TNLM August 2022 Press Final

Review: Democracy in Black Letter Law: Rule imposing
Kenya and Africa: A pre- three-year wait for divorce

election audit unconstitutional: Appeal Court
The Nairobi Law Monthly

Vol 13 • Issue No. 5 | August 2022 Ksh350 • Tsh7,020 • Ush10,764
REWRITING KENYA'S
POLITICAL TEMPLATE
This August, a determined reformist wave — dubbed
the people’s uprising — promises to put an end to self-
righteous posturing and usher in issue-based politics
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EVERYDAY OVER 15 MILLION MEMBERS ARE TRANSFORMING AFRICA
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Contents August 2022
Vol 13 • Issue 5
Publisher:
Ahmednasir Abdullahi
Managing Editor:
Kevin Motaroki
Cover Story Inside Regulars
Creative Design:
Denet Odhiambo
2 | LEADER
Staff Writers 4 | OPENING STATEMENT
Antony Mutunga
A new political era: The

Victor Adar 6 | BRIEFING
Contributors:
Prof John Harbeson
Kabakua Mbogori people’s uprising and end 6-11 | NEWS
EACC bets big on recovering stolen
of self-righteous politics
Peter Wanyonyi wealth in graft war
Ouma Ojango
Landmark Ogiek ruling sends strong
Eric Mukoya signals on the rights of indigenes
P.42
Eric Ng'eno
Peace, hunger top IGAD agenda
Special Reports:
Payton Mathau
12 | REVIEW
Business Executive:
Roseline Okayo Democracy in Kenya and Africa: A
Photography:
preelection audit
Victor Adar Are Raila’s and Ruto’s plans for their
NLM Library deputies constitutional?
Courtesy Uhuru has united Kenya more than
any other president
Administration:
Fatma Yusuf Identities are not qualifications
Printing:
Emirates Printing Press, LLC, 32 | SPECIAL REPORT
Dubai, UAE
This month’s poll will come down
Distribution: to the wire
The Newspoint – TNP
Opening AT A Election 'felt beyond borders'
Statement: CROSSROADS How well has IEBC complied
with Supreme Court’s orders on
preparedness?
Economic promises and lies – the
true cost of the elections
60 | BUSINESS
Telecommunications to drive
Africa’s post-pandemic economy
Exploiting Africa’s gas key to solving
deforestation, emissions and energy
security gaps
Kenyan bourse brings carbon
The choice exchange to East Africa
facing Kenya The tips of the butterfly: Linking
East Asia and Africa
and how we
The Nairobi Law Monthly may not be copied Kenya's got here 74 | BLACK LETTER LAW
Democracy: A
and or transmitted or stored in any way or
form, electronically or otherwise, without the
P.48
Preelection Audit
prior and written consent of the publisher. Is Article 75 (3) a standalone
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P.4 Law imposing three-year wait for
divorce unconstitutional: Court
newspaper.
Supreme Court verdict on Sonko
editor@nairobilawmonthly.com case a boon to Chapter Six
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84 | LIFE
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Law Monthly admits no liability for unsolicited disability-inclusive?
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August 2022 • 1
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Editorial
The next government needs to focus
anti-corruption efforts on long-term,
high-return institution building
activities – particularly the leeway to
act with their proper bounds without
interference – coupled with the justice
infrastructure and political will to hold
those who transgress accountable.
Uhuru's successor at the petrol pump, in our bus fares, in

our school fees, in our rents and in the
must prioritise graft as

unaffordability of life in Kenya as a whole.
A huge chunk of the inflation that is
rampant in Kenya is due to corruption
a governance issue – commodity prices include a bribery

element. We are at the point where cor-
ruption is so much of our lifeblood that
D
it is almost impossible for the economy
espite what the Constitution whoever it is, that will have an opportunity to survive without it.
says, Kenya’s presidency is to clean up Kenya’s corruption. Our biggest undoing is the weakness
imperial. We have concen- But what of Kenya, the prize that these of institutions, systems, and processes
trated untrammelled power two political titans are tussling over? that block leakages, coupled with the
in the presidency, making it the most Kenya is hollowed out by corruption. The pervasiveness of impunity and limited
coveted office in the land. This is an Af- vast amounts of money Uhuru borrowed political will to hold accountable and pun-
rican thing – we love the cult of the Big from China to underpin his impressive ish those found guilty of such corruption.
Man, the Bwana Mkubwa, the Mtukufu infrastructure development have bred Despite our very enabling constitu-
Rais. Africans do not like their presidents a level of corruption that is astonishing tion, the biggest problem is how to build
powerless and symbolic. We generally even by Kenyan standards. The Chinese strong, enduring governance institutions.
do not like small things – everything we stand ready with even more money for Building institutions takes time and
want is generally big and out there, and Uhuru’s successor, as they bid to enfold does not deliver the quick results that
that includes our political leaders. Kenya in a Beijing Debt Trap not unlike typically attract politicians or donors.
We see stepping back from anything what they visited on Sri Lanka, whose We are fortunate to now have technology
as a loss, as cowardly and unbecoming – economy has just collapsed under the that enables us to build electronic plat-
which is why it is so difficult for Kenyan weight of unsustainable and unpayable forms to manage government finances,
men to retire from employment. Used as debts owed to China. biometric systems to bring integrity to
they are to the spending power that their our personnel and government payment
regular salaries provide, they are unable systems, and web-based platforms to
to pivot to a life of lowered incomes, and Our biggest undoing is the provide transparency of government
many do not survive long after retirement. weakness of institutions, finances. But even these are routinely
And so, it is with our presidents – we like systems, and processes that bypassed or compromised. This is the
them super-powerful, taking the power- block leakages, coupled with sort of brazenness the next president
worship to stratospheric new levels. the pervasiveness of impunity must decisively confront.
But, despite all this power, President and limited political will to The next government needs to focus
Uhuru Kenyatta has severally declared hold accountable and punish anti-corruption efforts on long-term,
that he is effectively powerless to end those found guilty of such high-return institution building activi-
the corruption in his own office. Not the corruption. ties – particularly the leeway to act with
wider sleaze in government, nor even the their proper bounds without interference
graft that bedevils the entire country, but – coupled with the justice infrastructure
just the rot in the Office of the President – Which of the two leading presidential and political will to hold those who trans-
Uhuru says he cannot do anything about contenders will stand against corruption gress accountable. This process should
it. He is reduced to making ineffective and help find a way out of the mess of start by making key government statistics
speeches and issuing plaintive pleas to graft that we find ourselves in? Corrup- open and transparent, enabling citizens
the corrupt to clean up their act. They tion affects everything we do and adds to keep on top of important information
have, predictably, ignored him – after a graft premium to every transaction in and build trust in the government. Only
all, he is a lame-duck with just a few days the country, every business decision. We then can the country record wins against
left in power. It is the incoming president, pay the price of corruption at the duka, corruption. (

2 • August 2022
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August 2022 • 3
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xxx
xxx
Opening
Statement
with Prof John Harbeson
ON THE DECLINE
Kenya's Democracy: A
Pre-Election Audit
A
frobarometer recently re- cratic practice across the continent,
leased a comprehensive 2021 and in Kenya in particular, advanced or
survey of African opinion in weakened this larger objective or been
more than thirty countries, weakened by the very state fragility it is
its eighth since its founding in 1999. With intended to ameliorate.
Kenya about to conduct the seventh On the one hand, expert opinion by
national elections in its post-Cold War Freedom House and other well-regarded
democratic era, it is timely occasion to democracy-measuring agencies, includ-
query the status of Kenyan democracy ing Mo Ibrahim, V-Dem, has been near
including how Kenyans appraise democ- unanimous that democracy has receded
racy vis-à-vis citizens of other African gradually but clearly since about 2005
countries. after a preceding fifteen years of strong
As centrally important as elections progress. Freedom House, for example,
are to the quality of democracy, equally scores all countries on 25 key democratic
important is the larger matter of the indicators, on scale of 0 to 4, for a maxi-
bearing of democracy on the political mum score of 100. Freedom House con-
health of the state itself. In an African siders countries scoring between 30 and
continent of chronically fragile states, 75 as partly free and democratic. Between
the issue is to what extent in practice 2006 and 2021, average overall country
democracy strengthens, weakens, or is scores have declined considerably from
weakened by, those fragile states, which 49 to 42. Kenya’s democratic decline over
hinges on one’s working definition of that period has been among the steepest
the state. Wide spread tacit reliance on on the continent, from 66 to 48.
early 20th Century German philosopher The 25 Freedom House indicators cover
Max Weber’s definition of the state as seven categories: elections, political
a monopoly legitimate coercive power pluralism and participation, accountable
within a compulsory territorially defined and transparent governance, freedom
association seems to beg the question of expression and belief, associational
of how that legitimate monopoly and freedom, rule of law, and personal au-
that compulsory association are to be tonomy and individual rights. Kenya’s Findings from surveys of
acquired. The logical alternative to brute strongest democratic performance has random samples of ordinary
authoritarian force is consent, not just been and remains upholding freedom of citizens has revealed
in elections to determine who is to rule expression and belief but it has declined reassuring popular support for
that association, but more fundamentally over this fifteen-year period from a very democracy and perceptions
consent to membership in that associa- strong 88 in 2006 to 63 in 2021, but at that weak democratic
tion itself. the same time, the country’s biggest performance has failed to
A key question is to what extent have decline over this period has been in strengthen state institutions
three decades of post-Cold War demo- freedom to participate fully, fairly, and as intended.
4 • August 2022
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After six decades of independence,
Afrobarometer surveys find Africans
aligning totally or mostly with their
nation-states rather than residual ethnic
communities have declined over the past
decade from only 48 percent tom 40
percent, for Kenyans over the same period
even more steeply from 56 to 38 percent.
of Kenyans, by contrast to 65 percent

of Africans overall-- feel free to join any
organization. In 2021, only 48 percent of
Kenyans. Kenyans and Africans gener-
ally retain a belief in media freedom, 58
and 63 percent respectively. All Africans
retain a strong belief in competitive elec-
tions but only 45 percent believe them
effective in dismissing failed leaders,
Kenyans 46 percent.
The foregoing mixed record of support
for democratic performance in practice
has not been strong enough to sustain
democratic state institutions, let alone
strengthen them. Only 34 percent of
Africans --Kenyans 31 percent – approve
of governmental performance in reduc-
ing corruption. However, Kenyans retain
more trust in presidential institutions
than Africans generally by a wide margin,
66 to 51 percent, and in parliament, 49
to 42 percent.
Perhaps most telling, colonially created
African states joined ethnic communi-
ties, and parts of ethnic communities
haphazardly with little over-arching
rationale. Nationalist movements and
post-independence governments have
sought to weld meaningful states out of
these multi-ethnic aggregations. After six
decades of independence, Afrobarometer
surveys find Africans aligning totally or
mostly with their nation-states rather
than residual ethnic communities have
declined over the past decade from only
48 percent tom 40 percent, for Kenyans
over the same period even more steeply
equitably in political party and other continentally and in Kenya, both reas- from 56 to 38 percent.
political groupings, declining from 78 to suring popular support for democracy Democracy must do more than reverse
50, followed by a 25 point decline to 50 and perceptions that weak democratic its long-term decline. It is an indispens-
in electoral performance. Kenya’s worst performance has failed to strengthen able means for reforming and strength-
scores throughout this period have been state institutions as intended. 69 percent ening Kenyan and other sub-Saharan
in transparent governance, 42, and rule of Africans prefer democracy to all the African fragile states. (
of law, 31 both in 2021. authoritarian alternatives, including 75 — Prof Harbeson is a professor of Politi-
On the other hand, Afrobarometer’s percent of Kenyans. Only 42 percent felt cal Science Emeritus and a professorial
findings from surveys of random sam- they are free to say what they think in 2021 lecturer for the African Studies Program,
ples of ordinary citizens has revealed, down from 49 percent in 2013. 48 percent Johns Hopkins University.

August 2022 • 5
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Briefing NEWS
GRAFT
NEWS • PORTRAIT •
OPINION • NEWS OF EACC bets big on
THE WORLD • THE BIG
INTERVIEW recovering stolen
wealth in graft war
L
ife is no longer at ease of interest, committing an of-
for public officers who fence under Section 42 (3) of
have accumulated the ACECA,” the EACC argues.
wealth beyond the scope of The company accounts at
their known legitimate sources Equity Bank, the Commission
as the Ethics and Anti-Cor- say, were first frozen last Sep-
ruption Commission (EACC) tember for six months. The
intensifies investigations, trac- orders were extended in March
ing and recovery of corruptly but are also lapsing this July,
acquired assets. but the Commission has estab-
Extending the string of its lished a case against the com-
recent asset tracking and re- pany to recover the money.
covery cases, the Commission “Having instituted this re-
has moved to court to recover covery suit, the applicant is
Sh25 million from a company reasonably apprehensive that
associated with an employee the 1st respondent (Amailo)
of Turkana County Govern- will seek to dispose of, transfer
BAROMETER: ment that was paid millions

of shillings for goods that it
or withdraw all the funds in
the subject bank account to
Democracy in did not deliver. frustrate any decree that may
Kenya and Africa: Esther Lokai Elim, a director
of Amailo Investment Com-
be passed against it,” EACC
says in the petition filed at the
A pre-election pany Ltd, is an accountant at High Court, adding that several
audit P.12 the county and has used her officials named in the case
kin to trade. Between March colluded with the company
2014 and July last year when and issued a false inspection
the company’s accounts were and acceptance certificate
frozen, the company had been dated May 24, 2021, purport-
paid Sh185 million. ing that 6024 bags had been
INJECTING MORALITY The Sh25 million targeted delivered.
INTO OUR POLITICS by the Commission was paid Elsewhere, life will never be
Identities are not for the supply of 6,024 (25kg) the same again for two million-
bags of corn soya blend, which aire public officers with strings
qualifications P.29 were never delivered. of properties and fat bank ac-
“During the period 2013- counts to their names that are
2019, knowingly held a private disproportional to their known
interest in various contracts legitimate sources.
DEVOLUTION entered into between the First This is after courts of law
Governor seats a test Respondent and the County found, separately, that Gabriel
in citizen choices P.30 Government of Turkana, and in Mbiti Mulei, a senior police
so doing, the Sixth Respondent officer and James Mwathethe
(Ms Elim) engaged in a conflict Mulewa, a former managing

6 • August 2022
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REPARATIONS
Landmark Ogiek
ruling sends strong
signal on rights of
director of the Kenya Ports ruption and Economic Crimes indigenous people
Authority (KPA) could not ex- Act No. 3 of 2003 to declare that
plain the source of their assets.
The Court of Appeal sitting
in Mombasa on July 8, upheld a
Mr. Mulei, then a Traffic Base
Commander, Malindi Police
Station, was in possession of
I n a judgment handed down
in June, the African Court of
Human and Peoples’ Rights in
Mau Forest, and implementation of
the 2017 judgment of the African
Court,” said Francisco Cali Tzay, UN
High Court Judgement of April unexplained assets valued at Arusha, Tanzania, delivered a Special Rapporteur on the rights of
2011 that had ordered the for- Sh27,573,959 which should be reparations judgment in the final indigenous peoples.
mer KPA managing director to forfeited to the Government. act of a long running case. The The Court ordered the
pay the Government of Kenya Forfeiture of assets is pro- Court unanimously rejected the Government of Kenya to pay
Sh63,683,794, being cumulative vided for under the Anti-Cor- Government of Kenya’s objections compensation of Sh57 million
deposits made to his accounts ruption and Economic Crimes and ordered Kenya to title Ogiek for material prejudice for loss of
in 2010, Sh3,683,861 cumulative Act, 2003 (ACECA). The law ancestral lands in Mau Forest. property and natural resources,
interest of bank deposits and provides that a public officer in The historic ruling on reparations and Sh100 million for moral
Sh11m being value of immov- possession of property whose follows a landmark judgment prejudice suffered by Ogiek due
able property including two value is disproportional to their delivered by the Court on 26 May to violations of the right to non-
parcels of land No. MN/1/13483 known legitimate sources of 2017, finding that the Government discrimination, religion, culture and
and No. MN/1/1535. income shall, unless the con- of Kenya had violated the right to development.
The EACC, being the first trary is proved, be presumed life, property, natural resources, In addition, the Court ordered
respondent in the appeal and to have acquired the same development, religion and culture of non-monetary reparations,
having already recovered through corrupt conduct. the Ogiek, under the African Charter including the restitution of Ogiek
Sh22,153,386, will now pro- Where EACC reasonably on Human and Peoples’ Rights. ancestral lands and full recognition
ceed to execute for the bal- suspects that a person is in “This judgment and award of the Ogiek as indigenous peoples.
ance of the decretal sum of possession of unexplained as- of reparations marks another Specifically, the Court required the
Sh74,683,794. sets, it issues a statutory notice important step in the struggle of the Kenyan Government to undertake
On the other hand, the High requiring the person to explain Ogiek for recognition and protection delimitation, demarcation, and
Court also declared Mr Mulei’s how they acquired the wealth of their rights to ancestral land in the titling to protect Ogiek rights
wealth including four bank in question. Where the suspect to property revolving around
accounts, six vehicles and is unable to explain or gives occupation, use and enjoyment
six parcels of land in Malindi, unsatisfactory explanation, of the Mau Forest and its resources.
Kwale township and Ndithini/ EACC files a civil suit and upon The Court also ordered Kenya
Mananja as unexplained assets. demonstrating to the court, Sh57m
Awarded for
to take necessary legislative,
In addition, the court also on a balance of probabilities, administrative or other measures to
ordered Mr Mulei in the June that the assets in question are material prejudice recognise, respect and protect the
30 judgement to pay the sum unexplained, the burden of for loss of right of the Ogiek to be consulted
property and
of Sh10,536,199 to the Govern- proof shifts to the suspect to resources. with regard to development,
ment, being the cumulative convince the court that the as- conservation or investment
bank deposits that he made sets were not acquired through projects in their ancestral lands.
between June 18 2008 and corrupt conduct. Should the The Ogiek must be granted the
February 18 2011.
The EACC had moved the
suspect fail to satisfy the court,
they are ordered to forfeit
Sh100m right to give or withhold their free
and informed consent to these
Awarded for
High Court in January 2011 the unexplained assets to the moral prejudice projects to ensure minimal damage
under Sec. 55 of the Anti-Cor- State. ( due to violations. to their survival, the ruling said. (

August 2022 • 7
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Briefing NEWS
FULL DISCLOSURE railways, Ruto’s campaign is
Ruto promises to publish touting a plan to dish out loans

to “hustlers” or small business-
contracts with China men and women, symbolised

by his campaign symbol of a
D
wheelbarrow.
eputy president Wil- domestic product, owes China its Chinese debt and Zambia The DP has said he will look
liam Ruto will publish about Sh1.04 trillion. is seeking to do – something for more money to overcome
government contracts Ruto has promised to slash Ruto said he would not do, in- shortages of judges and mag-
with China and deport Chinese the government borrowing sisting Kenya has the capacity istrates, independent budgets
nationals working illegally if he that has funded President Uh- to handle its debt situation. for investigating bodies, and
is elected on August 9, prom- uru Kenyatta’s infrastructure Ruto, 55, paints the election making sure parliament has
ises likely to resonate with building spree. as a clash between “hustlers an active opposition, as some
citizens pummelled by mount- The contracts are not public and dynasties” – a jab at Raila ways of tackling graft.
ing debt and the skyrocketing and some Kenyan organisa- Odinga and Kenyatta, son of “The challenge we have at
cost of living. tions have lodged court cases the nation’s first vice president the moment is the weapon-
Kenya, whose 2022/23 bud- to try to force full disclosure and president respectively. ization and the politicisation
get of Sh3.3 trillion shillings of the deals. Instead of planning mam- of corruption,” the Deputy
has a deficit of 6.2% of gross Ethiopia has restructured moth expressways or new President maintains. (
NOT CULPABLE
No link between Ruto and tion to the scandal but has now
terminated charges against 15
Arror, Kimwarer – Haji including former Treasury PS

Kamau Thugge and former
D
East Africa Community PS
irector of Public Prose- Susan Jemutai Koech, after
cutions (DPP) Noordin they agreed to be prosecution
Haji says that there is witnesses.
no evidence linking Deputy ODM leader and his allies
President William Ruto to the have always accused the DP
Arror and Kimwarer. and his allies of halting the
Haji, who spoke during a construction of the multi-
morning show last month, billion shilling Arror and
said that the Kimwarer case Kimwarer dam following the
file from investigative agen- scandal.
cies also doesn’t include DP In February 2019, Ruto
Ruto’s name. denied claims that Sh21 bil-
Haji however noted that the lion was lost in the Arror and
ODPP has been pursuing the Kimwarer multi-purpose dam
Kimwarer case to see it to its projects in Elgeyo-Marakwet
conclusion. ror and Kimwarer dams proj- sury CS Henry Rotich, his PS saying only Sh7 billion was in
“As far as I am concerned ects in Elgeyo-Marakwet was Kamau Thugge alongside four question.
and from where I am sitting, cancelled by President Uhuru others are charged with sev- “You have heard that the
there is no evidence against Kenyatta, in September 2019 eral counts of corruption, in- government has lost Sh21 bil-
him, and the file in court does after investigations found to cluding conspiracy to defraud lion in Kimwarer and Arror
not have his name, and that have been overpriced and that and abuse of office, which dams which is a flat lie. The
does not mean I am siding the project is neither techni- resulted in the loss of Ksh.63 money in question is about
with anybody, I am just being cally nor financially viable. billion in 2019. Sh7 billion and for every coin
factual” stated DPP Haji. In the multi-billion shillings The DPP had initially that has been paid, we have a
The multi-billion shilling Ar- dam fraud case, former Trea- charged 24 individuals in rela- bank guarantee,” Ruto said.” (

8 • August 2022
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QUICKTAKES
BEHIND THE SCENES “You have already THE STATISTICS
“Someone was sent from

been given three
million by my TIME’S World’s
Sh
State House to tell me to losing opponent Greatest Places of 27.97
billion
to lie that I have
drop from the race and I stepped down
2022 (Africa)
was offered Sh 1 billion but and “you” will
offer me a job The International
rejected the offer,.” in the Azimio
1. Nairobi - Cultural metropolis
2. Hwange National Park, Monetary Fund
government. You has completed
Zimbabwe - Conservation
want to give me the third reviews
safari
a job as who? under the 38-month
3. Franschhoek, South Africa - A arrangements
Stay away from wine lover’s dream under the Extended
Mathare politics 4. Lower Zambezi National Park, Credit Facility (ECF)
and focus on your Zambia - Teeming with wildlife and the Extended
bid or you will lose 5. Kigali, Rwanda - Building a better Fund Facility (EFF)
again like in 2017.” future arrangements. IMF
– Singer Kevin Kioko will disburse over
Johnson Sakaja, aka Bahati Sh20 billion usable
Nairobi senator on receiving delegation for budget support,
to bow out of the upcoming gubernatorial bringing Kenya’s
race. total disbursements
for budget support
LEAKED INFORMATION HAMMER so far to about
& TONGS Sh143.43 billion
($1.2082 billion).
“Nairobi has 45 MCAs,
who are kikuyu, I can tell “Ahsante
WTF@#?!
you they are all controlled sana wana @
JubileePartyK
by three Somalis. That is Nairobi for “For the first time, the US Supreme
a fact. The capture is too resolving the Court took away a constitutional right
Mathare question that had been recognized, from the
serious. even yesterday for us. We now people of America, from the women
they were doing things that have a candidate of America. We know, NAACP, that
are completely illegal and Hio kijana ya kulia our country has a history of claiming
lia nitachukua ownership over human bodies.”
illicit.” apology yake kwa
Diana personaly.”
Polycarp Igathe, – Edwin Sifuna Vice President Kamala Harris of
Nairobi gubernatorial candidate on who runs Secretary General the US remarks on the supreme
the capital city. ODM Party court decision on abortion
TOP TRENDING ON TWITTER: #PresidentialElections2022, #PresidentialDebatesKe2022, #State Capture, #Iron Lady
15Billion
the estimated number seized by State
THE BIG agencies from individuals and companies
from the West African nation connected
NUMBER to fraud
www.nairobilawmonthly.com
Shs The Nairobi Law Monthly
August 2022 • 9
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Briefing NEWS
INDICTED wounds were identified on the
Lobby wants Nakuru police head, chest, and abdomen of

the victims.
boss interdicted over extra- He added that the reports

showed that the victims were
judicial killings shot standing in an upright po-

sition and the other two were
kneeling noting that the gun’s
nasal was faced downwards.
“Three were shot from be-
hind and one from the side
further examination of the
bodies showed that the bodies
were dragged on the ground
which implies that the place
where they were collected
was a secondary crime scene,”
Kiama stated.
Kiama said that there was no
evidence of defensive wounds
on the bodies.
He noted that witness ac-
counts and the forensic find-
ings clearly point to what he de-
scribed “a case of cold-blooded
murder by police officers.”
Kiama says that summary
execution by the police dem-
onstrates a failure by the gov-
ernment to respect the rule of
law and the right to life. “The
executions are a gross viola-
tion of human rights including
T
the right to life as prescribed
he Independent Medi- in Nakuru. pendent Policing Oversight Au- under Article 26, right to a fair
co-Legal Unit wants the The lobby wants Mwanzo to thority (IPOA) and the Internal trial for suspected criminals
immediate suspension be brought to justice over what Affairs Unit (IAU) to undertake under Article 50 (1), protection
and investigation of the new- it termed his “responsibility thorough investigations into from inhumane and degrading
ly promoted Nakuru County in these executions including the killings. treatment under Article 29 (f),
Commander Peter Mwanzo the ones that have happened He further called for the and other incidental rights that
over the recent execution of in other jurisdictions where he immediate suspension and extend to family members
four men in Nakuru as the has been in command.” prosecution of police officers and the communities where
government intensifies its “It is not lost on us that the suspected of committing the the alleged criminals reside,”
crackdown on criminal gangs. execution of the four has hap- execution. he said.
Following the killing, Mwanzo pened a few weeks after he as- This call comes a day after The IMLU Executive Director
says that the four were part of sumed office, and less than two the post-mortem report indi- said that the lobby document-
the “Confirm” gang that had months after similar execu- cated that the victims were ed a total of 115 cases of police
been earmarked earlier by tions happened in his immedi- shot at close range as opposed killings in 2020 and 2021. “The
security agencies and blamed ate former jurisdiction,” Peter to the police reports that the 2021 police killings happened
for a spate of violent crimes Kiama, the executive Director victims were killed by security in 59 police stations across 25
including the murder of vari- of IMLU said Wednesday. personnel in self-defence. counties, meaning the practice
ous people, mostly women, Kiama appealed to the Inde- According to Kiama, gunshot is widespread.” (

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FOLLOW US:
SUMMIT a path of peace and sustainable
Regional peace, hunger top economic development," Presi-

dent Kenyatta said.
agenda at IGAD Kenya 2022 President Kenyatta further

assured that Kenya will not
V
waiver in its commitment to
iolent extremism, spared from the Covid-19 pan- manage the drought before it collaborating with regional
drought and armed demic," said President Uhuru becomes a threat multiplier," and international partners to
conflicts are some of Kenyatta, who was speaking said the President. strengthen conflict prevention
the challenges that require 9th Extraordinary Assembly Noting that a stable region and promoting peace.
urgent attention. of the IGAD Heads of State and was beneficial to all IGAD mem- "Our discussions today are of
"In the past two years alone, Government in July. ber states, the President said immense importance to Kenya
the region has experienced a "Further, the drought, the no progress would be realized because we recognize that our
desert locust invasion, a crush- worst in 40 years, has inten- without peace and security. political and economic stability
ing drought that is still ongoing, sified food insecurity, dried "It is incumbent upon us to is dependent on the stability of
numerous threats related to up water sources and forced work together boldly and cre- the IGAD region. This is why we
violent extremism, armed con- displacement of people, raising atively to navigate the multiple are invested in regional efforts
flicts and, like the rest of the tensions that could trigger new crises we face, seize opportuni- to secure peace and stability,"
world, the region has not been conflicts. We urgently need to ties as they emerge and define the President said. (
Ag. Deputy CEO of EACC Abdi Mohamud centre), Liberia Anti-Corruption Commission (LACC) Executive Director Moses Varfee Kowo and LACC Financial
Controller Emmanuel Tarlue, with various EACC heads of department when the EACC hosted officials from the LACC at the Integrity Centre last month.
The delegates were in Nairobi for a one-week training on Public Sector Financial Management under the auspices of the International Management Training
Consortium (IMTC). The LACC team sought to benchmark with the Commission on best practices pertaining to investigations, asset recovery, prevention and
promotion of ethics and were taken through various presentations by EACC officials.

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Review
ANALYSIS AND CRITIQUE
A
frobarometer has recently
released a comprehensive
2021 survey of African politi-
cal opinion in more than thirty
countries, its eighth since its founding in
1999. With Kenya conducting its seventh
national elections in its post-Cold War
democratic era this month, it is a timely
occasion, with the benefit of these as
well as Freedom House data, to query the
status of Kenyan democracy. It is useful
also to discern how Kenyans’ experience
has compared to that of citizens of other
African countries.
At the same time, sub-Saharan Africa’s
democratic experience over the past three
decades of the post-Cold War era raises
a much larger and more fundamental
question: what has been the impact of
democratization on the pervasive, con-
tinuing fragility of most African states,
including Kenya. To what extent has de-
mocratization liberated African peoples
from previous post-independence decades
of authoritarian, corrupt and profoundly
ineffectual rule?
On balance, the data suggest that a
gradual but relentless democratic decline
since about 2005 for Kenya, the continent,
and the world has resulted from inat-
BAROMETER tention to the fully systemic nature of
democracy and its implications for the
Democracy in viability of developing country states in

the post-Cold War era.
Kenya and Africa: A With a more systemic approach to

democratization, less than democrati-
pre-election audit cally inclined political leaders might have

found fewer democratic weaknesses to
exploit, thereby to undermine its viability
to blunt its capacity to strengthen as well
New momentum is clearly needed if democracy’s as reform states. The data suggest that
decline in Africa and across the globe is to be reversed while Kenya remains a stronger state
than many throughout the continent,
its democratic decline in some respects
over the last decade and a half has been
BY P RO F J O H N H A R B E S O N among the steepest.
On the one hand, as centrally impor-
tant as free and fair elections are to the

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Are Raila’s and Why peace For all his faults,
Ruto’s plans for remains elusive Uhuru has united
their deputies as Kenyans go to Kenya more
constitutional? the polls than any other
P.19 P.22 president P.25
meaning of democracy, their integrity and cally governed, like Kenya, has established results of insufficient attention to the
efficaciousness in empowering capable that the problem of state strengthening systemic dimensions of democracy and
leaders depends also on synchronous and reform is not synonymous with and to reexamining the meaning of the state
establishment of parliamentary strength, does not yield easily even to systemic in the midst of profound state weakness
judicial independence and authority, democratic initiatives. can usefully be reviewed both by experts
constitutional entrenchment of basic These tendencies to reduce the state and specialists, and citizens who, by
human rights and the rule of law, effec- to being a synonymous, silent partner definition, are to be democracy’ principal
tive civil society checks on governmental with something else become glaringly beneficiaries.
over-reach, media freedom and diffusion problematic – when the nature of the The former have documented the failure
of democratic norms and practices in state is contemplated, there has been of democratization to ameliorate state
educational institutions and throughout widespread resort to tacit reliance on fragility significantly. Meanwhile, African
society at large. early 20th Century German philosopher citizens, though retaining have a belief in
I would hypothesize that, with respect Max Weber’s definition of the state as a democracy as the best form of government
at least to Africa, the sudden fall of au- monopoly of legitimate coercive power but have registered skepticism about
thoritarian rules with the conclusion of within a compulsory territorially defined the viability of partial democratization
the Cold War, multiparty elections and association. adversely impacted by non-democratic
with the encouragement of international However, the Weberian definition seems leaders. Their skepticism has appeared
institutions, electoral dimensions of de- to beg the question of how that legitimate to some extent to have weakened their
mocratization, not surprisingly, claimed approval of core democratic institutions
an urgency and priority that in retrospect and, possibly, even in their identification
outpaced other systemic dimensions of While Kenya remains a with the nation-states in which they have
democracy, whose greater progress might stronger state than many found themselves.
have left less maneuvering room for less throughout the continent, its
undemocratic leaders to exploit in all the democratic decline in some Expert opinion on democracy
ways they have. respects over the last decade On the one hand, expert opinion by Free-
On the other hand, equally important and a half has been among dom House and other well-regarded de-
is the larger matter of the bearing of the steepest mocracy-measuring agencies, including
democracy on the political health of the Mo Ibrahim and V-Dem, has been near
state itself in an African continent of monopoly and that compulsory association unanimous that democracy has receded
chronically fragile states, which hinges are to be acquired. The logical alterna- gradually but clearly since about 2005
on one’s working definition of the state. tive to brute authoritarian force is some after a preceding fifteen years of strong
As central as is the definition of the state form of consent not just to elections to progress. Freedom House, for example,
to the study and practice of politics, it is determine who is to rule that associa- scores all countries on 25 key democratic
remarkable how infrequently the definition or even to constitution-making that indicators, on scale of 0 to 4, for a maxi-
tion is directly addressed. Routinely, the can become an empty exercise. Rather, mum score of 100.
state is tacitly reduced to being synony- state-strengthening and reform, prop- The 25 Freedom House indicators cover
mous with government instead of as the erly understood, appears to entail, more seven categories: elections, political plu-
overarching association that governments fundamentally, finding terms on which ralism and participation, accountable
are created by democrats to manage by, it is possible for individual citizens and and transparent governance, freedom of
for and on behalf of their citizens. groups to consent to membership in that expression and belief, associational free-
Similarly, there has appeared to be a association itself. dom, rule of law, and personal autonomy
pervasive tendency to presume that when The key question, thus, becomes to and individual rights. Kenya’s strongest
a country has established democratic elec- what extent have three decades of post- democratic performance has been and
tions and a constitution enfranchising its Cold War democratic practice across the remains upholding freedom of expression
citizens, it has by definition simultaneously continent, and in Kenya in particular, and belief but it has declined over this
established a democratic state. However, advanced or weakened this larger objec- fifteen-year period from a very strong 88 in
the evident, continuing fragility even of tive or been weakened by the very state 2006 to 63 in 2021, but at the same time, the
states that are at least partially democrati- fragility it is intended to ameliorate? The country’s biggest decline over this period

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Review
has been in freedom to participate fully, under law down 37 to 34. competitive elections but only 45 percent
fairly, and equitably in political party and The scores on upholding democratic believe them effective in dismissing failed
other political groupings, declining from liberties have remained somewhat higher leaders, Kenyans 46 percent.
78 to 50, followed by a 25-point decline than those for structural democratic state The foregoing mixed record of support
to 50 in electoral performance. Kenya’s support, notwithstanding some of the for democratic performance in practice
worst scores throughout this period have sharpest declines in specific areas. Up- has not been strong enough to sustain
been in transparent governance, 42, and holding of freedom religion and academic democratic state institutions, let alone
rule of law, 31 both in 2021. freedom have declined only modestly, strengthen them. Only 34 percent of
In addition, since 2013, each year, Free- from 64 to 61 and 68 to 66 respectively. Africans – Kenyans 31 percent – approve
dom House has also released the scores on But general freedom of expression has of governmental performance in reduc-
all 25 questions for all countries. Grouping declined precipitously, nearly 20% from ing corruption. However, Kenyans retain
these scores under the headings of the 64 to 53. Freedom of association and more trust in presidential institutions than
seven Freedom House categories affords freedom of assembly have each declined Africans generally by a wide margin, 66
granular insight into general governmental over 10% from 52 to 47 and 43 to 38 re- to 51 percent, and in parliament, 49 to 42
weakening of both core democratic liber- spectively. Freedom of organization for percent respectively
ties and structural foundations support- unions and professional associations Perhaps most telling, colonially created
ing democratic states. Translating scores has remained relatively stronger at 52. African states joined ethnic communities
of zero to four into percentages (e.g., a Freedom of movement, to travel and to with little overarching rationale. National-
score of 1=25%) between 2013 and 2021, choose one’s residence declined from ist movements and post-independence
scores have fallen in overall by about 8% 51 to 48. Economic freedoms remained governments, have sought to weld mean-
overall, including for 12 of 14 structural essentially stable at 44 though freedom ingful states out of these multi-ethnic
criteria and 8 of 11 democratic liberties from economic exploitation remained aggregations. After six decades of inde-
scores. essentially stable at a very low 33. pendence, Africans aligning totally or
The weakened structural foundations mostly with their nation-states rather
fall into four categories. First, scores for than residual ethnic communities have
election systems include presidential The momentum driving declined over the past decade from only
elections that have fallen from 44 in 2013 democratization spurred by 48 percent to 40 percent.
to 40 in 2021, parliamentary elections (47 the end of the Cold War and The momentum driving democratiza-
to 46), and fair and impartial election laws sustained by unipolar inter- tion spurred by the dramatic end of the
(an 11% decline from 47 to 42). Second national support powered Cold War and sustained by a unipolar
scores on procedures enabling political African democratization for decade of international support powered
parties to organize freely (no change at more than a decade. African democratization for more than
50), enable opposition parties to organize a decade. That momentum has run its
realistically (down 45 to 42), enable parties Citizen opinion of democracy course, helping to explain democratic
to organize free of external interference On the other hand, Afrobarometer’s find- decline since about 2005. International
(44 to 39) and enable all groups, and treat ings from surveys of random samples of support for continued democratization
all groups impartially (49 to 47). ordinary citizens has revealed, continen- has been sapped by the distractions of
Third, scores for accountable gover- tally and in Kenya, both reassuring popular combatting global terrorism, the rise of
nance have declined 10% from 43 to 39 for support for democracy and perceptions China and other surging economies—India,
governmental effectiveness in upholding that weak democratic performance has Brazil, and others, and climate change
this requirement, 10% from 37 to 33 in the failed to strengthen state institutions as and humanitarian and other exigencies.
degree of transparency and remain at a intended. 69 percent of Africans prefer New momentum is clearly needed if
very low 33% for the existence of effective democracy to all the authoritarian alter- democracy’s decline in Africa and across
corruption safeguards. Fourth, scores natives, including 75 percent of Kenyans. the globe is to be reversed. That new
the rule of law remain the lowest of the Only 42 percent felt they are free to say momentum can only be generated by
seven categories. Specifically, judiciary what they think in 2021 down from 49 democrats and democratic organizations
independence has declined from 39 to percent in 2013. 48 percent of Kenyans, themselves — national and international
37, overall practice of due process almost by contrast to 65 percent of Africans political leaders, civil society groups,
20% from 39 to 32, governing structures overall-- feel free to join any organization. political and economic organizations
unchallenged by illegitimate forces and In 2021, 63% of all Africans and 58% of that see democracy as in their interests,
insurgencies down over 40% from 36 to Kenyan retained a belief in media free- and grassroots movements of citizens
31, and general observance of equality dom. All Africans retain a strong belief in themselves. (

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K
RESILIENCE enya’s competitive presidential
elections reflect hard-earned
August poll to progress in establishing inde-

pendent constitutional and
test the country’s judicial guardrails, though a history of

electoral violence demands all sides
democratic journey show restraint.

