The Constitution As A Moral Pact: The Kenyan Case- Alex Njeru

August 2015 marked exactly five years after Kenya got herself a new constitution, oh boy what a half decade it has been? Whereas some things have changed, more things have remained the same, quite in contradiction to the euphoric mood and genuine optimism that characterized Kenya at the spur of that emotional moment on 10th August, 2010, when Kenya promulgated in the new constitution. Outside the borders of Kenya, the Kenyan constitution won critical acclaim, some referred to it as “one of the most progressive constitution”, in the same breadth, critics conveniently forgot that it could be one of the most impractical as well and expensive as well.

But as the times have rolled on, a few things have become clear. The first being that Kenya’s political class does not suffer from the same lack of foresight that afflicts other mortal Kenyan classes. Kenyans could not for example have foreseen how the new devolved structure would turn out to be quite the cash-cow for a devolved political elite and their gangs of cronies, the politicians did not overlook this. The other thing that is clear is that promulgation of the new constitution in 2010 was and is not Kenya’s Magna Carta moment, it did not turn out to be the critical juncture that would have seen the country take up a different trajectory to prosperity seen.

As times have gone on, I have seen experts commentators get their theories in a twist and miss critical issues. See, a constitution is a social contract that lays out how power is distributed in society. In Kenya’s case, the 2010 constitution proximately boundered government. It laid out how the government both at national and local level would exercise the people’s sovereignty. But all the experts have done within the last five years is wax lyrical about the literal value of the constitution, getting into technical arguments about what is and what is not constitutional. Whereas this technical arguments are important, ignoring the deeper philosophical meaning of the constitution is fatal. A constitution is never a constitution for its own sake. A constitution is never effective without institutionalization of a culture of rule of law, which what has happened in Kenya, we have a new constitution for vanity’s sake, sort of walk around with broad shoulders in case anybody asked about countries with new constitutions, and we promptly raise our hands up.

At the very heart of it, a constitution or a social contract is a moral pact between a people and the few upon whose shoulders the responsibility of governing the people is placed. However, there has been very little evidence to show that politicians, leaders and bureaucrats have any regard, nor take this moral responsibility seriously.

As a matter of fact, there has been quite the evidence that the political class is not ready and willing to obey the spirit of the constitution. In the early days of the Jubilee administration, the members of parliament connived to increase their salaries, abhorrently immoral this was given yet there was a constitutional body vested with the mandate to set salaries for public officials. Soon everybody else including the Members of County Assemblies was agitating for more salaries and the Salaries and Remuneration Commission was effectively emasculated. Today the Kenyan legislators both at county earn abhorrent salaries.

Of all the things, the biggest disappointment under the new constitution has been runaway corruption, political impunity and the glaring lack of integrity at various levels of government, Kenyan’s have been unable to keep up with the multiple scandals that spring up every day, and the obvious fiscal burden the constitution imposes. The president, who by the very virtue of the office he holds should be the general in the march towards good governance, mounts only a half-hearted challenge on corruption, the governors, steal, bribe the MCAs and form an unholy congress of theft in devolved units. We Kenyans remain haplessly helpless as virtue is abused all around us.

The annual report of 2013-1014 released by the Ethics and Anti-Corruption Commission (EACC) indicated that a total of 4,006 corruption cases were made. The most notable corruption scandals since 2013 in the central government include the irregular awarding of a tender for designing, supplying, installing and commissioning of command and control system for the National Police Service; procurement irregularities in the tender in concerning the standard gauge railway; alleged irregular procurement of laptops at the Ministry of Education; bribery and abuse of office allegations against officers in the Department of Immigration when processing work permits; irregular procurement of Meridian Medical Centre Limited for provision of outpatient services to NHIF members; and the 1.5 billion procurement of the IFMIS by the Ministry of Devolution.

Notable corruption cases within the county governments include alleged irregularities in the tender for the supply of drugs in Kiambu County; abuse of office by MCAs who awarded themselves construction contracts in Meru County; irregular procurement of the governor’s house in Kilifi County; misappropriation of 19% of funds in Narok County; purchase of second hand laptops for county representatives through single sourcing in Machakos County; irregular purchasing of furniture and other equipment for the speaker’s house in Kisumu County.

