How governments are ‘weaponising’ surveillance

Surveillance technology: used and abused

African states have been deploying surveillance capabilities to spy on and intimidate youth movements and activists

Egyptian army officers monitor local and
international TV stations and websites at the
military press office department in Cairo in
June 2012. Egyptians were voting in a run-off
presidential election, pitting an Islamist against
Hosni Mubarak, amid political chaos, highlighted
by uncertainty over the future role of the army.
Photo: AFP PHOTO/STR

On 20 August, 2016, a group of mostly young social media activists gathered at a property in the Burundi capital, Bujumbura, to discuss national political affairs. The political climate was tense in the central African country following brief, intense protests against the continued rule of long-time strongman Pierre Nkurunziza, politically motivated killings, repression of the media and an attempted coup the year before, in May 2015. As the gathering got under way, police swooped in and 46 of the activists, who had organised the meeting via the messaging app WhatsApp, were arrested. Eight of them were kept in jail for a while. “Police accused them of tarnishing the image of Burundi by spreading defamatory information against public authorities,” said a civil society activist, who spoke on condition of anonymity for fear of reprisal. “Before the arrest of those WhatsApp group members, the minister in charge of public security had issued a threatening statement against social media activists,” the activist told Africa in Fact.

“On 17 May, 2016, he said that those using social media tools to spread rumours should not feel safe; that security services have now acquired the capacity to monitor them, to locate them and arrest them.” The Burundian activist said that in the wake of the incident suspicions grew that the regime had acquired sophisticated digital surveillance capabilities to monitor and intercept the communications of citizens. As a result, with the traditional media sector, especially broadcasting, effectively captured or destroyed by the Nkurunziza regime, and with many journalists having fled the country and now operating from exile, a heavy culture of self-censorship enveloped the country, even on social media platforms. Since the youth-led uprisings that became known as the Arab Spring of 2011 that toppled authoritarian regimes across North Africa, indications are that many African governments have sharpened their communications and digital surveillance capabilities, especially seeking to clamp down on political expression on popular social media platforms that are primarily used by the youth.

In September 2019, the Uganda-based Collaboration on International ICT Policy for East and Southern Africa (CIPESA) Institute released its ‘State of Internet Freedom in Africa 2019’ report, which found: “The continued surveillance of the public, with limited oversight, in addition to the increased surveillance capacity of governments, and the interception of communication, including that of critics and human rights activists, threatens internet freedom. These measures have been coupled with regulatory control of the internet, including now widespread and restrictive measures such as censorship, filtering, blocking, throttling and internet shutdowns evident in several countries.” The report mentions that while most of the repressive surveillance practices uncovered were primarily perpetrated by authoritarian regimes – of which there are apparently 23 among the 55 African governments – even those countries classified as “flawed democracies”, such as South Africa, engaged in highly questionable surveillance activities.

Since 2011, countries such as Angola, Egypt, Ethiopia, Rwanda, Tanzania, Uganda, and the list goes on, have “weaponised” the internet and social media platforms through surveillance and repressive computer misuse, social media tax, and cyber security and terrorism laws. This has been especially noticeable following similar youthful outspokenness online like that which preceded and fuelled the Arab Spring. And some states have even gone as far as deploying troll armies and state sponsored disinformation campaigns – what the Oxford Internet Institute calls “organised social media manipulation campaigns” – to counter narratives on social media platforms that are perceived to be anti-government. In its September 2019 report, ‘The Global Disinformation Order’, the institute identified 10 African governments involved in or running “organised social media manipulation campaigns” – specifically, Angola, Egypt, Eritrea, Ethiopia, Kenya, Nigeria, Rwanda, South Africa, Tunisia, and Zimbabwe.

The growing spectre of harm and alarm represented by such tactics, and the increasingly pervasive nature of state surveillance practices, along with the very real threat of surveillance overreach and abuse – as well as the ease with which surveillance and hacking technologies can be acquired internationally – have given rise to a global climate of widespread repression before expression. This was flagged as a burgeoning global human rights concern by United Nations special rapporteur David Kaye in June 2019. The UN special rapporteur on freedom of opinion and expression, in a report submitted before the UN Human Rights Council (HRC), stated: “We live in an age of readily available, easy to abuse and difficult to detect tools of digital surveillance. In his groundbreaking surveillance report in 2013, the previous mandate holder, Frank La Rue, noted that weak regulatory environments had provided fertile ground for arbitrary and unlawful infringements of the rights to privacy and freedom of opinion and expression.”

Many of the examples of abuse and infringements that Kaye was referring to undoubtedly emanated from the African continent, where some of the more repressive and authoritarian, as well as some seemingly democratic, states have been active over the past decade or so in global digital surveillance technology markets and have been caught out engaging in murky and unlawful surveillance activities. One such country is South Africa. “There’s plenty of evidence that South Africa’s security agencies have put resources into monitoring and interfering with democratic formations, particularly during the Zuma administration,” says Murray Hunter, a surveillance researcher who formerly headed the influential Right2Know (R2K) campaign’s state surveillance monitoring project. “This includes civil society groups, student protest movements, dissident unions, and media organisations. “A few years ago, there was also reporting on a leaked SSA [State Security Agency] document that revealed the agency’s official national security estimates, i.e. what it perceives to be the biggest genuine threats to state security,” Hunter explains.

