While displaced families in refugee camps were exposed to TB, pneumonia and a range of other respiratory diseases – which could be COVID but no one knew because there were no tests available –, the pandemic meant good times for quite a different group of people in northern Mozambique. From dollar budgets made available by international development partners to the exploited and conflict-ridden province of Cabo Delgado, the province’s ruling party leaders helped themselves to stays in beach hotels, lavish catering, supermarket goods and ‘COVID awareness’ dance music. A list of provincial expenses, obtained by the ZAM Kleptocracy Project, shows that donor-funded COVID 19 money went straight to such ‘official events’ for the province’s elite, while practically none of it was used to buy tests or treatment for the sick.
A good share of it likely went into local leaders’ pockets, too, for instance when the Hotel Sarima in Cabo Delgado’s capital, Pemba, was issued a budget of US$ 172,000 for three ‘COVID workshops’ formally costed at five hundred dollars each, but pocketed ‘only’ US$ 20,000 from the provincial authorities. ‘The rest is still with the province’, in the words of the hotel manager, Anifa Gonzaque. What ‘with the province’ meant was a question that could only be answered by provincial health director Anastacia Lidimba, who had signed the Hotel Sarima contract, but, even after the question was put to her four times via different channels, including personal Whatsapp and the provincial press spokesperson, Anastacia Lidimba refused to answer it.
Diamonds and supercars
There were more such instances in Cabo Delgado. And in the rest of Mozambique. And in Mali, where a former minister in charge of COVID funds suddenly said the fund had disappeared and just as suddenly appeared to have loads of cash for a new election campaign, while refusing to comment on any link between the two. At the time of writing, US$ 800 million in total COVID expenditure in South Africa is under investigation for possibly corrupt use; an amount close to a quarter of US$ 4,3 billion granted to that country by the IMF in emergency COVID relief.
With regard to other public expenditure, separately from COVID funds, similar theft and wastage of taxpayers money and aid dollars plague Nigeria, Zambia, Zimbabwe, Uganda, and Liberia. The ZAM Kleptocracy Project, a soon to be published new series of investigations by investigative journalists in nine African countries, exposes how political elites line their own pockets by selling out their countries. To do this, the kleptocrat rulers use the state systems that were once established by colonial regimes in their countries, literally carrying on the same resource extracting and plunder practices of their colonialist predecessors. Investigations from Uganda and Nigeria show that top politicians and bureaucrats even steal from own citizens in schemes that siphon off money: from civil servants’ salaries to payments for public services such as marriage certificates.
Other self-enrichment by kleptocrat elites ranges from the pocketing of COVID and other development grants to foreign loans and from diamond proceeds and social welfare budgets to inflated visa and passport costs billed to citizens.
In Zambia, journalists Charles Mafa and John Mukela found that politicians, top bureaucrats and ruling party officials benefit from expensive foreign loans for agricultural projects, while the repayment and interest on the loans is carried by poor farmers. In Nigeria, investigative editor Theophilus Abbah uncovered how visa and passport contracts with international tech companies create wealth for those on top of the deals, while the country loses out. His colleague Taiwo Adebulu unearthed a network in the same Ministry of Interior that extorts citizens who need marriage papers. In Uganda, in an investigation done by John Masaba, teachers often don’t even receive payslips for their salaries, which means that, when these salaries are stolen by bureaucrats higher up, they have no paper trail to track their money. Liberian citizens, likewise, watch politicians flaunt their mansions and supercars on social media, while, as Bettie Johnson Mbayo notes, the local anti corruption commission states that they simply have no way to track the origins of these assets.
Engineered to plunder
The series, which will be published by ZAM over an eight-week period and kicks off with a ‘follow-the-money’ exercise that focuses on COVID aid funds in Mozambique, Mali and South Africa, underlines that not merely individuals, but entire systems, are corrupt. In the case of the COVID investigation, this can even include, as David Dembélé in Mali shows, an entire circus of banners, posters and workshops, organised by the kleptocrat state to make donors think that the country is taking the COVID 19 threat seriously.