We Kenyans have been dazed by the congratulatory messages coming our way on the 2010 constitution, but ultimately our biggest responsibility lies not ensuring that the constitution as a supreme legal document maintains its sanctity, but in ensuring that the moral contract between the political leaders and the ruled majority.



The State of Economic Freedom in the East Africa Community

Every year the Fraser Institute publishes the Economic Freedom of the World Report. The index in Economic Freedom of the World measures the degree to which the policies and institutions of countries are supportive of economic freedom. Economic freedom is a significant condition for any economic development. Economic freedom revolves around; Individuals having the right to do voluntary transactions, acquire and transfer property, legal recourse to contractual issues, benefit from a sound monetary system and the general absence of regulatory restraints to economic and business activities.

Increasing Economic Freedom has positive correlations with increasing prosperity, quality of life and general well-being. Countries in the top quartile of the Economic Freedom of the World Index had an average per/capita GDP of $38,601, whereas countries in the lowest quartile had an average per/capita GDP of $6,986. Life expectancy is 80.1 years in the top quartile compared to 63.1 years in the bottom quartile whereas the Economic Freedom Index does not expressly factor in political democracy, at least six of the top ten countries in the Economic Freedom of the World Index are liberal democracies, while there are hardly any democracies in in bottom ten countries of the EFW index. This means that Political and civil liberties are considerably higher in economically free nations than in unfree nations.

Economic Freedom Analysis

In this review, EAPC aims at doing an analysis of the Economic Freedom Index for select African countries; (EAC and other notable African Countries). This analysis also compares the Economic Freedom of the World Report with the World Bank’s Ease of Doing Business Report. It provides insights into the macro-economic indicators such as GDP and GDP/per capita for the select countries as well.

Variables of Analysis

The EFW examines, 42 variables constructed into 5 broad areas including to provide a comparable basis of Economic Freedom. The five broad categories are:

  • Size of Government;

Which evaluates government consumption as a share of total consumption (GDP).

  • Legal System and Property Rights;

Which evaluates the protection of persons, rightfully acquired property and legal enforceability of contracts.

  • Sound Money;

Evaluates the rate of monetary growth within the economy.

  • Freedom to Trade Internationally;

The components in this area are designed to measure a wide variety of restraints that affect international exchange: tariffs, quotas, hidden administrative restraints, and controls on exchange rates and capital.

  • Regulation

Evaluates the regulatory restraints to free exchange.

The 2015 EFW 2015 Report

In the EFW 2015 report, Hong Kong and Singapore, occupy the top two positions which they have done since 2013.The other nations in the top 10 are New Zealand, Switzerland, United Arab Emirates, Mauritius, Jordan, Ireland, Canada, and the United Kingdom.

Seven of the bottom ten countries are African countries. The Bottom 10 countries are, Angola, Central African Republic, Zimbabwe, Algeria, Argentina, Syria, Chad, Libya, the Republic of Congo, and Venezuela as the 10 lowest-rated countries. Although, EFW data indicates that the chain-linked aggregate rating for African counties is going up. In 2015, Africa, recorded a high rate of freedom economically since 1980 especially in the last two decades.

The table below shows the ranking and EFW ratings (Source: EFW report) of some African countries including their GDP per capita as of 2014 (Source: World Bank).                                  

Economic Freedom of the World Report (Fraser Institute) GDP in $ Billion U$D (2015) GDP/Capita U$D (2015) Ease of doing business index (2015)

World Bank.

Country Rank












Rwanda 36 7.46 29 7.53 34 7.43 $ 7.8 652.1 46
Burundi 145 5.26 145 5.21 138 5.85 $ 3.1 295.1 152
Kenya 87 6.81 77 6.98 66 7.16 $60.9 1,246 136
Uganda 64 7.10 57 7.22 46 7.30 $26.3 677.4 150
Tanzania 93 6.65 94 6.71 82 6.92 $49.1 998.1 131
South Africa 88 6.80 93 6.73 96 6.74 $349.8 6,477.9 42
Nigeria 124 6.21 125 6.19 111 6.44 $568.5 3,184.6 170
Ghana 90 6.71 98 6.65 128 6.20 $ 38.6 1,461.6 70
The Rankings of East African Community Member States in The Economic Freedom of the World Report.