“As this report shows, the state was frankly and seriously anticipating an Arab-spring style uprising in the lead up to the 2014 elections. In other words, the state had reframed what many would consider to be legitimate and unrelated social protest as a potential existential threat.” South African civil society and the media have exposed such practices over the years and even taken the state to court. In September 2019, the investigative journalism initiative, the amaBhungane Centre for Investigative Journalism, supported by R2K and others, won a high court judgment that effectively scrapped the primary law enabling communications surveillance and interception, the notorious Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) of 2002. With SSA expected to appeal the high court decision, and the South African Police Service (SAPS) already having lodged an appeal, it’s unclear how the case will eventually end. But the decision reverberated around the world and has emboldened international calls for reform of state surveillance practices globally.

One country in particular need of reform is Zimbabwe, just north of South Africa, which has a long history of repression of legitimate dissent and political expression. While invasive state surveillance was already an uncomfortable fact of life for political activists and journalists up until then, since 2016 the situation has become much worse, according to political activist Henry Munangatire. He was one of the core organisers and strategists of the July 2016 #thisflag pro-democracy protest movement – run primarily via various social media platforms on mobile phones – spearheaded by young Zimbabwean pastor Evan Mawarire, who attracted a large youth following and international attention, as well as state harassment, intimidation and repression. Munangatire said that at the height of the #thisflag movement, which called on people to stay home in protest at the state of the country, state security operatives used the state’s communications surveillance capabilities to hunt down and imprison youth movement leaders, many of whom managed to evade capture and had to be smuggled out of the country.

“All of a sudden you had young people using this hashtag to talk about their economic and social situations, which at that point were a result of 36 years of corruption and mismanagement of the country by Zanu-PF,” he says. “The success of this movement culminated in building social media activism and on-the- ground activism, which, of course, led to the creation of other hashtags, such as #Mugabemustgo, which were created online and led to civil disobedience and people expressing discontent at the system. “So it was at that point that the Zanu-PF government realised it didn’t know what to do with the internet and they started crafting a cyber security Bill. And that Bill basically sought to criminalise the use of social media in politics and social activism, even if it is peaceful activism,” Munangatire says. He added that while the cyber security Bill had moved onto the back-burner since the 2017 military coup that removed long-time Zimbabwean dictator Robert Mugabe from office, it has since been revived by the Mnangagwa regime, which has pushed for its urgent enactment into law.

The Zimbabwe Cyber Crime, Cyber Security and Data Protection Bill was approved by the Mnangagwa cabinet at the beginning of October 2019 and has been sent to parliament for enactment into law. The Bill has already attracted criticism for its provisions that enable a clampdown on social media. The 34-year-old Munangatire said he lives under constant and invasive state surveillance and has been arrested twice for his political activities over the years. His experiences are unfortunately not isolated ones on the African continent. The warning signs for Africa are clear and everywhere, as articulated in the CIPESA ‘State of Internet Freedom in Africa 2019’ report: “While digital authoritarianism has been in existence for decades, it is clear that its use by authoritarian regimes to surveil, repress, and manipulate domestic and foreign populations is a tool of state control over their rights. If left unchecked, democracy and internet freedom will continue to regress.”

However, according to Hunter, the situation was not all doom and gloom. “While pervasive surveillance may be a fact, we should not assume that it’s an inevitable fact,” he says. “As societies, we need to raise the political and social cost of security-statist thinking. That means helping raise public awareness of the issues and the threats and the costs of surveillance. We can march for privacy, and vote for privacy, and debate and discuss for privacy, and pay for privacy and donate for privacy and design for privacy and litigate for privacy and legislate for privacy – and we should.”

Frederico Links is a Namibian journalist, editor, researcher, trainer and activist. Research associate of Namibia’s Institute for Public Policy Research (IPPR). He is primarily concerned with democracy and governance, particularly corruption and maladministration. He is chairperson of the Access to Information in Namibia (ACTION) Coalition of civil society, media and social activists.

Opaque and difficult to quantify

Light weapons: a roadmap

Africa has made some innovative interventions to reduce illicit small arms flows, despite a scarcity of data and challenges on several fronts

A member of the Sudan People’s Liberation Movement (SPLM) armed forces sings moments before casting his vote at a polling
station in southern Sudan’s regional capital, Juba, on 9 January, 2011 in the first hours of a week-long independence referendum, which led to the formation of South Sudan. Photo: ROBERTO SCHMIDT / AFP

In January 2017, the 28th Ordinary Session of the Assembly of the African Union adopted its Master Roadmap for Silencing the Guns in Africa (AUMR) by the year 2020. The AUMR recognises that the use of small arms and light weapons continues to destabilise the continent – while the causes and factors driving conflicts in the continent have changed. The document encompasses a number of steps and modalities for action, with a focus on preventing the illicit flow of weapons throughout the region. Among those, reliable information and analysis are critical to understanding the nature, extent and impact of illicit small arms proliferation. It is against this background that the AU Commission and Small Arms Survey undertook the first ever continental mapping of illicit arms flows, with a view to promoting transparency and stronger commitment among African states to use evidence-based approaches to controlling the proliferation, circulation, and trafficking of small arms.

The report, “Weapons Compass, Mapping Illicit Small Arms Flows in Africa”, published in January 2019, unpacks trends in illicit small arms proliferation, reviews examples of existing good practice and summarises recommendations to tackle illicit flows. Defining these illicit arms is not easy because they take many forms. In outline, illicit arms are those “weapons that are produced, transferred, held or used in violation of national or international law” and can include both military-style small arms and light weapons and commercial firearms. The report draws on a review of existing knowledge combined with new research, including consultations with and contributions received from multiple stakeholders, such as AU member states, regional economic communities, regional bodies, and specialised UN and civil society entities.