All the while, the bulk of aid and tax moneys made available to the kleptocratic states simply fattens and empowers those in charge. In the three countries of focus for the COVID 19 emergency funds investigation, only a fraction was spent on actual medicines, treatment facilities and health workers’ needs while in Mozambique, several millions of the aid money went to arms purchases. In Mali, likewise, the bolstered regime heightened its surveillance of health workers to prevent critical voices exposing ‘the deaths in tents in the sand.’ Meanwhile, the former deputy boss of the Nigerian Immigration Service, Daniel Makolo, lost both his job and his house after writing a memo about the siphoning off of state funds by a partnership of foreign companies and top bureaucrats.
The investigations raise questions about ‘anti corruption’ measures that have been taken in African countries in the past. It appears as if countless ‘good governance’ commissions and speeches, like in Liberia, stay mainly where they originate, that is, on paper. In Uganda, even ministers seem reluctant to take action to clean up their offices. ‘There are these corrupt people in my department,’ in the words of the Ugandan minister of Public Service. ‘But we try to train and reorientate them’. In the same country, as in Nigeria, online fixes – a digital payroll, a digital public service appointment service- have turned out to be just as cosmetic as long as the corrupt stay in charge of the computers.
In Mali, no ministry even answers the phone while the Mozambican Finance Ministry spokesperson, Alfredo Mutombene, states in response to Estacio Valoi’s questions that he ‘will only be able to find misuse of funds after all the state’s auditing mechanisms will have been deployed.’ In all countries of focus such auditing reports are issued year after year, mostly without anything changing or any culprits held accountable.
The ZAM ‘anatomy of kleptocracy’ project begins to lift a veil of the mechanisms and processes in African state machineries that enable and reproduce continuous corruption. It portrays plunder systems so entrenched that nothing changes, even when individual ‘rotten apples’ are arrested. In Zambia, the judicial system has seen two ministers who amassed ill-gotten wealth for all to see, in court for corruption recently. Both were left off the hook; and one is still even a minister. In Nigeria, neither a parliamentary investigation nor a series of court cases could reverse a situation where taxpayers money was funnelled off to international companies in which top bureaucrats had a stake; this is still happening today. Though the fraudulent bureaucrats in question were criticised and their prosecution was called for by parliament, nothing happened; even the parasitical ‘uncancellable’ contracts, whereby money from citizens for passports lands in private pockets, still stay in place today.
STREAMER Citizens are targeted with anger and victimisation
All the above is paired with callous exploitation and deprivation of own citizens, as well as with equally systemic oppression of these citizens’ complaints and protests. In Uganda, according to a parliamentary commission report unearthed by John Masaba, corrupt bureaucrats are so powerful that they are able to doubly victimise teachers who complain about salary theft. In Nigeria, engaged couples who try to book their marriages by using the proper online appointment procedure, are met with anger and repercussions, with bureaucrats withholding their certificates until they do pay the bribes and go away.
While good civil servants who genuinely try to do their jobs are often silenced and victimised, like in the Nigerian case of Daniel Makolo, those lacking ethics have solid careers. This is shown most starkly in the same Nigerian case, where a private tech company in the passport fees fraud took the country to court to force it to pay even more taxpayers money into the scheme. During that court case, bureaucrats with a stake in the corruption testified against their own country, enabling the ‘damages’ claim, with no repercussions befalling them afterwards.
Dissecting and analysing the corrupt and exploitative state mechanisms encountered by the journalists, the investigations unearth several categories of what they call ‘poisonous partnerships’ between kleptocrat regimes and their global ‘associates’. First among these are the appropriation and sell-out of natural resources, – which is after all an activity for which these state systems were set up by colonisers in the first place-, now under the control of ruling parties or military. Secondly, there is the literal selling out of countries into indebtedness, with the bill to be paid by citizens: in Zambia, ruling politicians now take loan after loan to -inter alia- fund overpriced and top heavy agricultural projects, with the proviso that these loans must be paid back by poor farmers, while the project bosses who asked for the deals are seen building mansions for themselves.
The klepto states also invariably also invite criminal syndicates to enter through the large loopholes on all levels in the system, in a dance of collusion with the officials ‘inside.’ The journalists cite examples that range from Zimbabwe’s diamonds to the COVID support grants in South Africa, reported on by Nazlee Arbee.
The poisonous partners, – ranging from financial donors to tech companies and from outright criminals to diamond-, wood- and other natural resources buyers,- support the regimes in question, but don’t contribute to actual development of a state that can deliver services like health care to its citizens. Charity -real or perceived-, the enrichment of a political elite, plunder of resources, exploitation of citizens and continued underdevelopment are factors in all the investigations. The most poignant example of this is perhaps the Nigerian passports and visa scheme, where both the state budget and citizens pay double fees into a constitutionally illegal ‘public-private’ partnership, while in the end, the job of protecting the borders is not even done. In Nigeria, armed militias and bandits still leave and enter the territory as they please.
