A coherence check is an evaluation of the extent to which legal instruments such as the Digital Service Tax (DST) achieve their own stated objectives with efficacy, effectiveness and efficiency. As the economic slump bites and Kenya’s debtors start calling, the extent to which the Kenyan government is coherent in its regulation is directly linked to Kenya’s social and economic stability. While government regulation can be convoluted, the coherence check framework makes clear what the meaning of regulation is to you.

The DST, which came into effect on the 1st of January 2021, is a 1.5 per cent tax on the gross transaction value of all digital products and services in Kenya. The inexhaustible scope of products and services covered by this tax ranges from downloadable content to data analytics services.  Stripped down to its core regulatory intent, the DST is a transfer of wealth from private actors in the digital sector to the government. The short-run purpose of the DST is to grow the tax base while the long-run objective can be considered as to boost tax revenue. How coherent then, is a 1.5 per cent tax on digital products, services and marketplaces to its own objectives?

I meet Ndunge at her second-hand clothes stall in a busy part of the city, as I collect a piece. Since the first COVID-19 lockdown, she has had to create an account on a popular social media application to find new markets, ensure that she doesn’t lose her long-term clients and most importantly, to survive the slump in demand in her sector. Ndunge’s online clothing sales are technically subject to the DST. She dismisses my questions about the DST with “vile itakam” (whatever will be). Ndunge is required to submit DST returns by the 20th of each month but she will not be doing so. She is strikingly disengaged from a fiscal rule that is imbued with the potential to destroy a business she has painstakingly built. Our digital service provider explains that the government is not justified in its pursuit of 1.5 per cent of all her business, a view that she assures me is almost ubiquitous amongst her colleagues. The dismissive bitterness that frames her opinion of the government and its taxes is a sign that her political disillusionment is morphing into something altogether more sinister.

The DST is a transfer of wealth from private actors in the digital sector to the government.

At the philosophical level, Ndunge entered into a social contract with the Government of Kenya when she started her business. She wittingly or unwittingly expected to receive a public services bundle – political decision-making access and a voice in the distribution of the tax burden in exchange for her taxes. Her perceived imbalances in this transaction, coupled with the persistent allegations of corruption within government have created a legitimacy gap. Legitimacy is the key ingredient in the administration of tax or any coercive law. It motivates compliance, encourages group discipline in rule following and significantly reduces enforcement and monitoring costs for regulators. Without legitimacy, the incumbent government must use violence, legal or otherwise to achieve its compliance objectives, and I guess in Ndunge’s case, they will have to.

To violently compel Ndunge and the 86 per cent of Kenya’s informal sector workforce to comply with the DST, the government will undoubtedly need to invest significant resources in the requisite tax infrastructure to register, motivate and monitor compliance. As the DST is an experimental tax, even in jurisdictions with robust tax infrastructure and legitimacy, this significant public investment will have to be undertaken without a clear return on investment.

Based on the foregoing, the first question that arises about the DST is its efficacy. The decision to regulate must first be informed by the evaluation of how much coercive force is required to achieve the objective of a greater tax reach and an increase in tax revenue. As illustrated by the above, the government’s legitimacy gap, the required investment in tax infrastructure and the unclear return on investment raise questions on the feasibility of the DST. 

The DST is designed as a prescriptive rule by the Kenya Revenue Authority (KRA) that requires the regulatory target (digital products and service providers) to register and submit their monthly DST returns in compliance with the Finance Act 2020. However, a glaring design flaw is the DST’s blanket provision of 1.5 per cent of the transaction value for all digital business, without the differentiation of income/turnover thresholds. The KRA’s inability to prioritize regulatory targets or identify classes of digital services/products to earmark is, first and foremost, punitive to local micro, small and medium-sized (MSMEs) digital enterprises. Pitting the compliance capacity of multinational digital content providers against the limited resources of MSMEs is not only amoral, but it sabotage’s the KRA’s objectives.

With no clear regulatory priorities, the KRA is faced with a system capacity overload, where regulatory resources are spread too thinly to successfully target, motivate and monitor compliance. The natural, resulting equilibrium is the committed non-compliance of MSMEs, the bedrock of Kenya’s economy and the main regulatory target. Simply put, there is no incentive for a middling Kenyan lifestyle blogger with no technical capacity to calculate and engage with the regulatory requirements of the DST and comply. Moreover, the expectation that it should cost the same amount for the blogger as for Netflix is preposterous. The DST here is demonstrably ineffective in the pursuit of its own objectives.

