NLM June PDF

REVIEW: Nelson Havi on why CJ BLACK LETTER LAW: Ruling on
Koome must withdraw 'ill-advised' disclosure of secret offers a glimpse

presidential petition gag rules into the nature of Chinese lending
The Nairobi Law Monthly

Vol 13 • Issue No. 3 | June 2022 Ksh350 • Tsh5,570 • Ush10,450
A POISONED CHALICE:
UHURU'S LEGACY
As his presidency winds down on the back of impressive
infrastructure achievements, it cannot escape notice that
Kenya’s socio-political environment is testier than ever.
2 • June 2022
Contents June 2022
Vol 13 • Issue 3
Publisher:
Ahmednasir Abdullahi
Managing Editor:
Kevin Motaroki
Cover Story Inside Regulars
Creative Design:
Denet Odhiambo
Staff Writers
2 | LEADER
Antony Mutunga
4 | OPENING STATEMENT
A posioned
Shadrack Muyesu
David Onjili 6 | BRIEFING
Victor Adar
Denis Ndiritu chalice:
Contributors: Uhuru's 6-8 | NEWS
Five groups ousted from UN-backed
Prof John Harbeson
Dr Tom Odhiambo legacy ‘Responsible Investment’ list
America’s inflection point: four key
P.28
Barrack Muluka
things Africa must watch for
Kibe Mungai
Joel Okwemba
Tioko Ekiru 10 | REVIEW
Newton Arori
Special Investigative For replicating UhuRuto, UhuRao
will similarly implode
Department:
Payton Mathau China, the US and their coming
conflict
Business Executive:
Five things John Lewis taught us
Roseline Okayo
about getting in “good trouble”
Photography:
Victor Adar 14 | SPECIAL REPORT
NLM Library
Courtesy Maraga’s bombshell: why Uhuru
Administration: should disregard CJ’s counsel
Samah Hassan Cash transfers can help refugees,
Fatma Yusuf
Opening Power but they also carry risks. Insights
from Kenya
Printing:
Emirates Printing Press, LLC, Statement: relations Has the global refugee crisis
contributed to an upsurge in violent
Dubai, UAE
extremism?
Distribution: How US abortion gag rule will affect
The Newspoint – TNP health services in Kenya
44 | BUSINESS
Africa has a growing food security
problem: why it can’t be fixed
without proper data
African Banks under Pressure to
Accelerate Digital Transformation
How UhuRuto 56 | BLACK LETTER LAW

beef will define
future power Superannuation law: A matter of
The Nairobi Law Monthly may not be copied The State of the relations interpretation
African Nation-
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www.nairobilawmonthly.com The Nairobi Law Monthly

June 2022 • 1
Editorial To criticize judges and speak against
judicial overreach is not to scandalize
courts. The judiciary is a governance
institution, and an institution of
governance must needs be open to
public scrutiny and criticism.
Courts must be subject to mistake to suppose that the Supreme

Court is either honoured or helped by
public scrutiny, criticism

being spoken of as beyond criticism. On
the contrary, the life and character of its
justices should be the objects of constant
watchfulness by all, and its judgments
subject to the freest criticism.”
T
Harlan F. Stone, the 12th Chief Justice of
here are many duties impli- the United States, where we so often look
cated in the concept of public to for inspiration and precedent, said, “I
responsibility. Members of have no patience with the complaint that
the Bar, by virtue of their criticism of judicial action involves any
role owe a responsibility to society, as lack of respect for the courts. When the
part of their role in improving the legal courts deal, as ours do, with great public
system. Lawyers are more than mere questions, the only protection against
citizens: they are officers of the court unwise decisions, and even judicial
and champions of justice. They owe usurpation, is careful scrutiny of their
responsibility to their clients, the legal action and fearless comment upon it.”
profession and system, and to society. And as Christopher Cross argues in
One of the most duty a lawyer owes his dissertation ‘Disrespect in the Court:
to society is to criticize the courts. By A Judge’s Perspective’ published in the
virtue of their work, lawyers are at a Denver Law Review:
vantage point to make informed criticism Without question, the judiciary is
of the courts and their decisions; this is accountable to the public, just as any
not just a responsibility and right – it is other public institution is accountable
an ethical obligation. Lawyers stand in to the public. If judges are arbitrary,
the unique position of spotting defects if their behaviour is improper, if their
in the justice system and speaking out Publicly responding to decisions are not well-grounded in con-
to prompt requisite action. criticism only serves to take stitutional and legal principles, if their
It is not the place of judges to respond away from the dignity of reasoning is faulty, the bar is in the best
to criticism against them, at any rate the court, and speaks of an position to observe and evaluate the
because such judicial response is a unwillingness to keep the open deficiencies, to inform the public and
disservice to public interest and casts mind essential to executing to suggest corrections. When lawyers
aspersions to their hallowed role – the judicial role. engage in criticism of the courts for
exception being when malicious and constructive and positive purposes,
false statements are made against judg- grounded in good faith and reason, the
es, or when there is manifestly disruptive judiciary is strengthened, the rule of law
or contemptuous acts in court, which decisions or judges for fear of reprisal is reinforced and the public duty of the
must never be countenanced. Publicly antagonisms. But the general public often bar is performed.
responding to criticism only serves to looks up to lawyers to condemn legal and To criticize judges and speak against
take away from the dignity of the court, judicial malpractices or tendencies that judicial overreach is not to scandalize
and speaks of an unwillingness to keep they see departing from best practice courts. The judiciary is a governance
the open mind essential to executing or traditions. And for judges to speak institution, and an institution of gov-
judicial role. against what it should encourage and ernance must needs be open to public
Traditionally, there has been is a re- protect is to fail in its role. scrutiny and criticism. (
luctance by the bar to criticize specific Justice David Brewer said, “It is a

2 • June 2022
as
Idling fees
REPORT: graft - focus on
SPECIAL ontiEXCLUSIVE
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RY? the new fr yUhuru’s Q P.31
e & KINTERVIEWS WITH DCI KINOTI AND DPP HAJI:
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PUNISHINt’s budget coup NSSF, Ken threats to the
Kenyan state and the honour of public office
nthly
Parliamen omens P.12
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0715Monthly
061 658
June 2022 • 3
Opening
Statement
with Prof John Harbeson
REPORT
The State of the

African Nation-State
F
ew research findings could be The report identifies many significant
more topically and critically dimensions of both consensus and polar-
important than any bearing on ity, including several that bear directly
the question of to what extent on the varied resilient and/or fragile
a country’s peoples consider themselves condition of African states themselves.
bound together as one political commu- Specifically, this report, combined, with
nity, i.e., the nation-state in which they data from earlier Afrobarometer’s sixth
hold their citizenship. Available evidence and seventh-round surveys, respectively
has surfaced of severe, even dangerous, in 2011-13 and 2016-18, present evidence
polarization in so many countries around both of sustained commitments by citi-
the globe. Further, at least a steady in- zens to membership in their respective
cremental decline in democratic global nation-states, arbitrarily configured as
democratic practice over the last fifteen they have always been, but also disturb-
years, including in sub-Saharan Africa, ing indications that these commitments
is doubly worrisome. The incremental have been under significant strain over
resurgence of authoritarian political at least the past decade. For Kenya, in
behaviour and democratic decline it particular, the new and the older reports
reflects is unwelcome. are significant because they span the
But more deeply worrisome is the fact decade since the country’s passage
that the viability of democracy in a coun- of its model and very hard-won 2010
try requires that competitors for power democratic Constitution.
also share consensus on fundamental One of the most telling measures of
rules of the game for their competi- African citizens’ shared commitment to
tion, thereby signalling their consent continued membership in their nation-
to sharing membership in the states in state political communities after six Afrobarometer staff during the event.
which they find themselves. The fragil- decades of independence, in most cases,
ity of most sub-Saharan African states is the extent to which they feel complete,
warns inter alia that the weakness of that or at least predominant, commitment to ally cultivated, not just presumed. I think
consensus and, therefore, the potential that community as distinct from residual it fair to credit nationalist movements
for serious polarization on divisive issues of predominant commitment to their for independence from colonial rule
threatens to tear dangerously at this pre-independence, pre-colonial ethnic with giving those ethnic communities
necessary residual consensus. communities. A consequence of the reasons to be governed together in the
So, it is particularly timely that Af- arbitrariness of colonially established independent states they established. As
robarometer has just published Ties that country political boundaries has been an aside, Ethiopia is of particular inter-
Bind: Evidence of Unity and Division in that consent of pre-colonial ethnic com- est in this regard because, as a former
34 African Countries based on its eighth munities, or parts of those communities, empire, it never experienced any such
round of citizen surveys in 2019-21 in 34 to share membership in those arbitrarily integrating political movement, raising
African countries. configured states has had to be continu- the stakes for the country’s future in its

4 • June 2022
The viability of democracy
in a country requires that
competitors for power
also share consensus on
fundamental rules of the game
for their competition.
the 2016-18 survey and only 39 percent

in 2019-21. In the new report, only four
countries reported total or predominant
majority assent to membership in their
nation-state communities as distinct
from their residual ethnic affiliations:
Guinea, Tanzania, Niger, and, for all
its decade-long disarray, Mali (which
actually recovered its majority after
losing it in the 2016-18 survey). Along
with Togo, Kenya lost that majority in
2019-21, dropping to 38 percent from
scores of 54 percent in 2016-18 and
56 percent in 2011-13. By contrast,13
countries claimed majorities in 2011-13.
Participating only in 2019-21, Ethiopia
reported only 29 percent.
Lurking in these findings is an impor-
tant, seldom-addressed issue of politi-
cal theory. In common usage, the state
is treated as though it is synonymous
with government and, thereby, with
the instruments of coercion, following
early 20th Century German philosopher
Max Weber’s definition: a monopoly of
coercive power within a compulsory
territorially defined political commu-
nity. This definition fits poorly with
democracy’s roots in late 17th and18th
Century Lockean social contract theory,
which establishes the state as a volun-
tary social compact based on which
government is instituted by a further
contract. The Weberian definition would
be derivative, coming into being only af-
ter the state is established on Lockean
present circumstances. foundations.
A major finding of the new Afrobarom- The Lockean definition supplies a
Less than a majority of citizens eter report is that less than a majority of more useful basis than the Weberian
in 27 countries participating citizens in 27 countries participating in all definition for assessing the significance
in all three surveys felt total or three surveys felt total or predominant of dimensions of unity and divisiveness
predominant commitment to commitment to the nation-state commu- outlined in the Afrobarometer report for
the nation-state communities nities in which they find themselves. In the political health of the African state. (
in which they find themselves. the 2011-13 survey in these 27 countries, — Prof Harbeson is a professor of Political
47% of citizens felt total or predominant Science Emeritus and a professorial lecturer
commitment to the national community. for the African Studies Program, Johns
That number slipped to 42 percent in Hopkins University.

June 2022 • 5
Briefing NEWS
SUPREME COURT -VS- TWEETING LAWYERS
NEWS • PORTRAIT •
OPINION • NEWS OF Bar take on Chief
THE WORLD • THE BIG
INTERVIEW Justice Koome over
'outrageous' rules
T
he caution by Chief bans predicting the outcome of
Justice Martha Koome the petition until judgment is
during the BBI judg- delivered. Sub-rule 5 declares
ment against the use of social that a breach of the rule shall
media by Advocates appearing amount to contempt of court.
before the Supreme Court was, The amendment has cause
after all, not an idle threat. an uproar among a section of
On May 05, 2022, the CJ fol- Advocates, and this saw the
lowed through her warning President of the Law Society
with new rules ostensibly made schedule an urgent meeting
to eliminate or minimize what with the CJ to deliberate on
the court views as unethical the matter.
behavior. Through Legal Notice
No.79 of 2022, the CJ amended Rule unconstitutional
rule 18 of the Supreme Court Many people have ques-
(Presidential Election Petition) tioned the place of sub judice
Rules, 2017 by inserting sub- rule within a transformative
Analysis: rules 4 and 5. Sub-rule 4 seeks

to codify the common law rule
constitution such as the one
we have. In fact, the new rules
How Kenya’s Judiciary can of Sub judice. have already been challenged
break the cycle of electoral In plain English sub judice
roughly means “still under ju-
in the constitutional court.
In a petition filed in the High
violence P.14 dicial consideration.” It is an Court, Lawyer Omwanza
archaic rule that emerged in Ombati argues that the rules
medieval England to shield are unconstitutional, vague,
juries from extra-judicial com- unreasonable, irrational and
ments that were likely to sway unlawful.
their verdict. The rule demands But the CJ also appears de-
that any conduct that unjusti- termined to rein in what she
REVIEW fiably interferes with matters sees as an unacceptable trend
Why second liberation that are in court for judicial of disparaging courts on social
determination is punishable media while cases are ongoing.
credentials may not as criminal contempt. It pro- Those presumably targeted by
work P.16 hibits public commentary or the rules appear to hold strong
discussion on the merits of views on freedom of expres-
such matters. sion, conscience, belief and
The newly introduced sub- opinion and appear unlikely to
SPECIAL REPORT rule 4 bars litigants and their yield either. So, we anticipate
Currency sanctions on advocates from expressing a grueling battle between the
Russia could disrupt their opinion on merit or de- CJ and her perceived targets.
trade with Africa. P.18 merit of the petition once hear-
ing has started. Sub-rule 4 also
But what is the constitu-
tional validity of the impugned

6 • June 2022
FOLLOW US:
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Twitter: @nairobilawmonthly
LSK President Eric Theuri.

ELECTIONS
No Internet
shutdown during
polls, government
assures
rules as a matter of law? Do the outweighs its advantage.

T
of
he Principal Secretary in
the State Department
Broadcasting and
ensuring a peaceful election. The
Media Council of Kenya, a parastatal
under her department, is working
petitioners have a strong case? Meanwhile, Lawyers have Telecommunication, Esther closely with journalists, training
The Chief Justice emeritus, condemned Koome over the Koimett, has said the government them on professional reporting.
Willy Mutunga, has expressed gag rules, terming it drastic, will not shut down the Internet “We request the media to behave
the view that the common law unjustifiable and ambiguous”, during the forthcoming general professionally as the MCK, itself a
doctrine of Sub Judice may promising to sue the CJ if she elections. regulatory body, will not hesitate to
not be aligned with the 2010 fails to rescind her decision “to “Kenya will not shut the Internet; stop any unprofessional reporting,”
constitution. He is particularly criminalise comments”. the Internet is critical to this added Koimett.
concerned that the doctrine “The amendment, though economy, and Kenya is a country The PS made the remarks after
violates articles 1, 10, 20(3)(b) intended to protect integrity that respects freedom of speech,” officiating the Launch of Wingu
(c), 159(1) and 259(1). of the proceedings before the she said. community radio at the Hub
The clearest pointer to the Supreme Court, is something The PS further added that and underscored the important
manner in which the High Court that cannot be supported in a the government believes the roles of such communications
is likely to rule is the South Af- democratic society that cher- country has a regulatory space platforms in enhancing growth in
rican case of Midi Television ishes the constitutional rights and environment to deal with any the community.
(Pty) Ltd v Director of Public and freedom of expression,” challenges from managing the She called on the community
Prosecutions [2007] SCA 56 LSK president Eric Theuri said. elections. to make good use of the facility
(RSA), where the Supreme The extent to which freedom She was responding to fears to realize agricultural, business,
Court of Appeal of South Af- of expression may be curtailed that Kenya may go the Uganda and educational benefits.
rica set the standard of “de- in favour of preserving the in- way, where there was total Internet She also hailed the project,
monstrable and substantial tegrity of the administration of shut down during last year’s general which has been developed by local
prejudice.” The court states: justice was in issue in that case. election that was said to be marred professionals as life-transforming
…a publication will be unlaw- The Kenyan High Court will be with irregularities. and called on other professionals
ful, and thus susceptible to called to determine the extent On hate speech, she said the across the country to emulate them
being prohibited, only if the to which freedom of expression government is committed to to make Kenya a better place.
prejudice that the publication may be limited by statutory or She underscored the significant
might cause to the administra- regulatory provisions such as contribution of ICT and innovation
tion of justice is demonstrable the ones the Chief Justice has in bridging the unemployment gap
and substantial and there is a introduced. Kenya will not as many youths are now earning
real risk that the prejudice will While the CJ is pursuing a shut the Internet; from online work.
occur if publication takes place. legitimate interest of securing the Internet is “Today, we have heard that there
Mere conjecture or speculation judicial independence from critical to this is a youth who makes over Sh2
that prejudice might occur external pressures, there is economy, and million in a month from online jobs.
will not be enough. Even then the opposite view that judges Kenya is a country The government will continue to
publication will not be unlawful are highly trained, skilled and that respects support innovation and ICT through
unless a court is satisfied that knowledgeable, and are there- freedom of Ajira and Internet connectivity
the disadvantage of curtailing fore less susceptible to public speech. programs to have such success
the free flow of information or external pressure. ( stories,” she emphasized. (

June 2022 • 7
Briefing NEWS
ELECTION PREPAREDNESS the Director of Voter Registra-
IEBC: A house divided? tion and Electoral Operations.

The Nairobi Law Monthy has
established that the recently
appointed commissioners have
refused to approve the confir-
mation of Moses Sunkuli to the
position after the scores of the
candidates were reportedly
switched.
At the interviews, IEBC had
shortlisted three internal can-
didates, two county election
managers namely Nancy Kari-
uki and Jane Gitonga, and Mr
Sunkuli who has been holding
the office in an acting capacity.
Ms Gitonga had emerged the
best in the interviews while
Ms Kariuki and Mr Sunkuli
tied. But a few days later, the
A
scores were switched and now
ll may not be well at position. An IEBC insider said the names were shared with Mr Sunkuli and Ms Kariuki
the Independent Elec- the Chebukati group see the the political parties behind were tied at the top.
toral and Boundaries new commissioners as a dis- the new commissioners’ backs, While some commissioners
Commission amid allegations ruption. They were appointed causing a major clash. When pushed for the commission
of a rift between commission- when the commission had the four new commissioners plenary to appoint Mr Sunkuli,
ers, which could impact the awarded or was on the verge learnt of what had happened, others were taking none of that
conduct of the August 9 elec- of awarding tenders for stra- they confronted Chebukati resulting in a stalemate which
tions. tegic election materials such who mumbled a convoluted, persists. Bitten once again,
With just over two months as technology, logistics and unconvincing explanation. some of the commissioners
to the August 9 elections, the ballot papers. According to Chebukati, the have even opposed letting Mr
commission has been hit by But to their advantage, the appointment of returning of- Sunkuli continue to hold the
divisions pitting the three com- recently appointed commis- ficers is a role for the com- office in an acting capacity.
missioners who have been sioners are in the majority out mission secretariat, not com- The terms of Mr Chebukati,
there the longest, namely of the seven commissioners. missioners. An IEBC insider Prof Guliye and Mr Molu will
chairman Wafula Chebukati, Two recent incidents have told the Nairobi Law Monthly be expiring in early 2023, just
Prof Abdi Guliye and Boya brought the divisions to the that the issue of appointment a few months after the General
Molu, and the four who were fore, as the two factions battle. of returning officers raised Election. That means that it is
appointed in September 2021, The first incident that is now in temperatures so much as some Ms Cherera, Mr Wanderi, Ms
namely vice chairperson Ju- the public domain concerned commissioners threatened to Masit and Mr Nyang’aya who
liana Cherera, Francis Wan- the appointment of returning go public. will be around in the coming
deri, Irene Masit, and Justus officers in April. At the ple- The appointment of return- years until replacements for
Nyang’aya. nary, the commission’s high- ing officers had also caused a the three outgoing commis-
The Nairobi Law Monthly un- est policy-making body, the clash between Chebukati and sioners are appointed. The
derstands that the Chebukati commissioners had agreed former CEO Ezra Chiloba in four recently appointed com-
group, using their experience that the draft list of returning their long-running feuds. Back missioners will also, therefore,
and association with secre- officers would be circulated then, Chebukati dismissed the take the lead in conducting the
tariat staff, have been side- to them for their input before list that Chiloba had made of post-election evaluation as well
lining the recently appointed the same could be shared with returning officers. as initiating the boundaries
commissioners in key decision political parties. Then there is the issue re- review, expected to kick off
making, resulting in fierce op- But that was never to be as garding the recruitment of sometime in 2023.. (

8 • June 2022
FOLLOW US:
COMEBACK
REPORT
20 most corrupt Ruto to Raila: stop

countries in Africa, hanging on to Mau
according to latest Forest issue
corruption index
D
eputy President Wil- is the fencing the Mau For-
report liam Ruto has told the

Azimio Presidential
est and resolving the land
issues in Kedong and Rose
aspirant Raila Odinga not Farm which he says will be
T ransparency International
last month released its latest
annual Corruption Perception Index
5. Democratic Republic of Congo:
The DRC has a corruption
perception index score of 19.
to ‘incite and hoodwink’ the
Masai electorate using the
Mau Forest eviction issue.
ultimately be concluded.
“Because we have con-
cluded the Mau issue what
report. The report showed that 6. Burundi: This East African Ruto stated that the gov- is left is the Rose Farm and
90% of the 180 countries surveyed country also has a corruption ernment evictions in 2019 is here in Kedong Farm. This
scored below 50. Interestingly, 44 perception index score of 19. no longer political fodder as is so that the initial owners
of these countries with very low 7. Chad: Chad has a corruption leaders traverse in search of the land property will be
corruption index scores are in Africa. perception index score of 20. of votes. given back their land and the
Across the continent, corruption 8. Sudan: Has a corruption Raila is on record of taking government will pay for that.
is fuelled by a number of factors perception index score of 20. credit over the Mau evictions That property will go back to
such as authoritarianism, political/ 9. Comoros: This island nation’s saying that his handshake the Maasai people,” Ruto said.
institutional instability and various corruption perception index with President Uhuru Kenyat- “Please, we are tired of your
forms of security challenges caused score is also 20. ta is what made it possible. incitement. Look for another
by violent conflicts and terrorism. 10. Guinea Bissau: Has a “I want to tell the kitendwali business and agenda,” he
Transparency International uses corruption perception index man (Raila odinga) because added.
the corruption perception index to score of 21. it seems he is confused. Us The eviction done in 2019
rank countries around the world on a 11. Congo: Has a corruption people in Narok have already saw the government reclaim
scale of zero to 100; with zero being perception index score of 21. concluded the Mau matter. over 22,000 hectares of land
the most corrupt and 100 being the 12. Eritrea: Has a corruption You, kitendawili man, look for in the area.
least corrupt. The index has been perception index score of 22. another business and pledge. After the eviction, Ruto is
tracking public sector corruption 13. Zimbabwe: Has a corruption Issues of Narok and Mau we said to have bought a section
across the world since 1995. perception index score of 23. have concluded,” said Ruto. of the homeless evictees a to-
Below are Africa’s most corrupt 14. Nigeria: Africa’s most populous The United Democratic tal of three acres in Tendwet,
countries based on the latest country has a corruption Alliance (UDA) presidential Olmekenyu and Sagamian
ranking: perception index score of 24. candidate says all that is left and built them temporary
15. Central African Republic: Has houses.
1. South Sudan: This country a corruption perception index The Mau forest eviction
has a corruption perception score of 24. made Odinga a darling of the
index score of 11, the lowest 16. Guinea: Has a corruption 22,000 Narok Maasai community
in the world. perception index score of 25. Acres of the while it drew an edge be-
2. Somalia: This country has a 17. Moza m b i q u e : H a s a Mau Complex tween him and the Kalenjin
corruption perception index corruption perception index reclaimed so far. community.
score of 13. score of 26. Mau Forest Complex is a
3. Libya: This country has a 18. Madagascar: Has a corruption water tower for 10 million Ke-
corruption perception index perception index score of 26. nyans. But illegal settlement
score of 17.
4. Equatorial Guinea: This
19. Uganda: Has a corruption
perception index score of 27.
107,000 and deforestation have de-
stroyed 24 percent, or 107,000
Acres of forest cover
country also has a corruption 20. Cameroon: Has a corruption destroyed over a 20- hectares (264,000 acres), of
perception index score of 17. perception index score of 27. ( year period. its trees over 20 years. (