Kenyans will vote in their fifth presi-
dential elections since the introduction of
multiparty politics in 1991. The competi-
tiveness of the elections, and uncertainty
BY S P E C I A L CO R R E S P O N D E N T over the outcome, distinguishes Kenya
from many of its neighbours.
President Uhuru Kenyatta is stepping
down, following the completion of his
constitutionally limited two terms in
office. This, too, makes the Kenyan elec-
tions noteworthy, given the recent trend
of African leaders sidestepping term
limits as a means of extending their time
in power – to the detriment of stability.
Rather, Kenya has a tradition of transfers
of power even between candidates from
opposing parties.
Still, elections in Kenya remain a period
of high tension. Kenyans recall the large-
scale violence that erupted after the 2007
elections when supporters of Raila Odinga,
and his then running mate, William Ruto
fought over what Odinga’s side saw as an
effort by President Mwai Kibaki and his top
lieutenants including President Kenyatta,
to “steal” the election. The Rift Valley was
engulfed in deadly violence pitting the Luo
and Kalenjin communities – respectively
loyal to Odinga and Ruto – against Kenya’s
largest ethnic community, the Kikuyu,
from which Kibaki and Kenyatta hail. Over
3,000 people were killed, and 600,000
uprooted. Many remain displaced today.
The 2013 and 2017 polls, tightly con-
tested between Odinga and Kenyatta
(and his running mate, Ruto), were marred
by electoral fraud. The Supreme Court
required a rerunning of the 2017 contest
due to the irregularities.
This recent history has raised questions
about Kenya’s ability to hold free and
fair elections – and the 2022 elections
will provide a benchmark for how much
progress has been made.
The potential for violence remains

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Review
high according to a report by the inde- shake” reconciliation in 2018. elections as a struggle between “hustlers”
pendent National Cohesion and Integra- Odinga’s Azimio La Umoja alliance is and “dynasties.”
tion Commission, due to pre-existing a coalition of seven major political parties, William Ruto’s Kenya Kwanza alliance
conflicts and weak institutions. Some three of which contested previous elec- assembles nine parties that have also un-
young people have told the Commission tions as bitter adversaries. This includes dergone multiple transformations since
that they are being paid by politicians the Kenya African National Unity (KANU) the Moi era. Some of them – like Ruto
to intimidate rivals and disrupt their that ruled Kenya as a one-party state himself – were either on Odinga’s side or
campaigns. Kenyans’ trust in their insti- until 2002 and once detained Odinga, with Kenyatta in previous elections. It, too,
tutions is low: only 26 percent trust the the incumbent Jubilee/National Rainbow promises an extensive and populist social
Independent Electoral and Boundaries Coalition (NARC), and its rival from 2007 welfare program targeted particularly at
Commission (IEBC), and just 23 percent elections, the Orange Democratic Move- the youth. Key pledges include a so-called
trust the courts despite the courts’ taking ment, then led by Odinga and Ruto. “hustler fund” for women’s cooperatives
high-profile stances of independence. A The Azimio La Umoja alliance is orga- and Kenyan women abroad, workers
report by the Mozilla Foundation warns nized around older-generation politicians compensation, universal healthcare, and
that hate speech, misinformation, and dating back to the 1990s and a populist Pesa Kwa Vijana, a program that targets
disinformation are widespread (though program, Inawezekana, that includes ex- “wealthy dynasties” for wealth and land
not by the candidates themselves), with tensive social welfare initiatives: universal redistribution. Ruto has also pledged to
some manipulated hashtags getting over healthcare, Inua Jamii, pesa mfukoni, enact a policy requiring spousal consent
20 million views. in all land transactions to protect women
and children from dispossession of fam-
The principals and their parties The Constitution abolished ily land.
A quintessential feature of Kenyan poli- an all-powerful “imperial It is notable that both tickets recycle
tics is that the same pool of politicians presidency,” and redirected elites who have dominated the Kenyan
tends to dominate the political process, politics down to the grass- scene since the Daniel arap Moi era but
though they may be in different camps roots. As a result, politics under different banners. This serves
depending on the election – sometimes have become more county- to perpetuate the personalization of
friends, sometimes bitter rivals. The whip- based, and politicians must politics. Namely, parties have tended to
ping up of ethnic animosities, especially create alliances at the county, be organized as vehicles for winning votes
around land in the Rift Valley, is another village, and town levels. rather than offering alternative policies.
feature of Kenyan politics. This is where Indeed, the two frontrunners –Odinga
some of Kenya’s most productive lands, which is a direct cash transfer of 6,000 and Ruto – have traded accusations
previously reserved for European settlers, shillings ($50) per month to needy fami- throughout the campaign, not on policy
are located. lies; and Azimio la Kina Mama, which is positions, but about their personal stories
The frontrunners of the upcoming polls universal financing for women-led small and having an unfair advantage due to
embody many of these dynamics. Raila businesses. their access to state machinery.
Odinga (77) and William Ruto (55) have William Ruto had a falling out with Ke- These populist platforms are clearly
worked together as senior government nyatta in 2018, ending a two decades-old targeting young people as a key con-
officers and, at times, as vigorous op- partnership dubbed “UhuRuto.” He pres- stituency that is up for grabs. Kenya’s
ponents in every election since the early ents himself as an “insurgent candidate,” unemployment rate among the 18-to-34
1990s. They were on opposite sides under deriding the Odinga ticket as a continua- age group is nearly 40 percent, and the
President Daniel arap Moi, the same side tion of the dynastic politics of the Odinga economy cannot absorb the 800,000
against Mwai Kibaki in the infamous 2007 and Kenyatta families that have loomed youth joining the workforce annually.
poll that ended in catastrophic violence large over Kenya since independence. This is a restive cohort as can be seen
in the Rift Valley, and are on opposite Jaramogi Oginga Odinga and Jomo in some of the placards at rallies that
sides again this time around. The enmity Kenyatta were comrades who led Kenya include slogans such as: “The youths are
between them has made this election to independence and were considered suffering,” “I lost my job,” “Vitu ni differ-
more about personalities than policies. co-founding fathers until they fell out in ent kwa ground”, and “I need a job.” Such
Odinga is making his fourth and likely the mid-70s over Jaramogi’s demand for unmet expectations make this segment
final run for office. He is currently viewed multiparty politics. Ruto has framed his of society susceptible to being mobilized
as a an “establishment candidate” since election around the slogan of Hustler Na- for violence.
President Kenyatta is backing his can- tion (aimed at those who are at the bottom Meanwhile, many other youth, typi-
didacy following their famous “hand- of the social pyramid) and has depicted the cally the segment of the population that

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champions reforms, are apathetic – seeing Gachagua’s parents serviced the guer- warn that such alliances do not necessarily
little difference between the candidates rillas’ weapons and provided them food guarantee peaceful outcomes but must
and parties. The IEBC had set a goal of and ammunition. By creating this aura be coupled with institutional mechanisms
registering 6 million new voters given the around him, the Ruto side is trying to make that constrain elites from resorting to
growing youth cohort. Instead, it ended a clever play on a highly emotive issue in violence.
up only registering 2.5 million. Some of Kenya’s political discourse. That is, despite
this lack of enthusiasm is a result of tar- the legendary status of the Mau Mau in The Institutional Guardrails
geted disinformation, fostering confusion Kenyan memories, there is a widespread
and disillusionment. perception that those who took over from Independent Electoral and Boundaries
the British distanced themselves from the Commission (IEBC)
Some Lessons Learned Mau Mau and left them destitute. Both Odinga and Ruto have complained
Kenya’s 2010 Constitution abolished Both Odinga and Ruto have spent that the IEBC is unprepared for the up-
what Kenyans have long described as an most of their campaigns outside their coming polls, raising alarm bells that the
all-powerful “imperial presidency,” and home turfs as they attempt to build on candidates might not accept the results.
redirected national politics down to the their strongholds. Odinga is dominant Notably, the IEBC Chairman, Wafula Che-
grassroots. A new government struc- in 20 counties divided among his home bukati, who was criticized by Kenya’s Su-
ture was adopted consisting of 47 coun- Province of Nyanza, and the Provinces of preme Court in 2018 for failing to respect
ties, each with an executive authority Coast, Western, Northern, and Nairobi. constitutional rules, is still at the helm. At
and an independent legislative branch a meeting with European diplomats on
to debate and pass legislation. Mecha- June 2, 2022, Ruto complained that up
nisms were put in place to facilitate Some Kenyan observers say to one million voters from his strongholds
public inputs in a bottom-up process. that the selection of Kikuyu had disappeared from the voter rolls.
As a result, Kenyan politics have become running mates sends a pow- Chairman Chebukati dismissed this as
more county-based, and politicians must erful message that Kikuyu, “rumours,” saying that the missing names
create alliances at the municipal, village, Luo, and Kalenjin elites can are those of voters who applied to vote
and town levels. work together and presents from different polling stations.
As one indication of this new mode of an opportunity to move past Adding to the confusion, the IEBC
politics, Odinga and Ruto chose Kikuyu ethnic-based politics. announced on June 9 that it would de-
running mates, and have included Kikuyus register 1.18 million voters following a
up and down their tickets. Mount Kenya preliminary audit by the international
Province, where Kikuyus dominate, is the Ruto is dominant in 15 counties located accounting firm KPMG, which found
most populous constituency in Kenya, in South Rift – his home Province – and numerous discrepancies: dead voters,
accounting for more than 17 percent of North Rift, Northern, and parts of Mount voters registered more than once, oth-
the vote. Kenya Provinces. This leaves Mount Ke- ers with fake identification, and “ghost
In Odinga’s case, the choice of running nya, Northern, Western, South Rift, and voters.” For his part, Odinga made a list
mate is also a woman. Martha Karua, a High Coast as the key battleground provinces. of 10 demands including making the audit
Court advocate and veteran of the struggle Some Kenyan observers say that the public, ensuring the security of printing
for multiparty democracy, is widely called selection of Kikuyu running mates sends of ballot papers, testing the election
“the iron lady.” She is the first woman to a powerful message that Kikuyu, Luo, and technology, and amending laws granting
join a major party ticket in Kenya’s his- Kalenjin elites can work together and power to presiding officers to open sealed
tory. The Odinga camp is banking on her presents an opportunity to move past ballot boxes to remove faulty materials
appeal with women, her anticorruption ethnic-based politics. at the tally centre.
credentials, her endorsement from Mount This contrasts sharply with previous On June 27, the Elections Observation
Kenya Elders, and national recognition elections – especially 2007 – when they Group (ELOG), an independent forum
for her struggle against one-party rule. were on opposite sides and old tensions of 15 local organizations, commended
Ruto’s running mate, Rigathi Gachagua, between Kikuyu and Kalenjin peasants Chebukati for gazetting the voter rolls,
is the first politician in Kenya’s electoral over land in the Rift Valley and between but it is unclear if Odinga’s and Ruto’s
history to openly identify himself as a Kikuyu and Luo elites over Jomo Ke- concerns have been addressed. How-
“child of Mau Mau”—the guerrillas who nyatta’s perceived betrayal of Raila’s ever, the ELOG – which monitors polls
fought the British colonialists, and whose father were weaponized. to ensure compliance with constitutional
struggle was centred in Mount Kenya The new alliances are seen by some as rules – warned that the IEBC’s decision
region. critical in healing these wounds. Others to scrap the manual register in favour of

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Review
a digital register on election day could be appeal. In a scathing decision, it warned of their constitutional obligations and
a recipe for chaos. Indeed, a serious crisis that constitutional amendments cannot be educating the public about the electoral
erupted in 2017 when 2.5 million manually forced through by executive whim. “The process and their rights. Notably, they
registered voters were disenfranchised executive” it said, “cannot run with the have deployed long-term observers at the
due to system failures. In June 2022, seven hares and hunt with the hounds.” county level and put in place an alternative
NGOs took the IEBC to court arguing that The growing independence of Kenya’s voter tabulation system to independently
millions will again be disenfranchised if courts may be a crucial factor in ensuring verify the results.
the system fails like it did in 2017. a credible electoral outcome and smooth The Ushahidi platform, an open-source
In short, the IEBC’s apparent unpre- transition. tool created in the aftermath of the 2007
paredness may heighten tensions and be election violence will also be active. Vot-
grounds for subsequent court cases in the Security Forces ers can upload real-time data and send
event of a contested outcome. Kenya’s military is traditionally apolitical it to a central server for processing and
and stays out of electoral contests. The forwarding to responders. Citizens can
Judiciary police and paramilitary General Service also collect real-time information on the
Kenya’s courts have delivered subse- Unit, however, are frequently accused polls, including around the voting centres.
quent landmark rulings since the Su- of intimidating government opponents, Thirteen partner organizations are part
preme Court’s call for a rerun of the employing violence, and disrupting op- of this system, which will escalate the
2017 polls, demonstrating that this deci- position campaigns. This election poses a crowdsourced data for response and
sion was not a one-off demonstration unique dynamic in this regard as the two action. Kenya’s media agencies, which
of independence. The blockage of the front-runners enjoy incumbency status: have provided extensive coverage and
Building Bridges Initiative (BBI) by both Odinga as the “establishment candidate,” analysis since the campaigns started,
the High Court and Supreme Court was and Ruto as Deputy President. At face will also participate in this project. This
a shot across the bow that the judiciary value, this makes it unlikely that their vigilance and engagement will create a
is determined to remain more fearless rallies will be disrupted, or their sup- valuable forensic record and remind po-
than it was during the Moi and Kibaki litical actors that they are being observed
administrations. If disputes erupt, com- at each step.
plainants will undoubtedly cite the 2017 If Kenya’s electoral process
case, which set the precedent that solely navigates both the uphold- Much progress, more to be done
requires them to show that constitutional ing of term limits and the Kenya enters the homestretch of the 2022
requirements were violated as opposed peaceful transfer of power, it electoral season building on the lessons of
to the past where they had to show irre- will be a major step forward past fraught elections. Key among these
futable proof of undercounted votes – a for Kenyans’ long journey to are the 2010 Constitution, the growing
much higher bar. a more robust democracy. independence of the judiciary, and an
The 2022 electoral process has also been active civil society. Continued citizen
stoked by fears that if Raila Odinga were agency will be a vital check to remind
to win, he would bring back the BBI. The political actors that they must operate
BBI was an outcome of the “handshake” porters intimidated and harassed. This within the boundaries of the law.
between Odinga and President Uhuru Ke- cannot entirely be ruled out, however. The These institutional guardrails will be
nyatta in 2018. In 2020, it tabled sweeping Independent Policing Oversight Authority especially important given the questions
constitutional amendments which among and the National Police Service Commis- over the IEBC’s preparedness and ability
other things would have created the post sion were established in the past decade to address the parties’ concerns. The
of Prime Minister. Some have speculated to strengthen oversight of the police and depth of these institutions’ resiliency
that under an Odinga administration and monitor compliance with human rights will be vital to ensuring the hotly con-
a resurrected BBI the prime minister role standards. Progress on this front has tested election—and any subsequent
would be given to Kenyatta, effectively been slow, however. challenges—generates an outcome that
extending his tenure and undermining most Kenyans accept as valid. If Kenya’s
the two-term rule. Civil Society electoral process navigates both the up-
The BBI was thrown out as unconstitu- Kenya’s civil society has persistently holding of term limits and the peaceful
tional by the High Court in May 2021 in a engaged in the democratic process. The transfer of power, it will be a major step
unanimous decision by its seven members. ELOG is monitoring the entire process forward for Kenyans’ long journey to a
In August 2021, the Supreme Court upheld and has issued statements to the stake- more robust democracy. (
the ruling and dismissed a government holders at every stage, reminding them (Africa Center for Strategic Studies)

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T
DISSECTION he strains between the current
President and his Deputy have
Are Raila’s and drawn much attention to the

role of deputies. And perhaps
Ruto’s plans for it is in the light of this that both the

front-runner candidates for president
their deputies have set out plans for the role of their
deputies if they are elected in August.
constitutional?
And, of course, their choices of run-
ning mates (who would become those
deputy presidents) have been intended
to attract support from the communities
to which those running mates belong.
To promise to those running mates (and
BY J I L L G H A I so to their communities) that if elected
they will have really important roles to
perform is no doubt part of the same
support-gathering process.
It began with Raila Odinga’s saying
that, if his presidential ticket is success-
ful, Martha Karua will be not only the
Deputy President but also Justice and
Constitutional Affairs Cabinet Secretary.
And at about the same time William
Ruto said he could expand the powers
of the Deputy.
The media said the new model Deputy
in a Ruto presidency would chair cabinet
committees, oversee the implementation
of cabinet decisions, and coordinate in-
tergovernmental relationships between
the national and county governments.
He would also “coordinate planning
and supervision of development proj-
ects funded by development partners,
coordinate constitutional commissions
and independent offices in matters that
require the intervention of the national
government – including budget and
policy for their operating frameworks
– and perform ‘real duties’ assigned by
the president”.
It is not surprising that people are
asking whether these plans are con-
stitutional.
So we should ask first whether the
Constitution says anything specific to
permit or resist what these aspiring
presidents say they want for their depu-
Azimio coalition's ties. Second – even if there is nothing
presidential running
mate Martha Karua. specific – would any of these ideas
create practical problems or somehow

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Review
acquire legal powers – and responsibili-
ties – when the President sets out in an
Executive Order what laws each CS is
responsible for. The law may give power
to make regulations, to make appoint-
ments, to dismiss people, for example.
And the Constitution says that Cabinet
Secretaries must report regularly to
Parliament on their responsibilities.
Looking at the US is not very help-
ful – although our system owes a lot to
theirs. First Cabinet Secretaries are not
specifically referred to in the Constitu-
tion. And the Deputy has one important
job – being the Speaker of the Senate.
President Biden has given Vice President
Harris some important administrative
policy jobs – overseeing some initiative
of government or reporting on some situ-
ation. But these are not tasks that form
Kenya Kwanza running mate part of the legal mandate of a member
Rigathi Gachagua. of the US Cabinet.
Chairing cabinet committees, and
performing ‘real duties’ assigned by
be inconsistent with the Constitution General and the Cabinet Secretaries. the president”
design of government? And can we get And the Constitution, as we have just Under the Constitution the President
any help from the law or practice of seen, says that the Deputy must not chairs the Cabinet. No doubt he or she
other countries? hold any other state office – and being could chair any cabinet committee – or
Article 147 is about the functions of a Cabinet Secretary is a state office – give this task to the Deputy. Nothing new
the Deputy President. That person is the clearly stated in Article 260. here. Incidentally, it is mildly amusing
“principal assistant” of the President, So the answer to our last question is to see this in Ruto’s plans – this was a
and stands in for the President when “No”. The Deputy could not be “Cabinet role to be assigned to the Prime Minister
necessary. The President may assign Secretary for X Y or Z”. under the BBI constitutional amend-
to the Deputy any functions “of the But could the Deputy do the things ment Bill. And as for ‘real duties’ – that
president”. And the Deputy must not that CSs do, but not have the title – or is up to the President. Ruto’s language is
hold any other “state or public office.” the salary? When the Constitution says presumably really a complaint directed
Will future Kenyan presidents really that the Deputy must not hold any at his current principal.
give their deputies useful and satisfy- other office, was this to prevent too It is worth remembering how difficult
ing things to do? Kenyan Presidents are much power in one pair of hands – or this job is for US vice presidents. The Los
not even good at working with cabinets. too much money and status? It is not Angeles Times reports one expert as
President Kenyatta recently called his entirely clear. saying that the portfolio [meaning being
first full cabinet meetings for over a When the Constitution lists the powers given a specific assignment] “is often a
year – though Cabinet committees had of the President, it says that the Presi- trap, in part because it can amount to
been meeting. dent “exercises the executive power of time-sucking ‘make-work’ and ‘you can
Could Karua or Gachagua – be a “Cabi- the Republic” with the assistance of the be held accountable for things, even if
net Secretary”? Deputy and the CSs. This rather suggests you may not be able to control them’.”
The words of the Constitution do cre- that the President can do anything – But is there not a reluctance to give
ate a problem here. First the Constitution and thus could ask the Deputy to do deputies a chance to exercise power and
clearly thinks of a Cabinet Secretary as anything – that is within the executive judgment for fear they overshadow the
being some person who is not the Deputy power (and not law making or judicial). principal? How much power will these
President – the Cabinet comprises the This could be problematic. Being a deputies really have? If the reality is not
President, the Deputy, the Attorney Cabinet Secretary is not just a title. CSs much, the courts will never get to decide

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Kenya Kwanza's Rigathi Gachagua and
Azimio's Martha Karua during the Deputy
Presidential candidate debate in July.
what might be quite difficult questions. set up under law as required by the who is answerable to whom.
Constitution for resolving disputes But what is the likelihood of these
“Oversee the implementation of between governments. plans being carried out? Undoubtedly
cabinet decisions” However, there is no doubt room for being a deputy of any sort – indeed hav-
This is presumably something that the presidency in some situations to ing a deputy – is not easy. It is not just
someone ought to be doing and could work on relations with county govern- a matter of Deputy Presidents. Often it
appropriately be assigned to the Deputy. ments, provided that the roles of other seems that relations between governors
There should be a mechanism to ensure bodies are not encroached on. It would and their deputies are not cooperative.
that Ministries and agencies of govern- require considerable diplomatic skills. And I recall from pre-Constitution days
ment report back on what has been done Not every Deputy President will have some assistant ministers complaining
to implement cabinet decisions. How these. that this was a non-job and they were
deeply the Deputy could go into this “Coordinate constitutional commis- marginalised.
is not clear – it would depend on the sions and independent offices” Will future Kenyan presidents really
resources the office was given. This is worrying. Independent com- give their deputies useful and satisfy-
Coordinating planning and supervi- missions and offices are independent ing things to do? Kenyan Presidents are
sion of donor development projects particularly of the executive – like the not even good at working with cabinets.
may present similar problems. Most DP. The Constitution emphasises that President Kenyatta recently called his
projects will be overseen by the relevant they are not subject to anyone’s direc- first full cabinet meetings for over a
ministry. How would the DP be able to do tion or control. If they want coordination year – though Cabinet committees had
a better job? Certainly, major resources they should organise it themselves not been meeting.
would need to be assigned to that office. work with the executive. But is there not a reluctance to give
“Coordinate relationships between deputies a chance to exercise power and
the national and county governments” Overall judgment for fear they overshadow the
This is likely to be a huge and prob- The constitutional design is full of as- principal? How much power will these
ably thankless task. Much is already signed functions, and chains of com- deputies really have?
the responsibility of the Treasury, the mand and responsibility – though not If the reality is not much, the courts
Senate, the Commission on Revenue always fully spelt out. It is important will never get to decide what might be
Allocation, and a complex mechanism that these are respected and it is clear quite difficult questions. (

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Review
A
P O L I T I C A L DY N A M I C S s Kenya get into the home
stretch of the general elec-
Why peace remains tions, there are some signs

that the ethnicise political
elusive as Kenya discourse and its underlying drivers are

changing. As in so many countries around
prepares for the 2022 the world, this has been driven in part
by the experience of COVID and the
general elections
restrictions on people’s lives that have
come with the pandemic, which have
exacerbated and highlighted inequalities
among Kenya’s citizens.
Whether this ushers in a new and less
BY E M M Y AU M A A N D I VA N C A M P B E L L violent form of politics remains to be
seen. It may be that the new political
dynamics will prove just as divisive and
destructive as what came before. Indeed,
there are growing fears that, unless the
current political discourse is toned down
and the nature of electoral processes re-
imagined, Kenya will once again descend
into violence in the run-up to next year’s
elections.
BBI: a catalyst for shifting political

alliances and divisions
The handshake in March 2018 between
President Uhuru Kenyatta and his politi-
cal opponent and former Prime Minister,
Raila Odinga, was intended to signal an end
to the acrimony which followed the 2017
presidential elections. It was hailed as a
landmark in the Building Bridges Initiative
(BBI), which sought to lay the foundations
for national healing, including pledges
to end historical and electoral injustices
and unite Kenya’s citizens. However, the
outcome of the BBI process – a report
launched in October 2020 that proposed
to amend various aspects of the Kenyan
constitution to address issues of political
inclusivity and electoral injustice – re-
ceived a mixed reaction from Kenyans.
In what has been lauded as a sign of
judicial independence in Kenya, on 20
August 2021 the court of appeal upheld
the High Court ruling following four sepa-
rate appeals made by President Uhuru
Kenyatta, Orange Democratic Movement
(ODM) Leader Rt. Hon Raila Odinga, the
Independent Electoral and Boundaries
xxxxxx
Commission (IEBC) and the BBI national

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secretariat. In response, MPs aligned to the current political friendship between about the political contest as a shrewd
the President are expected to take forward Odinga and Kenyatta. In some places, such move by Deputy President Ruto to redefine
the constitutional amendment agenda to as Nairobi’s informal settlement of Kibera, identity politics in Kenya. The dynasties
Parliament, having identified 52 clauses inter-ethnic tensions and violent incidents are deliberately conjoined in the public
in the BBI proposals that they say do not between the historically antagonistic imagination with the far-reaching, all-
require a referendum to effect. ethnic groups of Luo and Kikuyu have powerful ‘Deep State’ – echoing rhetoric
Odinga on the other hand has made reduced since the ‘handshake’. deployed, and fears evoked, by Trump in
public his acceptance of the Court of This suggests that the BBI process may the US and populist leaders elsewhere.
Appeal ruling. According to him, it is have contributed to a positive shift in Given widespread poverty and entrenched
time to move on in pursuit of the big- the relationship between divided ethnic socio-economic inequalities, this narra-
ger goal of addressing the issues facing communities in certain areas. The rap- tive of ‘hustlers v. dynasties’ resonates
the country. This statement aligns with prochement appears fragile, however. strongly with many Kenyans. Combined
recent political developments seen as In recent consultations about conflict with the restrictions that have had such
aimed at laying the ground for Odinga’s concerns with communities in Nairobi a damaging impact on the livelihoods of
Presidency, including recent political and Kisumu, respondents expressed the many young people who depend on
gatherings and the unveiling of a new fears that should Kenyatta and Odinga the informal sector, it speaks to growing
slogan Umoja Inawezekana – Azimio La fall out – and the ‘handshake’ is only a discontent with the government. The cor-
Maunganui (Unity is Possible – Our desire gentleman’s agreement rather than a ruption that permeates many aspects of
to unite our people and the country). The binding commitment – there will likely Kenyan public life has also thrived during
big question now is: will the spirit behind be a resurgence of violence between the pandemic, giving rise to the so-called
the handshake and the Kenyatta–Odinga ethnic groups. ‘COVID millionaires’ and reinforcing the
pact hold? Could this be the beginning of appeal of the hustler/dynasty narrative.
a new political movement and coalition?
Rising insecurity and violence
Constitutional tussles: parallels The power struggle over during the pandemic
with 2007 the proposed constitutional COVID not only exposed Kenya’s socio-
The power struggle over the proposed amendments has ominous economic divides but also aggravated a
constitutional amendments has omi- parallels with events prior to range of other sources of insecurity and
nous parallels with events prior to the the 2007 elections, which set violence. As in so many other countries,
2007 elections, which set the scene for the scene for unprecedented there has been a sharp rise in sexual and
unprecedented election violence. The election violence. gender-based violence, with Nairobi re-
2007 elections followed a divisive con- cording significantly higher case numbers
stitutional referendum in 2005, which From inter-ethnic to inter-class than before the pandemic.
played out as a contest between the competition The pandemic has increased the vul-
incumbent president, Mwai Kibaki, and At the same time, a new political dynamic nerability of women dependent on the
the then Opposition leader Raila Odinga, seems to be emerging in Kenya, triggered informal sector who are either not able
along with their respective ethnic bases. by COVID and its impacts, but under- to access these livelihood opportunities
The currently proposed referendum is pinned by decades of socio-economic due to the restrictions in place, or whose
similarly seen as a forerunner of next inequality. It is based on the fact that suc- contribution is no longer necessary due
year’s electoral contest between Odinga cessive Kenyan political leaders (whether to work-from-home arrangements (for
and Ruto (as current President Kenyatta in the State House or in Opposition) have example washer-women). The decline
is barred from running for a third term). come from a handful of families, and it of job and livelihood opportunities as a
The cost of a referendum – on top of the re-frames the contest away from one of result of the pandemic has also led to an
impacts of COVID, which has gutted major ethnic identities and alliances towards increase in petty crime.
economic sectors, such as tourism, and one of the downtrodden masses against As the country experiences a ‘fourth
increased Kenya’s debt burden – is seen the elites. It is often characterised as wave’ of the pandemic following a short
as an unnecessary drain on the economy. a contest between ‘hustlers’ – Kenya’s period in which restrictions were eased,
Communities for and against the BBI vast underclass typically working in the many are blaming the government, with
and a constitutional referendum can be informal economy – and the ‘dynasties’ fears that economic recovery will be
found across the country. The President’s of the Kenyattas, Odingas and other po- impossible for people who have only just
own Kikuyu ethnic group appears split, litical families. started re-engaging in livelihood activities.
with many confused and suspicious of Many analysts regard this new narrative Linked to this are the repercussions

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Review
of the government initiative to cushion
citizens from the economic impacts of
COVID through the Kazi mtaani youth
initiative. The initiative was designed to
protect youth in informal settlements
from the loss of livelihood opportunities. It
sought to provide a form of social protec-
tion for workers whose prospects for daily
or casual employment were disrupted by
COVID restrictions.
While the initiative was lauded for con-
tributing to a state of calm and reduced
criminality in parts of the country, there
is considerable scepticism about the
skills-training component. Many perceive
it as a short-term pacification gesture
targeted at unemployed youth but with According to a recent report entitled ‘The Commission (IEBC), was criticised in both
little serious commitment to develop skills Brutal Pandemic’ published by the Kenyan cases. The reforms proposed to restore
that will enable long-term employment. organisation, Missing Voices, a total of public confidence in the integrity and
Furthermore, the dependable cash-flow 157 people were killed or ‘disappeared’ legitimacy of the IEBC have still not been
it has provided for these young people in 2020 against the backdrop of COVID fully implemented, which raises serious
ended in June, at a time of heightened enforcement measures. concerns about a peaceful transition of
political activity as Kenya is preparing Kenya has a long history of excessive power in next year’s election.
for next year’s elections. This could have and disproportionate use of force by law
grave ramifications for peace and secu- enforcement officers. The experience of What’s next?
rity as, without this economic safety net, past elections has reinforced the view Taken together, these political dynamics
unemployed youth will be all the more that the Kenyan police are instruments and conflict trends highlight that Kenya
easily mobilised to violence. of political actors – utumishi kwa wana- once again faces the prospect of violence
siasa – as opposed to an impartial body in the run-up to, during or after the 2022
Securitisation of COVID response that protects the rights of citizens and elections. Arguably the single biggest
has deepened historical distrust provides service to all Kenyans, as their conflict driver in Kenya is socio-economic
of the police utumishi kwa wote (‘service to all’) logo inequality, which has historically been
As elsewhere in the world, the role of implies. The country is therefore preparing mobilised along ethnic lines, but is in-
Kenya’s security sector has also been in for elections in a context where there is creasingly being presented as an issue of
the spotlight for repressive and sometimes deep distrust and high levels of animosity inter-class conflict, powerfully evoked by
violent behaviour to enforce lockdowns between the police and the public. the ‘hustler v. dynasty’ narrative.
intended to halt the spread of COVID. This narrative resonates with so many
Kenya’s police are reported to have used Lack of confidence in impartiality Kenyans because the reality of the class
heavy-handed tactics, with the govern- of electoral institutions divide is undeniable. The challenge then,
ment’s own Independent Policing Over- Distrust of Kenya’s police reflects a wider in order to prevent this political dynamic
sight Authority (IPOA) receiving numerous distrust of the state, especially among from generating violence, is not simply to
complaints of police violence since the youth, and a profound sense of political dismiss the narrative, but to refashion it
first curfew was imposed in March 2020. disenfranchisement. This is compounded as a constructive and peaceful political
These include allegations of extra-judicial by persistent concerns about the credibil- agenda with the goal of social cohesion,
killings, shootings, assault, general harass- ity and political independence of Kenya’s not polarisation. At the same time, there
ment and sexual assault. electoral institutions and their capacity to must be concrete steps to address the
There were also reports of police break- manage the electoral process. The results causes of inequality in Kenya. Specifically,
ing into homes and businesses, and car- of Kenya’s 2007 and 2017 elections were a demonstrable commitment to reducing
rying out looting and extortion. The IPOA widely contested, leading to post-poll inequality by political leaders rather than
described 35 of these as ‘watertight’ cases violence, and the role and conduct of the exploiting it for sectarian ambitions would
of police brutality related to curfew en- main electoral management body, the help to turn down the pressure cooker that
forcement, 15 of which resulted in death. Independent Electoral and Boundaries is the Kenyan electoral cycle. (

