent and his friend moved her to a clinic. It turned out that the friend owned this single-bed facility, and that it was a backstreet abortion clinic.
They injected her with more drugs and she laboured painfully for 12 hours.
“When the baby didn’t come out, this guy called his friend who was also a doctor and they transferred me to another hospital where they did a Caesarian-section surgery on me. They told me that the baby had already died.”
“All this was done without my consent,” Monica recalls, her face etched with anger and bitterness.
Five days after the abortion, during which Monica was not allowed to use her phone, she boarded a flight back to Kenya. “It’s a miracle I made it back home,” she said.
African Fertility Agency was unaware about these developments, Monica said, until she landed back in Nairobi.
Upon her return, Monica received another blow: the agency refused to pay her, she claimed.
Monica fell into depression and had nightmares of the aborted baby sleeping on her bed.
After she threatened to report the matter to the police, the agency’s co-owner Gaurav Wankhede paid her Sh400,000 ($3,600).
She used a chunk of this, around Sh30,000 ($270) to pay for therapy and medication for depression.
A sample surrogate contract obtained from the African Fertility Agency focuses mostly on the needs of the client, and if anything goes wrong the surrogate appears to be on their own.
For example, there is no next of kin in the contract or a contact in case of an emergency. A surrogate who miscarries before week 24 of pregnancy is not compensated and one who wants to abort must seek consent from the parent.
Monica is among the many poor women from Kenya who have turned to surrogacy to lift their lives out of poverty but who find themselves being exploited.
In some cases where women may have felt pressured to give birth abroad, experts believe that what happens to surrogates is tantamount to human trafficking.
Sophie Otiende, a highly respected anti-human trafficking campaigner, commented that Monica’s experience was also of concern. She said: “She appears not to have been told what would happen to her, or that she would have to leave the country.”
Trafficking in persons is a serious crime, carrying a minimum sentence of 30 years or Sh30 million ($271,000) fine, or both. Repeat offenders face life imprisonment.
All the allegations in this article were put to African Fertility Agency in writing, as well as to both co-owners individually. Wankhede didn’t respond. Jahjah denied the allegations saying they were “false and untrue”.
More than a third of Kenya’s population lives below the poverty line, according to the Comprehensive Poverty Report published by the Kenya National Bureau of Statistics (KNBS) last year.
The KNBS’s poverty line is set at Sh3,252 ($30) monthly income per adult in rural areas and Sh5,995 ($55) in urban areas.
Experts say that poor, illiterate and ignorant women are particularly at risk of exploitation because they are not aware of their rights and cannot negotiate for reasonable compensation.
While researching this article, this reporter met half a dozen women who have risked their bodies to gain some economic stability.
Ordinarily, they would earn meagre incomes as house helps, as assistants in shops and hair salons, or as menial workers.
Single women seem to be preferred by recruiters because, as one surrogate put it, “Single women have no support systems. A husband will question things, and they don’t seem to want that.”
All of them spoke on condition of anonymity, for multiple reasons including fear of reprisals, losing out on further surrogacy opportunities, and social stigma from their families and communities.
Many identifying details have been removed to protect the identities of those who have shared their stories.
Anne Ireri, executive director of the Kenya chapter of the International Federation of Women Lawyers (FIDA), said that there was a risk of the exploitation and abuse of surrogates because of a lack of regulation.
“Our organisation has heard reports of abuse, but the surrogacy industry is clouded in mystery and very few women are willing to come forward,” she said.
She added that FIDA is available to help surrogates who feel that they may have been exploited.
Dr Jane Wathuta, director of the Institute for Family Studies and Ethics at Strathmore University, said that agencies should at a minimum give surrogates detailed information about what the entire surrogacy process entails, before they consent to participate.
She also said that surrogates should receive ongoing counseling for lengthy periods before and after the procedure.
But all of the surrogates we interviewed claim none of this was offered. “You are not allowed to question. If you do, you’ll be reminded that you need them more than they need you,” said one surrogate.
Threatened and silenced
Magdalene (not her real name) acted as a surrogate twice, under New Life Kenya, an agency founded by a Georgian woman and ultimately owned in an offshore tax haven.