In particular, between 2017 and 2018 21 African countries and a number of international actors responded to data requests and questionnaires previously prepared by the Small Arms Survey. The mapping that resulted from the analysis identified six major sources of illicit weapons, originating both from within and outside Africa. For better data visualisation and analysis, the continent has been disaggregated into the five regions as designated by the AU (northern Africa, western Africa, central Africa, eastern Africa and southern Africa). Action is required on several fronts, notably at the regional and national levels. The implementation of international instruments such as the Arms Trade Treaty (ATT) and the United Nations Programme of Action (PoA) can contribute to significantly preventing and reducing illicit arms flows on the continent.

Moreover, a number of subregional organisations have been mandated to tackle one or several aspects of small arms issues: in 2016, 22 organisations out of 52 worldwide working to implement the UN PoA were based in Africa. Nevertheless, very few African states have put mechanisms in place to keep track of arms trafficking. Data on illicit weapons is scarce and the scale of the phenomenon can only be roughly estimated. Illicit flows are opaque and difficult to quantify, given the concealed, multifaceted and context-specific nature of the trade. Despite increased international attention to small-arms related issues, to date there has been only limited progress in states’ reporting and transparency on the core issues relevant to arms control. Firstly, information on both the authorised industrial production and transfer of small arms is patchy.

Despite gaps in reporting, though, there is evidence that several countries maintain capacities to produce small arms or ammunition. Curiously, capacity seems to exist in at least 19 states, with most of them located in northern Africa (capacity in Kenya, Ethiopia and Uganda is, though, to be confirmed). Secondly, authorised trade in small arms is also relatively poorly documented as statistics are based on states’ voluntary reporting and less than half of African states report to the main platform, the UN Commodity Trade Statistics Database. The available statistics, however, suggest that the value of reported imports to Africa has been increasing since the beginning of the century, with northern Africa as the subregion that imports the most small arms, averaging $62 million per year, followed by western Africa ($35 million). Thirdly, data on both licit and illicitly held weapons is similarly scarce.

Small Arms Survey’s estimates indicate that civilian actors hold more than 40 million of the small arms on the continent; by contrast, armed forces and law enforcement agencies hold less than 11 million small arms. Past studies used to give an overall figure of 100 million arms in the continent, but the numbers could thus be larger. West Africa has the largest number of both licit and illicit civilian-held firearms on the continent (roughly 11 million), followed by north Africa (10.2 million). Staggeringly, Africa seems to host relatively few small arms compared with other global regions: its rate of 3.2 civilian-held small arms for every 100 people compares well to the rate in the Americas, which is 46.2. Illicit weapons in Africa enter the market at virtually every stage of the weapons’ life cycle.

Legacy weapons from past conflicts in the continent, and in particular from the peak of Africa’s late 1990s/early 2000s civil wars, still constitute the main source of illicit firearms in circulation. However, research indicates other important sources, ranging from recently manufactured weapons to weapons imported recently from outside Africa or diverted from legal commercial flows. The iTrace System, developed by Conflict Armament Research, shows, for instance, that between 1% and 3% of illicit small arms documented in Somalia and Burkina Faso and between 9% of ammunition seen in Burkina Faso and 17% in Somalia have been manufactured since 2010. The source of these weapons is both internal to Africa and external. Cross-border trafficking is a major source of weapons across all of the African sub-regions.

Documented weapons often reflect small scale smuggling of arms and ammunition, but this so-called “ant trade” can involve large volumes of arms trafficked into conflict theatres. As a result, weapons are often trafficked between countries without contiguous borders, or re-circulated across large geographical areas. Smuggled weapons also include weapons that were recently diverted from national stockpiles. Outflows of looted national stockpiles followed the collapse of the Libyan government in 2011, for instance. Weapons of Libyan origin were reportedly trafficked to a number of neighbouring countries and as far as the Central African Republic (CAR) and Somalia. Diversions from national stockpiles remain a primary concern in the Sahara-Sahel region as well as in central Africa.

Weapons from Ivorian stockpiles, for instance, have been recovered in a range of countries, including the CAR, where weapons formerly belonging to Chad and the Democratic Republic of Congo (DRC) have also been found. Diversions from national stockpiles are also a concern in African sub-regions less affected by conflict, as media reports in Madagascar and South Africa show. Diversions from national stockpiles include weapons lost or seized from troops deployed in the context of peace operations. The main actors of land-based trafficking are typically armed groups, criminal gangs, local manufacturers, corrupt security officials, as well as peacekeepers returning from international duty. Smaller-scale trafficking can also involve local border communities. Pastoralist groups in Kenya (Turkana), Uganda (Dodoth) and South Sudan (Toposa), for example, have traded arms across borders to protect themselves and their cattle.

Interestingly, intelligence-based information sharing is currently helping to reveal that terrorist organisations such as Al-Qaeda-linked groups have acquired capacities to move equipment across borders in western Africa. Arms can be also diverted from civilian holdings, although the extent of this phenomenon is particularly difficult to measure. As of June 2018, only 12 African countries had provided statistics to Interpol’s illicit arms record and tracing management system, which allows police agencies worldwide to record detailed information on firearms lost, stolen, or trafficked. Other sources, however, show that the diversion of civilian holdings can be significant. In South Africa, for example, during the year 2015/2016, an average of 20 firearms per day were stolen from private individuals.

The proliferation of unlicensed craft producers represents an enduring threat throughout Africa. Craft production appears to be concentrated in West Africa, where at least 12 countries appear to host craft producers. The weapons produced range from rudimentary hunting weapons to sophisticated firearms, including copies of assault rifles. In some of these countries, the possession of craft-produced weapons is common. Such weapons are involved in 80% of gun-related crimes in Ghana, whereas in Nigeria 17% of rural gun owners hold them. The nature and extent of craft production capacities is less clear in eastern and southern Africa. However, it is known that capacities exist in almost half of AU member states, with the exception of northern Africa. Overall, craft production is the second-most prominent source of illicit weapons.

