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The Dam Has Broken. Time to Call Jubilee Plunder What It Is

To budget anything from a quarter to a third of the country’s annual GDP for stealing — to then borrow it, steal it, feign outrage, compromise parliament, and diffuse public anger with ineffectual corruption investigations, again and again and again – defies corruption. It is a crime against humanity.

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The Dam Has Broken. Time to Call Jubilee Plunder What It Is
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The debut of this column in the E Review grappled with the Jubilee administration’s profligate spending. As it happens, dams were one of the big red flags that popped up. Records show that during its first term, the Jubilee administration spent upwards of KSh 160 billion on water and irrigation projects. These Arror and Kimwarer dams are costed at KSh 51 billion — let us say KSh 26 billion on average. The KSh 160 billion spent works out to at least six of these dams completed, or alternatively at least double that number under construction. And KSh 26 billion is a huge amount of money for a dam. Thika Dam, commonly known as Ndaka-ini, our biggest reservoir for drinking water to date, cost US$80 million in the early `90s, equivalent of US$140m (i.e. adjusted for dollar inflation) or KSh 14 billion today. These dam budgets are telling us that the cost of building dams has doubled in dollar terms, or that we are building infinitely grander dams. Neither is the case.

We now know for sure that there were no dams built. This mindless plunder is replicated in virtually every sector. The budget records show KSh 280 billion on power transmission lines, enough for 6,000 kilometres of 400 Kv lines (based on the cost of Marsabit-Suswa line), but information posted by KETRACO, the agency responsible for building them, shows only 2800 km of lines under construction, whose total cost is at most KSh 100 billion. We are talking KSh 180 billion missing, an amount, I should add, of the same order of magnitude as the Eurobond money that the Auditor General could not find.

Overall, records show that KSh 2.5 trillion went through the development budget during Jubilee’s first term. The biggest ticket item here is the SGR railway which cost KSh 350 billion. The remaining KSh 2.15 trillion works out to KSh 45 billion worth of development projects per county. The money available to county governments over the same period would have enabled expenditure on average of KSh 6 billion on development projects. In effect, we should be seeing six times more national government development projects in each county as county government ones.

We now know for sure that there were no dams built. This mindless plunder is replicated in virtually every sector. The budget records show KSh 280 billion on power transmission lines, enough for 6,000 kilometres of 400 Kv lines …but information posted by KETRACO, the agency responsible for building them, shows only 2800 km of lines under construction, whose total cost is KSh 100 billion. We are talking KSh 180 billion missing, an amount, of the same order of magnitude as the Eurobond money that the Auditor General could not find.

Makueni county built a 200-bed Mother and Child hospital for a princely sum of Ksh. 135m. Kibra MP Ken Okoth built and equipped a girl’s secondary school that’s been all the rage for Ksh. 48m. A hospital like Makueni’s in every county is KSh 6.4 billion; a girls school like Kibra’s in every constituency, KSh 14 billion. Both combined add up to just over KSh 20 billion — about the money that has already been spent on the ghost dam projects. If national government has spent KSh 45 billion per county on development projects these two projects would not be the talk of the country. There would be the equivalent of 300 Mother and Child hospitals in every county or alternately, 150 Kibra girls schools in every constituency.

Galana-Kulalu Irrigation project is on its death-bed. It is not yet known how much money has gone down that drain. One senior Jubilee official said to me that it is their Goldenberg, to which I quipped that the competition for that dubious appellation would be strong. The last mile connectivity project was one of Jubilees flagship projects: over 800,000 connections are dormant. The connected households have never switched on the power. This should not surprise. Most of these households cannot afford electrical appliances other than a few lightbulbs that they would use only for three or four hours a day. It would have been infinitely more sensible and cost effective to mandate the Rural Electrification Authority to serve these rural hamlets with micro-grids and stand-alone domestic solar installations. The Kenya Power and Lighting Company (KPLC) is now weighed down with the costs of maintaining these loss-making connections. These costs have to be passed on to consumers. And this is over and above the costs of carrying the excess generation capacity courtesy of the equally hare-brained if-we-build-it-they will come 5000 MW drive that has now been abandoned. It has been a long climb for KPLC to recover from the plunder of the Moi regime.