Aid and underdevelopment
Questions raised by the Kleptocracy Project range from the possible failure of previous anti corruption fixes to the reasons why measures like management controls – firing directors who don’t supervise the work of subordinates, for example- , or abdicating as a minister, seem to be out of the question, while financial scrutiny is limited to reporting after the fact. How do these states function and how, if at all, can they be transformed to a real public service? What is the actual role of international partners vis a vis the postcolonial regimes in Africa? Are money streams to those states, in either loans or charity, still to be pursued? Does aid help development or does it entrench the status quo, as Kenyan activist Nanjala Nyabola said recently when she tweeted that vaccine donations to ‘Africa’ presented an ‘active study in how aid causes underdevelopment’ and that donations make it difficult to ‘pressure our governments to prioritise health’?
Nyabola’s observation is supported by the project’s findings in Mozambique, where politicians were quite happy to party with aid money because, as a state spokesperson put it, ‘our partners take care of our health needs anyway’ and in South Africa, where president Ramaphosa protested against ‘vaccine hoarding’ by the west, while budgets that could have bought vaccines last year had disappeared. In coming months ZAM will be following up on these observations and questions. What do the Kenyans who recently protested against extra IMF loans to their ‘pocket filling’ leaders, have to say on the subject? How can solidarity with Ugandan activists, who are arrested with police vehicles funded with Dutch development aid money, take shape?
On the bright side, the increasing practice of investigative journalism in Africa already seems to be making a difference. Though authorities in many African countries habitually do not respond to calls for comment, the incessant questioning during this project has started causing what might be called a remote response. After Taiwo Adebulu’s requests for comment, a high-ranking official at the Ministry of Interior announced that it ‘would penalise any official of the federal marriage registries found culpable of corruption’ while in South Africa, the head of the social welfare institution SASSA publicly described the challenges in her department in a weekly newspaper after Nazlee Arbee had bombarded the same department with questions. In Uganda, the parliamentary committee on education announced an investigation into the disappearance of civil servants’ salaries and the imminent arrests of thieves in the education department.
While similar measures and investigations have been announced time and time again, with no tangible results, the jittery reactions to journalists’ queries may indicate an incipient awareness among the powerful in the respective countries that demands for change and accountability are not likely to go away any time soon.
Editors note: Click on the link to read all the stories from the Kleptocracy project.
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Déjà Vu: The BBI Moment in Historical Perspective
It is an unacknowledged fact that, in Kenya’s relatively short political history, if one were to speak of the BBI report and launch as a moment, the people of Kenya have been here before.
The reports that have resulted from the Building Bridges Initiative (BBI) have identified the need for greater political, economic and religious inclusivity as the key issues confronting Kenya. The roots of political, economic, and social exclusion are embedded in Kenyan history, and they must be recognized and confronted for any attempt to promote inclusion to be successful.
This means that Kenya’s politics, economy and society have been polarized by divisions based on race, ethnicity, class, and religion, to name the most historically prominent, since the start of the colonial conquest in 1895. The rulers of Kenya during the colonial era and beyond put such divisions into place by legal measures and political and social usage both before and after independence. This produced a colonial society marked by rigid racial segregation in all aspects of life, including access to political inclusion and economic resources (e.g., the so-called white highlands). Social amenities were also segregated, and employment and leisure activities limited according to race, religion, and economic status.
While legally supported racial discrimination disappeared after independence, other forms of exclusion, grounded in ethnicity, class, and religion, continued to thrive after December 1963. The legal and constitutional framework that concretized those forms of exclusion is what the BBI initiative seeks to alter and overturn through constitutional amendments to provide a new framework for governing Kenya in the interests of all its inhabitants.
Looked at in context, it is clear that this process will only be possible if leaders of the BBI movement take account of past history. For example, Kenya’s constitutional history prior to 1963 represented a patchwork of legal decrees, colonial ordinances, and imperial directives in the form of orders-in-council. There was no single constitutional document setting out rules and philosophies for governance until the publication of the self-government constitution in April 1963. It was set out in an order-in-council and published in the Official Gazette. It came into effect on 1 June 1963. Like other colonial era constitutional instruments, the self-government constitution was imposed by the imperial power. A primary reason for this was that none were marked by negotiations involving all Kenya’s people or their representatives, nor were they a product of compromise and consensus.