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I
REFLECTIONS n 2013 and 2017, the Jubilee Gov-
ernment had probably the best
For all his failures, campaign manifestos ever pre-

sented to the Kenyan electorate
Uhuru has united since independence. Yet, it is difficult

to pinpoint President Uhuru Kenyatta’s
Kenya more than any legacy in the end of his ten-year lead-
ership even as we know that he has
other president
endeavoured to deliver on some of the
promises in his second term through
the Big Four Agenda initiative.
Most prominently, the president has undone the Luo- In their 2013 – 2017 manifesto dubbed
Kikuyu rivalry that held Kenya hostage by uniting Kenya’s ‘Transforming Kenya – Securing Ke-
two most politically inclined communities nya’s prosperity’, UhuRuto had it all
figured out. In three pillars of Unity,
Economy and Openness, the ruling
coalition promised to shore up national
BY O U M A OJA N G O cohesion, security, trade and foreign
affairs, healthcare, education, youth
and women empowerment and social
protection in the first pillar.
Under the economic pillar, the duo
promised, eloquently so, to spur growth
and development by building an enter-
prise economy, sparking an industrial
revolution, a digital take off, improved
tourism, land reforms, power for all,
food security, clean water for all and
improved transport and housing. In the
third pillar, they committed to transpar-
ency in governance, promising to deal
firmly with corruption, work with the
civil society and empower the people
through accelerated Devolution.
In ‘Continuing Kenya’s Transformation,
Together’, Jubilee Government’s 2017
re-election manifesto, President Uhuru
Kenyatta’s specific manifesto highlights
included creating 1.3 million jobs every
year, ensure every citizen is connected
to reliable and affordable electricity by
2020, establish a government sponsored
apprenticeship programme of up to
12 months for all university and TVET
graduates and expand free maternity
care to include NHIF cover for every
expectant mother for one year just to
mention a few.
The tragedy for President Kenyatta is
that the little that his government has
delivered of the colourful promises has
been lost in, one, the rampant corruption

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Review
that bedevilled his government; and, it today, but it is a legacy that eluded
two, in the din of political squabbles Kenya’s first three Presidents including
within the ruling party. President Uhuru Kenyatta’s own father
Jubilee might have delivered more and the founding President of the Re-
than any other Kenyan Government public of Kenya, Mzee Jomo Kenyatta.
in the transport sector. Picking from It is a legacy of unity.
where President Kibaki’s Government The President leaves behind a more
left off, President Kenyatta’s Govern- united Kenya than he found it. More so,
ment has opened up Kenya’s cities Uhuru Kenyatta has managed to break
including Nairobi, Mombasa, Nakuru, the ceiling by achieving what generation
Kisumu and Eldoret by building more after generation touted as impossible:
by-passes thereby decongesting traffic he has united the Luo and the Kikuyu,
in the cities. Besides, Uhuru’s Govern- Kenya’s two prominent and most po-
ment is touted to have built more than litically inclined communities that had
9,000 kilometres of roads since 2013. It hardly shared political power for the
is this Government that built the Stan- better part of independent Kenya.
dard Gauge Railway from the scratch, The story of political relationship of
connecting Mombasa and Nairobi. It has the Kikuyu and the Luo dates back to
also delivered the Expressway, which the struggle for independence. Coinci-
has the ability, if well utilized, to ease dentally, it revolves around the fathers
access to the country’s main airport. of Uhuru Kenyatta and Raila Odinga who
The reason why these landmark proj- were comrades in the independence
ects are hardly celebrated is because struggle. When Jomo Kenyatta was
they were mired in grand corruption that detained in the infamous Kapenguria
inflated their initial costs, overburden- Six together with Bildad Kagia, Kung’u
ing the already struggling taxpayer. The Karumba, Fred Kubai, Paul Ngei and
land rates in the Standard Gauge Railway Achieng Oneko for the 1952 insurgency,
was, for instance, inflated, becoming the Jaramogi Oginga Odinga was to play a
milk cow for officials at National Land major role not only in the struggle for his
Commission and other related agen- release, but also in securing Kenyatta’s
cies. The trend has been replicated in place in the independence party even in
every other development project that his absentia as the British Government
involved land acquisition. The net effect slowly steered Kenya towards black
of the runaway corruption in Jubilee majority rule. in the struggle, Jaramogi Oginga Odinga,
Government’s development projects is In 1960, organized by black nationalist, his Vice President.
that it denied citizens value for money Kenya African National Union (KANU) As Vice President, Jaramogi did not
and pushed government more towards elected Kenyatta President in absentia agree with the President, particularly
heavy reliance on expensive private and resisted treacherous maneuvers by on the policy direction the young nation
loans for execution of its programmes. the colonialists to negotiate for indepen- was to take. While he favoured closer
With a Deputy President that has dence with Kenyatta behind bars. He was ties with the People’s Republic of China,
stood aside, only wanting to associate formally released on August 21 to join the Soviet Union and other countries of
with the successes of the Government others in negotiations for independence the Warsaw Pact, Kenyatta was in favour
in which he also claims to have been the Kenyatta went to London in 1962 to of the Western bloc and the United
brainchild and lurching on its failures broker Kenya’s independence, and in States. This led to Odinga resigning from
for political mileage in his quest for a May 1963, he led KANU to victory in his post and quitting KANU in 1966 to
presidency in the impending General the pre-independence elections. On form the Kenya People’s Union (KPU)
Election, you can only struggle to find December 12, 1963, Kenya celebrated its thereby starting on a journey on the back
the President’s footprint as he heads independence, and Kenyatta formally benches of Parliament that would earn
home after ten years of being in charge. became Prime Minister. The next year, him the name the doyen of Opposition
There’s, however, a legacy to President a new constitution established Kenya politics.
Uhuru Kenyatta’s name, that will endure as a republic, and Kenyatta was elected Comrades in the trenches of indepen-
the test of time. No one is talking about Kenya’s first President. He named friend dence struggle, Kenyatta and Jaramogi

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forever treacherous.
President Jomo Kenyatta died in 1978,
ushering into power the long serving
Vice President Daniel Toroitich Arap Moi
whose Nyayo philosophy of following
in the founding President’s footprint
meant, among others, continued ex-
clusion of the enemies of the previous
regime. The Nyayo regime’s cosiness with
the Kikuyu ended with the attempted
coup on his government of 1982. The
unsuccessful mutiny also turned Moi
into a dictator. In June the same year,
for instance, Parliament, which was now
under tight control of Moi, amended the
Constitution, making Kenya, officially,
a one party State.
Moi’s regime consolidated more ex-
ecutive power and ruled by an iron fist.
This again, brought the Kikuyu and Luo
together, being the most politically in-
clined communities as alluded to afore, in
a struggle of what was dubbed the second
liberation. For ten years, from 1982 to
1991 when the Constitution was again
amended to revert Kenya to a multiparty
democracy, the two communities under
the stewardship of Jaramogi worked
hand in hand with other communities,
enduring subjugation including torture,
detention and assassination by Moi’s
government.
However, in the first multiparty elec-
became bitter rivals after independence, with stones on its way to the venue with tions of 1991, again, the Kikuyu parted
birthing a hatred between their com- the police opening fire indiscriminately. ways with their Luo comrades in the
munities that would not only endure At the venue where Jaromogi had arrived struggle through Stanely Matiba when
the test of time, but that also grew in advance to chants of ‘Ndume, Ndume, he splintered from the original Forum
stronger every sunrise. A few incidences Ndume’ (the bull) the youth shouted for the Restoration of Democracy (FORD)
cemented this hatred in Kenyatta’s down Vice President Daniel Moi when to form FORD Asili, living Jaramogi
regime notable among them, the assas- he tried to introduce the President. The with FORD Kenya. This weakened the
sination of Tom Mboya on July 5 1969, President’s intervention to calm the Opposition and handed Moi an easy
and the near massacre of Luo youth crowd fell on deaf ears. Panicked for win, extending his tyranny. Moi was to
in a standoff between Jaramogi and the President’s safety, the presidential exploit this treachery between these
President Kenyatta in Kisumu when the security detail fired live bullets into two communities to cling on to power
latter’s tour of Western Kenya, hardly the crowed. For the remainder of Jomo until 2002.
four months after the assassination of Kenyatta’s regime, the Luo community Jaramogi died in 1994, like Jomo Ke-
Tom Mboya culminated in an event to was largely given a wide berth, ruining nyatta, before he amended relations
open the New Nyanza General Hospital any hope of reconciliation between between his Community and that of his
in Kisumu town. these two heroes of independence, friend turned foe.
With tension still high in the region, the and by extension, their communities. First forward to 2002, when Raila
youth of Kisumu in their legendary fash- Henceforth, the political relationship Odinga teamed with Mwai Kibaki in
ion, pelted the President’s motorcade between these two communities was National Rainbow Coalition to ascend to

August 2022 • 27
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Review
power after the amendment to the Con- interact out of their culture, Nairobi and bid. Even after the handshake, he still
stitution that barred Moi from seeking Nakuru Cities being their main reach believed the union of the two was the
re-election. Immediately after winning whenever they venture out. A hegemony legendary cosmetic partnership where
elections, Kibaki and Raila fell out, with of thought is therefore easily achieved the Kikuyu have always withdrawn from
the latter together with his team getting more so if the same is the target of the pacts with the Luo after achieving an end.
fired from government. This set up a duel community’s political elite. He banked on it big time. As late as the
between the two in 2007 that took the In August 2007, for instance, Raila beginning of this year, DP’s camp still
country to the brink of an abyss in an Odinga and a team of his ODM Party believed, and hoped against hope that
unprecedented post-election violence. officials were thrown out of a hotel all President Uhuru Kenyatta wanted
While every other non-Kalenjin com- they had gone to for late lunch in Kara- from Mr Odinga was end to street chaos,
munity in the Rift Valley was attacked, tina after attending a burial of a friend support in Parliament and a peaceful
the Kikuyu Community with business in the neighbourhood in Mathira. Ms second term reign.
interests in the larger Western Kenya Lucy Weru, the proprietor of the hotel It was the fear in a majority of the Ke-
region generally and in Luo Nyanza in stormed the dining room and ordered nyan people as well. Hushed street talk
particular, was targeted for displacement them to leave. “Who brought you here? was awash with theories of how Uhuru
and their enterprises were sabotaged. It We do not want ODM here. Can you was playing Raila, how “the perennial
took the intervention of the international please leave now? We do not want your loser was being fattened for slaughter.”
community for the country to reclaim money,” she could be heard shouting as Uhuru has disapproved the naysay-
sanity and heal. she hurriedly summoned hotel workers ers. He has broken virgin grounds. He
The consequences of the post-election and ordered them to ensure that Mr has stuck with Raila Odinga to the wire.
violence and the ensuing indictments at Odinga and his team were out of the Whether this pushes Mr Odinga into
The Hague brought together two main premises in the shortest time possible. the high office is something different.
protagonists in the name of Uhuru Ke- They had to abandon their orders. That The President has done what his father
nyatta and William Ruto. They put up is where it had reached. was not able to do. He has done what
a formidable campaign machinery that President Kibaki was in the best stead
capitalized on the rhetoric of the Luo- to achieve but which he ignored. Raila
Kikuyu love-hate political relationship A hatchet, borne of two in- has been able to seek for votes in the
to beat (however controversial) Raila dependence struggle heroes Mt. Kenya region without any fear. He
Odinga in the 2013 and 2017 General and used to sow discord has been received by the people of the
Elections. Their campaigns, more divi- and spill blood ever since, mountain in a manner never witnessed
sive than ever before, especially after has been buried courtesy of before. Hopes are that, for the first time,
the Supreme Court nullification of the President Kenyatta’s com- his presidential bid is likely to fetch at
Presidential election in 2017, further mitment to an accord. That least more than 30% of the total votes
widen the hate between these two peace, is bound to be one of cast in the region.
communities. President Kenyatta’s legacies Likewise, President Uhuru Kenyatta
The Kikuyu, a majority, hated Raila whichever way this month's has been received in the Luo Nyanza
with a passion. They passed this hate election spins. region like a king since the handshake.
and disdain of Raila to their children. Sabina Chege, Woman Rep for Murang’a
The Kikuyu youth with no history of County has been able to hold rallies in
Kenya’s independence politics hated In his four previous presidential bids; Homabay County on her own where she
and loathed Raila naturally. Leaders in 1997, 2007, 2013 and 2017, central Kenya got a rousing welcome on being noticed.
the larger Mt. Kenya region including region has always been hostile, with Martha Karua, Raila’s running mate in
Kirinyaga, Embu and Meru were over the few political rallies he attempted this election, is a darling of the people
the years elected to office not only on to hold in the region being disrupted from the lake.
the basis of who abused Raila Odinga by rowdy, belligerent youth, save for A hatchet, borne of two indepen-
the most, but whose abuses were more when he campaigned for Kibaki in 2002. dence struggle heroes and used to sow
lethal and savage. In Deputy President’s scheme of things discord and spill blood ever since, has
Because central Kenya, more than any for the presidential bid in the August been buried courtesy of President Ke-
other region in the country, is mostly 2022 General Election, he was 100% nyatta’s commitment to an accord. That
self-sufficient, its youth hardly get out sure that however much he antagonized peace, is bound to be one of President
to other parts of the country in search President Uhuru Kenyatta, the President Kenyatta’s legacies whichever way the
of subsistence. They hardly, therefore would never support Raila Odinga’s election spins. (

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Identities are not people when they are forced to forego
their preferred leaders for their lesser
qualifications accomplished alternatives in the name

equality. More worryingly, it leaves us with
the question of just how far we should go
in trying to equalize society. It is simple
When it comes to injecting morality into our politics, the enough when gender is attributed the
Constitution has fared better than expected reproductive function; but what happens
when we are finally confronted with the
emerging definition of (gender) as a social
BY S H A D R AC K M U Y E S U construct? Are we prepared to redefine
A
our structures to accommodate males,
lthough decidedly good, the even in cases of theft, we are comforted females and everything in between? Be-
2010 Constitution is a collec- by the thought that the stolen resources cause make no mistake, this exactly what
tion of lofty ambitions that are distributed across the country rather our liberal Constitution expects of us.
are not Kenyan in any sense than ending up in one village in Gatundu The same goes for tribe, disability, re-
and therefore, on many accounts, imprac- or some tax haven. ligion, race and all other differentiations
ticable. It is a skepticism I have long held But that is where the glad tidings end. that Providence imposes on us. How do
and which continues to be justified by our At the end of the day, our leaders are we accommodate them all in the same
difficulties in, inter alia, implementing the just as corrupt and malevolent as their government and ensure that all of them
two-thirds gender rule a decade into the predecessors in spite of the great effort are represented according to population
new constitutional dispensation and the to introduce diversity. While we celebrate ratio vis-a-vis the rest? What science do
failure of liberal democracy to solve our the new age of female leadership, there is we employ? If we reward each group with
leadership crises. Yet, even my kind of nothing to suggest that they have offered a set of special solutions unique to them,
skeptic has to admit that, when it comes better leadership than their male coun- we are soon confronted with a problem
to injecting morality into our politics, terparts. And this brings into question of balance and application.
the Constitution has fared better than the overall intent of the Constitution. If I have said it before, it is impossible to
expected. its goal was simply to redistribute leader- accommodate all the groups in our society
Thanks to the compulsions of Article 27 ship, then we are on track; but if there was with this path we have taken. To pursue
(8), today, the Judiciary is headed almost a loftier ambition to improve our quality this road is to entrench identity politics
entirely by women. Most gubernatorial of life, then it has been a proper failure. A and widen the divisions within our already
candidates have named running mates constitution that speaks to an idealistic highly differentiated society which is a
of the opposite gender and there is a fair future more than it addresses the here whole antithesis to the social justice and
chance that Kenya will see her first woman and now is imbalanced in my view. equity our constitution is trying to achieve.
deputy president. We can all agree that in In our pursuit of equality, we appear Equality of outcome is about accom-
spite of the difficulties in applying the two- keener on distorting the ground rather modating everybody. It sound good but
thirds gender rule, we are experiencing a than leveling it. Take the two thirds prin- it rarely achieves the intended outcome
cultural shift towards gender parity and it’s ciple for instance; while there is nothing (doubting Thomases only need to look at
only a matter of time before the country in law that says that one gender must be the chaos in the west for perspective).
has its first female president. Slowly but deputized by a person of the opposite Instead, what we should be pursuing is
surely, the idea of female leadership is gender, considering our current obsession equality of opportunity which empowers
becoming our norm. with the idea, we are fast approaching an the entire society and affords everyone
Devolution is another great victory. age where it will be a de facto law. And a fair chance to compete and succeed.
Many dismiss devolution as merely a while it may seem like an attractive propo- The Constitution already envisages it
devolution corruption, but that is be- sition, when examined in totality, it is the when it talks about equity as a governing
cause they do not appreciate the impact precursor to numerous social, political and principle. Being a woman, or belong to
(devolution) has had in the remote parts economic problems a developing nation a particular race or tribe should never
of this country. In many of these places, such as ours would rather do without. be a qualification when handing out op-
thanks to devolution, it is now possible to portunities. Dr. King would shudder at
access all government services and much Equality of outcomes versus equal- the thought.(
more without feeling the need to travel to ity of opportunities — Author is an Advocate of the High Court
Nairobi. As means of wealth-redistribution, On one hand it imposes governments on of Kenya

August 2022 • 29
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Review
T
D E VO LU T I O N his month’s election is significant
for two major reasons; it ends a
Governor seats a test mandatory two term tenure of a

ruling President and two, which
in citizen choices is perhaps more significant, pulls down

the curtains on pioneer county governors
that were lucky to have been reelected in
2017 to serve for two consecutive terms.
The Constitution restricts the terms for
BY DAV I D WA N JA L A governors, just like for the presidency, to
two uninterrupted terms.
Devolution was created by the 2010
Makueni Governor Kivutha Constitution to enhance equity in resource
Kibwana has consistently been
ranked as one of Kenya's best- distribution, bring decision-making and
performing governors. service delivery closer to the people
and enable the realization of the right to
self-determination. It is hailed as the best
thing to have happened to Kenya since
independence.
The Fourth Schedule of the Constitution,
which stipulates the division of functions
between the national government and
county governments, apportioned the
latter responsibility over many functions
including, but not limited to agriculture,
county health services, cultural activities,
public entertainment and amenities, coun-
ty transport and infrastructure, animal
control and welfare, trade development
and regulation and county planning and
development, among others.
The equitable share, being the money
Parliament shares vertically between the
national and the county governments,
forms the biggest source of revenue for
the county governments.
It is the Commission on Revenue Al-
location (CRA) that recommended to
Parliament the basis for equitable shar-
ing of revenues raised nationally. It has
specifically allocated 84.5% of the national
revenue to the national government, 15%
to the county governments and reserved
0.5% as an Equalization Fund. This is the
formula that has worked for the ten years
of devolution with determining how much
share each of the 47 counties should get
of the 15% remaining the elephant in the
room for CRA for the entire period.
One of the main objectives of devolu-
tion was to cure regional inequality that
had been brought about by decades of

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targeted marginalization of certain re- the equitable share include Nairobi at ap- delayed salaries for county employees,
gions and communities. The Equalization prox. Sh19.25 billion, Nakuru Sh13 billion, sometimes for months on end, and zero
Fund earmarked this specific objective Kakamega Sh12.4 billion, Kiambu Sh11.72 development records. The fast reawak-
of Devolution. Art. 204(2) states thus, billion, Kilifi Sh11.6 billion, Mandera Sh11.2 ening of these counties and quick move
“The national government shall use the billion, Bungoma Sh10.7 billion and Kitui at to fix the mistake saved them early and
Equalisation Fund only to provide basic Sh10.4 billion. The lowest earner is Lamu put them on the right track to achieve
services including water, roads, health County at Sh3.1 billion. In the category of the objectives of Devolution. Prof Anyang
facilities and electricity to marginalised minimum earners also fall Tharaka Nithi Nyong’o has, for instance, transformed
areas to the extent necessary to bring the at Sh4.2 billion, Elgeyo Marakwet Sh4.6 Kisumu in the five years of his first term
quality of those services in those areas to billion, and Isiolo County at Sh4.7 billion that locals marvel at just how spectacularly
the level generally enjoyed by the rest of If we were to use the FY 2021/2022 the first governor failed.
the nation, so far as possible.” disbursements as the average yearly The last category, in which a majority
Sharing of the 15% of the national rev- disbursements to the counties for the of the counties fall, comprise of coun-
enue has not been CRA’s piece of cake last ten years, then Bungoma with Sh10.7 ties that got it wrong with their county
for various reasons, among them be- billion for the FY 2021/2022 has earned leadership from day one and have had
ing that counties are not homogeneous. approximately Sh107 billion without local to endure rogue, scandalous leadership
Counties are unique demographically revenue in the last ten years of devolution. for the last ten years. Apart from the
and, therefore, any allocation criterion Nairobi earned approx. Sh192.5 billion in ills identified in group two above, the
is, naturally inclined to favour a county the same period and Kakamega Sh124 bil- leadership of these counties were also
against the other. CRA picked on five lion. Even the least, Lamu County, earned characterized by over-employment and
parameters for which it allocated as near Sh31 billion. These are no small monies. struggled under the weight of wage bills
percentage weights as possible and it is The question arises: how has your that surpassed ceilings. Their governors
what has seen the counties through for county utilized its billions since 2013? rubbed shoulders with the Ethics and
the last ten years, the grumbling of some Ten years on, Kenya’s 47 counties can be Anti-Corruption Commission investiga-
counties notwithstanding. grouped into three general categories as far tors for financial impropriety and have
Population was given 45 percentage as county leadership goes. One, counties spent much of their time in the corridors
weight, poverty index 20, land area 8, basic that were lucky, and they are few, from of justice and circumventing the same.
equal share 25 and fiscal responsibility 2 the advent of devolution, to get visionary One only hopes that the law will finally
percentage weight. This implies counties leaders, good managers for governors catch up with these corrupt governors.
received a greater share of revenue the who were also reelected in 2017. They This last category which, unfortunately,
larger their population, the higher their have made many strides, and because plays host to the majority of the counties,
poverty levels and the larger their land of continuity earned through reelection, has a silver lining with the coming to an
mass. Since all the counties faced fixed they have not only been able to complete end of the two terms of their leaders. They
governance costs, 25% of the revenues their projects, but have also been able to must take opportunity, and, with hindsight
were shared equally across all 47 counties. entrench foundations of accountability of the suffering they have endured for
Besides the equitable share, counties and good governance. Makueni, wrangles the last ten years, and put integrity and
also make money through local revenue. in Governor Kivutha Kibwana’s first re- track record first in electing their next
Article 209 (3) of the Constitution empow- gime notwithstanding, Governor Wycliffe leaders. It would be tragic if they were
ers county governments to impose two Oparanya’s Kakamega and Salim Mvurya’s to repeat the same mistake. Ten years
types of taxes and charges that also form Kwale fall in this category. of poor leadership can be redeemed; 15
sources of county government revenue:; Two, counties that were unlucky with or 20 years of lost opportunity would be
these are property rates and entertain- their first governors but quickly redeemed absolutely difficult to recover from.
ment taxes. County governments can themselves by voting out those governors What would be worse however, is if the
also impose charges for any services they in the earliest opportunity possible in the first category got it wrong in this election. It
provide in accordance with the stipulated 2017 General Election. There are also few would be painful, for example, for Makueni
laws, which may include rates, single counties in this category, among them be- County to elect a leader that lacks in the
business permits, parking fees, building ing Kisumu. These are counties in which integrity, commitment and vision of its
permits, and fees from billboards and nothing moved other than wrangles in the first governor, and watch helplessly as the
advertisements. assemblies for county resources, coups new governor undid ten years' worth of
According to County Governments’ Cash and counter-coups against county leader- strides in foundations of accountability,
Disbursement Schedule for Financial Year ship and numerous benchmarking trips public participation and people-centred
2021/2022, some of the highest earners of abroad. They were also characterized by development for the next five years. (

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Special Report
PRESIDENTIAL RACE
This month’s poll

will come down to
the wire
BY C H A R L E S A R AY elections in May 1963, had established, in
T
effect, a one-party state when he banned
his month, Kenyans will cast the Kenya Peoples Union (KPU) on Octo-
their ballots for president, ber 30, 1969.
members of parliament, and Kenya remained a de facto one-party
members of the Kenyan senate. state under the control of KANU until
Incumbent ruling Jubilee Party President 1991, with Kenyatta serving from 1964
Uhuru Kenyatta has thrown his support until ins death in 1978, and Daniel Arap
behind opposition challenger, Raila Odinga, Moi holding the presidency from 1978
the prime minister who is a member of until he retired in 2002.
the Orange Democratic Movement, over On October 28, 1992, five months before
his own deputy president, William Ruto. the end of his term, Moi dissolved Parlia-
Given the history of election violence ment in response to domestic protests
in Kenya, this has many worried. While and international pressure, causing a need
ethnic conflicts have often been the for elections to fill all seats, and the first
engine of conflict in the past, economic multiparty elections since independence
inequities caused by official corruption and the first time that Kenyans had been
and the destabilizing impact of the CO- able to vote directly for the president. ments against economic inequities to fan
VID-19 pandemic are likely to be the main Though there were claims of voter fraud, inter-tribal conflict and all elections have
contentious issues in this year’s election, Moi won the elections in 1992 and 1997. been marred by violence.
with the divide along class (rather than In the general elections of 2002, Mwai Uhuru Kenyatta is the son of Kenya’s
tribal) lines. Kibaki of the National Rainbow Coalition first president, Jomo Kenyatta. He had
Odinga has focused on reviving Kenya’s defeated Uhuru Kenyatta of KANU for been anointed by Moi in 2002 as his
flagging economy. Kenyatta has also spo- the presidency, marking the first time successor but lost out to Mwai Kibaki of
ken out on reviving an economy battered that KANU did not hold the presidency. the National Rainbow Coalition. In 2019,
by the pandemic. What impact either man This first multiparty election, however, Kenyatta, who is barred by the constitu-
will have on the economy is unknown at occurred along ethnic/tribal lines and tion from seeking a third term, launched
this point, but Africa and the world will set a tone that has persisted in Kenyan what he called his Building Bridges Initia-
be watching the process to see whether politics to the present time. tive (BBI) in cooperation with the opposi-
there will be truly positive change or more There are 40 ethnic groups in Kenya, tion leader, Raila Odinga. BBI grew out
of the same old story of disputed outcomes with the Kikuyu of the country’s central of a March 2018 handshake agreement
and post-election violence. region being the largest, accounting for between the two men that ended sev-
over 17 percent of the country’s popula- eral months of post-election violence
A chequered election record tion. The Kikuyu have long dominated in which dozens of Kenyans were killed
Kenya’s first general election after it Kenya’s economy and politics and make up by police.
gained independence in 1963 was held on the largest single voting bloc. The Luhya, The agreement, however, ran into im-
December 6, 1969. Kenya’s first post-in- Luo, Kalenjin, and Kamba rank second mediate opposition from minority parties
dependence president, Jomo Kenyatta, of to fifth, each with populations of over and opposition figures who held that it
the Kenya African National Union (KANU), four million. Since 1992, politicians have permanently disadvantaged them by
which had won the pre-independence played on tribal affiliation and resent- concentrating power in the hands of a

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KENYA ELECTIONS 2022
dependence. This state of affairs could

very well lead to rifts within the Jubilee
Party if some of its members decide not
to follow Kenyatta’s lead and could lead
to dissension within Odinga’s Orange
Democratic Movement with some in his
party unhappy with his rapprochement
with his former arch-rival.
Ruto, along with Kenyatta, was indict-
ed by the International Criminal Court on
charges of crimes against humanity for
their alleged roles in orchestrating post-
election violence in 2007 that resulted in
more than 1,000 people killed. The cases
against the two collapsed, according to
former chief prosecutor Fatou Bensouda,
due to unrelenting victim and witness in-
timidation, which made a trial impossible.
The elections are plagued with the
amplification of disinformation and hate
speech on platforms such as Facebook,
TikTok, and Twitter. In the 2013 and 2017
elections, the current president used
the services of Cambridge Analytica to
rebrand his campaign, do public opinion
polling, and even craft some of his cam-
paign speeches, which some of his critics
have described as divisive and contribut-
ing to ethnic conflict. Cambridge Analytica
small political elite. Five justices of the nessman, is a first-term parliamentarian was criticized for its abuse of Facebook
Kenyan Court of Appeals agreed with and veteran political campaigner, while data in the 2016 US elections.
those opposing the law and struck it down Odinga chose Martha Karua, a former While the prospect of ethnic-related vio-
in 2021 as unconstitutional. Kenyatta’s justice minister who served in parliament lence still looms large over the upcoming
government appealed the decision but for two decades. If Odinga is elected, Karua elections, analysts predict that the main
on March 31, 2022, the Kenyan Supreme would become the first woman elected to issue will be economic reforms. Ethnic
Court upheld that portion of the lower the office of deputy president. violence and corruption remain important
court ruling blocking BBI. The Supreme The outcome of the August election is issues because they negatively affect
Court did, however, overturn the lower still uncertain, with Odinga ahead in some economic performance, but corruption is
court’s ruling that Kenyatta could be polls while Ruto leads in others. not likely to arise in campaigns because
prosecuted as an individual for his actions In addition to the general expectation of both of the top candidates are tainted by
in pushing BBI forward. election-related violence that has plagued allegations of corruption.
Kenyan elections for decades, both can- Political analyst Bobby Mkangi told the
Too close to call didates face an array of challenges. Ruto, BBC that “corruption is no longer an issue.
This election marks the first time that who opposed Kenyatta in 2007 and 2008 It seems to be our way of life and it has
a Kikuyu has not been the front runner before becoming his deputy president become hard to show a strong leader who
in Kenya’s presidential elections. Both in 2013, once again finds himself on the is not tainted by corruption.” Odinga’s
candidates, however, have chosen a Ki- opposite side of the fence. selection of Martha Karua as his running
kuyu running mate in order to appeal to Ruto now portrays himself as a leader mate, given her record as a consistent
the Kikuyu, the largest voting bloc in the out to end the domination of political public voice against corruption, could
nation, accounting for over 17 percent of dynasties such as the Kenyatta and the make it at least a minor issue, but Mkangi’s
the country’s population. Ruto’s running Odinga families which have dominated pessimistic view seems to be shared by
mate, Rigathi Gachagua, a wealthy busi- Kenyan politics since the country’s in- many in the country. (

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Special Report
RIPPLE EFFECT if many in the Washington policy establish-
Election 'felt
ment are even paying much attention to
Kenya at the moment, even though Kenya
is a key American partner in the region.
beyond borders'
Ruto was able to meet with the assistant
secretary for Africa, Molly Phee, during
an unofficial visit to the United States
earlier this year. But other than the Ke-
nyan press, no public mention was made
of the visit on the official Department of
State web site. The only recent official
mention of Kenya, in fact, is a March 18,
2022 ‘Bilateral Relations Fact Sheet’ that
outlines the general US policy on Kenya,
with emphasis on the US strategic inter-
est in Kenya’s security and stability and
the bilateral partnership on regional and
global security issues.. Regarding the 2022
elections, the second paragraph of the
fact sheet reads:
Ethnic-based political divisions, interfer-
ence in key institutions, corruption, and
impunity have posed challenges to Kenya’s
W
democracy. In the wake of widespread
hile the outcome of this Kenya suffers, so will the rest of the region. violence following the disputed 2007
year’s elections will be There is also the demonstration effect that presidential election, Kenyans adopted
extremely important to a poorly run Kenyan election will have on a new constitution in a national referen-
Kenyans, regardless of other countries on the continent. dum in August 2010, which mandated the
the outcome, the effects will be felt far In addition to the Kenyan general elec- transfer of some federal political author-
beyond the country’s borders. Tens of tions, major elections are slated for Angola ity and funding to Kenya’s 47 counties.
millions of Africans will be watching to see and Senegal, which are likely to influence Kenya’s 2013 and 2017 elections were
how the elections are conducted. Will it be the political trajectories in each country. more peaceful, though concerns remain
a truly free, fair, and nonviolent process, In Kenya and Senegal, increased tensions about the independence and credibility
or more of the same? and violence are likely. Other elections of democratic institutions and the gov-
At the moment, all one can do is wait scheduled for 2022 are Chad, Comoros, ernment’s adherence to the rule of law.
and see. Djibouti, Equatorial Guinea, The Gambia, Kenya’s next election is scheduled for
Jean Mensa, chair of the Electoral Com- Lesotho, Libya, Mali, Mauritius, Republic August 2022.
mission of Ghana, who headed a US Agency of Congo, Sao Tome and Principe, Sierra The only mentions of Kenya on
for International Development-fund- Leone, Sudan, and Tunisia. Some of these the White House website are releases in
ed pre-election assessment mission co- elections, including Mali and Sierra Leone, 2021 concerning President Joe Biden’s
sponsored by the National Democratic were postponed in 2019 and 2020 due to meeting with Kenyatta during the latter’s
Institute and the International Republican the pandemic. visit to the United States.
Institute, told the Ghana News Agency that Until the Clinton administration, the US-
the assessment indicated that “the 2022 Role of international partners Africa relationship could be characterized
general election had the potential to be With the turmoil surrounding America’s as benign neglect, focused mainly in terms
a pivotal milestone for democratization own 2022 mid-term elections, the United of countering Soviet efforts to gain influ-
in Kenya.” States is unlikely to be able to wield much ence on the continent. The Clinton, Bush,
Kenya, already suffering an economic influence in Kenya during this election and Obama administrations ushered in
decline from the pandemic, cannot afford season. Moreover, official Washington serious and sustained engagement which
the additional socio-economic disrup- is preoccupied with the Russian invasion enjoyed remarkable bipartisan support
tion caused by post-election violence. As of Ukraine. Except for some interest in in Congress. The Trump administration
one of East Africa’s largest economies, if Russian activities in Africa, it is doubtful took office signalling a radical break

