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Why Al-Shabaab Targets Kenya

In his first address as the group’s Kenyan operations leader, Ahmed Iman Ali declared the country darsh-al-harb – House of War. Four of the five Dusit attackers were Kenyan. Still, the reasons the group focuses on the country, and not others in the region, run contrary to conventional assumptions. By NGALA CHOME.

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Why Al-Shabaab Targets Kenya
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Al-Shabaab has claimed that its January 15 attack on the Dusit D2 Complex was revenge for President Donald Trump’s decision to move the United States embassy in Israel from Tel Aviv to Jerusalem. This is not the first time that a terrorist attack conducted on Kenyan soil has been justified by its perpetrators on the basis of events occurring thousands of miles away. For instance, the date of the August 7 1998 Al-Qaeda attack on the U.S embassy in Nairobi coincided with the same date, in 1991, when U.S troops first landed in Saudi-Arabia in preparation for the Gulf War, which Al-Qaeda regarded as a Christian invasion of ‘Muslim lands’.

Kenya may have suffered these attacks since it is considered a key ally of the West. But why is Al-Shabaab (an Al-Qaeda affiliate) targeting Kenya more than it is other countries in the region, such as Ethiopia and Uganda, which also have close ties with the West and have fought Al-Shabaab in Somalia? To what extent does Al-Shabaab attack Kenya for the reasons it publicly gives? Will Al-Shabaab, for example, stop targeting Kenya if the Kenya Defence Forces pulled out of Somalia?

Also, why are Kenyans, many of whom are recent converts to Islam, joining Al-Shabaab? Four of the five Dusit D2 attackers were Kenyans. Some analysts have found that status, adventure seeking, financial gain and revenge are prominent drivers of enlistment, while others submit that ideological commitments to an Islamist vision, driven by local Muslim experiences and a global narrative of ‘Muslim victimization’ have stronger explanatory power. Others have argued that it is due to a combination of wider socioeconomic conditions, and individual-level psychosocial characteristics that turn young converts to a path of violent extremism. At the same time, an authoritative account of Al-Shabaab recruitment in Somalia found that despite the varied and complex motivations for joining the group, the most common reasons given include a quest for justice through Sharia legislation and an idea of ‘defensive’ or ‘offensive’ jihad. This way of understanding the world can be regarded as empowering for some individuals, as membership can be compared to a conversion process, which can be considered a central benefit – more than access to material resources – of participating in ‘jihad movements’. These questions and debates, which have preoccupied a community of analysts and practitioners within a broad-based programme for policy intervention commonly referred to as Countering Violent Extremism (CVE), have been laid bare, yet again, in the unfolding drama of the DusitD2 attack.

Kenya may have suffered these attacks since it is considered a key ally of the West. But why is Al-Shabaab (an Al-Qaeda affiliate) targeting Kenya more than it is other countries in the region, such as Ethiopia and Uganda, which also have close ties with the West and have fought Al-Shabaab in Somalia?

At the centre of the attack was Ali Salim Gichunge, the son of a Meru military officer, and the leader of the cell that was behind the attack, and his wife, Violet Kemunto Omwoyo, a Kisii convert to Islam, and journalism graduate at the Masinde Muliro University in Western Kenya. Their story is important as it not only defies Kenya’s ethnic fictions, but also disrupts widespread perceptions of Islamist violence in the country.

Yet, the story of Gichunge and Kemunto is not entirely new, peripheral nor fringe. Exactly six years before Gichunge stormed DusitD2 with his associates, wearing his baseball cap on backwards, wielding an AK-47 rifle smuggled from Somalia, and baying for the blood of innocent civilians, Al-Shabaab announced the appointment of an ‘ideological leader’ for its Kenyan operations: Ahmed Iman Ali, then about 40 years old and of mixed Meru and Kamba origins. In the January 2012 video released by Al-Shabaab’s media wing, al-Kataib, Iman Ali – he grew up in the Majengo slums of Nairobi, graduated with an engineering degree from the University of Nairobi, and became the secretary of Majengo’s largest mosque, the Pumwani Riyadha Mosque, before fleeing to Somalia to join Al-Shabaab in 2009 – described Kenya as dar-al-harb – the house of war. Its people, he said, were legitimate targets of violent attacks.

Why are Kenyans, many of whom are recent converts to Islam, joining Al-Shabaab?

Years before he joined Al-Shabaab, Iman Ali led an ouster of the Pumwani Mosque committee, which he accused of corruption and embezzlement. Speaking against a litany of socio-economic hardships afflicting his predominantly Muslim neighbourhood, Iman Ali was a powerful balm for Majengo’s long-felt sense of exclusion and powerlessness in a Christian-dominated country.

That was in 2007. In 2012 when he was announced leader of Al-Shabaab’s Kenya operations, he was believed to be in command of hundreds of foreign fighters with the Somalia-based group, most of whom were his childhood friends from Majengo, with origins in Central Kenya, Rift Valley, Nyanza and Western regions.

At the centre of the attack was Ali Salim Gichunge, the son of a Meru military officer, and his wife, Violet Kemunto Omwoyo, a Kisii convert to Islam, and journalism graduate at the Masinde Muliro University in Western Kenya. Their story is important as it not only defies Kenya’s ethnic fictions, but also disrupts widespread perceptions of Islamist violence in the country.

Gichunge had himself graduated from high-school in 2011 with a mean grade of C+, and after his hopes of playing rugby for his school were dashed after he was bullied by other students – it led to him having to change schools – he turned his to Information Technology. It was while working at a cyber-café in Isiolo that Gichunge, who was raised in a strict Muslim household, got introduced to radical online sheikhs. He left Isiolo for Somalia immediately after that. Amongst the group of Kenyan Al-Shabaab militants he met in Somalia were former bandits, some with serious criminal records.

