Kenyan post-independence administrations have perpetuated the colonial policy of looking at Northern Kenya through the security lens, and have economically marginalised the region and its people. The 2010 Katiba (constitution) was to be the cure for the decades of marginalisation that the region has suffered. But the national political elite and the local elite are fervently subverting the gains of the Katiba — the national elite via revenue allocation and mischievous delays in providing infrastructure for socio-economic change and development, and the local elite via pilfering and stoking the fires of inter-community hostilities.

Between 2001 and 2010, pastoralists and their representatives and partners participated in the Kenya constitutional review process with unparalleled zeal and tenacity. In their arduous engagement with the constitutional reform processes, pastoralists had reminded themselves that democracy was not a spectator sport but a participatory process. They were convinced that they were on the cusp of change.

While presenting their familiar positions on critical issues that needed inclusion in the new constitution, pastoralists were against an imperial presidency and supported a parliamentary system; they called for affirmative measures in favour of minorities and other marginalised groups; they overwhelmingly supported a devolved structure of government that would bring government services and resources closer to the people and increased participation in decision-making on development priorities by the communities themselves.  Above all, they campaigned for a more equitable sharing of national resources.

The 2010 constitution

The promulgation of the 2010 Constitution was a watershed moment for communities in northern Kenya. The constitution provided a solid, legal and institutional framework for recognising and protecting the rights of minorities and marginalised groups. Northern Kenya was essentially reborn. The constitution engendered nothing short of a revolution of rising expectations. The devolved governance in the 2010 constitution was the most pivotal gain of all.  The right to self-determination, within the context of Kenya’s sovereignty, protected most of their rights and symbolically promised the end to marginalisation.

But ten years on, the debate is whether devolution and its attendant policy, legal and institutional frameworks, resources, and other infrastructure for socio-economic change —largely meant to have been driven by the national government — has matched the expectations of the pastoralist communities. Are current efforts moving towards “releasing our future potential” — in the manner of the curiously provocative slogan attached to the title of the Sessional Paper on National Policy for the Sustainable Development of Northern Kenya and Other Arid Lands — or elsewhere? That is the question the people of northern Kenya are asking.

Joseph Kalapata, a human rights activist from Isiolo, notes, “We are contending with the reality that we were naive to have expected so much. We now know that northern Kenya was not Saul of Tarsus who fell off the donkey and instantaneously became Paul”.

“There is nothing neither creative nor transformational going on. Every new project is a function of normal progression. Everyone tries to be a tenderpreneur. The common person is worse off,” says Enock Talam, a business consultant based in Kapenguria in West Pokot County.

While pundits on either side of the debate continue trading blows, both the county and national governments are praised or blamed for the perceived good or bad fortunes of northern Kenya since 2010. Whichever the case, the foremost responsibility and general mandate of both levels of government is to provide for citizens’ well-being through the equitable and accountable provision of services (Objectives of Devolution, Art. 174). This should be pursued within the inter-dependency, consultation and collaboration between both levels of government, particularly in those sectors in which they share responsibilities (the so-called concurrent functions).

Despite the many policies meant to bring out a favourable socio-economic change in the region, northern Kenya’s longitudinal biography stubbornly yields the historical portrait of an impoverished and underdeveloped region that is lacking in infrastructure and essential services and where governance and the rule of law are at their lowest. The population has suffered decades of economic, political and social marginalisation; disenfranchisement of rights, droughts, conflicts and decreasing resilience characterise the region (Truth Justice and Reconciliation Commission Report).

What has devolution fulfilled?

When assessing the governance and development situation in the region, especially in Marsabit County, scholar Ibrahim Harun (2019) avers that the devolved system of government has radically transformed the previously forgotten Northern Frontier District (NFD), that it has brought government closer to the people and provided democratic and development gains. Additionally, it has forged the inclusion of previously marginalised communities into the political system and that local solutions have been found for local problems. Harun cites Marsabit County government’s expansion of functions, such as agriculture, health services, transport, cultural activities, education, and public works and services.

Northern Kenya’s longitudinal biography stubbornly yields the historical portrait of an impoverished and underdeveloped region.

Ibrahim Harun’s findings reflect the changes that have taken place in most of the counties in northern Kenya — that the devolved system of governance is beginning to make a major difference in a region that presents formidable challenges when it comes to service delivery based on years of marginalisation, distance, population density and division. For optimum service delivery and socio-economic change, these factors still must be dealt with.

Education opportunities

The Constitution of Kenya states that every child has a right to free and compulsory basic education (Article 53 (1) (b)). Delivery of education services in pastoralist countries has improved since devolution was introduced. In their research, Rare and Ombui observe that historically, non-responsive national plans for education, non-existent school infrastructure in remote areas, the vastness of arid lands, cattle rustling, and the severe shortage of teachers — with teachers from other regions unwilling to move to northern Kenya due to insecurity — are some of the factors that have impeded access education. With the devolution of pre-primary and primary education, however, northern Kenya counties have expanded opportunities in education. These include positive developments in early childhood education in Marsabit.