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with this consensus and a return to the

pre-Clinton situation. While aid levels to DILEMMA
countries in Africa remained relatively
consistent during the first three years of Young voters dislike ethnic
Trump’s administration, the public and
private rhetoric expressed scepticism
about our programs in Africa.
politics but feel trapped in it
The administration embraced a short-
term, transactional approach that sig-
nalled changes in how the United States
N one of the major political parties and
alliances in the current election has put
forward a clear vision for young people. Instead,
identity over their ethnic one. One-third stated
that ethnicity remained an important part of
their daily life; 47% said it played a minor or
would engage with Africa. Its Africa strat- the electorate has been treated to the traditional no role. Most (84%) agreed with a statement
egy, for example, mentioned China and election campaign menu of implicit ethnic that tribal identities hurt Kenyan politics more
Russia, but did not name one African hostilities and the attendant fears of politically than they helped.
country. In his speech on the strategy motivated violence. Many students felt, though, that ethnic
to the Heritage Foundation in Decem- In the country’s last election in 2017, then discrimination negatively affected their lives
ber 2018, John Bolton, Trump’s national 23-year-old university student Shikoh Kihika and politics. Over a third (38%) stated that
security advisor, stopped just short of started a hashtag, #TribelessYouth, in response members of their group faced disadvantages
saying that African countries would have to hateful, discriminatory messages she saw on because of their ethnicity.
to choose between the United States or social media. In 2017, over a quarter of Kenya’s That number rose to nearly half among
China, reminding many of the Cold War population was on social media. It’s likely that students from the Luo ethnic group, who
“us or them” days. fake news and other online messages designed have been repeatedly denied access to the
The Biden administration came in with to stoke fear and ethnic resentment contributed presidency. They are the base of support for
a promise to reverse the disdain and to the violence witnessed in that election. presidential candidate Raila Odinga.
neglect of the previous administration, Kihika’s call for unity among Kenyan youth The number was greater than half for
and usher in a policy of “solidarity, part- was shared widely. However, a lasting change students from ethnic groups with historically
nership, support, and mutual respect.” in behaviour is harder to detect. even less political power, such as the Luhya,
Former senior intelligence official Judd Social media is again being used to spread Kamba and Kisii.
Devermont was hired in October 2021 to divisive content in the run-up to the August Students’ perceptions of discrimination
craft the administration’s Africa policy. As 2022 election. reflected the common belief in Kenya that
of March 2022, the policy document still members of the president’s ethnic group reap
had not been finalized. It is estimated that What the youth say social and economic benefits. Many stated
it will be completed before the US-Africa A survey of University of Nairobi students to that the Kikuyu and Kalenjin had advantages
Leaders’ Summit, planned for some time gauge their views on democracy and ethnicity in society since, as one student put it, “the
after the middle of 2022. was done in August 2018. president and deputy come from there.”
Until the United States has an approved The study surveyed 497 students between As a result, Kenyan youth feel pressured
and implemented Africa strategy, it is left 18 and 35 less than a year after the 2017 general to participate in ethnic politics despite their
to organizations like the African Union to elections. It’s important to note that our results stated dislike of tribalism.
help countries conduct credible elections may have been coloured by the 2017 elections, Accordingly, 40% of surveyed students
and prevent election-related violence. and youth views may have changed since our agreed that having a co-ethnic in government
It can use the expertise and knowledge survey. Also, the views of university students was important to them.
it has accumulated over many years of may differ from those of the youth as a whole. Only 29%, however, admitted to listening to
election observation to help maintain Of the students we surveyed, 97% identified the political opinions of their ethnic or tribal
stability. As in many parts of the world primarily as Kenyan, choosing their national leaders. This suggests that the youth accept
over the past ten years, democracy in that having a co-ethnic in power has important
Africa is weakening, with entrenched material benefits, while also acknowledging the
autocrats attempting to hang onto power. Kenyan youth feel pressured dangerous effects of ethnic politics.
In a country that, like the continent, is to participate in ethnic politics Thus, we have a mixed picture: Kenyan
overwhelmingly young (approximately 42 despite their stated dislike youth continue to engage in ethnic politics
percent of Kenya’s population is age 14 or of tribalism. 40% of those out of pragmatism. In their actions, they
younger), the failure to address pressing surveyed agreed that having appear to be far from “tribeless”, despite
socio-economic and political issues is a a co-ethnic government was widespread resentment of this system. ( —
recipe for further violence. ( important to them. The Conversation

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Special Report
HIGH STAKES BY O U M A OJA N G O
How well has

A
re you confident that the
IEBC (Independent Electoral
IEBC complied
and Boundaries Commission)
is going to deliver a cred-
ible election come August 9 from what
with Supreme
you have seen so far? As a voter in this
month’s General Election, what would
be your answer?
Court’s orders on
Eric Latiff of KTN asked this critical
question to Paul Mwangi, a legal advisor
to Azimio La Umoja One Kenya Alliance
preparedness?
presidential candidate in an interview last
month. Avoiding castigating the Commis-
sion a few days to elections, Mr. Mwangi
said he is concerned that the IEBC is not
exhibiting preparedness – saying that
IEBC chair Wafula Chebukati and his team
IEBC chair Wafula Chebukati's standoffishness and casual are not going out of their way to satisfy
approach to implementing Supreme Court guidance and everyone about their preparedness.
reluctance to enforcing Chapter Six of the Constitution on Unfortunately, but unsurprisingly, Mr.
ethics worrying . Mwangi’s sentiments seemed to speak for
the majority of the Kenyan voters in the

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homestretch to the election. voters and transmission of election results. some polling stations were exaggerated,
The same challenges that have dogged This would be complement an integrated substantially forming the reason for void-
IEBC in the past, some of which being the electronic electoral system that enables ing of the Presidential Election.
basis for which the Supreme Court nullified biometric voter registration, electronic It is possible that a voter can walk into
the 2017 Presidential Election, continue voter identification and electronic trans- a polling station and decide to only vote
to undermine the Commission. IEBC, it mission of results as stated in Section 44. for the President, or Governor or Mem-
seems, didn’t around to issues to do with The Commission has however remained ber of Parliament. IEBC needs to have
timely and adequate voter education and dodgy on whether it will deploy a manual by now come up with regulations and
registration, procurement of services and register in compliance with this legal sensitized the electorate on the same on
equipment and testing of their suitability requirement, insisting that there will be how the presiding officers will deal with
for deployment in the elections and clear- several KIEMS (Kenya Integrated Elections the unused ballots in this case, which are
ing of candidates for purposes of primaries Management) kits so that if one fails for neither spoilt nor stray, so that they can
and for the final contest. a reason or the other, another would be be accounted for.
The Commission has not been proactive deployed. At the time of press, Chebu- Lastly, for the first time, the Commission
in enforcing Chapter Six of the Constitu- kati and his CEO Marjan Hussein Marjan has allowed media houses and political
tion that seeks to raise the bar on ethics were non-committal when they faced a parties to access polling stations and
and integrity for public officers. It has, joint media panel for a live interview on tally presidential results as they are an-
in total disregard of the Ethics and Anti- election preparedness at the Bomas of nounced. Chebukati revealed this at the
Corruption Commission (EACC) advisory, Kenya. Neither did the Commission yield joint media interview with the Commis-
gone ahead to clear candidates who are much in panel discussions at the recently sion. Previously, this has been restricted
subject to corruption and criminal in- concluded National Election Conference only to the Commission. It is remembered
vestigations and some who are already at the Kenya International Convention that in the last General Election, the police
convicted on the same but only out on Centre on the nagging question of deploy- raided the Opposition’s tallying centre
bond and pursuing appeals. ment of a manual register. and destroyed equipment in a bid to gag
It hasn’t also applied standard rules Section 44(A) in its totality is explicit it from counter-announcing Presiden-
on dealing with candidates who have that “Notwithstanding the provisions of tial Election results. Media houses have
presented fake academic papers for ... section 44, the Commission shall put too, never been allowed to announce
purposes of clearance to contest in the in place a complementary mechanism their tallies.
elections. In some cases, the Commission for identification of voters and transmis- Now that the IEBC Chair has pronounced
has been candid and barred candidates sion of election results…” Could that have himself on this controversial issue, what
with questionable academic papers yet in meant a similar form as a complimentary are the modalities of how the media
some, it has feigned lack of jurisdiction, mechanism? houses and political parties will use the
unbelievably displaying a bias that has IEBC was put to task in the Supreme tallies? Yes, Mr Chebukati insists it is his
left egg on its face. Court in the Presidential Petition in 2017 reserve as the National Returning Officer
A few days to elections however, some on how presidential votes in a polling to announce the presidential results. Will,
worrisome issues stick out: one, whether station could be exceedingly more than for instance, media houses be allowed to
the Commission will, as per the law, deploy votes in other elections including for project parallel results to IEBC’s? If that
a manual register in all polling stations gubernatorial or parliamentary elections. be the case, what happens where projec-
as a complimentary mechanism to the In particular, the court wanted to know tions of a media house differ from that of
electronic process of voter identifica- how IEBC accounted for the ballot papers the IEBC? Are political parties free to use
tion; two, how to address a scenario, as for the other elections as a prospective their tallies as they wish?
was canvassed in the Supreme Court in voter is, on entering a polling station, by There’s a high potential for this leeway
Petition No. 1 of 2017 where Presidential law given all six ballot papers for all the to be exploited in a manner that may be
election votes, for instance, are exceed- elections including for Presidential, Gu- counterproductive in the high stakes elec-
ingly more than for the other elections bernatorial, Senatorial and for National tions. Political parties, if allowed to publish
in a polling station with no evidence of Assembly, Woman Representative and their tallies may seize the opportunity,
the unmarked ballots for the others and Member of County Assembly. especially with liberated social media
lastly, how Kenyans will follow presidential The Commission’s legal team was never tools, to use it as a propaganda tool with
elections as they unfold. able to explain itself out of this situation, possible devastating consequences. IEBC
Section 44(A) of the Elections Act 2011 which left a majority of the judges to con- needs, as a matter of urgency, to work on
states that IEBC shall put in place a comple- clude that either ballot boxes were stuffed guidelines on how this freedom will be
mentary mechanism for identification of or numbers for Presidential Election in used by the media and political parties. (

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Special Report
KEY ISSUE
Dissecting election
promises: an economist’s
perspective
Whoever wins the election will contend with an economy BY X N I R A K I
K
struggling to recover from the impact of the coronavirus
pandemic and the fastest increase in consumer prices since enya has four presidential
2017 – exacerbated by the war in Ukraine and the worst candidates in this month’s
drought in four decades. general election. They recently
launched their manifestos and
one thing ties them together: the economy.
In no other Kenyan election has the
economy been such a key subject, not just
for those seeking power, but for voters, too.
There are two reasons: a maturing de-
mocracy and recent developments that
are affecting Kenyans’ pockets.
The candidates have made numer-
ous promises. These include stipends to
poor families, access to cheaper credit,
land reform, unorthodox exports, farm
subsidies and other interventions. But
realistically, the country’s economic chal-
lenges will be difficult to overcome and
there’s only so much that a government
can do about them.
Shift of focus to economy

As a country develops, economic issues
take centre stage. Kenya’s political lead-
ers are shifting the campaign focus from
personalities and ethnicity to economic
well-being and growth. Having analysed
politics in Kenya through an economic lens
for more than 20 years, I have witnessed
this shift.
Between 2015 and 2019, Kenya’s eco-
nomic growth averaged 4.7% per year. The
arrival of COVID-19 in 2020 disrupted this
trajectory and the economy contracted
by 0.3%.
Kenya rallied to register 7.5% economic
growth in 2021 – higher than the 4% aver-
age recorded in sub-Saharan Africa. The

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World Bank has projected a moderation the presidency – promises to make Sh50 First, Kenyans’ thinking will not change
of this “remarkable recovery” in 2022. It billion ($417 million) in credit available overnight. Corruption thrives, undermin-
expects Kenya’s economy to grow 5.2%. to “hustlers”, the men and women at ing economic growth.
the bottom of the economic pyramid. It The current budget deficit is 8.1% of the
Rising prices hasn’t said how often this amount will be country’s gross domestic product – the
The lingering effects of the pandemic made available. value of what it produces in a year. A bud-
and the war in Ukraine have made life In Kenya, 83% of employers are in the get deficit increases a country’s need to
difficult for ordinary citizens. This has informal sector, where “hustlers” work. borrow. The World Bank estimates that if
centred the state of the economy in daily Access to credit and job growth oppor- public debt gets to 77% of gross domestic
conversations. tunities in this sector are limited. These product, then more borrowing reduces
The rise in oil prices has led to inflation “hustlers” make up the majority of the growth. Kenya will not raise the money
– where too much money chases too few country’s 22 million voters, yet many it needs to turn the economy around if
goods. The World Bank projects that crude of them live below the poverty line. The productivity doesn’t rise too.
oil and natural gas prices will increase by World Bank reports that 33.4% of Kenyans Second, voting takes a day; economic
81% in 2022. And in June, the Kenya Na- are poor. growth takes years. Whoever wins the
tional Bureau of Statistics reported that Land reforms are targeted by both par- election will need to pool resources, adopt
the country’s year-on-year inflation rate ties. Land ownership is an emotive issue in new innovations, secure new markets and
had hit 7.9%. Kenya and is marked by inequalities that shift citizens’ mindsets.
This situation has especially affected date back to colonialism. Three, politicians are constrained by
the poor. For instance, the price of maize Both manifestos are inward looking, the constitution, international obligations,
flour, a staple in Kenyan households, rose focusing on local challenges and largely vested interests and an ever-changing
from Sh150 to Sh200 between mid-May ignoring regional or international issues. environment. Who foresaw COVID-19 or
and June 2022. Yet, no salary or wage has Roots Party’s George Wajack- the war in Ukraine?
gone up by 33% over a similar period to oyah launched a largely outward-looking Four, the manifestos assume that the
protect consumers’ purchasing power. manifesto, with China identified as a key government drives the economy. The real-
There are others factors driving infla- source of export earnings. Should he be ity is that it’s citizens who do it through
tion. Elections in Kenya are expensive, elected president, Wajackoyah expects taxes. Yet, there is little focus on what
which means there is a lot of money to sell the Asian country hyena parts, individuals can do to uplift themselves.
circulating. There are also jitters over and dog and snake meat. The party also Five, the manifestos are quiet on
the impending change of government, wants cannabis legalised to allow for the deeply entrenched issues that gnaw on
lowering investor confidence and reduc- crop’s export. the economy, such as tribalism, a cul-
ing production. Additionally, the party says it would de- ture of seeking handouts and population
What’s more, the rains in Kenya have port idle foreigners, hang the corrupt, shut growth despite limited resources like
been unreliable, leading to food shortages down the Standard Gauge Railway and land. These issues hinder the country’s
and a subsequent rise in prices. implement a four-day work week. productivity.
The presidential candidates have no- Roots Party’s economic ideas have The four presidential candidates haven’t
ticed that voters are angry about the high brightened the campaign trail and cap- fully addressed the four factors of produc-
costs of living, rising public debt and cor- tured the frustrations of ordinary Kenyans. tion: land, capital, labour and entrepre-
ruption. They are looking to offer economic During economic hardships, citizens are neurship. Land has been highlighted not
solutions through their manifestos. drawn to the extremes. as a factor of production, but for political
Agano Party’s David Waihiga’s mani- reasons. Capital has been given the least
The promises festo is both inward and outward looking. attention – where will it come from beyond
Former prime minister Raila Odinga is While it calls for the repatriation of Sh20 debt and taxes? Azimio la Umoja and
the Azimio One Kenya flagbearer. The co- trillion ($169 billion) stashed abroad, it Kenya Kwanza mention improving labour
alition has promised a stipend of Sh6,000 also plans to offer tax waivers, subsidise through education, but fail to detail the
(US$50) per month for vulnerable families. maize and reduce corruption. plan to make Kenyans more productive
The World Bank puts the poverty line at and entrepreneurial.
US$57 a month. It’s not clear how these The hurdles When the voting results are announced,
vulnerable families will be selected or All four manifestos promise to create reality will dawn. No jobs will be created
how long the stipend will be in place for. economic opportunities and lessen the overnight. Prices will not drop overnight.
Kenya Kwanza – a coalition that’s front- suffering of ordinary Kenyans. But they Voting is a sprint, economic growth is a
ing Deputy President William Ruto for need to be more realistic. marathon. ( (The Conversation)

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Special Report
A CHOICE TO MAKE BY P E T E R WA N YO N Y I
Economic promises I
t is political manifesto time, and
our politicians are in overdrive with
their promises of economic paradise
and lies – the true

over the next five years – but only
if they are elected to office. The grand
promises contained in the rival manifestos
cost of the election

of the two leading political camps are an
exercise in economic dreaming – but you
cannot accomplish anything if you do not
dream. The question, then, is – even if we
assume the dreams are plausible, what is
the true cost of it all? The devil will be in
the details of implementation.
Each manifesto always has a signature
promise, a catchy pledge that personifies
the mood of the manifesto and the ambi-
tions of the political party. In the case of
Raila Odinga and his hangers-on, it is the
promise to implement a social protection
programme that will see “needy families”
receive a monthly welfare payment of
Sh6,000 each.
Presenting the plan on June 28, Raila
reckoned that 2 million families live under
the poverty line, and that the bill for the
programme would thus be about Sh12
billion monthly. Asked where the money
would come from, Raila said he would
“seal the loopholes of corruption” that
President Uhuru Kenyatta has claimed
are costing Kenya over Sh2 billion daily.
The true cost of the programme be-
comes clear when one looks at this promise
in detail. The corrupt do not walk into the
Central Bank of Kenya and withdraw two
billion shillings a day! That public money
is lost in “small deals” and procurement
quid pro quo arrangements all around the
government and the civil service.
The optimism in Raila’s assessment
that Kenya is “under-collecting Revenue
and over-spending” is almost laughable to
behold, and Raila must have a very short
memory if he thinks we haven’t watched
this movie before: in 2002, Mwai Kibaki
made the same observation and the same
promise, to collect more revenue, seal
Kenya Kwanza's
William Ruto when corruption loopholes, and thus deliver a
he launched his budget surplus to invest in social safety
manifesto.
nets. He failed – and Raila was part of that

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KENYA ELECTION 2022
government, and so should know better.

Raila and his team will therefore not be
able to seal the corruption loopholes they
so flippantly promise to close. But Raila will
want a second term in office – all Kenyan
leaders do – so he will need to fulfil this
promise, and that will mean more debt. To
make the social welfare plan work, Kenya
will have to borrow the required sh144
billion a year from somewhere (throw
in administration costs and it easily hits
Sh150 billion a year, and that’s before one
accounts for the inevitable losses due to
corruption) and hope desperately that
economic activity somehow generates
the money needed to repay this.
Would it? Evidence suggests otherwise. Azimio leader
Kenya currently pays a total of Sh74 bil- Raila Odinga
speaks when
lion a year to Chinese lenders for Uhuru’s launching his
infrastructure loans. There’s evidence manifesto.
that the country is struggling to repay
this debt, which now makes up over 80% but is a warning sign if deliberate. About
of the Sh90 billion that Kenya spends on The grand promises contained the only thing one takes away from it is
servicing bilateral debt – indeed, Kenya in the rival manifestos of the two this: it would also increase our debt, and
recently applied to Chinese lenders to leading political camps are an therefore our repayments.
have the debt-servicing suspended, as
exercise in economic dreaming Bilateral loans in Kenya always have
– but you cannot accomplish
the strain on the economy is such that anything if you do not dream. the effect of increasing corruption, such
we are unable to meet this repayment The question, then, is – even if we is the careless abandon with which we
schedule in the long term. Imagine, then, assume the dreams are plausible, spend borrowed money. The pain of
how much worse the situation would be what is the true cost of it all? repayment is forgotten as our connected
if an additional Sh150 billion was added The devil will be in the details of fat cats allocate government tenders and
implementation.
to the national debt every year. Kenya preferential contracts to themselves
would quickly head down the road recently The manifesto is suspiciously silent and their friends and relatives, with the
experienced by Sri Lanka, with economic on this, and that is a worry. It cannot be long-suffering mwananchi left to bear the
collapse and complete social upheaval that the crafters of Ruto’s manifesto went burden of the consequent inflation and
following on. And this is just one of many to such significant detail for the other repayment pinch.
manifesto promises in Raila’s election promises on their campaign platform, but There is little doubt that the ambitious
pledges – add in the likely costs of the somehow overlooked the detail required promises contained in the two leading
others and the mountain of debt Kenya for one of their signature promises. The manifestos will, if either is implemented,
would have to incur is astronomical. absence of detail indicates that the pledge unleash a torrent of sleaze that would
William Ruto’s manifesto has the sig- was either included in a hurry, at the last make previous corruption scandals look
nificant advantage of going to some detail minute – perhaps to counter Raila’s social like small-time heists in comparison. It is
on each promise, perhaps a result of the welfare programme proposal, or the lack Kenya’s curse to be blessed with leaders
Deputy President having the advantage of of detail is deliberate because more infor- who got rich by stealing openly, and it is
civil servants working on his election. Ruto mation would raise significant concern. a further curse that our citizens do not
promises to make Sh50 billion available as As with the Raila manifesto, Kenya let this little detail get in the way of their
credit to the informal sector. Curiously, would need to borrow significantly if Ruto political choices. This political season,
despite going to extensive detail on its was to deliver on his manifesto promises. as with all others, our leaders’ promises
other promises, the manifesto is silent The extent of the borrowing would be are nothing but lies. And it is in these lies
on this critical pledge. How often will the unclear, because the manifesto rather con- that the true cost of the election lies. (
credit facility be provided – is it a one-time veniently omits duration-related details in — The author is an information systems
deal? Or is it annual, or even monthly? its promises. This is careless if accidental, professional.

August 2022 • 41
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COVER STORY

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2022 PRESIDENTIAL ELECTION
A NEW POLITICAL ERA
The people’s
uprising and end
of self-righteous
politics
The old order of ethnic coalitions has run its course. While Odinga, a
stalwart of self-righteous politics, is fluently harnessing the diametrical
profiles of ‘progressive’ and ‘reformer’ on one hand, and ‘corrupt’ and ‘anti-
reformer’ on the other, a determined reformist wave is ushering in issue-
based politics.
BY E R I C N G’ E N O
L
ike all time-bound affairs, the command of the majimbo – regional govern-
spectacular denouement to Ke- ments – as an effective check to Kenyatta’s
nya’s relentless political drama, command of the national unit. Kenyatta sought
by way of an implacable episte- to defuse devolutionary impulses within KANU
mological ebb, will shortly expose and consolidate the independence party as a
the tremendously reckless bluff political monopoly.
called by those quixotic punters That done, Kenyatta suddenly discovered
who have been splashing in the that his tolerance for dissent and patience
political high tide in a state of for collegiate decision-making was running
scandalous dishabille. Because, precariously dismal. To signal his autocratic
at the present rate, the impending election will intent, he moved to systematically neutralize
crystallize into a cataclysmic culmination to a his Vice President and foremost colleague,
long-running framework that has conditioned and hitherto trusted ally, Oginga Odinga, and
the perception, discussion, organization and dismantle his nationwide political machinery.
practice of Kenyan politics ever since competi- The proximate cause of this siege was the
tive democracy was restored. ideological cleavages wrought by the Cold
The binarity that is taken for granted by one War, with Kenyatta suddenly and drastically
side of our great divide was instigated by mere pivoting to the West, thus exposing Odinga as
historical happenstance. Shortly after indepen- the most awkwardly prominent sympathizer of
dence, KANU underwent a traumatic internal Communism. A sequence of punitive assaults
reorganization which defined the contours thus ensued, beginning with the scattering of
of Kenyan politics thereafter. The first phase Odinga’s international networks, acquisition
of this reorganization was the annexation of of his local loyalists and, finally, the demolition
KADU, whose devolutionary ideology gave it of his power base. By 1965, Odinga was on his

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COVER STORY
last legs as a formal political player at

the national level, and the ruthless purge
waged against him and his associates
in the subsequent KANU Elections was
intended to underscore it.
In particular, his replacement as the
party’s vice-chairman with eight vice
chairmen meant that his position as the
vice president of the government and
the republic was untenable. Under these
conditions, he resigned to avoid further
humiliation and launched the Kenya
People’s Union, on whose platform he
intended to challenge Kenyatta for power.
His first and most important constraint
was that he was unable to attract signifi-
cant allies outside his Nyanza stronghold
except known and already marginalized
firebrand oppositionists, thanks to the
annexation of KADU. Secondly, KANU
made it difficult for KPU to field candidates
throughout the country.
The second general election thus saw Founding members of the
Rainbow coalition.
KPU manage only 9 members of parlia-
ment, a paltry delegation against the assorted missiles, and the police escort
KANU behemoth. By this time, regional had to shoot their way through the melee,
governments had been dissolved and leading to many deaths, national anger and
the senate wound up, paving the way political tension. Kenyatta used this event NARC embezzled the entire
for parliamentary unicameralism that to consolidate his monopoly of political dividend of the political capital
subsisted until 2013. In 1969, KANU titan, power by banning the KPU and restricting invested by the first Odinga
the Kenyatta arch-loyalist and Odinga Odinga’s movements and political activity. four decades earlier, and
nemesis Tom Mboya was assassinated. KANU remained in power until 2002 – did so without the merest
Nyanza led an outraged nation in mourn- and Kenya was a de facto one party state acknowledgement of his heirs’
ing a rising star so brutally extinguished, until 1982 when it became a de jure one- presence
and placed blame for the crime squarely party state. Odinga remained defiant in
on Kenyatta’s doorstep. Demonstrations his banishment, and over time became the
swiftly turned to riots in various parts of symbol of resistance to political tyranny righteousness acquired greater potency
the country and Kenyatta’s attendance and one-party autocracy. As Kenyan on account of the backdrop imbued by
of a funeral service in Nairobi turned politics devolved from nationalist to what KANU had in effect become over
into chaos as protesters accosted the ethnic discourses, Odinga’s Luo Nyanza time: the emblem of brutal tyranny, eco-
presidential entourage. evolved into the bedrock of the politics nomic mismanagement, constitutional
of righteous outrage. The quest for demo- vandalism and reckless disregard for the
Consolidated monopoly of politi- cratic space inevitably acquired a mantle common good.
cal power of high-minded struggle for the second If Odinga was located at the core of the
When Kenyatta visited Kisumu in Nyanza liberation of the nation. Just as Kenyatta righteous movement, Nyanza, being the
four months later to open a hospital, Odin- had deftly manipulated circumstances to heartland of Odingaism, was understood
ga was waiting for him. A testy encounter marginalize Odinga, it was now Odinga’s to be the enclave of communities which
led to ill-tempered exchanges with the turn to define his way out of dire political at once were the disenfranchised martyrs
two men in close proximity, surrounded straits as a principled and righteous quest of Kenya’s improvident politics and the
by agitated members of public and tense for the expansion of political freedom, cradle of the most iconic apostles of a new
presidential security detail. Kenyatta’s democracy and human rights. liberation struggle. For as long as political
motorcade was subsequently pelted with The enduring appeal of this profile of differences flirted with ethnic prejudice,

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the emerging opposed profiles – of righ- dament sustained by Odingaist fortitude

teousness versus impunity, democracy at immense cost, in a manner that could
versus authoritarianism and integrity fairly be adjudged to be opportunistic.
versus turpitude – were ineluctably des- Never mind that Odinga himself held
tined to evince the rancid flavours of out against joining NARC until weeks to
tribal animosity that had been sedulously the election, the relevant consideration
curated by colonial authorities to subvert being that he would have felt entitled to
the emergence of a pan-ethnic national pride of place as the heir of the patent
liberation coalition. holder of the politics of righteousness.
Perhaps it was with this perspective of To be relegated to just another minister
the evolutionary arc of the competitive- among men he found in KANU two years
coalitional framework of Kenya’s politics previously, and who were in power as
that president Moi could confidently his odyssey drew him into the abysmal
predict that multi-party democracy would dungeons of detention and repression,
inaugurate a politics of ethnic conflict. was a hard pill to swallow.
What is important is the fact that the first NARC embezzled the entire dividend of
two presidential elections of the multi- the political capital invested by the first
party era have been accurately described Odinga four decades earlier, and did so
as ethnic censuses. Opposition political without the merest acknowledgement of
parties were understood to be platforms Kenyatta, the outgoing his heirs’ presence. In any event, Odinga
of ethnic communities whose leaders had president, chairs the Azimio resolved to do in NARC what he had done in
differed with Moi and thus could practice Coalition council and owns KANU. He found a vast eager constituency
their politics in KANU, whilst KANU was explicit preferential rights. of communities that had felt victimized by
increasingly seen as a coalition of those Azimio is not aerodynamic and an ebullient, even hubristic NARC. Thus
communities who must hang together, or it is encumbered by crippling the Kalenjin, as Moi’s people, and therefore
be skinned separately. political baggage an arch-KANU constituency improbably
At the same time, the normative profil- found common cause with Odinga, the
ing meant that over time, the unwholesome founding father of righteous politics that
character assigned to KANU sedimented political persecution of a couple of com- lay at the heart of the Orange Democratic
into an impregnable mantle enveloping munities. Movement. It was a star-crossed affair.
hard-core KANU-affiliated leaders and The fallout in NARC was therefore a The Kalenjin were finally able to exit
their ethnic communities. As more and godsend, particularly for the Kalenjin, KANU and access a refreshing political do-
more constituencies broke away from because they could finally forge common main. ODM gave the ex-NARC incumbent
the KANU coalition, the full weight of this cause with the most righteous kernel of hold-out immense grief, and in the 2007
sinister profile bore down upon remnants. a righteous constellation, and liberate General election, a creditable run for its
By 2002, the exodus out of the pan-ethnic itself from KANU. It was, after all, Raila money. That may not even necessarily be
coalition that KANU had initially been, had Odinga who felt hard done by in the shar- the most important point. That election
crystallised into a pan-ethnic coalition ing of the spoils of NARC’s conquest of registered a more or less evenly balanced
of anti-KANU and therefore righteous state power. It is perfectly plausible that contest between ethnic coalition, and in
communities ranged against a chiefly that Odinga’s disenchantment in NARC the end, there were no winners, only ef-
pastoralist last stand, with the Kalenjin extended beyond grievances related to fective losers. The grand coalition govern-
being its most salient component. a power-sharing pact, which would then ment was the formal acknowledgement
be more or less the proximate cause of a of this reality. Because of the uncanny
Expropriation of Odinga’s political more fundamental discomfort. coalitional symmetry that had evolved
patrimony I want to propose that the unarticulated among Kenya’s ethnic coalitions, the prob-
When NARC began to dismantle KANU, gravamen of Odinga’s discontent had to ability of large-scale conflict and national
wage war against corruption and pursue do with feeling doubly victimized by a instability arising from electoral contests
accountability through commissions of scandalous expropriation of his political presented a new, fraught complication to
investigation, it lost sight of the irony that patrimony. This is to say that NARC, as a an already intractable muddle.
not only was NARC a coalition of KANU galaxy of converts to righteous politics,
alumni, but also that the pursuit of KANU essentially comprised more recent KANU Co-option and political laundering
in its present form was tantamount to barons who plugged into an ancient fun- The reform agenda, hurriedly abandoned

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COVER STORY
in the hell-for-leather scramble for the KANU to the opposition in a redemptive Yet, the vocabulary of righteous poli-
presidency after the introduction of act of rebellion. tics endured and retained its evocative
political pluralism, was reignited and The NDP-KANU merger was the first potency. ‘KANU orphan’ thus remained a
propelled with unprecedented urgency. indication of pragmatic possibilities of rank pejorative of our cantankerous politi-
These reforms produced the Constitution political laundering, whereby the dark cal vernacular, whilst ‘second liberation’
of Kenya 2010, which made it possible to side could purchase legitimacy as well credentials remained highly respected.
de-ethnicise politics and shift electoral as political stability in return for the KANU orphanhood was understood to be
competition to the platform of issues. righteous opposition accessing limited synonymous with corruption, violence,
Because of the ICC interventions in con- executive authority as well as forms of fa- tyranny and all manner of primitivism.
nection with the 2007 post-election crisis, cilitation available only through the state. Second liberation champions were auto-
a reiteration of 2007 ethnic coalitional However, such quid pro quo presented matically assigned integrity, idealism, self-
competition manifested in 2013, and Ju- the very real threat of not just blurring lessness, high-minded and public spirited
bilee scraped through by the sheerest the binarity of the political opposition, disposition and indomitable patriotism.
of margins. The election of 2017 dem- it also made it possible to hollow out the Today, thanks to the cross-pollination
onstrated in high-definition that the old meaning of each side. In time therefore, the between KANU and the second liberation
model of politics had run its course, and opposition, which at any rate comprised movement, no practical distinction ex-
that Kenya was ready to make its home former members of KANU, began to also ists. At the same time, the vocabulary of
in the brave new world of the post-2010 have more recent KANUists in its ranks normative profiling is still monopolized by
constitutional and political dispensation. together with covert or overt collabora- an Odingaist cottage industry and vigor-
Yet, old habits die hard. Odinga is con- tors of the dark side. ously deployed in framing the angels and
testing the ever-elusive presidency once Indeed, by 2002, Odinga was back in villains of our politics. To the extent that
again. He is still a stalwart of self-righteous KANU as secretary general, and had the categories are hollow for all intents
politics, fluently harnessing the diametri- joined the Executive as Moi’s minister and purposes, the exercise can be said to
cal profiles of ‘progressive’, ‘reformer’ on for Energy to work alongside such patri- be arbitrary and of limited utility.
one hand, and ‘corrupt’, ‘anti-reformer’ on archs as Nicholas Biwott, George Saitoti,
the other. His coalition remains profoundly Joseph Kamotho and Kalonzo Musyoka. Self-afflicted contradiction
invested in the model of ethnic coalitions, When he left KANU to join LDP en route The second fundamental problem with the
slightly upgraded in the BBI-Azimio version to NARC towards the 2002 election, he politics of righteousness is the effluxion
to a consociational framework underpin- had enlisted KANU heavyweights who of time. The origins of the framework of
ning government by ethnic chiefs, regional would be luminaries of the triumphant profiling, and the meaning of its most
kingpins and tribal champions. NARC, and would return to the cabinet salient vocabulary is lost in the mists of
The foregoing provides an account in the victorious successor government. history. 1966 is the political Middle Ages
of the origins, evolution and utility of To that extent, part of Odinga’s angst at in 2022. The majority of voters in the
Odinga’s self-righteous politics that is the expropriation of his patrimony can be impending election have no real memory
useful in understanding both its explicit attributed to his leading role in diluting the of the Nyayo era, as a consequence of
and implicit potentialities over time, while profiles by way of convoluted coalitional which the Second Liberation is utterly
facilitating its adequate problematisation permutations. meaningless. Odinga’s cardinal mobilizing
in the light of tremendous contradictions, narrative, however fluent in its vernacular
complications and fundamental changes and replete with evocative vocabulary, is
in the operating environment. superannuated to the point of obsoles-
All governments in the multiparty era cence. At the very best, it is threadbare,
have co-opted members of the opposition hollow and stubbornly associated with
under diverse arrangements – from the rivalrous primordial entitlements, claims
outright defections of the early 90s to the A new political insurgency, and grievances of limited resonance in the
elder Odinga’s cooperation with Nyayo in centred on economic liberation post 2010 constitutional dispensation.
his last days, which was revived by his heir has emerged, and is taking the The third problematic complication
after the 1997 election and formalized into nation by storm. The response of the politics of self-righteousness may
a merger NDP and KANU. These involved has been overwhelming, and the be described as the loss of credibility on
traversing the binary divide, whereby the bottom-up political platform has account of a reputation for cynicism and
practitioners of righteous politics crossed proved to be resilient, easily hypocrisy. Odinga expended his political
over to the putative dark side, contrary weathering sabotage through capital distinguishing himself from KANU,
to the more positively profiled shift, from diver stratagems then joined it. He then worked hard to