Both times she signed contracts, Magdalene says, but she claimed that her recruiter kept hold of them.
“They rush you into signing the contract before you read it, and they never give you a copy to keep or read later,” she says.
The single mother of one was in desperate need of money when she first signed up with Millicent Auko Ogott, the company recruiter and Kenya country manager, whom she met on Facebook.
As with surrogate Monica, Magdalene was immediately sent for tests and then put on hormone medication to prepare her womb for pregnancy.
The first time, her commissioning parents were a foreign couple living and working in Kenya. When they met, the couple revealed they would soon be moving back to their home country and wanted Magdalene to go with them to have the embryo implanted there.
“When I said I didn’t want to go, they threatened me with legal action saying I had signed a contract and they had already paid Sh80,000 ($700) for my tests.
Bobby Mkangi, a constitutional and human rights expert, said that Magdalene was given a wrong impression that her contract is the law, whereas her own legal rights superseded any contract.
Otiende, the human trafficking expert, observed that there seemed to be no way for her to opt out of the arrangement.
Two weeks later, on her way to the airport believing that she was headed to one country, Magdalene learned she was going to another.
She says she protested, but at this late stage there was nothing she could have done.
Magdalene lived overseas for the duration of her pregnancy. After she delivered, she flew back to Kenya where she said she was paid Sh400,000 ($3,668) — a welcome sum for a single mother, but still Sh200,000 ($1,834) short of the agreed Sh600,000 ($5,502) delivery fee.
“I was told the additional costs of sending me abroad were deducted from the final payment,” she said.
Magdalene added that New Life Kenya was meant to protect her but they didn’t, choosing to side with the parents at every turn. “When I called Millicent, she would dismiss me saying, ‘You complain a lot.’.”
“If a surrogate falls ill or even dies while pregnant, or during childbirth, nobody cares,” Magdalene said.
Although her second surrogacy was more straightforward — she delivered for Kenyan parents at a hospital in Nairobi, and was paid in full — she says she will never do it again: “Robbing a bank is easier than being a surrogate.”
All the allegations in this article were put to New Life Kenya in writing, as well as to Ogott in her personal capacity.
New Life responded: “We always respect our surrogate mothers’ interests and always treat them in line with protecting all kinds of human rights.”
Ogott said the specific allegations against her were “malicious” and threatened to sue this reporter in a personal capacity. Further detailed questions sent to her lawyer at her request went unanswered.
New Life Kenya shared the following cost breakdown with this reporter, who was posing as a potential client in mid-2019.
- $4,500 (Sh463,500 at the then- exchange rate) agency fee for sourcing surrogate mother;
- $1,000 (Sh103,000) to prepare uterus for implantation;
- $1,000 for surrogate hospital visits and tests before embryo transfer (IVF); and
- $1500 (Sh154,500) for contract notarisation and surrogate background check.
- $500 (Sh51,500) for surrogate pay after embryo transfer, and
- $500 monthly pay for surrogate during the remainder of her pregnancy.
The IVF procedure was not included in the cost break-down, the agency said.
IVF can cost anything between $3,000-$5,000 (Sh310,000 and Sh515,000) in Kenya, according to experts.
In total, New Life Kenya said the surrogate’s compensation package would be $8,000 (Sh824,000) plus an extra $1,000 (Sh103,000) if she delivers twins.
“It is your responsibility [as an commissioning parent] to look after the pregnant surrogate mother during the pregnancy period and undertake all necessary expenses,” reads the email.
New Life no longer operates in Kenya.
Meet the agencies
The surrogacy agencies that managed Monica and Magdalene are both owned by foreign nationals with a long history in the surrogacy industry and both operating legally in Kenya.
Monica was recruited by African Fertility Agency Limited, an offshoot of an international surrogacy group called Become Parents which was founded in 2007 in Melbourne, Australia, by Gaurav Wankhede.
Wankhede, 46, is a jack-of-all-trades with a tendency towards grandiose self-promotion.
According to his LinkedIn profile, his remarkable career has zigzagged from being a restaurant manager in India to a procurement specialist for the Royal Australian Air Force “responsible for inventory optimisation for the entire $4.7 billion Australian defence supply chain”.