June 2022 • 9
Opinion
with Nelson Havi
PUBLIC SCRUTINY
CJ Koome must
revoke her ill-advised
gag rules
The chief Justice, through Legal Notice No 79 of
April 12, 2022, has barred the expression of opinion
by litigants, advocates and their agents on conduct,
proceedings and Judgments of the Court in
presidential election petitions
T
hrough Legal Notice No 79 of Chief Justice to whittle down gains made
April 12, 2022, and published towards attaining an independent but
on May 5, 2022, Chief Justice accountable judiciary for several reasons.
Martha Koome amended Rule First, it is deceitful of the Chief Justice to
18 of The Supreme Court (Presidential claim that Advocates are not represented
Election Petition) Rules, 2017. The amend- in the Supreme Court Technical Rules
ment bars the expression of opinion by Committee. At the request of the office of
litigants, their advocates and advocates’ the Chief Justice made on March 19, 2021,
agents on the merit, demerit or prediction the Law Society of Kenya appointed Mr
of the outcome of a petition challenging Ahmednasir Abdullahi SC and Ms Julie
the election of the President of the Re- Soweto to the Committee. The office she
public of Kenya. holds cannot permit Chief Justice Martha
In reaction to an uproar by Advocates, Koome to lie. It is gross misconduct.
the Chief Justice claimed that the Court did Second, contempt of Court before the has no place in Kenya’s jurisprudence. A
not consult Advocates about the amend- Supreme Court is an offence created by reading of Articles 1, 10, 20(3) (b) and (c),
ment because they are not represented in Parliament in terms of Section 28 of the 159(1) and 259 of The Constitution of Kenya
the Supreme Court Technical Rules Com- Supreme Court Act. The Chief Justice are sufficient for that purpose. For these
mittee. The Chief Justice stated that the does not have the power to make laws: reasons, Legal Notice No 79 of 2022, dated
concern by Advocates would be discussed legislation or subsidiary. April 12, 2022, is null and void ab Initio.
at a Bar-Bench meeting on June 2, 2022. Further, subsidiary legislation cannot Third, the action by the Chief Justice
The retrogressive, manifestly unlawful prescribe penal offences of otherwise is indicative of her intemperate charac-
and unconstitutional action by the Chief lawful actions under the Bill of Rights. ter, a vice inconsistent with the holder
Justice must be examined. The error and/ This is elementary law. of such high office. It is a vice inherent
or mischief on the part of the Chief Justice Freedom of expression is guaranteed in the person of Chief Justice Martha
must be contextualised, highlighted and under Article 33 of The Constitution of Koome. It first manifested on April 30,
deprecated. This is important as there Kenya. The common law extinct relic of 2021, when she threatened to sue the
is an apparent deliberate resolve by the sub-/oc/ice evident in the amendment President of the Law Society of Kenya for

10 • June 2022
The premise is that contempt of
court before the Supreme Court,
or any Court for that matter, must
be legislated by Parliament. Judges
have no business interacting with
media or public commentary
of conduct, proceedings and
Judgments of the Court.
commentary of conduct, proceedings and

Judgments of the Court.
Contempt is defined in Black’s Law
Dictionary thus:
1. The Act or state of despising; the con-
dition of being despised. 2. Conduct that
defies the authority or dignity of a court
or legislature, because such conduct inter-
feres with the administration of justice, it is
punishable, usu. by fine or imprisonment.
The Contempt of Court Act was the
legislative framework for contempt of
Court in Kenya after the promulgation
of The Constitution of Kenya. Section
10 of the Act introduced the “strict li-
ability rule” to punish one for contempt
irrespective of whether or not there was
the intention to do so. Section 19 of the
Act criminalised recording proceedings
in court without leave of court. Section
15 of the Act sanctioned fair criticism of
judicial actions in these terms:
A person is not guilty of contempt of
court for publishing any fair comment
on the merits of any case, which has been
heard and determined.
The entire Act was declared unconsti-
tutional in a Judgment delivered by the
High Court on November 9, 2018. The
Court found that Sections 10 and 19 of
the Act limited rights under the Bill of
Rights and that the entire Act was un-
lawful for want of public participation.
submitting a memorandum to the Judicial to expand the frontiers of the offence. The The amendment by the Chief Justice
Service Commission on her unsuitability obvious intention was to abuse the office is also unlawful, unconstitutional, and
for appointment as Chief Justice. A stern of Judge of the Supreme Court to curtail null and void ab Initio for want of public
rebuttal on May 3, 2021, suppressed her the freedom of expression of the three participation and for seeking to curtail
intended or ill-advised action. Advocates. Again, this is gross misconduct. fair and necessary public evaluation of
Fourth, the action by the Chief Justice is It is essential to locate and beacon the conduct, proceedings and Judgments of
taken in pursuit of her assault against three parameters of contempt of Court and the Court on an important matter of the
Advocates: Mr Ahmednasir Abdullahi SC, the doctrine of sub-judice sought to be petition for election of President of the
Mr Nelson Navi and Ms Esther Ang’awa, in codified in the amendment by the Chief Republic of Kenya.
her Judgment on the BBI appeal delivered Justice. The premise is that contempt of The Chief Justice must be referred to
on March 31, 2022. Whereas Section 28 of Court before the Supreme Court, or any several texts and decisions for her ease of
the Supreme Court Act is exhaustive of Court for that matter, must be legislated comprehension of this matter to revoke
what amounts to contempt of Court, the by Parliament. Judges have no business the Legal Notice and forebears from simi-
Chief Justice sought, through judicial craft, interacting with the media or any public lar misconduct in the future. First is the

June 2022 • 11
Opinion
caution by John Locke in Two Treatises is to judge cases. That he does in open will remember that, from the nature of our
of Government: Court, and when he makes his decisions, office, we cannot reply to their criticisms.
As usurpation is the exercise of power he publicly gives his reasons for them. We cannot enter into public controversy.
which another hath a right to, so tyranny Everything is there for public scrutiny, Still less into political controversy. We
is the exercise of power beyond right, and there is no real point to be served by must rely on our conduct itself to be its
which nobody can have a right to; and any further explication. own vindication.
this is making use of the power anyone The Chief Justice and Judges in Kenya The conclusion by The Master of The
has in his hands, not for the good of those must heed the following advice of Lord Rolls — Lord Dyson in his article, Criticis-
who are under it, but for his own private, Denning in R v Commissioner of Police, ing Judges: Fair Garner or Off-Limited,
separate advantage. Ex Parte Blackburn (No 2) [1968] 2 Q B 150: is befitting to end the list of reference
The Chief Justice should desist from us- Let me say at once that we will never use materials for the Chief Justice. Apt is the
ing her tyrannical abuse of administrative this jurisdiction to uphold our own dignity. statement that:
and judicial powers for her own advantage. That must rest on surer foundations. Nor 81. In my opinion, it is time for judges (if
Second, the Chief Justice must heed will we use it to suppress those who speak they have not already done so) to accept
the admonition against interference with against us. We do not fear criticism, nor these changes brought about by shiNs
liberties as propounded by Charles de do we resent it. in our culture, our constitution, and our
Secondat, Baron de Montesquieu in The For there is something far more impor- technology. In my view, judges’ reasoned
Spirit of Laws in the following words: decisions should be open to public debate
In democracies, the people seem to act and scrutiny. Our courts are open and free,
as they please, but political liberty does I am mindful of the profiling and the media perform a valuable job in
not consist of unlimited freedom. In gov- I will receive from the CJ and our democracy of reporting the courts and
ernments, that is, in societies directed by a few Judges. Like Sebastian the Justice System to the broader public. I
laws, liberty can consist only in the power Rudd, whose experience hope that the debate should be reasoned
of doing what we ought to will and is not is chronicled in ‘Part One: and based on the evidence. And what is not
being constrained to do what we ought Contempt in The Rogue fair or reasonable is to impugn the motives
not to will. Lawyer’ by John Grisham, I of judges or ascribe them to prejudices.
Third is the counsel on self-restraint am okay. Just as F Lee Bailey 82. Judges must expect criticism and,
upon Judges in matters in which they are first found himself isolated where appropriate, they must offer a ro-
interested, underscored by B O Nwabueze for taking similar action bust response. This response should take
in Constitutionalism in the Emergent but vindicated by history as the form of a well-organised, measured,
States in these words: documents in ‘Chapter VI: institutional reply.
Whilst, admittedly, judges may not be When the Defender Stands I am mindful of the profiling I will receive
entirely devoid of self-interest in the sub- Accused in The Defense Never from the Chief Justice and a few Judges.
ject matter of a legislative act — for no Rests’, I will not rest. It must be Like Sebastian Rudd, whose experience
human procedure is ever wholly neutral done. is chronicled in ‘Part One: Contempt in
- yet this impartiality serves at once as a The Rogue Lawyer’ by John Grisham, I
safeguard against the possible danger or tant at stake. It is no less than freedom of am okay. Just as F Lee Bailey first found
arbitrariness on the part of the judges in speech itself. It is the right of every man, himself isolated for taking similar action
the discharge of their interpretative func- in Parliament or out of it, in the Press or but vindicated by history as documents
tion. It is reinforced for this purpose by the over the broadcast, to make fair comment, in ‘Chapter VI: When the Defender Stands
doctrine of precedent and the tradition of even outspoken comment, on matters of Accused in The Defense Never Rests’, I
self-restraint. public interest. Those who comment can will not rest. It must be done.
Writing about Judges and the Media, Sir deal faithfully with all done in a court of Chief Justice Martha Koome, you cannot
Daryl Dawson advised as follows: justice. They can say that we are mistaken have Chief Justice Hancox for a mentor.
There is a substantial reason why, to and our decisions erroneous, whether Not today or ever. Revoke Legal Notice
my mind, judges do not allow themselves they are subject to appeal or not. All we No 79 of April 12, 2022. (
to be interviewed. The function of a judge would ask is that those who criticise us

12 • June 2022
QUICKTAKES
REPENTANCE “There is no THE STATISTICS
“I also know that as serving as

voting for
Africa’s Fastest
Sh
64 bn
independent
a Deputy President, I may have candidates on Growing Companies
fallen short of the expectations August 9. But, 1. Wasoko – Kenya (8782.594%)
Fuel prices
of my boss President Uhuru as UDA, we 2. Flocash Ltd. – Kenya and fertiliser
shall also make
Kenyatta. My good friend, I ask sure that other
(5160.582%) subsidy as well
for your forgiveness.” 3. AFEX Commodities Exchange as security-
Independent
related
candidates Ltd. – Nigeria (4289.795%)
expenditure in
vying for 4. AfricaWorks Group – the wake of the
parliamentary
Mauritius (3766.393%) August 8 polls
seats lose out in
have forced
the polls.” 5. Zedcrest Capital Ltd. –
the Treasury
– Johana Ngeno Nigeria (1481.767%) to spend an
Deputy President Emmurua Dikir MP additional of
William Ruto over Sh60
to President Uhuru Kenyatta following billion of
their differences taxpayers’ cash
HAMMER in the budget
& TONGS for the financial
SECOND THOUGHTS year ending
June
“I publicly campaigned for Irungu
yet he was the first to betray me “Why get angry
at independent
and rig my votes. If these are the candidates
kind of people you rely on, then
Azimio will outsmart you. Azimio
when you are
the same people
WTF@#?!
have organized themselves. who passed this
They have unity and will have law that allows
us to vie as
Too many good docs are getting
access to unlimited funds from independents? out of the business. Too many
government, while those in UDA
walk around declaring that they
Now you want OB-GYNs aren’t able to practice
to incite the
had the party ticket and were just electorate their love with women all
waiting to be sworn in. This will because nothing across this country.
you can do.”
not be an easy battle.”
– Bundotich
Cate Waruguru, Zedekiah, Uasin President George W. bush,
Sept 6, 2004
Laikipia Woman Representative on Kenya Gishu governor
Kwanza operations in her region candidate
TOP TRENDING ON TWITTER: #AfricaDay2022, #TheFutureOfMoney, #PlanNiBottomUp, #NationalPrayerBreakfast
1.82
The estimated amount
THE BIG Kenyans transacted
through mobil money
NUMBER in the firat quarter of
2022
Sh
www.nairobilawmonthly.com
trillion The Nairobi Law Monthly
June 2022 • 13
Review
ANALYSIS AND CRITIQUE
K
P E R I S CO P E enya is no stranger to highly
contested elections, including
How Kenya’s those pervaded by political

and ethnic violence.
Judiciary can When there is no finality to elections,

or if some parties refuse to accept the
break the cycle of official results, the process cannot sup-

port democracy. It does not produce a
electoral violence
legitimate government with the right to
exercise power and the ability to meet
the needs of all citizens.
As Kenya heads to the polls in August
2022, it’s important to consider what role
BY J O H N M U KU M M BA KU the Judiciary will play in ensuring that
the elections are free, fair, and credible.
As a legal expert and economist who
studies the rule of law in Africa, I argue that
Kenyans need to work towards ensuring
both individual and institutional judicial
independence.
The former implies that individual
judges can decide cases without interfer-
ence. The latter means that courts are
independent of the executive and legisla-
tive branches of government.
For the courts to perform their job effec-
tively, including resolving election-related
conflicts, they must be independent.
Additionally, Kenyans must have trust,
confidence, and faith in their judgments.
Unlike the executive, the Judiciary
cannot send soldiers out to enforce its
orders, nor can it deny development aid
to a community to gain support for its
decisions. The court’s power is derived
from its legitimacy.
This comes from a general belief and
understanding that adhering to the court’s
rulings is the right thing to do. To safeguard
this legitimacy, judges must function and
be seen as officials of the Judiciary and
not as representatives of the ethnic group
to which they belong.
Judicial wins
Kenya is a young democracy, and so is its
Judiciary. However, the country’s courts
have exhibited a significant level of ma-

14 • June 2022
Brandishing Our casual
second liberation attention to
credentials akin rule of law will
to flogging a destroy our
dead horse P.16 liberties P.17
turity and independence in recent years. re-elected president with 54.27% of the arbiter of elections-related conflicts and
This was evidenced by the supreme votes. This was against opposition leader bringing finality to elections, there remain
court’s unprecedented decision after Raila Odinga’s 44.74%. many challenges to democracy.
the disputed 2017 presidential election The top election official at the time, Wa- These include the politicisation of eth-
results. A six-judge bench annulled the fula Chebukati, and several international nicity. This is evidenced by the pressure
incumbent President Uhuru Kenyatta’s observers argued that the election was imposed on judicial and other officials
win. The court ordered a new election in free, fair, and credible. The opposition to act in favour of one ethnic group or
60 days, which Kenyatta won. cried foul and said the election had been another.
In 2021, the high court intervened in a marred by irregularities.
push fronted by the government to amend There were fears of a repeat of the Ethnicity and Kenya’s struggle
the constitution. It declared the process ethnic-induced violence that accompanied for peace
unconstitutional. the 2007 elections. Kenya is a state that was founded by
Reflective of a country with increas- Kenyatta encouraged the opposition bringing together distinct groups. Each
ingly strong democratic institutions and to take their concerns to the courts. It had its own customs, cultures and tradi-
an independent judiciary, Kenyatta ac- did, and on 1 September 2017, the court tions, and laws and institutions.
cepted the court’s ruling. The govern- made its historic ruling, annulling the The challenge the country faces today
ment, nevertheless, decided to move to presidential election results. is how to make this forced marriage work
the appeals court and the supreme court, The real lesson from the 2017 supreme to achieve peaceful coexistence, wealth
as required by the constitution. The two creation, and inclusive development.
courts upheld the initial ruling. Citizens continue to vote largely for
Kenya’s Judiciary, however, needs to Our country's democracy people from their own ethnic group. This
continue to expand its infrastructure and cannot function effectively politicisation of ethnicity has created
build professional capacities. This includes if its public officials, includ- many challenges to Kenya’s efforts to
setting up an effective system to finance ing its judges, serve as rep- deepen, entrench and institutionalise
the Judiciary so that it isn’t held hostage resentatives of their ethnic democracy.
to changes in the country’s politics. Op- groups. In performing their First, it allows members of the country’s
portunistic politicians shouldn’t be able jobs, civil servants and politi- five largest ethnic groups to dominate
to punish the courts for legally sound but cians must be accountable national governance.
unpopular decisions. to the constitution and the Second, it forces political elites to seek
An efficient, equitable, and accessible people of Kenya. consent from their ethnic bases instead
justice system is the foundation of a de- of developing more broadly appealing
mocracy based on the rule of law. programmes.
Third, it puts pressure on civil servants
The courts and election-related
conflicts 54% and elected officials to act as ethnic rather
than country representatives.
Kenya’s 2010 constitution was designed to President Uhuru Kenyatta's Kenya’s democracy cannot function
help “reconcile a deeply divided nation”. victory margin effectively if its public officials, including
It provided mechanisms for citizens to in the 2017 elections. its judges, serve as representatives of
peacefully resolve election-related con- their ethnic groups. In performing their
flicts and bring finality to them. court decision was not that it granted the jobs, civil servants and politicians must
The constitution grants citizens the opposition another chance to capture the be accountable to the constitution and
power to challenge the election of a presi- presidency or deprived the incumbent of the people of Kenya.
dent in the supreme court. his electoral win. It was that it reaffirmed It is only through such an approach to
This court also determines the validity the country’s move towards constitution- public service that citizens can trust their
of the presidential election. Its capacity alism, peaceful resolution of conflict and institutions and leaders, including the de-
to do so has been successfully tested. the rule of law. cisions they make. ( (The Conversation)
Official results from the August 2017 Although Kenya’s Judiciary has proven — Author is a professor at Webber State
elections showed Kenyatta had been itself capable of serving as an effective University.

June 2022 • 15
Review
W R O N G TAC K therefore eligible to vote in the August
9 elections was born in 2004, two years
Brandishing second into President Kibaki’s regime. Those

who are between 24 and 30 years today
liberation credentials
were born between 1990 and 1998 and
had not formed cognitive abilities in the
akin to flogging a
period of the second liberation struggle
to appreciate the sacrifices made by Raila
Odinga and his running mate and many
dead horse others. They never saw the vintage Moi

in his element. They have no clue about
the Mwakenya movement and its crack-
down, and they wonder how on earth the
BY O U M A OJA N G O freedoms of speech and movement that
to them are like the free oxygen that we
breathe, be stifled.
True, a good number of the youth may
appreciate the liberation credentials of
the Azimio la Umoja One Kenya Alliance
ticket holders through a reading of history,
but they are few and sparse.
The Mt. Kenya youth, born in the late
80s through 90s, were radicalized by
their parents following historical issues
between the nation’s founding father,
Mzee Jomo Kenyatta, and Raila Odinga’s
father, the doyen of opposition politics,
Jaramogi Oginga Odinga, to hate Raila
Odinga and the Luo people. The youth of
the mountain love to hate Raila Odinga.
The post-Moi politics, where Raila Odinga’s
Azimio duo Raila Odinga fallout with President Kibaki resulted in
and Martha Karua. the 2007 post-election violence and the
F
three successive General Elections that
or the discerning Kenyan, it is these credentials on a presidential ticket brought and sustained Uhuru Kenyatta
common knowledge that while should win an election early in the morning. on the throne, did not help much. They
all other parts of the country The duo has packaged and taken this cemented in the Mt. Kenya youth the
mattered, the election for the record to the people in their campaigns, belief that Raila Odinga is a bad, dangerous
two leading contenders would be fought and therein lies the conundrum that may human being that should be kept away
and won in the vote-rich Mt. Kenya region, derail their presidential quest. from the throne.
which, having produced Kenya’s last two According to the last population and The liberation struggle message the
presidents back to back, has no candidate census results of 2019, Kenya is a country Azimio duo are flaunting will not count
in the impending presidential election. of youth. Of the 47.6 million population, 75 for much in this election, given that it
As far as running mates go, Martha percent, or 35.7 million people, are under carries no currency with the youth who
Karua is fearless and intelligent. Together 35 years. The youth population of those form a huge demographic in this elec-
with her presidential ticket flag bearer, ranging between 18 and 34 constitutes 29 tion. With one month to go, the earlier
they have an impressive record as human percent of the general population, about the Azimio team realizes this, the better.
rights defenders. Their roles in the fight 13.8 people, which makes for a huge con- They must come up quickly with a theme
for the second liberation, the struggle of stituency given that the total number of strong on economic growth, job creation,
the 80s and 90s against the dictatorial registered voters in 2071, according to the public health, security, education, sports,
regime of KANU and President Moi, is IEBC, was about 19.6 million. and technological and infrastructural
something to write home about. Ideally, A person who is 18 years today and advancements. (

