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Role of IEBC Chair and Commissioners: What Is in the Name “Returning Officer”?

14 min read.

At the core of the latest IEBC controversy is the question of whether or not commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion is divided but what many pundits have ignored is the role and structure of the IEBC.

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Role of IEBC Chair and Commissioners: What Is in the Name “Returning Officer”?

The Independent Electoral and Boundaries Commission (IEBC) sent shock waves across the country when different commissioners gave inconsistent positions on the credibility of the recent presidential election. Kenya is no stranger to public drama by IEBC Commissioners. In 2017, an IEBC Commissioner resigned ahead of a re-run of the presidential election and fled to the US. Then followed the resignation of three commissioners alleging the improper removal of the CEO and claiming lack of faith in the IEBC chairperson’s leadership.

Once again, and just as the IEBC chairperson was announcing the presidential election on 15 August 2022, four commissioners rushed to Serena Hotel to issue a presser disowning the results for what they termed as the “opaque” manner in which the results have been handled. Counteraccusations ensued, with the IEBC chairperson accusing the commissioners of attempting to “moderate results”, an allegation that they vehemently opposed. At the core of this IEBC circus is whether commissioners have a role to play in counting, tallying, verifying, and announcing the presidential results. Public opinion has been divided over the role of the IEBC commissioners in the conduct of the presidential election but what many pundits have ignored is the role and structure of the IEBC, as part of the independent commissions, which might shed light on the commissioners’ role in the presidential election.

This piece argues that a holistic reading of the constitution on the conduct of the presidential election reveals that the IEBC, including the commissioners, should be involved in all stages of the election. To prove this, it makes three arguments. First, Article 138(3) (e) of the constitution enshrines the role of the IEBC as a body in the conduct of presidential elections. Second, the jurisprudence on the running of the business of the IEBC provides for the centrality of the commissioners as the “linchpin of the Commission”. Third, the architecture of the independent commissions as watchdogs of democracy ingrains internal checks and balances and disfavours limitless powers of an individual or of one arm of the commission. Lastly, the paper debunks the analogization of the role of the IEBC and chairperson and returning officers. It offers three reasons why the parallelism of the two positions commits the logical fallacy of false analogy or false equivalence.

This article proceeds on the assumption that the IEBC chairperson exercised the role of the national returning officers to the exclusion of other commissioners. It is informed by the chairperson’s statement released on 17 August 2022, where the chairperson quotes the role of returning officers as being to tally, verify, and announce results. He concludes, “The role of the National Returning Officer for Presidential Election is not shared responsibility and not subject to Plenary decision of the Commission.” The paper argues that the chairperson of the IEBC has failed to examine his role in the context of the entire constitutional provisions on the conduct of the presidential election and operations of the commission.

While the failure to involve the commissioners raises an important question, this piece observes that it is not enough to overturn the election. Beyond demonstrating the lack of participation of the commissioners, it must be shown that there is a “substantial effect” on the integrity of the election as a whole.

Role of IEBC chairperson vis-à-vis the other commissioners in the conduct of the presidential election

As in any other election, in the presidential election, under Article 86 (c) of the Constitution, the IEBC is required to ensure that the results from the polling stations are openly and accurately collated and promptly announced by the returning officer. This generic provision lays out the oversight role of the IEBC in the conduct of the election. Public discourse over the election has been engrossed in the question of the exact duty of the commissioners in the conduct of the presidential election. Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”. Others have argued that the law only requires the IEBC commissioners to vote only on the business of the commission, and the presidential election is not a business of the commission.

While the arguments on the commissioners’ role and the perception of subversion of the will of the people raise an essential question, these contentions fail to address the broader context of the presidential election. The presidential election requires a heightened oversight because of its importance and critical nature in Kenyan society. This part considers the constitutional provisions which give the commissioners a general oversight role, including verification of forms 34A and 34B to determine their accuracy.

Some have taken their scepticism to the extent of questioning the reason for voting if the commissioners “have a say in the presidential election results”.

It is crucial to first clarify that this debate is not about the quorum of the IEBC. The quorum of the IEBC has been used to conflate it with the debate on the role of the commissioners in the presidential election. However, the question of the role of commissioners is distinct from the question of quorum. Quorum addresses the question of whether there are enough commissioners to transact business, an issue that was settled in the BBI case. The pertinent issue in the current discourse is the role of commissioners since they were present but did not participate for lack of a part to play in the process. For quorum to be an issue, all commissioners should have received a notice to attend the plenary, but only the minimum number availed themselves.

The structure of independent commissions as commission-centric 

A holistic reading of the constitution on the nature of the independent commissions reveals the integral role that commissioners play in overseeing the implementation of a commission’s functions. In this part, I argue that most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically. Specifically, they fail to examine the structure and functioning of the independent commissions, including the IEBC. An isolationist and narrow reading of Article 138 (10) of the constitution on the role of the IEBC chairperson will lead to an erroneous conclusion that the IEBC chairperson collates, tallies, and verifies forms 34A and 34B received from the polling stations. This piece cautions against drawing hasty conclusions regarding the role of the IEBC chairperson from reading a single article of the constitution.

Chapter 15 of the constitution provides for the architecture of the independent commissions. Article 249 of the constitution decrees the object of these bodies as the protection of sovereignty, and promoting democracy and constitutionalism. The commission’s composition and nature are listed in Articles 250 and 253 of the constitution, and it is stated to be a corporate body. The commission as a body functions in a manner that guarantees internal accountability, as depicted by the uneven number of commissioners and the insistence that the existence of the commission depends on the existence of commissioners.

Most proponents of a super-chairperson of the IEBC on the national tabulations of presidential results fail to read the constitution holistically.