The Rankings of East African Community Member States in The Economic Freedom of the World Report.

East African Community countries with the exception of Rwanda (it is still the top most ranked country in the block) improved their rankings. Their rankings were as follows: Rwanda 34th, Uganda 46, Kenya 66, Tanzania 82nd and Burundi 138th.

In spite of these recent improvements, of African countries remain some of the most economically unfree and among the poorest in the world. Compared to countries worldwide, African nations are heavily regulated and lack robust legal systems; government intervention in business is common and the movement of people and goods are extensively restricted.


This would be exhibited if we check out the top ten countries according to the rankings in the EFW report and also their GDP according to the World Bank as recorded in the table below.

Country EFW


Score GDP 2015 (U$D) GDP/Capita Ease of Doing Business
Hong Kong        1 8.97 $ 274 billion 40,169.6 3
Singapore        2 8.52 $ 307.9 billion 56,286.8 1
New Zealand        3 8.19 $ 185.8 billion 42,409.0 2
Switzerland        4 8.16 $ 685.4 billion
UAE        5 8.15 $ 402.3 billion 42,522.0 22
Mauritius        6 8.08 $ 12.6 billion 10,005.6 28
Jordan        7 7.93 $ 35.8 billion 5,422.6 117
Ireland        8 7.90 $ 232.1 billion 53,313.6 13
Canada          9 7.89 $ 1.7 trillion 50,271.1 16
United Kingdom        10 7.87 $ 2.9 trillion 45,603.3 8


Ease of doing business is also a crucial component to the development of any nation. Countries that are ranking top most or have started putting in place policies and regulations to have a free or rather an easier environment for businesses to flourish can be seen doing very well on the world ranking as depicted by The World Bank. In addition, the countries are not only performing on the doing business indicators but also in other international data sets capturing dimensions of competitiveness. The economies performing best in the doing business rankings therefore are not those with any regulation but those whose governments have managed to create rules that facilitate interactions in the marketplace without needlessly hindering the development of the private sector.

Policy Synthesis

There should be a concerted effort to synergize ongoing business environment reform programs in East Africa with improvements in rule of law and legal systems. It is not surprising that Kenya’s legal system was ranked was among the lowest with an index score of (5.0) and was ranked 89th in the world. Arbitrary policy making and rampant corruption are the main causes of the incoherence of the legal system with the government’s desire to improve the business environment. It is also important for country to adopt softer regulations with regards to the import and export sector. This coupled with the improved logistical efficiency would see the country’s rank in (Freedom to trade internationally).

The convergence of sound democratic and politic systems with economic freedom is also important. This means that East African Community countries have to develop convergence in political governance as this provides the biggest threats to improving business environments and economic freedom.

Analysis By;

Thomas Zidia and Alex Njeru.




Human Freedom Index: the East African Perspective- Thomas Zidia & Polycap Nyaribo

In 1856, Alexis de Tocqueville stated in his writings that, ‘He who seeks freedom for anything but freedom’s self is made to be a slave’. Perhaps the modern times call for a revisit of the Tocqueville’s classical work more than ever before, and that’s exactly why the Cato Institute, the Fraser Institute and other partners published the Human Freedom Index.

Human freedom refers to a social concept recognizing the dignity of individuals, which is the absence of coercive constraint in a country. The Human Freedom Index (HFI) measures the state of freedom in the world through a comparison of countries. 76 unique indicators are used to measure economic and personal which include the rule of law, security and safety, movement, religion, association, assembly and civil society, expression, relationships, size of government, legal system and property rights, access to sound money, freedom to trade internationally, regulation of credit, labor, and business. A total of 152 countries were evaluated for these parameters, on a scale of 0 to 10, where 10 represents more free­dom. Information about the benefits of freedom in the society can be deduced from the HFI, especially in administration. Northern Europe, North America and Western Europe emerged as the regions with highest freedom levels while the Middle East, South Asia and North Africa, Sub-Saharan Africa had the lowest levels.