Most of these recruits would have been shuttled to Somalia by Juma Ayub Otit Were, a Muslim-Luhya born and raised in the Huruma slums of Nairobi. After he was accused of theft by his employer in Eastleigh, losing his job as a result, Ayub secured a new role with Iman Ali’s outfit, the Muslim Youth Centre (MYC), where he became responsible for shuttling a large number of recruits from Nairobi’s slums and other parts of up-country Kenya to Somalia to join Al-Shabaab. The police, who were trailing his activities, code-named him ‘Taxi-Driver’.

Years before he joined Al-Shabaab, Iman Ali led an ouster of the Pumwani Mosque committee, which he accused of corruption and embezzlement.

Some of the early recruits, like Sylvester Opiyo and Kassim Omondi aka Budalangi, both of whom hailed from Nairobi’s Majengo slums; and Jeremiah Okumu aka Duda Black and Stephen Mwanzi aka Duda Brown, who hailed from Nairobi’s Kibera slums, were all well-known thugs before joining Al-Shabaab. Their predisposition towards violence and unlawful behaviour turned a new leaf when the prospects for military training with Al-Shabaab in Somalia became more imminent. After developing networks with Iran, Ali’s group at the Pumwani Riyadha Mosque, whose influence since 2007 had spread to other mosques in Nairobi, especially those located in neighbourhoods long-neglected by government service, namely Masjid Kibera, Masjid Huruma, and the Masjid Nuur in Kawangware, they quickly converted to Islam and travelled to Somalia to join Al-Shabaab. They were funnelled towards Al-Shabaab’s Majimmo’ sector in Southern Somalia – an area of operations assigned predominantly to East African militants – under the command of the then 25 year-old Titus Nabiswa, who was a recent convert to Islam from Bungoma in western Kenya. In Nabiswa’s group were other militants from the Kenya coast, who had largely been radicalised by the sermons and mosque lectures (darsas) of the late Sheikh Aboud Rogo and the late Abubakar Shariff, aka Makaburi, two Mombasa preachers who had come to symbolise the face of Islamist terror in Kenya. Also in the group were Kenyan-Somalis (mostly from Nairobi’s Eastleigh and South C districts), including foreign militants such as Jermaine Grant and Thomas Evans from England, and Andreas Martin Mueller from Germany.

By 2012, Ali Gichunge, who was partly raised inside the Isiolo army barracks, was screening new Kenyan recruits in Baidoa, almost all of whom were Christian converts to Islam.

Upon their return to Kenya in 2010, some members of this group were responsible for a spate of killings, targeted especially at police officers, including twin-grenade attacks at Uhuru Park on June 13 that killed six people during a campaign rally organised by Christian leaders to drum up opposition against the proposed constitution of 2010. The police responded strongly to this violence, which seemed unsanctioned by Al-Shabaab’s core leadership in Somalia, was distinctively unilateral, and largely uncoordinated.

After developing networks with Iman Ali’s group at the Pumwani Riyadha Mosque, whose influence since 2007 had spread to other mosques in Nairobi, especially those located in neighbourhoods long-neglected by government service, namely Masjid Kibera, Masjid Huruma, and the Masjid Nuur in Kawangware, they quickly converted to Islam and travelled to Somalia to join Al-Shabaab.

By 2014, with the killing of Makaburi – it was the last of targeted assassinations of radical sheikhs including Aboud Rogo most probably by Kenyan security forces – most returnees of the Majimmo sector group had either been arrested, killed, or were on the run from the police. For instance, Stephen Mwanzi and Jeremiah Okumu were abducted in Kisauni, Mombasa, in June 2012, never to be seen again; Kassim Omondi was killed in a gun-fight with the police who had gone to arrest him in his Githurai hideout in May 2013; while Titus Nabiswa was arrested and later killed during an escape attempt in Majengo, Mombasa in October 2012. Jermaine Grant was arrested in Kisauni, Mombasa, in December 2011, but his accomplices, Fuad Manswab Abubakar and Samantha Lewthwaite, aka, the white widow, and who earned her moniker from the death of her ex-husband (and Grant’s friend) Germaine Lindsay when he blew himself up during the London bombings of 2005, escaped to Somalia.

The security threat posed by this group had been eliminated. Or so it seemed.

Amniyaat and Jaysh Ayman

Meanwhile, Al-Shabaab’s reclusive and ambitious former leader, the late Ahmed Abdi Godane, was in search of a more potent offensive against Kenya – a need that was intensified by Kenya’s decision to send its troops to Somalia to root-out Al-Shabaab from its key bases in October 2011. The plans begun in mid-2013, after Godane had eliminated key figures within Al-Shabaab’s Shura (Executive Council) that had opposed his vision of turning Al-Shabaab from an essentially Somali movement into a transnational Islamist threat.

By 2014, with the killing of Makaburi – it was the last of targeted assassinations of radical sheikhs including Aboud Rogo most probably by Kenyan security forces – most returnees of the Majimmo sector group had either been arrested, killed, or were on the run from the police.

Godane took matters into his own hands, by bypassing the network of Kenyan Al-Shabaab members, he went ahead and tasked key figures within Al-Shabaab’s special operations and intelligence branch known as Amniyaat to begin planning operations against Kenya. At midday on 21 September 2013, 4 militants under the command of Amniyaat stormed Nairobi’s upscale shopping centre, Westgate, lobbing grenades and firing indiscriminately at shoppers. The subsequent siege lasted 80 hours and resulted in at least 67 deaths.

Following Westgate, Godane ordered a reorganisation of Al-Shabaab’s military wing, Jaysh al-Usra. The commander in the Lower and Middle Juba regions, Mohamed Kunow Dulyadeyn, a Kenyan-Somali from Garissa, began expanding his operations into Garissa and Wajir while Adan Garar, his counterpart in the Gedo region, expanded into Mandera. While this meant that attacks in Northeast Kenya would intensify from 2013 onwards, the leadership vacuum that was left by the 2011-2014 purge of Kenyan Al-Shabaab members had created a problem.