Many of the illicit small arms circulating in Africa originate from the continent. However, external sources of illicit arms have gained prominence over the past few years. Arms transfer diversions are well documented in the context of arms embargoes. Africa is both a recipient and source of embargo-breaking arms transfers. Violations of the arms embargo imposed by the UNSC on Libya, South Sudan, Ivory Coast, the CAR and Somalia have been documented. Analysis carried out by UN experts and monitoring groups shows that the largest cases of transfer diversions have been directed to Libya, before the strengthening of the arms embargo in 2014. Middle Eastern states have been repeatedly identified as points of origin for several cases of illicit transfers of small arms to embargoed countries.

Yet at the same time, illicit weapons from Libya before 2014 were destined not only for Africa but also for the Middle East. Illicit transfers to Africa, including in violation of arms embargoes, originate also from Europe, notably eastern Europe. A relatively recent phenomenon is the proliferation of converted imitation firearms, which enables the circulation of illicit handguns at a much-reduced cost. While this was initially particularly significant in North Africa, major shipments of readily convertible imitation guns from Turkey have recently been intercepted in, or on their way to, Djibouti, Egypt, Libya, Sudan, and Somalia. In 2017, 25,000 Turkish imitation pistols were seized in Port Kismayo, Somalia. External sources of illicit small arms include the diversion of recently authorised imports of arms and ammunition.

Such diversions were a regular occurrence in Africa in the 1990s, but the phenomenon has decreased to some extent because conflict actors are increasingly relying on more sophisticated ways of procuring small arms already available on the continent. The limited participation of African states on international information-sharing platforms has not prevented the continent from hosting innovative interventions to tackle illicit arms flows, which in a number of cases have proved to have a positive impact on illicit flows. Joint border initiatives represent an emerging area of good practice, such as the joint border commission established between Kenya and Ethiopia and the cooperation agreement between Chad and Sudan. Joint commissions are also being established such as that between the CAR, Chad and Sudan on the one hand and Cameroon, Chad, Niger, and Nigeria on the other.

Sub-regional, cross-border security strategies, such as the Mano River Union Strategy, and regional joint operations are also gaining traction. An example of the latter was Operation Trigger III, a firearms seizure conducted simultaneously in nine North and West African countries by Interpol in cooperation with UNODC and WCO in 2017. Other notable arms-control measures relate to sub-regional and national end-user controls. States such as Burkina Faso and South Africa, as well as regional organisations such as ECOWAS, have developed national and sub-regional end-user control systems. Addressing gaps in the certification and verification of end uses and end users is key to preventing the diversion of arms. The approaches discussed above are, however, limited to specific sub-regions.

The mapping study mentioned earlier has provided a typology for categorising broader illicit arms flows, but many knowledge gaps remain, especially in the area of policy planning. We need more information in a range of areas, such as studies of the demand factors driving illicit arms flows and the scale and nature of illicit arms flows in non-conflict settings. The study also shows that there is room for improving current practices in a number of areas, for instance as regards the disposal of surplus and collected weapons, including those recovered in the context of peace operations. More attention needs to be paid to the quality of national legislation on the enforcement of arms embargoes, as well as emerging threats such as convertible imitation firearms.

Continental and sub-regional instruments designed to reduce illicit small arms flows are in place, but fulfilling such commitments requires engagement at international, regional and national levels. It is recommended that the AU’s political bodies engage with external players to encourage, for example, the main arms exporters to Africa to report their exports. Strengthening cooperation and information exchange at the regional level by establishing sub-regional and national databases to monitor trends will also be key to generating actionable weapons intelligence. Last but not least, national authorities need to change their approach to the coordination of assistance and capacity building efforts, and better support capacity-building initiatives in these areas.

Africa has made some innovative interventions to reduce illicit small arms flows, in line with efforts at the international, regional and sub-regional levels. Raising awareness about them could be a valuable asset in countering the major drivers of illicit weapons flows, and contribute to the successful implementation of the Silence the Guns agenda in Africa.

Sigrid Lipott is an associate researcher at the Small Arms Survey, where she works on illicit arms proliferation and trafficking, arms embargoes, and peacekeeping. She holds two master’s degrees in diplomacy and a PhD in transborder policies from the International University Institute of European Studies. She has worked at the European Projects Association and at the European External Action Service in Brussels

International crimes at home

Uganda: justice in transition

This east African nation is ready for its first war crimes trial

By Mark Schenkel

Thomas Kwoyelo is the first person to face trial in Uganda for crimes he allegedly committed while fighting for the Lord’s Resistance Army (LRA), a nearly 30-year-old rebel group that now operates in the Central African Republic and the Democratic Republic of Congo (DRC). A Uganda Supreme Court ruling in April removed legal hurdles for Mr Kwoyelo’s criminal trial to resume, marking an important transition to using a special domestic court instead of relying on an amnesty law to deal with combatants of the rebel outfit led by Joseph Kony. Since the LRA began operating in northern Uganda in 1987, the group has killed more than 100,000 people, abducted more than 60,000 and displaced about 2.5m, according to the UN. A date for the resumption of the trial, which was suspended in 2011, has not been set. Uganda has adopted a reconciliatory approach towards LRA combatants, but commentators say applying it to serious crimes, such as murder, rape and kidnapping has fostered impunity.