Rare and Ombui report that the health sector has improved greatly under the devolution. Many of the counties have built new health centres, increased medical insurance cover for county workers, upgraded facilities in their referral hospitals with, for instance, operational renal units, and increased allocation to the health sector to about 30 per cent of the gross county revenue (in the case of Marsabit). There has been an increase in the number of health personnel from 330 in 2015 to 623 in 2019 (2018 to 2022 CIPD report) and Kenya Medical Training Colleges have been opened in the region.

Water provision

To achieve equitable development in Kenya, water provision must be a priority. This is because water availability impacts heavily on development of agriculture, health, industry, livestock production, and the pattern of settlement in the region. Northern Kenya counties, the national government and the private sector recognise that the northern region suffers from lack of surface water supply. It lacks lakes, permanent rivers, and streams. Rainfall is at best erratic. For instance, in West Pokot County, distances to water points average five kilometres during seasons of low rainfall. To improve water availability, more irrigation projects are being developed in various counties of northern Kenya. These include Malkadaka, Kinna-Rapsu, Bute-Gurar, Garfasa and Merti. Water harvesting techniques such as roof water harvesting are being promoted.

Infrastructure 

For producers from northern Kenya, access to national, regional and international markets is hampered by the vastness of the region, low population density and poor infrastructure (Social Economic Blue Print). It is for this reason that it was quite a relief that the 505km stretch between Isiolo, Marsabit and Moyale was completed and launched. The road has reduced travel time between Moyale on Kenya/Ethiopia border to Nairobi from 60 hours to 8 hours.  The Nairobi-Thika-Mwingi-Garissa-Liboi (the border town with Somalia), Mombasa-Malindi-Garsen-Hola-Garissa-Modogashe-Wajir-Elwak-Mandera, and Isiolo-Modogashe-Wajir-Elwak-Mandera corridors are under construction while the Kapenguria-Lokichoggio road is being rehabilitated.

The Masol Integrated Project in West Pokot County is one example of the attempts being made to improve the life of the marginalised pastoralist communities. The multi-pronged project that targets the most marginalised ward includes a school administration block; construction of an eight-classroom block and hostel for the primary school; construction of an equipped modern health centre; drilling of a solar-powered borehole and construction of the Srumben-Koposes road.

Pan-pastoralist planning

Through the Northern Rift Economic Bloc (NOREB) and the Frontier Counties Development Council (FCDC), counties have developed strategies to improve resource mobilisation, trade, and investment in their region. In a fresh approach to realising positive socio-economic change in their region, FCDC members (Mandera, Marsabit, Garissa, Isiolo, Tana River, Samburu, Baringo, West Pokot and Turkana) launched a Social Economic Blueprint for the Frontier Counties Development Council 2018-2030.

The blueprint adopts a new way of analysing the social-economic situation of the north but also what needs to be done to effect change. Policy instruments proposed by the blueprint are based on a geographical model. This geographical model emphasizes the need to approach the policy and intervention opportunities and challenges through the realities of northern Kenya’s low population density, costly distances, and deep divisions. For goals to be achieved, the blueprint highlights a combination of policy instruments with targeted interventions such as institutions and connective infrastructure.

Challenges 

As Paul Goldsmith noted, the adoption of the 2010 constitution set the stage for a new phase of transformational reorganisation, allowing Kenyans greater scope in defining their future. But the critical thinking required to guide the transition has lagged far behind. County governments need to upscale their capacity to promote inclusive governance, accountability, and transparency. Social accountability continues to be treated with suspicion by both national and county officers and leaders. Kenyan citizens are frustrated from exercising their sovereignty by holding their leaders accountable on budget processes, public procurement, amongst others.  As for effective public participation in planning meetings — which is far from encouraged — feedback on the communities’ proposals is rarely given.

Cynics perceive northern Kenya as a political theatre that reflects the national political environment, where politics is based on ethnic/clan bloc voting. Political contestation is primarily over group claims to and control over key resources, including land, employment, and state revenues. Elected governors are often viewed locally as partisan – as representatives of their clans or tribes, whose principal obligation is to advance the interests of their communal group, and not those of the county population as a whole. They note that fault lines are widening, pitting new elites on one hand and the general population on the other hand. When the scheming of the elites coincides with ethnic, or clan blocs — often presented as coalitions — this threatens the eruption of armed conflict. Goldsmith warns that, “Elite-driven opportunism has suffocated intellectual debate and multicultural vibrancy that once characterised the flow of ideas in this part of the world.”

County governments need to upscale their capacity to promote inclusive governance, accountability, and transparency.

Patronage-based politics and corruption have created new winners and losers at the local level, which has widened existing social cleavages and, and at worst, created new fault lines of conflict. Influential clan members, such as political leaders, often manipulate clan identities and existing cleavages in their pursuit of power and control of resources. The 2014 violence in Mandera County was attributed to competition between the majority Garre and minority Degodia communities. The Degodia accused the Garre of planning to create a “political monopoly in the county”. The local leadership was accused by the County Commissioner of fuelling the Garre-Degodia feud.