16 • June 2022
OP-ED Yet even without explanation from
legal scholars, Kenyans’ experience with
Our casual attitude the rule of law demonstrates that if one

has money to buy a good lawyer, they are
towards the rule of

most likely to avoid facing consequences
for their actions. The lawyers and the rule
law will destroy our

of law ecosystem in which they operate
are likely to engage in formalities and
procedures of the rule of law facilitated
liberties by the rich clients’ money, such that at

the end of it all, justice is equated to the
amount of money one has. On the other
hand, a hungry shoplifter who steals a few
packets of unga and who has no ability
BY G I L B E R T M U Y U M B U to afford a lawyer is likely to be tried and
sent to jail with the speed of a light year.
A
What dangers does this pose for our
s we head towards the August are applied and the capacity of institutions democracy? First, our rule of law system
General Election, indications for applying them such as the judiciary. has failed to send the rich criminals in our
are that it will perhaps be the The substantive type is perhaps the most society to jail. Instead, it actively facilitates
country’s most permissive important, given its focus on the outcomes their infiltration into our political system.
election in as far as the rule of law is con- of the rule of law, such as actually keeping Once they get into the political system,
cerned. Citing the 2013 High Court ruling criminals in jail. they use their political offices to weaken
which allowed the joint candidature of Considering what is happening in our further the rule of law set up, making it
Uhuru Kenyatta and William Ruto in that political sphere, it shows that our rule of unable to deliver fairness and justice.
year’s election, even as the duo was facing law set up is clearly biased towards pro- In this way, our political system moves
charges at the ICC, the IEBC has already moting the formal and procedural types of further away from the democratic ideals
proclaimed that it has no capacity to bar the rule of law, while conveniently avoiding of liberty, justice, and equity.
candidates with questionable records of the substantive type. The dilemma then Secondly, because the rule of law set
integrity from the election. becomes why we ended up with formal up favours the rich, it leads to a deepen-
This trend has opened up opportunity and procedural types as more dominant ing of socio-economic inequalities in the
for any candidate, despite their criminal than the substantive type of the rule of law. country. This in turn creates doubt in the
background, to run for public office. Even Perhaps the best way to respond to this political system, with ordinary people
those who had been impeached in previous questioning why democracy only works
tenures as governors have made a come- for a certain group and not the rest. This
back. And none other than Fred Matiang’i, Actors in that set-up, like then offers favourable conditions for the
the Minister for Interior, has warned that the EACC, ODPP and the rise of demagogues who weaken further
we are headed towards a situation where Judiciary, must guard more the system, and who are likely to roll back
candidates with questionable integrity than just the formalities the democratic liberties we enjoy in the
may win up to half the electoral seats on and procedures of law, to name of correcting the socio-economic
offer in the election, with serious conse- guarantee our liberties inequalities.
quences for our governance institutions. and those of our future To avoid ending up with a fragile demo-
What is happening is a frightening ex- generations. cratic political system which can easily
ample of how casually we are treating the dilemma is to adopt Jurgen Habermas‘ be rolled back due to socio-economic
rule of law in the country. This may even- Critical Legal Theory, which asks people inequalities, our rule of law set-up must
tually have devastating consequences for to identify who benefits most from the focus on the substantive type of the rule
our democracy. Legal scholars categorize dominant type of the rule of law set up of law. Actors in that set-up, like the EACC,
rule of law into three major types, namely that society adopts. So, the question be- the DPP and the Judiciary, must view
formal, procedural, and substantive. The comes, who benefits most from Kenya’s themselves as guardians of more than just
formal type deals with the setting up of convenient avoidance of the substantive the formalities and procedures of law, to
laws in ways that make them impartial; the type of the rule of law? This is a question guarantee our liberties and those of our
procedural type focuses on how the laws best answered by our legal scholars. future generations. (

June 2022 • 17
Special Report
REPORT
How currency sanctions

on Russia could disrupt
trade with Africa
BY C H R I S H E I TZ I G A LOYS I U S U C H E
O R D U L E O H O LTZ
F
inancial sanctions tend to
hurt both the sanctioned and
the sanctioner, but they also
threaten to hurt countries that
are financially interlinked with the sanc-
tioned country. Recent sanctions levied
on Russia by the United States and the
European Union in response to Russia’s
invasion of Ukraine are disrupting global
trade and financial networks worldwide,
including Africa. The sanctions prevent
US and eurozone banks, their foreign af-
filiates, and Russian banks based in the US
and eurozone countries from facilitating
dollar and euro transactions on behalf of
Russian entities. The problem for Africa
is that roughly 95 percent of all trade is
invoiced in these two sanctioned cur-
rencies alone. A vast majority of Africa’s
Sh1.6 trillion trade with Russia is likely
denominated in these two currencies.
In response to Russia’s invasion of
Ukraine in early 2022, the US and EU
adopted significant and largely unprec-
edented financial sanctions against Russia.
More specifically, on February 24 and 25,
the US and the EU levied sanctions on
Russian banks that targeted correspon-
dent and payable-through accounts. The
sanctioned banks account for most of
Russia’s financial capital and are heavily
exposed to western financial systems. US
sanctions on these banks also prohibit
American citizens from dealing with these
banks and their subsidiaries anywhere
in the world. US President Joe Biden (left)
and Russia's Vladmir Putin.
On February 28, the US and EU banned

18 • June 2022
RIPPLE EFFECT
transactions with the Russian Central Bank other countries— including Canada, the reduced trade between Iran and Africa,
and the National Wealth Fund, Russia’s United Kingdom, Australia, South Korea, even though the latter did not apply any
sovereign wealth fund. On March 1, at and Japan—have levied similar sanctions sanctions on the former.
the behest of the US and the EU, SWIFT on Russia. Western sanctions on Russia threaten
disconnected seven Russian financial To lessen the blow of the sanctions and to interrupt trade between Russia and
institutions (and three Belarusian finan- prop up the ruble’s value, Russia passed Africa. At around Sh1.6 trillion per annum,
cial institutions three weeks later) from capital control measures. Russians are Russia-Africa trade makes up a rela-
its network. On April 12, the US and EU now forbidden, for example, from trans- tively small share of Africa’s total trade.
banned direct or indirect trade in invest- ferring money to foreign bank accounts. Imported goods from Russia amount to
ment services, including securities and Banks and brokers are prohibited from Sh1.4 trillion, accounting for just 2.6 per-
other money-market instruments. Many executing cash-based foreign exchanges cent of Africa’s imports. In comparison,
for dollars and euros. the roughly Sh233 billion annual exports
These actions could pose significant from Africa to Russia account for less
difficulties to Russia’s ability to conduct than 1 percent of Africa’s exports. Trade
trade invoiced in dollars and euros. These with Russia can account for a rather large
currencies maintain a dominant role in share of a given country’s overall trade.
facilitating international financial trans- Moreover, since mostly African imports
actions and global trade mechanics, ac- from Russia dominate Russia-Africa trade,
counting for 90 percent of import invoicing import duties on Russian goods can locally
and 88 percent of export invoicing. These account for a non-negligible share of trade
shares are even higher for Africa: more revenue in certain countries. More im-
than 94 percent of African imports and mediately, key exports from Russia, such
more than 95 percent of African exports as wheat to North Africa and Ethiopia or
are denominated in either dollars or euros. armaments to the Central African Republic
These sanctions alone interrupt three of and Mali, could have local, acute effects,
the four primary ways Russian companies some of which might be felt more in terms
finance trade-related transactions with of welfare than finance.
Africa. Trade may nonetheless continue According to the United Nations Con-
to be carried out chiefly in dollars and eu- ference on Trade and Development, 32
ros. Still, in that case, Russian companies percent (Sh431billion) of Africa’s wheat
would need to turn to secondary sources imports from 2018 to 2020 came from Rus-
(interbank markets, money markets, debt sia.8 It should come as no surprise, then,
capital markets and derivative markets) that African countries have already seen
or tertiary sources (cross-currency swaps) the price of wheat explode since Russia’s
to raise enough dollars and euros to pay invasion of Ukraine. As of late April, global
for goods. Russian companies may need to wheat prices remained more than 25 per-
resort to these means to receive payments cent higher than their pre-invasion levels.
denominated in dollars and euros, and To estimate the degree of these disrup-
these transactions may require a foreign tions to African trade, we rely on several
exchange broker to complete, as the vol- data sets. Chiefly, we rely on data from
ume of African imports is relatively large Boz et al. (2020), which has unilateral trade
and the transactions were not expected. invoicing data for 14 African countries.
Notably, other sanctions may further To date, this is the most representative
interrupt how Russia and Africa finance data set assembled on the currency of
trade. The Russian financial institutions invoicing for Africa. We combine trade
disconnected from SWIFT are not only invoicing data for these countries (32
blocked from secure telecommunications percent of Africa’s GDP) with UNCTAD
via SWIFT with American and eurozone bilateral trade data between Africa and
banks but all banks, including foreign Russia and UNCTAD’s Trade Analysis
banks based outside the US and eurozone. Information System (TRAINS) database.
Iran is a case in point: SWIFT sanctions on The latter database, which contains import
Iranian banks between 2012 and since 2019 duties by product and country, contains

June 2022 • 19
Special Report
Russia-specific data for a subset of our
sample. We choose four large economies
in this sample to highlight. EXPORT
The trade invoicing data reveal hetero-
geneity in the dollar and euro use across
PORTFOLIO
African economies, but usage is generally
BY THE
high for exports and imports. Although NUMBERS
outliers exist, such as Eswatini, where
trade is largely conducted with other cur-
rencies, dollars and euros tend to account
for a vast majority of import invoicing and
export invoicing for African countries.
Let’s assume that the share of each
African country’s trade (and for each
Sh1.6t
product) with Russia invoiced in dollars
and euros mirrors its share with the rest
of the world (for Africa, these figures are
94 and 95 percent, respectively). Although At around Sh1.6 trillion
per annum, Russia-
several other foreign currencies mediate
Africa trade makes up
African trade, such as the British pound a relatively small share
sterling and the Chinese renminbi, neither of Africa’s total trade
African currencies nor rubles are popular
currencies to conduct trade because of
the risk of exposure, namely, the cost of
holding the currencies when they lose
value. This makes foreign exchange fees 80%
between them expensive and uncompeti- Dollars and euros
tive compared to dollars and euros. accounted for nearly
Furthermore, let’s assume that all Rus- 80 percent of all
sia-Africa trade invoiced in dollars or euros foreign reserves.
risks being disrupted by these and related
sanctions. We believe that the share of
Russia-Africa trade conducted in dollars
and euros serves as a lower bound for the not likely to appeal to African trade trade revenue disrupted from import tariff
share of trade disrupted for our sample: partners. lines is likely very close to the total trade
1. Dollars and euros are not the only cur- 4. The invoicing data from Africa are from revenue disrupted. In general, countries
rencies that carry sanctions. Russian 2018, but evidence suggests that the tend to derive most of their trade revenue
accounts and transactions in British share denominated in euros and dollars from import tariffs rather than export
sterling, Japanese yen, Australian dol- has only risen since 2018. tariffs. Additionally, African imports
lars, and other commonly-used curren- 5. The situation is still changing on the from Russia account for 87 percent of
cies also faced sanctions. ground, meaning sanctions could ex- trade between the two parties. These
2. Trade would be denominated in local pand in severity and country coverage. reasons suggest that the trade revenue
currencies if exchange costs and foreign In mid-March, sanctions were expanded from export tariffs may be a tiny share
currency risks were higher than dealing to include Belarusian financial institutions. of the total trade revenue generated by
in local currencies. Yet, for the Russian Allies of Ukraine have warned that sanc- trade between Russia and Africa. As with
ruble and many African currencies, the tions could be imposed on China should disrupted trade, estimates for trade rev-
exchange costs and foreign currency it support Russia in its invasion. enue disruptions should be interpreted
risks could be quite high in normal times. Because TRAINS tariff data primar- as a lower bound for actual disruptions
3. Since Russia invaded Ukraine in Febru- ily covers tariffs on imports rather than to trade revenue for imports and exports
ary 2022, the ruble’s value has fluctuated exports, we are restricted to looking at denominated in all sanctioned currencies
tremendously, at one point losing nearly African trade revenue disruptions stem- (not only euros and dollars).
half its value. The ruble’s volatility is ming from import duties. In the end, the While most African countries tend to

20 • June 2022
RIPPLE EFFECT
invoice trade in dollars or euros, the vol- example, 59 percent of the projected eight farming inputs. Meanwhile, governments
ume of trade with Russia varies widely, percent of disrupted revenue is in weapon and philanthropic organizations may feel
which means there is wide variation import duties alone. In Egypt, vehicles and pressure to intervene with food subsidies
across countries in terms of the share of telecom equipment account for 21 and 12 and aid to alleviate food insecurity and
trade disrupted by sanctions. In Egypt, percent of disrupted revenue. Taxes on the unravelling of human development
for instance, we estimate at least four per- petroleum imports seem to generate a among vulnerable populations.
cent of trade is at risk of being disrupted, significant share of tax revenue in many The chaos in the oil market is a resource
whereas in Mauritius, this figure stands at countries for which we have data. In Sen- boom for Africa’s ten oil-producing coun-
just 0.1 percent. On average, we find that egal, petroleum duties account for nearly tries, including Algeria, Angola, and Nigeria.
sanctions threaten to disrupt at least 1.8 two-thirds of all trade revenue with Russia. However, the challenge of convincing
percent of African trade. parliaments to invest the windfalls in
Africa’s export portfolio with Russia Broader impacts of conflict and sustainable economic development rather
differs distinctly from its import portfolio, sanctions than an opportunity to delay urgently
meaning disruptions will impact some In the short term, the most devastating needed reforms remains. For oil importers,
goods more than others. Cereals will be trade-related impact for Africa will be however, the price hike is reminiscent of
the main import affected, accounting for the disruption to importing Russian and the fuel, food and financial crises of 2008-
35 percent of disrupted imports (Figure Ukrainian cereal grains. Russian food 2009, and the impact for these countries
5). Notably, a decline in cereal imports products are a leading staple of Africa’s may actually be worse this time around.
due to sanctions and rising food prices imports from the country, making up
stemming from supply reduction raise more than 5 percent of the continent’s Potential (or lack thereof) for a
concerns of food price hikes in Africa food imports. Disruptions to Africa’s new global reserve currency
and, thereby, general concerns for food food systems can inflate local food prices, Russian firms will eventually lack access
insecurity. In addition to cereal, petro- particularly in North Africa, where many to enough dollars and euros to continue
leum products and metals account for economies rely heavily on cereal imports. settling the same volume of transactions
17 and 12 percent of disrupted imports. Africa already has one of the highest food they did previously. At this point, African
A majority of disrupted exports will be insecurity rates globally, with 452 mil- businesses will face a choice in their
food-related items: Fruits and vegetables lion Africans enduring food insecurity. transactions with Russian firms: utilize
together account for nearly 50 percent of Coupled with Africa’s increased reliance alternative forms of currency or find other
disrupted exports, while coffee and tea are on imported staple foods over the years, business partners—the choice matters.
responsible for an additional 11 percent. any disturbance to Africa’s food system The latter option faces switching costs and
threatens the health and wellbeing of rising costs of doing business. The former
Estimates for disruptions to rev- African households. approach faces financial risks, including
enue Despite the relatively low level of ex- currency risks and exchange costs.
Estimates for disrupted trade revenue are ports to Russia, the overwhelming con- Suppose, for instance, that African
comparably high for some countries, even centration of African exports to Russia businesses choose the first option. The
relative to overall trade revenue. In Egypt, in the agricultural sector, mainly fruits most appealing alternatives to the dollar
more than Sh81 billion in import duties and vegetables, suggests trade interfer- or euro are perhaps the Japanese yen,
are at risk of disruption; similarly, more ence will be most pronounced among pound sterling, or Swiss francs—which
than five percent of all trade revenue of African farmers, agro-processors, and all carry sanctions prohibiting their use
Senegal’s import duties risk disruption. agro-businesses—whose need to find new by Russia. Of the unsanctioned curren-
Our analysis suggests that, for some markets will be time-sensitive given that cies, the ruble itself would certainly be an
countries, sanctions on Russia could food products are perishable. attractive option to Russian businesses.
cause upwards of 5 percent of all trade Due to ballooning fertilizer costs and However, it is unlikely that their African
revenue to be disrupted due to dollar/ record-high global food prices, we specu- counterparts would find it attractive. The
euro sanctions alone. This figure, which late net welfare losses for consumers and volatility and uncertainty surrounding
could fall in the tens of millions of dollars, agricultural producers, despite higher their ruble’s value would pose significant
is too small to take priority, yet too big to market prices, given their exposure to risks to financial institutions that would
dismiss entirely. higher operating costs. However, export- help settle transactions between Russia
Because import portfolios and cor- ers and agribusinesses may gain from the and Africa, and these risks would be
responding duties differ widely across volatility in global agricultural markets passed on to businesses in the form of
African countries, the trade revenue as they skirt direct exposure to the ex- higher exchange costs.
lost by import also differs. In Angola, for traordinary increases in the prices of key Another option is the Chinese renminbi.

June 2022 • 21
Special Report
As the currency of the world’s second- concentrated in imports—and, under a organizations in the region to ensure that
largest economy and one of the five worst-case scenario, disrupt upwards of 5 even the poorest consumers have access
currencies underpinning the value of the percent of African trade revenue. African to food despite the elevated prices.
IMF’s special drawing rights, the renminbi policymakers must be agile in address- Fourthly, African governments should
certainly has the clout to assuage the ing worsening food insecurity caused by prepare for revenue shortfalls by broaden-
concerns of financial institutions settling soaring food prices and disrupted trade ing tax base. The risk of lost revenue is of
transactions. In fact, China’s Cross Border with Russia. We also argue that disrup- a magnitude that is too small to prioritize,
Interbank Payment System (CIPS)—which tions could destroy old partnerships and but too large to ignore. The lost revenue
offers secure messaging, clearing, and create new ones. The sanctions offer op- comes when finances are tight, and debt
settlement services for cross-border portunities to strengthen ties with Russia sustainability is dwindling for many coun-
transactions denominated in renminbi—is and offer opportunities to draw closer to tries on the continent. Policymakers
a growing rival to SWIFT. However, the the US and Europe. Regrettably, a middle should consider revenue duties stemming
degree of renminbi available for settling ground appears to be quickly evaporating from trade with Russia as a vulnerable
foreign transactions is relatively small. in the face of war. source of income when budgeting in the
According to the IMF, as of the last quarter near future. They can insure against these
in 2021, renminbi accounted for less than 3 Policy recommendations disrupted duties by accelerating efforts
percent (Sh39 trillion) of foreign exchange Firstly, African financial institutions to bring more companies and individuals
reserves globally. should raise funds apart from dollars into the tax base through formalization
In contrast, dollars and euros accounted and euros to facilitate trade. These institu- and digitization. Policymakers should
for nearly 80 percent of all foreign reserves. tions could be national (central banks) or be mindful to not raise VAT and GST on
China’s strict capital controls make it dif- regional trade finance institutions like the food products during this time when the
ficult for investors to acquire large, liquid African Export-Import Bank. Demands for prices of some staple goods remain high.
quantities of renminbi. While China is currencies other than dollars and euros Lastly, political and business leaders
Africa’s top trading partner, it remains may likely increase in the coming years to should take advantage of rapidly evolving
to be seen whether Africa could raise finance the nearly Sh1.6 trillion of annual global trade relations. With the US and
enough renminbi to finance all of Africa’s trade with Russia. Moreover, these institu- Europe looking to ween off many Rus-
trade with Russia, especially when Russia, tions should hedge their exposure risks sian goods and outright banning others,
whose annual trade exceeds Sh78 trillion, in these countries by hedging exposure in there is an opportunity for Africa to step
is in hot pursuit of RMB itself. Indeed, those currencies by, for instance, buying into the void left by Russia. The US and
early evidence suggests that the share of foreign currency swaps. Europe see Africa as a more politically
global transactions processed in RMB fell Secondly, African governments should viable long-term exporter of gas. There
from 2.7 percent in December 2021 to 2.2 help companies find alternatives to Rus- is an excellent opportunity for projects
percent in March 2022. Renminbi may end sian goods where logistically feasible. like the Trans-Saharan Pipeline to attract
up playing a much more prominent role in Sanctions will likely raise the cost of doing external financing. At the same time, global
settling cross-border transactions, but will trade with Russia. High transaction costs interest rates remain low (and, despite
likely take time to grow into its new role. may price Russian companies out of export recent increases, are likely to remain
A weakness similar to the one faced by and import markets for certain goods. well below their levels during the Great
renminbi plagues cryptocurrencies. Not For these goods, policymakers should Moderation). External financing need
only is there not enough available cryp- facilitate new partnerships for African not—and probably should not— come
tocurrency to finance Russia’s trade, not companies by eliminating informational in the form of increased debt. At a time
enough cryptocurrency to do so even ex- and infrastructural barriers. when broad outlooks on equities remain
ists. Russia’s annual trade volume almost Thirdly, relevant African ministries lukewarm, energy projects could entice
exceeds the market capitalization (in US and legislatures should mitigate food a fraction of the estimated $120 trillion
dollars) of the world’s most popular cryp- insecurity through subsidies and, where held globally by institutional investors
tocurrency, bitcoin. Even if Russia and its possible, increasing food supply. Sanc- and commercial banks. Funding could
trading partners were to convert enough tions may directly reduce the quantity also come internally from resource rev-
rubles into bitcoin to finance their trade, it of the food exported to Africa, but sup- enue windfalls or externally from public
would result in the value of bitcoin rising ply chain disruptions caused by the war partners looking to divest from Russian
so high that it would not be worth settling may indirectly increase the price of food oil and private companies looking to
such transactions. commodities like cereal and wheat sold take advantage of trans-Mediterranean
Sanctions could disrupt upwards of across the world, including Africa. Regional governmental cooperation on energy
1.8 percent of African trade—mostly policymakers should coordinate with food matters. ( (Brookings)

22 • June 2022
ECONOMIC INDICATORS
BY JA N N I E R O S S O U W
I
nflation is a process of sustained
increases in the general price level
over a period of time, typically 12
months.
Inflation can be calculated for a coun-
try, for specific regions in a country and
for different income and demographic
groups, for instance, pensioners.
These different calculations are es-
sential because the spending patterns
of regions and groups differ. That means
that their rates of inflation also vary.
Therefore, each household needs to
understand its own inflation rate clearly.
Some countries allow for the develop-
ment of this improved understanding. For
example, South African households can
use an Internet tool such as the personal
inflation calculator of Statistics SA. A
personal inflation calculator, based on
household spending patterns, is also
available for the Euro area, Canada and
New Zealand.
The phrase describing inflation as
‘enemy number one’ is borrowed from
the research done by South African
businessman Dr Anton Rupert on the
worldwide inflation problem suffered
in the 1970s.
WEALTH VS. FINANCIAL HEALTH He described inflation this way due to
Inflation should be
its distortive impact on the economies of
countries and the wealth and financial
well-being of households.
viewed as public
But the word inflation has a much
earlier origin. Its first use was in the US
between 1830 and 1860, when the US
enemy number 1:
dollar started losing value.
In short, people experience inflation
as sustained price increases. Prices con-
here’s why
tinue to increase, and the same amount
of money buys less goods and services
over time.
Why is it so bad?
Inflation does not make people wealthy, even though Inflation is bad because people on fixed
governments and borrowers benefit from inflation. This incomes, such as pensioners, get poorer
is why the description that inflation is public enemy over time. The buying power of their
number 1 is so accurate. money is eroded.
A further problem is that borrowers
enjoy an advantage over savers. With