Makueni County built a 200-bed Mother and Child hospital for the princely sum of KSh 135 million. Kibra MP Ken Okoth built and equipped a girl’s secondary school that’s been all the rage for KSh 48 million. A hospital like Makueni’s in every county is KSh 6.4 billion; a girls school like Kibra’s in every constituency, KSh 14 billion. Both combined add up to just over KSh 20 billion — about the money that has already been spent on the ghost dam projects.

This week, we have been entertained by the mysterious disappearance of 51 million litres of aviation fuel worth KSh 5 billion from the tanks of the Kenya Pipeline Company. This follows from a report that KPC lost 23 million litres worth Ksh 2.3 billion in 15 months. Even for the KPC, historically one of the most profitable and cash-rich public enterprises, a KSh 7 billion hole is a crippling loss. When Jubilee took over, the project on the table was to upgrade the 14-inch pipeline with a 16-inch one at a cost of KSh 16 billion. Jubilee scaled this up to a 20-inch one at a cost of KSh 48 billion, three times the mooted cost. The pipeline was to be completed in 18 months — by 2016 that is. Costs have escalated, and it is still not complete. It has been reported that the corruption investigation in KPC covers 27 projects worth KSh 95 billion. Most of this money is expensive foreign commercial loans. It’s hard to see how KPC can remain solvent. We are looking at another black hole here of the same order of magnitude as Kenya Airways, if not bigger.

The mother of all Jubilee financial blackholes is indisputably the SGR. According to Compass International, an engineering and construction consultancy, the benchmark cost for a new single-track high speed rail at between US$997,000 and US$ 1.13m per km, plus cost of signaling infrastructure at between US$154,700 and US$189,000 for a total of US$1.15 million to US$1.3 million The SGR is not an electrified high-speed rail, but we paid $6.7m per km, five times the high end of the benchmarking cost.

Galana-Kulalu Irrigation project is on its death-bed. It is not yet known how much money has gone down that drain. One senior Jubilee official said to me that it is their Goldenberg, to which I quipped that the competition for that dubious appellation would be strong.

After years of denial, a government task force has established that the SGR is not viable. The SGR was sold on bringing down the cost, and improving the efficiency, of freight. According to the said task force, the SGR has increased the cost of transporting a 20-foot container by 118 percent, from $650 (Ksh. 65,000) by road, to US$1,420 (Ksh. 142,000) and by 149 percent for a 40-foot container from $850 (Ksh. 85,000) to US $2,120 (Ksh. 212,000).

There are two components in this cost escalation. First, the SGR tariff is set to try and repay the loans. Even then, the SGR is yet to cover operating costs, let alone generate an operating surplus that can service debt. Secondly, the SGR has introduced additional costs notably “last mile” cost of transporting containers from the railway terminal to the owners premises, as opposed to trucking which is port-to-door, as well as additional container handling logistics. These challenges of integrating rail and seaport are universal, and are part of the reason why the rail share of freight in the EU has declined from over 40 percent in the 70s to less than 20 percent today.

Even for the Kenya Pipeline Company, one of the most profitable and cash-rich public enterprises, a KSh 7 billion hole is a crippling loss. When Jubilee took over, the project…to upgrade the 14-inch pipeline with a 16-inch one at a cost of KSh 16 billion. Jubilee scaled this up to a 20-inch one at a cost of KSh 48 billion, three times the mooted cost. The pipeline was to be completed in 18 months – by 2016 that is. Costs have escalated, and it is still not complete.

The long and short of it is that SGR is increasingly demonstrating what this columnist and others have maintained from the outset— that it is a white elephant. Without being forced, people would not use it. And if it were to charge a competitive tariff, it is doubtful that it would keep the trains running, let alone service its debt. I have opined before that the least costly option may be to mothball it, seeing as the debt will be paid by the taxpayer, we should not be made to pay four times namely, the debt, operational subsidy, higher freight cost and trucking industry jobs and incomes. The next best thing is to take over the debt, cancel the Chinese management contract and leave it to swim or sink in the market place under the management of Kenya Railways. The only beneficiary of this project is China. It is doubtful that the Jubilee administration can muster the resolve to bite the bullet on this one. So we will continue to bleed.

