Month: January 2018

Being poor is a crime: to develop Africa needs criminal justice reform

“We must change our lawless habits, our attitude to public office and public trust. We must change our unruly behaviour in schools, hospitals, marketplaces, motor parks, on the roads, in homes and offices. To bring about change, we must change ourselves by being law-abiding citizens” – President Muhammadu Buhari

 

It is not something at the top of the agenda of most politicians and governments and you rarely hear it on the campaign trail but Africa needs criminal justice reform. Most of the continent is still using laws that date back to the colonial era that criminalises things (like loitering, hawking and begging) that are targeted at the poor, too many people being held in jail are there awaiting trial and because they are poor they cannot afford bail. Most law enforcement across the continent is selective, and disproportionately targeted at the poor while those with money go free. This has made the police and the law an enemy of the people, rather than serve society the law is seen as a tool, a tool of repression and extortion and it is time for that to end. There have been any number of police reform efforts across the continent looking to deal with police corruption and ineffectiveness, and several governments have sought to increase police numbers to increase law enforcement coverage. However, very few have thought to look at the laws which the police and the courts are supposed to be enforcing, that if we had laws that actually sought to go after the crimes that affect people’s lives then law enforcement might work, that by making punishment and bail proportionate to crime, jails and courts could be decongested, that modern law enforcement must have modern, not colonial laws.

Colonial laws, colonial police

Governments across the continent have reformed land laws, education laws, health laws, marriage laws and many have written whole new constitutions, it is surprising that very few have thought that a modern criminal justice system, with modern laws, is necessary for development. A good example of this is Nigeria, Nigeria has 5 major criminal justice laws 4 of them (the Penal Code, the Criminal Code, the Criminal Procedure Act and the Evidence Act) all date back to the colonial era, and the Police Act dates back to pre-independence 1943[1]. As you can see from figure 1, criminal laws in much of former British colonial Africa descend from 19th-century British law.

Figure 1 Development of criminal codes in Africa during British colonialism Source: South African Litigation Centre[2]

Colonial justice was prejudiced against poor black Africans, and even though the explicitly racist provisions of the laws may be gone, their intent and the effect of policing, suppressing and intimidating poor black Africans are still there. Colonial police forces were not created to ‘protect and serve’, their primary mission was to protect the state which meant suppressing resistance, fighting crime and protecting society was a secondary mission. The symbol of this is VIP protection, is it any surprise that state officials and politicians across the continent have (often excessive) police protection while police are spread thin in the places where they are needed most.

The second key issue is the focus of colonial criminal laws, prisons, and the colonial system for used imprisonment as the primary form of punishment and as a result, Africa’s prisons are desperately overcrowded (figure 2)

Figure 2 Top 10 African jail Occupancy level (based on official capacity) – source world prisons brief

And far too many of these people are people on remand or pre-trial detention (figure 3), which means they have not been convicted of a crime yet but are waiting to face trial and are too poor to afford the bail terms.

Figure 3 Top 10 African Pre-trial detainees/remand prisoners – source world prisons brief

In short, we have old laws focusing the justice system not on the protection of its citizens but on protecting the state and in the process allowing criminals to flourish. The court system based on these old laws jails anyone for anything (such as vagrancy which makes it a crime to be poor and present) and as a result, our prisons are overcrowded, mainly with poor people.

Reform law to enforce it.

Criminal justice reform must start with the laws that underpin it. Africa must reform its criminal justice laws, so long as the heavy hand of the law falls on the poorest and most vulnerable the rule of law will remain elusive. If we want true police reform, to end the culture of impunity that enables corruption and crime then people must have trust in the laws that underpin justice. And while we are at it we might just end up decongesting our jails and giving millions a chance to resume lives put on hold.

Ideally, the debate would start with a clean slate, asking two key questions what is the purpose of these laws and do they contribute to the safety and security of the public. Reform of criminal laws would allow us to look at what should be a criminal offence, decriminalising things like loitering, begging, and hawking will stop criminalising people for simply being poor. Then we can have a discussion about decriminalising social problems such as prostitution or marijuana/khat/miraa possession, it may be controversial, but the debate should be had. How can and should we punish serious offences and misdemeanours, jail is not the only solution, particularly for petty crimes and especially for people with addiction problems or mental health problems who need help, not punishment.