June 2022 • 23
Special Report
high inflation, the capital value of sav- 8 percent, without an appropriate policy Consumers in those countries who
ings is eroded, while the real burden of response by the US Federal Reserve. earn income in local currency experience
borrowing declines. It becomes easier As a result, US inflation could become increasing difficulty to afford imported
to repay debt. Although interest rates a persistent problem. goods and services.
increase with higher inflation, the actual This unexpected acceleration in prices
value of the amount borrowed that has caught US households by surprise. Many The trust deficit
to be repaid declines as a percentage of households (for instance, pensioners) A problem in an environment of a sus-
salaries that are adjusted for inflation. who assumed that inflation would remain tained inflation is that people do not trust
Governments are the largest borrowers under control are now faced with much the official published rate of inflation.
in the world. Therefore, they are the major higher expenses without a commensurate Inflation rates are distrusted for several
beneficiaries of inflation, as the real value increase in income. reasons. The first is a general distrust of
of their debt is eroded at the expense Therefore, central banks must be government conduct. This results in a
of the taxpayers in their countries. Tax constantly vigilant and respond to accel- view that inflation rates are manipulated
collections increase with higher inflation, erating inflation. Inevitably, this implies by government agencies responsible for
and government debt becomes a smaller setting interest rates at an appropriate their publication to report lower price
percentage of government revenue raised real level above the rate of inflation. increases than is actually the case.
from taxes. The real rate of interest rates can be Secondly, increased prices for goods
calculated in several ways. The simplest such as fuel that receive considerable
Who manages inflation, and what and easiest way to calculate is by deduct- publicity lead to perceptions of general
instruments can they use? ing the rate of inflation from the nominal price increases. This problem is linked
Central banks have responsibility for interest rate. to the fact that price increases are much
containing inflation. They use the level Some African countries suffer persis- more visible to consumers and attract
of interest rates to contain inflation. tent inflation problems, with rates much more attention than price declines.
This responsibility for containing in- higher than in developed economies. The Lastly, inflation measures price in-
flation is most noticeable in countries Zimbabwean inflation rate for the year to creases on a cumulative basis, using each
that use inflation targeting. In these April 2022 accelerated to 96.4 percent, previous year’s price level as the base
countries, central banks adjust interest while Ghana’s inflation rate was 19.4 for calculations. This implies that each
rates in line with the rate of inflation and percent over the same period. last year’s inflated price level is used to
its expected future level to contain it to Countries suffering high inflation ex- measure the rate of inflation in the next
the target range. perience exchange rate pressure, with year. Over time the cumulative effect of
To contain inflation, central banks must declining currency values. The exchange sustained inflation becomes quite large.
keep interest rates above inflation. This rate of the currency will remain under This can be explained in a different way.
difference between the inflation rate downward pressure as long as high in- With a sustained inflation rate constant
and the interest rate is called the real flation persists. Owing to high inflation, at 5 percent per annum, the intuitive per-
rate). When the inflation rate accelerates investment in the country becomes ception is that prices will double every 20
and is expected to continue this trend, unattractive. The demand for the cur- years. In practice, however, under these
the central bank’s policy response is a rency, therefore, declines, which puts conditions, prices will double every 14.4
higher interest rate level (both nominal the country’s exchange rate with high years. Price increases, therefore, exceed
and real), commensurate with the change inflation under pressure. the perceptions of consumers.
in the inflation trajectory. The Ghanaian currency has already Given the negative impact of inflation,
depreciated by 18 percent against the US it is in the interest of all consumers that
What can go wrong? dollar this year. A further value decline is the authorities should always apply
Central banks can make wrong assump- expected for the rest of this year. policies that prevent price increases or
tions and use wrong projections to assess Over the past year, the Zimbabwean keep such increases to a minimum level.
future inflation. This can lead them to set RTGS dollar has lost more than half its Inflation does not make people wealthy,
interest rates at an inappropriate level. value against the US dollar). even though governments and borrowers
An example is the recent acceleration Owing to sharp currency depreciation, benefit from inflation. This is why the
in the inflation rate in the US to a level the domestic prices of imported goods description that inflation is public enemy
above 8 percent. At an average of around and services in countries like Ghana number 1 is so accurate. (
3 percent per annum, the US inflation rate and Zimbabwe have increased sharply — Author is Visiting Professor at the
was very low for the last four decades). and continue to increase each time the Business School, University of the Wit-
Recently the rate accelerated to above currency depreciates. watersrand

24 • June 2022
THE SOCIAL ECONOMY
ECONOMIC INCLUSION
Ethnic poverty: dividing

and excluding people keeps
them poor
BY TO LU O L A R E WA J U Sh220 a day). low members at the expense of national
S
Ethnic poverty occurs when there is growth.
ub-Saharan African countries systemic poverty for an ethnic group. In addition, different ethnic groups
are the most ethnically diverse We reviewed the connection between don’t always agree on what goods and
in the world. Within each African ethnicity and poverty in a chapter of the services public money should be spent on.
country there are more eth- Encyclopaedia of the UN Sustainable Inadequate public spending contributes
nic groups than there are in most of Development Goals. to higher poverty.
the world’s countries. Goal 1 is to end poverty in all forms Differences and favouritism often make
In fact, the world’s 20 most ethnically everywhere and the encyclopaedia is it difficult to take inter-ethnic group action,
diverse countries are all African. the first comprehensive publication ad- such as addressing poverty. While the
An ethnic group is a social group that dressing the goals in an integrated way. poverty rate has been falling in Africa, it
shares a common and distinctive history, Our chapter provided an overview of has not fallen fast enough to keep up with
culture, region, religion or language. research on ethnic poverty in developing population growth.
The reason for this diversity in sub- and developed countries. The work for the encyclopaedia shows
Saharan African countries is chiefly that We focused on ethnic poverty because that African nations, among others, would
almost all of them were carved into colo- some people are more likely to be in pov- do well to consider including diverse
nial territories without regard to ethnic erty due to ethnic differences in educa- ethnic groups in transparent governance
boundaries. tion, employment, entrepreneurship, and structures.
The region also accounts for 40% of access to infrastructure.
the world’s extremely poor (around 276 Members of ethnic groups in power Poverty and inclusion
million people who survive on less than sometimes distribute resources to fel- The five countries with the lowest GDP

June 2022 • 25
Special Report
be political roles that take into account
ethnic groupings. Informal structures
could be local committees that pursue
projects of interest to the ethnic com-
munity. Traditional village leaders could
also be useful whenever these leaders can
be held accountable.
Rather than just a standardised national
approach to poverty reduction, more is
needed to promote local participation
that can address specific ethnic issues.
How to reduce ethnic poverty

Our review showed that to reduce ethnic
poverty, ethnic minorities should be given
better access to education, resources,
infrastructure and opportunities.
We suggest: offering educational, ag-
ricultural and vocational training for
particular ethnic groups; offering business
training and support for ethnic minorities;
providing incentives for investment in
ethnic minority areas; improving industrial
development and transport infrastructure
in areas plagued by ethnic poverty; pursu-
ing a strategy of balanced urban and rural
98.9M 2017 40% socio-economic development.

Mauritius and Botswana are examples
Year when Share of the of sub-Saharan countries that have used
The number of people in extreme Mauritius world;s poor in this to reduce poverty. In fact, Mauritius
poverty in Nigeria. DRC is second with eliminated Sub-Saharan was able to eradicate extreme poverty in
64.9 million of its people in extreme extreme poverty. Africa.
poverty. 2017 by diversifying its economy and fol-
lowing this strategy.
per capita are in Africa: Burundi, Somalia, they will have different interests in public We also suggest reducing ethnic con-
Mozambique, Madagascar and Sudan. And expenditure. flicts by promoting peaceful dialogue and
two African countries have the highest Their governance styles may differ resolution of disputes; promoting trade
number of people in extreme poverty historically too. Not all are similar to along historical ethnic lines; and policy
in the world. They are Nigeria (with 98.9 western-style democracy. reforms to favour poorer ethnic groups.
million people in extreme poverty) and Ethnically related wars and genocides African nations need governance struc-
the Democratic Republic of Congo (64.9 have also slowed progress towards end- tures that effectively manage the chal-
million). ing poverty. Conflicts in Liberia, Somalia, lenges facing diverse ethnic groups.
Poverty goes beyond a lack of income Rwanda, the Democratic Republic of These governance structures will need
and material resources. It shows in hunger Congo, Uganda, and Chad, among oth- to enhance inter-ethnic group coopera-
and malnutrition, and access to education ers, have led to civil wars exacerbated tion, especially with regard to economic
and other basic services. It’s also about by a struggle for ethnic identities and management.
social discrimination and exclusion from resources. They should embody the principles
decision-making. African countries can better represent of participation, inclusion and consen-
Different ethnic groups are likely to have the interests of their numerous ethnic sus-building among Africa’s numerous
somewhat different economic interests – groups by engaging them in both formal ethnically defined social groups. ( (The
if only because they come from different and informal governance structures re- Conversation)
parts of the country and may specialise flecting diversity. — Author is a lecturer in Management,
in different economic activities. Thus, Formal governance structures could Keele University

26 • June 2022
AU SUMMIT
HOUSEKEEPING ment Monitoring Center (IDMC) released
African leadership
in May suggested that 23.7 million people
were internally displaced as a result of
climate-related disasters worldwide, as
grapples with coups,

well as 14.4 million displaced by fighting.
Countries such as Ethiopia, Kenya,
Somalia and South Sudan are already
famine, terrorism,
experiencing stronger and more frequent
floods and droughts in recent years. It
climate change
is feared that climate-related shortages
could aggravate existing conflicts.
One glaring example is Cameroon, where
the scarce water resources in the country’s
W
far north region have pitted fishers and
hen African Union leaders changes of government on the Continent, farmers against one another, prompting
gathered last month for is a compelling and shared task for all the displacement of at least 100,000
an extraordinary summit stakeholders.” people inside Cameroon and beyond.
in the Equatorial Guinea The declaration lists some 28 steps to
capital, Malabo, they discussed challenges take towards this end, although several of War on Ukraine casts shadow on
ranging from terrorism to democratic them rather vague. They range from bet- Africa
governance and climate change. ter tackling social media disinformation, The summit also addressed the impact
“The African continent is the victim to developing “a comprehensive frame- Russia’s war on Ukraine has had on African
of cruel terrorist attacks perpetrated by work establishing different categories of countries. A drop in food aid and a sharp
groups such as Boko Haram, al-Shabab, sanctions that may be gradually applied” increase in food prices are taking their toll
Ansar al-Sunna, the Islamic State (IS), et to countries where coups take place, to on African refugees and forcibly displaced
cetera, et cetera,” Equatorial Guinea Presi- simply establishing “clear and precise individuals, threatening to further fuel
dent Teodoro Obiang Nguema Mbasogo standards that allow for a substantive intercommunal tensions.
on the second day of the summit on May assessment of member states’ constitu- The UN humanitarian office, OCHA, has
28, which focussed on terror threats and tional orders.” estimated that some 18 million Africans
evaluated existing response mechanisms. could face severe food insecurity in the
Parties also discussed necessary actions coming three months, particularly in sub-
and measures to strengthen the security Saharan Africa.
of African states facing terrorism and
A drop in food aid and a In a virtual address to the summit on
violent extremism.
sharp increase in food Friday, European Commission President
prices are taking their Ursula von der Leyen said the EU would
Unconstitutional changes to gov- toll on African refugees commit “further financial support to our
ernments and forcibly displaced African partners.” She said this would have
The AU assembly is currently consider- individuals, threatening to an “immediate focus” on food security and
ing at the recommendations put forth further fuel intercommunal a “long-term” focus on the “root causes
during the March AU Reflection Forum tensions. of insecurity.”
on “unconstitutional changes of govern- “Ukraine is the granary of the world. It
ment” in Africa. Climate issues challenging Africa alone exports half the world’s sunflower
Four members – Mali, Guinea, Burkina AU leaders also discussed the humani- oil and provides over half of the World
Faso and Sudan – are currently suspended tarian crises on the continent, further Food Programme’s wheat supply,” von der
from the AU following coups in those exacerbated by climate change. Leyen told the summit, adding that the
countries. Three of these changes of gov- UNHCR Assistant High Commissioner EU was also trying not to have an impact
ernment took place last year, and Burkina Raouf Mazou said in an address during on Russia’s food business with sanctions.
Faso’s in January this year. the summit that climate-related disasters Global wheat prices have risen by
AU leaders put off approving Accra in recent years have added to existing roughly one-third in 2022 alone.
Declaration, drafted at a meeting in March. population displacements caused by “The speed at which we act now will
This declaration says that to “prevent violence and conflict. determine the scale of the problem in a
and end any form of unconstitutional A 2021 report by the Internal Displace- few months,” von der Leyen said. (

June 2022 • 27
COVER STORY

28 • June 2022
FOR BETTER OR FOR WORSE
BAROMETER
A poisoned
chalice: Uhuru’s
legacy
As his presidency winds down on the back of impressive infrastructure
achievements, it cannot escape notice that Kenya’s Chinese loans will
soon come to resemble Sri Lanka’s: unpayable and unserviceable.
BY P E T E R WA N YO N Y I
O
n May 17, Sri Lanka was down 2009 and ending the war, which had lasted over
to just one day’s supply of 25 years. But China was interested in more than
petrol. The country, beset just a government victory.
by debt and unable to afford Powerful empires need to dominate sea lanes
imports of fuel, food, cooking for trade and military projection. For this, they
gas, or anything else, was need geostrategic locations from which they can
in the grip of devastating deploy forces quickly, and deep-water ports
riots and protests, as irate where they can berth their navies. Countries that
citizens burnt government possess these features become highly coveted
vehicles and beat up govern- targets for ambitious empire-builders, and Sri
ment officials across the island. The island’s Lanka is no exception. From the mid-1600s to
worsening economic crisis turned deadly: an the early 1700s, the Dutch and Portuguese em-
MP was killed, ministers’ houses were torched, pires fought bitterly contested wars for control
and hundreds were injured as violence spread of Sri Lanka before the British Empire gained
across the island. control of the island and used it to guarantee
The older Rajapaksa was once the toast of its control of trade with the crown jewel in
the nation. Serving as President of Sri Lanka its empire, India. Later, as the British Empire
from 2005 to 2015, he led the country’s military waned, Sri Lanka gained independence – and
in their civil war against the secessionist Tamil was co-opted into the American camp during
Tigers. Rajapaksa’s forces became increasingly the Cold War, with China and the Soviet Union
ruthless in the war, and Western countries also continually vying for interest and control
condemned the violence against Tamil civil- of the island. The Soviet empire collapsed, the
ians that the military quickly gained notoriety Americans lost interest in the region, and a new
for. Starved of Western support and weapons, power arose that coveted Sri Lanka for its unique
Rajapaksa turned to China for military aid. The geographic features. That power was China.
Chinese came through for him, resulting in the Sri Lanka occupies a highly strategic location,
Sri Lankan army defeating the Tamil Tigers in straddling vital sea lanes that host numerous

June 2022 • 29
COVER STORY
sea trade routes. Nearly 70 percent of for yet more loans to avoid defaulting on
the world’s oil and over 50 percent of the the loans. China patiently dished out yet
world’s container shipments pass through more money, and Sri Lanka sunk deeper
Sri Lanka’s southern waters. Sri Lanka also into debt.
has many natural deep-water harbours By early 2022, Sri Lanka was in a bind.
that, if developed, can quickly become It needed to repay $7 billion in loans to
critical maritime hubs in the Indian Ocean China, but the country was broke. China
region, given Sri Lanka’s easy access and applied the squeeze, and Sri Lanka was
central location to the Middle East, East forced to hand over control of its assets
Africa, South Asia, and Southeast Asia. – ports, airports, roads – to China. That
And so, as Rajapaksa celebrated his wasn’t enough, though, and Colombo was
victory over the Tamil Tigers, the Chinese forced to beg China for a restructuring of
showed up bearing gifts. Sri Lanka gorged its debt. China declined, and Sri Lanka ran
on hefty loans from the Chinese and set to the IMF for help. The IMF also declined,
about investing in impressive infrastruc- having been side-lined by Sri Lanka during
ture: $5 billion was splurged on a new its Chinese-loan boom years. The local on the island by sending in some form
port, a new airport, and broad highways currency plummeted, and inflation shot of a peacekeeping force. But what, you
cutting back and forth across the island. up: in March 2022, consumer prices rose wonder, does this have to do with Kenya
China attached no transparency or ac- by 19 percent. and Uhuru Kenyatta’s legacy?
countability conditions to the loans, and As imports became more and more Everything, as it turns out.
the Rajapaksa clan grew fat and wealthy expensive, fuel shortages became a daily Uhuru Kenyatta’s presidency has uncan-
off the Chinese largesse. Another $2 bil- occurrence. The country ran out of cooking nily mirrored that of Mahinda Rajapaksa.
lion of Chinese money went into setting gas, and widespread power outages cre- Uhuru’s economic platform is based on the
up a modern business hub near the port ated chaos. Food and medicines became same foundation as Rajapaksa’s: eschew-
of Colombo, which itself had received scarce, and violent street protests broke ing conditional Western loans and instead
hundreds of millions of dollars in Chinese out. The Rajapaksa clan had lost power going after China’s “easy money”. The
investment. China snapped up Sri Lanka’s after the 2015 presidential elections, when going has been good for Uhuru’s cronies,
debt whenever it could, and loaned Sri Mahinda lost to his former aide, Maithri- who have grown fat off the loans. Kenya
Lanka the money to repay interest on those pala Sirisena. But the clan had made a has built impressive infrastructure dur-
loans. Colombo’s exposure to China was comeback after his brother Gotabaya ing Uhuru’s presidency – everywhere one
so massive and apparent that it was used Rajapaksa won the presidency in 2019, looks, there are gleaming new railway sta-
to warn other countries bent on tapping helped in part by a spate of mysterious tions. Our main airport, JKIA, is now the
China’s bottomless pockets. bombings that led to heavy criticism of most modern airport in the region and all
In July 2018, this column, running in our Sirisena, who ended up serving just one of Africa outside South Africa – without
sister paper, The Nairobi Business Monthly, term in office. The Rajapaksas had quickly the thieves and robbers one encounters
cautioned Africa to beware of the Chinese gone back to their Chinese friends, making in South African airports. Brand new
debt trap and warned of the calamity soon up for lost time by taking on even more highways crisscross Nairobi and the rest
to befall Sri Lanka (see Nairobi Business Chinese loans. But in May 2022, Mahinda of the country. Shiny buildings adorn
Monthly, July 2018, “Africa, Beware of the was forced to resign. Nairobi and other cities as Chinese money
Chinese Debt Trap”). sloshes across Kenya.
And then Covid-19 struck. As the world Hune monetary splurges Uhuru’s splurge on infrastructure is
went into Covid lockdowns, trade in the Days later, Sri Lanka defaulted on its the most visible legacy of his “Big Four”
Asian region – the hardest hit by the debt. At the time of writing this article, agenda, which made up the main plank
virus – ground to a halt. Sri Lanka’s role the country is in deep crisis: there is no of his re-election platform in 2017. He
as a regional business hub evaporated electricity on the island, there is no fuel, promised to focus on developing afford-
overnight. The ships that had been pay- no cooking gas, no food, and with violence able housing, food security, universal
ing berthing and transit fees to Sri Lanka in the streets. Without the money to healthcare, and manufacturing. These
stopped coming. The shiny new ports and pay the military, it is doubtful that the developments were expected to create
airports it had built with Chinese loans fell government can survive, and Sri Lanka’s millions of jobs and lift Kenya towards the
silent and sat empty. Sri Lanka was mak- creditors – principally China – will be business end of middle-income status by
ing no money, but its Chinese loans were forced to either take a haircut on their the end of this year.
still due. Sri Lanka turned to its creditor debt or commit to re-establishing order At least that was the plan – the real-

30 • June 2022
stay of Kenya’s economic leadership in Last month, it was revealed that an-
the region. But Covid-19 put paid to most nual Kenya’s debt repayments for Chi-
of this, as a brief but ill-advised lockdown nese-funded infrastructure projects had
– thankfully abandoned when it became doubled, and now stand at Sh74 billion.
clear that it was pointless – wreaked havoc Chinese lenders dominate Kenya’s loan
on the sector. The corruption within Ke- repayments, with over 80 percent of our
nya’s electricity sector and the inefficiency loan repayments heading to China. Alarm-
caused by the Kenya Power monopoly ingly, Kenya asked China for debt relief
have continued to make Kenyan manu- in December, arguing that Covid-related
There are some facturing expensive and almost untenable, economic stagnation meant Nairobi was
parallels to draw
between Singapore
and Covid was nearly the final nail in that not in a position to service its debt. China
and Kenya's coffin. But although the sector just about rejected the request. Today, Chinese
situations.
survives, it will never be the success that loans to Kenya amount to over US$ 7 bil-
Uhuru thought it would be, and this was lion – and growing, as China is projected
clear from about 2018. to lend Kenya billions more this financial
ity turned out differently. Developing Uhuru, therefore, settled on the one year. Repaying these loans is dependent
affordable housing requires bravery in thing that he could deliver: infrastructure. on good economic performance in Kenya,
Kenya because it needs land reform in In this, he followed the Sri Lankan model. which in turn depends on two critical fac-
and around our urban centres – and land Kenya occupies a very strategic location tors: the coming presidential election and
reform is the one thing Kenya’s ruling on the East African coast and is famously the state of the world economy.
classes all agree on: it must never happen. the gateway to the resources locked up It is no secret that worldwide food
Uhuru’s affordable housing ambitions in Congo to the West. Only Kenya and its shortages are coming. Vladimir Putin’s
died quickly. Achieving food security as- sister country, Uganda, have the roads demented invasion of Ukraine has resulted
sumes that Kenya’s idle farmland – most to get Congolese timber, minerals and in the world losing over 12 percent of its
of it held by colonial-era concessions to other resources to the world market. By wheat crop, which is Ukraine’s share of
owners of British descent – will be turned an accident of geography, Congo is to the world wheat production. The resultant
into productive farms. This is a touchy West of Africa, while the markets for its Western sanctions on Russian resource
issue: Kenya’s position as the economic resources are to the east, in Asia. exports have created a massive spike in
powerhouse of East, Central and Southern The journey around South Africa from oil price, as Russia is a major oil and gas
Africa (excluding South Africa) relies on Asia to western Congo is long, expensive producer. Even worse, Russia, Ukraine
businesses owned by a small, immensely and dangerous. And, at any rate, Congo’s and Belarus account for up to 40 percent
wealthy White elite, alongside their Asian resources are concentrated in the east and of world fertiliser production across the
and ruling-class African elites. south of the country, close to Tanzania Potassium, Nitrogen, and Phosphorus
Any moves to confiscate the land owned and Uganda – and Tanzania lacks the ranges.
by this privileged few would see Kenya road and rail networks needed to ferry
quickly descend into Zimbabwe-style those resources to the coast for onward Stretched to the limit
economic chaos, a situation that South transport to China. That leaves just one Ukraine’s production has been de-
Africa is inexorably heading towards. No viable route: moving Congolese resources stroyed. Russia and Belarus are under
one – not even Kenya’s Africans – wants from Eastern and Southern Congo through sanctions and cannot export their prod-
that. Add to this Kenya’s attractiveness as Uganda – which has a good road network ucts easily. This shortage of fertiliser will
a destination for refugees from the region’s – and onto Kenya’s shiny new highways. lead to poor harvests and massive food
never-ending wars, and the corruption This is why the Chinese have invested shortages in the very near future, and eco-
of the country’s ruling class, and food so heavily in Kenya’s rail, air, and road nomic growth in food-insecure countries
security was never going to happen – how links. As with Sri Lanka, Kenya is walking like Kenya – and the rest of Africa – will be
do we achieve food security when we can- a debt-servicing tightrope: in December massively impacted. But our people say
not stop refugees pouring in? The World 2018, a leaked letter from Kenya’s Auditor- that among the blind, the one-eyed man
Food Programme feeds some of them, but General warned that the Kenya Ports is king. Even with food shortages, Kenya
Kenya must also devote resources to the Authority risked losing its assets to China will be far better off than its neighbours,
teeming camps. Uhuru quietly ignored if Kenya defaulted on its Chinese loans. where food shortages and perennial wars
his pledges to enhance food security as The letter was hushed up and declared “a – Ethiopia, Somalia, South Sudan, and
a pillar of his second term. mistake”, but the alarm bell was ringing. Congo are all at war – will see the usual
Manufacturing has always been a main- It has become louder since. refugee numbers made worse by food