In addition to alienating the core tax revenue-generating actors in this jurisdiction, the DST is bound to have a “chilling effect” on the sector. First, in the short term, there is loss of consumer welfare as those digital actors who can transfer the cost of the DST to consumers, have and will. The more perverse effect of the DST however, is the loss of the “silicon savannah”, the unregulated space of digital innovation, with global recognition and ramifications.

Pitting the compliance capacity of multinational digital content providers against the limited resources of MSMEs is not only amoral, but it sabotage’s the KRA’s objectives.

There is a sickening but almost comforting familiarity to the ruination of exceptional things, people and spaces in this country. The sequence is clear: A new and disruptive idea, technology, market or product is created and the novelty is exploited by those most disenfranchised to create capital. The now productive sector catches the attention of the government, which directs its monopoly power to regulate. Gradually, the inefficiencies of “the Kenyan experience” emerge while incentives to innovate, grow and create are strangled. The capital previously owned and generated by the innovators, finds its way back to the political class and the sector withers, the status quo is maintained. This unfortunately is how “the cookie crumbles” in the digital products/services sector – the inefficiencies that have dogged other sectors are finally in the digital space. The distributive injustice of the DST to the youth, MSMEs and other disenfranchised groups is only more compelling when viewed in light of the rampant distortionary effects of corruption in this jurisdiction. In effect, this tax is a perverse re-distribution of resources from the most efficient interest group – disenfranchised private sector actors – to the government. The DST is in this case manifestly predatory while retarding growth in the sector.

As a policy analyst, I wonder what the strategic regulatory intent of the DST was when considering its cost/benefit spread. While the benefits of the DST accrue to the government, digital financial services providers are beneficiaries by exemption. It is noteworthy that digital financial service providers are the primary beneficiaries of a previously unregulated digital sector. Digital financial services providers developed their products in a regulatory vacuum and created the economies of scale that now allow them to compete internationally. As the most profitable economic entities in Kenya and possibly in the East-African Community, why should they be exempt from the DST?  The economic rationale of this exemption is unclear as these financial service providers are experiencing profit gluts after recouping their digital infrastructure investments. Unmistakable interest group politics are at play here, bringing into question the regulatory intent of this tax.

The more perverse effect of the DST however, is the loss of the “silicon savannah”, the unregulated space of digital innovation, with global recognition and ramifications.

A coherence check on the Digital Services Tax illustrates the inefficacy, ineffectiveness and inefficiency of its intent, design and effects.  I find that the government’s legitimacy gap is likely to promote committed non-compliance among the regulatory targets. Therefore, in order for the KRA to achieve its regulatory targets, it must employ legal violence. Additionally, the DST’s blanket provision is a limiting design feature that discourages compliance, creates perverse incentives and retards growth and innovation in the sector. These distorted outcomes all ensure that the fervent attempts by the KRA to substantively increase tax reach, fail. Finally, the exemption of digital financial service providers from the scope of the DST is indicative of interest group politics in the sector that are destructive to growth and innovation.

Given the adverse effects of the DST, MSMEs and other interested stakeholders in the sector need to confront the rising tide of incoherent regulation by urgently organizing and engaging with the regulatory process. The recent increase in internet taxes (Finance Act 2021) is an indication that the government will not relent in its redistributive efforts. Digital service providers must form a clearly defined interest group because only by pre-emptive engagement with the Ministry of Information, Communication and Technology on its policies, positions and instruments can they have the analytical and relational capacity to insulate themselves from predation, in line with their contemporaries in the digital financial services sector.

The weather and climate have suddenly become “front and centre” in our lives, and demand our attention because their vagaries have suddenly hit the Global North. One of the greatest unspoken fallacies of our time is that climate change is a recent phenomenon that “we” suddenly need to be concerned about today, with regards to our emissions and carbon footprint. The truth of the matter is that the greenhouse gases that the atmosphere accumulates and what we are witnessing now, is the cumulative effect of what has been emitted in the 200 years or so since the Industrial Revolution.

That humankind is now in trouble is indisputable and we must all work together to solve the challenges brought by climate change. However, the search for solutions to this problem must come from a position of honesty, if we are to have any chances of success. Therefore, the first thing we must deconstruct is the false corporate term “we” in reference to responsibility for the origins and the drivers of climate change.