He then moved on to KPMG where he was a senior advisor in organisational change management, before becoming CEO of a fine dining establishment in Kolkata called OMG Hospitality.
In 2017, Wankhede co-founded an Indian professional wrestling franchise with a childhood friend.
Throughout these many career changes, the one constant on Wankhede’s CV has been his surrogacy agency Become Parents, which he calls “the world’s leading ethical surrogacy agency”.
After India banned surrogacy for foreign homosexual couples and single parents in 2013, Wankhede’s international business moved on — first to Thailand, where surrogacy was also soon banned, then to Nepal, Cambodia and, finally, Kenya.
Bill Houghton has known Wankhede for years, ever since Become Parents facilitated the birth of Houghton and his husband’s two children in 2012. For a while, they were business partners, first in India and then Thailand.
But then Houghton and Wankhede parted ways gradually. “Every time one country closed its borders to surrogacy, it seemed Become Parents opened its services in the next unregulated country. I think he would have done better to move instead to the next safer destination.”
Houghton said the unregulated Cambodian market in particular was dishonest and dangerous.
Commissioning parents operating in a legal vacuum were forced to navigate a maze of bureaucratic bribery in order to obtain the necessary documentation for their children. Some lawyers were found to be forging documents, and some agents were arrested, Houghton said.
There is no suggestion that Wankhede or his agency were involved in any illegal activities.
While Houghton says he remains grateful to Wankhede for helping him start a family, he parted ways in order to focus on his own agency, called Sensible Surrogacy.
Houghton worries that his old friend Wankhede may one day come unstuck operating in unregulated surrogacy markets, and points out that Kenya is similar in many ways to Cambodia.
Houghton has now taken to actively warning prospective parents that Kenya is an unsafe surrogacy destination.
“The lure of being able to have a baby ‘on the cheap’ is attracting desperate couples into what could be a dangerous situation.” Houghton said in a 2018 press release. “Many of our clients are LGBT [lesbian, gay, bisexual or trans-gender] couples, and Kenya is notoriously homophobic.”
Houghton said that surrogacy agencies in the US charge $120,000 (Sh12 million). Or they can deal directly with a surrogate and spend less than $70,000 (Sh7 million). Either way, they avoid the risky, unregulated and homophobic Kenya market, he said.
Wankhede shot back in a video posted to his website last year, saying Houghton was not speaking from experience because he had never been to Kenya.
Wankhede extolled Kenya’s virtues as a great tourism destination that is welcoming to same-sex couples. “The fear that people have about same sex couple in Kenya is wrong. It’s absolutely a myth,” he said.
He claimed his agency’s “best practices in the industry” help attract local and foreign clients, adding that foreigners like him are able to build their businesses around Kenya’s many IVF clinics and plentiful supply of skilled medical practitioners.
In the video Wankhede then introduces Jahjah, the former taxi driver, as the agency’s manager and caretaker.
Jahjah claimed none of the same sex couples he worked with had issues. As long as foreigners do not show affection in public, he advised, nobody cared about their sexual orientation.
Wankhede and Jahjah own 50 percent each of African Fertility Agency, which was registered in April 2019 according to ownership records from the business registry. Jahjah is also the firm’s director.
Wankhede has been operating in Kenya for longer, however, since at least 2017 when Become Parents launched a website for a business called Surrogacy Agency Kenya.
Wankhede did not respond to detailed questions, including about his run-ins with Houghton. Jahjah dismissed all the allegations against him as “false”, including a question about the agency’s apparently misleading marketing pitch about Kenya being open and welcoming to gay commissioning parents.
In another video posted to Become Parents YouTube channel in 2017, Wankhede introduced Millicent Aoko Ogott as his operations manager in Kenya.
Ogott, a former teacher, was also managing at least one other surrogacy firm in Kenya at the time.
This was New Life Kenya, the agency where Ogott recruited surrogate Magdalene — the surrogate who felt unable to opt out of her contract and who ended up being sent to an unexpected country to give birth.
New Life Kenya is a branch of the New Life Global Network, founded by Dr Mariam Kukunashvili in Georgia in 2008.