Kenyan courts have discussed the place of commissioners in relation to the secretariat. A close look at some of the foundational cases on independent commissions will shed light on the relationship between the chairperson of the IEBC and commissioners as a body. One typical running theme is that the commissioners are the linchpin of the commission, and no duty is beyond the commissioners’ oversight since they are the nub of the commission. This argument does not mean they have unfettered powers—even to the extent of changing election results—but they can oversee and note mistakes on the report to be submitted to the Chief Justice.

At the centre of their function is policymaking for implementation by the secretariat, and oversight. The rationale for the emphasis on the centrality of commissioners is that they are responsible for realizing the mandate of the IEBC as an enabler of democracy and a guarantee of the right to self-determination. The secretariat assists the commission in the discharge of its mandate. Court decisions on the relationship between the secretariat and the commissioners reveal the vital place of commissioners in discharging the commission’s mandate. In the Constitutional Application N° 2 of 2011, the court was emphatic that “the several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and perform this role effectively”.

Courts in Kenya have termed the existence of commissioners as a foundation for the powers of the secretariat. The implication is that for a commission to exist properly, it must have commissioners; from there, all other functions flow. Ordinarily, the outcome of the functioning of the secretariat should be ratified by the commissioners of the IEBC. In Michael Sistu Mwaura Kamau v Ethics and Anti-Corruption Commission and 4 others 2017, the court stated,

“The Secretary and the Secretariat can only carry out the powers vested in their offices when the Commission exercises its powers since they implement what the Commission has resolved. The Commissioners must ratify the outcome of the tasks undertaken by the Commission’s staff if they are to be deemed as the decisions of the Commission” (Emphasis mine).

Therefore, given the central position of the commissioners in the conduct of all functions of the IEBC, they cannot be excluded from an essential role in the national conduct of the presidential election. Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners. Therefore, officials such as returning officers assist the commissioners in conducting the election at the lower levels. It is illogical to argue that returning officers can exclude the commissioners from oversighting the elections they are conducting.

Misuse of the tag of national returning officer

The general posture of the Kenyan constitution is that it adopts a pessimistic outlook on those who wield power. This position of the constitution informs the distribution of duties among various parts of the IEBC. Here, I will argue first that Article 138(3) (c) of the constitution provides for the general task of the IEBC as a body, the chairperson’s role being limited to the announcement of the presidential election results under Article 138 (10) of the constitution. Second, I will contend that the constitution does not eliminate the oversight role of commissioners regarding the presidential election. Third, the constitution is aversive to an individual exercising monopoly of power. Put differently, the constitution favours the distribution of powers, oversight, and internal checks and balances. Lastly, I will deflate the false analogies of equating the chairperson of the IEBC in the conduct of the presidential election with other returning officers. I will argue that it is a simplistic view of the conduct of the presidential election.

As a body the IEBC has the role of the conducting of the presidential election. Article 138 (3)(c) of the constitution provides that in the presidential election, the IEBC shall tally, verify, and declare the results after counting the votes in the polling stations. This role is given to the commission as a body to be discharged by its employees with the commissioners’ oversight. At the national level, the IEBC verifies and tabulates forms 34As and 34Bs to generate form 34C. All commissioners have a right to be involved in the tabulations in the exercise of their oversight role over the employees of the IEBC.

Although officers of the IEBC might have specific statutory duties, the exercise of their functions is subject to general oversight by the commissioners.

Unlike Article 138(3)(c), which provides for the general role of the IEBC, Article 138(10)(a) of the constitution provides that the chairperson of the IEBC shall declare the results of the presidential election. The implication of this is that the role of the chairperson is exclusive in so far as the declaration of the presidential result is concerned. The chairperson does not single-handedly oversee the secretariat in the generation of form 34C, which contains the collated presidential election results. Additionally, the commissioners have a role under Article 86 of the constitution to ensure that results are accurately collated and announced by returning officers. In this case, and for argument’s sake, even if we equate the chairperson to the returning officers who announce the results, the commissioners will have an oversight role over him on how the national total results are arrived at. This oversight will ensure that the chairperson of the IEBC is accountable to the commission in the conduct of such an important role. The Court of Appeal in Al Ghurair Printing and Publishing LLC v Coalition for Reforms and Democracy and 2 others 2017 held that the commissioners formulate strategy and oversight IEBC employees and the commission’s functions, meaning that the tabulation of results in the forms was subject to the supervision of the commissioners.

To counter the above arguments on the commissioners’ involvement, some people have argued that commissioners are not required to oversee other elections before various returning officers announce them. This argument fails to consider the unique nature of the presidential election in our constitutional design. Of course, all polls are unique, and in substance, they are supposed to adhere to the same constitutional principles. However, due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee electoral integrity. Because of Kenya’s history in the presidential election, the constitution requires heightened oversight at all election levels, especially the final national tabulations.

The other counterargument offered is that the IEBC chairperson exercises the powers of a returning officer, which are individualized duties not subject to the plenary powers of the commission. To answer this claim, I make three arguments. First, the characterization of the role of the chairperson of the IEBC as a presidential returning officer does not mean that the commissioners are excluded from oversight of the national tallying of the presidential election. Put differently, the characterization should not affect examining the exact constitutional dynamics between commissioners. Thus, the commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.

Due to the controversies surrounding the presidential election, the constitution favours the involvement of commissioners as a collegial body to guarantee election integrity.

Secondly, while the role of the IEBC chairperson has a similarity with that of the returning officers of other elections, they are not the same. Under section 38 of the Election Act, the returning officer is responsible for conducting the election. Further, section 39(1A) of the Election Act provides that the returning officer is responsible for tallying, collating, and announcing the election results. In contrast, Article 138(3)(c) of the constitution provides that the responsibility of conducting the presidential election lies with the IEBC. While the chairperson of the IEBC exercises specific duties similar to those of IEBC returning officers, the constitution explicitly adopts the language of the IEBC as a body when addressing the specific electoral duties such as counting, verifying, and tabulating the presidential election. Contrasting Article 138(3)(c) of the constitution with Article 138(10)(a) of the constitution, which provides that the IEBC chairperson shall announce the presidential election, demonstrates that he exercises constricted powers. When it comes to the announcement of the results of the presidential election, Article 138 (10)(a) of the constitution drops the language of the commission and specifically identifies the chairperson as the individual with the role of declaring the aggregated results. Therefore, if the constitution wished the chairperson to singlehandedly exercise the role laid out in Article 138(3)(c) of the constitution, it would have included it in Article 138(10) of the constitution or in any other part that exclusively addresses the duties of the chairperson of IEBC.