A conspicuous example was the introduction of elected representation to the East Africa Protectorate (after June 1920 the Colony and Protectorate of Kenya) Legislative Council (LegCo) and local government bodies. The LegCo passed an ordinance in 1919 providing electoral representation only for Europeans resident in the territory. Europeans made up most of the body, and the then governor allowed official (civil servant) members a free vote. The result was strongly opposed by Asian (primarily from British India) residents, and as a result the British government was forced to intervene and decree, in the Devonshire White Paper of 1923, that Asian residents should have five elected representatives in LegCo and Europeans 11. The African majority was left out, and when the first African member entered the council in 1944, he was a nominated member.
This lack of inclusion for the colony’s majority population and the imposition by the colonial power manifested itself after World War II in the form of the Lyttleton Constitution of 1954 and the Lennox-Boyd Constitution of 1957-58. In both cases, a Secretary of State for the Colonies imposed constitutional arrangements that were rejected by those representing the African people. Acceptance by the European settler (or white highlander) representatives on behalf of the miniscule unofficial European population was deemed most important by the colonial rulers. In these cases, as earlier, it was only a portion of the colony’s elite who participated in constitutional discussions, and once the secretary of state had made up his mind, there was no discussion nor changing of constitutional specifics. Consensus, compromise, and inclusivity were not part of this process.
The African majority was left out, and when the first African member entered the council in 1944, he was a nominated member.
The constitutional alterations introduced as a result of the first Lancaster House conference in early 1960, moreover, continued the practice of elite involvement at the expense the Kenyan masses. As before, another secretary of state imposed a formula for a new LegCo and council of ministers as the delegates at the London meeting failed to reach agreement as far as the future legislative and executive branches were concerned. A major change in 1960 was that the 14 African elected members of LegCo were now the key group, but even they were not able to obtain changes to the new constitutional arrangements Iain Macleod laid before them. They accepted his formula while not all the European elected members did.
This was a significant change as at the conference the British government recognized that Kenya’s future was as a state governed by majority rule with Africans in control of the state. However, the fact remained that this was an imposed constitution discussed among a political elite not truly representative of Kenya’s populace, and not subjected to a referendum. It took almost a year to work out the specifics of the new constitutional arrangements with representatives of the colonial state playing a key part in the proceedings. (A key reason for this is that the colonial state and the British government wished to create a system of representation whereby “moderate” candidates were returned to the new LegCo by African and European voters in what would be Kenya’s last non-universal suffrage election.)
The self-government and independence constitutions emerged through similar circumstances. The political elite, now African-led and divided in two political parties, KANU and KADU, negotiated with the British government regarding the type of successor state that would rule Kenya. Both parties had European and Asian representatives as members of their delegations. As is well known, the second (1962) and third (1963) Lancaster House conferences were deeply divided over the issue of a federal or unitary state. At Lancaster House II, KADU advocated for majimbo, or a federal system of governance with powers devolved to geographically defined regions while KANU stood firm behind the call for a unitary system based on the existing administrative divisions and very much resembling the British model of parliamentary democracy. Here again, a secretary of state had to impose a settlement, this time a framework rather than a detailed constitution. It was left to Kenya’s political elite to work out the specifics of the constitution for self-government.
The fact remained that this was an imposed constitution discussed among a political elite not truly representative of Kenya’s populace.
The divisions in constitutional philosophy together with an inept handling of the negotiations by the leadership of the colonial state, delayed the process during 1962. Following the arrival of a new governor in January 1963, the process speeded up considerably, but agreement on many critical issues was not reached. This left another secretary of state for the colonies to decide the outstanding issues in dispute in March. Not only did the Kenyan political elite fail to agree, but the whole process did not involve participation by the population in the form of public meetings to explain the issues in dispute or a referendum. The self-government constitution (1 June 1963) provided for an extensive bill of rights and sought to institute a governmental structure based on a separation of powers between executive, legislative, and judicial branches, and thus unlike the structure of the colonial state.