Kukunashvili lives a jet-set lifestyle, with each glamorous destination documented on social media with herself at the centre of a seemingly inexhaustible series of fashion and modelling shoots.
New Life Global Network is actually a limited liability partnership (LLP) company, incorporated in the UK in 2010.
It is impossible to determine who ultimately owns the company, as its registered partners are not people, but a pair of companies based in the Marshall Islands, a secrecy jurisdiction and tax haven in the Pacific.
It is puzzling, though, that whereas New Life Global Network’s website and Facebook page says it has helped thousands of couples become parents through IVF and surrogacy, the UK-based parent company’s public disclosures bear little relation to this line of work.
Its principal business activity is described as “consultant for medical equipment and received commission”. Between 2017 and 2019, its corporate filings show an annual income of just a few thousand pounds in commission fees.
In 2015-2016, when the company’s principal business activity was listed as “medical consulting services”, its income comprised agent’s fees in the region of £120,000-£160,00 per year (Sh15-20 million at the then-exchange rate).
This amount is roughly equal to the cost of just a couple of commercial surrogacy packages offered in a Western country, like the US.
Although New Life was happy to answer questions about its Kenyan operations, it ignored all questions about its global ownership structure, principal business activity and income.
New Life said it had only ever referred four client couples to surrogates in Kenya, who delivered a total of six babies between 2016 and July 2019, after which they stopped offering surrogacy services in the country.
They said they closed because, “despite the fact that surrogacy is not banned in Kenya, we saw that the legal part of the procedures was not regulated quite well”.
Ogott distanced herself from New Life Kenya saying she does not run any entity by that name. She said all her business operations are lawful, and referred further questions to her lawyer who declined to receive them by email.
In a brief WhatsApp exchange, the lawyer said: “Pay due to consideration to the laws of defamation, criminal libel and malicious falsehoods.”
Asked to explain why the New Life Kenya website — which features Ogott as its country manager — was only taken down in late February after receiving our questions, the agency said it was an oversight by their technical team and should have been done earlier.
New Life said that, apart from the six surrogacy deliveries of which it was aware, it was “not responsible for any other actions taken by Ms. Ogott”.
From interviews with surrogates, this reporter believes that there could have been up to nine deliveries in total involving Ogott as agent — some of which may have been undertaken for other agencies including Wankhede’s Surrogacy Agency Kenya.
New Life confirmed that Ogott had been their agent in Kenya between 2016 and 2019 because “she had the [data] base of surrogate mothers” in the country.
Most surrogacy agencies rely on a number of IVF fertility clinics dotted around Kenya.
One of the most popular being Mediheal Diagnostic and Fertility Center which is owned by Kenyan politician Swarup Ranjan Mishra. Mishra, the Jubilee Party’s MP for Kesses constituency in Uasin Gishu county, is also a trained gynaecologist and obstetrician.
According to a 2019 brochure on the Mediheal website, they say they have a “surrogacy program” which “accept(s) embryos from overseas for transfer into surrogates”.
The brochure also notes that “monetary compensation may or may not be involved in [surrogacy] arrangements” and that the Centre’s “success rate is among the highest in the region for both IVF and surrogate procedures”.
Other IVF clinics include Fertility Point and Wings in Nairobi, and the Mombasa Assistive Reproductive Centre, attached to the Mombasa Hospital.
Hospitals where surrogates have given birth include the Aga Khan University Hospital and the Nairobi Hospital, Nairobi West Hospital as well as smaller facilities such as Mater Misericordiae and Balozi hospitals.
There is no allegation of wrongdoing by any of these IVF clinics and hospitals.
In the next installment, we reveal the potential impact of unregulated surrogacy on commissioning parents PLUS an encounter with a surrogacy agent.
Additional reporting and story editing by Lionel Faull & Margot Gibbs, of Finance Uncovered. This article was developed with the support of the Money Trail Project (www.money-trail.org).
Unrecognized Vote: Somaliland’s Democratic Journey
If Somaliland’s democratic transition is to last, there must be strict regulation of the behaviour of political parties and the National Election Commission must be re-evaluated.