Thirdly, the involvement of the chairperson of the IEBC in announcing the presidential election demonstrates a constitutional intention of engaging the highest levels of the commission in the national tabulations of results and declarations. The functions listed under Article 138 (3)(c) of the constitution, especially the national tabulation of results, involve the highest organs of the IEBC. The rationale for this involvement of the highest organs of the commission is not hard to discern, owing to the perennial controversy surrounding the presidential election in Kenya. The commissioners are selected with a unique obligation of securing democracy, and what other level epitomizes this democracy if not the presidential election? The stakes in the presidential elections are very high in Kenya, and it would be barmy not to involve the entire commission or vest the national level powers only in the chairperson of the IEBC. Granting the IEBC chairperson the exclusive role of the presidential election returning officer to the exclusion of the commissioners has no serious constitutional value. With regards to the manipulation of results, the presumption should be that the more transparency and involvement, the less likely it is for them to be changed.

Relevance of the Maina Kiai case 

The import of the case of Maina Kiai on the powers of the chairperson of the IEBC has caused considerable controversy in the country. Some have argued that the Kiai case addressed the issue of whether the chairperson can change the results declared at the polling station. Others have argued that Kiai’s statement on the powers of the IEBC chairperson was an obiter dictum. This part seeks to answer these questions and make the fourth argument why the commissioners of the IEBC should have been involved in the conduct of the presidential election.

The answer to the concerns raised regarding the relevance of Kiai on the discourse on the role of commissioners is both “yes” and “no” because the case touches on the role of the chairperson of the IEBC and yet not in the manner in which the four commissioners cite it. On the one hand, the Kiai decision is relevant to the extent that it indicates the scope and nature of the role of the chairperson of the IEBC. Although not exactly dealing with the current crisis, it elucidates the role of the chairperson of the IEBC in the conduct of the presidential election. On the other hand, the Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election. The implication is that when the court is discussing the limitation of the powers of the chairperson of the IEBC, it is doing so in the context of whether the chair can alter the results announced at the polling level. Nevertheless, the Kiai case sheds light on the nature of the powers of the chairperson of the IEBC. From Kiai’s case, it is clear that the chairperson exercises limited powers, and the constitution disfavours the chairperson from having exclusive powers in the presidential election other than the announcement of the collated results.

The commissioners have a role in oversighting the chairperson of the IEBC because he exercises the commission’s mandate.

The constitution disrelishes the concentration of powers on one individual in the conduct of an important election such as the presidential one. This is to ensure an effective discharge of the role of the IEBC as the safeguard of democracy and the right to self-determination. The nature of the independent commissions as having embedded checks and balances was articulated by the Supreme Court in the matter of the National Land Commission (2015). The court believed that checks and balances were the mainsprings of accountability. It stated that “the spirit and vision behind the separation of powers are that there be checks and balances and that no single person or institution should have a monopoly of all powers.”

The commissioners provide a heightened level of oversight and verification, which means that the chairperson cannot act unilaterally in the tabulation of forms 34A and 34B. It is illegitimate for the chairperson to conduct the presidential election in an exclusionary way, especially the generation of form 34C without the involvement of other commissioners. This conduct goes against the rationale of the independent commissions, which is to be the people’s watchdog for democracy. The Court of Appeal captured this position in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others (2017):

“To suggest that some law empowers the appellant’s Chairperson, as an individual, to correct, vary, confirm, alter, modify, or adjust the results electronically transmitted to the national tallying centre from the constituency tallying centres, is to donate an illegitimate power . . . We reiterate, as we conclude that there is no doubt from the architecture of the laws, we have considered that the people of Kenya did not intend to vest or concentrate such sweeping and boundless powers in one individual, the Chairperson of the appellant.” (Emphasis mine.)

In sum, while the Kiai case did not directly deal with the role of the commissioners and chairperson, the obiter indicates the limited powers of the IEBC chairperson. The court in Kiai’s case reinforced the need for a limited role of the chairperson of the IEBC in line with Article 138(10) (a) of the constitution. Thus, to ensure the IEBC’s accountability and checks and balances, it is constitutionally absurd to exclude commissioners from verifying the presidential election.

Failure to include the commissioners must substantially affect the election

Overturning an election should not be an easy task for any petitioner. This is because the election represents the people’s will, and the courts should be slow in overturning the people’s expressed will without clear and convincing evidence. There is also a presumption that the actions undertaken by government officials are legal unless they are impeached by evidence. The other concern is that elections are expensive, and for a developing country like Kenya, economic realities should be balanced with constitutional purity.

Globally, no election is perfect, so normal errors do not suffice to overturn an election. The core question is whether the errors or irregularities are substantial enough to overturn an election. Section 83 of the Election Act provides that non-compliance with the constitution and the law must substantially affect the election. In Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others (2017), the court held that trivial irregularities are not enough to overturn an election, and the error must have a substantial effect on the election. Further, the court noted that the election should be looked at as a whole to determine whether the constitution has been substantially breached.

The Kiai decision does not address the role of the commissioners versus the chairperson of the IEBC in the conduct of the presidential election.

The failure to involve commissioners in generating form 34C should not automatically invalidate the election. The constitution does not adopt a purist approach to the election. Instead, all mistakes must substantially affect the integrity of the election. A presidential election is a highly regulated process. If it is proved that the results in forms 34As and 34Bs were collated adequately at the national level, the non-involvement of the commissioner will not rise to the “substantial effect” level.