However, the final form of the independence constitution, introduced on 12 December 1963, was much influenced by the universal suffrage general elections of May 1963. The victory of KANU in the House of Representatives and Senate opened the way for significant changes to that constitution in the next decade that did away with federalism and established a de facto one-party state. Significantly, it began the retrenchment of the bureaucratic-executive state. This meant that over time the executive branch of government dominated the legislative and judicial through an authoritarian imperial presidency.
Before turning to constitutional developments in the independence period, it is important to briefly examine the political culture and trends that marked the colonial era. Until 1961, constitutional arrangements were characterized by the politics of race. Kenya’s rulers conceived of the colony as a territory of several distinct racial groups. This vision was underpinned by a firm adherence to racist ideas of Social Darwinism which emphasized inequality among humans and a need for exclusion in political, economic, and social facets of colonial life. Segregation rather than integration was the mantra of colonial officials, settlers, and missionaries. As noted, the politics of race began to change in the early 1960s to be succeeded by the politics of ethnicity which also had its roots in the colonial decades.
Both the politics of race and ethnicity shared some common elements in terms of political strategies and actions. A few will be mentioned here as they had an influence on constitutional developments as well as remaining influential in independent Kenya. Divide and rule has been an enduring part of Kenyan political history. Keeping the population divided lessened opposition to ruling groups as well as privileging certain racial and ethnic groups and disadvantaging others (collectively most of the population). The setting of the elite against the masses or the big men against the little people is another enduring part of Kenya political practice. It is influential whether applied to racial or ethnic politics. In addition, a political practice that emerged in colonial Kenya burst forth again after independence. This is what some of Kenya’s colonial governors viewed as an “opposition mentality.” After 1923, Kenya’s European politicians enjoyed considerable influence, but could never take control of state power. This led to the adoption of European obstructionist opposition in LegCo and elsewhere combined with a refusal to support reformist programs in the political, economic, and social spheres. Their politics was that of irresponsible attack on the colonial state, knowing that they could never win control of that state in any democratic election.
A similar situation existed from 1969 until 1991 when the single party KANU government led by all-powerful presidents could not be democratically influenced or changed. That situation was the product of a neo-patrimonial political system with roots in the colonial era. Patrons (with presidents as patron-in-chief) ruled by gaining clients whom they bound loyally to them using state resources. This perpetuated the divisions noted above and also the on-going dichotomy of the elite against the masses, oligarchy vs democracy, and exclusion and inclusion.
The setting of the elite against the masses or the big men against the little people is another enduring part of Kenya political practice.
These themes and the practices associated with them impacted post-independence history and produced many of the issues highlighted by the two reports of the BBI taskforce. These political factors have been, and are, closely tied to many of the critical, and most divisive, issues confronted in any study of Kenya’s history since the end of 1963. Prime amongst those are devolution or majimbo, unequal access to national resources, and income inequality with access to land right at the top. Others noted in studies of that historical period include questions relating to the “ownership” of Kenya. Does it belong to all Kenyans or to a few? Can a Kenyan citizen live anywhere within the nation’s boundaries? How can gender inequality be fruitfully addressed? Another unaddressed issue is the so-called “neglected north” of Kenya that has been “left behind” in many ways. All these can be directly tied to policies and practices that have produced exclusion, at least in theory, and can certainly be addressed, in some measure, by constitutional changes.
Changes by means of constitutional amendment were relatively common during the second half of the twentieth century as that period witnessed several “change the constitution” initiatives. The first of these emerged immediately after Madaraka Day (June 1, 1963), and a key demand and goal of Prime Minister Jomo Kenyatta’s government was to alter the procedure for amending the independence constitution. Mzee Kenyatta was partially successful in achieving change at Lancaster House III, though it was not the result of negotiations and compromise with the KADU opposition leaders. The majorities required in both houses of parliament were reduced for certain categories of amendments, and a procedure for a national referendum was inserted in the independence constitution, although it would not be used for several decades.
The changes, the KANU government’s failure to implement portions of the independence constitution, and the demise of KADU in November 1964 opened the way for constitutional amendments that established a republic with an imperial presidency (itself reinforced by further amendments such as the 10th of 1968) and the seeming end to devolution through the elimination of regional powers and a bicameral legislature as well as periods for Kenya as a de facto one-party state (1964-66 and 1969-82). All amendments prior to the end of the century were achieved by parliamentary vote rather than by a national referendum. Many amendments to the constitution were passed quickly and with minimal debate. For example, the amendment opening the way for the “little general election” of 1966 was approved by parliament in two days as was the 15th amendment of 1975 (the so-called Paul Ngei amendment). The infamous 19th constitutional amendment of 1982 (that made Kenya a de jure one-party state) was also rapidly approved with no opposition on the second and third readings. A key characteristic of this period was that constitutional change was politician-driven (in some cases by the president himself) rather than people-driven.
