Friday, May 27, 2016

Why This Is Not An IPPG Moment

Kenya today finds itself in the throes of a crisis. In the run up to next year’s scheduled general election, weekly opposition protests and the subsequent brutal crackdown, have deeply polarized the country and left at least three people dead and many others, including police officers, wounded. Though now suspended, a threat to restart the demonstrations if dialogue doesn’t happen still hangs in the air. But beyond the rhetoric, the teargas and the scenes of bloody confrontation, this is above all a crisis of memory and imagination.

We have been here before.  Almost every election in the multiparty era has been preceded by protests and demands for reform. The contestation has mainly been about two questions: the rules governing elections; and who sets and administers them. The latter question is the immediate spark for the current weekly demonstrations with demands for the reconstitution of the Independent Electoral and Boundaries Commission. However, in the background, and sadly barely mentioned, lurks the even more critical issue of wider reforms to the electoral system.

Nearly two decades ago, as the country prepared for another election, near identical scenes of protest over the composition of the then Electoral Commission of Kenya elicited a vicious response from the Nyayo government led to the deaths of 13 protesters on Saba Saba day in 1997 and the formation of the Inter Parties Parliamentary Group which negotiated a raft of reforms. These allowed the country to proceed to the polls later that year.

In our collective memory, the IPPG process was as a seminal moment during which the autocratic President Daniel Arap Moi was forced to accede to the people’s demand for change. George Kegoro, in March described it as “an elite platform that Kenyan political actors and civil society crafted in 1997 to save the country from the disaster that might have resulted from a threatened opposition boycott of the General Election of that year”. 

There are many parallels with today’s impasse including the threat by the opposition Coalition for Reforms and Democracy to boycott the 2017 elections if the IEBC is not replaced. Given that, many are citing the IPPG as a model for resolution. “It is time for another IPPG-like moment in Kenya,” as Mr Kegoro presciently wrote. The insistence by the governing Jubilee coalition and its supporters that Parliament is the appropriate forum for resolving the dispute can also be seen in this light.

However, this telling ignores a few inconvenient facts of history. The IPPG was not crafted by the opposition ad civil society to save Kenya. On the contrary, it was, as Rok Ajulu described in the New England Journal of Public Policy, “a KANU platform … designed to blunt the impact of the reform agenda of the opposition and its allies in the National Convention Executive Council [the civil society coalition that had spearheaded demands for change].” The NCEC correctly saw the IPPG as a tool “to cool the fire raised by the … the demands of the country for electoral reform, and in the process to legitimise the Moi re-election machine," and opposed it.

While the IPPG achieved some reforms, including allowing the opposition a role in appointing ECK commissioners, it was ultimately betrayed and many of the negotiated reforms were not enacted into law following the early dissolution of Parliament. Moi’s successor as President, Mwai Kibaki, would a decade later rubbish the very agreement he had had a hand in negotiating as a non-binding “gentleman’s agreement” and ignore it when appointing ECK commissioners, fatally undermining the ECK’s credibility and setting the country on the path to the 2008 post-election crisis.

Many of the arguments we hear from government types today in favour of a Parliamentary process are a rehash of Moi’s justification for using Parliament, the “legitimate representative of the people” as a means to exclude the citizenry. They highlight the question at the heart of the push for constitutional transformation which, despite the 2010 constitution, we have failed to resolve: Is reform to be a people-driven or state-driven process?

 This is evident in the continuing delegitimization of the street as a proper avenue for political participation and the idea that state institutions are the only acceptable forums for political negotiations. We see it when Boniface Mwangi’s peaceful demonstrations are violently dispersed and hear it when the government attempts to arrogate to itself the power to determine where and when protests can happen.

It is this collective failure to imagine alternative spaces where national questions can be debated and resolved by inclusive collections of wananchi, and not just by politicians or public officials, that is at the root of many of the state’s current legitimacy problems. Sadly, our political processes continue to be more concerned with solving the problems of politicians rather than those of the people.

Going forward, we must insist that any talks on fixing the electoral system not be sequestered in Parliament or participation limited to politicians. This is Kenya’s problem, not Raila Odinga’s or Uhuru Kenyatta’s. We must demand an inclusive national dialogue involving a wide array of stakeholders, including organized civil society and academics. These groups were major drivers for the 1997 “No Reforms, No Election” movement that was locked out of Moi’s IPPG talks. It is time they helped us finish what they started.