The country’s Directorate of Public Prosecutions (DPP) says that the Kwoyelo trial will offer lessons to “the international community” on prosecuting internationally defined crimes at a national level. Thomas Kwoyelo was a colonel, a mid-level LRA commander. He ended up in the hands of the Ugandan army after a joint offensive by Uganda, the DRC, and the Sudan People’s Liberation Army from southern Sudan (before it became independent South Sudan in 2011) in December 2008 on an LRA camp in the north-eastern DRC. Prosecutors charged him in 2010 for violating Uganda’s 1964 Geneva Conventions Act by committing murder, kidnapping and destroying property in northern Uganda. His trial began the following year. After four years of legal challenges, a Supreme Court ruling in April finally set the stage for the resumption of Mr Kwoyelo’s trial before the High Court’s International Crimes Division (ICD), a court established in May 2011 specifically to deal with genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and other international crimes.

“Thomas Kwoyelo is a guinea pig for the Ugandan state and judiciary,” says one of his lawyers, Nicholas Opiyo. He argues that Mr Kwoyelo, like all other LRA combatants before him, is entitled to amnesty. Most LRA fighters were forced to join the LRA and attack their own communities. To lure them away from the rebel group, the government established the Amnesty Act in 2000. Since then, arrested or defecting LRA combatants who denounce rebellion can apply for amnesty. In the last 15 years, about 13,000 LRA combatants have received amnesty, according to Uganda’s Amnesty Commission. Mr Kwoyelo, who claims that the LRA abducted him when he was 13 years old, applied for it in 2010 while in detention. The Amnesty Commission was willing to honour his request but Uganda’s DPP, which formally has the right to determine eligibility, decided to bring criminal charges against him. The Supreme Court ruling is “one step in the right direction” because Mr Kwoyelo’s alleged victims demand retribution, says Sarah Kasande, with the non-profit International Centre for Transitional Justice (ICTJ) in Kampala, Uganda’s capital.

International law rejects providing amnesty for war crimes and crimes against humanity, according to a July 2011 Human Rights Watch (HWR) report. Ms Kasande lauds the Supreme Court for “harmonising” the Amnesty Act with Uganda’s international legal obligations. The court distinguished between crimes “in furtherance of the war” that could be forgiven under the Amnesty Act and crimes that Uganda’s Geneva Conventions Act stipulates must be prosecuted, such as murder and rape. “It is now clear that you cannot rape women and attack IDP camps and then say: ‘That is furthering a political cause,’” Ms Kasande says. “How do you link such horrendous acts to a political cause? That’s impunity.” Amnesty still has a role to play in Uganda, Ms Kasande says, “but not as a shield against every crime”. The Supreme Court clarified that the state can choose amnesty or prosecution, depending on the individual LRA combatant in question, she adds.

Mr Kwoyelo’s lawyer acknowledges that LRA combatants were never automatically entitled to amnesty and that the public prosecutor retains the right to initiate legal proceedings. But Mr Opiyo claims the prosecutor is targeting his client to test the new International Crimes Division.“Kwoyelo was captured at the wrong time,” Mr Opiyo says. “The court was baying for blood and he happened to be around.” This special court, funded by Western countries, was agreed upon during the 2006-08 peace talks between Uganda and the LRA. The LRA’s top leaders saw a dedicated Ugandan court as a way to circumvent the International Criminal Court (ICC) in The Hague, which issued arrest warrants for five LRA figures, including Joseph Kony and Dominic Ongwen, in 2005. The peace talks ultimately failed but Uganda pressed on with the new court. Mr Kwoyelo’s prosecution coincides with the conflict’s changing terrain. By the time Mr Kwoyelo was charged, the Ugandan army had already pushed the LRA into the DRC, the Central African Republic (CAR) and southern Sudan.

As of last year, an estimated 150 fighters were left roaming in the bush, according to LRA Crisis Tracker, an initiative of two American NGOs, The Resolve and Invisible Children. As the number of LRA combatants decreases and the group’s threat to Uganda subsides, the Ugandan government is increasingly emphasising the rule of law, Ms Kasande and Mr Opiyo say. But ironically, this comes at the expense of individuals’ rights, Mr Opiyo says. Ms Kasande warns that the Ugandan state must appear nonpartisan and also charge and prosecute state actors who allegedly committed crimes during the LRA conflict. Government officials have suggested that the country’s military courts will try cases involving crimes committed by Ugandan forces, according to the HRW report referred to earlier. The government’s previous claims that it has disciplined army soldiers “do not meet Uganda’s obligations under national or international law”, Ms Kasande says. Politics still prevails, sometimes, as in the case of Caesar Acellam, a senior LRA combatant who surrendered to the army in 2012.

After the public prosecutor brought charges against him and a Kampala court issued an arrest warrant, Mr Acellam seemed set to become the second LRA figure to face trial after Mr Kwoyelo. But the army refused to hand him over. To this day, Mr Acellam works as an informant in northern Uganda, Ms Kasande says. Mr Opiyo also accuses the state of “re-victimisation” and practising double standards by prosecuting Mr Kwoyelo for crimes he allegedly committed as an adult but failing to prevent Mr Kwoyelo’s kidnapping when he was 13. If the court accepts that Mr Kwoyelo was abducted as a child, his lawyer may ask the judges to use the kidnapping as a mitigating factor to reduce his sentence if he is convicted. Mr Ongwen, a former top LRA leader, is reported to have surrendered in CAR in January, and was arrested on an ICC warrant for crimes against humanity and war crimes. He is currently being held by the ICC in The Hague. A hearing to confirm his charges is scheduled for January 2016.