People in the tropics (also referred to as the “Global South”) do not experience the extreme seasonal variations typical of the temperate zones, but the inter-tropical convergence zone (ITCZ) where they live has always been subject to extreme weather, including droughts and floods. In Kenya, and in much of Africa, rural indigenous communities developed resilience mechanisms, including “reserving” key resources like springs and highland grazing areas exclusively for use during times of crisis. In most communities, this wasn’t only a material consideration but a social and, occasionally, a spiritual one. This is because the use of these resources was subject to decisions by designated elders, and some of these “reserved” areas were also used for cultural rituals and spiritual purposes. Nature, therefore, was part of a continuum that included people, their cultural structures, spiritual standing, and physiological needs.

That humankind is now in trouble is indisputable and we must all work together to solve the challenges brought by climate change.

People in the temperate “Global North”, on the contrary, have always seen themselves as “external” to nature, and have used the latter as a resource to be consumed and exploited. The rate of consumption was only limited by the physical capability of the consumer. When the industrial revolution came, mechanical engineering exponentially increased their capability to consume. Furthermore, it gave rise to capitalism, whereby consumption was now driven by the profit motive, in addition to the initial individual need. The earth (and its environment) suddenly had to cope with a society that had the desire and capability to consume far beyond its physiological needs, and initial geographical boundaries. The pressure was on, and students of history will easily recognize how this drove colonialism, war, and environmental destruction, resulting in the environmental crisis in which we find ourselves today; the instability, unpredictability and occasional violence of atmospheric conditions that we pretend to understand and describe in a deliberately vague term; climate change.

“Climate change” is a terminology that appears to denote something current, fluid and urgent. When used within the context of describing extreme weather events, it evokes images of an event that is happening right now, driven by actions being undertaken by everyone right now. This is why it is such a useful term, because it feeds the crisis narrative. Scientists can receive millions of dollars in grants and base their entire careers on it without doing anything tangible. Politicians and political parties can ride on this crisis to power or positions of power within coalition governments. World powers can easily use it at global forums as a pretext to try to curtail the industrial ambitions of their rivals. At the extreme end of the ethical spectrum, it has even been used as an excuse by adults to put a teenage girl on the frontline of the geo-political battles from which we should be protecting children.

One of the most absurd facets of the chimera we know as climate change is the rise of the monetization of the environment. The rise and acceptance of the bizarre notion of “carbon” offsets, credits, and trading in the same. As we have observed above, capitalism and its associated consumption patterns is a major root of the environmental miasma in which we find ourselves today. For us to imagine that capitalism, brokerage and profiteering can be used to mitigate the same damage it has caused over all these years is the height of hypocrisy, or cognitive dissonance, or both on a global scale. At a basic level, the money that changes hands has zero impact on emissions. It simply means that those who pollute pay for it. The cost of the payments gets passed on to consumers, so the polluters don’t lose, and with most emissions coming from essential consumer goods, what we end up with is a simple extortion scam, paid for by the consumers, who then suffer its atmospheric consequences through extreme weather.

The most harmful part of this hypocrisy has been the fallacy of “carbon sequestration” by annexing and colonizing lands and seascapes in the tropics. Allied to this is the accelerated creation of new “protected areas” driven by the fatally flawed premise that wealthy people and biodiversity will somehow survive the vagaries of a destabilized atmosphere within islands of land fenced off from the rest of the world.

One of the most absurd facets of the chimera we know as climate change is the rise of the monetization of the environment.

That vague term “climate change” has allowed us to conjure up an entire economy of “greenwashing” trade in intangible “carbon”. It has engendered scientific publications, academic and political careers, not to mention the relentless search for “alternatives” that will somehow excuse us from changing our consumption patterns. The prejudices that are such an integral part of human nature have found a comfortable home in the miasma that is climate “science”, with industrialized nations pointing at livestock in the Global South, and ignoring cars, industries and fossil-fuelled power stations in their own countries. Pointing at population growth in the Global South, while ignoring the existing density and incomparable carbon footprint in the north. The people who drive this are “scientists”, ironically funded by the corporations that do the most damage, so we must not let “science” become the unquestioned cult it seeks to be. We must scrutinize it in the same manner we examine everything else around us and apply logic to it.

Extreme weather, in its unpredictability and power, is actually a reminder to us, that our international borders, protected areas, international conferences, hare-brained financial schemes and “scientific research” means nothing if we don’t reduce emissions of greenhouse gases into the atmosphere. We must get our act together because for once, we face a challenge that completely ignores wealth, race, religion, fences and all the other divisions we place amongst ourselves. Weather, the great equalizer.

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This is the original English manuscript of the article published in the Frankfurter Allgemeine Sonntagszeitung on 17 October 2021.

The pandemic rages on — not by accident, but by design. As we enter the third year of the Covid-19 crisis, two battles are underway. One is led by the carers of the world in overcrowded hospitals, fighting to end the pandemic. Another is by corporate executives in closed boardrooms, fighting to prolong it.