Friday, May 20, 2016

Nairobi's Buildings Are Collapsing Under The Weight Of Dirty Cash

When a building in Nairobi’s Huruma estate came tumbling down three weeks ago, killing more than 50 people, national and county government officials wasted no time identifying who the culprits were. On the morning following the collapse, President Uhuru Kenyatta, taking a break from preparations to set fire to the country’s ivory stockpile to tour the site of the Huruma tragedy, reportedly ordered the arrest of the owner of the building.

County officials were also quick to declare that the building had not been approved and was marked for demolition. The National Construction Authority also chimed in, declaring that another 57 buildings in the area had been found unfit for habitations. Demolitions of some of these resumed this week, after Nairobi Governor, Evans Kidero, suspended them for a week “to allow tenants to find alternative housing”.

In all this, the problem identified by officialdom was clear: greedy rogue developers cashing in on the city’s acute housing shortage. They have been assailed for cutting safety corners to maximize profits, corrupting government officials and endangering thousands of innocent lives.

“Shortage of houses, poverty, greedy developers who do not obey the construction standards—construction without proper steel structures to support the building – and valuing money more than the lives are the major issues here,” says Nairobi county Planning and Housing Executive Christopher Khaemba.  

Daniel Manduku, the CEO of the National Construction Authority, the body charged with regulation and coordination of the construction sector, says the country’s laws have not been sufficiently strengthened to deal with the developers. “The law has been weak. Developers are not forced or mandated to use professionals. That is why we’ve had very poor structures coming up over the years,” he says.

 The scale of the problem does point to a collapse in building standards across the capital, perhaps even across the country. In January last year, the NCA warned that over 70% of residential buildings in Nairobi were unsafe.

However, in a piece penned in November 2014, Kwame Owino, CEO of the Institute for Economic Affairs, says that what is commonly seen as a housing problem what actually an income and employment problem.  He says that in a country in which poverty is pervasive, “a cheap house will necessarily be a bad house.” He says the high costs of land and construction are squeezing the poor into ever more decrepit and unsafe housing.

“The largest cost component in construction is the cost of land and to use it efficiently developers build multiple storeys. The next largest cost is materials for pillars, including steel and mortar and this is where many developers cut corners, using substandard materials or even omitting the pillars entirely,” he adds.

Land prices in the city have grown exponentially over the last two decades and today rival, and sometimes even surpass prices for similar property in cities such as New York. A report released by property firm Hass Consult last year showed that real estate prices in the city had grown five-fold in the last seven years.

While many have attributed this growth to the rising demand for housing, the fact is that many of the current real estate projects do not target the poor, who compose the largest share of the under-housed in Nairobi. “Most of the private housing projects one sees are intended to house the middle and upper classes,” says Mr Owino.

In fact, even the middle classes are struggling to cope with the massive surge in prices. According to Mr Khaemba, they are being displaced and increasingly forced into housing that was created for low-income residents, which further reduces the housing available for the poor. “Estates like Umoja were previously meant for low income earners but the entire area has been taken over by middle income class,” he says. The fact that despite high prices, the country has less than 20,000 mortgages also raises doubts as to whether the demand for housing really explains the stratospheric prices.

A 2013 report by for Thomson Reuters Foundation by Global Financial Integrity (GFI), a Washington-based financial watchdog, gives a clue to what is really behind the stupendous ascent of Nairobi’s real estate. It shows that the amount of illicit money entering Kenya from faulty trade invoicing, crime, corruption and shady business activities has increased more than five-fold in a decade to equal roughly 8 percent of Kenya’s economy. According to the report, much of this money is laundered through the real estate and property market.

In effect, massive amounts of dirty money are being pumped into real estate, driving up prices and pushing the most vulnerable into crumbling housing. With the soaring land prices, as Mr Owino noted, a cheap house really is a bad house.  And the fact is the vast majority of poor construction is in predominantly poor neighborhoods of the city, where people have low ceiling for rent. A study by design and engineering firm Questworks found that while the quality of construction work is poor across Nairobi, but was more alarming in less affluent parts such as Buru Buru and Eastleigh.

Even if implemented, the failed Jubilee manifesto promise to build 150,000 housing units and the county government’s promises to construct 14,000 units starting in June are unlikely to produce any lasting changes. They are likely to run into the very same problems that the Kenya Slum Upgrading Project (KENSUP), launched in 2003, has. 