Somaliland reinstated its independence in 1991 following the collapse of the military regime that had ruled Somalia for two decades. The Somali National Movement which took over the northern regions facilitated a broad-based conference in Burco attended by traditional leaders of all six regions of Somaliland who unanimously agreed to the dissolution of the union with Somalia and proclaimed independence on 18 May 1991.
The conference also established Somaliland’s first government, based on the SNM’s organisational structure, with its Chairman, Abdirahman Ahmed Ali, becoming Somaliland’s first executive president and the SNM Central Committee functioning as the country’s first parliament. It had a two-year mandate, and was tasked with accommodating non-Isaaq clans into the government, developing a constitution and preparing Somaliland for elections.
The new country continued to suffer violence and weak institutions, with elders stepping in to prevent degeneration into protracted civil war. In 1992, the first of two major clan conferences, held in Sheekh, created the national Guurti, or council of elders, bringing together elders from all the clans responsible for controlling clan militia and preventing conflict, as well as defending the country.
The 1993 Borama Conference
The second major clan conference assembled in Borama, a city in the West of Somaliland, for nearly five months in 1993. It eventually produced a National Charter which established government structures and the separation of powers for a transitional two-year period, pending the adoption of a new constitution. The charter included the creation of a bicameral parliament, with the Guurti formally institutionalised as the upper house, and the lower house made up of elected representatives. A clan-based electoral college elected Mohamed Haji Ibrahim Egal president for two years as well as members of the guurti and the lower house.
The political system established in 1993 became known as Shirbeelad, meaning “clan” or “community,” integrating indigenous forms of institutional arrangements with modern institutions of government. It was only meant to be in place for three years but lasted a decade.
Following the transition of power from the SNM leader Abdirahman to Egal, the new administration now had two years to prepare an interim constitution for approval by parliament and the upper house. The process proved to be time-consuming, necessitating extensions of the charter’s deadline.
Ultimately, two drafts were produced. In 1994, the government hired a Sudanese lawyer to write the constitution while the House of Representatives appointed an ad-hoc committee advised by lawyers, traditional leaders, religious figures and politicians which, suspecting the government’s draft would give excessive power to the executive branch, drafted an alternate version. Following deliberations to reconcile the two documents, a unified draft was adopted as the interim constitution in 1996, with a three-year implementation period leading up to a referendum. A final, revised constitution was approved by both houses on 30 April 2000 and overwhelmingly endorsed by 97 per cent of voters in a public referendum held on 31 May 2001.
The local government and parliamentary electoral system
The constitutional referendum paved the way for popular elections. The first set of municipal and national elections held between 2002 and 2005 were conducted by a novice electoral commission with almost no international technical and financial support and without many of the accoutrements of modern elections such as censuses, comprehensive voter registers and voter education. Though not without problems, disagreements and accusations of malpractice, the elections were considered largely credible, free and fair, and their outcomes were widely accepted.
The constitution defined a new political system for Somaliland — a democratic, multi-party system, in which the head of state and members of parliament and district councils would be elected directly by the public by secret ballot, instead of through electoral colleges of elders.
Within two years, a body of laws was passed to facilitate formation of political parties, define citizenship, delineate the structure of local government, and lay down electoral procedures. The laws provided for a seven-member Registration Committee which administered the registration process for political parties as well as the process of qualifying three to become national parties as stipulated by the constitution. The constitutional limitation to the number of national parties was meant to prevent the political system from fracturing along clan or regional lines.
The first local government elections were held In December 2002. Voter registration was only carried out in urban areas, with around 330,000 people being registered. However, on polling day people were allowed to vote irrespective of whether they had a registration card or not (and were then marked with indelible ink).
Six registered political formations qualified to compete in the polls, with the top three in terms of number of seats won recognised as national parties which could field candidates in national elections, including for the position of president. The successful parties were Egal’s UDUB, Kulmiye and UCID. European Union observers declared the elections — during which 440,000 votes were cast — to be “of as high a quality as is realistic within the prevailing environment”.
The presidential polls
In 2003, with the presidential elections fast approaching, President Dahir Riyale Kahin, who had succeeded Egal after the latter’s death in May 2002, met with the three national parties and agreed on the composition of the seven-member National Election Commission. The president and the Guurti would each nominate two commissioners while the political parties would pick one each.