In Nairobi, Mombasa, Isiolo and Marsabit, where radical preachers and their militant followers had exercised some control, before suspected agents of the state killed most of them, a storm was brewing. At the Masjid Musa in Mombasa, the radicalised and violent followers of Rogo and Makaburi were growing ever more impatient, keen on proving their worth to Al-Shabaab’s core leadership in Somalia. In fact, a criminal gang formed around the leadership of a protégé of the late Makaburi called Ramadhan Kufungwa, a Digo from Ukunda in the South Coast. According to the police, Kufungwa ordered the gang to conduct a spate of robberies and killings of police and suspected police informers in Mombasa in 2014-2015.

In Nairobi, Mombasa, Isiolo and Marsabit, where radical preachers and their militant followers had exercised some control…a storm was brewing. At the Masjid Musa in Mombasa, the radicalised and violent followers of Rogo and Makaburi were…keen on proving their worth to Al-Shabaab’s core leadership in Somalia.

One of the gang’s members was a Tuk-Tuk driver and high-school drop-out called Mahir Khalid Riziki, who ended his life in a suicide mission at the DusitD2 attack, but was then a resident of Bondeni, a seedy rundown neighbourhood in Mombasa, and a sad reminder of its glorious past. Mahir and his friends immediately found themselves on the police radar. Using networks cultivated by Kufungwa, most of them made their way into an Al-Shabaab hide-out in the Boni forest, where a new unit called Jaysh Ayman (named after its first commander), had been formed in 2014 under the leadership of another former resident of Bondeni, Luqman Osman Issa.

Jaysh Ayman brought together Al-Shabaab fighters from Uganda, Tanzania and Kenya, and was part of Godane’s plan to turn Al-Shabaab into a potent regional force. In June-July 2014, Jaysh Ayman targeted the mainland areas of Lamu County, parts of which are covered by the Boni forest, where they killed close to 97 people in a rampage that shocked the nation and therefore, bolstered Al-Shabaab’s reputation for daring attacks and spectacular violence. Despite the death of most of its early leadership during an attack at a military camp within the Boni forest in June 2015, the unit has remained a potent threat to Kenya’s national security. By the time Gichunge and Mahir joined the unit, the Kenyan contingent of Al-Shabaab militants was larger, and better trained, and featured amongst its ranks, both the educated and uneducated, including petty criminals, drug addicts and HIV positive-persons. It is these militants that Al-Shabaab is now sending to Kenya as suicide-bombers and attackers.

Jaysh Ayman brought together Al-Shabaab fighters from Uganda, Tanzania and Kenya, and was part of Godane’s plan to turn Al-Shabaab into a potent regional force.

Still the question remains: why does Al-Shabaab target Kenya?

Trans-border attacks as propaganda by deed

Despite the claim that Al-Shabaab targets Kenya due to its passion for global jihad and to pressure the Kenyan government to remove its troops from Somalia, the evidence suggests that Al-Shabaab is driven by different strategic concerns and highly rational reasons. Granted, there has been an uptick in Al-Shabaab attacks in Kenya since October 2011, when Kenya sent its troops to Somalia, but Al-Shabaab attacks in Kenya go back to May 2008, when a police post in Liboi (a few kilometres from the Somali border) came under fire. Jermaine Grant, who had been held in the post after he was arrested on his way to Somalia to join Al-Shabaab, was freed during the attack.

The Global Terrorism Database (GTD) recorded 14 more attacks before September 2011, and then 49 in 2012, 35, in 2013, 80 in 2014, 42 in 2015, and 45 in 2016. While the GTD is yet to provide figures from 2017, existing evidence shows that of the 302 trans-border attacks perpetrated by Al-Shabaab from 2008-2016, 3 occurred in Ethiopia, 5 in Uganda, 2 in Djibouti and 291 in Kenya. Brendon Cannon and Dominic Pkalya, in a recent article, have argued that beyond sharing a border with Somalia, Al-Shabaab targets Kenya more than other frontline states because of the opportunity spaces linked to Kenya’s international status and visibility, its relative free and independent media that widely publicizes terrorist attacks, a highly developed and lucrative tourism sector that provides soft targets, expanding democratic space and high levels of corruption. In sum, these variables play into Al-Shabaab’s motivations and aid planning and execution of acts that aim to fulfil the group’s quest to survive – as it losses more ground in Somalia – by maintaining its relevance on the global stage.

Of the 302 trans-border attacks perpetrated by Al-Shabaab from 2008-2016, three occurred in Ethiopia, five in Uganda, two in Djibouti and 291 in Kenya.

The Westgate, Lamu, Garissa University College, and DusitD2 attacks are all examples of attacks of maximum effect, because they garnered Al-Shabaab international headlines and catapulted it back to the centre of debate amongst counterterrorism practitioners and policymakers. This visibility serves to attract the attention of terrorist financiers, potential recruits and allies. As argued by Cannon and Pkalya, Kenya offers an array of convenient targets to Al-Shabaab that result in relevance through the regional and international publicity of propaganda by deed that is usually desired by terrorist groups.

The Westgate, Lamu, Garissa University College, and DusitD2 attacks are all examples of attacks of maximum effect, because they made international headlines and catapulted Al-Shabaab back to the centre of debate…This visibility serves to attract the attention of terrorist financiers, potential recruits and allies.

With the sizeable contingent of Kenyan militants that Al-Shabaab now controls, it is probably a matter of when, not if, Al-Shabaab will stage another attack in the country. In this way, more needs to be done to scale-up counter-terrorism efforts, especially in border security and intelligence gathering, as more support is given to prevention strategies at the communal and individual level so as to counter radicalisation.

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Ngala Chome

Ngala Chome is Doctoral Candidate at the History Department, Durham University. His email is ngala.k.chome@gmail.com.

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India Election 2019: Modi’s Victory Signals Growing Far Right Intolerance in India and Around the World

Narendra Modi epitomises the kind of neo-fascist right-wing leadership that is sweeping across some parts of Europe, the United States, South America, Asia, and even Africa, where the likes of Donald Trump, Victor Orban, Benjamin Netanyahu, Rodrigo Duterte and Jair Bolsonaro are imposing intolerant, highly regressive policies that polarise populations and create false “them-versus-us” narratives.