In the Social Economic Blueprint, governors agree that socio-economic and developmental change is curtailed ‘’where social, religious and political barriers, such as political conflicts, lack of cohesion and in security, hinder communities from benefiting from socio-economic integration in the FCDC region”. These barriers include ethnic and inter-clan conflicts, conflicts over resources, livestock theft and banditry, radicalisation of youth by Al-Shabab and other insurgent groups, and negative social and cultural practices, such as early and forced marriage of the girl child, Female Genital Mutilation (FGM) and low commercialisation of livestock farming.

On the ground

While the national government has recognised through many of its policy, legal and strategic structures that northern Kenya and other arid lands have suffered historical injustices and marginalisation, and proceeded to endorse affirmative measures for redress, it has yet to fulfil its promises.

The fact that many of the promises made have not been acted upon leads to suspicion that the government is not keen on revitalising northern Kenya. For instance, for a long time many governors across the country had almost believed that the constitution and associated legislations were not sufficient to “prevent the recentralisation of power by the national government”.

Persistent delays in the disbursement of funds to the counties have often led to the national government being accused of frustrating the efforts of the county administrations and the people. As the former Council of Governors chairman Wycliffe Oparanya observed, delaying the disbursement of funds to pay for salaries, health, agricultural extension and development salaries, health, agricultural extension services, and development affects the provision of county services to the public.

The Commission on Revenue Allocation (CRA) classifies northern Kenya counties as “marginalised” areas which should therefore be beneficiaries of the Equalization Fund. The Equalization Fund was established under Article 204 of the Constitution and was aimed at bringing the delivery of services in the marginalised counties to the level enjoyed by the rest of the country by financing such services as roads, water, electricity, and health. Since 2013, marginalised counties have not received monies from the Equalization Fund through the national treasury. In March this year, Business Daily quoted the National Treasury Cabinet Secretary Ukur Yatani saying that a multi-agency committee had handed in the Draft Public Finance Management (Equalization Fund) Regulations to the Cabinet for approval. Once approved by the Cabinet, and certified by the Attorney General, the draft regulations were to be submitted to Parliament for adoption.

Patronage-based politics and corruption have created new winners and losers at the local level, which has widened existing social cleavages.

The Kenya Vision 2030, for instance, proposed the development of resort cities in the FCDC region which ten years later have not been started. The resort cities have yet to take off. Such failures to implement flagship projects do not bode well for the development aspirations of marginalised regions.

Pastoralist communities are still being ravaged by drought emergencies yet the national government which has the responsibility to coordinate and marshal resources towards a durable solution to this challenge has been unable to do so.

The narrative being bandied around that, “they got devolution and it’s all up to them’’, while partially valid — for northern Kenya people must chart the course of their own future — one must be aware of the mischief of reductionism. Northern Kenya’s governance and socio-economic performance is as much its citizens’ business as it is that of all other Kenyans. One cannot fail to grasp the enormity of the marginalisation that the region has gone through. Secondly, this attitude towards northern Kenya ignores how the enduring, complex and structural relations between the centre and the periphery impact performance. In any case, after attaining self-governance in 1963, like other developing countries, Kenya is still struggling with the realities of the embedded linkages between the centres of the West and the peripheries of the developing world, some arguably designed to outlast imperialism. 

The devolved system of governance is turning around the fortunes of northern Kenya counties, albeit at a slower pace than had been expected. While the national government should keep its promises for northern Kenya, county governments should preside over institutions that are inclusive, accountable, and transparent.

These counties should avoid situations that might lead to conflict and insecurity. “Unless we watch out, each day could turn out to be an anniversary of a funeral”, says Enock Ripko, a business and Peacekeeping consultant from Kapenguria in West Pokot.

In 2016, ActionAid and Tax Justice Network reported that Kenya loses an estimated KSh100 billion (Currently US$1 = KSh110) annually to tax incentives – reductions in corporate income tax, customs duties or VAT ostensibly provided to encourage investment – that often benefit foreign corporations. This amount represented 5.8 per cent of that year’s KSh1.7-trillion government budget.

That same year, former head of the Ethics and Anti-Corruption Commission (EACC) Philip Kinisu reported that Kenya loses about KSh600 million to corruption each year. At the time, this translated to about a third of the entire national budget. Earlier this year, the president said that over KSh2 billion is stolen every day from government coffers. Granted, this sparked quite the reaction on social media, but nobody really knows how much Kenya actually loses to graft. One of the main reasons for this is the opaqueness of public procurement.

For the government to provide services to the citizens of Kenya, it is at times necessary to contract with private entities to deliver goods or services. Indeed, the Public Procurement and Asset Disposal Act (Procurement Act) of 2015 provides a framework for efficient procurement by public entities. Under this framework, it is crucial that such procurement is conducted or implemented in a transparent manner. This is especially crucial when dealing with foreign-registered companies. Some may remember the story of CMC Ravenna, the Italian company that filed for bankruptcy in its own country shortly after it had received a KSh15 billion down payment by the Kenyan government for the construction of Arror, Kimwarer and Itare dams. The total value of the three contracts was KSh150 billion.

In 2013, Washington, DC-based think tank Global Financial Integrity (GFI) estimated that the Kenyan government lost potential revenues of KSh97 billion for the year to trade misinvoicing of which KSh21 billion was attributed to uncollected corporate income tax. Meanwhile, Kenya’s budget has been steadily increasing from KSh2.2 trillion for the 2015/16 financial year to KSh3 trillion for the 2019/20 financial year. And of course, most of the tax burden falls on ordinary Kenyans and is supplemented by heavy borrowing, which citizens eventually have to pay for.