Its flagship project, dubbed “The Promised Land” by local residents, is a rise of multi-storied concrete apartment buildings behind Kibera. The apartments are heavily subsidized and have, for the most part, running water, sanitation and electricity. However, Kibera residents assigned houses or rooms (sometimes up to three families are allocated a single unit) have been trooping back to the slum, preferring the income that comes with sub-letting the units to a middle-class searching for affordable housing in a city with skyrocketing rents.

KENSUP Director, Mr Charles Sikuku, struggles to appreciate the irony of his goal as he told the Nation last year, to “move the slum residents from living below the poverty line to a Nairobi upper middle-class life,” without actually increasing incomes. Even worse, he appears blind to the fact that the real estate bubble is actually driving traffic in the opposite direction. His assertion that the poor are “ungrateful” for subsidized housing demonstrates a lack of understanding that he is housing real people, not just filling up buildings, and that these people will responding to the dynamics and incentives generated by a hyper-inflated real estate market.

In the end, housing is about people not buildings, a fact that appears lost to those charged with resolving the problem but who seem preoccupied with being seen to act rather than actually addressing root causes. Simply jailing developers and their corrupt accomplices, demolishing existing shoddily constructed buildings and enforcing building codes will not address the real problem - a critical shortage of decent, affordable rental housing for the poor driven by the ballooning land prices. 

In fact, in the short term at least, some of them will worsen the situation. Enforcing building standards will come at a cost that already struggling tenants will be asked to shoulder, which will incentivize even more bending of the rules. Similarly, demolishing existing housing, as the county government is doing, will have the effect of driving up prices.

This has already been seen in Huruma where rental prices in the wake of the announced demolitions have reportedly gone up by nearly 50%. In such circumstances, the governments’ offer to pay rent for two months for the families displaced by the Huruma collapse (but not those the eviction orders will displace, or those whose rents will subsequently rise) amounts to little more than a band-aid on a mortal wound. Comprehensive solutions to this problem must therefore mitigate the immediate effects on the poor of enforcing existing laws and building codes. They must also look to policies that will increase, not reduce, the amount of decent housing available to them. 

A walk around the supposedly middle-income neighbourhoods such Kileleshwa reveals the toll the distorted property market is taking. Numerous apartment buildings stand empty, their owners apparently unperturbed by the lack of tenants, even as property prices continue to climb.

As the dirty money pushes the middle classes towards the back, it is inevitable that they will take up whatever little decent space exists for the poor, squeezing them into ever more dangerous tenements. The truth is even government provided low income housing will do little to fix the problem if we do not take measures to enforce anti-money laundering laws and to pop the property bubble. If we do not, we should expect more Huruma-type tragedies.

Of Police Brutality And Imperfect Victims

It was, by any measure, a vicious assault. At least 15 people were hospitalized following Monday’s attack on protestors and bystanders by police during demonstrations meant to press for the ouster of the Independent Elections and Boundaries Commission officials. The scenes beamed around the world of citizens being chased down, clobbered and left to lick their wounds in the street, were a throwback to an era many had assumed was behind us.

Public attention has focused on the particularly brutal beating meted out to Boniface Manono and the image of his crumpled form lying on its side, his body in the street, his head resting on the kerb and menaced by a police officer’s raised boot, has become iconic.

Mr Manono is far from an ideal victim. His story about how he supposedly stumbled on the protest doesn’t appear to gel with the pictures being flashed around social media. What appears to be a stone in his back pocket as he endures police kicks and clubs hints at a more complicated picture than those who would wish to paint a vista of clearly defined villains and victims might wish.

But it is precisely because he is not perfect that we need to pay attention. This is not to endorse any violent or illegal behavior on his part, but to assert a simple truth: the law protects everyone or it protects no one.

In his famous play, A man For All Seasons, Robert Bolt penned a dialogue between a dialogue between Sir Thomas More and his daughter's suitor, William Roper in which the former argues for giving the Devil the benefit of law. “What would you do? Cut a great road through the law to get after the Devil?” he asks the young Roper. “I'd cut down every law in England to do that!” comes the reply. “And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat?” counters Moore. “Yes, I'd give the Devil benefit of law, for my own safety's sake.”

It is for our own safety’s sake that it should not matter whether or not Mr Manono was an innocent bystander or a violent criminal. The idea that the actions of the policemen assaulting him would be any more acceptable if he were a thug should be an anathema to all. For if we allow the police to ignore the law, to cut it down to get after the Devil, we will one day wake up to find that they are ignoring all manner of law in places we had little imagined. After all, the laws we have put in place exist as much to protect us from criminals as from abuse by public officials and officers of the terrible power we bestow upon them.