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India Election 2019: Modi’s Victory Signals Growing Far Right Intolerance in India and Around the World
Photo: Flickr/Narendra Modi
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The re-election of Narendra Modi as India’s Prime Minister (his second term) is hardly surprising but does signify a worrying global trend of increasing intolerance and xenophobia. India’s weakened opposition – personified by the lacklustre and lightweight Congress leader, Rahul Gandhi – had no chance in a country riding on a wave of nationalism that equates Hinduism with patriotism. Rahul Gandhi’s lineage (he is the son of former Prime Minister Rahul Gandhi, the grandson of India’s “Iron Lady”, Indira Gandhi, and the great grandson of India’s founding father, Jawaharlal Nehru) failed to attract sufficient voters, perhaps because the Gandhi family is associated with the kind of dynastic politics that Modi says he is eschewing. (Modi never fails to remind Indians that he is the son of a tea seller who rose through the ranks without the support of any political godfather or dynastic family.)

Modi and his Bharatiya Janata Party (BJP) have been selling the narrative that the Hindu religion and way of life have been undermined by centuries of subjugation of the Indian people, first by Muslim Mughal conquerors/emperors, then by British colonialists, and finally by the secularist (read Congress) politicians who led India to independence and thereafter imposed a socialist mindset on the country’s governance. This narrative also feeds off the decades-old rivalry between India and Pakistan that began when India split into two countries at independence in 1947.

The re-election of Narendra Modi as India’s Prime Minister (his second term) is hardly surprising but does signify a worrying global trend of increasing intolerance and xenophobia

As the activist and author Arundhati Roy quipped, being a Muslim in Modi’s India is now considered unpatriotic. “Of late, the criterion for being considered anti-national has been made pretty simple: If you don’t vote for Narendra Modi, you’re a Pakistani. I don’t know how Pakistan feels about its growing population.” (The number of Muslims in India is almost the same as the number of Muslims in Pakistan, around 180 million.)

Despite not keeping many of his promises (like improving the lot of India’s struggling farmers), Modi managed to rally his countrymen and women behind him. The reasons for this are many, among them a compliant and conservative Indian media, which did not challenge his divisive politics. As one Indian commentator put it, “A major section of the media has been a willing accomplice in the marketing of the Modi cult and the over-selling of the government’s performance in various ‘schemes’.”

Modi and his Bharatiya Janata Party (BJP) have been selling the narrative that the Hindu religion and way of life have been undermined by centuries of subjugation of the Indian people, first by Muslim Mughal conquerors/emperors, then by British colonialists, and finally by the secularist (read Congress) politicians who led India to independence and thereafter imposed a socialist mindset on the country’s governance

Indeed, the mainstream media and journalists have been under increasing attack in recent years by the BJP government. Journalists have also been targeted for assassination by Hindu fundamentalist groups, among the most recent case being that of Gauri Lankesh, an outspoken left-wing journalist who was killed outside her house in Bangalore in 2017.

Elitist politics

Modi’s victory perhaps reflects an Indian electorate that is fed up with the elitist kind of politics associated with the Congress Party, which, despite (or perhaps because of) its secular credentials, failed to inspire a majority of the country’s people who have lost faith in the institutions that Nehru and his successors in the Congress party set up. As Ramesh Thakur commented in an op-ed piece in the Times of India, “Inevitably this [Congress Party culture] morphed into the VIP culture that Indians by and large detest with a depth of contempt, anger and resentment” – a situation that Modi fully exploited.

Aatish Taseer explained some of the reasons for Modi’s victory in a recent TIME magazine article:

“The nation’s most basic norms, such as the character of the Indian state, its founding fathers, the place of minorities and its institutions, from universities to corporate houses to the media, were shown to be severely distrusted. The cherished achievement of independent India – secularism, liberalism, a free press – came to be seen in the eyes of many as part of a grand conspiracy in which a deracinated Hindu elite, in cahoots with minorities from the monotheistic faiths, such as Christianity and Islam, maintained its dominion over India’s Hindu majority. Modi’s victory was an expression of that distrust.”

Modi’s and his party’s supporters claim that he has brought India into the 21st century, and rather than being a traditionalist, he is actually a modernising reformer. (However, as he himself has pointed out, he does not equate Westernisation with modernisation; rather, he sees all the trappings of modernity in India, such as being fluent in English, drinking alcohol or eating meat, as contrary to the Hindu ethos of vegetarianism and spiritual purity. (Alcohol and meat are no longer on the menu at state banquets and several states in India have banned the eating of beef.)

As the activist and author Arundhati Roy quipped, being a Muslim in Modi’s India is now considered unpatriotic. “Of late, the criterion for being considered anti-national has been made pretty simple: If you don’t vote for Narendra Modi, you’re a Pakistani. I don’t know how Pakistan feels about its growing population

But Modi’s claim that he is taking India into modernity are not entirely accurate. India under the leadership of the Congress Party’s Oxford-educated Manmohan Singh, first as Finance Minister, then as Prime Minister, ushered in the first wave of liberalisation in the early 1990s, which opened up the economy to foreign investment and led to the deregulation and privatisation of various sectors. Modi is simply riding on the back of that first wave, which, fortunately, also coincided with rising economic growth, which catapulted millions of Indians into the middle classes.

Modi’s main appeal lies in his ability to convince a majority of India’s people that he is a reformist that can uproot India’s entrenched corruption and make government bureaucracy less cumbersome by ushering in a business- and private sector-friendly environment that can compete with the likes of China and the United States.