So, how is it that multinational corporations are able to siphon so much money out of the country? And why is it that our government keeps dealing with them? To answer this question, I looked into one well-known multinational company with a strong base of operations here in Kenya: G4S.

Public procurement transparency and the case of G4S

Why G4S, you ask? G4S, recently acquired by Allied Universal for £3.8 billion (Currently £1 = KSh150), is a giant global multinational corporation. The world’s largest security firm, it is active in over 90 countries across six continents. In 2019 it reported annual revenues of £7.8 billion, equivalent to 40 per cent of Kenya’s budget and about 60 per cent of the government’s projected tax revenues for the same year. This figure is expected to shoot up to £13.5 billion following the acquisition. In Africa, where it is the largest private employer, the firm reported revenues of £405 million in 2018, which is roughly equal to the Kenyan government’s entire allocation to the health sector that year. Their most lucrative operations on the continent were in South Africa and Kenya.

Half the company’s global subsidiaries are registered in tax havens — a red flag for tax avoidance — and its Kenyan subsidiary is almost wholly owned by a Dutch holding company. Despite this, G4S has been awarded several contracts by public entities in Kenya such as Kenya Power, the Ministry of Energy, and the Independent Electoral and Boundaries Commission (IEBC). All this, combined with the presence of two prominent politicians on G4S Kenya’s Board of Directors, makes it the perfect case study of why we need more transparency in public procurement.

Poor track record

The company has a poor track record in several of the countries in which it operates. In the United Kingdom where it has its headquarters, G4S was in 2011 contracted to run Birmingham Prison for a period of 15 years. However, halfway into the contract period, in 2018, the British government had to take back control of the prison following a rise in violence, substance abuse, and three self-inflicted deaths within an 18-month period. The company also came under fire in 2011 after a Kenyan asylum seeker died while in their custody, just a year after an Angolan deportee died after being held down by three G4S guards on a plane, with fellow passengers hearing him cry out: “I can’t breathe”.

In Jordan, all six United Nations agencies reportedly cancelled their contracts with the firm after human rights activists highlighted the firm’s complicity in “Israel’s grave violations of Palestinian rights and international law through its partnership with Israel’s police.” A 2019 assessment of G4S’s operations in Qatar and the United Arab Emirates led to Norway’s US$1.1 trillion wealth fund, the largest in the world, excluding the company from its investments because of “unacceptable risk that the company contributes to, or is responsible, for serious or systematic human rights violations”.

The company also came under fire in 2011 after a Kenyan asylum seeker died while in its custody.

In Africa, the company has been implicated in the use of violence, including electrocution and beatings, to subdue prisoners in South Africa’s Mangaung prison. Here in Kenya, G4S has been in the news for all the wrong reasons. Some readers may remember the string of robberies back in 2011 that earned them the moniker “Gone in 40 Seconds”. In 2019, part of the KSh72 million cash in transit stolen from G4S by police impersonators was found buried in one of the perpetrators’ father-in-law’s backyard. A former employee was awarded KSh35 million in damages after being fired for rejecting the sexual advances of her superior. The company’s workers have repeatedly gone on strike due to low pay and inhumane working conditions. G4S security personnel beat up and caused grievous harm to refugees picketing outside UNHCR offices in Nairobi, and there have been accusations of G4S security personnel demanding bribes from refugees in Daadab seeking entry into the main UNHCR compound.

Government contracts

Yet despite all the negative publicity, the Kenyan government keeps entrusting G4S with taxpayer money through contracts that are not published in accordance with public procurement and access to information laws. In many jurisdictions, the principles of public accountability demand transparency in government spending, with very few exceptions, for example, on matters of national security.

Private companies in Kenya are legally entitled to a measure of confidentiality and the Access to Information Act does not expressly impose proactive disclosure obligations on private bodies. However, according to the Commission for Administrative Justice (the Ombudsman), “the requirements [of the Act] can be extended to private bodies that receive public resources and benefits, provide public services or [are] in possession of important public information”.

No, the Act does not expressly impose proactive disclosure obligations on private bodies. However, the requirements can be extended to private bodies that receive public resources and benefits, provides public services or is in possession of important public information #Julisha

— Ombudsman Kenya (@KenyasOmbudsman) February 22, 2019

In any case, both Kenya’s Access to Information Act and a 2018 Executive Order from the President require all government agencies to “maintain and continuously update and publicise . . . complete information of all tenders awarded”.

Source: Executive Order No. 2 of 2018 – Procurement of public goods, works and services by public entities

At the very least, one would expect government entities to publish their tender adverts and awards on the public procurement information portal (PPIP), which was created for exactly that purpose. However, when I went to search for contracts awarded to G4S, I only found two published contracts – one of very low value and one that did not even indicate the contract amount.