The history of amendments in independent Kenya is thus important to take into consideration. The return of multipartyism in 1991 was a result of, and produced additional, change the constitution initiatives, but the changes advocated were on the whole different from those of previous years as they called for democratization of the political system and an extension of civil liberties. The failure of political pluralism to bring these about or to remove the autocratic and corrupt KANU regime of President Daniel arap Moi led many to move from demands for constitutional change by amendment to calling for the introduction of a new constitutional order. Such campaigns for change became increasingly strong during Moi’s last term as president (1997-2002). A key characteristic in this drive for change was the continued conflict between those who wished a people-driven process of constitution-making versus those advocating a politician-driven pathway to a new constitution.
A key characteristic of this period was that constitutional change was politician-driven rather than people-driven.
This conflict came to the fore after 1999-2000 when a serious attempt was launched to create a new constitution with the creation of the Constitution of Kenya Review Commission and the appointment of distinguished law professor Yash Pal Ghai as chairman of the review commission. The commission began to collect public views on constitutional reform during 2001 and 2002 for what many Kenyans hoped would be the basis for a new, people-driven, constitution to be introduced prior to the general election expected to be held at the end of 2002. Politicians had the last word, however, as the new constitution produced by Ghai and his team was not moved forward in parliament, and Moi quickly dissolved that body leading to the 2002 election. KANU was defeated by the NARC coalition and the hopes of many Kenyans for a new constitution under now president Mwai Kibaki seemed likely to be quickly fulfilled.
As is well known, this hope did not materialize during Kibaki’s first term, and by 2007 many Kenyans had reason to despair. Many factors have been put forward to explain this delay. Among these were continued division over a people-driven versus a politician-driven process, which in some ways reflected the elite or big men versus the larger number of small men dichotomy of the past. The influence of the neo-patrimonial politics remained a factor with wealthy individuals seeking to control the process, and the inability to adopt democratic norms proved a barrier to a new governing order. Also critical were divide and rule traditions (producing exclusion for many) as against the ideal that all Kenyans should have a stake in their government, no matter their ethnicity or place of residence (inclusion). The opposition mentality mentioned earlier also made compromise and agreement difficult.
These divisive factors played themselves out around several key constitutional issues. Those included the shape and powers of the executive branch, the nature of the franchise and of representative government, separation of powers, civil liberties, devolution, and financing a new constitutional order. These all presented bones of contention in the framing process as Kenyans struggled particularly to find consensus around the executive (a president as head of state and government versus an executive prime minister as head of government), legislature (unicameral or bicameral), system of representation, and devolution. The latter issue had become critical since majimbo came back into popular discourse and political contention in the 1990s and later.
Calls for federalism had accompanied the ethnic clashes that disrupted western Kenya and the coast during that decade. Furthermore, as time passed federalism was viewed by increasing numbers of Kenyans as a constitutional means to promote inclusion and as a means of diminishing the huge powers of the executive branch that had marked the presidencies of Jomo Kenyatta and Moi.
As most Kenyan adults in the 2020s know, the process of reaching a new constitutional order took many twists and turns between 2002 and 2010. The divisive constitutional issues noted earlier continued to burn brightly with the struggle for a people or politician-driven governing document at centre stage. 2004-05 witnessed parliament take control of the reform process through a select committee. Although politician/elite-driven, the process of constitution-making was now, and in the days and years to come, marked by deep division among the political elite and the public. Despite a lack of consensus among members of parliament (usually viewed as between those supporting Kibaki and those opposing his re-election), the select committee dropped the revised Ghai draft constitution presented to the attorney general in March 2004. Devolution was provided for in the new document as well as a unicameral parliament, a powerful presidency, and a non-executive prime minister. A divided political class and populace moved to the November 2005 referendum, the first in Kenyan history, which produced a decisive rejection of what was then termed the “Wako draft”. The constitution itself was not the only factor, and other issues such as the performance of the Kibaki administration were influential.
All amendments prior to the end of the century were achieved by parliamentary vote rather than by a national referendum.