He also appeals to the aspirational instincts of India’s rising middle classes, who are eager for a cleaner, more efficient India. They say that the BJP has increased the country’s economic potential by building new roads, highways and airports. This is evident in cities such as Mumbai and New Delhi, where the infrastructure has been markedly improved in some areas. The Prime Minister’s campaign to clean up India and improve access to sanitation has also been welcomed by a population used to seeing filth on the streets of Indian cities and villages. He even managed to mesmerise some leading Bollywood stars, who not only campaigned for him, but even stood as candidates on a BJP ticket.

Hindutva and fascism

Modi is no doubt a charismatic and disciplined leader, but his brand of politics can also be dangerous for a nation, especially a nation as vast, diverse and complex as India. He represents a particular kind of nationalism-cum-populism that has the potential to fragment a country irreversibly and take it back to place where rights and freedoms are arbitrarily – not universally – applied.

Modi’s main appeal lies in his ability to convince a majority of India’s people that he is a reformist that can uproot India’s entrenched corruption and make government bureaucracy less cumbersome by ushering in a business- and private sector-friendly environment that can compete with the likes of China and the United States.

While paying lip service to secularism, Modi has entrenched an insidious form of Hindu nationalism (Hindutva) that has allowed anti-Muslim, anti-Christian and anti-Dalit (lower caste) sentiments to flourish. Physical attacks and violence against non-Hindu groups and individuals have risen in recent years and the image of India as a country that accepts all religions is being severely eroded. India, a land of immense diversity and where virtually every religion in the world has found a safe home, is now being touted as land for and of only Hindus.

The BJP has also embarked on propagating a revisionist history of India that fails to recognise that the subcontinent has never been a purely Hindu entity; it has been an amalgam of different religions for centuries, and Hinduism itself has undergone various transformations since its birth some four thousand years ago. In fact, one could say that India has never been a purely Hindu country, and that Hinduism is not so much a religion as it is a way of life that is interpreted differently by every Hindu, depending on her God, what region she hails from, and what caste group she belongs to.

Unfortunately, Modi epitomises the kind of neo-fascist right-wing leadership that is sweeping across some parts of Europe, the United States, South America, Asia, and even Africa, where the likes of Donald Trump, Victor Orban, Benjamin Netanyahu, Rodrigo Duterte and Jair Bolsonaro are imposing intolerant, highly regressive policies that polarise populations and create false “them-versus-us” narratives. Brexit and growing neo-Nazi and racist groups in Europe and the United States have further fuelled the idea that outsiders are to blame for a nation’s woes. In India, Modi’s Hindutva has emboldened Hindu chauvinists who no longer feel they need to hide their hatred for other races and religions. In all these places, democratic institutions are being weakened and the media and intellectuals are being vilified. Fascism – the feverish exaltation of ethnicity, race, nation or religion above the rights of the individual – has become the new normal.

Modi’s victory perhaps reflects an Indian electorate that is fed up with the elitist kind of politics associated with the Congress Party, which, despite (or perhaps because of) its secular credentials, failed to inspire a majority of the country’s people who have lost faith in the institutions that Nehru and his successors in the Congress party set up

There is also an inherent anti-intellectualism in these leaders’ statements and a propensity to install pliant and mediocre people whose only qualifications are sycophancy and blind loyalty to the leadership. In the Indian state of Uttar Pradesh, for instance, the BJP appointed a hate-mongering Hindu priest as chief minister, and did not suffer any consequences for this grave mistake. These trends, not just in India, but in many parts of the world, should worry all those committed to promoting human rights and democratic values.

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Out of the Box Thinking or Garbage Can Policy: Is Jubilee’s Government Protectionism and Economic Controls Good for the Country?

Uhuru Kenyatta’s grand scheme, the Big Four manufacturing agenda, is predicated on the restoration of protectionism and economic controls. But as DAVID NDII argues import licensing and exchange controls – the old tools of the trade – are no longer available, hence the “out of the box” solutions of the Jubilee government.

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Out of the Box Thinking or Garbage Can Policy: Is Jubilee’s Government Protectionism and Economic Controls Good for the Country
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In October last year, Uhuru Kenyatta fired a broadside at imports of fish from China: “The Finance bill has passed but we can think outside the box. We might as well say the fish imported is bad then we lock it. There are many ways the government can work if we really intend on serving our people.”

The trick backfired. The ban was imposed in November and lifted two months later following what was reported as a “biting shortage”. Had he taken a quick peek into the Economic Survey – the government’s annual statistics report that should be on his desk – he would have noted a steady decline in domestic fish production over the last five years – from 160,000 tonnes to 98,000 tonnes, a difference of 35,000 tonnes. Imports in 2018 were 22,000 tonnes, not enough to plug the deficit. On several occasions prior to the ban, senior government officials had been widely reported explaining that Kenya has a large and growing fish deficit. That they went ahead to implement a harebrained roadside declaration tells us everything we need to know about the state of sycophancy in the Jubilee government.

The latest from the Uhuru Kenyatta out-of-the-box policy institute is a proposed ban on used motor vehicle parts. Initially reported as a blanket ban, the Government has since clarified that it is limited to particular parts that endanger safety, such as brake pads. Sensible, isn’t it? Roads full of overloaded matatus and Proboxes with faulty brakes is a scary thought.

Road safety is not the business of trade policy. The person most at risk from a defective vehicle is the driver so, a safe, roadworthy car is in their interest. That said, drivers do kill and maim themselves and others far too often, not just because of defective vehicles but also by dangerous driving, notably speeding and drink driving. I can say without fear of contradiction that defective drivers, and not defective vehicles, are the single largest cause of road accidents. Moreover, there is no law that compels owners to service their vehicles. In many countries, vehicles over a certain age are required to undergo regular roadworthiness inspections. In the absence of a law requiring vehicle owners to replace worn parts, banning the import of used parts is an exercise in futility. What, then, is the ban in aid of?

The latest from the Uhuru Kenyatta out-of-the-box policy institute is a proposed ban on used motor vehicle parts. Initially reported as a blanket ban, the Government has since clarified that it is limited to particular parts that endanger safety, such as brake pads. Sensible, isn’t it? Roads full of overloaded matatus and Proboxes with faulty brakes is a scary thought.