Source: https://tenders.go.ke/website/Suppliers/SupplierDetails/7173

If the news articles and press releases on their website are anything to go by, G4S does a substantial amount of business with the government of Kenya, so a search on the PPIP should have yielded more results. This definitely heightened my curiosity even more, so I went a step further and conducted a good ‘ole google search: “Government contracts awarded to G4S” – I used different variations of the same search phrase, and while I found more results, none of them appeared on the PPIP.

For example, Kenya Power, the state corporation in charge of distributing electricity, has been consistently publishing each month’s tender awards on their website since March 2018. They published two awards to G4S in December 2019 and March 2020 worth KSh2,693,520 and KSh117,302,726 respectively. This is one example of a public entity that meets the legal threshold of publication under section 138 of the Procurement Act and section 131 of its attendant Regulations of 2020. However, it is unclear whether failure to publish on the portal would attract any penalty. The Ombudsman, which has been mandated with enforcing the Access to Information Act, did not respond to my query on this issue.

Additionally, G4S reported on its website that the Ministry of Energy awarded them the contract to secure the Lake Turkana Wind Farm Project (LTWFP), Africa’s largest wind power project. The details and value of the contract are undisclosed and unpublished. There are also several internet search results indicating various direct contract awards to G4S Kenya between 2015 and 2019, but the links are broken. None of these contracts has been published on either the Procurement Portal or the Ministry’s website, which is the minimum requirement for publication.

The two internet search results below also indicate that the Ministry of Energy may have awarded at least two contracts to G4S Kenya in 2017 and 2018. As with the above however, the links are inaccessible. They are also not on the PPIP or the Ministry’s website.

When I sent an email to the Ministry of Energy requesting copies of documents containing information on the total number of contracts awarded by the Ministry of Energy to G4S Kenya Ltd or any of its affiliates between 2014 and 2019, the Ministry’s response was, “Please note that we do not have such documents.” A follow-up request was ignored.

G4S also reported being awarded a 2-year contract worth KSh81 million to store, secure and deliver laptops to 8,600 primary schools under the digital literacy programme through which the president had promised to issue each standard one pupil with a laptop. Again, this tender award was not published by the public entities involved. However, I dug further and found that the Jomo Kenyatta University of Agriculture and Technology (JKUAT) had published an article on their website indicating that they would be partnering with G4S and four other institutions to implement this project.

G4S’s role in this consortium was to distribute the devices to the schools. I wanted to understand how JKUAT, a public institution, arrived at the decision to contract G4S for this public project, and so I sent an information request to the corporate email indicated on their website. To their credit, I received an instant response from one Dr Ngonyo, directing me to the “directorate concerned who will be in a position to respond” to my enquiry. The email that I was given was not functional, and so I wrote him again, requesting an alternative email. Again, he replied instantly. This time, the email he shared did go through, but I have not received a response to date, not even an acknowledgement of receipt.

The digital literacy project ultimately fell short of expectations, with problems such as fewer devices being delivered than had been promised, lack of complementary infrastructure such as electricity, and inadequate ICT training of teachers. In the wake of COVID-19, the entire 2020 school year was cancelled, and public school pupils lacked the resources, or devices, to proceed with e-learning.

I also had the advantage of accessing a data leak from the Integrated Financial Management System (IFMIS), a financial management system that was rolled out by the government to enhance transparency and accountability in public procurement. The data showed that the Independent Electoral and Boundaries Commission (IEBC) made payments of KSh5,548,930 to G4S between 2014 and 2017. These contracts have neither been published on the procurement portal nor in the IEBC’s reports. For instance, the IEBC’s annual report for the 2014/15 financial year included, on page 67, a list of all contracts fully executed between June 2014 and June 2015. There is no mention of contracts for the provision of security services, yet the IFMIS data shows that a total of KSh3,260,280 was paid to G4S between 28th October 2014 and 31st March 2015.

So what’s their secret?

As part of my research, I interviewed the operations manager of another established private security company operating in Kenya. Wishing to remain anonymous to protect the company’s business, my contact said that it is difficult to get government contracts, which are mostly awarded based on political connections. The manager indicated that many private security companies in Kenya are owned by ex-police officers and MPs, which gives them an advantage when bidding for government contracts.

I was unable to verify this information given that beneficial ownership disclosure was not legally required at the time of this investigation. This has recently changed, and companies had until 31st January 2021 to update their beneficial ownership information with the Registrar of Companies. However, by the time of this publication, it is not yet possible for citizens to submit beneficial ownership requests through the eCitizen platform. Companies have now been granted a grace period up to 31st July 2021 before the Registrar starts enforcing for non-compliance.

However, through the PPIP and the official companies search available on the eCitizen platform, I was able to determine that at least two politicians sit on G4S Kenya Limited’s board.

The first is Moody Awori, a 92-year old veteran politician who once served as Vice President under President Kibaki. He also served as MP for Funyala Constituency and as Minister of Home Affairs. He is credited with introducing prison reforms that improved conditions for inmates, but he was also implicated in the Anglo Leasing corruption scandal. According to his autobiography, Riding on a Tiger, Awori was appointed to the board of G4S, then Securicor Services, soon after it was registered in Kenya in 1963. In June 2021 he was still listed by the PPIP as one of the company’s directors.