However, if it were to be demonstrated that the failure to include the commissioners led to unverified results, which have numerous mistakes, then the non-involvement would have substantially affected the election. The errors would not be characterized as “harmless errors” because they would have a tangible effect on the election’s credibility. The commission as a body would have failed to realize its mandate of conducting a free and fair election as enshrined in Article 86 (c) of the constitution. Thus, the commissioners’ oversight role in the conduct of the presidential election would be unconstitutionally impeded, leading to the unverifiable and inaccurate collation of results at the national level.

To conclude, a hasty and exclusive reading of Article 138(10)(a) of the constitution would lead to the erroneous conclusion that only the chairperson of the IEBC has the role of tallying, verifying, and declaring presidential results in forms 34A and 34B. However, a holistic reading of the constitution and jurisprudence on the structure and the functioning of the IEBC demonstrates that commissioners should be involved in generating forms 34C for the presidential election.

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Ian Mwiti Mathenge is an advocate of the High Court of Kenya. He holds a Master of Laws degree in constitutional law and climate change law from Harvard Law School in United States. He also holds a Master of Laws Degree (with distinction) from University of Pretoria in South Africa. Ian has a Bachelor of Laws Degree (First Class Honours) from Catholic University of Eastern Africa. His academic interests and practice areas are constitutional law, climate change, ESG and legal philosophy.

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Kericho County: Tea, Foods and Shifting Weather Patterns

Kericho County has experienced a gradual change in climatic conditions over the past three decades, with rainfall becoming irregular and unpredictable and drought more frequent. As a result, the region’s agricultural output is deteriorating.

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Kericho County: Tea, Foods and Shifting Weather Patterns

Climate change has become a central topic in recent conversations. And however much we may wish to bury our heads in the sand and act like the implications aren’t dire, we must acknowledge that the impact is profound. From the inconsistencies in the weather patterns and the rise in temperatures among many other indicators, we are now seeing the effects of neglecting our environment.

Kericho County lies within the bread basket zone that is Kenya’s Rift Valley, enjoying adequate rainfall, a cool climate, and fertile soils that have made it a food hub and a cog in the wheel of Kenya’s urban food supplies. According to the 2014 Agricultural Sector Development Support Programme (ASDSP), agriculture was the primary occupation and a direct and indirect source of livelihood for over 50 per cent of Kericho’s the residents.

However, a worrying trend highlighted by climate experts points to a gradual change in the region’s climatic conditions over the past three decades. With rainfall becoming irregular and unpredictable and drought more frequent, the region’s agricultural output is deteriorating.

A June 2020 report by the Kenya Meteorological Department, and a March 2020 report by the Kenya Agricultural and Livestock Research Organization (KALRO), show growing disparities in how the climatic shifts affect different regions. Kericho’s daytime temperatures have gone up by 11 per cent while night-time temperatures have increased by 24 per cent. The changes have brought with them their fair share of problems and challenges to the region. For instance, the county is now witnessing crop diseases that were previously unheard of. Moreover, failures and reduced yields are forcing farmers to look for alternatives to crops like tea and coffee that used to do well in the county.

An estimated 79 per cent of the land in Kericho is arable and a majority of residents live in the county’s outlying rural areas such as Cheborge, Soin, Londiani, Chepseon and Buret where farming thrives. The county has four agro-ecological zones: Upper Highlands, Lower Highlands, Upper Midlands, and Lower Midlands. The main crops farmed in the county include tea, coffee, maize, and beans. Potatoes, wheat, flowers, and pineapples are also grown in parts of the county while dairy farming also does well in the region. Data from Kericho’s Second Generation County Integrated Development Plan 2018- 2022 indicates that on-farm employment accounts for over 50 per cent of all the jobs in the county, while the Tea Agricultural Authority affirms that tea farming supports over 5 million people directly and indirectly nationally. Kericho, Bomet and Nandi counties produce 46 per cent of all the tea grown in Kenya, an indication of the significance of tea to Kericho’s economy.

Tea farming in Kericho involves both smallholder farmers and large-scale multinational companies such as Finlays, Kaisugu, and Unilever.  However, available reports show that incomes from the cash crop have been dwindling over the years, mainly due to the changing weather patterns that have contributed to low yields, while the crop is fetching less in the international markets. Some tea farmers in the region are now uprooting their tea plantations that have been adversely affected by prolonged dry spells, hailstorms, frost, and crop diseases, opting instead to venture into real estate, dairy farming, and farming of crops that can withstand the changing climate. While the shift is important in ensuring food security and sustainability of livelihoods, it also to a significant degree puts a dent in the county’s revenues owing to reduced tea exports.

Besides providing food to the country, agriculture also contributes to improved livelihoods. Managed well, it spurs economic growth, drives national short and long-term goals, and contributes to sustainable natural resource use and ecological balance within the farming communities. Agriculture also contributes significantly to household nutrition, savings, and county revenue, and is therefore a crucial sector in terms of investment and innovation. 

However, climate change is making it impossible to sustain high agricultural production in a county where residents rely on rain-fed agriculture for their livelihoods, with poor yields translating to loss of income for those who rely on agriculture both directly and indirectly.

Crop failure means reduced incomes for farmers and other key players in the production value-chain, leading to a lower purchasing power and lower yields for other businesses that rely on farming. Low purchasing power means that the farmer cannot purchase farm inputs, which leads to poor yields in subsequent seasons. Moreover, low purchasing power affects education in the county, as farmers become unable to keep their children in school, thereby increasing the number of dropouts in the region.

Climate change is making it impossible to sustain high agricultural production in a county where  residents rely on rain-fed agriculture for their livelihoods.