Some economic history background is helpful and this is the history of the import control regime that was in place from the early 70s to the early 90s. The regime was a two-stage process, the first of which was the acquisition of an import licence. Import licences were issued by a committee of the Ministry of Commerce and Industry known as the Import Management Committee (IMC). Having acquired an import licence, one proceeded to apply for a Foreign Exchange Allocation Licence (FEAL) at the Central Bank. The role of the IMC was to implement quantitative restrictions. It would review the imports to be authorised based on the domestic production capacity and adjust the amount of imports that would be allowed in accordingly. Obviously, it is impossible to do this for hundreds of products when both the production capacity and the size of the market are constantly changing. Moreover, for some strategic products, importers were required to obtain a “no objection” from the domestic monopoly.

While import substitution industrialisation became the accepted justification, this was actually not how the control regime came about; import substitution industrialisation had been proceeding satisfactorily using tariff protection without import and foreign exchange controls. The regime was put in place in response to the effects of the 1973 oil price shock on foreign exchange and the controls were supposed to be temporary, to be lifted once the effects of the shock subsided. The effects subsided and were, in fact, followed by a coffee boom that more than offset the oil price shock, but the control regime remained.

I can say without fear of contradiction that defective drivers, and not defective vehicles, are the single largest cause of road accidents

Once it was in place, people discovered that it was useful in other ways. Everything about the regime was subject to bureaucratic discretion that could be abused – and was abused – in two ways. First, the determination of import tariffs was completely discretionary, and was determined to a considerable extent by political influence as opposed to economic logic. Second, influential incumbents were able to buy protection not just from imports but also from potential domestic competitors. Suppose an established incumbent noticed a competing product from a new local manufacturer on the shelf. With sufficient influence, the incumbent would get the bureaucrats to frustrate the competitor by denial or long delays in obtaining import licences or foreign exchange allocations. The surest way of buying influence was to have a business relationship with powerful people in government, either as sleeping partners or as distributors or suppliers. The overall effect was a corrupt, distorted, unpredictable policy regime that stifled competition and rewarded inefficiency, effectively undermining investment and entrepreneurship.

It should not come as a surprise then that by the early 80s, import substitution industrialisation had stalled. In Sessional Paper No.1 of 1986 on Economic Management for Renewed Growth, the government owned up to the failure of import substitution industrialisation and ushered in the era of market liberalisation and economic policy reforms known as structural adjustment programmes (SAPs). The paper argued that the state-centric protectionist economic model had reached a dead end. In particular, it highlighted the system’s failure to create jobs and warned that, unless it was reformed, we would be “overwhelmed” by population growth.

The trade regime was one of the first targets for reform. The first task of the reform agenda was an exercise known as tariff harmonisation, which culminated in three tariff bands: 0 per cent for raw materials and capital goods, a 10 per cent band for intermediate products and a 25 per cent band for finished goods. Also included was a list of items prohibited for health and safety reasons. The second task was the removal of import licences and foreign exchange controls, which was completed in 1993. The same regime was subsequently adopted by the East African Community. The effect of these reforms was to level the playing field and to tie the government’s hands, and the policy regime itself became stable and predictable. It is this policy straightjacket that the out-of-the-box solutions are meant to circumvent.

In Sessional Paper No.1 of 1986 on Economic Management for Renewed Growth, the government owned up to the failure of import substitution industrialisation and ushered in the era of market liberalisation and economic policy reforms known as structural adjustment programmes (SAPs)

Up until 1993, the reforms had been proceeding in fits and starts, with several reversals in between due to resistance from vested interests. But in the aftermath of the 1992 general elections, the Goldenberg chickens came home to roost. Staring an economic meltdown in the face, Moi accepted to open up the economy in exchange for a financial bailout. The impact was immediate; trade boomed and within a year, Nairobi’s city centre was transformed into one big bazaar. People spruced up. On the streets, you could no longer tell people’s socio-economic status by their appearance – everyone was well dressed. In the rural areas, patched up clothes disappeared. Everyone wore shoes. Motor vehicle ownership boomed. Vehicle registrations, which had been in decline, rebounded immediately, growing 22 per cent per year over the next five years, and 12 per cent per year over the decade (see chart). Owning a decent car ceased to be a status symbol for the upper echelons of society, and they resented it – some still do.

The rationale for foreign exchange controls – that liberalisation would cause scarcity – was blown out of the water; foreign exchange availability actually improved. But most importantly, the prognosis of the 1968 Sessional Paper on employment was vindicated; employment growth doubled from 4.8 per cent in the previous decade, to 9.4 per cent in the decade following liberalisation. This labour absorption was driven by an explosion in micro and small enterprises, particularly in trade, but also in jua kali manufacturing and in other sectors as well. Supermarket shelves featured a wide variety of colourful, affordable local brands of consumer goods – toiletries, shoe polish, vegetable oils – where previously choice was limited to two or three staid multinational brands that had remained unchanged for twenty years or more.

Staring an economic meltdown in the face, Moi accepted to open up the economy in exchange for a financial bailout. The impact was immediate; trade boomed and within a year, Nairobi’s city centre was transformed into one big bazaar. People spruced up.

Uhuru Kenyatta’s grand scheme, the Big Four manufacturing agenda, is predicated on the restoration of protectionism. But import licensing and exchange controls – the old tools of the trade – are no longer available, hence the “out of the box” solutions.

The used spare parts ban opens a window for bureaucrats to rummage through every consignment of used car parts looking for prohibited parts. Bribes, demurrage and other transaction costs will go up. Many businesses, particularly small ones, will be driven out of business. Maintaining the diverse models of imported used cars will become a challenge and the used-car import trade will be strangled to death by regulation and bureaucracy.

Uhuru Kenyatta’s grand scheme, the Big Four manufacturing agenda, is predicated on the restoration of protectionism. But import licensing and exchange controls – the old tools of the trade – are no longer available, hence the “out of the box” solutions.