In Eastern Africa, Tanzania is the top ranked country at position 94 with a Freedom Index (FI) of 6.57. Kenya, Rwanda, Uganda and Ethiopia follow at positions 97, 104, 108 and 145 respectively with FIs of 6.57, 6.45, 6.40 and 5.22 respectively. The Eastern Africa countries are all ranked in the bottom half of the countries surveyed and perform dismally against global average FI of 6.96. The HFI shows that there is a correlation between freedom and democracy since most of the countries with a higher FI have well established democratic systems. On the other hand, Eastern Africa countries are relatively young democracies and these could perhaps explain their dismal performance. Only Tanzania has experienced successive smooth transitions of political regimes.

Countries with a higher index when it comes to the rule of law such as Hong Kong (7.5) and New Zealand (8.1) translates to a higher index for security and safety at 8.7 and 9.8 respectively. These are the key ingredients for ultimate freedom in a country since no one would be infringing on another person’s rights and civil liberties. This is not the case in East Africa where the performance on the rule of law and security is slightly above average. Rwanda is the best performer in this regard at position 78 with an index of 5.1 for the rule of law and 6.7 for safety and security. Kenya (89) and Tanzania (100) rank have indices of 4.3 and 4.7 respectively for the rule of law and 7.7 and 7.4 for security and safety. It is clear that pure freedom cannot exist in an environment that does not adhere to constitutionalism, which usually results in impunity and lack of freedom for citizens.

Nations that rank high for association, assembly and civil society have a higher FI as exemplified by the first 10 nations (having a minimum of 8.9 for assembly, association, and civil society). This shows that these nation allow their citizens to exercise freedom by airing their views within the law. On the other hand, most African countries suppress the freedom of association, assembly and civil society. Kenya has a score of 8.4 while Tanzania has 7.3. East African countries need to increase the space for freedom of association, assembly and civil society if they are to really ensure freedom for their citizens. Freedom must be the ultimate goal for all nations for them to prosper socially, economically and politically.

However, all is not lost since even some of the world’s superpower countries don’t rank at the top. The United States of America ranks at position 20 yet it is at the forefront of championing for global freedom. Africa’s ‘superpower economies’ South Africa and Nigeria ranking at position 70 (6.99) and 139 (5.44) respectively; in East Africa, only Ethiopia performs poorly than Nigeria at position 145 (5.22). The HFI also looked at freedom in terms of economic freedom in various countries with the top quartile of freedom enjoyed at sig­nificantly higher per capita income countries ($30,006) than those in other quartiles; compare that with the per capita income in the least-free quartile which is $2,615. Most African countries fall the lower quartile with countries such as Senegal recording an average FI of 6.20. It is not only Sub-Saharan African countries that perform poorly on the HFI, but also developed countries such as Russia at position 111 (6.36), which is slightly higher the average East African index of 6.22. Kenya (6.57), Uganda (6.40), Rwanda (6.45) and Tanzania (6.58) enjoy more freedom than Russia. China at 132 (5.86) is way below the East African average, yet more developed.


The writers are Junior Research Associates With the Eastern Africa Policy Centre.

What Does Africa Need to Develop?

M-Pesa: An innovative mobile based financial service that is transforming lives.

M-Pesa: An innovative mobile based financial service that is transforming lives.

President Barack Obama is headlining the Global Entreprenuership Summit (GES 2015), which is being held in Nairobi from July 25th. Once again issues of Africa development and what exactly needs to happen for Africa to develop will come to the fore. But what needs to happen for Africa to develop? The following short video by the Eastern Africa policy Centre in Collaboration with Atlas Economic Research Foundation, documents  through the case of M-pesa (a mobile money financial service), how a laissez-faire regulatory regime can provide an optimum environment for enterprise and development.



In this Study EAPC’s Executive Director, Michael Rotich, documents the litany of logistical, structural, and operational challenges that long distance truckers within the East East Africa Community face. Trucking is the lifeblood of the economy in the East African Community, mainly because three of the five member countries (Rwanda, Burundi and Uganda are land locked, with Kenyan and Tanzania the only member countries with access to the oceanic transport. Rail-transport is also under-developed meaning that every day thousands of freight trucks roll across East African borders in a network of international trade. The free flow of goods across borders is vital to economic development, a fact that is no less important in East Africa than anywhere else. But a new report from the Kenya-based Eastern Africa Policy Centre (EAPC) shows that barriers to trade are running up shipping costs and crippling growth in the region.