The question at the very center of both is this — who will control medical recipes worth billions of dollars, and millions of lives?

As some countries roll out booster programs, less than 6% of Africa’s more than a billion people have been fully inoculated. Big pharmaceutical companies are letting the pandemic go on — and why not, according to a recent estimate, Pfizer is expected to make astronomical profits —$107bn in cumulative sales by the end of 2022 on its Covid-19 vaccines, now being dubbed a “megablockbuster.” Key to this is complete control over production, price, and profit. If more of our factories, wherever they might be, could start producing vaccines for the people in their countries, companies like Pfizer would lose their monopoly. They know this.

Right now, the World Trade Organization is considering a proposal that would temporarily waive patent protections on vaccine recipes. Over 164 countries have supported it. But the pharmaceutical industry is fighting back, hard —through the governments it lobbies. The European Union, the United Kingdom, Switzerland, Norway, and Singapore have successfully blocked it for over a year.

But as the ministers convene, once again, in Geneva on November 30, a new global movement is readying its fight: 2.5 million nurses are taking these Covid-19 criminals to court. In an unprecedented move, unions from 28 countries, coordinated by the Global Nurses United and the Progressive International — have filed a complaint with the United Nations alleging human rights violations by these countries during the Covid-19 pandemic, whose end, they write “is nowhere in sight.”

In a closed-door meeting about how to get more vaccines to the world’s poorest people, the chief executive of Pfizer attacked Dr. Tedros, the head of the World Health Organization for speaking “emotionally” when he called for greater balance in the global distribution of vaccines. From Brazil to India, the United States to Taiwan, nurses are bringing their emotions to bear. They have been on the frontlines of the COVID-19 pandemic response and witnessed the staggering numbers of deaths and the immense suffering caused by political inaction. From the frontlines, they prepare to hold these countries to account with a rallying cry: We, who care — we bear witness. Now, we testify.

The nurses’ complaint is not simply a legal fight: it is radical call to expose and defeat the governments that have been holding the lives of peoples’ hostage in order to service corporate super profits.

The leaders of these nations have been explicit about the world they seek to build: Early in the pandemic, the UK parliament’s foreign affairs select committee called for a “G20 for public health.” This is a revealing analogy.  Much like the G20, these countries have, in effect, hijacked international institutions and actively undermined the sovereignty of other nations, while enjoying complete impunity for their actions.

Consider the principal opponent to the waiver proposal at the WTO: the EU. In May 2020, European Parliamentarians, the only members directly elected by citizens in the EU system, voted to back the waiver to “address global production constraints and supply shortage.” Yet, for the next six months, the European Commission, which negotiates on behalf of Europe at the WTO has stubbornly resisted the waiver. This is entirely unsurprising if we look at who the European commissioners and their cabinets meet: Since March 2020, they have had 161 meetings with Big Pharma in the same timeframe that they managed to meet one NGO in favour of the waiver.

Nothing stood in their way as they throttled democracy and gave free reign to a deadly virus. Not global health organizations, two-thirds of which are headquartered in the US, UK, and Switzerland. Not international institutions, whose austerity agendas, have over decades, decimated public health systems in developing nations even as 83% of all government health spending occurred in the affluent world. Not the Bill and Melinda Gates Foundation — which it turns out, urged Oxford to reverse their decision to share their vaccine technology with the world.

The Covid-19 criminals have made their disregard for universal human rights and international law clear. It is now up to us to reclaim the enormous power that the UN charter, the WTO, WHO, and international law hold and deploy them as tools. That is why this transnational coalition is moving the Special Procedures of the UN Human Rights Council — to investigate — and find against the governments in question.

In the complaint addressed to Dr. Tlaleng Mofokeng, the UN Special Rapporteur for Physical and Mental Health, we articulated our demands:

First, undertake an urgent mission to the World Trade Organization: For too long, these countries have been wholly unaccountable, disguising their submission to corporate interests behind technical jargon. Their days of impunity are over.

Second, make a determination that the obstruction of the waiver constitutes a continuing breach of these governments’ obligations to guarantee the right to physical and mental health of everyone. Healthcare is our right. What we’re witnessing cannot be defined as an inefficiency in our system, or the failure of our politics — it is, in no uncertain terms — a crime against us all.

The nurses have given their testimony: “These countries have violated our rights and the rights of our patients — and caused the loss of countless lives —  of nurses and other caregivers and those we have cared for.”

Today is the day the historic case of the Carers of the World vs. Covid-19 Criminals begins.