Similarly, online contestations over whether Mr Manono is a fake stand-in for the supposedly deceased real victim of the battering miss the point, as do the official protestations that he did not die. While the fate of the victim is undoubtedly important, it has no bearing on the legality of the police action and does not render the assault any less atrocious. And the despicable politicizing of the incident threatens to introduce a new and dangerous standard for public assessment of police conduct: did the victim die?

All this distracts from the real issue we should be coming to grips with which is the failure of security sector reforms undertaken thus far to transform the National Police Service from what the 2009 Report of the National Task Force On Police Reforms, better known as the Ransley Report, described as “a punitive citizen containment squad” into a modern institution that lives up to the motto of “Utumishi Kwa Wote”.

Reforms undertaken to date have largely been cosmetic, and haven’t addressed the culture of impunity and cruelty bred by over a century of being the enforcers of a corrupt and thieving political elite. In these circumstances, providing the police with better equipment, as the government has done, just makes them more effective oppressors of the very people they are meant to serve. 

Friday, May 13, 2016

Poor Refugees Make For Convenient Scapegoats

One would be forgiven for thinking the Kenyan government has something against sheltering the poor. The last two weeks have displayed some reflexive, ill-advised and even callous decision making that has left hundreds of thousands of our most vulnerable citizens facing the prospect of enduring nights out in the cold and refugees being pressed back into the arms of the very oppressors they had fled from in the first place.

Last week, I noted that on his visit to the site of the collapsed building in Huruma where at least 50 people died, President Uhuru Kenyatta did not appear overly concerned about the fate of the many who would be rendered homeless by his order that all Nairobi residents living in unsafe buildings be evicted. By his administration’s own count, more than half of the city’s buildings were unsafe, the vast majority in poor areas.

Then came another decision seemingly out of the blue. The Dadaab refugee camp in the remote northern part of the country has been ordered to empty by November, the hundreds of thousands of refugees living there to be forcibly repatriated, most to still warring Somalia. This not only violates Kenya’s obligations under international law, but also rubbishes an arrangement with the United Nations High Commissioner For Refugees for voluntary repatriation of Somali refugees. But more than that, like with the poor in Nairobi, government’s treatment of refugees exposes a callous disregard for their humanity and welfare.

It has long been clear that the poor in Kenya have been considered to be little more than sources for elite plunder, foot soldiers for elite battles and excuses for elite failures. The foreign poor have been especially badly treated by the state - relegated to the margins of society; confined in remote camps; robbed and raped by both state officials and bandits (who are many times one and the same); and then scapegoated for the government’s own security failures.

In an article published in the UK explaining the decision to close the camps, Interior Secretary Joseph Ole Nkaisserry says it was prompted by national security concerns, and especially the threat posed by Al Shabaab terrorists whom, the government claims, used the camps to plan and execute attacks like the September 2013 Westgate Mall atrocity. Of course, the Secretary was not concerned with inconveniences like facts and history.

Perhaps there is a good reason why the piece was published abroad. Many back home will remember that the though the government never provided any tangible evidence linking Dadaab to Westgate, this did not stop it demonizing refugees as security threats. Further, many will recall Operation Usalama Watch in April 2014 which was little more than officially sanctioned pillage of the sort residents in the North East are unfortunately familiar, cloaked in the language of counter-terrorism.

Even more importantly, many will remember the government’s shambolic response to Westgate and other subsequent attacks, the many failures to act on intelligence to stop the attacks and the failure to institute promised public inquiries into them. Many will remember that it was easier to blame the refugees rather than look at the real causes and failures leading to the atrocities.

Of course this did not stop Gen Nkaissery doubling down on his accusations. In an address to the local press a few days later, he accused the refugees of everything from gun running to wildlife poaching. Again, little evidence was offered for the claims. It was another blatant attempt to blame the refugees for the government’s own shortcomings. For example, despite the photogenic bonfires with which it likes to declare its commitment to wildlife conservation, the government’s actual record in this area is far from inspiring.

This same dynamic is present in the response to Huruma and in the implication that poor families move into decrepit buildings out of choice. The idea of evictions, and now of giving those displaced by the collapse tiny amounts to help them move on, implies there is somewhere for them to go. Yet as Kwame Owino of the Institute for Economic Affairs noted in November 2014, what is commonly seen as a housing problem is actually an income and employment problem.  He says that in a country in which poverty is pervasive, “a cheap house will necessarily be a bad house.”