The Draft National Automotive Industry Policy featured in this column a month ago has precisely this situation as one of its objectives. This ban complements the plan to initially lower the maximum age of used-car imports to five years from the current seven, and then to three years, effectively putting cars out of reach for many people.

But the Government has a plan – model rationalisation and homologation. Model rationalisation means reducing the number of models sold in the market while homologation simply means state certification. The policy is “geared towards an entry model for the local market based on acceptability and affordability”. In short, the state will choose one model of car that will be mass-produced for the local market.

The logic of this is as follows: because we are a small market, having too many models makes it difficult for the local assemblers to have economies of scale. This of course means that the chosen model will be frozen in time technology-wise, and will probably be available in just a couple of colours. But of course, in other markets, design and technology will be moving on and therefore, this will only work if “the people’s car” is protected from the imported used cars that consumers would prefer.

This has been done before; India had the Ambassador, the Soviet Union had the Lada, and East Germany the Trabant. We had the Peugeot 504, which we kept assembling for at least a decade after it had gone out of production. I had the good fortune of visiting Berlin in my youth, just a year before German reunification, and I still recall the surreal images of Trabants sputtering along on one side of the Wall while BMWs, Audis and Mercedes Benzes whizzed by on the other. I find it difficult to contemplate that, thirty years on, and on the cusp of the fourth industrial revolution, we have apparatchiks formulating communist industrial policy.

In the decade after the 1993 “big bang” as we called it, the economy created four million jobs – 400,000 a year, compared to 80,000 a year in the preceding decade. In the absence of these reforms, Kenya would have preceded Zimbabwe on the route to land invasions and economic meltdown. We may not have led then, but we are certainly doing our best to follow now.

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In Whose Interest? Reflecting on the High Court Ruling Against John Githongo

The core issue in the Murungaru v Githongo case remains whether the revelations of the Anglo Leasing scandal – which was not just exposed in the Nation newspaper that published the Githongo Dossier in 2006, but was also extensively documented by the British journalist Michela Wrong in her book, It’s Our Turn to Eat were in the public interest.

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In Whose Interest? Reflecting on the High Court Ruling Against John Githongo
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The awarding of a hefty Sh27 million ($270,000) in damages to the former minister Christopher Ndarathi Murungaru by the High Court judge Joseph Sergon has sent a chilling message to all those who might be inclined to report corruption or wrongdoing within government: do so at your own peril.

Murungaru’s libel case against anti-corruption activist and former Governance and Ethics Permanent Secretary, John Githongo, has raised serious questions about whether court decisions are being made without due reference to constitutionally-protected rights and freedoms and whether Kenya’s judiciary has been “captured” by the state.

These questions were recently discussed and debated at a public forum in Nairobi organised by various civil society organisations, and attended by prominent legal minds, including the former justice minister and NARC leader, Martha Karua, who described the Sh27 million award by the judge as “outrageous”. Karua, who has been accused by her critics of not doing enough to protect Githongo when she served in Mwai Kibaki’s administration (when the so-called Anglo Leasing scandal that implicated Murungaru and others in government was exposed), stated that the case will make people afraid of coming out and reporting corruption within government. She further claimed that when she realised that many of the Anglo Leasing contracts that Githongo had exposed in what is known as the “Githongo Dossier” were fraudulent, she made several attempts to have the government not honour them, but was thwarted in her attempts by none other than the then Attorney General, Amos Wako.

As George Kegoro, the Executive Director of the Kenya Human Rights Commission, pointed out, “This case was about isolating John and exposing him financially. It was to embarrass and ruin him and to silence him.”

Wachira Maina, a constitutional lawyer and governance consultant, believes that this case illustrates how “state institutions have been repurposed for private gain”. He wondered why Murungaru had not sued the Nation newspaper, which published the dossier, suggesting that the case was a personal vendetta against a soft target who could be financially crippled by the case. As George Kegoro, the Executive Director of the Kenya Human Rights Commission, pointed out, “This case was about isolating John and exposing him financially. It was to embarrass and ruin him and to silence him.”

The amount awarded to the plaintiff also seemed unusually large. As Jill Ghai noted, “If you lose a leg in an accident in Kenya, the most you get awarded is 2 million shillings, so 27 million for damages is outrageous.”

“The court did not consider that Anglo Leasing happened under Murungaru’s watch,” said Maina. He further pointed out that every ruling in the courts must “pass the constitutional test”, which this ruling clearly did not. “There is no single reference in the judgement to the constitution. Judges are not only expected to apply the constitution, but are also expected to interpret law to reflect the constitution.”

Did the public have the right to know the people and events that constituted the Anglo Leasing scandal? Definitely, because billions of Kenyan taxpayers’ shillings were involved, and the contracts signed had to do with national security

Several countries are reconsidering their libel laws and amending them so that they do not impinge on freedom of speech and the right to access to information, which are constitutional rights in many countries, including Kenya. These rights and freedoms become even more salient when the publication of certain information is in the public interest. The UK’s Defamation Act of 2013, for instance, curtailed what is known as “libel tourism” (libel cases brought by people who go to court in countries where they are most likely to be awarded large amounts of money in damages) and extended to the mass media the “qualified privilege” defence, which provides protection from a defamation lawsuit for journalists who publish information that is in the public interest.

Perceived injury to an individual versus public interest

The core issue in the Murungaru v Githongo case remains whether the revelation of the Anglo Leasing scandal – which was not just exposed in the Nation newspaper that published the Githongo Dossier in 2006, but was also extensively documented by the British journalist Michela Wrong in her book, It’s Our Turn to Eat: The Story of a Kenyan Whistleblower, published in 2009 – was in the public interest. Did the public have the right to know the people and events that constituted the Anglo Leasing scandal? Definitely, because billions of Kenyan taxpayers’ shillings were involved, and the contracts signed had to do with national security. (The Anglo Leasing scandal, as the corruption scam that Githongo exposed has come to be known, was a series of fictitious security contracts signed with shell companies by the Moi and Kibaki governments that cost the Kenyan taxpayer millions of dollars. According to reliable estimates, the contracts were worth more than $700 million, of which an estimated $250 million was paid out). Some of those implicated are currently facing trial in the Kenyan courts.