The elections were held on 14 April 2003, pitting President Riyale of UDUB, Ahmed Mohamed Silanyo of Kulmiye and Feisal Ali Hussein of UCID. The result was a wafer-thin victory for the incumbent, who won by just 80 votes out of the 500,000 cast. The Kulmiye Party immediately asked for a recount at some of the polling stations but this did not change the original tally. The result was eventually challenged in the Supreme Court which endorsed Kahin’s victory. Silanyo conceded and Kahin was sworn in on 16 May.
Many who were uncertain and wary of a disputed election and its consequences, expressed gratitude to the Kulmiye leader, Silanyo, for his incredible decision. A seasoned politician, Silanyo had weighed the situation and seen the turmoil that lay ahead. He sacrificed his own political and party ambitions in order to save the fragile democracy. Given that he had served the longest in the SNM leadership and was from the dominant Isaaq clan, Silanyo’s concession removed the latent suspicion that the powerful Isaak would establish hegemony over the other clans.
2005 legislative elections
On 29 September 2005, Somaliland held its first, and so far only, multiparty contest for the 82 parliamentary seats. The 82 members of the house were elected on the basis of proportional representation. UDUB won with 33 seats, Kulmiye garnered 28 and UCID captured 21.
Smarting from their 2003 presidential loss. Kulmiye and UCID blocked or rejected any motion from the executive branch. It was the beginning of political tensions in Somaliland, which crippled the cohesive nature of Somaliland democracy. The parliament elected in 2005 is still glued to their seats because the opposition political majority in the house has continued to filibuster and shoot down any progressive motion pertaining to elections.
He sacrificed his own political and party ambitions in order to save the fragile democracy.
It was only after the 2005 elections that political stakeholders agreed to establish the first voter registry. A law was enacted in 2007 to govern the process and, following some amendments, voter registration proceeded in 2008. It was, however, briefly suspended following suicide bombings in Hargeisa on 29 October 2008, and was also marred by widespread fraud and mismanagement. Nearly 1.3 million names were collected throughout the country, each of which was meant to be validated through a biometric fingerprint system. According to Michael Walls — Co-Coordinator of the international election observation mission for the Somaliland presidential election in 2009 and lecturer at University College London — registration centres permitted more than half of those registering to do so without taking a readable fingerprint and “large numbers were permitted to hold photos in front of the camera rather than presenting themselves for the purpose”.
The 26 June 2010 presidential election
With the term of President Kahin expiring in May 2008, the voter registration exercise was meant to facilitate municipal and presidential elections. However, the polls were repeatedly delayed because of infighting within the higher political circles, specifically between the parliament, opposition leaders and the president, necessitating two extensions of his term. As provided for in the constitution, the Guurti approved the president’s request for an extension of his term and that of parliament to March 2009 due to the instability in the eastern regions. The second extension occurred at the request of the NEC which needed another year to prepare for the polls due to the prevailing political situation, economic problems and technical issues.
The elections were finally held two years late — on 26 June 201 — and were again contested by Kulmiye, UDUB and UCID. Nearly 540,000 voters cast their ballots across the country on election day, electing Kulmiye leader Silanyo, with 50 per cent the vote. It was now Kahin’s turn to gracefully concede and Silanyo was sworn in on July 26 in a ceremony attended by delegations from across East Africa, including officials from Kenya, Djibouti and Ethiopia.
Local government elections in 2012
On 28 November 2012, Somaliland held its second round of local council elections, the results of which, like the first a decade earlier, would determine the three national political parties that could contest national elections for the next decade. Though largely free and relatively peaceful, the elections were marred by multiple voting exacerbated by the lack of a voter register – the previous one having been nullified by parliament after it defied attempts to clean up the voter roll — and the ease with which supposedly indelible ink was removed.
With two of the three national parties in trouble — many of UCID’s supporters and MPs had transferred their allegiance to Wadani, a new political organisation, while UDUB, the party of the two previous presidents, was widely thought to be dissolving — there was space for new political formations. Five new formations contested the 2012 elections alongside Kulmiye and UCID. Despite some dispute and violence in the immediate aftermath, the results were accepted and Kulmiye, UCID and Wadani emerged as the national political parties.