1. Accessed from https://tenders.go.ke/SupplierDisplay on 24.06.2021

According to former Permanent Secretary for Governance and Ethics John Githongo’s Anglo-Leasing report, the department of immigration was directly under Awori’s purview. He authorised a contract for printing of passports that was allegedly inflated to three times the cost. Even after a due diligence check by Mr Githongo and then Minister of Energy Hon. Kiraitu Murungi revealed that the contracted company did not exist, he authorised payments anyway. Awori still insisted he did no wrong and refused to resign from his position. At the time of this publication, the contents of the Anglo-Leasing report are the subject of a court dispute.

2. Excerpt from the Anglo Leasing Report

The second G4S Kenya director is John Matere Keriri, who was an active politician from the late 80s up until 2007. He was voted in as MP for Kirinyaga Central Constituency, formerly known as Kerugoya/Kutus Constituency in 1997, and was appointed as State House Comptroller by President Kibaki in 2002. Just before his dismissal from State House in 2004, he was approached by Dutch businessman Carlo van Wagenigen to assist with getting government approval for feasibility studies and government guarantees against financial risk for a business idea that would later become the Lake Turkana Wind Farm Project (LTWFP). According to Wagenigen’s account, his “good friend” Keriri set up a meeting with then Permanent Secretary for Energy Patrick Nyoike, who gave the green light for the project.

There is no mention of contracts for the provision of security services, yet the IFMIS data shows that a total of KSh3,260,280 was paid to G4S.

Upon his dismissal from State House in 2004, Keriri was appointed the Executive Chair of the Electricity Regulatory Board (ERB), which was succeeded by the Energy Regulatory Commission, and subsequently by the current Energy and Petroleum Regulatory Authority. The ERB was established to regulate the generation, transmission, and distribution of electric power in Kenya. This included setting, reviewing, and adjusting tariffs, as well as approving electric power purchase contracts between and among electric power producers and public electricity suppliers.

Incidentally, the power purchase agreement between LTWFP and the Kenyan government included a take-or-pay clause that saw taxpayers foot the bill for a KSh1 billion fine when the government delayed in building a transmission line to connect the wind farm to the national grid. The World Bank had earlier expressed concern over this clause that would burden consumers, and withdrew its support in 2012. According to Biashara Energy Solutions Ltd, a renewable energy SME where Keriri was a director, he was “one of the Chief Financial Advisors for Turkana Wind Power project who is attributed for structuring new financing model after the announcement of the World Bank to pull out of the project financing.”

Two years later, after almost a decade of feasibility studies and investment negotiations, project construction started and G4S announced that they had been awarded a contract by the Ministry of Energy to secure the wind farm on a three-year rolling basis for a period of 15 years. Available records show that Matere Keriri joined the board of G4S Kenya Ltd a year later, sitting from 2015 to 2017, though a search at the Company Registry conducted in May 2020 indicated that Keriri was still on the board. G4S has won tenders from the Ministry of Energy, under which the ERC falls, during Keriri’s tenure on its board. The details of these contracts, including the monetary value, are only visible as internet search results whose links are broken. They have not been published on the PPIP or the Ministry’s website as per the public procurement transparency requirements.

This should matter. The lack of information on contracts awarded to G4S and their monetary value obscures a high risk of conflicts of interest or, worse, may indicate that collusion, cronyism, kickbacks, or some other form of corruption was instrumental in G4S’s financial success. The Public Procurement and Asset Disposal Act tries to prevent this by prohibiting public officers from taking part in any procurement process in which they have an interest, and also expressly forbids inappropriate influence in procurement decisions.

Under section 176 of the Act, any person found guilty of violating this law faces up to 10 years of imprisonment or a fine of up to KSh4 million, or both. Should the offending party be a body corporate, then a fine of KSh10 million will apply. The Act also requires procuring entities to publish tender notices and awards. This means that any public entity that has failed to publish contracts awarded to G4S and other public entities is in breach of the law. However, the Act is unclear on whether this is a punishable offence.

Source: Public Procurement and Asset Disposal Act, No. 33 of 2015

Given the lack of publicly available information, Kenyan citizens have no way of checking whether they are getting the best value for their money with regard to these contracts.

G4S’s questionable corporate structure

According to records filed with the Company Registrar, G4S Kenya Ltd is 82 per cent owned by a Dutch holding company. In the world of financial crime and illicit financial flows, “Dutch holding company” is a red flag for tax avoidance. The snapshot below shows that the G4S structure comprises of a series of subsidiaries and holding companies ultimately owned by G4S plc based in the United Kingdom.

Source: G4S Company Scan by The Centre for Research on Multinational Corporations (SOMO)

This should concern Kenyan taxpayers. This company structure raises questions of tax planning and tax avoidance, especially since Oxfam ranked the Netherlands third out of fifteen countries that “facilitate the most extreme forms of corporate tax avoidance”. The European Parliament has also labelled it a tax haven. Corporate tax havens have been known to help big business cheat countries out of billions of dollars every year and in fact, a 2016 study by Oxfam Kenya shows how companies in the extractives industry use conduit companies in the Netherlands for tax avoidance.

If public procurement continues to be shrouded in secrecy, then citizens will have no way of finding out whether G4S and other multinationals are indeed cheating the Kenya Revenue Authority (KRA) out of much-needed taxes, or whether they are relying on political patronage to win government contracts paid for by taxpayer money.