Forty-six-year-old Pauline Kimengich, a teacher in Kericho County, observed that there were cases of students in the region opting for early marriage after their parents were unable to raise money for their high school education, a trend which threatens the literacy levels of the county. Her sentiments are echoed by Enoch Tanui, 52, a small-scale farmer who admits to having his children help him out on the family farm because of lack of school fees.

According to the Agricultural Sector Development Support Programme (ASDSP), most of those involved in the various agricultural activities in the region are the youth and women, although the men do participate in information-sharing and decision-making. For instance, most of the workers in the tea farms are women and youth who work primarily as tea pickers. Given the role a woman plays in the community, loss of income due to dwindling fortunes in the agricultural sector adversely affects the running of households in the region.

Moreover, loss of income forces a change in the eating habits of families. Changes in eating habits pose nutritional challenges to the family which affect, most notably, children’s health, and lead to early marriages and increased levels of crime. According to the National Crime Research Centre’s 2018 report, Kericho’s recorded rate of theft stood at 42 per cent against a national rate of 40.4 per cent. This can be attributed to the loss of income as a result of changes in climatic conditions, as a majority of the county dwellers depend on agriculture. Moreover, the county also recorded high rates of cattle rustling (34.3 per cent), burglary and break-ins (21 per cent) and theft of farm produce (15.5 per cent) which can also be linked to the dwindling fortunes in agriculture.

The changes in farming techniques and the resulting challenges and strain on the food system are a wake-up call for all interested parties to act. When a county such as Kericho, which feeds our national forex basket through exports, feels the impact of climatic changes to such a great extent, one can assume that other cash-crop farming counties have not been spared either.

Climatic changes that lead to prolonged droughts and low agricultural yields mean that the government must invest heavily in relief programmes and other measures to mitigate their effects. This may imply the government diverting resources meant for development towards curbing the effects of climate change. Through the Ministry of Agriculture, Livestock, and Fisheries (MoALF) and with funding from the World Bank’s International Development Agency, the Kenyan government is implementing the Kenya Climate-Smart Agriculture Project (KCSAP) to build resilience against climate change and increase agricultural productivity.

By establishing Climate Risk Profiles, county governments are made aware of the climate change risks and opportunities in their counties and how to best incorporate these perspectives in their planning and county development projects. The National Climate Change Response Strategy (NCCRS), developed in 2010, recognizes the impact of climate change on a nation’s development. The formation of NCCRS birthed the National Climate Change Action Plan (NCCAP) in 2012, whose core mandate is to provide an implementation strategy for the proposals of the NCCRS. These two bodies have been fundamental to how Kenya responds to climate change and the steps to be taken towards achieving meaningful change.

Climatic changes that lead to prolonged droughts and low agricultural yields mean that the government must invest heavily in relief programmes and other measures to combat the effects.

The creation of county chapters of NCCAP that can work closely with the agriculture dockets in the counties to identify the challenges on the ground would be ideal in combating the effects of climate change as opposed to having an umbrella view of the situation. Farmers at the grassroots need to feel the impact of these programmes and benefit from the extension services if the country is to witness a meaningful impact.

The risks have led both national and international agencies to take action to fix the problem. With the world warming faster than at any time in recorded history, the United Nations Environmental Programme (UNEP) 2020 Emissions Gap Report proposed a solution across six sectors—energy, industry, agriculture, ecological, transport and cities—that member states can adopt. In agriculture, it proposes reducing wastage, adopting more sustainable diets, safe agricultural practices, and cutting back on emissions.

In the case of Kericho County, while the government is encouraging diversification, crops that can do well in the region but are only grown on a small scale need to be considered. For instance, local vegetables, chicken-rearing, and other agricultural produce should be produced on a large scale to reduce the over-reliance on one crop. This will ensure that people in the county have a source of livelihood even when one crop fails. Further, agricultural extension services, especially in the rural areas, need to be given a shot in the arm to ensure that farmers employ safer farming methods and are enlightened on the best ways to maximize yields while being mindful of their environment.

Rivers in Kericho such as Sambula, Chebilat and Tuyiobei have been drying up, reducing the water available for livestock and farming. Encouraging agroforestry, reforestation and afforestation will not only increase the diminishing forest cover but will also ensure water catchment areas are replenished.

Article 11 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and Article 25 of the Universal Declaration on Human Rights recognize access to food as a legal right, as does Article 43 of the Constitution of Kenya. The right to food gives rise to three obligations by governments: the obligation to respect this right by not taking measures that deprive people the right to food; the obligation to protect this right by enforcing laws that prevent third parties from infringing on others’ right to food; and the obligation to fulfil this right by facilitating and providing for the empowerment of people to feed themselves.

The reduction in the yields of different crops imperils the right of all Kenyans to live a dignified life, free from hunger and malnourishment. Poor crop yields further reduce the purchasing power of farmers, which has a ripple effect on other sectors that are dependent on agriculture. The effects of climate change and poor agricultural yields also mean that food suppliers have to import or seek alternatives to meet demand in the market. This leads to an increase in rural-urban migration, which creates congestion in the urban centres and puts a strain on the available resources and opportunities in the urban settings. The failure of the tea crop, specifically, means that the nation loses export revenues, shifting the equilibrium in the balance of trade.

The reduction in the yields of different crops imperils the right of all Kenyans to live a dignified life, free from hunger and malnourishment.

Changes in climate also mean that those farmers who previously relied on tea will be forced to look for alternative means of livelihood. In an economy where creation of employment is low, job losses in the agricultural sector aggravate the dire situation in the already flooded job market. Lack of employment leads to crime as those formerly employed in the agricultural sector strive to fend for their families.

These changes underline the importance of environment conservation and working towards combating climate change. Good weather leads to flourishing agriculture. Investing in agriculture opens up employment opportunities in the farms and other industries that depend on agriculture, which reduces unemployment and brings down crime rates. Employment opportunities improve the purchasing power of citizens, enabling them to make informed and better choices in nutrition, education and other areas which translates to improved livelihoods and a more prosperous nation.