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between the putative righteous and de-

linquent sides. Demographic changes
ensued with momentous generational
shifts. The economic imperative began to
ascend to the top of discursive priority,
demanding that all messaging align with
or incorporate it.
A new political insurgency, centred
on economic liberation has emerged,
and is taking the nation by storm. The
response has been overwhelming, and
the bottom-up political platform has
proved to be resilient, easily weathering
sabotage through diver stratagems. The
politics of democratization of opportunity,
of restoring hope and dignity to millions
of struggling citizens, of inaugurating a
government that serves, and is kinder
and gentler to all its people, is at hand.
profile Jubilee the incarnation of KANU’s ture, protect free expression, yet at the By focusing of issues that cut across all
worst manifestations and the antithesis same time promote the emergence and communities regardless of ethnic identity,
of his liberation politics, and both Uhuru consolidation of pan-ethnic, consciously this inclusive, participatory and affirma-
Kenyatta and William Ruto as his political nationalist, unitary and issue-based poli- tive politics unites all Kenyans. It at once
nemeses. He propagated this profiling tics oriented towards deeper cohesion and appeals to citizens’ self-interest whilst
so successfully that by 2017, there were shared prosperity on a sustainable basis. affirming their patriotism and idealism.
thousands of Kenyans willing to fight and The salience of tribal identity in national Kenyans want to work hard for them-
even die for his cause. politics is emphatically on the decline. selves under a government that works for
In March 2018, with neither warning Since the politics of righteousness them, and does not get in their way at every
nor explanation, he joined Kenyatta’s aligned binary profiles with ethnic identity, turn. They want an end to state capture,
government and initiated the BBI process it has become possible to deploy ‘corrup- monopolies, conflict of interest and the
that culminated in the Azimio Coalition tion’, or ‘war on corruption’ for example impunity that has been on spectacular
Party on whose ticket he is contesting as dog-whistles, implying the isolation display since the advent of the BBI era.
the election. He is now trapped in a cos- of certain communities or their leaders. The Hustler Nation is fed up and is rising
mic contradiction of his own making. He Similarly, second liberation can be argued up, standing to be counted and taking
must promise a dramatic break from to be a souvenir by which certain commu- position at the frontline of nation building.
an establishment that sponsors him. nities memorialise ancient grievances and They are after a government that does
He must canvass his second liberation mobilise around a persecution complex not only act in their name, but actually
credentials whilst intractably entangled and the entitlement implicit therein. The advances their welfare. It is fronted by a
with KANU Pro Max. He is offering to fight residual retrospective utility of second leadership that listens and consults, not
corruption while safely ensconced in the liberation and prospective potentiality fiery messiahs with inscrutable slogans
extravagantly indulgent lap of Corruption, of integrity, qua war on corruption, are and obscure visions. There is only one
Inc. Azimio’s theory of change entails therefore onerously encumbered by this platform championing this economic
the frantic defence of the status quo. sinister undertow. insurgency, and it the Kenya Kwanza Co-
Kenyatta, the outgoing president, chairs At the moment of the overdue expiry of alition that has sponsored William Ruto.
the Azimio Coalition council and owns a narrative framework that has evolved A self-righteous politics that long sur-
explicit preferential rights. Azimio is not through sinuous concatenations and rendered its coherence is going to struggle
aerodynamic and it is encumbered by permutations of happenstances, a tidal for relevance against a spectacularly
crippling political baggage. It is a hot mess. backlash has emerged. The promise of on-point platform. On August 9th, 2022,
The Constitution inaugurates the post- the second liberation was for all practical Kenya will be saying goodbye to a lot of
tribal political society in Kenya to the purposes retired at the promulgation of things, and not a day too soon. (
extent that it promulgates a framework the Cconstitution in 2010. Retrospective — The author is an Advocate of the High
to coordinate diversity, preserve cul- politics were hollowed by flagrant incest Court of Kenya

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COVER STORY
AT A CROSSROADS
The choice
facing Kenya
and how we
got here
BY DAV E A N YO N A KA N U N D U
A
fter many cycles of dustrialisation agenda, which took off in the British colonial project, which was
betrayed hopes, Kenya the 2000s but has floundered under the brutal and repressive as well as racist
votes again this month. current administration, with a vision of and parasitic. The colonialists forcefully
Neither frontrunner putting Kenya back on track towards expropriated Kenya’s rich highlands, creat-
promises a leftward becoming a standard capitalist advanced ing the agrarian economy whose primary
break, but their visions economy. purpose was to supply British industries
differ vastly. Most analysis of Kenyan elections tends and kitchens. Meanwhile, unlike in colonies
The upcoming Ke- to focus on the noise of politicians’ per- like Australia or New Zealand, the govern-
nyan elections on 9 Au- sonalities and party dramas. However, it ment made no investments in advancing
gust will mark a turning is crucial to understand and interrogate industry or social welfare; education for
point in the nation’s future and could be the two main candidates’ agendas, one Kenyan subjects merely imparted crude
the country’s most consequential poll to of which will end up shaping the lives of agricultural skills suitable for an obedient
date. The presidential contest election some 50 million citizens. workforce.
is effectively a two-horse race between This examination must begin by see- In the 1940s, the British developed a new
Deputy President William Ruto and vet- ing the presidential aspirants’ visions in strategy as the possibility of decolonisation
eran politician Raila Odinga. Neither is the context of the country’s history of loomed. They sought to create a “respon-
proposing a paradigm-shifting leftward governance and politics. sible” middle class that could guarantee
break with Kenya’s current neoliberal their foreign capital investments and head
and neo-patrimonial character. Neverthe- A legacy of colonialism and lost off any potential working-class rebellion.
less, their agendas are starkly different hope Kenyan nationalists were allowed to
and each would irreversibly change the Kenya is a nation of boundless potential share power with their colonial masters
country’s trajectory. yearning for change in which most people as a subservient client elite in return
Ruto proposes returning Kenya to a live in poverty while a handful enjoy ob- for guaranteeing to reproduce colonial
pre-industrial era, reverting to small-scale scene wealth. It is a nation of plenty, but structures in the event of independence.
informal production and subsistence one that has repeatedly been betrayed Despite this tactic, a radical indepen-
agriculture, reversing gains the country by predatory politicians who abuse the dence movement known as the Mau Mau
has made in the past two decades. Raila trust bestowed upon them. emerged and grew in the 1940s-50s. Kenya
promises a return to the country’s in- This history can be traced back to was granted independence in 1963.

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together 1997 presidential candidates Raila

Odinga and Mwai Kibaki. Raila, who had
served as a minister in Moi’s government in
2001-2 before defecting, stepped aside to
allow Kibaki to be opposition flag-bearer.
The NARC candidate defeated Uhuru Ke-
nyatta, the KANU nominee that Moi had
picked to be his successor, in a landslide.
Kibaki was sworn in on a wave of hope.
Many believed their new president’s
promise that “corruption will cease to be
a way of life” and, in 2003, Kenyans were
surveyed to be the most hopeful people
in the world. Ordinary citizens arrested
corrupt policemen and frog-marched
them to police stations across the country.
Yet once again, Kenyans’ hopes were
betrayed. Within months, the ebullient
national mood had turned to despair.
Impunity and corruption returned as
Opposition leader Raila Odinga and other
politicians in Nairobi during the 1990 Saba the pillars of politics and public life, as an
Saba push for multiparty democracy ethnic cabal known as the “Mount Kenya
Mafia” captured the state. In the words of
anti-corruption activist John Githongo, this
At independence, the popular national Kenyatta’s death in 1978 and replace- new elite declared: “it is our turn to eat”.
movement Kenyan African National Union ment by Daniel arap Moi brought the In 2005, Kibaki brought a butchered
(KANU) came to power. It promised to not possibility of a fresh start. But this hope version of a popular draft constitution to
only liberate Kenya from the yoke of colo- was short-lived too. The country saw a referendum. Raila fiercely opposed the
nialism but free people from the degrad- the reintroduction of torture chambers, document, which would have consolidated
ing conditions they had been subjected detention without trial, and a reign of presidential powers, as did the opposition
to by imperialism. It vowed to eradicate terror unleashed on opponents. Tribalism KANU led by Uhuru and Ruto. When the
poverty, disease, and ignorance. Kenyans thrived even as Moi preached “peace, love constitution was defeated, Kibaki ejected
were extremely excited about the future. and unity”. Furthermore, the economy Raila and his faction from the cabinet.
However, their dreams were already collapsed. Kenya had to turn to struc- This set the stage for the 2007 elections
dead by the end of the first republic, killed tural adjustment programmes (SAPs), in which Kibaki faced Raila. Kibaki was
by ethnic chauvinism and corruption per- which led to de-industrialisation and narrowly declared the winner, but many
petrated by a brutal cabal that captured the decimation of domestic industries as believed the vote had been manipulated.
the state. Political elites hijacked the protective fiscal barriers were dismantled Raila also claimed victory. Popular dem-
“million-acre scheme”, which was meant to to liberalise trade. onstrations descended into an orgy of
return vacated colonial land to its original deadly violence in which 1,500 people
owners. The government failed to engage From new hope to despair were killed and 350,000 were displaced.
in nation-building. And President Jomo A decades-long bloody struggle for multi- Kenya was rescued from full-scale civil
Kenyatta undermined the multi-party party democracy against Moi’s one-party war by the signing of the National Accord
system as he centralised power. dictatorship bore fruit in 1992, paving the and Reconciliation Act in 2008. This led
KANU’s development agenda mean- way for multi-party elections in 1992 and to a power-sharing deal in which Raila
while ended any hopes of socialist eco- 1997. Moi won both as nascent opposi- became prime minister. The deal also
nomic transformation. Even though the tion parties fractured amid leadership paved the way for the promulgation of a
economy grew, it followed the colonial disputes. new 2010 constitution, which devolved
pattern of marginalising large sections of In 2002, however, the opposition learned power and resources from the centre
a dependent country that produced what their lessons and formed a broad national to many hitherto ignored regions in the
it didn’t consume and consumed what it front under the National Rainbow Coali- periphery. The document also explicitly
couldn’t produce. tion (NARC). Among others, this brought sought to demand higher ethical standards

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COVER STORY
of Kenyan leaders, though attempts to public looting today are so brazen that Kenyans will face a choice between two
improve governance by referring to the perpetrators no longer bother concealing familiar faces at the ballot box, but each
constitution’s standards have had little their malfeasance. Billions of dollars have with a very different vision.
success. As author Issa Shivji aptly ob- disappeared from public coffers, and the Ruto, a self-designated “hustler-in-
served: “Constitutions don’t make revolu- president himself has publicly said that at chief”, romanticises ignorance and poverty
tions. Revolutions make constitutions... least Sh2 billion is lost to corruption every to advance a cynical class warfare agenda.
Constitutions rarely herald fundamental day. Kenya has taken on unmanageable He advocates “bottom-up economics”,
transformations. They are the product of levels of debt for phantom projects that which when interrogated mainly promises
fundamental transformations”. have never materialised and paid hugely sustained deindustrialisation. His vision
Another legacy of the 2007 post-election inflated costs for those that have. echoes both the colonialists’ plan for the
unrest was an International Criminal Court The Uhuru-Ruto administration has indigenous population and Kenyatta and
investigation into the alleged architects also purposefully deindustrialised the Moi’s deliberate suppression of Kenya’s
of the violence. Indictees included Uhuru economy, decimating local manufactur- advancement to ensure a subservient
and Ruto who, aware that holding public ing and increasing Kenya’s dependence populace.
office would insulate them from facing on imports. The education sector has Ruto’s agenda leaves many questions
trial, joined forces to run against Raila’s floundered as the government has re- unanswered. What does it mean for the
Orange Democratic Movement (ODM) stricted access to universities in favour of average Kenyan? How can a country of 50
in 2013. Amidst claims of vote-rigging “vocational education” aimed at creating million feed itself on subsistence farming?
facilitated by the infamous Cambridge a low-skilled working class. Intellectual What does it mean to create a low-skilled
Analytica, the two were declared winners and professional pursuit and honest work “hustler” working class who cannot re-
and took office. spond to increasing global demands for
President Uhuru and Deputy President technical skills and automation? How can
Ruto ran for re-election in 2017, again a country without industry compete in a
against Raila. They were declared vic- Where Kenyans saw world in which other countries are aiming
tors once more, but the Supreme Court themselves as beacons leading for self-sufficiency?
nullified the results on the grounds that the rest of the continent Raila’s ten-point manifesto builds from
the electoral commission had overseen a vision of Kenyan life transcendent from
towards economic nirvana,
a litany of irregularities. When the op- the brutality of poverty and ignorance.
they are now being sold
position boycotted the rerun in protest It aims to reinvigorate and safeguard
primitivity and ignorance as
at the electoral commission’s failure to industry to produce for Kenyans and
aspirational.
address the problems identified by the gain global competitive advantage. Raila
court, Uhuru won uncontested. have been shunned in favour of “hustling”, promises universal healthcare, and his
Kenya was left split down the middle which in practice means self-enrichment campaign’s central feature is an ambitious
with a president who had legal authority through theft of public resources. social welfare programme for the indigent.
but little popular legitimacy. Some politi- The ambition of becoming a middle- His manifesto attempts to break Kenya
cians and citizens actively contemplated income country that feeds her people away from path dependency shaped by
secession. In a bid to restore calm, Uhuru through high-tech agriculture have been its colonial origins. It attempts to right the
and Raila held talks that led to a now infa- replaced by musings on the merits of wrongs of the past and present and to help
mous handshake between the two rivals small-scale subsistence farming and the Kenya leapfrog into an advanced future.
in 2018. The nation exhaled. glorification of low-tech “wheelbarrows”, Kenya is at a crossroads. After decades
No sooner had the ink dried on their which have become the icon and central of betrayed promises, these elections
agreement than a new internecine battle campaign promise of Ruto’s presidential provide another opportunity for citizens
emerged between Uhuru and his deputy bid. to mobilise a movement for a new more
Ruto. The last four years has seen an un- Where Kenyans saw themselves as equal Kenya. We need a politics that
seemly public spat unfold between the beacons leading the rest of the continent aims to transform the degrading, dehu-
president and his newfound ally Raila towards economic nirvana, they are now manising and back-breaking conditions
on the one hand, and Ruto on the other. being sold primitivity and ignorance as under which most of our compatriots live
aspirational. and work. We must reject a politics that
Uhuru and Ruto seeks to perpetuate poverty, disease, and
In their almost decade-long rule, Uhuru The choice facing Kenya ignorance. (
and Ruto have overseen the most cor- This is the backdrop of the August elec- — Anyona is a political economist and
rupt period in Kenya’s history. Levels of tions and how we got here. Once again, public policy advisor in East African.

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I
n March 1991, incumbent US
President George H.W Bush was
riding a crest of popularity that
other politicians then and since
could only ever dream of. Bush
had led America resolutely in
the then-just-ended Gulf War,
routing Iraqi dictator Saddam
Hussein and kicking Iraq out of
Kuwait. As the 1992 US Presi-
dential elections drew near, Bush’s job
approval rating was a staggering 90%.
In comparison, the doddering Joe Biden
today enjoys an approval rating of 36%
with the midterm elections looming.
Bush was up against Bill Clinton, a formi-
dable campaigner whose ability to charm
voters is second only to the untouchable
gifts of Barrack Obama. Clinton needed
to take the attention off Bush’s glittering
war record and pivot to something Bush
had not done so well at – the economy.
The 1990s oil price shock had resulted in a
significant slowdown in economic activity
in the West, and the American economy
had plunged into recession.
Noting this, Clinton’s strategist, James
Carville, came up with a brilliant phrase:
“It’s the economy, stupid.” The phrase
encapsulated the tribulations of the Ameri-
PRIORITISING GOVERNANCE can public who, while happy with Bush for
his Gulf War victory, nevertheless were
To the new
struggling with growing unemployment
and inflation. Clinton went to town with
the slogan, with Bush slow to recognise
the potency of Clinton’s approach. By
president: election time in 1992, Clinton had eaten

away at Bush’s lead, going on to win the
presidency with a landslide.
It’s the graft,

As we draft this article, Kenyan Ferdi-
nand Omanyala has just been knocked
out of the semi-finals of the Men’s 100
metres sprint race at the World Athletics
stupid!
Championships in Eugene, Oregon, USA.
Omanyala’s qualification for the semis was
remarkable, as he took part in the race
barely three hours after touching down in
the US, following a visa hitch that saw him
unable to fly to the US until the evening
BY P E T E R WA N YO N Y I before the actual race. Africa’s fastest man
ran into visa troubles not because he was
slow to apply for his visa – it was because

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of Kenya’s old nemesis, graft: corruption. is available at some price – legally or oth- to clean up their act. They have, predict-
For many years, Kenyan officials have erwise. We have perfected the dastardly ably, ignored him – after all, he is a lame-
used sporting trips abroad as profit- science of corruption, and it is an indicator duck with just a few days left in power.
making junkets, issuing bogus sports of just how bad graft is in Kenya that the It is the incoming president, whoever it
credentials to their families and friends to president himself regularly laments the is, that will have an opportunity to clean
travel abroad at government expense. This extensive corruption in his own office. up Kenya’s corruption. And what an op-
was not a big deal to Western countries portunity it will be.
until some of these bogus sports travellers Imperial presidency Raila Odinga is Kenya’s indefatigable
started absconding while abroad and then Pause and think on that for a bit. Kenya’s anti-corruption fighter. The Old Warrior
filing bogus asylum requests. presidency is imperial. We have concen- has grown soft in his old age, and now sups
Western countries are infamously trated untrammelled power in the presi- with the very people who promote sleaze
process-gridlocked, but their general dency, making it the most coveted office in the country, but there is still a bit of the
subscription to at least an appearance in the land. This is an African thing – we old anti-graft fighter in him. His chosen
of following their own laws means that, love the cult of the Big Man, the Bwana deputy, Martha Karua, is less so: she is
in such cases, they are stuck with the Mkubwa, the Mtukufu Rais. Africans do an ethnic campaigner most of all, seeing
asylum applicants for months or years not like their presidents powerless and in everything an opportunity to advance
while the cases while and wend their way symbolic. We generally do not like small Kikuyu hegemony over government. Her
through immigration panels and courts. things – everything we want is generally Kikuyus-in-power-at-all-costs approach
In most cases, the authorities just give big and out there, and that includes our saw her lock horns with Raila himself in
up and allow the migrant to stay – and political leaders. the aftermath of the 2007 General Election,
this is what Kenyan sports officials have in which Raila clearly won the presidency
been relying on. but Kibaki stole enough votes to secure
But this has taken a sinister new twist, another term in office. That Raila somehow
thanks to our insatiable greed. Kenyan forgave Karua and brought her into his
The inflation rampant in Kenya
officials have now started selling foreign camp might be admirable from the outside,
is due to corruption. We are at
visa slots to bogus “sports people” who but points to worrying compromises that
the point where corruption is
want to move abroad but cannot secure the old man must have made to secure
so much of our lifeblood that
a visa. This, it turns out, is what happened the support of Kenyatta and his Kikuyu
it is almost impossible for the
to delay Omanyala: while the delegation inner circle – what else, one wonders,
economy to survive without it.
of athletes and officials travelling to the has Raila compromised on in this race?
US was thought to be 82, Kenyan officials With Karua at his side, it is obvious that
submitted a list of more than 130 people We see stepping back from anything fairness and fighting corruption is not
to the US Embassy in Nairobi. as a loss, as cowardly and unbecoming – going to be anywhere near the top of a
To ensure that the bogus names on the which is why it is so difficult for Kenyan President Raila’s agenda.
list would be granted visas, the officials at men to retire from employment. Used as William Ruto is a mystery. His fabulous
the Sports Ministry allegedly submitted they are to the spending power that their wealth has raised eyebrows everywhere,
the bogus names first, ensuring they re- regular salaries provide, they are unable and his association with post-election
ceived visas. Omanyala and other athletes to pivot to a life of lowered incomes, and violence in the Rift Valley after the 2007
had their names submitted in a later batch. many do not survive long after retirement. elections – when he was, ironically, sup-
The Americans, having smelt a rat, issued And so, it is with our presidents – we like porting Raila Odinga – has stuck to him
just 82 visas, leaving many genuine athletes them super-powerful, taking the power- like a cursed shadow. I met Ruto in 1992
and unsuspecting officials stranded. It worship to stratospheric new levels. at Kakamega State House, when I was a
eventually took the intervention of senior But, despite all this power, the president high school student caught up in the KANU
government functionaries, like the Sports of Kenya has severally declared that he is campaigns just before that year’s General
Minister, for Omanyala to secure a visa to effectively powerless to end the corrup- Elections. Then, as now, Ruto – at the time
travel to the championships. In the end, tion in his own office. Not the wider sleaze in the company of Cyrus Jirongo – was
Omanyala could not overcome the ravages in government, nor even the graft that handing out cash by the fistful to anyone
of last-minute travel and jet lag, and bowed bedevils the entire country, but just the who would ask. What are the sources of
out in the semis, despite his enormous rot in the Office of the President – Uhuru this cash that Ruto has always had, how
potential at these championships. says he cannot do anything about it. He is does he make it? How can he have so
This story is neither unique nor new. reduced to making ineffective speeches much money to dish out to all comers?
All of us know that, in Kenya, everything and issuing plaintive pleas to the corrupt And what of his invisible running mate,

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PRESIDENTIAL ELECTION
the economy to survive without it.

The unwelcome news for Kenya is that
neither Raila nor Ruto will confront cor-
ruption, for both are beneficiaries of it.
They surround themselves with corrupt
people – and, as the old aphorism goes,
show me your friends and I will show you
your character. The two campaigns are
awash with the proceeds of sleaze, and
it is a brave soul who dares believe that
either of them will bite the hand that
feeds them.
In a perfect world, there would be a third
way, a third candidate not beholden to
corrupt interests and not invested in the
sleazy status quo. This candidate would
reach out to the suffering, downtrodden
average Kenyan, for whom commodity
prices are out of reach and public services
non-existent. This Kenyan does not care
about the tribal affiliations of leaders,
but simply wishes for a roof over her
head, good education for her kids, and
an economy that creates employment.
Anything on top of that – clean run-
A mockup image of a billboard showing graft cases that went viral online in 2017 ning water, available, dependable, and
affordable electricity, and a working
who is accused of having a KANU torturer a level of corruption that is astonishing public transport system – would be a
and would thus do well to remain out of even by Kenyan standards. The Chinese bonus. In that perfect world, this third
the limelight – what is his end of the Ruto stand ready with even more money for candidate would campaign not just against
ticket bargain? Uhuru’s successor, as they bid to enfold the current contenders, but also against
Ruto’s ticket, it appears, should remain Kenya in a Beijing Debt Trap not unlike the system of ujambazi that has raised
a riddle – for if we went digging to find what they visited on Sri Lanka, whose them to be the dual favourites for the
out what it is all about, we might not economy has just collapsed under the presidency. If such a candidate were in
like what we see. And so most Kenyans weight of unsustainable and unpayable the race, there is no doubt that Kenya
contend themselves with Ruto’s rhetoric, debts owed to China. would flock to that ticket.
which does hit all the right notes: he is Which of the two leading presidential But how would the candidate, when
against corruption, he rightly accuses the contenders will stand against corruption elected president, actually fight graft?
president of short-changing him in their and help find a way out of the mess of This is probably quite easy: sack the en-
Faustian Bargain to support each other graft that we find ourselves in? Corrup- tire government, ground the civil service,
for the presidency, and he admirably tion affects everything we do and adds a invite a foreign private corporation to
refuses to air the dirty linen of the Uhuru graft premium to every transaction in the run things for half a year or so, and use
administration in public. A man who, on country, every business decision. We pay that time to set up a new government
the surface, is more sinned against than the price of corruption at the duka, at the from scratch, with those who served in
sinning – the sympathy vote certainly petrol pump, in our bus fares, in our school the old government or civil service, and
goes to him. fees, in our rents and in the unaffordability their families, ineligible to serve. When
But what of Kenya, the prize that these of life in Kenya as a whole. A huge chunk the inevitable outcries against that brutal
two political titans are tussling over? of the inflation that is rampant in Kenya approach are raised, the president would
Kenya is hollowed out by corruption. The is due to corruption – commodity prices respond with the obvious answer: It’s the
vast amounts of money Uhuru borrowed include a bribery element. We are at the graft, stupid! (
from China to underpin his impressive point where corruption is so much of our — The author is an information systems
infrastructure development have bred lifeblood that it is almost impossible for professional.

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COVER STORY
DEFINING FACTORS
Key issues
that define
August poll
BY S P E C I A L CO R R E S P O N D E N T
K
enyans head to the polls
this month amid acute
intra-elite tensions.
President Uhuru Ke-
nyatta has united with
opposition leader Raila
Odinga against the cam-
paign of Deputy Presi-
dent William Ruto, who
is bitterly at odds with
Kenyatta. There are huge political and nizations – for rivalling political elites to legislative contests. As late as mid-2022,
economic interests at stake. commit to accepting election results – and several pieces of electoral legislation
To Deputy President Ruto, the issue using the courts to arbitrate disputes – remained in debate within the chamber,
lies in the Hustler vs. Dynasty paradigm. and agree that the loser will be treated leaving the electoral commission guessing
Those who belong to the dynasty – Uhuru fairly. To safeguard election integrity, for about regulations it has to enact ahead
Kenyatta, Raila Odinga, and Gideon Moi – the first time, the Independent Electoral of the vote.
have regrouped to ensure a Hustler – Wil- and Boundaries Commission is allowing The combination of high intra-elite ten-
liam Ruto – does not ascend to the highest for parallel ballot tabulation by media sions and weak institutions means that the
seat in the land. While this narrative has houses, to help avoid a disputed vote and outcome of the vote may well be contested
garnered impressive capital, it does not the fallout that could come with it. if either of the main candidates rejects
actually explain the fallout between the Kenya’s electoral institutions, mean- official results. While Kenyan institutions
president and his deputy. His detractors while, remain weak, in part because of and civil society organizations remain
pin it down to what they see as the deputy the government’s failure to adopt all the optimistic about a peaceful election, it
president’s – his unchecked ambition, prescriptions of commissions of inquiry is not lost on observers that the broken
lack of humility, and staking his claim that reviewed weeks of election-related relationship between the president and
to the presidency on a Faustian bargain mass violence occurring in 2007 and his deputy – as well as Kenyatta’s deter-
between him and his boss. 2008. In particular, the Independent mination to shape his succession – are
Why does it all matter? Because Kenyan Electoral and Boundaries Commission significant potential threats to peaceful,
elections are often high-stakes affairs, (IEBC) is underfunded and in a state of credible polls.
with politicians mostly out to protect flux. Commissioners only appointed a
both their careers and their significant full-time executive in March, just five Income equality
business interests. months before the polls. Parliament and Bitterness within the electorate about
With the promise of a bitter fight, the president have ignored expert advice income inequality and Kenya’s deterio-
calls have been made – by international that electoral laws should be in place at rating economy runs deep. The high cost
partners, civil society and religious orga- least two years before presidential and of living consistently ranks as a priority

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concern for Kenyans, many of whom ac- 2022 election. In March, Kenya’s Su- ethnic slurs politicians used during the
cuse the government of profligacy during preme Court deemed the bill illegal and 2007-2008 crisis, leaders across the po-
the past decade. Russia’s war in Ukraine unconstitutional, sparking celebrations litical divide, including Odinga and Ruto,
has pushed up global commodity and fuel in the Ruto camp and defiance among swiftly condemned his choice of words.
prices, reversing the benefits of Kenya’s Kenyatta-Odinga allies. Overall, rather than That there is no major Kikuyu candi-
tentative recovery from the COVID-19 bridging divides, the controversial bill led date in the presidential race for the first
pandemic, which obliterated an estimated to fragmentation of political coalitions at time since 1992 may also be helping tamp
two million jobs. These worrying trends the national and local levels. down tensions. Among other things it
come against the backdrop of a high debt has helped dampen public perceptions
burden, with debt service costs consuming Avoiding another crisis of Kikuyu dominance in Kenyan politics
about half of projected revenue in Kenya’s Regional observers view Kenya’s forthcom- and Kikuyu elite control of the economy,
2022-2023 budget. Today, the country ing elections with considerable trepida- which Kenyatta’s opponents exploited to
is grappling with the consequences of tion. Given the country’s position as East whip up grievance in prior elections. In
its longest drought in decades, which Africa’s main transport and commercial a welcome development, rather than
has devastated crops, decimated cattle hub, violence tends to have a ripple appealing to ethnic allegiances, Odinga
herds and left at least 2.8 million people effect across much of the region. Days and Ruto appear to be banking on bag-
in 23 counties in need of food relief. These after elections-related ethnic violence ging cross-ethnic support – Odinga by
factors, and others, potentially make it broke out in January 2008, long queues positioning himself as a mellowed father
easier to mobilise frustrated crowds in the formed at fuel stations in the capitals of figure who could be a safe pair of hands
streets, creating the risk that unemployed landlocked Uganda and Rwanda, which and Ruto by branding himself as a cham-
youth could be recruited into gangs to depend on supplies from the Kenyan port pion of the downtrodden. Moreover,
commit violence during electioneering. of Mombasa. In the eastern Democratic both candidates have chosen Kikuyu
Republic of Congo, which also relies on running mates, making it more difficult
The ignominy of BBI imports passing through Kenya, aid agen- for either to play the anti-Kikuyu card
The Kenyatta-Ruto fallout has dominated cies reported running out of stock. Amid against the other.
the Jubilee administration’s second term, civil war in Ethiopia and the entrenched
with implications for a key goal of the political crisis in Sudan, the region can ill Improving institutions
Kenyatta-Odinga alliance that emerged in afford another surge of unrest, much less Kenyan politics is mostly dominated by
2018 – enactment of the Building Bridges one at the centre of the region’s economic personalities and money rather than
Initiative (BBI). BBI was a proposal to in- and political life. issues. As a result, the country remains
troduce constitutional changes through a Fortunately, Kenya may be well posi- vulnerable to episodes of pre- and post-
referendum in order to expand the Kenyan tioned to dodge this bullet. Crisis Group election violence.
executive and, the proponents claimed, research over the past three years in The IEBC, the institution tasked with
to step away from Kenya’s winner-take- various parts of the country has found running our elections, appears weak
all politics by creating more seats at the little appetite for intercommunal violence. and insufficiently prepared for the polls.
table. Among other things, the bill pro- Society does not seem to be as on edge as it Held back by divisions and foot dragging
posed a new post of prime minister and was in the months before the 2007 and 2013 among commissioners, the electoral
as many as 70 extra seats in parliament. elections. For better or worse, the overall body’s is split on operations, with loyalties
Kenyatta campaigned for the proposal public mood is one of mixed indifference threatening the credibility of the poll. For
for months, labelling the BBI the central and resignation, particularly among young example, the IEBC only named a new CEO
feature of his second-term legislative Kenyans, though the disposition among in March this year, four years after it fell
agenda and presenting it as an effort to the latter is understandably sour. vacant. Funding has also been a problem.
unite the country, but to no avail. Many Moreover, divisive, ethnically laced nar- The commission said it needed close to
Kenyans lost interest in the BBI campaign ratives are not as prevalent as in previous Sh41 billion to organise elections; it had
because they found the particulars of electoral cycles, with a few exceptions. Al- received only a quarter of that amount by
the proposal hard to understand, while though national politicians continue to the end of 2021. In February, the National
persistent rumours that Kenyatta hoped attack one another with barbed comments, Assembly made Sh22 billion available for
to shape his succession through the ini- they have shown a welcome reticence to the August polls, with an additional Sh8
tiative made it largely unpopular. Ruto use hateful rhetoric as a campaign tool. billion. In the meantime, resistance to
staunchly opposed the bill, saying it was In January 2022, when Meru Senator and external support has delayed and limited
little more than a ploy to influence the Ruto ally Mithika Linturi made inflam- efforts by Kenya’s international partners
matory remarks that evoked the kind of to give the IEBC direct assistance.