In many ways, the referendum proved to be a rehearsal for the general election of December 2007. Despite political realignments, the demand for a new constitution was a central topic for discourse and many of the issues in constitutional dispute remained contentious while politicians and populace remained deeply divided in hostile parties. The most controversial election in Kenya’s history was the result, and the disputed outcome led to electoral violence, loss of lives, and the displacement of thousands of Kenyans from their places of residence in early 2008. As in the late colonial period described earlier, the inability of the Kenya political elite to compromise and reach consensus necessitated outside intervention, though this time not the British government. A political settlement ending the violence emerged with the assistance and pressure of the African Union and the United Nations, and a key element of this was the agreement of all political leaders and parties to work expeditiously to give Kenya a new constitution which would deal with the issues of the 2002-07 era as well as those dating from a much earlier period.
The new constitution was promulgated in August 2010 following the approval of 67 per cent of those voting in a referendum early that month, but the process was hardly easy or straightforward. Differences among the political elite, regarding the executive and devolution, again characterized the process. The latter took the form of 47 county governments, while the former, after intervention by parliamentarians, provided for an executive president and a deputy president, but no prime minister. In a major departure from the past, these leaders were to work with a cabinet consisting of non-members of parliament which was to be cast, as in the independence constitution, as bicameral. The referendum outcome indicated a significant level of public support and, led by Raila Odinga, most politicians supported approval in the referendum. Yet there were warning signs in this outcome that created Kenya’s second republic.
Among those signs were the fact that following the promulgation, much needed to be done to flesh out the details through legislation (as in the creation of a new supreme court). This proved to be a slow process and had not been completed by the time of the first general election (March 2013) under the new constitution. There were also misgivings that despite the democratic and progressive nature of the new constitution, its promise of inclusion and a better future for Kenyans might be weakened by tribalism, inexperience and incompetence at the level of devolved units of government, and continued corruption of the type that had plagued the previous governmental order under Moi and Kibaki. Political divisions remained as was illustrated in the outcome of the referendum. Eighty-eight per cent of Kalenjin voters rejected it as did 53 per cent of the Maasai. Moreover, only a slim majority voted in favour among the Kamba. Yet if press comments and political commentaries are any kind of a guide, the Kalenjin, following the lead of Deputy President William Ruto, now strongly support the 2010 constitution and see no need for change.
As time passed, federalism was viewed by increasing numbers of Kenyans as a constitutional means to promote inclusion and as a means of diminishing the huge powers of the executive branch.
The result over the past decade has been to spark yet another change-the-constitution movement despite the progressive nature of the 2010 constitution. On the whole, the factors driving the movement and leading to the handshake agreement of 2018 represented few new elements in Kenyan politics and constitutional discourse. The controversial general elections of 2013 and 2017, marked by heightened ethnic animosity and violence, were illustrative of a lack of inclusion, consensus, and a common feeling of nationhood among large segments of Kenya’s population. The first-past-the-post electoral system inherited from the British model, so it was argued, discouraged compromise, heightened ethnic hostility, and left some ethnic groups feeling marginalized and excluded from national decision-making, particularly through exclusion from the executive.
In the views of many Kenyans, moreover, corruption at both the level of the national and the county governments has not been tamed, but has grown more widespread. Unequal access to national resources and economic inequality generally continued to grow. For those Kenyans who feel that the cost of governance itself is a cause for concern, these economic factors also have emerged as critical considerations for constitutional reform. While the 2010 constitution demanded gender equity, on the other hand, it has clearly not been achieved and nor has affirmative action aimed at inclusion for disabled people and other underrepresented minority groups.
Right from the beginning, the self-government and independence constitutions were fatally flawed in that they were not completely implemented, and the same has been true of the 2010 constitution. The BBI reports discuss these and other issues and make recommendations for change, but the process remains elite-driven and far from radical.
Northern Kenya Ten Years After Katiba: Anniversary of a Funeral
For devolution to bring lasting change, the national government must keep its promises to northern Kenya and county governments must preside over institutions that are inclusive, accountable, and transparent.
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.
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.
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.
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.
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.
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.
Kenya’s Opaque Procurement Deals: The Case of G4S
The opaqueness of public procurement may be losing Kenya much needed tax revenues that would greatly ease the tax burden on ordinary Kenyans.
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.
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”.
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.
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.
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.
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.
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.
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.
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