This article is part of The Elephant Food Edition Series done in collaboration with Route to Food Initiative (RTFI). Views expressed in the article are not necessarily those of the RTFI.

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Stealthy, Surreptitious Second Coming of Western Colonialism to Africa

The ludicrous proposal that every African country should put 30 per cent of its land under “protected areas” by the year 2030 to conserve biodiversity is mere window-dressing to enable Western capitalism to annex over 80 per cent of Africa’s landmass.

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Stealthy, Surreptitious Second Coming of Western Colonialism to Africa

In November 1884, European powers (represented by elderly white men) met in Berlin presuming to divide amongst themselves the large “cake” that was the African continent. It was a looting mission that later morphed into a political exercise, and the rest as they say, is history. An interesting footnote is that the conference lasted a whole three months until February 1885, indicating that the discussions must have been quite protracted, and probably interspersed with copious amounts of food, drink and debauchery (a feature of conferences that hasn’t changed much, over a century later!)

Fast forward to 21st Century Africa. The much-touted Africa Protected Areas Congress (APAC2022) has been held in Kigali, Rwanda. Myself and others have already written and spoken extensively about how “Protected Areas” are actually “white spaces” in a majority black continent. During the colonial era, they were literally spaces set aside for the recreation of white people. In the post-independence era, the spectrum of users now includes black people, but they are still lily-white in terms of the paranoid, prejudiced, violent and intellectually stunted manner of their management.

This mentality is the “white” identity of conservation practice in Africa today. The practitioners have made many attempts to mask this identity, by creating strange mongrels referred to as “conservancies” of various kinds, but the concept is the same: annex land from indigenous African people who use it for their livelihoods and set it aside for the self-actualization of foreign elites.

Africa is fabulously wealthy in natural resources, but we must always remember that the value of the visible above ground resources is a mere fraction of what lies underneath. Sadly, the spectacular beauty of our wildlife, forests and rangelands makes them the perfect window-dressing for the cruel schemes laid out against us as a continent. The brutality of slavery and colonialism showed us the cruelty that exists within the matrix of Western capitalism. Laws and regulations have obviously been written in the last 100 years, but it we must remember that colonialism was a capitalist enterprise and it would be naïve in the extreme to imagine that capitalism had somehow lost its cruelty.

Africa is fabulously wealthy in natural resources, but we must always remember that the value of the visible above ground resources is a mere fraction of what lies underneath

The new dispensation only required that they apply new and more sophisticated methods and voila! Enter the climate change/carbon trade/conservation cult. It’s a perfect vehicle because it is pervasive, running in a contiguous vein through corporations, governments, civil society and even global bodies like the UN. Cult leaders (read: conservation “icons” like Goodall, Attenborough, et. al) have access to heads of state. Their greatest coup has been the so-called “30×30” plan, which is the ludicrous proposal that every country should put 30 per cent of their land under “protected areas” by the year 2030 to conserve biodiversity.

The “evil beauty” of this plan is that it has to be implemented in the global south, because there is no significant biodiversity gain to be made from expanding Regent’s Park in London or Central Park in Manhattan by 30 per cent. Everything is primed and ready to go. The adoption of this plan by the UN and governments smoothens out all the necessary regulatory hurdles, including by way of tax breaks in both the source and client states.

Once that is done, now all you need is a major conference like APAC2022 where you can blow all the dog-whistles against indigenous people and give all the apocalyptic alarmist statements about Africa (with no reference to the west where the real environmental destruction has been for the last 100 years). First, you pick a country like Rwanda that has formally decided that their greatest role in Africa will be as a European foothold on the continent (remember the UK refugees’ caper). Then you convene conservation organizations, practitioners, their corporate funders and governmental enablers. After a few days of lip service, drink and debauchery, you come up with a closing statement that includes a huge carrot and little substance and everybody leaves, struggling with the flatulence induced by excitement over the impending windfall.

One of the strangest parts of this excitement is that very little of the largesse actually finds its way to indigenous Africans. Most of it goes to expatriates from the donor countries, while Africans at all levels from heads of state to village elders are swayed with breadcrumbs in the form of business class air tickets, accommodation in luxury hotels, alcohol and per diem payments to attend meetings where they simply say “yes” to everything. The key point to note about this so-called conservation fund is that it proposes a “network” of a total of 8,600 conservation areas covering a total area of 26 million square kilometres. This is a startling figure, given that it is an area more than twice the size of the US, and represents more than 80 per cent of Africa’s land mass. How do these people subvert sovereign structures with such consummate ease? A simple tool known as “transboundary conservation areas”, conservation that purports to manage contiguous habitats across international boundaries.

We then find ourselves in a strange situation where non-state actors enjoy powers unheard of in state agencies, with untrammelled reach across international boundaries. An example of this power is the Big Life Foundation that operates across the Kenya-Tanzania border, enjoying access that the Kenya Wildlife Service (KWS) and Tanzania National Parks (TANAPA) cannot have. This is the nature of the new colonies. They fly under the radar by not following known boundaries, and within countries they exist as conservancies that don’t exist in law, don’t pay taxes and don’t register lands in their names.

We then find ourselves in a strange situation where non-state actors enjoy powers unheard of in state agencies, with untrammelled reach across international boundaries.

As the host of the conference, Rwanda has been the first signatory on this project and is taking leadership, asking other African countries to sign. With all due respect to that great nation, I don’t think that the owner of 0.0065 per cent of the protected areas in question should assume leadership of the same. This however reveals another well-practiced annexation technique of the conservation organizations—eliminating the individual opinions of nations and people by lumping them together into “projects” and “communities”. The colonists are here, again to stake a claim on our birthright. The other tried and tested technique is the relentless drive to evaluate our lands in terms of this strange thing they refer to as “carbon”.