The need to strengthen the access to information regime in Kenya

When I reached out to G4S to clarify some of the points raised in this article, they told me that I had no written authority to write about G4S, and should I attempt to publish anything without their written authority, it would “cost me”. When private companies have dealings with the government, when they have prominent politicians sitting on their board of directors, and when they play critical public roles such as the provision of security, then citizens and especially journalists should have the right to look into their affairs, and the veil of secrecy ought to be lifted.

There is a need to demand increased accountability for companies that conduct business with government agencies. Without full disclosure, there is a potential risk that Kenya may be losing much needed tax revenues that would greatly ease the tax burden on ordinary Kenyans.

In the world of financial crime and illicit financial flows, “Dutch holding company” is a red flag for tax avoidance.

I also contacted the Commission on Administrative Justice, otherwise known as the Ombudsman, the agency in charge of enforcing the Access to Information Act of 2016. After my requests for information to JKUAT and the Ministry of Energy were denied, I asked the Ombudsman whether they could offer any redress mechanisms to citizens who are denied their right to information, or if government agencies faced any penalty for failure to disclose information. Ironically, I was informed that I had to write a formal letter on the letterhead of the organisation that I represented, which would then go through their internal processes before eventually landing on the relevant officer’s desk. As of the writing of this article, my request is still pending. Nonetheless, the Ombudsman indicated through their official twitter account that requests for information are valid as long as they provide sufficient details of the information sought. Furthermore, such requests do not have to be in writing.

Yes, requests should provide sufficient details of the information sought. This includes the particulars of the applicant, name of the institution from which the information is being sought, details of the information sought, and nature of intended access #Julisha

— Ombudsman Kenya (@KenyasOmbudsman) February 22, 2019

The request does not have to be in writing, it can be made orally. In such cases, the Information Access Officer should reduce it to a written form and give a copy to the person making the request #Julisha

— Ombudsman Kenya (@KenyasOmbudsman) February 22, 2019

Unless the government starts respecting the constitutional right of access to information, we shall continue to lose billions that could have gone towards the public good, such as for example, providing social services in education, healthcare, or social welfare cushions for small business owners that have been hit hard by the COVID-19 control measures.

The rapprochement of March 2018 between Uhuru Kenyatta and Raila Odinga, now famously referred to as “the handshake”, which kick-started the BBI consultation process and culminated in the Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, is emblematic of the rough-and-tumble that is the country’s tumultuous political history.

The report of the taskforce provided long-awaited principles and recommendations for the construction of “a new Kenyan nation,” including several changes in the current constitution. But a portion of Kenyatta’s Mashujaa Day speech on 20 October 2020 suggests a need for caution. It was rather ahistorical, and unfortunately, oblivious of numerous imposed top-down attempts at constitution-making and other general attempts to foist government declarations or policy documents on ordinary people.

Hoping to, perhaps, prepare the ground for elite-led changes to the 2010 constitution, the president’s speechwriters sought to arrive at this end by using a portion of the speech to remind citizens that constitutions are not static but often change. This process, the writers asserted, should be a product of “constant negotiation and renegotiation of nationhood”, and building a constitutional consensus. The italicized end of the president’s paraphrased speech is instructive, and erroneous in the light of the country’s constitutional history.

Moreover, referring to the Steering Committee’s report, the speech sought to prepare the ground for constitutional and other changes by calling for the building of “a sense of national ethos” that will emphasize belonging and inclusion. This, as the committee rightly observed, must include “documenting our history honestly”. But not so the president as per his speech, notably.

Most historians and citizens would agree that a key element in such an honest history must be factual accuracy regarding past events and interpretations solely based upon such facts. It is this latter point that the speechwriters disregarded in putting forth an account of constitution-making. While correctly emphasizing the need for a constantly moving exercise requiring, again, note, a consensus among political leaders and wananchi, the examples from which they drew during the colonial era demonstrate no such thing. Neither the Lyttleton Constitution of 1954 nor the Lennox-Boyd Constitution (announced in 1957 and implemented in 1958) were the product of a consensus.

First, both constitutions were imposed by the secretaries of state for the colonies after whom they are named, and the terms were dictated by the then governor Sir Evelyn Baring and his advisors—does this ring a bell yet? Elitist. Moreover, the Kenyan population, and particularly Africans, had no input whatsoever in the Lyttleton Constitution, which was imposed even though all six of the Africans appointed to the Legislative Council (LegCo) refused to accept the Lyttleton plan. That plan was not about inclusion at all, but its main purpose was to create a multiracial council of ministers in which, in the early stages of planning, no African would hold a portfolio. Lyttleton eventually agreed for one ministry to be headed by an African, but it ought to be recalled that the constitution provided for three European settler ministers to join the two settlers already holding the important portfolios of finance and agriculture.

Neither the Lyttleton Constitution nor the Lennox-Boyd Constitution were the product of a consensus.