If we are to change our lawless habits as President Buhari suggests then Africans must have fair laws. We must have laws that target crime and insecurity that acknowledge that poverty is not a crime, and police services that protect people, rather than colonial forces in all but name that protect the state. Development requires justice, it requires safe and secure communities, it requires the rule of law that applies to all without fear or favour. It’s time criminal justice reform was moved to the top of the agenda of African governments policy agenda.

 

[1] https://guardian.ng/features/youthspeak/time-to-mend-nigerias-broken-criminal-justice-system-1/

[2] https://southernafricalitigationcentre.org/wp-content/uploads/2017/08/05_SALC-NoJustice-Report_The-Persistence-of-Colonial-Vagrancy-Laws-in-Southern-Africa.pdf

Interest rate caps could work and be a good thing

Despite what the IMF, World Bank, Kenya Bankers Association and various private sector organisations say (as well as free market logic), interest caps can be a good thing, if done right they could actually give people access to affordable credit, but that can only happen if governments around Africa stop borrowing as much as they have been.

In August 2016 president Uhuru Kenyatta signed into law legislation that capped the interest rates charged by Kenyan banks to 4% above the Central Bank of Kenya’s (CBK) benchmark rate. This means that if you were to go to a bank in Kenya to apply for a loan today the interest rate charged would not be more than 14%, which is 4% above the CBK’s benchmark rate of 10%.

While it was a drastic step, it was a long one coming. Kenyans had long been frustrated by banks charging exorbitant interest rates often 10 or more percentage points above the CBK benchmark rate. The Donde Bill of 2000 similarly capped interest rates but was neutered by the courts, and another similar law was stopped in 2013 because of heavy lobbying by the banks in parliament. In 2016 the public had, had enough and MPs (with an election around the corner) were listening and the bill was passed, somewhat unexpectedly the president signed the law.

The consequences of the rate cap

The consequences of the law have been significant. First and most significant is that banks have severely cut lending to the private sector, with credit growth falling ominously (Figure 1) meaning that borrowers particularly small businesses have been unable to access credit, meaning that not only can they not invest in further growth they also cannot use credit to supplement working capital [1],  while ordinary households have been unable to get mortgages and car loans. This effect has been cited by people like the IMF, World Bank and the Kenya National Chamber of Commerce and industry as a cause of Kenya’s recent economic slowdown.

Figure 1 – growth of private sector growth in Kenya

Secondly, in response to falling profits from interest rates banks have cut costs, significantly. In 2016 banks in Kenya retrenched over 1000 workers (approx. 1.6% of the financial services workforce in the country), and aggressively pushed digital platforms in order to cut down on more expensive physical infrastructure (bank branches, ATM’s etc)

The third and most important thing is how banks have been making their profits. Instead of lending to people and businesses they have been lending to the government. Banks have shifted their money to buying treasury bills, which are short term loans the government takes to cover its expenses on an ongoing basis, and they are making a lot of money while doing it. The logic is simple, why lend to individuals and private businesses, where you have to spend time and money assessing each applicant for their risk and run the risk that they might not pay you back. Its much easier to lend money to the government and though the interest rates may be lower, the volumes are very large and the government will not default, essentially guaranteeing profit. This is all enabled by a government with a never-ending appetite for more and more money, the Kenya governments debts have soared over the last year and here lies the problem.  The rate cap will never achieve the goals it was meant to – making loans cheaper for ordinary Kenyan business and people – if banks can simply lend to the government and still make huge profits. On the back of this there are increasing calls on the government to repeal the rate capping laws to ‘restore’ private sector credit and boost the economy.

This would, in my view, be the wrong approach, it would simply take Kenya back to the position it was in before. Banks would be charging people and businesses blatantly usurious interest rates for loans while continuing to lend to a government with the financial appetite of a black hole, in the process making enormous profits.

Making rate caps work

Repealing the laws would be a step backwards. The focus should be on making the laws do what they were supposed to do, to which the key is stopping government borrowing so much money. The rate capping law has been a godsend for a government borrowing from every willing lender, the law made the banks much more willing to lend to the government and avoid the effects of the law.