Presidential elections — 2017
On 13 November 2017, Somaliland conducted its third presidential election, its sixth popular national voting exercise in 15 years. The election — which had originally been scheduled for June 2015 but was delayed, initially at the request of the NEC and then due to the drought ravaging the country in January 2017 — saw three candidates competing to replace the incumbent Silanyo, who had decided to step down: Wadani’s Abdirahman Mohamed Abdullahi Irro, UCID’s Faisal Ali Warabe, and Kulmiye’s Muse Bihi Abdi. The polls, which were preceded by the rollout of a new biometric voter registration system, experienced considerable delay caused by technical and political challenges, and drought. Compared to over a million in 2010, 873,000 voters were registered, although only just over 700,000 actually collected the voter cards that would allow them to vote.
Once again, peaceful voting was followed by delays in the tabulation and collation of results, and allegations of malpractice. Violence led to some fatalities and the results were disputed, especially by Wadani which demanded a recount but eventually relented. On 21 November, Abdi was declared the winner with 55 per cent of the vote and became the country’s fifth president, cementing a tradition of peaceful handovers of power that is relatively rare in the region.
On November 7th 2020, as the country prepared for the long-delayed parliamentary and municipal elections that are now to be held at the end of May 2021, the National Electoral Commission (NEC) released the timetable for the voter registration exercise that was scheduled to start on November 29th 2020 and end on January 13th 2021. The voter registration exercise targeted those who had missed the 2016 voter registration exercise as well as those who had attained the voting age. The exercise would also be used to clean up the 2016 register. The NEC also gave voters who needed to change voting locations the opportunity to do so and to also replace lost voter cards.
Successes and challenges in the democratisation process
The Somaliland constitution contains fundamental principles strengthening citizens’ rights and freedoms, and emphasises the transition from clan-based politics to a multi-party democracy. However, political parties have not transformed themselves in terms of structure, vision and strategy. Rather than becoming vehicles for transmitting the noble constitutional principles of a multi-party system, in practice they derailed it and became clan-oriented in order to secure more votes. For example, they deferred to clan leaders in the selection of candidates, favouring those from the larger, vote-rich clans, ignoring the smaller ones, and generating conflicts and divisions between them.
The heteromorphic nature of Somali politics and democracy
Somali society is considered ethnically homogenous, monolingual and singularly Islamic. However, it is characterised by an entrenched paternal clan system. These clans are communities of relationships that share common ancestral origins and are interrelated. Clan relations extend over clan territories marked by fluid borders. Upon birth, a Somali is given one name — their first name. The second name is their father’s, the third their paternal grandfather’s and so on and so forth until you arrive at the sub-clan name. Knowing one’s genealogy several generations back is of paramount importance in Somali culture; it is a primary identifier for the individual and the clan. This genealogical identity has been used successfully in Somaliland to curb crime, insecurity and terrorism. It is the most successful approach to community policing.
The clan therefore is at the core of politics in Somali culture. Clan groups became the basis of the political parties for the parliamentarian election in 1964, which meant that from the outset Somalia political parties had a strong clan consciousness. The political system adopted in the 1960s was a clan-based parliamentary democratic system that inevitably led to the politicisation of the clan and the death of ideological politics and democracy.
Clanism, nepotism and patronage
This is the omnipresent danger to all Somali political and democratic initiatives. In such a clan-based political system, the government must have robust and powerful institutions. The governance culture must also emphasise meritocracy over clanism, nepotism and patronage. Governance must be inclusive economically, socially and in terms of development and must be seen to be meritocratic in the filling of public office. The tenets of democracy are optimistic; they envisage a rational human society. But humans are often irrational and their decisions, beliefs and bias is born out of their own selfish interests and desires.
Democracy calls for one man, one vote, and victory to the majority. This is ideal in a democracy that practices ideological politics. But where ideology is replaced by clanism, the majority will always be the most populous clan or the most populous clan alliance. This denies a country visionary leadership because political contests are not based on ideologies, development agenda or unity.