June 2022 • 31
COVER STORY
An unlikely union,
shortages. So, naturally, Kenya will receive
even more refugees than usual. Kenya’s
economic productivity will be strained,
a testy election
and our ability to pay our Chinese debts
will be severely tested.
And then there is the politics of suc-
and a torn legacy

cession. Once upon a time, Raila Odinga
could be relied upon as incorruptible
and financially unimpeachable. But time
changes everyone, and Raila’s hunger for
the presidency has seen him bury his
principles and go to bed with Uhuru’s BY N L M W R I T E R
mob. It’s no exaggeration to state that
the president’s inner circle is exceed-
ingly corrupt: Uhuru himself has stated
so on many occasions. These nameless
nabobs will continue to run the show in
a Raila presidency as the quid pro quo
for accepting the old man’s candidacy.
The alternative is not appealing either.
William Ruto’s rags-to-riches journey is
amazing, but no one pretends that he be-
came one of Kenya’s wealthiest people by
burning the midnight oil and relentlessly
applying himself to business.
Influence-peddling and outright corrup-
tion by his inner circle has always been
an open secret, and the DP himself has
faced accusations of having an unhealthy
appetite for other people’s land – and for
public money. He has denied the accusa-
tions, but the impression has remained,
and it’s not difficult to see why. Even
the presence of bridesmaids Musalia
Mudavadi and Moses Wetangula is little
comfort: Kenya’s most infamous corrup-
tion scandal, Goldenberg, happened on
Mr Mudavadi’s watch at Treasury. And
Mr Wetangula’s alleged entanglement
with the real estate assets of the Kenyan
embassy in Tokyo needs no retelling.
I
All political careers end in failure. Uhuru’s
is no exception. As his presidency winds rony is a form of politics, to quote Franco Berardi.
down on the back of impressive infrastruc- But even when it is not, often, irony and politics go
ture achievements, it cannot escape notice hand-in-hand. This spectre defines the General Elec-
that Kenya’s Chinese loans will soon come tion in August – and, by extension, President Uhuru
to resemble Sri Lanka’s: unpayable and Kenyatta’s political legacy.
unserviceable. This mess is what Uhuru Deputy President William Ruto has long maintained
hands over to his successor. As legacies that the 2018’ handshake’ between President Kenyatta
go, this one is a poisoned chalice. ( and Orange Democratic Movement leader Raila Odinga
— The author is an information systems derailed the Jubilee government’s development and
professional. governance track record. On his part, Mr Odinga insists

32 • June 2022
that the Handshake helped resolve the president “openly told me he no longer cut the country’s ballooning public debt,
political crisis that followed the disputed wanted us to work together in delivering and provide monthly payments for the
elections of 2017 – Odinga boycotted a Jubilee's promises to Kenyans.” country’s poor and unemployed. In his
rerun ordered by the Supreme Court in Such is the irony that characterises speech at Chatham House, weeks after
October of the same year. this year’s General Election: it is a contest Ruto made his address there, Mr Odinga
Mr Odinga was accused of treason between a sitting Deputy President cam- said he would prioritise easing the coun-
– although he was never tried – follow- paigning in opposition to his government try’s debt burden by renegotiating loan
ing his unofficial swearing-in in Uhuru and an Opponent aspirant endorsed by terms and prioritising commercial loans
Park in January 2018, culminating in the the President. And in March this year, with long-term lenders lower interest
Handshake barely two months later after that spat played out in the international rates. Kenya, he insisted, would not de-
President reached out to the ODM leader arena when both the DP and Mr Odinga fault and would address any concerns
for talks and reconciliation. The resultant visited London to rally support in the through dialogue.
pact created a strange political world in diplomatic community. The upcoming General Election is an
which Mr Odinga, once a bitter critic of Speaking at Chatham House when he important democratic event, but it is
the UhuRuto duo, has emerged as one of visited Britain in March, Ruto promoted also a litmus test of how well President
the strongest defenders of the Jubilee his bottom-up economic model as the Kenyatta can consolidate his tattered
government. elusive solution to which Kenyans have legacy, and Kenyans continue to debate
Mr Odinga is steadfast in defending long aspired. the President’s election wager and political
President Kenyatta’s track record on Ruto’s economic pitch is that he will future in the Azimio candidate, Mr Odinga.
healthcare and infrastructure, but he support the ‘hustlers’ [common person].
continues to criticise the Jubilee govern- His basis is that small businesses are the Revive BBI
ment’s performance on debt. Experts have biggest support of Kenya’s economy. The curtain will fall - or is supposed to - on
long raised concern about the terms and Kenyatta’s presidency in less than three
structure of Kenya’s debt portfolio, with months. But, as Dauti Kahura writes in
such criticism often dismissed by none ‘The Elephant’, the President does not
other than the Treasury itself as alarmist. Uhuru’s legacy must be looked behave like someone who wants to leave
In September last year, the Central Bank at through the lens of the August after his constitutionally mandated two
– which has always expressed confidence Election and the events leading terms are over.
that our public debt is manageable – raised to it. Two months out, it is clear When the Building Bridges Initiative
the alarm and asked the government to the President has unfinished was born, many correctly read its inten-
curb its ballooning debt, which currently business and is in the thick of the tions as a project geared to secure a
stands at over Sh8.4 trillion – more than makings of a murky succession. post-presidency position for Uhuru after
70 percent of GDP. 2022. Evidently, President Kenyatta has
Odinga argues that a large proportion of Small business grants and a government- no intentions of exiting active politics
the additional debt burden was incurred backed loan scheme will help them unleash soon. Besides staying on as leader of the
in the Jubilee government’s first term and their economic potential to expand our Jubilee Party, he also chairs the power-
confines his praise of President Kenyatta economic base and GDP: the DP’s entire ful Council of the Azimio la Umoja-One
Uhuru to his second term. campaign rests on this premise. Kenya coalition.
On the other hand, DP Ruto blames the Whenever he has had to respond to Although the Supreme Court officially
Handshake for the country’s unmanage- critics of his “hustler’s economic model”, killed off the BBI constitutional reform
able debt. Ruto has capitalised on the debt DP Ruto has often responded that the following its ruling on March 31, it did not
status, accusing the Handshake duo of alternative, the trickle-down approach, entirely bury it. Mr Odinga has promised
overseeing the raising of the debt ceiling has failed because it is very good at to revive many of its key provisions. As he
to unmanageable levels. breeding cartels – a euphemism for the told Chatham House, ‘I’m convinced our
“Tragically, the only thing I can re- fabulous riches that Kenya’s political constitution still needs some reforms’.
member that the Handshake has done elite, including the Kenyatta and Odinga For better or worse, President Uhuru’s
on matters to do with the economy is to families, have amassed. To his credit, the legacy must be looked at through the lens
borrow Sh7 trillion in the last five years,” hustler economic model is a quite efficient of the August Election and the events
the DP said during UDA National Delegates campaign tool. leading to it. Two months out, it is clear
Conference at Kasarani in March. Mr Odinga, on the other hand, cites his the President has unfinished business
In the same breath, the Mr Ruto says reform-driven history and says he will and is in the thick of the makings of murky
he broke ranks with his boss because the tackle graft and waste of public resources, succession politics. (

June 2022 • 33
COVER STORY
W
A CRUEL UNION hen archivists finally put
pen to paper on President
How UhuRuto beef

Uhuru Muigai Kenyatta’s
legacy, he will, among
other firsts, go down in
will define future

history as Kenya’s first
two-term President with
three presidential elec-
power relations
tions. He was voted for
twice in 2017 in his bid
for re-election after the Supreme Court nullified
his victory and called for another presidential vote
In many elections to come, presidential in 60 days.
candidates will look back to how President But the most intriguing first of President Kenyatta,
Kenyatta related to his deputy, especially in their where historians will dedicate acres of literary space
second term, in choosing their running mates. on, will be that he was the country’s first President
under whose tenure Article 148 of the 2010 Constitu-
tion was operationalized. The annalists will be keen
BY O U M A OJA N G O to investigate how the same shaped his leadership
and, by extension, his legacy.
Article 148 establishes and cements the tenure of
the office of the Deputy President. Unlike in the old
order where the holder of the Office of the President
appointed a Vice President at his pleasure after elec-
tions, Article 148 establishes a presidential ticket by
requiring the naming of a running mate by a presi-
dential candidate long before elections and ties the
two together like Siamese twins for the entire term.
“Each candidate in a presidential election,” Article
148 (1) states, “shall nominate a person who is quali-
fied for nomination for election as President, as a
candidate for the Deputy President.”
The Article then orders the Independent Electoral
and Boundaries Commission. in sub-article three,
to declare the candidate nominated by a success-
ful presidential candidate as the elected Deputy
President who, just like the President-elect, is sworn
in publicly by the Chief Justice or the Deputy Chief
Justice.
Unlike in the pre-2010 Constitution, the Deputy
President does not serve at the pleasure of the Presi-
dent. It shall be remembered that the late President
Daniel Arap Moi dropped Prof. George Saitoti as Vice
President after the 1997 General Election, only to
reappoint him months later by the roadside. For the
24 years (1978-2002) the late President Moi ruled, he
had three vice presidents: Mwai Kibaki, Josephat
Karanja and Prof. Saitoti. They were appointed and
served at his pleasure, with their firing as humiliating
as was typical in the KANU regime. Prof. Saitoti’s his-
tory as President Moi’s Vice President was the most
disgraceful. He was bypassed even as Vice President

34 • June 2022
in the succession line-up at the tail end of tion, they have run the course of their health care, manufacturing and Job cre-
President Moi’s leadership for a political second term solely on the requirements of ation. He wanted his entire government
greenhorn, Uhuru Kenyatta, despite being Articles 147-151 of the Constitution. Were to focus on the same.
the most loyal vice president. we still under the old Constitution, it is an His Deputy, however, had other things in
With the 2010 Constitution, Article open secret that it wouldn’t have taken mind. He channelled his energies too early
148 (6), the term of office of the Deputy long after re-election before President campaigns for the 2022 August elections.
President runs from the date of their Uhuru Kenyatta relieved his deputy of This divergence in focus between the two
swearing-in and shall end only when the his duties. strained their association with the man
person next elected President at the Even though the headwinds in the rela- on whose shoulders the country’s destiny
ensuing presidential election is sworn in tionship of the President and his deputy was bestowed, choosing to quietly edge
or on the Deputy President assuming the came to the fore early in their second out his number two from the sanctum of
office of President or on their resignation, term when it became apparent that they government operations. The two strayed
death or removal from office. This makes were charting divergent paths, a legacy for apart, especially towards the last year of
it very difficult for the President to fire the President and 2022 elections for the their tenure.
their deputy. Deputy President, it had been fomenting The President has since come out openly
In fact, according to Article 150 of the from the tail end of their first term. It must to declare his number two as lacking in
Constitution, the Deputy President can be agreed that the duo’s first term in office character and not fit for the rigours of
only be removed from office on the ground was wasted. Much of their manifesto was the big office. He has accused his second
of physical or mental incapacity to perform not implemented. in command of having deserted duty and
functions of office or on impeachment, Corruption skyrocketed mostly in the chosen to spend much of his time on
which is restricted to three grounds; programmes they had attempted to imple- car rooftops in campaigns. He has also
gross violation of the Constitution or any ment, notably infrastructural and, more endorsed the Official Leader of the Opposi-
other law, where it is seriously believed tion, Raila Odinga, as the most qualified to
that they have committed a crime under succeed him. The Deputy President, who
national or international law or for gross is now all out in campaigns to succeed the
misconduct. This relationship between Uhuru President, on the other hand, has accused
The Constitution, in Article 147, also and Ruto, in view of Article 148 of his boss of constructive firing. Were it not
lists functions of the Deputy President, the Constitution, has informed for the Constitution, President Kenyatta
including that he shall be the principal how presidential candidates in and his deputy wouldn’t have reached the
assistant of the President and that where the August 9 General Election have touchline of their second term together.
the President is absent or is temporarily chosen their running mates. This relationship between President
incapacitated and during any other period Uhuru Kenyatta and Deputy President
that the President decides, they shall act specifically, the Standard Gauge Railway, William Ruto, in view of Article 148 of the
as the President. where public coffers were fleeced through Constitution, has informed how presiden-
President Uhuru Kenyatta and his fraudulent land compensation schemes. tial candidates in the August 9 General
Deputy, William Samoei Ruto, were the The 2014 Sh132 billion Eurobond, whose Election have chosen their running mates.
unlikeliest of running mates on a presi- proceeds couldn’t be pinned down on any William Ruto himself, even though he
dential ticket. They were forced to come development in the country, had also left later disregarded his own mechanism to
together in a coalition by circumstances egg on the government’s face. The NYS choose his bosom friend, had put in place
when it became apparent that ascending to scandal in which an inquiry revealed that a vigorous process of finding a Deputy
and assuming the country’s reins of power monies were withdrawn from banks and President-designate in his Kenya Kwanza
was the only way they could circumvent taken away in sacks and many other frauds Alliance, including opinion polls and vot-
their cases of crimes against humanity in involving the loss of vast sums of money ing through delegates. On the other hand,
The Hague. The cases had come about from from public coffers had portrayed Presi- Raila Odinga went for a selection panel
the violence that engulfed the country dent Kenyatta’s first term government that included representatives from major
post-2007 General Election. The two had as one riddled with runaway corruption. parties that formed his Azimio la Umoja
been accused of funding, among other Evidently, the President was desper- One Kenya Alliance.
felonies, their tribes against each, lead- ate to turn around this perception and In many elections to come, presiden-
ing to death, destruction of property and secure a legacy right from the sunrise tial candidates will still look back to how
forced displacement of people. of his second term. He came up with the President Kenyatta related to his deputy,
While the two survived their first term Big Four Agenda, whose pillars were food William Ruto, especially in their second
purely on the exigencies of their re-elec- security, affordable housing, universal term, choosing their running mates. (

June 2022 • 35
Business
FOLLOW US:
Most businesses in the country, including public

transport vehicles, have increasingly adopted
POLICY • REAL ESTATE • cashless transactions and e-commerce.
ECONOMY • COMPANIES •
INDUSTRY • STOCKS • M&A
GOOD BAD
MONTH MONTH
FOR... FOR...
Absa Kenya Kenya’s Coffee

The bank’s net profit The country’s coffee
for the first quar- production in the 2022-
ter of the 2022 has 23 season is projected
increased 22%, driven to decrease by 10% to
by growth in net
interest and non-
funded income.
700,000 bags on the
back of rising prices of
fertilizer according to
Mobile money
transactions hit
the US Department of
Agriculture (USDA)
STOCK EXCHANGE Sh1.82 trillion in

F F Q1 2022
K
NSE 20 NASI
1,677.03pts 129.02pts enya’s mobile money use hit
687
a new high of Sh1.82 trillion
in the first quarter of 2021 as
businesses fully recover from
the effects of the Covid-19 pandemic, Amount, in billions
STOCK OF according to the latest data released
by the Central Bank of Kenya.
of shillings,
transcated in 2021
THE MONTH The usage is an increase from
Sh1.6trillion transacted during a simi-
Sanlam Kenya
116
lar period in 2021. Citizens transacted
Plc Sh687.3billion on the platforms in March,
Sh14.00 the highest amount ever in a month, the

regulator noted. Value, in trillions of
+ Sh3.85 (+37.93%) Most businesses in the country, in- shillings, transcated
cluding public transport vehicles, have globally.

36 •June 2019
MONEY
increasingly adopted cashless transac- CAPITAL
tions and e-commerce, giving a huge
boost to the service with most transac-
tions being conducted through mobile AfricInvest raises
Sh48 billion for
phones.
According to CBK during the quarter,
the number of registered mobile money
users stood at 69 million as the number
of agents employed to offer the service
rose to 302,837, up from 299,860 in
investments in Africa
December 2021.
Kenyans use mobile money to transact
for banking and government services,
access loans, pay bills and school fees,
and raise funds, among others.
According to a recent survey by the
Central bank, a majority of Kenyan busi-
nesses have also fast-recovered from
the effects of the Covid-19 pandemic
due to the increased adoption of digital
services.
According to a recent report, Africa
now accounts for 70 percent of the
world’s Sh116 trillion mobile money
value. The value of Africa’s mobile money
transactions edged up 39 percent to
Sh81.7 trillion in 2021 from Sh57.7 bil-
lion in 2020, highlighting the future of
African banking is mobile.
GSMA’s figures show the volume of
P
digital transactions jumped 23 per-
cent to 36.7 billion in 2021 from 27.5 rivate equity firm AfricInvest development bank FMO, IFC, and French
billion in 2020. has raised Sh47.9 billion in a development institution Proparco.
In the review period, registered mobile new fund for investments in The fund, dubbed AfricInvest IV, is
wallets in Africa topped 621 million, a mid-sized companies in Afri- the largest the firm has raised, eclipsing
17 percent increase from 562 million can countries including Kenya. the Sh35 billion it raised from the previ-
captured in 2020. Currently, there are Investors who took part in the fund- ous flagship fund, AfricInvest III, which
over 184 million active mobile money ing include BII UK (formerly CDC UK), closed in 2016.
wallets on the continent compared to German investment fund DEG, the Eu- It ordinarily caps investment per region
161 million accounts just over a year ropean Investment Bank (EIB), Dutch in Africa at 35% of a fund, meaning East
before. African investments could access up to
The African mobile money ecosystem Sh16.8 billion from the new fund.
is also rapidly diversifying as is the rest Since its inception in 1994, AfricInvest
of the world, from business-to-consumer The fund, dubbed has raised more than $2 billion in funds,
(B2C) to Business-to-business (B2B.) AfricInvest IV, is the which it has deployed into over 190 com-
According to GSMA, the total global largest the firm has panies in more than 35 African countries.
transaction value in 2021 was Sh116 tril- raised, eclipsing the Sh35 In Kenya, its investee firms have in-
lion, up 31 percent from 2020. While the billion it raised from the cluded UAP Insurance Group, Family Bank
trillion-dollar mark was a long-awaited previous flagship fund, Kenya, I&M Bank Rwanda, Prime Bank,
goal of the industry, the GSMA had ini- AfricInvest III, which Britam Holdings Group, Silafrica Plastics
tially predicted it would not be achieved closed in 2016. & Packaging International, Abacus Phar-
until 2023. ( maceuticals and Brookhouse Schools. (

June 2022 • 37
Business
The instant currency exchange service
offered by Grey enables its customers to have users to send and receive international
virtual international bank accounts for free payments without restrictions quickly.
Cellulant is the company’s payments pro-
cessor powering its pay-outs to thousands
of Grey’s customers.
In an exclusive ceremony attended
by senior management from Grey and
Cellulant at the Radisson Blu Hotel, Up-
perhill, Nairobi, on 25 May, the company
showcased how users could create a virtual
foreign USD, GBP, and EUR bank account
for free. Users can receive payments and
convert directly to Kenya Shillings or the
Nigerian Naira.
The instant currency exchange service
offered by Grey enables its customers to
have virtual international bank accounts
for free, helping small businesses, free-
lancers, remote workers, and content
creators in Kenya to enjoy a seamless
payment process.
Today, thousands of young Kenyans
access work opportunities through digi-
tal platforms in a rapidly growing gig
economy. The online gig economy is fu-
Fintech startup
elled by a burgeoning young workforce,
internet and smartphone penetration,
and mobile money proliferation. With
Grey partners with

Africa having the youngest workforce yet
with high unemployment rates, online gig
Cellulant for East

work provides alternative and accessible
employment opportunities and a path
to economic prosperity for the youthful
Africa expansion
workforce.
It was in this environment that Grey
was conceptualised. Mr Idorenyin Obong,
G
Grey’s CEO, worked remotely for interna-
rey has announced the launch of tional companies but faced numerous chal-
its service to East Africa start- lenges in accessing the foreign currency in
ing with Kenya in partnership his accounts. Grey was launched in 2021 by
with Cellulant). Its products, Idorenyin Obong and Femi Aghedo, who
including foreign bank accounts, instant wanted to help Nigerians easily exchange
currency exchange, and international With Africa having the to local currency and access the foreign
money transfers, are now available to youngest workforce yet currencies in their accounts.
Kenyan residents who sign up on Grey. with high unemployment Grey allows Kenyans to get paid in their
In partnership with Cellulant, Grey has rates, online gig work preferred foreign currency and withdraw
expanded its services into East Africa, provides alternative and directly to M-Pesa or their local bank ac-
kicking off with Kenya to address the accessible employment count. Suppose you’re a traveller on a trip
difficulties of sending & receiving money opportunities and a path to Nairobi; you can convert any supported
abroad. Grey, a Y-combinator backed fin- to economic prosperity currencies to Kenyan Shillings, pay for
tech startup, offers a unique international for the youthful services directly to M-Pesa, or withdraw
money transfer service that enables its workforce. to a local bank account. (