The key group for Lyttleton and the governor in Kenya’s racial politics of the time was thus the European settler politicians. The acceptance of the plan by most of them constituted Lyttleton’s success and left the African population, among whom none could vote for representatives to the Legislative Council, totally excluded. While there was little inclusion, African LegCo members did gain a promise from Lyttleton that the colonial government would take steps to provide for African representation. The promise, imposed without the agreement of settler representatives, led to the first African elections of March 1957. The eight African Elected Members (AEM) immediately launched a campaign for change that would produce a more inclusive constitutional order (European voters elected 14 LegCo members and Asian voters 6).

Amazingly, Kenyatta’s speechwriters cast this as consensual by the statement that if the Lyttleton Constitution “was wrong, it was made right” by the Lennox-Boyd Constitution. This interpretation has no basis in fact as all the European settler members of LegCo opposed the AEM campaign, which included a refusal to accept the two ministerial positions reserved for Africans in 1957. Significantly, most Asian political leaders came to support the AEM demands. Just as in 1954, then Secretary of State Alan Lennox-Boyd, in response to the AEM campaign, flew to Nairobi in late 1957 to implement constitutional changes suggested by Baring. He was prepared to increase the number of AEM in the LegCo and determined to make them accept ministerial portfolios and introduce what came to be known as specially elected members to the LegCo. AEM rejected these proposals, including the six additional LegCo seats for Africans and the creation of a council of state.

Convinced he knew best, and that the only views that mattered were those of the European settler population, an infuriated Lennox-Boyd went ahead anyway, giving up his attempt to build consensus and ignoring the opinions of most of the Kenyan population. The result was continued political exclusion, and a period of on-going political tension and racial hostility. The AEM boycott of the Lennox-Boyd innovations (except the six additional LegCo positions) by April 1959 forced the British government to accept that the Lennox-Boyd plan had become unworkable. The solidarity of the AEMs won the battle.

But it was a glaring distortion of history to single out Oginga Odinga, Daniel Toroitich arap Moi, and Masinde Muliro as heroes in the president’s speech while at the same time seeming to say that as AEMs they consented to the changes desired by Lennox-Boyd and Baring. Nothing could be further from historical fact as the archival records of the discussions leading to the Lennox-Boyd Constitution clearly illustrate. Asian political opinion supported the need for constitutional change, but several of the European elected members of LegCo did not favour discussing constitutional changes. The years 1959 and 1960 brought an end to consensus among the settler political elite.

The first Lancaster House constitutional conference (LH1) thus brought together Kenyan LegCo members who viewed constitutional change very differently with few apparent grounds for agreement. While the settlers were divided, the 14 AEM delegates were united in a firm stand in favour of a rapid democratic transition for Kenya leading to self-government and independence within a short period of time. European delegates were, by contrast deeply divided, with the right-wing United Party favouring continued colonial rule and the New Kenya Party (NKP) delegates favouring a gradual transition to independence, and a multiracial executive and parliament with reserved seats for Europeans and fewer for Asians. The new Secretary of State Iain Macleod, like his predecessors, was unable to find or facilitate consensual agreement on a new constitution. Contrary to the claims of the speechwriters, therefore, there was no common ground negotiated among the delegates.

Macleod moved beyond this stalemate by putting a set of proposals before the by-now weary delegates that they were required to accept in full or reject. This was a quite different approach than in 1954 and 1957. Macleod then cleverly manoeuvred the African, Asian, and NKP delegates into acceptance of his terms that went some way toward meeting the demands of African delegates, but not others, for instance, universal suffrage, the appointment of a chief minister, and the release of Jomo Kenyatta. In a real sense, for that reason, the LH1 constitution was an imposed one, and indeed many living in Kenya at the time rejected it.

The 14 AEM delegates were united in a firm stand in favour of a rapid democratic transition for Kenya leading to self-government and independence within a short period of time.

Nonetheless, the AEM accepted it as ending European settler political predominance in Kenya and the new plan as a step on the way to independence. Over subsequent months, however, the consensus that had united the AEM disappeared as bitter divisions developed regarding the type of constitution Kenya should adopt as an independent nation. The competing visions of the two political parties, KANU (a unitary republic) and KADU (majimbo or a federal republic), were difficult to reconcile. This formed the background for the second Lancaster House conference in 1962. The absence of agreement on the basic constitutional structure was clear from the first meeting, and again, a British colonial secretary was forced to impose a settlement that did not take the form of a constitution but of a framework on which a coalition government in Kenya would work out the final document. This took a year and required the British government to draft the self-government constitution and decide key provisions because the KANU and KADU ministers could, well, not agree.

This brief narrative serves to make it clear that there was no consensus here anymore than with the three previous constitutional talks. It is thus, rather puzzling, if not amusing in an odd way that, in a desire to promote negotiated and consensual constitutional innovation under the auspices of the BBI in the year 2020, and by the president no less, these should be the examples put before the Kenyan public in justification. Rather, an accurate account and analysis of earlier or past constitutional innovations demonstrate very clearly the need for wide consultations among the populace (unlike the episodes described above where only a narrowly defined political elite participated) and a broad-based consensus. In other words, the same message can be got across to the public by relating the correct facts. As the speechwriters noted: “The more we ponder our history in its truest form, the more liberated we become.” It is always best to heed the lessons of history, not to ignore it altogether, and repeat the same grievous mistakes.