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COVER STORY
It the midst of all this, a strong perfor- THE WINNING FORMULA

mance by state institutions such as the
judiciary, the IEBC and security forces
will be key in ensuring credible polls and
preventing electoral violence. In particular,
the judiciary has emerged as one of the
What the numbers say
most important and trusted safeguards
of the constitution. It is staffed by strong,
independent judges with a track record BY N L M W R I T E R
of ruling against the executive branch
where warranted. Indeed, in 2017, the
Supreme Court annulled the results of
the presidential election because, the
court determined, it was not conducted
in full conformity with the constitution
and electoral laws. Against this backdrop,
candidates who feel aggrieved by the
electoral process might seek recourse
in the courts with some confidence that
they will receive a fair hearing.
Despite such substantive institutional
changes, Kenya remains highly vulner-
able to episodes of pre- and post-election
violence. The most prominent of this
divide is elite polarisation, which births
ethnic polarisation. The Kenyatta-Ruto
rift has contributed to perceptions that
the security services may not play a
neutral role during the electoral period.
On a number of occasions, officials of
the United Democratic Alliance (UDA),
the party with Ruto on its ticket, have
complained that the security forces tried
to influence campaigning during 2021
by-elections in favour of state-backed
candidates. There are fears this may be
replicated this month, which is dangerous
because both camps hold that neither can
afford defeat. In the same vein, security
forces should maintain strict neutrality
and allow all candidates at the national
and local levels to campaign unhindered.
This high-stakes presidential election
is likely to be one of Kenya’s most closely
contested in recent history. Ensuring that
the vote unfolds peacefully will depend
heavily not just on the performance of
government institutions and civil society
but also on the conduct of political elites
that have dominated Kenya for decades
and hold considerable sway over sup-
porters. (

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I
n June, a ‘Nation’ survey found in 2022. This leaves Raila Odinga with less 2,704,686) of the Mount Kenya ballot in
that a first round win in the than 20 percent (855,074) of the region 2022. Raila Odinga should be happy to
August presidential election can vote to fight for. take home 20 percent (721, 249,) of the
only be achieved if the winner The total number of registered voters Gikuyu, Meru and Embu (GEMA) vote.
gets at least 8.63 million votes, stands at about 3.1 million in the Nyanza In Western Kenya, Raila’s Popularity
assuming a voter turnout of at region – Raila’s stronghold. With a turnout has been waning. In 2017, Raila Odinga got
least 80 per cent. If this month’s rate of 80 percent, Nyanza will have 2,465, 82 percent of the total vote compared to
turnout climbs to the highs of 584 active voters. In 2017, Mr. Odinga got 15 percent for the UhuRuto ticket. Can he
the 2013 polls at 86 per cent, a 76 percent of the Nyanza vote against repeat the same feat in 2022? No way. As
winner will have to garner at Uhuru’s 13.7 percent. If we give him 80 things stand now, Mr. Odinga has already
least 9.511 million. percent of the regional ballot, he will take lost the populous county of Bungoma and
Allies and strategists of both DP Ruto home 1,972,467 votes, compared to Ruto’s is gasping for breath in Kakamega.
and his main challenger Odinga have often 20 percent (493,116). Over the past three years, DP Ruto has
boasted of what they said are numbers to What about the Mount Kenya Region? made significant inroads in the Western
hit the required 50 per cent plus one vote Considering the region has a cumulative region. The Deputy President recently
mark, with both camps having publicly vote of 4.5 million, an 80 percent voter strengthened his rating by embracing
stated a figure of a win with 60 per cent turnout gives us a figure of 3,606,248 to two former critics from the region – the
of the total votes, way above the required work with. Current trends in the region Amani National Congress leader Musalia
margin. signify an overwhelming Ruto win. Apart Mudavadi and Ford Kenya Party Chief,
With the Independent Electoral and from rejecting Uhuru Kenyatta’s decision Moses Wetang’ula. The trio has formed
Boundaries Commission (IEBC) having to support Raila Odinga, Mt. Kenya voters the Kenya (KK) Kwanza super alliance to
closed the voter register at 22,120,458 appear unhappy with the government’s face Mr. Odinga.
voters, the race for a first round win is now inability to curb the worsening economic Currently, the total number of voters
on, with both camps crunching numbers situation in the area. Everybody you talk in the Western counties stands at 2.1
to determine where they need to whip out to – vegetable and fruit vendors, farm- million. A voter turnout of 80 percent in
voters to cast their ballot and where they ers, business people, public transport the region translates into 1,757,356 active
need to put more emphasis in the battle- operators and artisans – seems to raise electors. In my estimation, the Western
grounds to tilt the race in their favour. a complaint or two about the Uhuru ad- enclave will narrowly favour Raila Odinga
Assuming the Ruto and Odinga per- ministration. with 54 percent (948,972) against Rutos’s
ceived strongholds remain intact, the 46 percent (808,383).
race will be won or lost in the counties At the Coast, DP Ruto and Mr. Odinga
identified as battlegrounds. will be fighting to control over 1.9 million
Beyond their campaigns and manifes- A ‘Nation’ survey in June found votes. Again, working with the 80 percent
tos, the winner of the Presidential polls that a first round win in the criterion, 1,562,022 active coastal voters
will be determined by a candidate who August presidential election can will be involved in August. In 2017, the
commands support in regions that have only be achieved if the winner UhuRuto ticket got 31.6 percent of the
a high concentration of voters. According gets at least 8.63 million votes, votes compared to Raila’s 66 percent.
to the latest figures from the Independent assuming a voter turnout of at Considering the amount of work DP Ruto
Electoral Boundaries Commission (IEBC), least 80 per cent. If this month’s has already done in the region, Raila’s
the Rift Valley counties have a cumulative turnout climbs to the highs of margins will decrease to 51 percent (
voter density of over 5.3 million. the 2013 polls at 86 per cent, a about 796,631) to Ruto’s 46 percent(
Who, between Raila Odinga and William winner will have to garner at about 718,530).
Ruto, will take this vote? In the Northern counties (Isiolo, Ga-
least 9.511 million.
Assuming the voter turnout in the rissa, Mandera, Marsabit, Moyale, and
region is roughly 80 percent, there will Wajir), Ruto will most likely carry the day.
be 4,275,373 active electors in Ruto’s Unfortunately for Raila, the Mount The present voter registration status is
stronghold. In the 2017 presidential polls, Kenya voters seem to be persuaded, DP 866,006. The 80 percent conversation
the UhuRuto ticket garnered 66 percent Ruto’s Bottom-up economic approach leaves us with 692,804 electors to consider.
of the votes in this region as opposed to would tackle the region’s problems. In In 2017, the UhuRuto duo garnered 63 per-
Raila’s 27 percent. Barring any last-minute 2017, the Mt. Kenya counties gave Uhuru cent of the total vote as opposed to Raila’s
surprises, Dr. Ruto will sweep over 80 94 percent of the votes. In my estimation, 30 percent. In 2022, Ruto is projected to
percent (3,420,298) of the Rift Valley ballot DP will comfortably win 75 percent (or get 65 percent( 450,322) of the votes to

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COVER STORY
35 percent (303,102) for Raila. USING LAW FOR POLITICAL GOALS

The counties of the Kamba region –
Whoever wins must

Kitui, Machakos and Makueni – have a
total vote count of 1,697,003). Out of this
number only,1,357,602 – representing
avoid Putin-style
80 percent of the total tally – might be
involved. In 2017, Raila got 83 percent of
the total vote opposed to 14.3 percent for
UhuRuto. Considering the numerous cam-
paign rallies Ruto has already conducted
in this area, the Deputy President will get
rule of law
40 percent (543,040) compared to Raila’s
60 percent (814,561).
Without a doubt, we will witness the BY KA BA KUA M B O G O R I
most bruising battle between the two
candidates in Nairobi. The capital city
has 2,505,190 registered voters. If Nairobi
records a voter turnout of 80 percent,
then only 2,004,152 voters will be active.
In 2017, the UhuRuto duo got 48.5 percent
of the vote compared to 50.85 for Raila.
Will the situation change much in 2022?
I don’t think so. It is crucial to note that
most Nairobi voters have a rural ancestry.
Often, they vote with this variable in mind,
and 2022 will not be an exception.
Nobody can wish away the ethnic factor
in Nairobi politics. As it appears now, the
Kamba, Luo, and Kisii voters in Nairobi
might go with Raila. But the Northern
groups, the Mt. Kenya electors, the Luhya
and Rift Valley voters will support DP
Ruto. Consequently, Ruto will most likely
T
take a narrow lead in Nairobi with 52
percent (1,354,159) compared to Raila’s here is a famous quote as- for its efficiency against dissidents
48 percent(1,249,992). sociated with the former and Putin’s political competitors.
The number of registered voters in Peruvian field marshal, Professor Maria Popova has termed
Kenya now stands at about 22 million. diplomat, and politician this skewed use of the law and le-
The 80 percent voter turnout gives us General Óscar Benavides, gal institutions to achieve political
about 18 million active electors. DP Ruto who also served as the goals as “Putin-Style” rule of law.
will get 10.4 million voters from the above 38th President of Peru Alexei Navalny, the Russian main
calculations, representing 57.7 percent of that: “For my friends, ev- opposition leader and the foremost
the total against Raila Odinga’s 7.6 million erything; for my enemies, critic of the Kremlin, has particularly
ballots representing 41.9 percent. the law.” While this was borne the brunt of this flawed sys-
While retaining his grip on both the first uttered in Peru many decades ago, tem of justice. In 2013 Navalny was
Rift Valley and the Mount Kenya region, it is in modern-day Russia where the sentenced to five years in jail for
Ruto will significantly improve Western, twisted philosophy has found its most alleged theft in what many saw as a
at the Coast, Northern Kenya, and the fervent expression. Vladimir Putin, the politically instigated show trial. Most
Ukambani zone. On his part, Raila Odinga ferocious Russian strongman, has de- recently, he was sentenced to 9 years
will still control the Nyanza vote but lose ployed this philosophy against his political in jail for alleged large-scale fraud
significant percentages in Nairobi, at the opponents with considerable success. and contempt. This followed an at-
Coast, Ukambani, and Western. ( The judicial system of Russia is famous tempt at his life where the Kremlin

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is suspected to have poisoned him using panel for selecting the inspector general and other political misfortunes that the
a lethal nerve agent. Fortunately, he sur- and two deputies. This was a shameful DP has suffered lately, inspired the gov-
vived the scare after medical attention in a subversion of the letter and intent of the ernance pillar of the Kenya Kwanza mani-
German hospital. constitution. This step was the original festo. These concerns are well captured on
The use of law and legal institutions to sin in the journey toward a politicized pages 57-61 of the manifesto. If elected to
fulfil political objectives is not unique to criminal justice system. power, Ruto promises, among other things,
Russia. It is an urge that is near irresistible When you staff the police leadership to finance the independent institutions
in emerging democracies. The rule of law as with the cronies of the president, you deny and enhance their technical capacity;
a political-legal philosophy simply means the institution the necessary legitimacy to adopt human rights approach in the war
a durable system of laws, institutions, drive the criminal justice agenda. Not to on terror; enhance the independence of
norms, and societal commitment that forget that the head of public prosecutions EACC and the police to end their reliance
delivers accountability, legal stability, open is also a presidential appointee. While on the Office of the President; entrench
government, and accessible and impartial the constitution has placed a textual the independence of the Judiciary by
justice. When a country adheres to the requirement for parliamentary approval operationalizing the Judiciary Fund; ap-
ideals of rule of law, justice is delivered of the DPP, experience shows that parlia- point all judges nominated by the Judicial
in a timely manner by competent, ethical, mentary approval processes in Kenya are Service Commission (JSC) to the Court
independent and neutral institutions that nothing but a mere rubber stamp of the of Appeal within seven days; establish
are detached from the politics of the day. president’s wishes. a quasi-judicial public inquiry into state
The criminal justice system is effective, After the political fallout between the capture; transfer all devolved functions to
timely, impartial, adheres to due process, president and his deputy, there has been counties, and transfer shareable revenue
upholds the rights of the accused, and is a hue and cry from the deputy president’s to counties in a timely manner.
free of corruption and improper govern- side of the divide that the president has Many people have genuine concerns
ment influence. deployed the criminal justice system to about the DP’s commitment to stick to the
In Kenya, old habits die hard. The 2010 unfairly haunt DP Ruto’s political allies. lofty promises he makes in the event he
constitution has been hailed as one of the Such allegations are difficult to discount wins the election. These fears are borne
most progressive in the world. One of the when the police, who have the constitu- out of the failure of the Jubilee regime to
constitutions’s most celebrated attributes tional mandate to investigate crime, is at see through most of the promises they
is its unmistakable attempt to introduce a the beck and call of the executive. An ap- had made prior to their election into
novel system of checking power through proach to criminal punishment inspired by office in 2013. The promise of computer
an array of independent institutions that political motives is stark with innumerable tablets to school-going children and sports
are domiciled outside the traditional dangers. In a fragile country like Kenya stadia have frequently been cited as two
three arms of government. To ensure an where the tribe is the fulcrum on which examples. While the DP has tried to dis-
effective and impartial criminal justice political activity turns, perceptions of bias sociate himself from this Jubilee baggage,
system, the drafters attempted to place in criminal prosecutions undermine the it appears the eloquence and the emphatic
the investigative and prosecutorial powers broader goal of accountability. manner in which these promises were
beyond the reach of political influences. In recent times, the manner in which made have left an indelible memory in the
Yet, the Jubilee regime, upon its ascent to the DCI and the DPP have discharged minds of his detractors, who are happily
power in 2013, embarked on a mission to their respective mandates has left little using the same to discredit him. Still, DP
dilute the clear intent of the constitution doubt that the two officers have become Ruto’s unique ability to articulate issues
with respect to the independence of the hatchet men for the president’s political in a manner accessible to the elector-
Kenya police. The Constitution sets up a agenda. It is undeniable that throughout ate is undeniable and might come to
Police Commission to oversee the staffing this campaign season, DP Ruto has really his rescue.
of the police service. The Commission is struggled to attract overt support from All opinion polls carried out so far
supposed to recruit and appoint persons especially the County Governors for fear point to a two-horse race between the
to hold or act in offices in the National (by the Governors) of retribution from the DP and former Premier Raila Odinga. It is
Police service. To retain the indepen- state. Such selective and unfair application expected that one of them will be presi-
dence of the service, the commission of the law is antithetical to governance dent. Whoever becomes the president
should ideally interview and recommend based on rule of law. Similarly, selective has a singular duty to ensure that the
candidates for top police jobs. In 2014 the targeting of political opponents in an elec- criminal justice system is not activated
government introduced amendments to tion year may raise issues of fairness of against their political opponents. Kenya
the National Police Service Act that intro- the electoral process. should avoid “Putin-Style” rule of law by
duced a President’s representative in the It would appear that this state of affairs, all means. (

August 2022 • 59
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Business
FOLLOW US:
Smartphone penetration along with low data tariffs

and investments will supercharge Africa’s telecoms
POLICY • REAL ESTATE • sector over the next five years
ECONOMY • COMPANIES •
INDUSTRY • STOCKS • M&A NEW PACT
Telecommunications
GOOD
MONTH
BAD
MONTH expected to drive
FOR... FOR... Africa’s post-
pandemic economy
BY S E T H O N YA N G O “The expansion of telecoms
S
across the African continent
enior executives in is central to driving economic
BAT Kenya Kenya Airways Africa forecast the growth and senior business
The manufacturer has The airline has sus-
reported an 8.4% net pended the sale of strongest growth executives clearly agree as
profit growth in the tickets from London in the telcos sector they rank it well ahead of other
half-year ended June, to Nairobi, following a as internet connectivity im- major sectors of the economy,”
as a result of higher directive by Heathrow proves, a new study by the says Micky Watkins, CEO of
sales. Airport instructing network operator, World Mo- World Mobile.
airlines to freeze out-
bound bookings until bile shows. “To a great extent, growth in
September. Those polled expect tele- telecoms spurs growth in other
communications to exert a sectors as societies become
strong influence on economic more digital and technology-
STOCK EXCHANGE growth rates in Africa where

pandemic-impacted digital
focused and that applies very
much to financial services,
markets are heating up. healthcare, retail, and educa-
Those interviewed include tion.”
D D executives at firms with com-
NSE 20 NASI bined annual revenues of more
1,671.38 pts 138.52 pts than Sh800 billion, based in
75%
Nigeria, Angola, South Africa,
Tanzania, Botswana, Camer-
oon, Ethiopia and Ghana.
According to them, telecom- The telcoms sector's
STOCK OF munications will register the
strongest performance (75 per
expected performance.
THE MONTH cent), healthcare (61 per cent)

and tourism (44 per cent).
Limuru Tea Plc
Sh1.4t
Other sectors expected to
witness growth are financial
Sh420.00 services (36 percent), retail

(36 percent), manufacturing
Expected investment in
+ Sh65.00 (+18.31%) (22 percent) and education the Middle Eastern data
(22 percent). centre by 2027.

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INTERNET ECONOMY
World Mobile’s forecasts came after The growth of the internet economy globally.
research by the International Finance (IFC) also comes against the backdrop of rapid In 2011 the level of financial inclusion
showed that Africa’s internet economy adoption of mobile money systems on in Africa was just over 23 per cent and
could grow 56 per cent to Sh21 trillion in the continent. jumped to almost 43 per cent in 2017,
gross merchandise value by 2025. Approximately 144 mobile money pro- buoyed by the growth of digital financial
This will be fuelled by paperless retail viders operate in Africa, with companies services. The figure is expected to be
transactions on the continent, which are such as M-Pesa, MoMo and Orange Money much higher today.
expected to continue to rise in the post- accounting for a significant share of the Last year, telco operator MTN, signed
pandemic era. market. a partnership deal with Flutterwave to
Projected growth in Africa’s telecom- M-Pesa, managed by Vodafone and Sa- enable businesses in Cameroon, Côte
munications sector and by extension in- faricom and operating in seven countries, d’Ivoire, Rwanda, Uganda and Zambia
ternet economy could explain the startup has seen significant growth in recent years. to make cash transfers via MTN Mobile
funding “frenzy” through 2020, 2021 and The service attracted an additional 12 Money (MoMo).
the first half of 2022. million users from 2017 to 2020, reach- This digital move is also primed to plug
'Africa: The Big Deal' figures show starting 41.5 million users by 2020, according millions of unbanked people in those coun-
ups in Africa have raised more than 3 to Statista. tries into mainstream financial services
billion US dollars in the first half of 2022 M-Pesa users made 12.2 billion transac- and prop up businesses especially those
and recorded their strongest June, Q2 tions in 2020, generating 784 million US in remote areas.
and H1, ever. dollars in revenue for parent company Africa is expected to attract billions
World Mobile’s report showed there Safaricom. MoMo – MTN Group’s mobile worth of investments into its data centre
will be around 120 million new mobile money offering – has enjoyed similar market on the back of the continent’s
subscribers by 2025 on the continent, growth, reaching 35.1 million active cus- growing internet economy.
taking the total to Sh73 billion, up from tomers in March 2020.” New figures show Africa and the Middle
Sh58 billion in 2020. International Monetary Fund (IMF) Eastern data centre market recorded
Also fuelling the growth of Africa’s estimates show Africa has more digital Sh776 billion in investments in 2021 and
digital economy is the proliferation of financial services users than any other will attract an additional Sh1.4 trillion by
entry-level internet-enabled handsets region in the world, accounting for nearly 2027, half of which will be spent on the
that cost Sh3,300 or less. half of the 700 million individual users continent. ( (Bird)

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Business
The existing 175km A8 road from Rironi to Mau
Summit will be transformed into a four-lane sovereign operation lending window,
carriageway forms part of a DFI tranche to Rift Valley
Highways Limited – a Special Purpose
Vehicle incorporated in Kenya and wholly
TRANSPORT owned by VINCI group and Meridiam
AfDB approves $150

Infrastructure Africa Fund. In September
2020, Rift Valley Highways entered into a
PPP concession agreement with the Kenya
million for Nairobi-

National Highways Authority (KeNHA) to
design, build, finance, operate, maintain
Nakuru-Mau Summit
and transfer the two highways over a
period of 30-years.
The project aligns with the aspirations
Highway Project
of Kenya’s Vision 2030 and national strat-
egy to support industrialization through
infrastructure development. It also aligns
with the Bank priorities for infrastructure
in its Ten-Year Strategy (2013–2022) and
three of its High 5 priorities: Integrate
Africa, Industrialize Africa and Improve
the quality of life for the People of Africa.
This is the first PPP project to be ap-
proved by the Board under the Bank’s
recently established PPP Framework.
Bank Acting Senior Director for the In-
frastructure and Urban Development
Department, Mike Salawou said that
“tolling and concessioning of major trade
corridors across the African continent is
on the rise as the need for connectivity and
integration is amplified by the AfCFTA and
the need for alternative financing sources
through PPPs, to ensure the sustainability
and reliability of trade corridors.
Nnenna Nwabufo, Director General
for the Bank’s East Africa Region said:
“One major plus is that this project will
T
improve the extremely poor safety record
he African Development Bank a period of 30 years. of the highway which has been identified
Group has approved financing Both roads are major routes stretching as one of the most accident-prone in
of Sh17.8 billion to Kenya to across the most densely populated parts of Kenya. In addition, direct development
support a major highway devel- the country, beginning in Nairobi, Kenya’s outcomes expected from the project in-
opment project under the government’s capital and commercial nerve centre, clude increased productivity, commercial
First Mover Public-Private Partnership and traverse several counties in Nakuru efficiencies, and time and cost savings.
(PPP) programme. and Kiambu, agricultural zones, wildlife Ultimately this should support economic
The project will see the development reserves and tourism centres. The roads growth and increase the quality of life of
of the A8 and A8 South highways. The also form part of the strategic “Northern the people. “
existing 175km A8 road from Rironi to Corridor” which is the busiest trade and The project is expected to generate
Mau Summit will be transformed into a transport corridor in East Africa, provid- 1,500 jobs during construction and 200
four-lane carriageway and the 57.8 km ing gateway access to Kenya’s landlocked during operation and has at least 40%
two-lane A8 South, from Rironi to Naivasha neighbouring countries. local content in the form of labour and
will be strengthened and maintained over The loan from the Bank Group’s non- locally sourced materials. (

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INFRASTRUCTURE & ENERGY
Africa’s natural gas resources are an opportunity to
speed up its energy transition, reduce emissions and Health Organization has linked millions
deforestation and address energy security of deaths in rural Africa to indoor emis-
sions resulting from the continued and
increased use of biomass. In this regard,
INVESTMENT countries such as Nigeria, Malawi, Ivory
Exploiting Africa’s
Coast, Kenya, Uganda and Zimbabwe,
where biomass use is particularly high
due to limited access to reliable electric-
gas key to solving

ity, could expand the exploitation of
liquefied petroleum gas (LPG) to ensure
deforestation,
clean cooking for the population while
also improving energy access.
There are over 600 million Africans
emissions and energy

living in energy poverty, expanding the
continent’s gas market will help acceler-
ate electrification while reducing stress
security gaps on the national grid. South Africa has

taken a bold move in this regard with
the government recently approving the
Department of Mineral Resources and
Energy’s LPG Rollout Strategy, designed
to leverage LPG to diversify the energy
mix for energy security, affordability and
decarbonization reasons. With Africa seek-
ing to achieve universal access to energy,
the continued reliance on wood-based
biomass remains a threat to improving
energy access.
Furthermore, with the reliance on bio-
mass, the continent’s industrialisation
and economic growth is limited. Biomass
represents an inadequate energy resource
to power industry, hence, the need for
Africa to prioritize the development and
expansion of its gas market to fuel its
industries while improving energy access
and championing its climate stewardship
is clear, now more than ever.
According to the Africa Energy chamber,
“With the increased use of natural gas,
the African continent is well positioned
to achieve energy independence, secu-
D
rity and decarbonization targets at the
espite having 620 trillion cubic and exploited, the continent’s natural gas same time reducing emissions and the
feet of natural gas reserves, resources present an opportunity for Af- destruction of our forests. Africa needs
Africa’s over reliance on wood- rica to address environmental destruction, to come up with new ways to fund and
based biomass energy remains ensure clean cooking gas for its population fast-track the exploitation of its gas re-
high, resulting in an increase in land deg- while also guaranteeing energy security sources to achieve this. Not only will gas
radation, deforestation and greenhouse and economic growth. help reduce emissions but also provides
gas emissions, and with over 900 million With over 81% of households in sub- African governments with much-needed
people across the continent living without Saharan Africa relying on wood-based GDP to fund the growth of the overall
access to clean cooking. If fully optimized biomass energy for cooking, the World economy.” (

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Business
A three-month reduction in global food prices for
Wheat, Oil and Sugar raises hope to African countries vests, improved crop conditions in some
hit by skyrocketing inflation. major wheat producing countries, and
higher production prospects in the Rus-
sian Federation have all seen the price
of that commodity fall by 5.7 percent in
June - compared to a 4.1 percent drop
recorded for all cereals.
This is a big reprieve for Somalia, Benin
and Egypt, among Africa’s 25 wheat import-
dependent economies. Imports had come
largely from Ukraine and Russia. Accord-
ing to the International Monetary Fund,
imports make up as much as 85 percent
of wheat supplies in some parts of Africa.
United Nations Conference on Trade
and Development(UNCTAD) data shows
between 2018 and 2020, Africa imported
3.7 billion US dollars’ worth of wheat. Of
that, 1.4 billion US dollars’ worth came
COMMODITY PRICES from Ukraine. 32 percent came from the
Decrease in living
Russian Federation.
The sugar price index has followed a
similar trend, falling by 2.6 percent in
cost signals inflation

June- its second consecutive slump.
Despite the drops prices remain high
reprieve
compared to a similar period in 2021 and
prices will have to fall a lot further to re-
sult in a significant easing of inflationary
pressures. Overall, the food price index
remained high, at 154.2 percent - driven
by rise in milk and dairy prices.
BY CO N R A D O N YA N G O Similarly, reduced import demand oc- “The factors that drove global prices high
G
casioned by the rising cost of cooking oil, in the first place are still at play, especially
lobal prices of wheat, vegetable the organisation said, is resulting in lower a strong global demand, adverse weather
oil and sugar have seen month- prices for world sunflower and soy oils. in some major countries, high production
on-month drops since March, The lifting of a three-week export ban and transportation costs, and supply chain
signalling an easing in the cost by Indonesia, the world’s largest palm oil disruptions due to COVID-19, compounded
of living in many African countries. producer, has also helped to ease cost of by the uncertainties stemming from the
Vegetable oil showed the clearest drop vegetable oil in Africa and other interna- ongoing war in Ukraine,” said Máximo
of the three commodities over the review tional markets. Torero Cullen, FAO Chief Economist.
period. The falling international prices signal In a large part of Africa, food prices ac-
The latest United Nations Food and prospects for lower domestic prices and count for about 40 percent of consumer
Agriculture Organization’s (FAO) food an increase in demand by local industry. spending, highlighting the strain experi-
price index showing edible oil prices fell by Lack of raw materials and high forex enced currently by most households on
15.9 percent from March to an average of exchange have been linked to high cook- the continent.
211.8 points in June, on rising production ing oil prices in many countries on the The IMF sees inflation remain-
and supply volumes. continent. Many households have been ing elevated in Africa, through 2022.
“World palm oil prices declined on sea- hurt and some manufacturers, such as Ke- Inflation rates – last seen this high in
sonally rising output of major producing nyan edible-oil producers Pwani Oil and 2008 – were largely driven by Sudan
countries and prospects of increasing Kapa Oil Refineries, were forced to tem- which has the highest inflation rate –
supplies from Indonesia,” according to porarily halt operations in June. at 245 percent – in Africa according to
the FAO index. Seasonal availability from new har- Statista (. (Bird)

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MONEY & MARKETS
Climate change mitigation efforts in Kenya have received
new impetus after the NSE inked a deal to set up Kenya’s Emissions trading is a market instru-
first carbon offset exchange. ment for reducing emissions of CO2 and
other greenhouse gases.
INNOVATIVE FINANCING Businesses that cut their emissions can
Kenyan bourse brings

sell their excess carbon credits to other
firms whose emissions have increased,
thus commoditising carbon and creating
carbon exchange to
a market.
Kenya is looking to attract more than
East Africa
$2 billion worth of investments through
the NIFC over the next eight years, with
Nairobi now joining Casablanca (Morocco),
Cape Town (South Africa), and Port Louis
(Mauritius), and Johannesburg as IFCs on
the continent.
NIFC CEO Oscar Njuguna has said he is
upbeat about the potential for the carbon
exchange to spur climate finance in Ke-
nya by establishing a locally accessible
marketplace for carbon offsets.
In Kenya, the companies lining up
to utilize the carbon exchange include
power generator KenGen, Koko Networks,
Mumias, and other smaller companies
and farmers.
“Investments in clean green infrastruc-
ture are fundamental to Kenya’s continued
prosperity and growth,” said Jane Marriott
OBE, British High Commissioner to Kenya.
ACX securitizes carbon credits around
market demand, allowing traders to gain
exposure to an asset class as opposed
to individual projects. Every token is
backed by one tonne of CO2 equiva-
NSE CEO Geoffrey Odundo, Nairobi International Financial Centre CEO, Oscar Njuguna and lent (tCO2e) and the credit sits in the
AirCarbon Exchange , President & COO, Middle East/Africa Kevin B. Iwanaga during the MoU Exchange’s Trust.
signing between Nairobi International Financial Centre and Air Carbon Exchange.
The Capital Market’s Authority chair
Nick Nesbit told Business Hub the move
BY S E T H O N YA N G O trust, a corresponding one-tonne token was an opportunity to grow trust in the
A
resides on the exchange. market and to build a culture of ESG
CX will develop the carbon A green portfolio at the NSE will create (Environmental and Social Governance)
exchange platform as part of an investment value chain across Kenya’s amongst regional companies.
innovative financing to shore overall financial ecosystem to support “We are driving trust utilising technol-
up environmental projects, climate change mitigating projects. ogy and trying to ensure really robust
including reforestation and land restora- “The NSE is today signing a collaboration mechanisms to ensure that businesses
tion, according to the Nairobi Securities agreement with the Nairobi International abide by ESG in Kenya,” he said.
Exchange (NSE). Finance Centre (NIFC) and AirCarbon Kenya is among the top providers of
The Singaporean firm securitizes carbon Exchange Limited. This will lead up to the climate finance in Africa alongside South
credits into tradable carbon asset classes, exploration and formation of the emissions Africa and Nigeria. The country’s first-
thereafter carbon credits held by the trading platform in the overall financial ever green bonds were issued by Acorn
exchange are held in a trust. ecosystem in Kenya,” the NSE said on the Holdings in 2019. That issue was over-
For every credit deposited into the side-lines of the launch of NIFC. subscribed. (

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Business
With such vast quantities of oil and gas available, African ple of the new discoveries being made
governments need to increase our production accordingly all over Africa. Eni discovered the
and use those resources to benefit Africans. Baleine field in Cote d’Ivoire last year,
which contains as many as 2 billion
ENERGY barrels of recoverable oil and nearly 2
2022 is turning out to

trillion cubic feet of gas offshore. This is
a big deal for Côte d’Ivoire, which up until
now has been producing about 34,000
be a banner year for

barrels of crude per day from four blocks.
In Angola, TotalEnergies is drilling for
African oil & gas

the first time since 2018 and has executed
a sale and purchase agreement with state-
owned Sonangol for two blocks in the
Kwanza Basin offshore. Other majors,
including ExxonMobil, Chevron, BP, and
Shell’s Graff and Total Eni, are active in Angola as well.
Energies’ Venus-1X, have More than a dozen high-impact wells are
opened frontier oil play
onshore in Namibia. predicted in the next 18 months in Libya,
Ghana, Mozambique, South Africa,
Equatorial Guinea, Morocco, Egypt, and
others. Egypt alone has awarded eight oil
and gas exploration blocks to Eni, BP, Apex
International, Energean, United Energy,
Enap Sipetrol, and INA.
And after long delays because of COVID,
licensing rounds are planned, open, or
under evaluation in more than a dozen
countries including Angola, Equatorial
Guinea, Ghana, Gabon, and Congo. The
results are expected to be announced
this year.
Higher greenfield spending is also
forecast as more projects get the green
light. In Kenya, for example, large
investments are expected in the greenfield
BY N J AY U K barrels of recoverable oil, making it Sub- onshore development of Tullow’s South
A
Saharan Africa’s largest-ever oil discovery. Lokichar basin, Turkana County. At an
fter the dramatic post-COVID Namibia, in fact, has led the estimated 585 billion barrels, this is widely
slowdown in 2020-21, 2022 way in new oil and gas activity this year considered one of the last big conventional
is turning out to be a banner and is emerging as an exploration hot onshore projects in the world.
year for the African oil and gas spot. In northeast Namibia and northwest These discoveries and others refer-
industry. The industry is set to boom in the Botswana, ReconAfrica has licensed enced in the Chamber’s Q2 2022 report
second half of this year. operations for the newly discovered are tremendously exciting. And if we
Increasing oil and gas activity and a 8.5-million-acre Kavango Basin, one of the manage them properly, we can make
record number of new discoveries have world’s largest onshore undeveloped
set the stage for significant industry basins.
growth in the second half of 2022. This is great news for our industry, which
585
In Namibia alone, for example, two was hit especially hard by COVID and has
breakthrough discoveries, Shell’s Graff struggled to regain momentum. The energy
and Total Energies’ Venus-1X, have sector was crippled by historically low
opened frontier oil play onshore. Industry volumes in 2020 and 2021, creating an even Barrels, in billions, of crude oil
experts estimate that Venus-1X may hold more critical need for new exploration. reserves in Lokichar, Turkana
recoverable resources of some 3 billion And Namibia is just one exam- County in Kenya.

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INDUSTRY
significant progress toward our goal of a The private sector continues to pick up the slack as
just energy transition: alleviating energy different organizations integrate technology in the sector.
poverty, stimulating economic growth, and
improving the lives of everyday Africans.
The environmental activists may be HEALTH TECH
Kenya’s AfyaRekod
up in arms, insisting that we leave the oil
and gas where it is and forsake all hydr
ocarbons in favor of renewable energy.
launches blockchain
Obviously, we recognize the tremendous
opportunities that renewable energies
patient portal to
represent for African nations, and we
are taking decisive steps to leverage
those opportunities. But there are huge
manage health data

challenges associated with prematurely
abandoning fossil fuels. For Africa to grow
and diversify its economy, build capacity,
and establish its rightful place as a global
energy hub, we must fully utilize our oil
and gas.
This doesn’t mean ignoring renewable
energy and making climate change a
low priority. It doesn’t mean only using
fossil fuels. Instead, it means using
those resources to pave the way for
universal electrification and phasing
renewables in over time. It means starting
with fossil fuels and looking for ways to
strike a balance — creating a new template
for energy transition success.
The simple, staggering fact that more
than half of Sub-Saharan Africans lack
access to electricity means that our BY A N TO N Y M U T U N GA medical professionals to have real time
T
priority must continue to be ending access to their medical data and history.
energy poverty. With Africa’s population he Covid pandemic presented Not only will this ensure medical record
projected to exceed two billion by 2040, a clear picture of how Africa’s management is efficient, while ensuring
our generation capacity will need to be healthcare system continues to timely access to information in case of
doubled by 2030 and multiplied fivefold lag behind. During an election- any information.
by 2050. eering year, healthcare ought to be among Medical records are crucial for medical
Oil and gas are Africa’s lifeblood and the top agenda for those looking to form professionals to identify a patient’s past
the foundation for our economic de- government. The Jubilee government problems and medical information, its
velopment. Our future depends on sus- made lofty promises for health in 2013 and only through these records, that the right
taining the longevity of our industry. again in 2017 but not much has changed. and most accurate course of treatment
And with such vast quantities of oil and The private sector continues to pick can be given.
gas available, we should increase our up the slack as different organizations AfyaRekod CEO John Kamara created
production accordingly and use those integrate technology in the sector. An ex- an AI platform to track health data, aimed
resources to benefit Africans. ample of these organizations is AfyaRekod, at bridging the gap between health care
Africa’s wealth of new oil discoveries is a Kenyan bashed healthcare technology and treatment, anywhere, anytime for
not only a chance to recover some of the company. The company has launched a patients, medical professionals, providers
devastating losses we’ve suffered in the last fully automated universal patient portal and organisations. According to Kamara,
two years — it represents an opportunity that looks to transform the face of patient the capture and storage of accurate data
to achieve an energy transition that care across Africa and the entire world. across every possible level of health infra-
benefits all Africans. It’s our responsibility The platform, which uses blockchain structures is a core problem around the
to make the most of it. . ( technology, will allow patients and their world and especially in Africa.