What most Africans don’t realize about “carbon” credits, sequestration, sinks, etc., is that it is a tool for eliminating the natives from any discussions or calculations about the said land. They aren’t the fat old white men we see in the artists’ impressions of the Berlin conference. Many of them look like us, speak our languages, many are young, and many are women too, and they claim to be saviours. The methods and faces are certainly new, but the avarice and corruption remains unchanged, 137 years later. Despite myself, I must grudgingly acknowledge the historical correctness of holding the conference in Rwanda, part of what used to be German East Africa. Aluta Continua.

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Beyond Culture Shock: African and Western Values Revisited

The aspiration for common ground and common values is merely a delusion of those of military might. The less powerful retain a great deal of agency to reject outright those practices and values they find either unsuitable to their contexts or completely repugnant to their traditions.

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Beyond Culture Shock: African and Western Values Revisited

Lately, that old conversation on the contest between African and Euro-American beliefs and values has found renewed energy. So, as Rwandan President Paul Kagame would sternly ask recently at the margins of the CHOGM meeting in Kigali, “Who defines those values?”

African and Western values are still seen as problematically and diametrically opposed to each other despite co-existing in a global village.  “Why is that so?” European journalists, academics and diplomats ask themselves after working for five years in an African capital, and after seeing no difference between elite Nairobi and elite London. Why should we not have the same sensibilities? Consider the ways in which Nairobians and Londoners make their livelihoods, which is by renting out their labour for eight to twelve hours every day. Even the anti-capitalism activists in Nairobi or Kigali sound like Jeremy Corbyn or Bernie Sanders! Why then should we have different values regarding governance, animal rights, democracy or women’s rights?

This discussion that underlines an aspiration for common ground—some form of universality—on, among other things, what it means to be human, and the question of governance, specifically, electoral democracy as juxtaposed with growing authoritarianism, ironically and problematically still has the support of sections of the African elite.

It is curious that this conversation found new energy with Belgium’s return of a tooth belonging to CIA-murdered African giant, Patrice Lumumba, and with the holding of the CHOGM meeting in Kagame’s Rwanda, who will be running for another term in office.  “How does Kagame continue like that?” the democracy enthusiast asks. “We returned the tooth; that matter should be settled or not?” another Eurocentric die-hard adds. There was also the small inconvenient issue of the Melilla massacre on the Morocco-Spanish border and the plight of black folks in Ukraine. But who cares? Why are African political actors and sections of their elite still indifferent and slower to embrace the democratic ethic—as British democracy professor Nic Cheeseman wonders—and perhaps also to embrace other beliefs and values as espoused in Europe and North America?

Worth noting—and terribly problematic—is that there is a great deal of pressure on African political actors to exhibit inexplicable civility and loyalty especially as regards constitutionalism (as if constitutionally extending their stay in power isn’t a form of loyalty itself), and in the treatment of opposition groups and critics (even while journalist Julian Assange has been incarcerated for years and is facing extradition to the United States where he potentially faces 175 years of imprisonment for exposing the war crimes of Western modernities. Notice also that this conversation continues in a colonial-racialised paradigm and hierarchization where the African cultural and political actors have to constantly explain themselves to the Western world from a point of disadvantage—because theirs is the primordial position (a position that President Kagame touches in his interview cited above). I am not a defender of any abhorrent African political actors (whose actions, in all fairness, and in a more theoretically grounded sense, are not unique to them, but are, rather, a product of power). But I am concerned about the language of values and rights and the apparent insinuations of “indifference or slowness” on the part of African communities and actors to appreciate the universal values of democracy and human rights as understood in Western discourse.

First, despite being open to cross-cutting influences from elsewhere, it is difficult to achieve common ground on performative practices since cultures tend to be geographically contained. Talal Asad has told us that even Islam, which has a universally appreciated text, manifests differently in different geographic and time spaces.  It is my contention that the conclusion of this beauty contest of cultures and traditions—achieving common understanding of their inherent differences—is dependent, ironically, on non-cultural markers, specifically, power, power being the term for Western military and economic advantage.  It is not the superiority of ethical-cultural-value systems, and nor is it the absence of similar handicaps and vulnerabilities on either side of the Atlantic, but rather power and politics. It is the power relation embedded in the African adage about the hunter (more privileged) writing the story of the hunt to their advantage, before the animal (the less powerful) learns to tell their own story.

It is difficult to achieve common ground on performative practices since cultures tend to be geographically contained.

This contest over African and Western values is an old one. West African historians Ade Ajayi and Cheikh Anta Diop were among its first African pugilists. East African interlocutors including, more famously, Okot p’Bitek, Ngugi wa Thiongo, and Ali Mazrui participated in this conversation. Okot p’Bitek accused African actors of being fully imbued with the “colonialists’ practices” (exemplified by such accoutrements as the wigs won by judges to ape Europeans) and thus needing to “decolonise their minds”, as Ngugi would famously put it.  Mazrui’s essay, Islamic and Western Values, which tackled topics such as press freedom and democracy, concluded that the difference between Europe and the Islamic world was a difference of method, but the ills of power on either side of the aisle were the same.

Although I find it endlessly productive for African activists to constantly remind themselves and their European/American interlocutors of the words of Africa’s early intellectuals—on the non-uniqueness of the crimes of African political actors or the absolute goodness and uniqueness of African cultural traditions as understood on their terms—my intention is not to rehash the words of those intellectual giants. My intention is rather modest. Mine is a traveller’s tale of a journey into the lands of our “former” colonisers.  My people in Buganda say that “travelling is seeing, and returning is telling”. However, in telling this traveller’s tale, I want it to be read within the problematic frame of culture talk—or of a beauty contest between cultures.