The study, for example, that driving a standard 20-ton container from Mombasa, Kenya to Kigali, Rwanda costs between $3,400 to $6,500. Shipping the same freight to the UK via Mombasa’s port (traversing two oceans and the Suez Canal along the way) would only cost $2,000 – $4,000. Reasons for the high costs include tariffs, various fees, corruption, and wait times averaging 13 hours just to cross a border.

The EAPC is right to worry about costs to trade in East Africa, where over 70 percent of traded goods pass along two major highways of the East African Community. High shipping costs suppress employment, stifle growth, and prevent African entrepreneurs from reaching foreign markets. You can read the EAPC’s report here. The report has already been covered by major news outlets in the East African Community such as Standard Media Group and Nation Media Group.

Download the Study Here

Aid to Africa Enfeebles Local Capacity

Aid to Africa Enfeebles Local Capacity

imagesHaven’t you all seen grotesque images of a scorched up village tucked away in the middle of an equatorial forest or grassland in Africa? Haven’t you all seen the all too familiar naked child, emaciated, with red, teary eyes, and an empty bowl of porridge in his hands?  Haven’t you heard figures being band around 10 million Africans face death by starvation in the Sahel, the Horn of Africa or the Democratic Republic of Congo? Haven’t you all heard, statements like: ‘the international community must act and act fast to avert the continuing humanitarian crises in the Horn of Africa?’ What is it that makes African problems the responsibility of the international community? Why is the international community obligated to help Africa?

Of all continents the world has ever seen, Africa receives the largest in-flows of aid. The United Nations Office of the Special Advisor on Africa (OSAA) posits that Africa is the greatest recipient of global aid; Africa receives a greater share, at 36%, of the total global aid than any other part of the world. Over the past four decades, aid to Africa has quadrupled from around US$11 billion to US$44 billion, with a net increase of almost US$10 billion during the period 2005-2008 alone. In 2005, the world’s greatest donor nations, the G8, met in the Gleneagles, Scotland, and made commitments to increase aid to Africa. But while aid to Africa has reached record levels, it has fallen well below international commitments. Current forecasts  suggest  a  US$14  billion  shortfall  on  the  original  Gleneagles  estimate  that  aid  would  increase  by US$25 billion a year from 2004 to 2010. Much of this additional ODA was destined for Sub-Saharan Africa where, despite a strong increase in other inflows (such as foreign direct investment and domestic resources), aid still makes an important contribution to government revenues.

download (1)Dambisa Moyo, a long time Afri-aid sceptic, in her damning indictment on aid to Africa writes that, ‘Giving alms to Africa remains one of the biggest ideas of our time — millions march for it, governments are judged by it, celebrities proselytize the need for it. Calls for more aid to Africa are growing louder, with advocates pushing for doubling the roughly $50 billion of international assistance that already goes to Africa each year.

To this day, I am still wondering why global nations have to make aid commitments to Africa. Are they morally obligated to do so? My bone of contention with aid is not around its existence. It is about its use and application around the African continent.

Over a period of time, in Africa, governments, and non-profit organizations have perfected the art of polishing their ‘beggar’s bowls’ in anticipation for aid. Flowery language is used, imminent cataclysm and Armageddon is mentioned as a possible effect of constrained aid flows. Some African bureaucrat, non-profit institutions and hordes of other aid dependent actors have developed and perfected the art of aid seeking.

The perfected aid of aid seeking has one major flaw, the art of aid seeking has a donor orientation. Beneficiaries of financial aid flows dance to donor’s every tune, hum to every high note and bend every moral principle to be appease the donor. Donor orientation means that intended beneficiaries of aid never really benefit, supposed beneficiaries of aid never get the chance to define their development aspirations. Beneficiaries of aid are never allowed to share their priorities.

Aid to Africa no matter the altruistic intentions has never helped communities and it certainly enfeebles the capacity of communities to extricate themselves from poverty. Aid entrenches dependence, not self-dependence which seriously affects the capacity of communities to depend on themselves.

The biggest question around Afri-aid is a moral question. Aid is a forceful mis-appropriation of resources from ordinary tax payers in developed economies to greedy bureaucrats in Africa.

African governments need to rethink their development strategies. They need to refocus and place emphasis on the development of local capacity, not window dressing for donor appeal.