Of course the reasons for poor incomes and high land and construction costs are to be found squarely within the policies pursued by the government as well as the interests it has prioritized. But, as with refugees, it is easier to blame the poor.

Friday, May 06, 2016

Who Will Pull Kenyans From The Rubble Of Their Collapsing State?

As I write this, rescue operations are still ongoing at the site of a collapsed 7-storey building in Huruma where at least 37 people lost their lives, and 136, including a seven month-old baby girl, have been pulled out of the rubble. 70 are still listed as missing.

Sadly, such building collapses are far from a rare occurrence in Kenya. According to one study, between 2006 and 2014, 17 buildings collapsed, killing 84 people and injuring nearly 300. These disasters are all predictably followed by public howls of outrage, government threats of retribution and politicians’ promises of “Never again”. Then it all quietens down, and nothing changes till the next tragedy.

This script is being followed in Huruma, right down to the VIP visits (though the police teargassing of opposition supporters accompanying Raila Odinga to the site was a new twist). Recriminations have already begun in earnest and after initially stressing the futility of finger-pointing and playing the blame game, worried public officials are busy scouting for scapegoats.

Already 5 people, including the building owners and 3 public officials have been arrested but not yet been charged. But even when criminal charges are eventually preferred, history holds out little hope for justice. Two days after the collapse of another 7-storey building in the same neighbourhood which killed 4 people in January last year, Governor Evans Kidero, suspended 18 county officials for failing to enforce the law. It is unclear what followed. No prosecutions appear to have been instituted and at least two, Rose Muema, Chief Officer in charge of Planning, Urban Development and Housing, and Justsus Mwendwa Kathenge, Director of Enforcement and Compliance, appear to have been reinstated once the public outcry passed.

Mr Kathenge is today one of the 3 officials arrested in connection with the latest collapse. He is however, no stranger to our courts. Following yet another building collapse, this time in Embakasi in 2011, which killed another 4 people and injured 14 others, Mr Kathenge and the building owner among others, were charged with manslaughter. However, Mr Kathenge moved to the High Court and obtained orders prohibiting his prosecution.

As with the latest disaster, it is instructive that two years prior, in 2009, the then Nairobi City Council had tried to stop construction of the Embakasi building after finding that it had been illegally erected. However, the developer obtained a court injunction restraining the Council. This is another feature of these tragedies: constant complaints by government officials that the judiciary is standing in the way of enforcement of building codes and of prosecution of negligent officials.

But, like the cases they file, this contention falls apart on closer scrutiny. For example, when stopping Mr Kathenge’s prosecution, Justice Isaac Lenaola said it was “baffling” that the state had not presented any evidence tying him to offences. It seems, as with the half-hearted suspensions 6 years later, there was little will to actually prosecute these cases to the fullest. What is presented as a judicial roadblock to effective executive action is in reality an abuse of the judicial system by an executive that is keen to assuage public anger while shielding its officials from the consequences of their failure to act.

Another Kenyan ritual that follows in the wake of such tragedies is the declaration of knee-jerk and poorly-thought out reactions. President Uhuru Kenyatta set the ball rolling with his illegal order for the arrest of the building owners. He followed this up with what one Twitter wag described as his “let-them-eat-cake moment” when he ordered the immediate eviction of persons living in unsafe residential housing.  Of course, the President did not bother to explain where he proposed to resettle the millions whom this order would render homeless given that an audit by the National Construction Authority that he himself ordered last year found that 58 percent of buildings in the capital were unfit to live in.

Many others have proposed remedies from demolitions to beefing up the capacity to enforce building laws. Few though, are speaking of the need to address the root causes of the economic marginalization that leads people to live in decrepit and dangerous buildings. Even fewer are talking about mitigating the inevitable increases in rent that enforcing building codes would visit on the urban poor. Or of how the massive increases in property prices and rents over the last two decades, driven partly by the laundering of illicit proceeds through the real estate market, are pushing decent housing out of the reach of many city households. As before, the government's tough talk seem designed not to solve the problem, but to get the public to move on by delivering the impression, and not necessarily the reality, of serious action.

It is clear that the dead and injured in Huruma are more than just victims of a collapsed building. They, and indeed all Kenyans, are buried in the rubble of a collapsing state, one built on the shaky foundations of officially sanctioned robbery and impunity. And there is none to pull them out.