A formal legal relationship does not exist between the ICC and Uganda’s ICD, but prosecutors from both courts have cooperated and shared information from their respective investigations, according to the HRW report. Although Uganda’s new court could have requested the ICC to transfer Mr Ongwen’s case to Uganda, diplomatic sources, who requested anonymity, claim that Mr Ongwen may have qualified for amnesty, which the government would have found difficult to swallow. The Kwoyelo case may have a negative impact on abductees who are still held by the LRA, warns Stephen Oola, with the Refugee Law Project, a Ugandan human-rights group. Some may not attempt a risky escape from the bush out of fear that they will be prosecuted, he claims. At least 46 male Ugandan combatants defected or were captured since the initial start of Kwoyelo’s trial in 2011, according to LRA Crisis Tracker.

The irony is that the court was originally set up to prosecute LRA crimes, but it will probably hear very few cases related to this rebel group. Four of the five LRA leaders indicted by the ICC are either dead or captured, with only Mr Kony at large, Mr Oola says. “The ICD is a court for everything, with nothing,” Mr Oola adds, meaning that the court was created for the LRA but has almost no LRA fighters to prosecute.

Mark Schenkel is a freelance journalist based in Kampala, Uganda. He reports about East African affairs for Radio Netherlands Worldwide and for business newspapers in the Netherlands (Het Financieele Dagblad) and Belgium (De Tijd). He has also contributed to the Guardian and Uganda’s Daily Monitor.

A new frontier

Sub-Saharan Africa: Islamic investment

Investors from Organisation of Islamic Cooperation member countries are increasingly looking at opportunities in sub-Saharan Africa

By François Misser

The Islamic world is increasingly seeing Africa as a destination for foreign investment, both on the institutional and corporate fronts. One sign of such interest was the recent forum on investments in Africa, held in Marrakech from December 17th -19th 2015 and organised by the Organisation of Islamic Cooperation (OIC), which groups 57 countries. The OIC has been active on the continent on the humanitarian and diplomatic fronts since its creation in 1969. More recently, the organisation’s financial arm, the Islamic Development Bank (IDB)—whose main shareholders are Saudi Arabia (23.6%), Libya (9.5%), Iran (8.3%), Nigeria (7.7%) and the United Arab Emirates (7.5%)—has become a major player in development finance in Africa. Some 30% of the $12 billion invested in 2015 by the IDB went to sub- Saharan Africa, says its regional director, Sidi Mohamed Taleb.

The bank is now focusing on removing obstacles to African development, among them poor infrastructure and agricultural productivity. The strategy, which has been largely designed by the OIC’s 22 African member states, according to Mr Taleb, will invest mainly in Africa’s energy, telecoms, transport and agriculture sectors. In the Sahel region the bank is financing the flagship Dakar-Port Sudan railway and key energy projects in Mali, Mauritania, Guinea and Côte d’Ivoire, in some cases with the geo-strategic aim of stabilising the region. Another major IDB initiative in Africa is the OIC Cotton Action Plan, first created in 2007 to rehabilitate decaying cotton and textile industries in OIC member states. The bank has a $400m portfolio in Mali, where it is building a new international airport. It is also financing a road between Algeria and Kidal, the capital of northern Mali, which fell to the extremist group Al Qaida in the Islamic Maghreb, in 2013.

“There is an absolute necessity to break the isolation of this region,” says Mr Taleb. It would appear that the OIC’s aim there is to restore political stability, including mediating between the government and the rebels. The Khartoum headquartered Bank for Economic Development in Africa (BADEA), established in 1973 by the Arab League member states, is another important institutional player in the Islamic world. Between 1975 and 2014 it allocated some $3.69 billion in loans. In 2014, it provided $200m in loans to 22 sub-Saharan countries, 57.6% of it to infrastructure, 22.6% to agriculture and rural development and the rest to the non-profit and private sectors. Certain gulf states rank high among Islamic partner countries. In 2014, the Saudi Fund for Development (SDF) supported 13 projects in 11 African countries, which received a total of SR1.27 billion ($340m). In November 2013, Kuwait said it would extend $1 billion in soft loans to the continent over the next five years.

Since its inception in 1961, the Kuwait Fund has contributed over $6.4 billion to projects in 48 African states. The Abu Dhabi Fund for Development (ADFD) has provided 65 billion dirhams (about $17.7 billion) to 76 countries around the world since its creation in 1971. It financed Egypt’s Sheikh Zayed Canal, built using a Dh348m (about $94.74m in 2012) grant (the canal has yet to be completed). Meanwhile, Qatar also has ambitions to be a major player in Africa. Its department of international aid spent more than $1.7 billion on development assistance in 2013, one third of it in Africa. Companies from several Islamic countries have also developed commercial and private investment ties with Africa. According to a 2015 report by the Economist Intelligence Unit (EIU), East Africa is attracting most of the Gulf’s non-commodity investment, with manufacturing in Ethiopia; leisure, retail and tourism in Mozambique and Kenya; and education in Uganda of particular interest.

Retail and hypermarkets, automotives, commercial banking and tourism are key sectors. However, trade between the Gulf Cooperation Council (GCC) and Africa is still modest. In 2014, GCC exports to sub-Saharan Africa totalled $19.7 billion, according to the IMF. However, direct investment flows are growing significantly. Gulf firms invested at least $9.3 billion in sub- Saharan Africa between 2005 and 2014, and $2.7 billion in the first half of 2015, according to the EIU. South Africa, Kenya and Uganda have attracted most Gulf investment. The trend is likely to continue. The UN Conference on Trade and Development (UNCTAD) recorded 17 bilateral investment treaties between the Gulf and sub-Saharan countries in 2013, one third of which were signed that year. Most GCC capital goes into Africa through listed stocks and bonds, including locally domiciled funds such as Invest AD’s Emerging Africa Fund in the UAE, which is co-managed with the Morrocan Attijariwafa Bank.