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Business
“Bringing real time access to data that As Asia has shown, state ownership is not the problem; it’s
captures the mobility of health records how these entities are run — and whether they operate
was the solution. Our tool now allows along commercial principles or as redistribution agents.
patients to create a portal with all their
health data and most importantly gives AFRICA’S EXTERNAL RELATIONS
The tips of the

patients sovereign rights of ownership of
their data. The patient logs in and sees all
their information, from every healthcare
butterfly: Linking
provider they have interacted with. The
power of patients owning their health re-
East Asia and Africa

cords and having real time access to their
information is lifesaving, and it is their
right to have access to it,” said Kamara.
Medical misdiagnosis is a major prob-
lem even in developed countries. The
2015 IOM report showed that around 12 BY G R E G M I L L S & M A R I E - N O E L L E prospects of employment for burgeoning
million people were misdiagnosed that N WO KO LO urban populations.
I
years, with less developed countries and The transformation started with Japan
emerging economies being at the most n the late 1990s, South Africa’s then- after World War II, when it redirected its
risk. However, with the blockchain solu- Trade and Industry Minister Alec industrial prowess towards consumer
tion, these regions have an opportunity Erwin likened the country’s trade manufacturing rather than imperialist
to improve medical record management. strategy to a “butterfly,” accord- ambition. Then followed the “Asian Tigers”,
The AfyaRekod universal patient por- ing to which the thorax ran north-south as South Korea similarly transformed
tal will include a consolidated mobile to Europe and North America, while the itself from the debris of the Korean War.
data health passport that allows patients “wings” oriented west-east were to link Between 1962 and 1989, the Taiwanese
consistent access to their health-records, Africa with Latin America and Asia. economy grew at nearly 10 percent each
as well as access to a marketplace of Erwin’s concept promised much then, year.
various services within the healthcare as now, for a diversification effort, but so The same happened in Singapore be-
ecosystem in real-time. It will offer a se- far has delivered less. Still, there is much tween 1967 and 1993. And so followed
cure decentralised, intelligent telehealth to gain from closer regional ties, in at least others. Now, the 620 million-person,
solution, healthcare resources, symptom two respects. 10-country ASEAN (Association of South
trackers, reminders and notifications, as The first of these is underscored by the East Asian Nations) grouping1 has seen its
well as the mobility of the record across growth and nature of economic relations. average Human Development Indicator
multiple channels and devices. And even While trade relations between Africa improve from 0.543 to 0.719 between
though it will be open to all people, it will and Asia have burgeoned, they remain 1990 and 2018, reflecting the region’s
be especially useful to those with chronic lopsided; Africa is primarily a source of impressive improvements in both the
illnesses, pregnant women and those with raw commodities, Asia an exporter of expectancy and quality of life.
hereditary diseases. finished products. This result speaks to Then along came China. The sheer scale
The platform will not only be useful to the relative development and diversifica- of its population coupled with an average
patients but doctors as well as it will offer tion experience of the two regions over of nearly 10 percent annual growth has
an electronic health management system the last 60 years. been responsible for three-quarters of
with digital tools to manage all key aspects That more than 1 billion people have the global poverty alleviation effect by
of hospital services and clinics. It will also been lifted worldwide out of extreme lifting 680 million people out of misery,
include other functionalities such as hos- poverty since 1990s is largely due to de- reducing its extreme-poverty rate from
pital management, patient management, velopments in East Asia—and in China 84 percent to just 10 percent in 33 years
knowledge management and inventory in particular. starting from 1980.
management, as well as an AI driven re- The Asia story has lessons—both good As a consequence, over half of the
porting tool that allows organisations to and bad—to share. world’s poorest now live in sub-Saharan
make data driven decisions, predictions Not so long ago, many Asian countries Africa.
and early disease identification. NGO’s found themselves under circumstances The importance of learning from the
and other related organizations can also very similar to much of Africa today: high example of others, and looking forward,
register and manage their beneficiary levels of poverty, commodity dependent, not backwards, are two of the central
groups on the platform. ( political and social instability, and with few lessons from East Asia’s development

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CO-OPERATION
The regions share a parallel on corrup-
tion. Africa’s average ranking in 2018, for
instance, on Transparency International’s
Corruption Perceptions Index is 32/100;
ASEAN scores 42/100 (the world average
is 43, with higher scores indicating better
governance).
The difference in development results
between the regions does not originate
either in political systems, even though
for some, East Asia’s development success
has been used to justify authoritarianism,
given that the region’s economies have
managed high economic growth rates
without full political rights.
Rather, a lot of East Asia’s success has
been down to leadership, policy style, and
governance substance.
Key aspects of Asia’s relative economic
success—including high spending on
education, bureaucratic responsiveness,
attractive policy for business investment,
low wages, high productivity, investment in
revolution. There are others: The premium man capital, yet its states have, by and infrastructure, raised agriculture outputs
of good leadership, rolling out the “basics” large, quickly turned their people into an as an initial spur to growth, and an over-
from agriculture to infrastructure, and the asset through investment in education. whelming focus on competitiveness—are
central importance of openness While Africa’s institutional capacity routinely overlooked by advocates for
Despite the obvious differences, Africa is cited as a structural developmental autocracies.
and Asia share many similarities: In fact, impediment, some countries in South- Those East Asian states that attempted
East Asia seemed to have very few ad- east Asia have grown economically with centrally planned economic develop-
vantages over Africa at the point of institutions at independence far worse ment were a catastrophe, just as the
decolonization. resourced than those in African countries. model has, too, proven a disaster in the
Traditional East Asian societies were of- Few African countries, after all, can claim African countries pursuing this path.
ten characterized by ethnic disunity, frail the bitter cost and damage wrought by Asian countries—e.g., China, Cambodia,
institutions, limited governance outside of the wars in Vietnam, Laos, and Cambodia. Vietnam—that moved away from this
the capital, weak democracy, subsistence Whereas some Asian countries enjoyed model immediately prospered.
agriculture, fragmentary external trade large aid flows (South Korea and Taiwan, Overall, the most notable differentiating
linkages, and acute social stratification for example) and continue to do so (such factor between the regions of Africa and
—conditions prevalent in many African as Vietnam), they did not allow themselves East Asia is in the relationship between
states. Both share a history of commod- to become dependent on this single source government and the private sector. In-
ity and colonial exploitation, where the of income. Most Asian countries have put vestment growth that diversifies the
conquerors were sharply divided from aid to good use, in part because of firmer economies and creates jobs, notably in
the conquered by race, though there was local ownership of projects. industry, in Africa has remained com-
a tendency on the part of the colonizers Similarly, a more conducive policy paratively very low.
to favour some local groups over others. environment also helps to explain why The extent of economic openness, not
East Asia has prospered in spite of this some East Asian countries have used only to trade and capital but also technol-
legacy. While most East Asian countries their significant natural resource en- ogy and the ideas that go with it has been
had to accept a complex ethnic make-up dowments to their advantage (Vietnam, key in these success stories. The figures
as a result of colonial involvement—as did again, or Malaysia, for instance) without are stark. Whereas its population share is
Africa—this situation, in most cases, has becoming overly locked into commodity 18 percent of the global sum of 7.9 billion
not resulted in endemic instability. East production and, hence, vulnerable to price people, Africa today receives an average of
Asia, too, has had to cope with weak hu- fluctuations. around 3 percent of global flows of foreign

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Business
direct investment (FDI). The continent’s ministries—or “troublemaker,” as one government interference rather than
GDP amounts to just under 2.7 percent of former official put it. because of adroit policy.
the worldwide total—a share per capita Still, Japan’s economic transition re- African business is supremely practiced
that has fallen by 50 percent over the mains pertinent to Africa. at circumventing government obstacles,
last 60 years. One priority for Japan’s development rather than relying on government to ca-
Japan’s industrialization was, for ex- spending in Africa is on kaizen—the talyse and nurture good ideas and must
ample, based on three key elements: 1) “continuous improvement” of the work- routinely find workarounds to inefficient
a strong private sector supported by an force. To this end, a Kaizen Institute was infrastructure. The continent gets ahead
education system providing apposite established in Ethiopia in 2013, while the now largely because of the power of en-
skills; 2) a supportive state; and 3) a willing- Japan International Co-operation Agency trepreneurship and not the efficiency of
ness to attract and absorb outside ideas, (JICA) continues to fund seminars, experts, governments.
technology, skills, and capital. training, and other skills improvement Take South Africa’s roll-out of COVID-19
Despite the caricature of a closed society initiatives in Africa as part of its $1 billion vaccines: With the private sector leading,
to outsiders, Japan actively diffused and in annual African aid. This engagement after a slow start (when government tried
internalized the technologies and prac- has accelerated and deepened as Japan to control the process), the country has
tices foreigners left behind. Its spinning has felt marginalized by China’s African now developed a system with the capacity
technology leaned on British technology; ambitions, and Tokyo has learned lessons to vaccinate up to 0.7 percent of the 60
electrical machinery to a relationship with from the effectiveness (or not) of its aid. million population each day. Likewise, the
GE, AEG, and Siemens; the telegraph to Such a focus on skills and education country possesses world-class banking and
French involvement; and shipbuilding is not going to be enough to replicate, or insurance services, and its private mining
to British and U.S. firms. even adapt, the Japanese model. At its sector has long been acknowledged as a
The steel industry was based around core, it will require understanding the global leader.
collaboration between the state-owned nature of business and its needs to see- However, the sinews that keep these
Yamata Iron Works and Germany’s Gute- ing the customer—whether a business or economic muscles flexing, are chronically
hoffnungshutte and, later, between the an individual—as being at the centre of dysfunctional. South Africa’s state-run
Mitsui zaibatsu and Britain’s Armstrong government’s actions. ports languish at the bottom of global,
and Vickers. Japan likewise borrowed and even African, efficiency rankings. Its
car and motorcycle expertise: Isuzu from Learning to trust private sector state electricity systems, which on paper
Wolseley Motors and Nissan from Austin, While no country or region is a complete make up more than half of the continent’s
Toyota from U.S. carmakers, and Mitsubi- analogue to any other, the East Asian ex- generating capacity, are beset by opera-
shi from Fiat. After the war, Honda and perience illustrates the astonishing results tional problems and, thus, consumers by
Suzuki, among others, were willing to study a determined government can deliver. frequent outages. Its railways, once the
European models and reverse-engineer Africa’s leaders will have to adopt a sense best in Africa, are today a rickety facsimile
and improve on their products. of urgency equal to the task if they are to of a proud history and are proving a major
One contributing factor of Japan’s early ensure that their countries prosper from constraint to exports of raw materials.
success was the presence of a corporatist huge demographic changes underway. And, yet, other African countries, such
state, although sometimes inefficiently Africa has sought to address these as Botswana and Morocco, show how it is
so. In the 1950s, the role of the Ministry of deficiencies in part through increasing possible to run state-owned entities along
International Trade and Industry (MITI, sovereign debt, much of it for Chinese- efficient, commercial lines and, in so do-
which transformed to the Ministry of supplied infrastructure. This strategy ing—coupled with streamlined regulatory
Economy, Trade and Industry–METI–in carries with it other challenges, not least and tax processes reducing the cost and
2001), was to target key sectors, particu- the management of this stock for future wear of everyday frictions—provide the
larly textiles, through foreign exchange generations, and the transparency and requisite foundation for external investors.
allocation. corruption surrounding such deals. The power of the private sector, formal
Their focus over the following decade Africa’s development answers lie in and informal, can be seen in a multitude
shifted to promoting domestic technol- providing the space for the private sector of ways, from tourism to retail. As Asia
ogy through research and development to flourish and to establish the regulatory has shown, state ownership is not the
subsidies. In the 1970s, it promoted alter- conditions in which it can grow to formal- problem; it’s how these entities are run.
native energy sources (notably nuclear) ize. There are an increasing number of Whether they operate along commercial
in the wake of the oil shock, along with stories of sustained entrepreneurial suc- principles or as agents for the redistribu-
deregulation. Now its role is mainly as cess across Africa. Too often these stories tion of political largesse is the difference
a “trouble-shooter” within government are, however, in spite of often-predatory between success and failure. (

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TRADE
Providing SMEs with information, knowledge and tools to change, the COVID pandemic, the Russia-
overcome the challenges of international trade will play a pivotal Ukraine conflict and the rising costs being
role in enabling them to contribute to AfCFTA's success. felt now, the training has been the right
remedy to help the businesses through
ECONOMIC INTEGRATION the difficult period. With the partnership
The reality of AfCFTA

having already trained over 5,000 small
businesses and young entrepreneurs, it
is moving forward. Once a memorandum
continues to emerge
of understanding is signed in the coming
period, the programme will be open to all
55 African countries.
The agreement will also seek to establish
a continental collaborative group to pave
the way for African designers and artists to
engage in the continent’s vibrant creative
economy, secure investment opportunities
for African businesses, as well as push for
African businesses to pursue opportuni-
ties beyond their regional markets and
consider international export opportuni-
ties in the Caribbean. Additionally, the
partnership will promote the uptake of
relevant and innovative green solutions
at global events, including COP27 which
is meant to take place in November 2022.
When the program is implemented
throughout the continent, the African
population will be able to be fully prepared
T
for any challenge unlike the situation was
he African Continental Free Academy platform, with support from with the pandemic and the Russia-Ukraine
Trade Area (AfCFTA) is ex- the Afreximbank Academy (AFRACAD). conflict, which to date are still affecting
pected to be a crucial instru- It supports businesses at country level to many businesses. Business owners who
ment in Africa’s development; trade continentally using a dual approach, complete the training will have the knowl-
it is expected to drive the continents’ which includes a free online component edge and abilities necessary to successfully
economic integration. By connecting over on the Afreximbank Academy, while ITC engage in cross-border trade and seize
1.3 billion people across 55 African coun- facilitates in-country workshops to train global business opportunities.
tries, the African economy is committed business owners, business support orga- According to Pamela Coke-Hamilton,
to streamlining its trade policies, ensure nizations and government stakeholders. Executive Director, International Trade
free movement and expand its business The programme was piloted in Côte Centre, the ITC/ AfCFTA training pro-
opportunities. d’Ivoire, Nigeria and Rwanda in 2020 gramme is crucial in empowering African
As it nears full implementation, organi- and then extended to include Ghana, small businesses and accelerating intra-
zations have already moved to ensuring Morocco and Zimbabwe. The training African trade. “Besides a shortage of work-
that Africans are making the most of the helped entrepreneurs easily find tailored ing capital, small businesses consistently
agreement. For instance, the partnership market opportunities for their businesses, report difficulties in identifying foreign
between Afreximbank and the Inter- identify the highest export potential for business opportunities and an inability
national Trade Centre (ITC), has been their products and learn how to capitalize to analyse export markets as the biggest
in place since 2020 and it has focussed on potential financing opportunities. Also, barriers to exporting.
on training small-business owners and it allowed the trainees to acquire access Providing them with information, knowl-
young entrepreneurs in Africa to trade to trade financing and trade facilitation edge and tools to overcome the challenges
with other African countries. interventions offered by Afreximbank to of international trade, the training pro-
The partnership developed a training support intra-African trade. gramme will play a pivotal role in enabling
programme on how to export with the Af- At a time that African businesses have them to contribute to the Agreement’s
CFTA, which was run via ITC’s SME Trade faced continuous challenges from climate success,” she said. (

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Business Holding a corporate event
Email us: editor@nairobilawmonthly.com
2.
1.
4.
6.
5.

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BUSINESS
PICTORIALS
FROM THE CORPORATE SCENE.
3. The corporate scene for the month of June in

pictures.
1. (L to R) Ameet Shroff, Managing Director

Deluxe Trucks & Buses E.A. Ltd and Vinay
Rathi, Managing Director Bank of Baroda,
Kenya stands in front of an Ashok Leyland
truck during the signing of a financing
agreement between Deluxe Trucks and
Bank of Baroda. Deluxe Trucks & Buses E.A.
Ltd are the sole authorized distributors for
the full range of Ashok Leyland Trucks and
Buses.
2. DT Dobie General Manager Volkswagen
and Mercedes Benz passenger vehicles
Roy Kyalo (left) and Bank of Africa Kenya
Regional Branch Manager David Kaburi
(right) exchange a Memorandum of
Understanding for Vehicle Asset Financing
for the Volkswagen Polo Vivo
3. L-R: mTek CEO Bente Krogmann, Sanlam
Kenya CEO Dr. Nyamemba Tumbo and
Sanlam Life Insurance Principal Officer
Kevin Mworia review the newly launched
Flexi-Hela product on the mTek app.
4. George Kimani (left), Senior Portfolio
Manager Insurance Company of East Africa
Limited (ICEA), and Einstein Kihanda, Chief
Executive Officer ICEA Asset Management
exchange views today at a Nairobi Hotel
after the presentation of the 3rd Quarter
2022.
5. (L to R) Evans Manduku -GM Life
8. Distribution and Ken Omami -Head of
Customer Experience & Retention General
Insurance and Health during the launch an
enhanced medical cover with the inclusion
of critical illness insurance benefits
6. Family Bank CEO Rebecca Mbithi and Aqua
for All MD Josien Sluijs during the signing
of a KES 350 million partnership that will
facilitate increased lending to medium and
small-scale water enterprises supplying
low-income communities with safe
drinking water.
7. Paul Gachoi (R), Nairobi Bar School Founder
and Anne Kaniaru – Jack Daniel’s Brand
Supervisor during the announcement of
Jack Daniels mentorship program
8. US Trade Representative Katherine Tai
and Kenya’s Industrialization, Trade and
Enterprise Development CS Betty Maina
on the side lines of the WTO Ministerial
7. Conference in Geneva.

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Black
FOLLOW US:
Letter ENFORCING ETHICS
Is Article 75 (3)
Law a standalone
provision?
COURT DRAMA •
SPOTLIGHT • LAW REVIEW ‘Impeachment is not a remedy
for private wrongs; it is a method
of removing someone whose
continued presence in office
would cause grave danger to the
nation’ – Charles Ruff
BY E K E S A AU ST I N
T
he media has been awash with narratives
and counter-narratives about who should
not run in the upcoming August election.
Civil society organizations, religious groups,
and opinion leaders, including the Chief Justice and
the Director of Public Prosecutions, have led the
– Gerhard Bronner charge to have impeached politicians barred. The
Austrian composer, writer and musician
DPP, in fact, believes that “impeached persons are
Fairness is the art of

morally barred from contesting.”
Impeachment is a constitutional remedy for serious
pulling in each other's violations of the government’s system. It’s the first
step in a remedial process that could lead to removal
hair without destroying from public office and possible disqualification from
future office. The purpose of impeachment is not
your hairstyle. to punish individuals; rather, it is to ensure that

constitutional government is maintained.
Kenyans passed the 2010 Constitution with the
objective of correcting many of the ills that they
believed had dragged the country behind for a long
time. Leadership and integrity were two of the ills that
Kenyans sought to address – and is the reason that
Delayed the now-famous Chapter 6 of CoK was entrenched.
trial ‘a form The Chapter is based on the premise that state of-
of torture’ ficers are the country’s nerve center and bear the
highest level of responsibility in the management
– Eswatini of state affairs, so their conduct should be above
supreme reproach. Kenyans, as a result, required, that those
Court whose behavior does not bring honor, public confi-
dence, or integrity have no place in the management
P.80 of public affairs under the Constitution as stipulated

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CHECKS & BALANCES
and integrity primarily stems from the
fact that laws do not exist for cosmetic
purposes. This was well captured in the
decision in ‘Trusted Society of Human
Rights Alliance Vs the AG & Others, Nai-
robi, HC Pet. No. 229 of 2012’. The learned
judges emphasized:
“Kenyans intended that Chapter Six
and Article 73 will be enforced in the
spirit in which they included them in the
Constitution. The people of Kenya did not
intend that these provisions on integrity
and suitability for public offices be merely
suggestions, superfluous or ornamental;
they did not intend to include these provi-
sions as lofty aspirations.”
Kenyans enacted Chapter 6 to cure
leadership and integrity ills that had eaten
us to the core. In our case as a country,
poor governance is characterized by weak
leadership, compromise, vested interest
and the monster called corruption has
been a leech. In essence, abuse of Chapter
Six by the political class has had an adverse
effect on the social, political, and economic
spheres thus eroding public confidence
under Article 75 (3) of the Constitution. The argument for a strict inter- in government.
pretation of Chapter 6
Role of the Senate Article 75 (1) of the Constitution requires Not absolute
The Senate in serving to represent and a state officer to avoid any conflict of Separation of powers outlined in the
protect the interests of counties and interest in public or official duties, as constitution is fluid and not pure. The
their governments participates in the well as compromising public or official Constitution gave the Senate and the
oversight of State officers by consider- duties while favoring personal interests County Assemblies (CA) two key roles;
ing and determining any resolution to or demeaning the office held. In both the legislation and oversight. Impeachment
remove the Governor, Deputy Governor, private and public spheres, the State does form part of oversight by the Senate
President, or Deputy President. The role officer is expected to uphold these stan- and the CA. No concept in the governance
of the Senate in the process of removal of dards. In addition, 75(2) states that any structure is more widely celebrated than
either a county Governor or Deputy Gov- state officer who violates the provisions the separation of powers.
ernor from office involves the Speaker of of Articles 75(1), 76, 77, or 78(2), which Montesquieu envisioned a government
the Senate informing the Senators of the deal with financial probity, restrictions made up of the executive, legislature, and
impeachment resolution of the respec- on state officers’ activities, or citizenship, the judiciary and a pure separation of pow-
tive CA, appointing a Special Committee will face disciplinary action. If found guilty, ers of these three bodies aimed to protect
to investigate the impeachment charges the said state officials may be removed fundamental human rights and liberties.
or investigating the charges in plenary, or dismissed from office. A person found He saw it as necessary to separate the
hearing the Governor and either passing culpable is barred from holding any other functions of these three bodies because
or failing the impeachment resolution. State office, according to Article 75(3). A “every man invested with power is apt to
This gives the Senate the ‘sole power to literal reading of Article 75(3) reveals a abuse it and to carry his authority as far
try all gubernatorial impeachments,’ since finality that those impeached or rather as it will go.” In Montesquieu’s support,
it is the only State organ that can indeed dismissed from office should not hold John Locke argues that man is weak by
investigate the allegations brought forth any public office. nature and, as a result, if all power is
by the Respective CA against the county The call for IEBC and the courts to concentrated in one or a few hands, such
Governor. strictly interpret Chapter 6 on leadership power will be abused. Montesquieu and

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Black Letter Law
Locke represent the pure separation of Nyongesa & others v Communications The Legislature, particularly the
Senate and County Assemblies,
the power structure which is rigid and Authority of Kenya & 2 others’, the court are entrusted with power over
may be abused to procure an injustice. defined judicial review as “the means by political impeachment processes.
In adopting a fluid separation of power which the courts supervise the actions
structure, the framers could have been or decisions of administrative bodies or
motivated by the blatant abuse of power tribunals.” In a similar vein, renowned Ad-
that was witnessed during Kenya dark ministrative Law professor PLO Lumumba
days. Kenya during a single-party period, defines judicial review as the power of
the President could determine those judges to examine public law functions
to vie. He, in addition acted as the final and intervene as a matter of discretion
decision making authority in the event to quash or prevent illegal, unreasonable,
of a dispute. With impeachment being or unfair decisions.
a political process, elected leaders who Lumumba avers that citizens’ rights and
differ or whom a Party Leader wants “re- interests are protected through judicial
moved” would greatly be disenfranchised review, which ensures that the executive
in a pure separation of power structure. and legislative branches stay within their
This position is appreciated by Professor mandated bounds. The ‘Mombasa Council
Osogo Ambani who argues that, “rigid v Republic and others’ is a locus classicus
separation of powers would be ‘subversive case. In this case, the Court of Appeal in
of the efficiency of government’ and as a Mombasa emphasized the fact that judicial
result would lead to its collapse.” review is concerned with the legality of
Kenya, unlike the United States of the process leading to the administra-
America, adopted an internal separation tive action, rather than the merits of the
structure that is fluid. The concept of in- administrative action.
ternal separation of power was advanced Before the 2010 constitution, judicial
by James Madison, widely regarded to be review was governed by common law
the father of the United States of America principles, specifically, Order 53 of the
Constitution. The theory posits that each Civil Procedure Rules and sections 8 and been or are likely to be violated as a result
branch of government should be given 9 of the Law Reform Act. A case before of their actions. The Fair Administrative
the ability to act independently, but that the court had to be substantive, and it Actions Act, 2015 was enacted by Parlia-
checks and balances should be in place could only be brought against government ment to give effect to the provisions of
to prevent usurpation. Madison goes on entities. Order 53 of the Civil Procedure Article 47, as required by the constitution.
to say that each branch of government Rules, which forms the procedural basis
should have “the necessary constitutional for judicial review under common law, Role of the Courts in impeach-
means and personal motives to resist the required an aggrieved party to seek dis- ment
other’s encroachments.” cretionary leave from the court before A conversation about the role of the court
Entrusting the legislature, namely the initiating judicial review proceedings. This in the impeachment process cannot com-
senate and the county assemblies, with is accomplished by establishing a prima mence without addressing the question
power over the impeachment process is facie case arising from an arbitrary, illegal, of jurisdiction. Jurisdiction was defined
a way for Kenyans to check the execu- or irrational administrative action. in ‘Owners of Motor Vessel “Lillian S” v
tive at both levels of government. The Judicial Review is fully entrenched Caltex Oil (Kenya) Ltd’ as the court’s ability
executive, on the other hand, keeps the under the current constitutional arrange- to decide cases that have been brought
legislature in check by approving bills ment. Article 22 states that anyone has the before it or to take cognizance of cases
with the president’s signature. While right to file a lawsuit alleging that a funda- that have been presented to it in a formal
the Senate and county assemblies have mental right or freedom has been denied, manner for decision. The court’s authority
the power to impeach, the judiciary can violated, infringed upon, or threatened. is limited by the statute, charter, or com-
still subject that power to judicial review; Article 47 guarantees everyone the right to mission that established it, and it can be
this is an example of the constitution’s prompt, efficient, lawful, reasonable, and extended or restricted in the same way.
overall fluidity. procedurally fair administrative action. The late Nyarangi J in the locus classicus
It also requires administrative bodies to case asserted,
The sacred place of judicial review provide written reasons to people whose “Jurisdiction is everything. Without it,
In the case of ‘Humphrey Makokha fundamental rights and freedoms have a court has no power to make one more

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CHECKS & BALANCES
During an impeachment process, the
bodies conducting it, namely the CA and
the Senate, play a quasi-judicial role that
falls under the supervisory jurisdiction of
the court(s), with the High Court being the
first ground of appeal.
In addition, Kenyan courts appreciate
that it has no jurisdiction to determine an
impeachment claim. This precedence was
set by Marshall J in ‘Marbury v Madison’
where he explained that the constitution
invests certain political powers to the
President in the exercise of his functions
to which they cannot interfere. A similar
position was taken in Nixon v United States
of America. In this suit, the USA Supreme
Court held that, “A controversy is non-
justiciable i.e. involves a political question
where there is a “textually demonstrable
constitutional commitment of the issue
to a coordinate political department...”.
Conclusion
A close examination of the provisions of
the CoK, 2010, the CGA, 2012, as well as the
Standing Orders of the County Assemblies
and the Senate Standing Orders, reveals
supervisory jurisdiction over “any person, that there is a sufficient framework for the
Judicial review is premised on body or authority exercising a judicial removal of county Governors and Deputy
ensuring that the three main or quasi-judicial function.” In addition, Governors from office. The Kenyan consti-
branches of government do not act with regard to allegations of violation of tutional, legal, and institutional framework
ultra vires. However, while judicial constitutional principles, the provisions for the impeachment of county governors,
review is encouraged, the courts of Article 25 (8) expressly provide that if properly conducted and interpreted, is
must take care not to overstep their any person “has the right to institute sufficient to ensure that the objects and
bounds and disrupt the executive court proceedings, claiming that this principles of devolution are realized. As
or legislative branches’ normal
Constitution has been contravened, or is a result of the foregoing, judicial review
operations.
threatened with contravention.” A claim of is premised on ensuring that the three
abuse of the constitution can be by either main branches of government do not act
the person affected or a representative in ultra vires. However, while judicial review
step. Where a court has no jurisdiction, addition to a person acting in the interest is encouraged, the courts must take care
there would be no basis for a continuation of the public. not to overstep their bounds and disrupt
of proceedings pending other evidence. The High Court has supervisory jurisdic- the executive or legislative branches’
A court of law downs tools in respect the tion over the subordinate courts and any normal operations.
matter before it the moment it holds the person, body, or authority performing a By preventing the other arms from per-
opinion that it is without jurisdiction. Be- judicial or quasi-judicial function, but not forming their functions independently, the
fore I part with this aspect of the appeal, over a superior court, according to Article doctrine of separation of powers would
I refer to the following passage... 165 (6). Similarly, Article 165 (7) empowers be undermined. This research has shown
The jurisdiction of the High Court is the court to “request the record of any that Article 75 (3) cannot be considered
drawn from Article 23 (3) and Article 165 proceedings before any body or authority a stand-alone act. The reason for this is
(3), (6), and (7) in connection with the and, if warranted, make any order or give that the constitution’s framers envisioned
protection of accrued fundamental rights any direction it considers appropriate to flexibility in enacting checks and balances
and freedoms, as well as the High Court’s ensure the fair administration of justice.” that, if rigid, could have been abused. (

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Black Letter Law
DISPUTE
Law imposing three-

year wait for divorce
unconstitutional:
Kenya Appeal court
The Court has, however, suspended the effect of its
declaration for three years for parliament to make
the necessary amendments to the Marriage Act.
C
ouples wanting to marry in ted this issue and filed an application
Kenya have some decisions for the courts to declare the provision
to make: there are no fewer unconstitutional, saying he was bringing
than five forms of marriage the petition, against the attorney general
from which to choose. It might be a dif- and the national assembly, in the public
ferent story for some if they want an early interest. National Assembly Clerk Michael
Sialai. The National Aseembly
divorce, however. That’s because those The high court agreed with him and appealed High Court ruling.
opting for a civil marriage must wait a found the provisions contrary to the
minimum of three years before they may constitution, but then the national as-
start divorce proceedings. Claiming this sembly appealed against that outcome. right to equality. That court said keeping
provision is unconstitutional, a Kenyan The appeal was heard in December 2021 people waiting for three years if they
advocate has brought legal action to test and has now been finalised with judgment wished to divorce earlier, was an affront
the three-year limitation. The high court delivered in mid-June. to the dignity of those involved, keeping
upheld his petition, but the national On behalf of the assembly, its clerk, them ‘forcefully’ in a situation they did
assembly subsequently appealed and Michael Sialai, denied there was anything not want to be part of.
judgment. unconstitutional about the law, saying Counsel for the assembly said that the
The Marriage Act of 2014 regulates all that the disputed section, like the rest three-year waiting period required before
marriages: Christian, civil, customary, of the law in which it appeared, had been divorce proceedings could begin in the case
Hindu and Islamic marriages. This law properly passed and enacted by the as- of a civil marriage was rational: some time
also provides for the ending of marriages, sembly, and was thus in accordance with needed to elapse so that the conditions
and the issue raised in a petition before the constitution. required for divorce could be ‘cogently
the courts recently concerned an aspect proved’ and a finding made that the mar-
of the provisions allowing for divorce in Threat riage had irretrievably broken down.
the case of civil marriage. He added the usual complaint in cases
For, unlike arrangements in the case of testing the constitutionality of legislation ‘Stabilising effect’
all the other forms of marriage, spouses in Kenya: that the application was a threat Behind the Marriage Act lay policy con-
in a civil marriage must wait three years to the separation of powers and contra- siderations including the ‘preservation of
from the time they marry until they may vened the presumption that legislation the value of the marriage institution’, and
divorce. was constitutional. the need to provide ‘a stabilising effect on
In its judgment, the high court had marriage’. The three-year wait also rested
Enacted found that the three-year waiting period on strong policy considerations including
Kenyan advocate, Tukero Ole Kina, spot- was discriminatory and a violation of the the need to ensure that marriage ‘is not

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MATRIMONY LAW
have to wait three years, were those mar- done by the section as against the ben-
riages not expected to help achieve ‘the efits that it seeks to achieve in terms of
stabilisation goal in marriages’? He said protection of the family unit?’
that if the imposition of a waiting period The court agreed with submissions
was intended to help achieve valid policy that the divorce law should ‘send the
considerations, then the waiting period right messages’ to the married and the
‘ought to have been employed uniformly’. marrying ‘about the seriousness and
The appeal judges said that they could permanence of the commitment involved.’
not adopt an interpretation of equality The judges quoted from a UK law reform
that required all the parties to the dif- commission report on divorce, that mar-
ferent marriage systems to be ‘simply riage remained ‘an extremely popular
treated alike’. Instead, equality had to institution’ even though so many people
be seen in the context of constitutionally now simply cohabited. For many couples,
permitted social, religious and personal marriage was seen as an ‘important signi-
differences that influenced the choice of fier’ of commitment to one another, as a
marriage systems. step towards having a home of their own,
‘financial and emotional security’, as well
Erroneous as providing an ‘accepted context’ for
For that reason, it was erroneous to ask having children.
why no limit was imposed on other mar-
riages, comparable to the three-year Realistic
waiting time before divorce in a civil mar- ‘Marriage involves mutual legal obliga-
riage. ‘It is not every differentiation that tions of support and sharing which other
amounts to unequal treatment’. relationships do not.’
It was clear that the Marriage Act intend- But the law had to be realistic and
ed to bring an ‘element of harmonisation’ practical: ‘If people who are unhappily
to the marriage laws, but that different married are denied a means of reordering
marriage systems ‘still continued to retain their lives in a sensible fashion, many will
their different nature and character’. simply walk away. Others may be deterred
The policy considerations of the as- from marrying in the first place ….’
The appeal judges said they could sembly were supported by the constitu- The appeal judges said that divorce
not adopt an interpretation of tional provisions on protecting the family had to be allowed for situations ‘which
equality that required all the unit. And while there was a three-year are unavoidable and unendurable for
parties to the different marriage restraint on divorce proceedings in the reasons of exceptional hardship or de-
systems to be ‘simply treated civil marriage provisions, the other forms pravity, irrespective of the duration of
alike’. Equality has to be seen in of marriage also provided for processes the marriage … to protect the rights of
the context of constitutionally of mediation and reconciliation, so that the parties involved.’
permitted social, religious
matrimonial disputes were properly ad-
and personal differences that
influenced the choice of marriage dressed before resorting to divorce. Suspend
systems. The court concluded that the disputed
Irreparable section of the Marriage Act was not dis-
In the United Kingdom, the equivalent criminatory, but that it was unconstitu-
period for a civil marriage was one year, tional because of the ‘disproportionate
a trial-and-error game’ and that ‘divorce allowing the parties to consider ‘the practi- effect’ it would have where a divorce
of a civil marriage is only occasioned cal consequences which would result from in a civil law marriage may be neces-
when it is necessary and after a period a divorce and reflection upon whether the sary and justified before the three-year
of three years’. breakdown in the marital relationship is limitation.
As far as Kina – who appeared for irreparable.’ Despite this finding, however, the court
himself – was concerned, he questioned But, the judges asked, did the three-year decided to suspend the effect of its decla-
the policy issue said to be behind the limitation in the case of the Marriage Act ration for three years so that parliament
three-year limit; since, in the case of other meet the proportionality test? ‘And, in could make the necessary amendments
forms of marriage, the spouses did not particular, … is disproportionate harm to the Marriage Act. (