Kimeu said that the role of the judiciary is to interpret the law, and to do so in line with the aspirations of the people. “This case was about Kenyans and their money,” he stated. “The case made an example of John – it is basically telling us to lie low. If you speak out, it is to your personal detriment.”

Moreover, the court must determine that there was “actual malice” on the part of Githongo when he claimed that Murungaru and four other high-level government officials orchestrated the Anglo Leasing scam. So, for instance, there needed to be evidence that Githongo deliberately tried to malign Murungaru in order to cause harm to him or to damage his personal or professional reputation. (Murungaru claimed that he lost his parliamentary seat as a result of Githongo’s allegations, which is neither here nor there.) As Samuel Kimeu, the Executive Director of Transparency International-Kenya, rightly asked, “How is it that a perceived injury to one person trumps the public interest?”

Kimeu said that the role of the judiciary is to interpret the law, and to do so in line with the aspirations of the people. “This case was about Kenyans and their money,” he stated. “The case made an example of John – it is basically telling us to lie low. If you speak out, it is to your personal detriment.”

Kimeu highlighted that there is currently no law in Kenya that protects whistleblowers, which makes exposing wrongdoing a daunting task, and that this particular libel case has had a “disorienting” effect on those who protect the public interest.

Integrity issues

Prof. Kibe Mungai, an advocate of the High Court, admitted that many judges and public officers in Kenya disregard the constitution, especially on issues to do with integrity and values. However, as I have noted in previous articles, the precedent was set by none other than the current presidency, Uhuru Kenyatta and William Ruto, who stood for the highest political office in the land despite being indicted by the International Criminal Court (ICC) for crimes against humanity. By doing so, they contravened Article 73 of the constitution that states that “authority assigned to a State officer is a public trust to be exercised in a manner that … promotes public confidence in the integrity of the office”.

In my opinion, Kenyatta and Ruto should have disqualified themselves as candidates in the 2013 election (but could have stood for political office when or if they were acquitted). While I believe that the ICC process has proved to be flawed and perhaps even discriminatory, and that Mwai Kibaki and Raila Odinga – respectively the head of state and the leader of the opposition during the post-election violence in 2007/8 – should have borne ultimate responsibility for the deaths and destruction during that time, I think that by putting themselves up as candidates, Kenyatta and Ruto rubbished both the ICC and the Kenyan constitution – an unfortunate development that severely eroded Kenya’s reputation as a country that upholds the rule of law and which had a detrimental effect on the country’s political landscape.

The constitution, in particular Chapter 6 on Leadership and Integrity, was further ignored by a large segment of the Kenyan electorate, which went ahead and voted for Kenyatta and Ruto, not despite the fact that they were indicted, but because they were. The country has been on a downward spiral constitutionally since then, and we the Kenyan voters, have only ourselves to blame.

Justice Sergon also failed to recognise that the role of a whistleblower is not to bring forth evidence, but simply to raise suspicion about possible wrongdoing that will, hopefully, result in a full investigation by the relevant authorities

George Kegoro believes that the case, which took 13 years to conclude, was flawed from the start. First, in March 2015, the previous judge, Justice David Onyancha, disqualified himself from the case on the grounds that there had been attempts to compromise him, while providing no details about who the compromisers were. This raised the question about whether his successor, Justice Sergon, was considered to be a more pliable judge by those who tried to compromise his predecessor.

Moreover, Justice Sergon proceeded as if Anglo Leasing never happened. As Kegoro argued in an opinion piece published in the Standard:

“Besides underrepresenting issues of process in the final judgement, Justice Sergon totally ignored questions of context. The suit against Githongo arose from the Anglo Leasing scandal that gripped the country in 2006, giving rise to a tumultuous political situation that almost toppled the young Kibaki government. The fallout from the scandal included the resignation of Githongo from government before he went into exile in the United Kingdom. Also, a number of high officials, including Murungaru and [former finance minister David] Mwiraria, eventually lost office or were charged in court in relation to the scandal over which there was significant public outrage… Allowing Murungaru’s claim against Githongo has given judicial approval to a blinkered and contrived self-view by the former minister, which is at variance with how the general public has come to view him…”

Yet, in his ruling, Sergon stated: “There were no iota of evidence presented by the defendant and his witness linking the plaintiff to the corrupt practices. Therefore the contents of the dossier in the absence of evidence to establish their truthfulness means that the publication is and was defamatory of the plaintiff.”

Justice Sergon also failed to recognise that the role of a whistleblower is not to bring forth evidence, but simply to raise suspicion about possible wrongdoing that will, hopefully, result in a full investigation by the relevant authorities.

Kenya’s legal history is littered with bad judgements and excessive punishments, not just for those who raise their voices against injustices and human rights violations but also for those ordinary citizens who cannot afford savvy lawyers or who lack access to political influence

Githongo has said that he will appeal the High Court decision, and a crowd-funding mechanism to raise Sh27 million has already been put in place in case he loses the appeal.

Kenya’s legal history is littered with bad judgements and excessive punishments, not just for those who raise their voices against injustices and human rights violations but also for those ordinary citizens who cannot afford savvy lawyers or who lack access to political influence (like chicken thieves who end up eight years behind bars because a judge deemed that a hungry man who steals a chicken is more criminal than a man who robs an entire country).

We must also not forget that Kamlesh Pattni, the mastermind of the Goldenberg scandal in the early 1990s, which almost brought Kenya to its knees economically, is still enjoying fresh air and living large. The Murungaru v Githongo case might just outrage Kenyans enough for them to demand more accountability from governments that steal and from courts that continuously thwart or ignore the will and aspirations of a fatigued citizenry yearning for a more just and humane society.

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