Further, elections in Somaliland have been characterised by unnecessary postponements when politicians are uncomfortable either with the electoral laws or with the appointment of NEC members. For example, the 2008 presidential elections were postponed for two years due to the opposition severely pressuring the incumbent president on controversial issues related to the choice of NEC members.
The political system adopted in the 1960s was a clan-based parliamentary democratic system that inevitably led to the politicisation of the clan and the death of ideological politics.
More recently, between 2017 and 2019, opposition parties UCID and Wadani were at loggerheads with the president over the nomination of the National Electoral Commission. The opposition was challenging the president’s prerogative to increase the number of the NEC commissioners from seven to nine. That dispute led to the postponement of the elections to 2021.
The political parties have truly shackled many opportunities to develop true democracy in Somaliland. The parliamentarians elected in 2005 are still in office 16 years later due to the cycle of postponements driven by political parties. There is a light at the end of the tunnel, however, as new political parties are rising unburdened by the tedious process of using local government elections to select the parties to compete in national elections. The four-year delay in holding the local government elections now means they will be held on the same day as the parliamentary polls.
Due to this, on April 4th 2021 the Somaliland parliament drew up new criteria for identifying national political parties which will now be selected through a separate electoral process in all the six regions. The political organisations that obtain the highest cumulative votes from all six regions will qualify for the three spots, allowing them to run for national elections in future. This elective process for new political parties will most likely be carried out before the expiration of the 10-year period for the current three political parties in November 2022.
Significance of the May 2021 elections
With 1.3 million registered voters (approximately 30 per cent of the population of Somaliland) expected to cast their votes — with 246 candidates gunning for 82 parliamentary seats and 966 vying for 249 district municipality seats in the six regions — these elections will be the most competitive yet. The outgoing parliamentarians were elected in 2005 and sat for 16 years, a decade longer than their mandated term limit. Similarly, the outgoing local government council was elected in 2012. The citizens of Somaliland are determined to bulldoze these unethical politicians. As stated earlier, the dysfunctional political parties are responsible for the postponements, while incumbent presidents have often played the game to gain more time on the throne.
The government will provide at least 80 per cent of the NEC’s budget, with international partners covering the rest. According to the NEC, it will be using biometric voter registration and a sophisticated voting system which university students have trained operate at the polling stations to ensure smooth operations with minimum technical errors and disruptions.
May 31 is of historic significance for Somaliland as it marks the 30th anniversary of Somaliland’s independence and the 20th anniversary of Somaliland’s multiparty democracy. It was on May 31st 2001 that Somaliland voters approved the constitution through a referendum. Somaliland youth born after 1991 have never had a chance to elect their parliamentary representatives.
Which way forward?
If Somaliland’s democratic transition is to last there must be strict regulation of the behaviour of political parties. Moreover, the structure, composition, competence and size of the National Election Commission must be re-evaluated and the best way to do this is to make its membership independent of political parties. The inclusion of political interests in an institution that is supposed to be a neutral adjudicator only destabilises and weakens the NEC with serious repercussions as the constant bickering brought on by political entities diminishes the trust that the electorate has in the organ. Elections are an emotive exercise in Somaliland especially since political compromise and consensus in Somaliland politics is almost absent. Further, the habitual postponing of the elections by the NEC, allowing elected officials to continue to hold seats beyond the end of their terms without the mandate of the electorate is a direct result of the inclusion of political stakeholders within the NEC.
May 31 is of historic significance for Somaliland as it marks the 30th anniversary of Somaliland’s independence and the 20th anniversary of Somaliland’s multiparty democracy.
The elders’ house is aged and incompetent; many of the key members have either died or are crippled. The Guurti is a powerful legal institution but it has not been re-elected since 1993; dead elders are replaced by their next-of-kin regardless of merit. The president must urgently form an ad-hoc commission to study the criteria required to elect the members of the upper house and laws to eradicate the postponement of elections and the extension of political mandates must be put in place.
And finally, mechanisms to engage citizens’ aspirations, to build trust and confidence in the democratisation process, seminars, lectures, debates and discussions may play a vital role, while the involvement of external experts/institutions will be necessary in providing training in democratisation, specifically for the upcoming parliament and the emerging political parties.
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