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Black Letter Law
REVIEW
Delayed trial ‘a form

of torture’ – Eswatini
supreme Court
In a stinging criticism, the court castigated the
country’s prosecution services for how slow it was in
bringing a murder suspect to trial.
BY C A R M E L R I C KA R D
E
swatini’s highest court has
strongly criticised that coun-
try’s prosecution service for
how long it took to bring a mur-
der case to trial. Writing a review judgment
in that case, the court called the 13 years
it took to begin the trial ‘a form of torture’
for the accused in the matter, adding that
the delays were unconstitutional.
A full bench of the supreme court
confirmed the revised 23-year sentence
imposed on appeal, adding that if the ques-
tion of the prosecution’s delays had been
raised during the hearing of the review, it
could have ‘seriously considered’ reducing
the sentence by at least five years.
The court called these delays ‘not only a
form of torture’ but also unconstitutional
because it contravened ‘the speedy trial’
requirements of the country’s supreme
law.
Though the court ultimately confirmed
the conviction and sentence of the ac-
cused in the case, the judges said that
if the question of the delayed trial and
the infringement of the accused’s fair
trial rights had been raised at the review
hearing, the court would seriously have
considered reducing the term of impris-
onment by at least five years.
The review application was brought
against the prosecution by Sibusiso Eswatini High Court building.
Dlamini, convicted of murder. He was

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JUSTICE DELAYED
accused of assaulting and murdering Lungi of the thief who stole from my spaza shop finding Dlamini guilty of murder.
Hleta in December 2005. At the end of his was not premeditated and neither was it Having confirmed the conviction and
trial, Dlamini was found guilty of murder intentional.’ sentence of the accused, the supreme
without extenuating circumstances and Judge Dlamini stressed that ordinarily, court went on to its criticism of the pros-
sentenced to 25 years in jail. judgments of superior courts were ‘not ecution for its extreme delays in prosecut-
reviewable’ and the law under which ing the case.
Cigarettes the supreme court could review its own
He was convicted of assaulting Hleta with decisions provided a special jurisdiction Inordinate delay
an iron rod after he accused Hleta of tak- within ‘tight and restricted boundaries’. Judge Dlamini recalled that the supreme
ing some money and cigarettes from his The effect of this was that any alleged er- court judge who heard the appeal, acting
shop. ror grounding a possible review ‘must be supreme court judge Manzini, noted that
Giving evidence some 14 years later, a patent or exceptional and cause manifest the murder trial had only begun ‘13 years
witness who had been 12 years old at the injustice’ to the applicant. after the deceased met his death.’
time of the incident, said she had been The judge said that the basis of the Judge Manzini had further written, ‘The
left to keep watch over the shop while review in fact amounted to a re-appeal inordinate delay can hardly be said to be
Dlamini went out. She said she did not and that this was not the purpose of the in line with the age-old adage that justice
know how much money Hleta had taken, section under which the review/appeal delayed is justice denied, particularly for
but that she knew Hleta and that he was was brought. the relatives of the deceased. We are not
known in the neighbourhood. aware of the reasons for the long delay,
According to Dlamini’s testimony, he Miscarriage of justice but it is not acceptable.’
was told that Hleta had taken E3,000 The issues raised by Dlamini in his review Judge Manzini also noted that soon after
which Dlamini said he later found in Hleta’s application had been ‘adequately dealt the death of the deceased, the accused was
pockets, on the same day that Hleta alleg- with’ by the supreme court in the first charged with culpable homicide and re-
edly took the money and was assaulted. appeal. ‘To reopen this point would not leased on bail. It was only nine years later,
be a review but a second appeal. I can that the charge was changed to murder.
Casual visitor find no basis for holding that this court And only some four years after that, that
Judge M J Dlamini, who wrote the supreme on appeal, erred as asserted. … In other the prosecution eventually began.
court’s unanimous decision, said that words, I find no reviewable error.’
‘speaking for himself’, he did not believe The purpose of the section under which No explanation
that any spaza shop in Mbhuleni would the review had been brought was ‘not to In his judgment on the review applica-
have left that amount available for the eliminate all errors on appeal. Humans tion, Judge Dlamini commented that, as
taking by ‘any casual visitor’. being fallible, that would be impossible.’ his colleague Judge Manzini had already
Dlamini’s main ground of appeal and The judge said he could find no ‘patent pointed out, there had been no explana-
review was that he had been wrongly con- or exceptional circumstances that have tion for the delayed prosecution.
victed of murder instead of culpable ho- occasioned a miscarriage of justice.’ ‘Needless to say, this is a matter that
micide and that he had never intended to Further, there was no obligation on the should worry and concern the crown; it
kill Hleta. Moreover, according to Dlamini, court to review its earlier decision. The should not be business as usual where
the evidence ‘did not support murder’. law provided that the court ‘may’ review prosecution has been delayed to the ex-
After his original appeal, to a single a decision, but that implied that the ap- tent that it could reasonably be said that
member of the supreme court, Dlamini’s plicant would first have to make out the justice has been denied. For 13 years, the
conviction of murder without extenuat- case for review. applicant had a charge of a very serious
ing circumstances and his sentence of nature hanging over his head like the
25 years were set aside. Instead, he was ‘Unbearable’ Sword of Damocles.
convicted of murder with extenuating ‘If grounds for review were not to be ‘That in my view is not only a form of
circumstances and his sentence was set exceptional, there would be review of torture, but it is a contravention of the
at 23 years. all decisions of the court: that would be speedy trial required by the constitution.
unbearable.’ Any form of denial of justice should not
‘Not premeditated’ The supreme court’s review jurisdic- be taken for granted. Had the matter
Before a full bench of the supreme court, tion was not to be ‘lightly resorted to or been duly raised at the hearing, I would
Dlamini argued that the murder ‘did not employed’, and the court said it had not have seriously considered reducing the
qualify to be a murder but to be culpable been persuaded that the high court and term of imprisonment by no less than
homicide. The reasons are that the killing the supreme court on appeal had erred in five years.’ (

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XX
Black Letter Law
Supreme Court
verdict on Sonko case
a boon to Chapter Six
“A drowning man will clutch at a
straw” – Thomas More
BY N E W TO N A R O R I ring County Government functions to
O
Nairobi Metropolitan Services (NMS).
n July 15, the Supreme Court The Governor had admitted that he was
upheld former Nairobi Gov- intoxicated by stating “Hawa watu wa State
ernor Mike Sonko’s impeach- House waliniconfuse na pombe kwanza
ment by the Nairobi County by the time I was meeting the President
Assembly. The apex court’s decision for signing, I was seeing zigzag.”
effectively ends Sonko’s political career – There was sufficient evidence to support
the Independent Electoral and Boundaries the numerous other allegations against
Commission (IEBC) subsequently revoked him, as well. A former County Executive
its decision to clear Sonko to run for the Committee (CEC) member, for example,
Mombasa Governor’s seat. In fact, Sonko testified that she had been unable to work
may never hold any other state or public with Sonko due to his erratic behaviour.
office based on the prevailing interpreta- Little wonder then, that there was an
tion of Chapter 6 of the Constitution on abnormally high turnover with his staff.
integrity and leadership. In a in a span of 40 months, the finance
Sonko’s woes began in 2020 when the docket had been served by ten CECs and
Member of County assembly (MCA) for eight Chief Officers.
Embakasi ward, Michael Ogada, brought By the time Sonko’s case reached the
a motion for his impeachment to the As- Senate, his goose was cooked. Political
sembly. Article 181 of the Constitution meddling in the proceedings might have A three-judge bench unanimously up-
provides that a Governor may be removed saved him, but his innocence was a forgone held his removal from office, prompting
from office if they have grossly violated conclusion. In the end, the house voted an appeal to the Court of Appeal, which
the Supreme Law, where there are reasons to uphold his impeachment. upheld the High court decision. His sub-
to believe that he/she has committed a sequent appeal and the Supreme Court’s
crime under national or international Dead on arrival decision, effectively sealed his fate.
law, or for gross misconduct. While any Sonko went to the High Court knowing Before then, with the election fast ap-
of those grounds would have sufficed, his case was weak and resolved to deploy proaching, it seemed Sonko might benefit
Sonko was accused of all three. an old litigation strategy: shotgunning. from his pending appeal. On July 13, the
Under the gross misconduct category He filed a lengthy, incoherent petition High Court in Mombasa directed the
alone, there were 12 charges against him, challenging his impeachment on several IEBC (which had blacklisted him) to clear
ranging from his perpetual absence from unfounded and petty grounds, going so Sonko to run, for the reasons that he had
work, to using public funds to facilitate far as questioning the Members of County not exhausted the appeal process. The
his daughter’s international travels. But Assembly’s decision to vote on his im- former Governor’s camp erupted in jubi-
perhaps the most damning allegation peachment motion virtually rather than lation. Leading dailies ran feature stories
against him (for which there was recorded physically during the COVID 19 pandemic, on ‘Sonko’s comeback’. This celebration
proof) was his admission that he was he and his being served with the Notice of would be short lived.
was drunk and not in the right frame of Impeachment through the County At- Two days later, the Supreme Court up-
mind when he signed a deed of transfer- torney instead of personally. held the Court of Appeal and High Court

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JURISPRUDENCE
the preparations being undertaken by
(the IEBC), especially in respect of the A question of jurisdiction
Appellant who has declared his intention Sonko will essentially be complaining
to contest in elective seat. The appeal, before the EACJ about an alleged viola-
for these reasons is, therefore a matter tion of a principle in the Treaty (the rule
of urgency. In those circumstances, we of law, for example) by a partner state
considered it paramount to deliver this (Kenya), through one of its organs (the
judgement in its shortened version, to Kenyan Judiciary). There is precedent for
be followed, on a date to be notified, by this in the case of Martha Wangari Karua
detailed reasons...’, the judges said. v The Attorney General of the Republic
The jurisprudential underpinning of of Kenya & 2 Others.
the Court’s decision will become clearer In the case of The East African Civil
once the full judgement is released, but Society Organisation Forum (EACSOF)
Sonko’s case at the Court evidently was vs. The Attorney General of the Repub-
even weaker than it was in the two lower lic of Burundi, the EACJ said of its own
courts. The judges found that they had no jurisdiction: ‘The (case) before the trial
jurisdiction to entertain it. This is because court was not a further appeal from the
appeals from the Court of Appeal to the decision of the Constitutional Court of
Supreme Court are not automatic. The Burundi. It was a case on the Republic
party wishing to appeal must show that of Burundi’s international responsibil-
the issues being raised are either ques- ity under international law and the EAC
tions of public importance, or involve Treaty attributable to it by reason of an
Constitutional interpretation and ap- action of one of its organs namely the
plication. Sonko, according to the Court, Constitutional Court of Burundi.’
failed to do this. The IEBC’s policy of barring impeached
The judges cautioned: “It can never be persons from running for public office is
the role of the court to wander around in founded in Article 75(3) of the Constitution,
the maze of pleadings and averments to which locks state office doors to ‘persons
assume jurisdiction by way of elimination.” impeached or otherwise removed from
Enter the East African Court of Justice. office’ for contravening integrity clauses.
Desperate to extend his ‘candidate with There is a debate around the fairness of
pending appeal’ status, Sonko has now using impeachment as an integrity test.
moved to the regional Court. One wonders It has been argued that since the County
how he has framed his case if the Supreme Assemblies and Parliament are political
Court is yet to render a detailed judgement. bodies, they can be improperly used to
Contrary to what Sonko would have His chances of success before the EACJ, frustrate politicians not in good books with
us believe, the case before the East as regards his candidature, are virtually the ruling party. Consider Sonko’s case.
African Court of Justice (EACJ), zero for one main reason: jurisdiction. When he was a diehard Jubilee fanatic, the
should it be accepted, is technically Contrary to what Sonko and his lawyers first attempt to impeach him failed. Once
not an appeal against the Supreme would have us believe, the case before he ran afoul of the regime, however, the
Court’s decision. The regional Court
the East African Court of Justice (EACJ), process was a breeze. On the other hand,
lacks the mandate to revise, review
or quash a decision of a partner should it be accepted, is technically not an Jubilee legislators were mobilised to save
State’s Court. appeal against the Supreme Court’s deci- Kirinyaga Governor Ann Waiguru at the
sion. The regional Court lacks the mandate Senate after she was impeached by her
decisions on Sonko’s impeachment. Com- to revise, review or quash a decision of a County Assembly.
mendably, Kenya’s apex Court delivered partner State’s Court. Article 23 of the Ultimately, going by a recent ruling by
its decision urgently to enable the IEBC Treaty for the Establishment of the East the High Court, the decision on whether
decide on Sonko’s candidature. African Community, defines the EACJ’s or not to clear Sonko is the IEBC’s to make.
“…it is not lost on us that, given the fact role thus: ‘The Court shall be a judicial It would appear that the electoral body
the general elections are due to be held body which shall ensure the adherence has already made up its mind (
in the next 24 days, the determination of to law in the interpretation and applica- —Writer is an Advocate of the High Court
this appeal will have a direct bearing on tion of and compliance with this Treaty.’ of Kenya

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Life
FOLLOW US:
There is not just a moral but
Twitter: @nairobilawmonthly a strong business case for
ensuring workplaces are
inclusive. Companies that are
do better business.
REVIEWS • SPORTS • ARTS •

BOOKS • CULTURE • KENYA
THROUGH THE LENS
Every worker and

employer needs
to know a bit of ↴P86
labour law
HOW WE WORK
The world
of work can
(and must)
be disability
inclusive
THROUGH
THE LENS ↴P90
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WORKPLACE CULTURE
economy about $6 trillion per year, ac-

The conversation about cording to an analysis of World Bank and
inclusion also needs to International Labour Organisation data.
Despite the rejection I faced early in
go beyond employers my career, I did not give up. Instead, I sat
and to the whole of down and talked to myself about what
society. Are all buildings I could do. I settled on IT as it seemed
like an industry where they look at your
and houses accessible? skills first. I found an online programme
Is transport, healthcare, through Inclusive Futures, which provides
and education? training to jobseekers with disabilities
with support from GIZ’s Employment and
employers of my abilities and limitations. Skills for Development in Africa (E4D) pro-
But when I got to my workstation, my gramme and UDPK. And I undertook an IT
manager had not been informed and did course with the Bridge Academy hosted at
not want to hear. I then found out that I the National Industrial Training Authority
had not been told about significant ele- (NITA). This latter training had specific
ments of the job I was expected to do, provisions to ensure it was suitable for
such as travel long distances. I was soon students with disabilities. Despite being
discriminated against for not performing a pilot project, it ended up with an almost
tasks I couldn’t do and was told that I was 100% pass rate.
letting the team down. With this support, I got an internship at
I suggested solutions but was ignored. Safaricom, which has proven to me that
When I took my issue to the HR depart- workplaces can be inclusive. There are
ment, they offered no support. Eventually staff trained by Sightsavers to be disability
I had to accept it was not working and aware and the technology is accessible to
resign. It was devastating. I felt I had failed. people with disabilities. Acknowledging
BY N I CO D E M U S O N G’A N G I My confidence was shaken. that it can be difficult for me to get on
S
This experience is not unusual or partic- and off busy matatus and expensive to
ince I was four years old, I have ularly extreme. Around the world, people get taxis, the company also supports me
had a physical disability that with disabilities are around half as likely as to travel to work.
makes it difficult for me to walk others to be active in the labour market. My aspirations are no different to those
long distances or sit for long pe- In low-and-middle income countries, as of people without disabilities. But my
riods of time. Growing up, I was lucky that few as 12% of people with disabilities are options are often more limited. And my
this didn’t stop me achieving my dreams. employed. And the pandemic has made self-confidence has been severely affected
My mother has always believed in me, things even worse. by other people’s perceptions. I want
and my father has always understood This is not for lack of ability but discrimi- every employer to look at people with
my potential. At school and college, I was nation and non-inclusive labour systems. disabilities and who we are, not as our
encouraged by staff and students alike. Many employers simply don’t believe that impairment. This will require changing
I am proud to say I was a top performer people with disabilities can work. Others mindsets, which can begin by just showing
academically, graduating from Egerton don’t know how to ensure their operations people that companies that are disability
University in Kenya with a degree in enable people with disabilities to work. inclusive do better business.
Biomedical Science and Information People with disabilities must have equal The conversation about inclusion also
Technology. opportunities, not just for moral reasons needs to go beyond employers and to the
It was only when I entered the world but strong business ones. Making up 15% whole of society. Are all buildings and
of work that I found attitudes were not of the global population, we hold a huge houses accessible? Is transport, health-
so supportive. amount of untapped talent and spending care, and education? If we are not includ-
When I got my first job at a loan com- power. Excluding people with disabilities ing everyone, then we are not being truly
pany in Nairobi, for example, I told my from the labour market loses the global inclusive. ( (African arguments)

August 2022 • 85
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(
— The writer teaches literature
Life
The book gives priority to what
portends in a volatile, uncertain,
complex and ambiguous (VUCA)
business environment.
INDUSTRIAL RELATIONS
Every worker or
employer needs to
know a bit of labour law
BY D R TO M O D H I A M B O pay higher prices for goods and their income and the employ- of labour laws in Kenya. Where
W
services. In such cases disputes ers losing labor and production. did Kenya get its current labour
e live in dif- often happen between employ- Labour disputes are to be laws? Why is there a need to
ficult eco- ers and employees. Workers expected anywhere where have labour laws? What is the
nomic times. may refuse to accept a pay there is an employer-employee relationship between trade
Wages are cut. They could refuse to be relationship. This is why Justice unions, employers, employees
rising slower than the prices laid off. Or they might demand Nzioka wa Makau’s book, La- and the government? Why
of goods and services. Families to be paid for the duration of bour Law & Industrial Relations does the government, which
are being forced to rejig their their contract that they would in Kenya (2021) is worth reading is an employer too, play a role
budgets. Salaried workers and lose when they are sacked. The and keeping. It is worth reading, in resolving disputes between
the self-employed are com- employers can also simply de- for workers in Kenya who are private employers and their
plaining about a rapidly rising clare some workers redundant generally ignorant about labour employees? What rights are
cost of living. The cost of living without referring to them or relations until a dispute arises, guaranteed by the Constitution
is directly linked to the cost their union at all. In many cases just as it is for any layperson and organizations such as the
of production of goods and these disputes arise between who is interested in labour International Labour organiza-
services. The price of a loaf individuals and groups with law and industrial relations in tion and how and why should
of bread includes the cost of little or no knowledge of labour Kenya. This is a book that also the government enforce the
farming, what is charged to laws at all. sets a precedent for having recognition of these rights by
transport raw products from This is when in many cases been written by a sitting judge. employers? Why, for instance,
the farm to the factory, the cost the representatives of the What Justice Makau does is there a Ministry of Labour?
of making the loaf, the tax that workers, if they are organized in Labour Law and Industrial These and several other
the government charges, the under a union, call for a nego- Relations in Kenya is to intro- questions that may arise on
transport from the factory to tiation with the employers, duce the reader to the history the topic of labor and industrial
the shop and the markup that demand an arbitration, call relations in Kenya are posed
the seller adds to the wholesale a strike – suspension of the and addressed in the most
price. In all these processes is workers’ labor – or simply go accessible language. What
human labor. to the court to seek to compel Justice Makau makes this book stand out is
When manufacturers plan the employer to negotiate with makes Labour the simplicity of the discus-
to reduce their cost of produc- them. In some cases these sions on several topics on la-
tion, they often reduce the pay disputes are quickly resolved, law in Kenya easy bour law in Kenya. Generally,
for the workers or lay some of through arbitration or one side to understand by a book of this nature tends to
them off. In some cases em-
ployers negotiate with workers
caving in to the demands of the
other side. In other cases the
illustrating ideas drag the reader through jargon
and incomprehensible terms.
to accept reduced pay. Yet the dispute can drag on for long, with examples of Writers of books on law often
same workers will continue to leading to the workers losing court cases. make their texts inaccessible

86 • August 2022
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BOOK REVIEW
by unnecessary reference to PREVIEW

Latin terms, which they then
explain in English or even given
their equivalent.
Justice Makau makes Labour
Poetry that truly
Law and Industrial Relations
in Kenya easy to understand
by illustrating an idea that he
comes from the heart
is discussing with an example BY JAC O B O K E TC H
of a court case on the topic.
These cases aren’t just for
reference by practicing lawyers
or students of law; they are also
I t is often said that less is more, and Brenda
Wanjira’s HEART WHISPERS: poems from
the heart and soul lives up to this concept. In
important for labour officers, HEART WHISPERS, the author has packed her
trade unionists, employers or pieces with loaded meaning and yet manages
even employees who might one to do so with very few words thereby giving
day be caught up in a situation one characteristic of the poetic form-economy
similar to the one in the case of words, some significance.
in reference. One technique that the author employs
What Justice Makau has effectively in most of the pieces is that of
done is to challenge his fel- contrast. Sometimes we see clearly by focusing
low judges or magistrates and on the opposite of what we intend to see. Take
lawyers to reflect and write on for instance the piece entitled “Morning at the
the law and other legal mat- feet of Ngong Hills”. The picturesque feature
ters in a style and language of Ngong hills is breathtaking but when it
that people who ordinarily reminds you of the agony of climbing it, the
have little to do with the law pain becomes quite acute. in real life, romantic relationships spawn many
can understand. In fact, the The author tackles the theme of love from other issues, thus, love cannot be perceived
challenge should potentially different perspectives. She does not confine in isolation.
go beyond the simplification herself to romantic love. There is a piece which The reader will notice that the author
of the generally inaccessible talks about the persona’s love for the mother. personifies nature to the extent that she
legalese to ‘localizing’ or Afri- It is also evident that the persona is God-loving relates it to the theme of love – she speaks to
canizing legal language. How when she talks of her devotion to the higher the moon and she hopes that the stars can see
can laws in an African country power. Even when the persona is talking about her among other examples. She also employs
carry the ethos and culture of her partner, she brings in the aspect of faith symbolism in many pieces. For instance, she
the people among whom it is in God which demonstrates the connection uses sunrise and sunset to signify the beginning
practiced? How can the law be between spirituality and love. and the end of an occurrence.
rendered in a language that is The author also employs parallelism in her This collection will awake the reader to
comprehensible to the majority pieces where she juxtaposes two disparate certain inclinations that they struggle with
of the people that it affects? situations. For instance in the poem entitled but have not given sufficient time to ponder
The discussion on the la- “Pieces of Me”, there is a line which says “The over. It will also teach the reader how to
bour law in Labour Law and Devil is in my head, so is God”. This technique communicate using few words. Above all, it
Industrial Relations in Kenya enables the reader to picture and appreciate will empower the reader to cherish their self-
by Justice Makau almost at- the complexity of the situation. power even when in doubt. I recommend it
tempts this difficult task. ( The author tackles many other themes to all lovers of poetry.
— The writer teaches literature such as confidence, hopelessness, grief, anger, Heart Whispers will be launched on
and performing arts at the freedom, rebellion, loneliness, insensitivity November 26, 2022 at Alliance Francaise
University of Nairobi. Tom. among others, in her work. All these concerns Nairobi. Copies of the book are available at
odhiambo@uonbi.ac.ke are intertwined with the theme of love. Indeed, Nuria Bookstore. (

August 2022 • 87
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Life
A group of women in a Kenyan village have
shaken off the economic and cultural shackles
of widowhood and abuse to chart a new path
of self-empowerment for themselves, for girl
children and for their community, thanks to a
tailoring programme.
Threads of Hope.
Sewing hope Since its inception in 2017, Threads

of Hope has sought to help vulnerable
women in the area and has so far come
to the rescue of twenty-eight women;
generally widows, or single mothers,
some victims of gender-based violence or
women escaping abusive marriages - and
living in abject poverty.
The program teaches self-reliance
through the provision of skills. The abil-
ity to create useful and saleable items is
also extremely beneficial for the trainees’
self-esteem and psyche.
“As we continue training, we earn a liv-
ing through repair jobs. Recently we also
made reusable sanitary towels donated to
orphanages and prisons, and personally
being able to help even in such a small
way is so fulfilling,” said Sharon Kigen, a
BY E D I T H C H E P N G’ E N O day without any income,” she said. beneficiary at the program.
“B
She even once worked as forewoman According to Chemutai, the success-
arely a month after I bur- on a construction site, a job she described ful applicants enrolled for the rigorous
ied the love of my life, as very tasking. eight-month tailoring training are care-
my in-laws descended “The easily-available menial job in my fully chosen.
on us. First, my brother- area is plucking tea. This attracts many Reuben Kirui, who heads the Commu-
in-law said I was too young to be a widow, struggling women, which means competi- nity Health Development department at
so he wanted to inherit me as his wife. I tion to secure a job,” she explained. Tenwek Hospital disclosed that they have
couldn’t hear any of this outdated culture, That was before she was chosen along plans to expand the scope of the program
and they now went for the property left with five other women in similar circum- to other regions.
to us by their brother,” recalled Vicoty stances, to join Threads of Hope, a corpo- “We have many vulnerable women in
Chepkoech, 24. rate social responsibility (CSR) program our society who struggle to fend for them-
Speaking at a special graduation cer- of the area’s Tenwek Hospital. selves and their children. We decided to
emony, Chepkoech explained that the Each student is awarded a sewing ma- start this project to allow them to better
humiliation she went through at the hands chine and in return is asked to make school their livelihoods,” he said.
of her in-laws made her abandon her uniforms and reusable sanitary pads to be The program is donor-funded, relying
marital home, deciding to start afresh to donated to children’s homes and women’s on good Samaritans from the local com-
make ends meet for her daughter. prisons. They can then use the sewing munity. “All along, we have been relying on
“I used to survive on menial jobs. If I machine to earn an independent income. donors, which means that they change and
was not plucking tea, I dug other people’s “The sewing machine is a reward to others even stop donating, and then poli-
farms. It was our norm to sleep on hungry the trainees and a way of ensuring they cies change. Like when Covid-19 came, it
stomachs, but despite my daughter’s age, go back home and put into practice what affected even our donors,” Kirui disclosed.
she understood the situation,” she said. we have trained them to do and be able Nevertheless, he looks forward to rolling
Chepkoech was depressed and on the to get economically empowered. All they out the program further. “So far, the ben-
verge of giving up on life, adding that not have to do is make three pairs of school eficiaries have been from here – Tenwek
being able to provide for her daughter uniforms and 15 reusable pads to be do- and its environs in Bomet county – but
broke her heart. nated to orphanages and schools. They we look forward to expanding to other
“It was tough because some days my also have to make an apron and bags for regions to give this life-saving opportunity
daughter could be sick, and that was a sale,” said Betty Chemutai, a trainer at to more women,” he said. ( (Bird)

88 • August 2022
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SPORTS
REGULATING SPORTS Play. According to published research by

Nadine Dermit-Richard, Nicolas Scelles &
An independent football Stephen Morrow, “It might be expected

that UEFA’s Financial Fair Play (FFP)
system established in 2010 would be
regulator risks doing similar to French DNCG (National Direc-

tion for Management Control) regula-
more harm than good

tions. However, while FFP is concerned
with profitability, DNCG is focused on
solvency. Hence, a French club may be
loss-making and not compliant with FFP,
while at the same time being solvent
in accordance with DNCG rules. Our
BY C H R I S M WA B E faces a major hurdle in complying with research confirms that most French
T
statute number 15 (a and c) of FIFA clubs do not conform to FFP rules. As
he United Kingdom government which reads: such, it provides further evidence that
says it will establish an inde- Member associations’ statutes must DNCG has not prevented poor financial
pendent regulator in football comply with the principles of good gov- management within French clubs. The
after endorsing recommenda- ernance, and shall in particular contain, coexistence of DNCG and FFP– or any
tions made in the fan-led review into at a minimum, provisions to be neutral other domestic financial regulation and
the game. in matters of politics and religion; and FFP –may result in disparities between
The review was chaired by former independent and avoid any form of domestic clubs.”
sports minister Tory Crouch following political interference. Furthermore, the fact that the Inde-
a number of high profile crises in the It remains to be seen how the independent regulator will be governed by
sport, such as the failed European Super pendent body to be set up will maintain legislation does not take away the prob-
League and the collapse of Bury FC. The actual independence as opposed to ability of political interference. Albeit
new regulator will be backed by laws independence on paper. The Football talking about financial regulation, Marc
which allow it to hand out punishments Supporters Association alluded to this Quintyn and Michael W. Taylor refer to
and have financial oversight of clubs, fact in their supplementary evidence to Nobel Prize winning economist George
meaning it can investigate and gather fan-led review an independent regulator J. Stigler as he pointed out in a seminal
information. for English football and FIFA prepared article in 1971,” agencies tend to respond
It will also apply the new “enhanced” by the regulatory team in the London to the wishes of the best-organized inter-
owners’ and directors’ test which will office of HFW, an international law firm. est groups. When regulators are free from
replace the current tests carried out by Their subsequent proposal to have political control, the risk of “regulatory
the Premier League, Football League and the Football Association (FA) delegate capture” by other groups—in particular,
Football Association. This follows Roman some of its roles is not an antidote to the the industry they regulate—grows. Agen-
Abramovich’s ongoing sale of Chelsea valid problems but rather introduces a cies that suffer from such capture come
amid government sanctions and a Saudi potential duplicity of roles and further to identify industry interests (or even the
Arabian-backed takeover of Newcastle bureaucracy that might leave out criti- interests of individual firms) with the
United in October 2021 among others. cal facets. The much touted correlation public interest. And industry capture can
Both ownerships were criticised by Hu- between the FA equivalent in France; undermine the effectiveness of regulation
man Rights group Amnesty International Ligue De Football Professional (LFP) just as political pressure can.”
UK. The new test will be implemented and Nationale du Contrôle de Gestion We should strengthen the existing
before acquisition but also on an ongoing (DNCG) the independent regulator has football regulators rather than introduce
basis. It will include a new ‘integrity test’ been called into question. a new layer of regulation. The introduc-
for owners and executives and stronger A comparison can be made between tion of measures such as the Financial
investigations before a purchase, includ- the aforementioned independent regu- Fair Play Rules (FFP), new Directors test
ing sources of funding. lator (Nationale du Contrôle de Gestion or proposed Golden share type of shares
Though a noble recommendation, it “DNCG”) versus UEFA’S Financial Fair should be sufficient. (

August 2022 • 89
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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.
90 • August 2022
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KENYA THROUGH
THE CAMERA LENS
KENYAN WILDLIFE
3. Africa is home to millions of people as well as

different animals, join me in discovering the
different animals that are present in Kenya;
1. Thomson’s Gazelle (Lake Nakuru
National Park) – These small gazelles
have light-brown coats with dark stripes
running down their sides, a white patch on
their rumps extending underneath the tail,
and ridged horns that curve backward.
2. African Fish Eagle, (Lake Naivasha) – This
is a large species of eagle found throughout
sub-Saharan Africa wherever large bodies
of open water with an abundant food
supply occur. The African fish eagle feeds
mainly on fish.
3. Vervet Monkey (Mt Kenya National
Park) – The vervet is a small, black-faced
monkey, common in East Africa. There are
several subspecies of vervet monkeys, but,
generally, the body is a greenish-olive or
silvery-gray. Leaves and young shoots are
the most important part of their diet.
4. Blacksmith lapwing (Amboseli National
Park) – Also known also known as
Blacksmith Plover, its a common breeding
resident strongly tied to wetlands.
Blacksmith Lapwings have been known
to launch defensive attacks on African
Elephants to protect their young.
5. African bush elephants (Amboseli
National Park) – They are the largest
8. living terrestrial animal. These animals
have several distinctive features, including
a long proboscis or trunk used for many
purposes, particularly for grasping objects.
6. Black-winged stilt (Elementaita lake) –
They are typical large but elegant wader
species on alkaline lakes in the Rift Valley
of Kenya.
7. Eland (Nairobi National Park) – This is
the world’s largest antelope. They browse
more than they graze, feeding in areas
where shrubs and bushes provide the
leaves they prefer and using their horns to
bring twigs and branches into reach.
8. Cape buffalo, Kenya (Lake Nakuru
National Park) – One of the most
successful of Africa’s wild ruminants, the
Cape buffalo thrives in virtually all types
of grassland habitat in sub-Saharan Africa,
from dry savanna to swamp and from
lowland floodplains to montane mixed
7. forest and glades.
Source: Wildlife in Kenya

August 2022 • 91
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Closing
Statement
with Greg Mills & Marie-Noelle Nwokolo
AFRICA’S EXTERNAL RELATIONS International Co-operation Agency (JICA) continues

to fund seminars, experts, training, and other skills
The tips of the butterfly: improvement initiatives in Africa as part of its $1

billion in annual African aid. This engagement has
Linking East Asia, Africa

accelerated and deepened as Japan has felt mar-
ginalized by China’s African ambitions, and Tokyo
I
has learned lessons from the effectiveness (or not)
of its aid.
n the late 1990s, South Africa’s then-Trade Such a focus on skills and education is not going to
and Industry Minister Alec Erwin likened be enough to replicate, or even adapt, the Japanese
the country’s trade strategy to a “butterfly,” model. At its core, it will require understanding
according to which the thorax ran north- the nature of business and its needs to seeing the
south to Europe and North America, while customer—whether a business or an individual—as
the “wings” oriented west-east were to link being at the centre of government’s actions.
Africa with Latin America and Asia.
Erwin’s concept promised much then, as now, for Learning to trust the private sector
a diversification effort, but so far has delivered less. Africa’s development answers lie in providing the
Still, there is much to gain from closer regional ties, space for the private sector to flourish and to estab-
in at least two respects. lish the regulatory conditions in which it can grow to
The first of these is underscored by the growth formalize. There are an increasing number of stories
and nature of economic relations. While trade rela- of sustained entrepreneurial success across Africa.
tions between Africa and Asia have burgeoned, they Too often these stories are, however, in spite of
remain lopsided; Africa is primarily a source of raw often-predatory government interference rather
commodities, Asia an exporter of finished products. than because of adroit policy.
Key aspects of Asia’s relative economic success— African business is supremely practiced at circum-
including high spending on education, bureaucratic venting government obstacles, rather than relying
responsiveness, attractive policy for business in- on government to catalyse and nurture good ideas
vestment, low wages, high productivity, investment and must routinely find workarounds to inefficient
in infrastructure, raised agriculture outputs as an infrastructure. The continent gets ahead now largely
initial spur to growth, and an overwhelming focus because of the power of entrepreneurship and not
on competitiveness—are routinely overlooked by the efficiency of governments.
advocates for autocracies. And, yet, other African countries, such as Bo-
Overall, the most notable differentiating factor Africa’s tswana and Morocco, show how it is possible to run
between the regions of Africa and East Asia is in the development state-owned entities along efficient, commercial
relationship between government and the private answers lie in lines and, in so doing—coupled with streamlined
sector. Japan’s industrialization was, for example, providing the regulatory and tax processes reducing the cost and
based on three key elements: 1) a strong private space for the wear of everyday frictions—provide the requisite
sector supported by an education system providing private sector foundation for external investors.
apposite skills; 2) a supportive state; and 3) a willing- to flourish and The power of the private sector, formal and infor-
ness to attract and absorb outside ideas, technology, to establish mal, can be seen in a multitude of ways, from tourism
skills, and capital. the regulatory to retail. As Asia has shown, state ownership is not
One priority for Japan’s development spending in conditions the problem; it’s how these entities are run. Whether
Africa is on kaizen—the “continuous improvement” in which it they operate along commercial principles or as agents
of the workforce. To this end, a Kaizen Institute can grow to for the redistribution of political largesse is the dif-
was established in Ethiopia in 2013, while the Japan formalize ference between success and failure. (

92 • August 2022
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