Significant investments recorded in 2014 were the purchase by Qatar National Bank of a 23% stake in Ecobank of Togo and the acquisition of $300m of Nigeria’s Dangote Cement shares by the Investment Corporation of Dubai. Morocco’s banks, insurance and agribusiness are expanding fast in Africa, helping to boost Moroccan exporters. The Attijawariwafa Bank now has subsidiaries and branches in 14 African countries, mostly in west Africa. The world leader in fertilisers, the Office Chérifien des Phosphates (OCP), a Moroccan company, is aggressively promoting its products south of the Sahara. Meanwhile, Turkish Airlines is expanding its presence on the continent, with 44 African destinations; Royal Air Maroc has 22 and Emirates Airlines 19. Turkey is becoming increasingly involved in FDI to Africa. It held two summits with Africa, in Istanbul in 2008 and in Malabo (Equatorial Guinea) in 2014. Turkish Airlines was one of the first airlines to resume international flights to Somalia in 2011. Turkish trade with Africa has risen nearly fourfold from $5.4 billion in 2003 to $20 billion in 2014, according to a 2015 research paper by Chatham House, the UK’s Royal Institute of International Affairs.

Turkey has signed investment treaties with 12 countries in sub-Saharan Africa and aims to sign a free trade agreement with the East African Community by 2019. At the end of 2011, then Turkish Foreign Minister Ahmed Davutoglu estimated Turkish investment in Africa at some $1 billion. It is likely much higher today. An Ethiopian Investment Agency official noted in 2014 that Turkey had invested about $1.2 billion in Ethiopia in recent years, particularly in the textile industry, as compared to China’s $836m over the past decade. Islamic finance is gaining momentum in sub-Saharan Africa, where about 30% of the population is Muslim, according to the Pew Research Center, a think tank in Washington D.C. Gulf African Bank, which offers sharia-compliant products, now has 14 branches in Kenya, with a rising portfolio of small and medium enterprises. Islamic finance is one of the fastest growing financial segments at global level. This is one reason why the World Bank Group’s International Finance Corporation (IFC) has invested in the Gulf African Bank.

In September 2015, South Africa issued its first $500m sukuk, a sharia-compliant and interest-free Islamic bond, in the international capital markets to broaden its investor base and diversify funding for infrastructure. Côte d’Ivoire plans to issue its first sukuk, for 350 billion CFA francs (roughly $700m), with the support of the IDB. According to the ratings agency Standard & Poor’s, new regulations and fiscal incentives around the continent “could accelerate Islamic finance development in Africa”. However, the low oil price may cause some disruption to Islamic foreign investment. Saudi Arabia has withdrawn tens of billions of dollars from global asset managers since September 2015, according to the Financial Times. Money transfers from Islamic countries or charities to Africa have also faced regulators’ concerns that networks could be used for criminal financing. Kenya suspended the operations of 13 firms in the first half of 2015 over concerns that funds were flowing to al-Shabab militants. In May 2013 Barclays said it would close the bank accounts of 250 money transfer companies as part of a drive to meet stricter money laundering rules.

A February 2016 study by the IMF concludes that there is no evidence that Islamic finance faces different risks from those of conventional finance as regards terrorism and crime. However, it concludes that an in-depth analysis of the intrinsic characteristics and arrangements used in Islamic finance is still required, and that Islamic financial institutions need to build more experience with regard to the risks they face in dealing with money laundering and terrorism financing. If so, this would apply also to the Islamic world’s investments in Africa.

François Misser is a Brussels-based journalist. He has covered central Africa since 1981 and European-African relations since 1984 for the BBC, Afrique Asie magazine, African Energy, the Italian monthly magazine Nigrizia, and Germany’s Die Tageszeitung newspaper. He has written books on Rwanda and the DRC. His last book, on the Congo River dams, is La Saga d’Inga.

Opportunity knocks

Kenya: accelerating investment growth

This East African country is enjoying a boom in foreign investment, but corruption and political instability still pose risks

By Mark Kapchanga

Kenya is on track to triple its foreign direct investment (FDI) inflows in 2016 as compared to 2014 on the strength of renewed investor confidence, the Kenya Investment Authority (KenInvest) says. FDI inflows are expected to reach $3 billion this year as compared to $1.2 billion in 2014, according to a 2015 African Development Bank survey. Kenya “is increasingly becoming a favoured business hub, not only for oil and gas exploration, but also for manufacturing, transport and the booming technology industry,” according to the report. The agriculture and energy sectors were also mentioned as FDI drivers. Other investment opportunities exist for direct and joint-venture investments in the iron and steel industries, manufacture of fertiliser, agro-processing, motor vehicle assembly and manufacture of spare parts, says Moses Ikiara, managing director of KenInvest, an investment promotions government parastatal. The East African Community (EAC), the Common Market for East and Southern Africa (Comesa) and the African Growth Opportunity Act represent a “huge market”, he says.

The EAC has a population of 138 million and a GDP of $82.1 billion. Comesa, a 19-member union, has a population of 444 million with a combined GDP of $596 billion. Kenya’s recent “tremendous” growth in FDI has been helped by high profile investment forums such as the 10th Ministerial World Trade Organisation meeting in December last year and the Global Entrepreneurship Summit in July, both in Nairobi, says Mr Ikiara. This August, the city will host the Tokyo International Conference on African Development—the first such meeting in Africa. Kenya is on course to reclaiming the investment image it enjoyed before the global economic crisis of 2008/2009; the country recorded $1.6 billion in FDI flows in 2007, says Mr Ikiara. Currently, Kenya’s top investment sources include the US, the UK, the Netherlands, Belgium, France, Brazil, China and India, with the latter two now Kenya’s largest bilateral trade partners. Improved regional integration has aided inflows from Africa, particularly South Africa, he says.