38 • June 2022
TECHNOLOGY
A
Nigeria, Seychelles, Kenya, and South
Africa are the region’s blockchain darlings nne Kaluvu, a blockchain
expert and lecturer at the
Jomo Kenyatta University of
Agriculture and Technology
DECENTRALISED LIFE (JKUAT) in Kenya, says there is a lot of
Million-dollar
vested interest on blockchain in Africa
currently.
“I believe the efforts that Africans have
blockchain projects
shown in their creativity and openness to
the technology is inspiring a lot of venture
have finally come to

capitalists to salivate on what can happen
if funds were availed in this market.”
Africa
Africa are the region’s blockchain darlings
96 percent of the funding went to Nige-
ria, Kenya, South Africa, and Seychelles
but it was in the first quarter of this year
when the millions rolled into the continent
more, showing promise of an even better
year to come.
Anne Kaluvu, a blockchain expert and
lecturer at the Jomo Kenyatta University
of Agriculture and Technology (JKUAT) in
Kenya, says there is a lot of vested interest
on blockchain in Africa currently.
“I believe the efforts that Africans have
shown in their creativity and openness to
the technology is inspiring a lot of venture
capitalists to salivate on what can happen
if funds were availed in this market.”
Africa are the region’s blockchain darlings
96 percent of the funding went to Nige-
ria, Kenya, South Africa, and Seychelles
but it was in the first quarter of this year
when the millions rolled into the continent
more, showing promise of an even better
year to come.
“Companies raised Sh10.6 billion in Q1
of 2022, a staggering 1,668 percent YoY
increase from Q1 of the previous year,”
the report says.
The continent’s venture funding growth
in the first quarter of 2022 was 11 times
the growth of general venture funding in
the same period in 2021.
Blockchain financing in the second
quarter of this year got off to a quick start,
with some noteworthy fundraising by Mara
which raised Sh26 billion in Nigeria and
Kenya, Jambo which has injected Sh35
billion in the Republic of Congo, and Afriex

June 2022 • 39
Business
which pumped Sh11.6 billion into Nigeria. LENDING RATES
Eyes on EA central banks as

The link between blockchain tech-
nology and fintech
Globally, blockchain has mostly been
deployed to ease pain points in payments, continent’s big economies
and it comes as no surprise that fintech
businesses raised the most funding in 2021 raise their lending rates
E
at Sh78 billion, representing 53 percent of
all blockchain funding in Africa. ast Africans are watching their more expensive for countries that have
Exchanges and fintech businesses to- central banks as inflationary dollar-denominated loans.
gether accounted for Sh11.7 billion or 79 pressures push the continent’s “The US dollar is expected to appreciate
percent of all total funding and the report and indeed the globe’s big against other currencies, which will make
calls Africa the ‘crypto continent’ as it economies to raise lending rates. imports to the countries in the region more
leads the rest of the world in crypto adop- Nigeria, South Africa, Egypt and Ghana expensive,” Owino said.
tion and central bank digital currencies have recently increased their central The four big African countries that
(CBDCs) despite implicit and absolute bank rates citing the need to promote raised their interest rates recently cited
crypto bans by 31 countries. macroeconomic stability. inflationary pressures, which begs the
“Funding for blockchain in Africa is This comes barely a month after the question: What will East African central
increasing because investors believe the US raised its central bank rate to one banks do different, seeing as these chal-
continent has a potential for adoption,” percent from 0.5 percent — the highest lenges are sweeping across the globe?
blockchain expert Benjamin Arunda said. in over 20 years — also citing the need Central banks’ interest rates have re-
Blockchain smart contracts hold the to combat the rising commodity prices. mained stable across the region over time,
biggest promise in making Africa a better The UK, India, the United Arab Emir- but some economists now say upward
place for business through tackling cor- ates, Mexico, Canada, Australia, and New reviews might be inevitable given the
ruption, ending vote rigging, transforming Zealand are other developed economies global monetary environment and ongoing
health and education sectors, protecting that have raised interest rates in the economic shocks; otherwise they would
intellectual property, creating fintech past one month due to rising commod- suffer recession or massive capital flight.
solutions, curbing the sale of counterfeits, ity prices. The National Bank of Rwanda raised its
and decentralizing electricity. The latest But Tatonga Rusike, a sub-Saharan interest rate to five percent in February,
wave of funding is expected come in handy. African economist at the Bank of Amer- but maintained it during the last monetary
“There is no market where the growth ica, told Bloomberg that some African policy review on May 12. It is expected to
of and demand for inclusive and acces- economies like Zambia and Kenya are review it again in August.
sible financial services is more prevalent likely to leave their benchmark interest The Bank of Uganda is expected to
than in Africa,” says Ian Putter, regional rates unchanged because inflation rates review its interest rate on June 16, having
director of Blockchain Research Institute in these countries are showing signs of maintained it at 6.5 percent during the last
Africa at Standard Bank. slowing down. review on April 12, after having lowered
But Mathias Ruch, CEO of VC CV feels Kenyan economist Kwame Owino this it from seven percent in December 2021.
that there is an urgent need for govern- week said that Kenya may maintain its The Bank of Tanzania also maintained
ments across Africa to embrace block- Central Bank Rate at seven percent on its rate at five percent during the last
chain technology and develop regulatory May 30 when the Central Bank Monetary review in March. The rate has been stable
frameworks to regulate crypto and linked Policy Committee sits. since mid-2020 but is expected to be
emerging industries. reviewed soon.
Globally, blockchain companies raised Dollar effect In Kenya, the monetary review com-
S2.9 trillion in funding across 1,247 deals in Experts say the higher central bank rate mittee maintained the CBR on March
2021, a 713 percent increase in funding and in the US will definitely impact African 29 at seven percent, a rate that has held
an 88 percent increase in the deal count economies, which are already grappling since 2020.
YoY compared to Sh3.6 trillion and 662 with inflation, depreciating currencies History shows that East African coun-
deals in 2020, the survey shows. and a rising debt burden. tries are more likely to lower their interest
The US is still comfortably leading the Mr Owino, who is the CEO of the In- rates than raise them but, considering the
field, with a 56 percent share of the global stitute of Economic Affairs of Kenya, prevailing economic conditions, there is no
dollars invested in blockchain. ( (Quartz) said that debt servicing would prove certainty whether this trend will persist. (

40 • June 2022
STATE OF ECONOMIES
To respond to the growing poverty effects of COVID, many
African countries have executed expansionary fiscal and informal employment and low wages are
monetary policies to prevent firm closures and job losses particularly vulnerable and have been
severely hit by pandemic-containment
FISCAL PRESSURES measures.
COVID continues
Current projections indicate the pan-
demic is likely to continue increasing
the number of people living in extreme
to lay bare Africa’s

poverty, in Africa and globally.
Hanan Morsy, United Nations Economic
vulnerability
Commission for Africa (ECA)’s Deputy
Executive Secretary said the report analy-
ses the implication of COVID-19 in terms
of poverty, but brings a new dimension
stressing the vulnerability in Africa. It
brings the element of people centric
analysis of what has been happening
during COVID-19 and what we need to do
to ensure that the vulnerable population
are protected in terms of social safety net
and putting up the right policies.
“This report is particularly relevant
given to what we have seen as the implica-
tions on the continent. The most critical
implication of COVID-19 has been the
reversal of the very hard-won gains that
the continent had managed to achieve in
reducing poverty,” said Morsy.
To respond to the growing poverty
effects of the pandemic, many African
countries have executed expansionary
fiscal and monetary policies to maintain
consumption and aggregate demand and
prevent firm closures and job losses. But
with effects from other conflicts such as
the Russia-Ukraine conflict this will be
greatly affected in the long run and the
BY A N TO N Y M U T U N GA an estimated 12.6 percent more people number of those falling into extreme
T
were expected to fall into poverty in 2020 poverty will continue soaring.
o date the disruptions caused alone – more than the total number of The African Continental Free Trade
by COVID-19 are still being felt people pushed into poverty since 1999. Area (AfCFTA) has the opportunity to
throughout the economy as Usually, poor households move into put Africa in a better position to eradicate
many businesses struggle to and out of poverty because of exogenous poverty. Currently, most African countries
stabilize and return operations to the shocks like the COVID-19 pandemic, and still depend on exports of raw materials
norm. In fact, its impact led to Africa’s GDP their inability to manage uninsured risks and on imports of essential goods such as
to contract by an estimated 3.2 percent only increases their vulnerability. There- food items and pharmaceuticals.
in 2020. This saw an estimated 55 million fore, non-poor people whose consumption If AfCFTA is effectively implemented,
Africans pushed into extreme poverty lies between Sh221-Sh337 ($1.90–$2.09) intra-Africa trade is expected to increase,
as more than two decades of progress in a day are likely to fall into poverty due helping Africa industrialize and diversify,
poverty reduction was wiped out. to the pandemic because even a small reducing trade dependence on interna-
According to an Economic Report on amount of consumption volatility can push tional countries and boosting the share of
Africa (ERA2021), ‘Addressing Poverty and them into poverty. Poor people, who own intra-Africa trade from roughly 15 percent
Vulnerability in Africa during COVID-19’, few assets, have limited access to credit, to over 26 percent. (

June 2022 • 41
Business
the implementation of the arm’s length rule may increase
KRAs revenue in the short-term with MNCs being forced to
pay higher amounts of taxable income.
Impact of Finance
Bill 2022 on transfer
pricing
BY A L I A M E R S I foreign entity. Foremost, a preferential tax
T
regime is defined as a foreign jurisdiction
he Finance Bill 2022 was brought that does not tax income, has a lower tax
for its first reading on April 12, rate than Kenya, or does not share bank-
2022, to provide for the sched- ing or ownership information with Kenya.
uled break before the August Regarding sharing information, Kenya
2022 elections. With the rising cost-push in- ratified the Mutual Administrative As-
flation, there is a need for the government sistance in Tax Matters (MCMAA) in 2015,
to increase revenues, reduce bond yields, which implements the Common Reporting
and increase interest rates. Therefore, Standards (CRS) requirements, which is an
through the Finance Bill, several changes OECD condition on sharing information—
have been introduced to increase taxes in particular, sharing individual tax pins
within the jurisdiction, such as increas- information simultaneously between all
ing capital gains tax from 5 percent-15 signatories. Currently, over 90 countries
percent. Vitally, large changes impact have signed the MCMAA.
multinationals and Kenyan businesses The impact of MCMAA and CRS will
conducting business within preferential allow Kenya Revenue Authority (KRA)
tax regimes. to gain tax information about all Kenyan
residents, individuals and corporations
Transfer pricing who have incomes within the signatory jurisdiction, will be deemed to have done
Transfer pricing, also called transfer cost, countries. Therefore, firmly recogniz- the transaction by an independent person
is where related parties interact with each ing that Kenya operates a source-based or if none of the parties were located in
other, usually to benefit from preferential taxation system through Section 3(1) of the preferential tax regime. This may lead
tax regimes in foreign jurisdictions. The the Income Tax Act, which was further to reclassifying certain accrued incomes
concept is made in transactions between exhibited by Motaku Shipping Agencies and expenses to increase the taxable profit
a subsidiary and its ultimate mother com- Limited vs Commissioner of Income Tax payable to KRA for both local companies
pany or between divisions of the same (Civil Suit No. 60 of 2013), where it was and multinational cooperation(MNCs).
company in different countries. In most confirmed businesses that conduct trans-
cases, the beneficial owners between the actions partially in Kenya and partially Cooperate reporting
two entities are usually related and are outside would be deemed to be residents To gain access to information on the im-
using preferential tax regimes to reduce companies with their entire income tax- pact of using preferential tax regimes to
taxable income globally. able in Kenya. benefit from transfer pricing, the amount
Therefore, to bring these companies In explaining the impact of transfer of information that is provided to the com-
within taxable income in Kenya, the Fi- pricing within preferential tax regimes, missioner of tax by MNCs has increased.
nance Bill has dramatically increased the a Kenyan business importing goods, or Throughout section 18 of the Finance Bill,
scope and definition of the preferential tax yielding services from a country with a MNCs have to provide detailed financial
regime by implementing an arm’s length preferential tax regime, such as Dubai, activities within all jurisdictions. Moreover,
interpretation of doing business with a Mauritius, or other similar preferential tax the information must include capital, ac-

42 • June 2022
BUSINESS & POLITICS
tial tax regimes will be obligated to pay offered to certain industries within the
30%
the relevant taxes in Kenya through the Finance Bill, such as hotels, manufacturers
defined arms-length rule; where parties and other industries operating outside
are presumed to be independent within Nairobi and Mombasa, may increase in-
an equal playing field. vestment within these localists. Moreover,
the implementation of 0 duty and vat on
Mulnational corporations will now
be required to pay at least 30 International minimum tax locally manufactured cars might lead to
percent tax on their investments. By implementing the arm’s length rule, great impacts overall; however, the cost
Kenya will have a much higher tax jurisdic- of electricity is still a great area of concern
tion than the proposed implementation of for all manufacturers.
cumulated earnings, revenue and other the 15 percent worldwide tax by the Biden In summary, the implementation of
vital balance sheets, cash flow, and income administration. Likely, MNCs will now be the arm’s length rule may increase KRAs
statement items. Further information that forced to pay at least 30 percent tax on revenue in the short-term with MNCs being
must be provided includes foreign tax their activities within Kenya. forced to pay higher amounts of taxable
disputes and transfers of intangible assets. Therefore, there may be a reduction in income. Without the application of other
Therefore, MNCs that attempt to con- foreign investment and have an overall key benefits, such as a reduced tax on the
duct a transfer of assets, or choose their negative impact on the economy. first years of business and dramatically
jurisdiction to declare a taxable profit, Nevertheless, the implementation tax reduced costs, such as electricity, the long
and take advantage of other preferen- benefits on high capital investments term impact may be grim. (

June 2022 • 43
Business Holding a corporate event
Email us: info@nairobilawmonthly.com
1.
2.
4.
5.
6.

44 • June 2022
BUSINESS
PICTORIALS
FROM THE CORPORATE SCENE;
3. 1. L-R: CS Tourism and Wildlife Najib Balala,

PS State Department of Tourism Zeinab
Hussein and CAS National Treasury Eric
Simiyu hold the model strategy book.
2. From left: PRSK President Wilfred
Marube, PSC Chair Stephen Kirogo and
visiting Australian University Don Prof Jim
Macnamara skim through a copy of Prof
Macnamara’s book.
3. President Uhuru Kenyatta and Prof. Dr
Patrick Verkooijen, CEO, Global Center on
Adaptation (GCA) (left) at the State House,
Nairobi during an Africa Adaptation
9. Acceleration Program (AAAP) event.
4. Kenswitch MD Karimi Ithau and Absa
Bank Kenya MD Jeremy Awori during the
signing of a partnership that will allow
the bank’s customers to access over 2200
ATMs on the Kenswitch network.
5. Bamburi Cement MD Seddiq Hassani
(right) with IFC Country Manager
Amena Arif during the signing of the
IFC Sourcing2Equal gender program
agreement aimed at increasing
procurement opportunities for women-
owned enterprises.
6. Pwani Oil Western Region Sales Team
Lead Francis Ongeso (left), Product
Demonstration Unit Master of
Ceremonies, Allan Ifedha (right), hand
over a box of the company’s mosquito-
repelling soap-Detrex Citronella to Dr.
Chris Omondi, Onielo Health Centre
Manager (center) during a community
sensitization exercise.
7. Faulu Microfinance MD Apollo Njoroge
(left), Head of Retail Rose Kimani (right)
and Head of Operations Paul Githinji
showcase the new Contactless VISA Card
8. With 3D Security.
8. From Left – Dr. George Rae Ag. CEC
Medical, Kisumu County, Mwanahawa Ali
Ngao, Clinical medicine student-KMTC
Mombasa and Frank Strelow Bayer
Pharma, Head of Sustainability, during the
launch of the Life Yangu platform.
9. EACC Staff, from left, Christine Ombaka,
Philip Kagucia, Irene Ndirangu (embracing
two of Mr Kagucia’s sons), Faith Nyokabi of
Isiolo Office and Martin Njeru with Sister
Quinter when they delivered donations,
including vouchers, on May 27 from the
Commission’s regional offices to House
7. of Charity along Kabarsirian Avenue in
Westlands, Nairobi.

June 2022 • 45
Black
FOLLOW US:
Letter IMPLICATIONS
High Court order

Law on disclosure of
secret offers rare
COURT DRAMA •
SPOTLIGHT • LAW REVIEW a glimpse into the
nature of Chinese
lending
BY K A B A KUA M B O G O R I
O
n May 13, 2022, the High Court of Kenya at
Mombasa (Constitutional Petition No. E
032 of 2021) declared unconstitutional the
– Henry James failure by the government to disclose the
American-British author contracts relating to the construction of the Standard
Gauge Railway(SGR) signed with Chinese lenders. Two
I intend to judge things petitioners, Khelif Khalifa and Wanjiru Gikonyo, went
to Court after their request for information on the
for myself; to judge SGR contracts were declined by the Attorney General
(AG) and the Ministries of Transport and Finance.
wrongly, I think, is In its defence, the government primarily relied on

non-disclosure clauses, the Official Secrets Act cap
more honorable than 187, and legitimate government interest to deny the
petitioners access to the subject information.
not to judge at all. But before getting into a detailed analysis of the
ensuing arguments in that matter, let us paint a brief
picture of Chinese lending policies. China pursues a
secretive model of bilateral and commercial lending
abroad. Debt Agreements between Chinese lenders
and foreign governments are closely guarded using
strict non-disclosure provisions. Due to this lack of
Proposed US transparency, it is nearly impossible to have mean-
law seeks to ingful public debates on such agreements’ merits
punish African and/or demerits. But thanks to a fairly revealing

discussion paper published early last year, we now
countries have a glimpse of Chinese lending methods.
'aligning' with Secret debts
Russia P.52 In March 2021, five western scholars -- Anna Gelpern,

46 • June 2022
CASE LAW
Latin America, and Oceania. The authors
have also compared these contracts with
those of other bilateral, multilateral, and
commercial creditors. While not entirely
shocking, their conclusion is a serious
indictment of government-sponsored
Chinese commercial lenders. The paper
gives us three main insights.
First, the contracts contain unusual con-
fidentiality clauses that prohibit borrow-
ers from revealing the terms or even the
existence of the debt. Such confidentiality
obligations make it difficult to establish
the true financial position of countries
such as Kenya. In addition, citizens cannot
hold governments accountable for these
secret contracts. As we shall see shortly,
these difficulties made the petitioners
in the instant petition to seek the High
Court’s intervention.
Second, some contracts require sov-
ereign borrowers to provide what the
paper calls “cash collateral”. Chinese
lenders require borrowers to maintain a
special bank account that may be used
to set off the loan in case of financial dif-
ficulties on the borrower. This serves as
the security for the debt. Some contracts
require borrowers to fund these accounts
with revenues from projects financed by
the Chinese lender. Hence, revenues from
such projects remain out of the control of
Sebastian Horn, Scott Morris, Brad Parks, the borrowing government. This could per-
and Christoph Trebesch -- published a The right to access information haps explain the SGR management model
held by the State is constitutionally
paper ‘How China Lends: A Rare Look into in the Kenyan context, where a Chinese
guaranteed. It can only be limited
100 Debt Contracts with Foreign Govern- operator is literally in charge. In addition,
if the decision or law limiting
ments’ – the first of its kind, detailing rare the right passes an article 24 the contracts may include “Take or Pay”
insights into the terms of Chinese debts analysis test. We need to adopt clauses designed to guarantee business
to developing countries. Gelpern is a pro- a constitutional construction for the projects undertaken.
fessor of law at Georgetown University, approach which exemplifies Such a clause was the subject of litiga-
United States, and an expert in sovereign fundamental rights and protection. tion in Constitutional Petition No. 159 of
debt and financial regulation; Horn is 2018, Consolidated with Constitutional
an economist with the World Bank and Institute for the World Economy. Petition No. 201 of 2019, in which a “Take
formerly a researcher with Kiel Institute While the authors and their affiliate or Pay” clause in an Agreement between
for the World Economy; Morris is a senior institutions are western-based- which Kenya Ports Authority and Kenya Railways
fellow at the Center for Global Develop- may immediately invoke suspicions of Corporation was challenged (The case
ment- a non-profit based in Washington bias against China- the methodology touched significantly on the SGR, and it
D.C. and London; Parks is the Executive employed makes the paper credible. was heavily relied upon by the respondents
Director of AidData, a research lab at They have analyzed 100 contracts be- in the instant petition in their preliminary
William & Mary College, Virginia, United tween Chinese state-owned entities and objection on the ground of res judicata,
States; Trebesch is a Professor of Econom- government borrowers in 24 developing although the objection did not succeed).
ics at the University of Kiel and the Kiel countries in Africa, Asia, Eastern Europe, The «cash collateral» requirement is