For the last couple of years, I have been observing our former colonisers, and have become obsessed with turning the gaze on our beloved friends. How would a native from the African continent, from deep in the countryside, supposedly “untouched” by colonialist modernity, react upon encounter with some European—still present or recently dying—cultural/traditional practice? Because, frankly, the idea of cultural cross-fertilisation and integration, while it presents itself as pick-and-choose (where one aspect is chosen over another), it also presents itself as a package, as an entire system or civilisation. Here mediations that are understood as political (such as modes of governance or economics such as capitalism or the peasantry) intimately tie in with that which is viewed as essentially cultural (such as family, marriage, sexuality, kinship or inheritance).  As I have argued before, our European friends have toned this down as “cultural shock”, preparing the native’s mind for the horror they might encounter upon reaching Europe. It is some sort of challenge to understand, learn and perhaps embrace. But as a native I am stubbornly refusing to accept this as simply cultural shock.

Intercourse and kinship with animals

A few years ago in Berlin, I encountered a group of activists who were inconsolable about being denied their right to make love to animals by the German state.  “Why seek to moralize our country?” they angrily asked.  I need to start this story from the beginning:  Before 2012, our former colonisers in Germany—the country which hosted the 1884 Berlin Conference—had the legally sanctioned the right to make love to animals. This is understood as being in their blood; not that they lacked other outlets for sexual release, but that this was their natural inclination. Yes, it was normal to enter your bed, visit a pig stye, a kraal or a kennel and lower your pants and penetrate or be penetrated by the animal of your heart’s desire. It was only after 2012 that animal rights activists made a breakthrough, convincing co-nationals that it was unnatural for humans to find pleasure in mating with animals. The Bundestag, the lower house of the German parliament, finally passed the law banning intercourse with animals. Dear Africans, this was in 2012.

Dear reader, I am kidding you not, after this 2012 ban—just ten years ago—concerned Germans petitioned the courts to remove the ban, arguing that they were naturally attracted to animals.  But in 2016, the ban was upheld much to the celebration of many Germans.  However, the agitation for this right to be restored continues to this day. Please note that around this time, Norway, and Sweden had also banned the practice, and a British newspaper, The Independent, reported, that this had led “to a rise in the underground animal sex tourism in Denmark”. People interested in sex with animals—Zoophiles, so they are called—made trips to Denmark, which was yet to ban the practice, to satisfy their desires.

Two years after Germany, Denmark was conflicted on the same issue. While animal rights activists seemed to have made a breakthrough towards having the practice proscribed, the 12-strong Animal Ethics Committee of Denmark was opposed to banning the practice. The president of the Animal Ethics Committee, Bengt Holst, argued that the ban was unnecessary since the Animal Welfare Act, which was already in place, advocated for the protection of animals as it prohibited “animal suffering, pain, distress or lasting harm”.  This meant that you were free to make love to the animal of your choice as long as you didn’t cause it “suffering, pain, distress and lasting harm”.  For Bengt Holst, seeking to “moralise” the issue of making love to animals was not in good taste.

Great Britain—the world’s largest coloniser—only banned the practice in 2003 with the Sexual Offences Act. Some of its clauses are captured in this article which publishes allegations that former UK prime minister David Cameron once inserted his manhood in a dead animal while still at university in Oxford. Quoting a biography that is rightly described as controversial, the newspaper wrote that, “the Prime Minister inserted a “private part of his anatomy” into a “dead pig’s head” while at Oxford University—an act that was allegedly photographed.”  So, before 2003, our friends in the UK would have liked the African primitive to understand their reaction to the idea of mating with animals as simply cultural shock.

This meant that you were free to make love to the animal of your choice as long as you didn’t cause it “suffering, pain, distress and lasting harm”.

Our new colonising powers in the United States still have several states where mating with animals is permissible despite campaigns to ban the practice. By 2016, bestiality was still acceptable pleasure in Texas, Hawaii, Kentucky, Virginia, Nevada, New Jersey, New Mexico, Ohio, Vermont, West Virginia, Montana, Wyoming and the District of Columbia, and New Hampshire. In a nicely researched article, British psychologist, Dr Mark Griffiths reveals that, “many zoophiles believe that in years to come, their sexual preference will be seen as no different to being gay or straight”. And while it is difficult to ascertain it, many zoophiles believe animals have given them some form of consent.

My intention is not to add to the voice of anti-bestiality campaigners in Europe or the United States, or to ridicule lovers of the practice. Not at all. But if I took the vantage point of an African anthropologist—of the colonial type—writing my tales about Europe and North America (with titles such as Into the Heart of Dark Europe; Flame Trees of Berlin, the Orients of the West, etcetera) for travellers, and students on the African continent, I would tell them about the inexplicable backwardness of the people in the West. I would challenge them to be careful about these animal-loving barbarians of Europe and North America. African readers would be appalled by the idea of human beings sleeping with animals, and lobbying and fighting to keep the right to do so.  Part of my intention would be to inspire them to travel to these lands and perhaps seek to civilise these people, forcefully if need be, and if they can, to also take their lands. Because the culturally backward have no right to property and neither are they able to govern themselves.

Before 2003, our friends in the UK would have liked the African primitive to understand their reaction to the idea of mating with animals as simply cultural shock.

Perhaps my larger contention is this: while cross-fertilisation is true about cultures and traditions, and oftentimes, and that, for their survival, less powerful communities/traditions are conscripted to the dictates of the most hegemonic power, the aspiration for common ground is merely a delusion of the militarily powerful. There are dislikeable, almost disgusting things on either side of the aisle, and cross-fertilisation ought to be understood as slower and fluid. While conscripts are often cast in an inferior position, they retain a great deal of agency within the constraining limits. They will not only remodel, repackage, or refashion that which they have to adopt from the hegemony, they will also often reject outright those practices and values they find either unsuitable to their contexts or completely repugnant to their traditions. Thus, journalistic and academic promoters of implied notions of “common ground” and “common values” from the Western world to their colonised conscripts ought to beware of these nuances and dynamics of time, fluidity, and refashioning.

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