After years of denial, a government task force has established that the SGR is not viable. The SGR was sold on bringing down the cost, and improving the efficiency, of freight. According to the said task force, the SGR has increased the cost of transporting a 20-foot container by 118 percent, from $650 (Ksh. 65,000) by road, to US$1,420 (Ksh. 142,000) and by 149 percent for a 40-foot container from $850 (Ksh. 85,000) to US $2,120 (Ksh. 212,000).

This is Uhuru Kenyatta’s legacy as it now stands. Mindless plunder and worthless vanity projects—a US$ 25 billion (Sh. 2.5 trillion) hole in the economy and counting, and contingent liabilities, financial booby traps if you like, Kenya Airways, Kenya Pipeline, Kenya Power and others we don’t know of yet, that could go off at any minute.

This is Uhuru Kenyatta’s legacy as it now stands. Mindless plunder and worthless vanity projects—a US$ 25 billion (Sh. 2.5 trillion) hole in the economy and counting.

The penny is beginning to drop, and sections of the regime are now beginning to talk about a turn-around strategy that can salvage the President something of an economic legacy. They have their work cut out. Economic crises of this nature are not solved by the same people who created them. Ethiopia’s EPDRF government came to this realisation about a year ago. Ethiopia was headed for a revolution such as unfolding next door in Sudan. Former Prime Minister Hailemariam Desalegn has recently intimated that he resigned to make it easier for the regime to reform. So far, the bet on a leadership change is paying off, even though the new Prime Minister’s magic touch is yet to be tested on the inevitable painful economic reforms. The political honeymoon also appears to be ending.

The penny is beginning to drop, and sections of the regime are now beginning to talk about a turn-around strategy that can salvage the President something of an economic legacy. They have their work cut out. Economic crises of this nature are not solved by the same people who created them.

The rapprochement between Kenyatta and Raila Odinga a year ago, popularly known as the “handshake” offered an opportunity to engineer something similar. But as soon as they pledged to build bridges, Kenyatta set off to burn them. A year later, no-one seems to know where it is headed, other than hazy talk of a referendum, and holding the political ground as Kenyatta prosecutes yet another hypocritical and inept anti-corruption war, as opportunistic as it is ineffectual. With toxic succession politics in full throttle, it is difficult to see how resolve and focus on radical economic reform can be mustered.

Amidst the entire dam hullabaloo, there was a small event last week that did not attract much attention. The cornered Treasury CS took time out from his daily commute to the Directorate of Criminal Investigations to launch a private external audit of the Eurobond funds commissioned by the Treasury. No prizes for guessing that the audit sees no evil. External audit is an exclusive constitutional mandate of the Auditor General. We all witnessed the President staring down the Auditor General on his special audit ordered by parliament. It has yet to see the light of day. The national government’s audit for the year remains qualified. There is no country where questions can be raised about two billion dollars of public money, and the president of the country acts about it as nonchalantly as Kenyatta has, unless there is direct complicity with the thieves. Malaysia’s 1MDB and Mozambique’s Tuna sovereign bond frauds have unravelled. This one will too, in the fullness of time. Kenyatta has plenty of reason to want to extend his influence beyond his term of office.

To plunder the way the Jubilee administration has, it has had to raze the public financial management system to the ground. Without public financial accountability, there is no government, no economy, no country. To budget anything from a quarter to a third of the country’s annual GDP for stealing — to then borrow it, steal it, feign outrage, compromise parliament, and diffuse public anger with ineffectual corruption investigations, again and again and again – defies corruption. It is a crime against humanity.

Yes, the economy is crumbling, but its turnaround is not the priority. Getting rid of this monster called Jubilee is.

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David Ndii

David Ndii is one of Kenya's leading economists and public intellectuals.

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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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