June 2022 • 47
Black Letter Law
also designed to give China preference documents. Five, releasing the information According to the Judge: “Parties, who
over other lenders regarding debt re- will endanger national security. Six, the were once denied access to information
payment. The contracts make it clear information is protected under Sections based on the now-obsolete provisions
that Chinese debt is out of collective re- 3(6) & (7) of the State Secrets Act, which of the Official Secrets Act cited by the
structuring or what has been termed «no deal with acts prejudicial to the safety or Respondents on the mere allegation of
Paris Club» clauses. Sometime last year, interests of the Republic. Lastly, the Peti- “secret state dichotomy,” should now
at the height of the COVID-19 pandemic, tioners have not exhausted the available access information only subject to the
there was a stand-off between Kenya and dispute resolution mechanism under the exemptions enumerated at Section 6 (1) &
China Exim bank over debt repayments Access to Information Act. (2) of the Access to Information Act.” The
when a request for an extension of a The petitioners even sought the inter- Judge further states in Paragraph 80: “the
debt moratorium was declined. Kenya vention of the Commission on Admin- right to access information held by the
had to abandon its debt relief request istrative Justice, but the Commission State is now constitutionally guaranteed.
due to Chinese resistance. In contrast, faced the same frustrations with relevant It can only be limited if the decision or
other G20 countries such as Canada, government departments. For example, law limiting the right passes an article 24
Denmark, France, Germany, Italy, Japan, when the Commission wrote to Kenya analysis test.”
the Republic of Korea, and the U.S. agreed Railways Corporation (KRC), the response The Court emphasized the need to adopt
to a four-year rescheduling plan with a was that the information requested by a constitutional construction approach
one-year grace period. the Petitioners are projects between the which exemplifies fundamental rights
Third, some clauses in these contracts Government of the People’s Republic of and protection. The Judge concluded that
have the potential to influence the debtor’s China and the Government of Kenya, and the three arguments by the respondents,
domestic and foreign policies. For ex- the role of KRC in the contract was merely namely, that the contract contains non-
ample, a contract may contain a version implementation. The Attorney General was disclosure clauses, that the disclosure
of a cross-default clause. Such clauses also evasive. Via a letter by the Deputy will endanger state security, and that the
empower the lender to terminate and information sought is privileged, are not
demand immediate full repayment when legitimate reasons for denial of information
On non-disclosure clauses of the
the borrower defaults on other lenders. If in a democratic society. The judge states
contract, the Court held that
invoked, such clauses can cause signifi- in Paragraph 90: “No restriction on this
information would be denied if
cant damage to the borrower’s economy. releasing such information would right may be imposed on the ground of
Similarly, all contracts reviewed had a cause harm to the commercial or national security unless the government
clause calling for the termination of dip- financial interests of the business. can demonstrate that the restriction is
lomatic relations between China and the Such interests as trade secrets, prescribed by law and is necessary for a
borrowing country in case of a default. If financial, commercial or technical democratic society to protect a legitimate
this happened, the lender could demand information of the business or a national security interest.”
immediate repayment. third party may deserve protection On non-disclosure clauses of the con-
if disclosure is likely to cause tract, the Court held that information
Court intervention harm the commercial or financial would be denied if releasing such informa-
When Khelif Khalifa and Wanjiru Gik- interest(s) of the body or party. tion would cause harm to the commercial
onyo made a formal request to disclose all Solicitor General, the A.G. informed the or financial interests of the business.
contracts related to the SGR project, little Commission that the Office of the At- Such interests as trade secrets, financial,
surprise then that the request was flatly torney General was not the custodian of commercial, scientific or technical infor-
declined. The Principal Secretary, Ministry project documents. The AG further stated mation of the business or a third party
of Transport, responded to their letter and that the requested records could not be may deserve protection if the disclosure
gave seven reasons why the information availed as the same would be in breach of is likely to cause harm to the commercial
sought could not be availed. First, the the agreements and might cause serious or financial interest(s) of the body or third
information sought relates to contracts legal and financial repercussions. party. The Court found that releasing the
between two governments. Second, the information sought was unlikely to cause
agreements have non-disclosure clauses. Unconstitutional harm to anybody because the SGR project
Third, the information falls under Sections Mativo J emphasized that under the has been concluded.
6(1) & (2) of the Access to Information Act, current constitutional framework, the The Court granted an order compel-
which provides for limitations of the right right to access information is a funda- ling the government agencies to provide
of access. Fourth, the Petitioners have mental right whose scope the constitu- information sought by the petitioners. The
failed to establish the necessity of the tion seeks to expand rather than limit. AG has appealed the decision. (

48 • June 2022
BUSINESS & LAW
INVESTMENT in favour of domestic courts or regional
Africa’s role in
bodies, others prefer initiating reforms
to their obligations under IIAs.
Some authors have suggested that
reforming the
some of the ways in which ISDS can be
made more responsive to the concerns
raised would be making the system more
Investor State Dispute transparent, forming a clear standard of

review, and establishing a permanent
Settlement (ISDS)
arbitration forum or creating an appellate
mechanism in order to strike a balance
between investment protection and pro-
system
tecting the host states’ right to regulate.
The appellate mechanism especially would
be useful in addressing the concern regard-
ing substantive inconsistency between
arbitral decisions in investment treaty
arbitration.
To Retain ISDS or not?

As already pointed, the mechanism al-
lowing private investors to submit invest-
ment claims to international arbitration
has come under increasing public scrutiny,
with several actors criticizing its lack of
legitimacy. UNCTAD’s World Investment
Report 2019 has also pointed out that
Investor–State arbitration continues to
be controversial, spurring debate in the
investment and development commu-
nity and the public at large. As already
discussed above, it has identified five
principal approaches which have emerged
from IIAs signed in 2018: (i) no ISDS, (ii) a
standing ISDS tribunal, (iii) limited ISDS,
(iv) improved ISDS procedures and (v)
an unreformed ISDS mechanism. While
it may not be possible yet to for African
countries to agree on a single approach
to these reforms, countries have these
options to choose from while negotiating
BY D R KA R I U K I M U I G UA innovation; and avoiding a ‘race to the their IIAs with foreigners depending on
S
bottom’ syndrome, that gives unneces- their negotiating power, concerns and
ome authors have argued that sary tax holidays and waivers to foreign development needs.
African governments wanting companies.
to achieve Agenda 2063 should Yet other African states, such as South ‘Africanization’ of International
maximize foreign investments Africa, have already started terminating Investment Law
by, among others, eliminating corruption; their International Investment Agree- In addition to the reform efforts going
improving safety and security; strength- ments (IIAs) in favour of more favour- at the international arena, there have
ening macroeconomic environment, in- able dispute settlement forums, such as been efforts by the African Union aimed
vesting in quality education and skill State-State arbitration. Thus, while some at what has come to be popularly known
development in science, technology and states decide to opt out of ISDS system as ‘Africanization’ of international invest-

June 2022 • 49
Black Letter Law
ment law. The first step towards this was can provide an alternative to arbitration which often affect these negotiations
evidenced by the drafting of Pan African that is already up and running and would and enforcement of domestic laws The
Investment Code, whose main objec- also help to cement African States’ role World Investment Report 2018 outlines
tive is to promote, facilitate and protect as ‘investment rule-makers’ rather than challenges arising from the policymaking
investments that foster the sustainable ‘rule-takers’. interaction between IIAs and the national
development of each Member State, and This approach may also be duplicated legal framework for investment as follows:
in particular, the Member State where in relation to the other regional courts policymakers in charge of national and
the investment is located. The Code is such as the East African Court of Justice. international investment policies might
meant to apply as a guiding instrument Currently, the African countries trade be operating in silos and create outcomes
to Member States as well as investors in terms of blocks, with States forming that are not mutually supportive or, worse,
and their investments in the territory of Regional Economic Communities (RECs) conflicting; incoherence (e.g. between a
Member States as defined by this Code. such as the East African Community (EAC), clearly defined Fair and Equitable Treat-
In addition, this Code is meant define the Economic Community of West African ment (FET) clause in one or several IIAs
rights and obligations of Member States States (ECOWAS) and Southern African and a broad FET clause in an investment
as well as investors, and principles pre- Development Community (SADC). The law) may have the effect of rendering IIA
scribed therein. debate is still ongoing with emergence of reform ineffective; and incoherence be-
The Pan-African Investment Code is discourse on a possibility of a continental tween investment laws and IIAs may also
hailed as the first continent-wide African approach to the investment debate with create Investor-state dispute settlement
model investment treaty elaborated under the drafting of such instruments as the Pan (ISDS)-related risks when national laws
the auspices of the African Union, drafted African Investment Code and the African include advance consent to international
from the perspective of developing and Continental Free Trade Agreement. arbitration as the means for the settlement
least-developed countries with a view to of investor-State disputes, which could
promote sustainable development. In an Capacity building in investment result in parallel proceedings.
attempt to make investment activities by knowledge and expertise It has also been observed that post-
foreigners more responsive to the sustain- While some commentators often argue 2000, investors have increasingly relied
able development needs of African states, that the lopsided relations in investment on expansive interpretations of vaguely-
the Code has introduced some of innova- law negotiations that characterise the drafted provisions in IIAs, national invest-
tive features such as the reformulation of developed-developing world relations, ment laws, investment contracts, and the
traditional investment treaty provisions others have argued that in contrast to dispute resolution provisions contained
and the introduction of direct obligations North-South relations, negotiation out- within such agreements, to sue host
for investors. If adopted, this Code could comes seem to be shaped more by expert states for alleged violations of treaty or
potentially contribute to the reforms of knowledge than by power asymmetries. contractual obligations. This practice of
the international and regional investment This, they have argued, is evidenced by a “contract, treaty and forum shopping”
regimes. Some commentators within the situation where powerful states like Egypt has contributed to the multiplication of
Continent have also proposed that setting fail to dominate negotiations, while small- ISDS cases. In addition, litigants place
up of regional courts is the way to go. For island-state Mauritius with its strategic their court cases in the court system per-
instance, in relation to the West African investment policy agenda succeeds in ceived most likely to find in their favour,
region, it has been suggested that for setting the terms of investment agree- thus affecting the legitimacy of the whole
States in West Africa there might already ments. It has been observed that the ISDS system. There is therefore a need
exist a ready-made investment tribunal foreign companies operating in Africa for the African Governments to invest
in the form of the Court of Justice of the often have high bargaining power in the in highly knowledgeable experts while
Economic Community of West African negotiations due to their influential posi- negotiating and drafting the terms of in-
States (ECOWAS). tion and backing from their governments. vestment agreements in order to ensure
To the proponents of this position, all On the other hand, African govern- that the resultant documents are not only
that is required is to activate the arbitral ments have low bargaining power in non-ambiguous but also guarantee that
jurisdiction of the ECOWAS Court of Jus- these contracts or agreements because they do not adversely affect their abil-
tice, considered the most successful of the they are less influential. They are more ity to regulate the investment activities
African sub-regional courts, and extend flexible in negotiations than their foreign and enforcement of domestic laws. (The
its jurisdiction to cover investor-state counterparts. In exchange, they end Lawyer-Africa)(
jurisdiction. This, it has been argued, given up giving what rightfully belongs to the — Dr Muigua is an Environmental Law
the present widespread dissatisfaction people to foreigners. There is a need for and Natural Resources scholar
with investor–State dispute settlement, African countries to fight corruption,

50 • June 2022
ADR
REPRESENTATION Kenyan matters, attributed this to “unin-
No excuses for
formed views of how justice is dispensed
in African courts and tribunals”.
These views are outdated, explained Ka-
overlooking African
mal Shah of Stephenson Harwood, because
the courts and systems in Africa’s major
jurisdictions have been strengthened and
arbitrators have improved their ability to handle major

matters, shifting the balance of power.
That was echoed by Robert
Wheal of White & Case, noting that Afri-
can lawyers are not waiting for westerners
to turn up and tell them how to run an
arbitration – “they don’t need your help”
– putting the onus on the foreigners to be
more respectful and engaged. “You have
to embed with your African counsel,” by
conducting witness interviews together
and hosting regular strategy calls. “It is the
African lawyer who is the trusted advisor
of the client,” he told the Western lawyers
present. “You are the hired help.”
With investors coming into Africa,
the governments held the leverage to
set the terms of the dispute resolution
clauses, said Chiraag Shah of Morrison
& Foerster, and across the board the
panellists encouraged those countries
to use that power.
That does not have to be absolute;
Kamal Shah did not think “we will ever
have a situation where all arbitrations are
held domestically”. That point was picked
up by Tolu Obamuroh, an associate with
White & Case, who acknowledged that
there were legitimate practical consider-
BY A N D R E W M I Z N E R and experts at the London International ations as to why some cases could not be
T
Disputes Week (LIDW) ‘international day’ handled locally. “One way to deal with that
he international arbitration (9 May), was that the balance of power is is to make that distinction between the
community must share respon- moving from international investors to seat of arbitration and the venue, it gets
sibility for improving African African governments and businesses, and the arbitral practitioners in the country
representation, while African that the arbitration community needs to used to the idea of handling international
countries can shift the balance in their reflect that shift. arbitrations.”
own favour, said speakers at London It is not just lawyers who need more op-
International Disputes Week. Power balance portunities. Sekai Nyambo of HKA Training
There are no excuses for the lack of Although more disputes are now being Academy reported that the challenges
African representation in international handled in Africa, “the reality is Western in getting appointments are even more
arbitration, and the legal community needs investors will insist on the arbitration stark for expert witnesses, particularly
to do more, not just to appoint arbitrators clause specifying Western arbitration within the construction profession. The
and counsel from the continent, but to centres”, said Michael Sullivan QC of One large quantity of qualified candidates
promote suitable candidates. Essex Court. on the continent is not translating into
The strong opinion of a panel of lawyers Sullivan, an experienced arbitrator on appointments.

June 2022 • 51
Black Letter Law
'YOU EITHER CHOOSE'
Real action
African parties can help this cause,
said Daniel Wilmot of Stewarts, who was Proposed US law
seeks to punish
looking at their use of African centres as
a bellwether of progress.
There are many good intentions on this
front, but as Wilmot said, “arbitration at its
core is an optional purchase service” and African countries
for ‘aligning’ with
clients may not be receptive to progressive
measures like the African Promise, unless
they see what is in it for them.
Russia
The solution, suggested Wilmot, is brand
awareness, and he asked whether enough
was being done to let counsel know about
qualified arbitrator candidates.
A common refrain when discussing A new law to punish states that back
African matters is the importance of not certain Russian actions could have major
generalising across 54 countries. Onyema implications for African countries.
pointed out that what was true to Nigeria,
South Africa or Egypt, did not necessarily
apply elsewhere. There are smaller coun-
ties that need upskilling because their BY P E T E R FA B R I C I U S through US foreign aid programmes.
A
lawyers have lacked opportunities, and It would need to ‘hold accountable
she called on the African legal community bill that would oblige Wash- the Russian Federation and African
to be supportive and use their “soft dip- ington to punish African governments and their officials who
lomatic power” to create opportunities. governments that abet Rus- are complicit in aiding such malign
Ultimately, said Sullivan, the appoint- sian ‘malign’ activities on the influence and activities.’
ment of an arbitrator is one of the most continent is about to get Congressional The bill was introduced to Con-
important strategic decisions in the whole ascent. gress on March 31 and was clearly
process and it requires a candidate who The Countering Malign Russian Ac- a response to Russia’s February 24
can handle the case, not “someone who will tivities in Africa Act passed the House invasion of Ukraine. Several other pu-
be eclipsed by the company he is keeping”. of Representatives on April 27 by a nitive laws aimed at Russia – includ-
Sullivan stressed the importance of ap- huge, bipartisan 419-9 majority and is ing one directing the administration
pointing an arbitrator who understands now sure to be passed by the Senate to gather evidence of Russian war
African culture, law and life, not least and become law soon. It would direct crimes in Ukraine – were introduced
because it means they will more effectively the US Secretary of State ‘to develop at about the same time.
be able to cross-examine witnesses. and submit to Congress a strategy and New York Democrat Gregory
His remark that it is “not a question of implementation plan outlining United Meeks, chair of the House Foreign
appointing ‘an African’, it is a question States efforts to counter the malign Affairs Committee, said the bill was
about appointing the right African”, drew influence and activities of the Russian designed to thwart Russian President
murmurs of approval from African law- Federation and its proxies in Africa.’ Vladimir Putin’s efforts to ‘pilfer,
yers in attendance. “You need someone The bill broadly defines such malign manipulate and exploit resources
positive, confident,” he added. activities as those that ‘undermine in parts of Africa to evade sanctions
“You need to be intentional about this,” United States objectives and interests.’ and undermine U.S. interests,’ and
Onyema told the profession, demanding The Secretary of State would have to to finance his war in Ukraine.
actions, not words, such as the use of monitor the actions of Russia’s govern- Mr Meeks also presented the bill
mandatory local seats, and saying that ment and its ‘proxies’ – including private as supportive of Africa, intended to
it is difficult to respect those who do military companies (clearly Wagner is protect ‘all innocent people who have
not appoint African arbitrators and that in the sights) and oligarchs. been victimised by Putin’s mercenar-
London needs to be willing to lose work The government would have to coun- ies and agents credibly accused of
for doing the right thing. (ALB) ( ter such activities effectively, including gross violations of human rights in

52 • June 2022
INTERESTS
one – Eritrea – voted against, while 17
abstained and the rest were absent.
Does that mean the new US bill is de-
signed, at least partly, to punish Africa
for its relative lack of support for the
US-led effort to punish Russia? Perhaps.
Though the sponsors would say it targets
Africa because that is where Russia and
its proxies have been most active.
And some of the actions that the bill
enjoins could benefit Africa. It targets
Russian efforts to ‘manipulate African
governments and their policies, as well
as the public opinions and voting prefer-
ences of African populations.’
What the authors seem to have in mind
here are, for instance, the purported
efforts by alleged Russian government
proxies to bribe candidates in the last
Madagascar elections, and the activi-
ties in Africa of the Association for Free
Research and International Coopera-
tion (AFRIC). This is a Russian election
observation organisation, ostensibly
independent, but which appears to be
run by Yevgeny Prigozhin, the man widely
known as Putin’s chef and believed to
run Wagner.
Western intelligence agencies and oth-
ers believe both Wagner and AFRIC are
proxy operations for Putin’s government,
with a mission to frustrate Western ac-
tivities in Africa and elsewhere. These
agencies contend that AFRIC’s actual
Africa, including in the Central African function is to counter election moni-
Republic and Mali.’ It is specifically in IS the Bill is designed to punish toring by Western and local monitors,
the Central African Republic (CAR) and Africa for its relative lack of thereby giving credence to the likes of
Mali that Wagner has been accused of support for the US-led effort the ruling Zimbabwe African National
committing human rights violations to to punish Russia? Perhaps. Union-Patriotic Front. AFRIC did indeed
prop up dubious governments and And some of the actions that deliver a positive judgement of the last
thwart Western interests. the bill enjoins could benefit elections in Zimbabwe.
Some African governments suspect Africa. It targets Russian On the flip side of this injunction,
there’s more at play than protecting efforts to ‘manipulate African the bill urges the US government to
‘fragile states in Africa,’ as Mr Meeks put governments and their policies, strengthen democratic institutions,
it. ‘Why target Africa?’ one senior Afri- as well as the public opinions improve government transparency
can government official asked. ‘They’re
and voting preferences.
and accountability, improve standards
obviously unhappy with the way so related to human rights, labour, anti-
many African countries voted in the support the United Nations (UN) General corruption initiatives, fiscal transpar-
General Assembly and their relatively Assembly resolution of March 3, con- ency, monitoring natural resources and
non-aligned position.’ demning Russia’s ‘aggression’ against extractive industries, and ‘other tenets
It is true that proportional to other Ukraine. Twenty-seven African govern- of good governance.’
regions, more African states did not ments voted for the resolution. Just But what about the bill’s intention

June 2022 • 53
Black Letter Law
to thwart Russian efforts to ‘invest in, RISING DEMAND
Economic crimes
engage, or otherwise control strategic
sectors in Africa, such as mining and
other forms of natural resource extrac-
are driving legal

tion and exploitation, military basing and
other security cooperation agreements,
and information and communications
technology’? Does that mean any Afri-
can country where a Russian company services market
growth
invests will fall foul of this legislation?
Or will it only apply to investments that
advance Putin’s supposedly nefarious
ambitions?
Two potentially controversial case
studies in South Africa spring to mind.
One is the lucrative United Manganese of
Kalahari mine in South Africa, owned by
Putin’s oligarch chum Viktor Vekselberg
– but with 22 per cent held by the ruling
African National Congress’s (ANC) own
corporation, Chancellor House.
This dodgy investment is probably
keeping the cash-strapped ANC finan-
cially afloat. And it’s been speculated
that that is the real reason for the gov-
ernment’s controversial ‘non-aligned’
stance on the Ukraine war.
Another case study could be the joint
venture between African Rainbow Miner-
als – owned by South African President
Cyril Ramaphosa’s brother-in-law Patrice
Motsepe – with Russia’s Norilsk Nickel
in the potentially lucrative Nkomati
nickel mine.
How the US will see such investments
is unclear. However, what is emerging is
not so much a picture of the US target-
ing Africa because it voted the wrong
way at the UN. Instead, it seems Rus-
sia’s invasion of Ukraine has sparked a
new Cold War psychosis – and that all
other considerations will henceforth
be subordinated to the imperatives of
that conflict.
Michael McCaul, a senior Republican
on the House Foreign Affairs Committee,
who co-sponsored the bill, hinted at this
on 4 May. He told a congressional com-
mittee considering several anti-Russia
bills: ‘We must make every state choose
between doing business with the free
world or with the war criminal.’ (

54 • June 2022
TRENDS
G
rowth in fraud, cybercrimes earlier led to restrictive containment mea- agement, litigation support, electronic
and other economic crimes sures involving social distancing, remote discovery, contract lawyers and staffing,
is expected to drive the legal working, and the closure of commercial legal research, and IP management. They
services market in the forecast activities that resulted in operational are essentially focused on the “business
period. Due to the increasing prevalence of challenges. The market for legal services is of law”, leveraging a combination of legal,
fraud, law firms globally will face increased expected to reach $1112.75 billion in 2026 business and technology capabilities, to
demand for legal services. at a CAGR of 9 percent. provide services to both corporates and
The global legal services market size is law firms. Businesses are increasingly
expected to grow from $713.12 billion in Legal services industry trends employing ALSPs for many routine legal
2021 to $788.94 billion in 2022 at a com- The emergence of the alternative legal services, and law firms are outsourcing
pound annual growth rate (CAGR) of 10.6 service providers market is a key trend in non-revenue generating tasks, such as
percent. The growth in the legal services the legal industry. ALSPs are non-tradi- project management, business analysis,
market is mainly due to the companies tional, niche companies that specialize billing, and expenses to ALSPs.
rearranging their operations and recover- in providing high-demand legal services
ing from the COVID-19 impact, which had such as document review, contract man- Legal services market segments
The legal services market is segmented
by type of service into B2B legal services,
B2C legal services, hybrid legal services
and criminal law practices. The B2B legal
services was the largest segment of the
legal services market segmented by type
of service, accounting for 54.8 percent of
the total in 2021. Going forward, the hybrid
legal services segment is expected to be
the fastest growing segment in the legal
services market segmented by type of
service, at a CAGR of 9 percent during
2021-2026.
The legal services market is also seg-
mented by size of law firm into large law
firms and SME law firms, by mode into
online and offline, by type of practice
into litigation, corporate, labor/employ-
ment, real estate, patent litigation, tax,
bankruptcy and others (regulatory, M&A,
antitrust, environmental), and by end-user
into individuals, financial services, mining
and oil & gas, manufacturing, construction,
IT services, other services and others.
Regional analysis
North America was the largest region
in the legal services market, accounting
for 55 percent of the total in 2021. It was
followed by Western Europe, and then
the other regions. Going forward, the
fastest-growing regions in the legal ser-
vices market will be South America and
the Middle East, where growth will be at
CAGRs of 11.1 percent and 10.6 percent
respectively. These will be followed by Af-
rica and Eastern Europe. (

June 2022 • 55
Life
FOLLOW US:
Africa’s fashion industry is very
Twitter: @nairobilawmonthly restrictive, and, though the
metaverse would boost the
economy, the industry is most
worried about the consumers of its
digital assets.
METAMORPHOSIS
REVIEWS • SPORTS • ARTS •
BOOKS • CULTURE • KENYA
THROUGH THE LENS Africa’s virtual
designers
are already
preparing for
metaverse
fashion
“F
or me the metaverse
means freedom,” says
Idiat Shiole, a Nige-
How to build your rian virtual fashion de-
workplace for a signer, “I say that because I’m Muslim.