“Kenya has established itself as a regional business hub, defying continual terrorism threats that have crippled tourism—a chief foreign exchange earner. We expect the $14.5-billion Konza Technology City, to attract more foreign investment in…business process outsourcing, software development and data centres,” Mr Ikiara told Africa in Fact. Dubbed the “African silicon savannah”, the 5,000-acre project, which is 64 kilometres south of Nairobi, is expected to generate more than 16,000 jobs by 2019, and 200,000 by 2030. Other mega projects in progress include the $24.5-billion Lamu Port-South Sudan-Ethiopia-Transport (LAPSSET) corridor programme, as well as the Northern Corridor Integration and Central Corridor Infrastructure project co-ordinated by Kenya, Uganda, Rwanda and South Sudan, which have driven investor interest in Kenya as an entry point to the region

The country’s real estate sector has been a key driver of Kenya’s GDP, says Hezron Gikang’a, East Africa managing director of KEAMSCO, a New York, Bremen and Nairobi-based consulting firm. Nairobi has ranked in the top 20 Global Property HotSpots of the Knight Frank global house price index for three years, he said. Major commercial, residential and mixed-use projects are under way, including Two Rivers, sub-Saharan Africa’s second biggest mall at 64,000 square metres. The recovery of FDI inflows to Kenya is mainly due to its diversification of its economy, says Aly Khan Satchu, CEO of rich.co.ke, an economics and investment analysis platform. Investor interest in Kenya’s “soft commodities”, such as tea, coffee and horticulture, was “an added sweetener”, he said. The country was well positioned as a gateway to the EAC, while another contributing factor to its attractiveness was an “extraordinary ICT and financial mobile money-led revolution”.

Mr Satchu added that FDI to Kenya would continue to outperform many African countries in 2016 and 2017 as funds were displaced from Lagos, Johannesburg, Luanda, Cairo and other key sub-Saharan African destinations in favour of Kenya. Commodity-dependent countries such as Angola, Mozambique, Zambia, Nigeria, Ghana and South Africa were facing gaping budget deficits following the recent collapse in oil and commodity prices, as well as slower growth in China. Kenya’s higher FDI has also been propelled by capital projects, says Morris Aron, an East African economist based in Nairobi. They include Irish oil company Tullow’s Kwale Mineral Sands project, a $4-billion standard gauge railway linking Mombasa City and Nairobi, a Roads Annuity Plan for the country’s 8,000-kilometre road network and the country’s planned acquisition of 5,000 MW in electrical power. “Any big investor, any mega project entering the region must find itself in Kenya,” says Mr Aron.

The country offers cheaper costs for oil companies exploring for oil than most other countries in the region, he said, while its large-scale infrastructure projects “drive connectivity, competitiveness, and margins for manufacturers”. The increased FDI inflows were also stimulating relative stability in the country’s foreign exchange market, he added. Mr Aron expects further improvements to the business environment, including simpler business licence requirements and the development of public-private partnerships as part of the government’s “Vision 2030” strategy, the government’s long-term economic plan. But he argues that Kenya must lower the cost of energy, simplify taxation regimes and timelines, decentralise and digitise land records and registration, ease work-permit processes and costs and strive to keep politics out of business.The shift in FDI to Kenya is partly associated with perceptions of political risk elsewhere on the continent, says Mr Gikang’a.

East Africa is the fastest growing region in Africa, and the region’s average GDP growth rate was expected to be 5% between 2015 and 2019, with Ethiopia leading at 7.3% and Kenya at 5.8%, according to the IMF. This compared well with other heavyweights in the emerging markets category such as India (6.8%) and China (5.8%), he said. Kenya is now the second-best country in sub-Saharan Africa in which to invest, according to an October 2015 report by the IMF. It ranked at 108 out of 189 countries by the World Bank Doing Business 2016 survey, an improvement of 28 places on the 2015 rankings. Yet the rise in FDI in Kenya is still constrained, some commentators say. A January 2015 report by the United Nations Conference on Trade and Development (UNCTAD) cited political instability, security issues, low quality infrastructure and an unfavourable business climate as “hindrances to investment”.

Various militia groups accounted for an estimated 333 reported deaths per year between 2000 and 2014, according to a 2015 report by the South Africa-based Institute of Security Studies. Nevertheless, the instability of Kenyan politics posed a still greater threat to the country, it said. Some commentators say corruption in Kenya is sliding out of control. Currently, the Ethics and Anti-Corruption Commission is investigating major scandals involving the National Youth Service and the Eurobond. In March last year, President Uhuru Kenyatta fired four cabinet secretaries over graft allegations. Eight months later, Anne Waiguru, the devolution and planning cabinet secretary resigned following sustained pressure from activists, media and the opposition over corruption in her ministry. Transparency International’s 2015 Corruption Perception Index, released in January this year, ranked Kenya at 139 out of 169 countries.

Kenya was contributing to an increased rate of economic crime in Africa, with the second-highest rate on the continent after South Africa, according to the 2016 Global Economic Crime Survey by PriceWaterhouseCooper. “Corruption has deepened and widened” since Mr Kenyatta assumed power in 2013, says anti-corruption activist John Githongo. It is therefore not surprising that, as noted by the US State Department, challenges with regard to ease of doing a business and corruption remain “key challenges” for investors.

Mark Kapchanga is a senior economics writer for the Standard newspaper in Kenya and a columnist for the Global Times, an English language newspaper in China. He is pursuing a PhD in investigative business journalism at the University of Nairobi.