When I worked as a fashion illustrator
hybrid future ↴P60 for most fashion houses, their first

impression of me was normally ‘won’t
this lady just draw Islamic dresses for
us or can she even draw?’ But in the
metaverse, nobody cares who you are,
they only care what you can do. I just
wanted to do what I love without being
oppressed.”
In 2018, Idiat Shiole, stumbled on a
software called marvellous designer to
help her create locomotive 3D models and
fabrics. At first she had become a virtual
fashion designer only because she didn’t
want to find a job after graduating with a
degree in Fine and Applied Arts from the
Lautech University in Nigeria.
BOOK REVIEW: As a designer working between the

fashion and gaming industry, Shiole
THE POLITICS OF has amassed a huge clientele both lo-
BETRAYAL
cally and internationally. She started
↴P58 her brand, Hadeeart Atelier in order to
create print fashion wear and items for

56 • June 2022
CREATIVE ART
lives.” The metaverse is a virtual space African virtual fashion designers are
that isn’t just parallel to the physical making their entry into the metaverse
world but is made up of different worlds When Aisha Oladimeji started making
where users interact with each other by virtual fashion dresses, she didn’t know
using their avatars. From the comfort of what she was going into. “All I knew was
anywhere, these users can dress for a that I was tired of staying at home due to
fashion show, go on adventurous dates, Covid and ASUU [Academic Staff Union
take on jobs, and even shop just by using of Universities] strikes and I needed
the virtual reality (VR) headset. something to keep myself sane.” She
“Depending on who you ask, the meta- tells Quartz.
verse is either a meaningless buzzword or She had seen a 3D collection runway of
the next big digital platform…If the meta- Congolese fashion designer Anifa Mvuem-
verse is for real, it’s a chance to rethink ba and had gone in search of the software
what we want our digital lives to be like.” used in the creation. For weeks, she taught
With the surging growth of the meta- herself how to be a virtual Fashion designer
verse, there are numerous incomprehen- from the comfort of her home.
sible predictions and estimations. In 2021, Opera as created by Aisha Oladimeji
the Global Metaverse Market was valued and inspired by an opera building for her
at $63.8 billion with the expectation to Facade Collection
surge to $100.3 billion by the end of 2022 Oladimeji’s work is appealing— archi-
gaming clients like Decentraland and and $1.5 trillion by 2029 at 47.6% CAGR tectural, haute couture, and textural. Last
fashion and also working with fashion during the forecast period. Despite this year, she had a collection titled ECLECTIC
brands like Spatial and OKC to create meteoric rise, the question remains “Does which was inspired by experimentational
virtual versions of their clothing and col- Africa have a future in the metaverse?” buildings around the world and had show-
lections, and host virtual fashion shows. A recent Meta commissioned report says cased at the New York digital fashion
She has also collaborated with big names that if the metaverse was to be adopted in week earlier this year. But she thinks
like Fabricant, the first virtual fashion Africa and grow in a similar way as mobile Africa’s fashion industry isn’t ready for
house on their Season 0 collection. She’s technology, it could add an additional $40 the metaverse yet. “There is a freedom of
currently working on The Hacedor, a billion to Africa’s GDP in the next decade. expression in the metaverse but I think
virtual fashion gallery metaverse with a The loudness of the metaverse may I’ve seen only a few in the fashion industry
collaborative team. seem to make it recent time but the con- ready to learn and start moving towards
Shiole’s designs are aesthetically Ni- cept has existed for the past three decades. that direction.”
gerian and are partly a representation of The term was first coined by sci-fi writer
her—Hijab models, tribalmarked models, Neal Stephenson in his 1992 novel “Snow Ambitions beyond fashion
braided models. Crash” to describe a 3D virtual space. During the pandemic, UX Designer Delz
Even though the metaverse is a rela- Fast forward to 2021, a Mark Zuckerberg Erinle discovered a futuristic idea. “I was
tively new concept, everywhere including announcement about Facebook changing consumed with the thoughts of discover-
Africa, Shiole is part of a handful of African its name to Meta swept over the internet. ing something big, I remember asking
virtual designers making digital outfits in Tech giants have begun to embrace the myself ‘what if we can tell some people
preparation for the metaverse. new technology like Microsoft launching to go shopping using the virtual reality
Mesh, a virtual collaboration space for headset?” Foreshadowing a possibility,
What is the metaverse and how teams that allows employees to interact he contacted artist Niyi Okeowo, an artist,
valuable will it actually be? with online avatars during meetings or and they made a team of 30 consisting of
Defining the metaverse is not an easy Bored Ape Yacht Club creators selling 3D artists, environment creators, games
task. Tech futurist, Cathy Hackl who is nonfungible tokens NFTs for virtual land developer, and 3D modelers—with a com-
regarded as the ‘Godmother of the meta- in a crypto-based metaverse game at $253 mon goal— they launched Astra under
verse’ defines the metaverse as “further million or Decentraland sales of virtual their creative startup Thrill Digital.
convergence of our physical and digital plots of land for $2.4 million.

June 2022 • 57
Life
The author’s portrayal of the lengths to
which our male MPs can go to stifle gender
equity efforts is appalling.
BOOK REVIEW
Astra metaverse
Astra is the first metaverse created by
African creators. At first, it came off as a
digital fashion studio for fashion brands
How ‘politics of betrayal’
to create 3D assets of their physical cloth-
ing but it is rather now a metaverse with
several events. But Astra isn’t just like
reverberates across the
other metaverses, it operates with an
intersection of gaming, crypto, and fash-
ion. Users can play games to earn crypto,
Kenyan landscape
go shopping with their avatars or attend
events by wearing VR gadgets. exhaustive. In this book, the author
“The future of Astra is to figure out explains how corrupt practices within
ways to continuously provide utility for the corridors of parliament happen.
people in the metaverse, they don’t see It is important to note that he served
it as a game or social media but some- as a member of parliament for the
thing that is useful for them in their day then Bahari constituency at the coast,
to day life. I hope there will be a time so he knows what he is talking about
when people will jump into 3D space firsthand. It is rare to find a politician
without it being laggy,” says Erinle, who ready to show the murk in their own
is keen on strengthening the blockchain backyard. It only takes a brave writer
system to other parts of the world, not to do that.
just in Africa to create better internet It is noticeable that most Kenyans
experiences. are people below the age of thirty. As
THE POLITICS a result, many of these people may not
Is Africa’s fashion industry ready OF BETRAYAL: know what happened in the yester-
for the metaverse? Diary of a kenyan years, especially the Jomo Kenyatta
Africa’s fashion industry is said to be legislator and Moi years of rule. Be that as it
worth over $31 billion, summing a revenue may, it is incumbent upon the citi-
BY JOE KHAMISI
of $8.6 billion in 2022 and a revenue predic- zenry to know their country’s history.
tion of $13.5 billion by 2025 with a CAGR of PUBLISHED: 2019 There is a gap to be filled by education
RRP: Sh2,515.96
16.4%. However, even among millennials on the history of Kenya. This book
Where to buy: Amazon/Kindle
and GenZ, there is still an unfortunate bias plays a crucial role in that aspect. For
towards imported clothes as compared instance, the events that eventually
to local African brands. Only time will BY JAC O B O K E TC H led to the 2007 post-election violence
‘P
tell if African digital fashion will be able are so well explained in this book. This
to effectively capture a sizable share of olitics of Betrayal: Di- gives context to our current political
this market, even locally. ary of a Kenyan Legisla- situation, especially regarding the
Africa’s fashion industry is very tor’ by Joe Khamisi is a forthcoming general election.
restrictive with their ideologies and joy to read because it is It is interesting how history repeats
though the metaverse would boost educative, especially for the younger itself in our political ping pong. Cur-
the economy, the industry is most generation who may not know the rently, former vice president Kalonzo
worried about the consumers of its extent of our political history. Musyoka who was in a tussle with the
digital assets. So creating collections as There is a way in which this book Azimio Coalition over the running
blockchain collectible isn’t just enough exposes parliamentarians for their mate position decided to go ahead
to get the industry to the metaverse. greed. Much of what the public knows with his bid for the presidency after
((Quartz) about the excesses of MPs is gleaned he failed to clinch the position. This
from media sources, and it is not same contestation is well brought out

58 • June 2022
LITERATURE
in the book, in the run-up to the 2007 bers get bribed to vote in a particular the highest bidder.
election when Kalonzo dilly-dallied way. This undermines democracy and It is good that Kenyans got a new
almost to the last minute to name his legitimacy. There is the question of constitution in the year 2010. However,
running mate. Even though he eventu- whether lobbying constitutes corrup- the twists and turns that culminated in
ally named Julia Ojiambo as the run- tion. Since bribery or some form of the promulgation of the 2010 constitu-
ning mate, he had been mulling over it inducements are involved, there is no tion cannot be wished away. It ought to
because he felt he needed a stronger escaping that graft is actually what be remembered that the late president
person to run with him. lobbying eventually looks like. Mwai Kibaki’s resounding defeat in
Many Kenyans don’t know the in- The author’s focus on Kibera slums the 2005 referendum set the stage for
trigues that led to the appointment of paints a picture of destitution on the the acrimony that eventually set off
Kalonzo Musyoka as vice president in part of poor Kenyans who continue to the post-election conflagration in2007.
2008. In this book, the author lifts the This mess necessitated the hashing up
lid on the negotiations that eventually of the constitutional reform process
culminated in naming Kalonzo as the
vice president. Since the talks between
The author’s exemplary to avoid another scenario like that
in the future. Though Kenyans got a
the late president Kibaki’s handlers performance as MP, new constitution, the challenges have
and the ODM Kenya brigade were especially regarding shown that reform of the document
secret, not many people knew what
transpired before the publication of
devolved funds where is still a priority if we are to forge a
solid and united country. The author’s
this book. The author was the initia- his constituency was meticulous portrayal of the process of
tor of the proposal that Kalonzo be cited as having the best- the reforms right from when it started
appointed VP, and he was part of the to the conclusion is noteworthy.
delegation that met the president at
managed constituency The author gives the readers a sneak
Mombasa State House. development fund peak of what to expect from an aspir-
It is admirable how the author program, should be ing MP. And he is honest about what
unpacks patriarchy in parliament. He it takes to get there even though some
narrates how male parliamentarians emulated by current of the things he says one has to seem
frustrated the Njoki Ndungu spon- parliamentarians. to be improper-like avoiding constitu-
sored sexual offenses bill. Though ents to save money. However, given
it was eventually passed, male MPs wallow in poverty even as their lead- what we know of politics, an MP has to
did all they could to water it down. It ers are busy looting funds meant for be quite shrewd to survive, and slight
is not a surprise that the legislators the welfare of the citizenry. That any scrapes like that may not be frowned
have miserably failed in effecting dignitary who visits the country stops upon because they are part and parcel
the two-thirds gender requirement by the slum is instructive; our failure of the game of survival.
in parliament even after the retired to secure the welfare of our people has Finally, the author’s exemplary per-
chief justice David Maraga petitioned become some tourist attraction, and formance as MP, especially regarding
the president to dissolve parliament this is shameful. devolved funds where his constitu-
for failure to fulfill the requirement. The author paints a sorry picture ency was cited as having the best-man-
The author’s portrayal of the lengths of what our political parties have be- aged constituency development fund
to which our male MPs can go to stifle come. With little to show ideologically, program, should be emulated by cur-
gender equity efforts is appalling. political parties have become cash rent parliamentarians. There is a need
As an insider, the author’s exposi- cows. The leaders of political parties for more parliamentarians to write
tion of the corrupt deals that MPs get use them to make money when nomi- about their experiences in the august
involved in is a pointer to the fact that nations are conducted, and aspirants house. It gives the public a glimpse
the august house is mired in graft. For pay a lot of money as fees to secure the of what it means to serve the people
example, a disappointment is what nomination. Some people even estab- in such an exalted position. I recom-
happens in committees where money lish briefcase parties to negotiate their mend this book to all Kenyans because
frequently changes hands to influence way into the goodies of power—some it captures what representation is all
how specific reports are done. Mem- mint money by selling their parties to about and its attendant challenges. (

June 2022 • 59
Life
The new norms are currently being written –
here’s how to get one step ahead and ensure
employee engagement
CHANGING IDEOLOGY
How to build your

workplace for a hybrid
future
I
n just a few short years, hybrid scrutinising their bottom line.
work has gone from a nice to have Employers find themselves in a dif-
to a need to have. More than half ficult halfway house. The business case
of workers say they’d consider for keeping offices is apparent: you
leaving their employer if the option need a physical workspace to which
to work in a hybrid manner was taken your staff can commute in order to
away from them. realise the benefits of collaboration
While the idea of mixing time at and community that result in better
home and in a physical workplace, employee retention. Yet hokey-cokey
alongside colleagues, is still in the early employees – with one foot in the of-
stages of evolution, workers have voted fice, and one foot out of it – mean that
– and they’ve said it’s here to stay. costly real estate can often lie fallow,
“A large number of people who work silence ringing around the corridors of
in offices have got used to the idea that a company.
they can also be productive working Balancing operational efficiencies
from home or a café, or even a different with employee wellbeing and empow-
country,” says Steve Vatidis, execu- erment is a difficult thing to do. It’s
tive chairman at workplace analytics compounded by the fact that every
company HubStar. employee has differing perceptions and
Employees want a say in their work- expectations of the new world of work,
ing schedules but need to know that and that many of the old pressures,
the time they do spend together in a including the need to meet environ-
collective workplace is going to be time mental goals, remain. space, says Vatidis, but it needs to be
well spent. They want the right tools, Yet staff recruitment, motivation and explained and presented to employees
employee experience, and evidence for retention remain major factors employ- and employers in a much more cohe-
collaborative opportunities. ers need to consider. “Staff experiences sive, sensible way, given the changing
Concurrently, that means employers at work affect what you do; they affect face of work. There was a time, pre-
need to meet that demand, building a turnover; they affect collaboration,” pandemic, when businesses could rely
modern, hybrid workplace and culture says Vatidis. “They’re at the core of the on tradition to make the case for their
that allows workers to thrive – with all performance of any company, business workspaces and their economic value
the halo benefits that brings. Happier or organisation.” to a company’s bottom line. Workers
workers are more content workers, and The world has started recognising the came into the office every day because
more content workers are more likely inevitable, there’s going to be signifi- it was what had always been done; busi-
to stay with a business, despite more cant change, and there’s a chance to nesses kept costly workplaces on the
competition among employers than bring about a change for the better if we balance sheet because it was the norm.
ever before. But that costs money – and do the right things Now new norms are being rewritten –
is challenging for businesses already There is a place for the physical work- and both business leaders and rank and

60 • June 2022
EVOLUTION OF WORK
inform the decisions people make in

terms of when and where they want to
come, and give them a chance to also
make longer-term plans.”
Businesses that utilise this data can
work with their employees to provide
a way of work that meets their needs,
while also ensuring the company runs
smoothly. Rather than dictating when
workers come in, it provides options for
employees to choose from.
“And at the same time, it provides
awareness of what other teams are do-
ing for collaboration,” says Vatidis. “It’s
able to adapt to what the constraints
are, and when there’s more or less
space on a minute-by-minute basis, as
other people make their decision.”
Take something that was once seen
as simple in the physical workspace
that has become more challenging
in the hybrid one: organising a team
meeting. Fifteen people who want to
collaborate with each other can mean
an awful lot of mails bouncing back
and forth, and results in siloed thinking
without many opportunities for infor-
mal collaboration – the kind that sparks
the most innovative thinking.
Using data-driven workplace plat-
forms enables those meetings to be
better organised, taking into account
when workers who need to collaborate
together are likely to be in the same
file employees need to be convinced of uses data to help businesses work bet- physical space, and suggesting times
the value of the physical workspace. ter, achieving sought-after objectives that work.
“The world has started recognis- and utilising workplaces in a better way “The hybrid workspace becomes
ing the inevitable, there’s going to be than before the pandemic. more moulded around your needs,”
significant change, and there’s a chance Vatidis says that businesses that says Vatidis. People don’t feel com-
to bring about a change for the better if build their workplaces for the hybrid pelled to come in, which has a positive
we do the right things,” says Vatidis. future of work are those that use data- impact on productivity.
But in order to make the case for a driven tools and platforms that manage “Information has been shared ef-
new, improved office that works for workplace utilisation intelligently while fectively about how this can work,” he
everyone, you need to be in a position also respecting the choices and privacy says. “It’s about being able to actually
to understand that case yourself. of their workers. influence things that reduce stress, and
By designing, building, selling and “Without intruding in any way into gives employees satisfaction that we’re
servicing technology platforms that any kind of privacy, you can still have a actually making something happen
deliver an ever-improving workplace reasonable idea on an anonymous basis rather than being carried along in the
experience in a hybrid working world. It of what goes on,” says Vatidis. “You can river.” (

June 2022 • 61
Life
Every issue we highlight Kenya via the lens of time
and history. We welcome any pictures you might
have of old Kenya and you’d like featured in this
section. Email us: info@nairobilawmonthly.com
1. 2.
4.
6.
5.
62 • June 2022
KENYA THROUGH
THE CAMERA LENS
KENYAN WILDLIFE
3. Apart from being home to over 50 different

tribes, Kenya hosts a number of different
wildlife species that have come to call the
country, home.
1. Large-Spotted Genet (Meru National
Park) – This is a small raccoon/hyena
looking creature which is related to the
weasel and spends most of its time in
densely-covered habitats such as forests.
2. African Wild Dog, (Mpala, Laikipia
County) – These are endangered and
highly social animals that live and hunt
in small groups of six to 20. They are also
known as African painted dogs due to their
distinctive coats.
3. Lilac-Breasted Roller (Lewa National
Park) – This majestic bird is known as
Kenya’s national bird because of the wide
array of colours on its feather coat. In
total, it has around 8 colours; green, white,
black, yellow, turquoise, dark blue, reddish-
brown, and lilac.
4. Black-Backed Jackal (Maasai Mara) –
These omnivorous ancient species live
in open areas that are not completely
covered by tall grasses or bush.
5. Gerenuk (Samburu National Reserve)
– Also known as the Giraffe Gazelle or
Waller’s Gazelle. It is one of the so-called
Samburu Five and they rely on different
species of plants which make up their diet.
8. 6. Pygmy Falcon (Meru National Park) –
This bird of prey is unlike most others
thanks to its small physique. They usually
reside in arid regions with tall trees in
which they can roost, feeding on insects
and lizards by flying down and snatching
them off the ground.
7. Kirk’s Dik-dik (Meru National Park)
– These small antelopes live in dry and
grassy habitats, feeding primarily on fruit,
leaves, and grasses. Preorbital glands,
which appear as a black spot below the
inside corner of each eye, produce a dark,
sticky secretion used to scent-mark their
territories.
8. Tawny Eagle (Naboisho Conservancy) –
These large birds of prey prefer open dry
habitats such as deserts, steppes, open
grasslands, savannas and mountainous
regions. Their diet relies on freshly killed
animals, insects.
7.
Source: Wildlife in Kenya

June 2022 • 63
Closing
Statement
GOVERNANCE
Africans have lost their patience. So they’re making
Why democracy in their voices heard with the biggest and most influ-
ential tool at their disposal: the Internet. Politically
Africa needs a rethink

ambitious military colonels have heard their cries,
and they’re responding.
The search for benevolent dictators
2
African scholars such as former International
Monetary Fund executive Dambisa Moyo and the
021 went down in history as the year continentally renowned Kenyan political professor
when military coups returned to Af- Patrick Loch Otieno (PLO) Lumumba have lauded
rica. The continent witnessed doz- the benefits of strongman leadership unbound by
ens of coups and attempted coups terms or age limits.
in Mali, Guinea, Sudan and Chad. In 2022, A benevolent dictator, if you like.
a military junta took power in Burkina Against the backdrop of failed multiparty democ-
Faso. racies across the continent, this idea has fallen on
The reason for the coups? People’s patience has attentive ears.
run out. Many in Africa are questioning the tenets of Some of the world’s most famous strongman
democracy and are asking whether it’s still relevant leaders — from Russia’s Vladimir Putin to Turkey’s
in the continent today. Recep Tayyip Erdogan — have become political
Across different social media platforms, there rock stars among African millennials, despite their
are many anti-democracy and anti-Western senti- utter disregard for human rights and their routine
ments. Much of the frustration seems to be directed silencing of journalists and opposition politicians.
at democratically elected leaders who were hiding Amid this resurgence of coups, I believe that
an autocratic streak, living extravagant lifestyles democratic governance is more needed than ever in
despite their poorer populaces. It’s not uncommon Africa. Not benevolent dictators. People should be
for these leaders to change their constitutions able to make fun of a president’s funny hat without
for political gain and shutter civic space to block getting thrown in jail. From communism to monarchy,
dissenting views. the very fabric of modern-day nations hinge on the
This is all happening under the watchful eyes of nuance of politics. With all its flaws, democracy has
the pioneers of democratic governance — Western emerged as a strong global system.
Europe and North America. But, instead of taking Nearly all African states have tried this form of
action, these Western nations legitimize the dirty governance after their independence from colonial
habits of these democratic-turned-autocratic rulers Europe. But generation after generation has achieved
by prioritizing their own economic interests over African elites little since.
rights abuses and corruption. need to But all is not lost. I believe that the coup trend can
On the one hand, Europe and North America pour rethink what be bucked and democratic governance can return.
billions into the continent to promote good gover- multiparty But African elites need to rethink what multiparty
nance and support the fight against poverty and democracy democracy means for them and what form it should
corruption. But, on the other hand, they also offer means for take in order for it to prevail on the continent.
financial backing to Africa’s dictatorial leaders in them and Western nations must also be ready to form new
exchange for unfettered access to natural resources. what form it partnerships with African leaders that are visibly
These double standards have consequences. should take in helping their people. They must also be prepared
After 60 years of development aid, Africa remains order for it to and willing to cut ties with leaders who fail their na-
the poorest continent in the world and still suffers prevail on the tions, even if that hurts their political and economic
the highest number of protracted civil wars, and continent. interests. ((DW)

64 • June 2022
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