If government appetites for borrowing money could be curbed, then the interest rate caps could work. Eventually the banks will run out of costs to cut, without treasury bills as a source of endless profits, they would have to do what banks are supposed to do, lend. Rather than caving to pressure from banks and international financial institutions (again) the top policy makers at the Kenyan treasury need to start thinking about the people the laws were meant to serve and not the accounting books in front of them.

Rate caps around the continent

Kenya is not the only country on the continent facing the problem of how to improve and increase private sector lending. Across the continent, access to credit is a major hurdle faced by businesses (figure 2)

Figure 2 Percentage of Firms Identifying Access to Finance as a Major Constraint[2]

Without credit small businesses are stuck as they cannot get the funds to operate and grow, Africa may talk glowingly about its entrepreneurial spirit but without a finance industry willing to lend to them the reality will never meet the high hopes. If rate caps can be made to work it would stand as a model that other African countries can follow, it will show that with a simple law you can fundamentally change the dynamic in the financial sector that will force banks to serve their customers, something that free market economics has been unable to do. Giving African households, businesses and entrepreneurs access to affordable could be truly game changing and contribute to solving a range of problems from housing shortages to unemployment to the high rate of failures among SME’s. However, for affordable credit to become available lawmakers and policy makers need to be bold and force the financial industry to serve Africans and that will require policy, regulation and law. For these types of laws to work it will require the government to curb its appetite to spend and borrow as much as it can get away with, something we haven’t yet quite figured out how to do.

 

[1] For many businesses flows of income do not exactly match their spending (e.g. salary must be paid monthly but clients have 60 days to pay you)

[2] https://www.afdb.org/en/news-and-events/afdb-calls-on-credit-providers-to-increase-lending-to-meet-demand-by-african-msmes-17138/

What is Development?

Freedom should not be understood to mean leadership positions or even appointments to top positions. It must be understood as the transformation of the lives ordinary people in the hostels and the ghettos; in the squatter camps; on the farms and in the mine compounds. 

It means constant consultation between leaders and members of their organisations; it demands of us to be in constant touch with the people, to understand their needs, hopes and fears; and to work together with them to improve their conditions. – Nelson Mandela

This is the question at the centre of the African story, at least when it comes to policy, yet we do not seem to have that discussion, leaving it open to be defined by those in power rather than those whose lives its supposed to change. In academia the question as to what development is much debated but it has failed to leave the confines of the ivory tower and development aid industry. Today development is too much like beauty, it’s in the eye of the beholder, every time the government builds a footbridge or a railway it claims development, economists and business leaders look at economic growth figures and call that development, the UN looks at the Human Development Index and Sustainable Development Goals and calls that development. What about the people, those for whom this development is being done, it seems to me that if the vision of development being pursued was one that came from the people, then governments and international development agencies may have more success pursuing it.  A policy shift to people centred development, that actually takes what people want and need into account would in my view make the whole notion of development much more relevant and impactful.

Roads, railways and power.

Most of the continent is busily pursuing the infrastructure gap, which can be summarised as the need for infrastructure (roads, railways, power, water and sewage systems, housing etc.). In Africa the African Development Bank has estimated that Africa needs 95 billion US dollars a year to close its own infrastructure gap[1]. Governments have latched onto this and across the continent there is a massive building program being pursued. Physical infrastructure is perfect politically, its tangible and can (if done properly) make an impact on people’s lives, without the complicated political, administrative and moral issues that come with improving education or fighting corruption. Business and banks love it because they can make significant profits funding roads, railways and power stations while saying they are contributing to ‘development’. Infrastructure is important, there is no doubt about it, a road connecting a rural community to an urban market can radically increase opportunities, electricity has and can change the lives of the poor the world over, but is it development? I don’t think so, I see infrastructure as an enabler, a building block towards development, but not development itself.

GDP growth and jobs

You cannot have a conversation about development without someone bringing up GDP growth numbers. Despite academic attempts to dethrone economic growth as the primary indicator of development it is the standard statistic that people cite. But what does GDP growth actually tell us? GDP is the value of all the goods and services produced in an economy in any given period (usually quarterly or annually). So, when it grows, it means that the country is producing more things and as a whole earning more. However, it doesn’t tell you important details such as who is earning more – are the rich getting richer or is the additional income being spread to the middle and lower income groups. It doesn’t measure standard of living, or the quality of social goods such as healthcare and education. It is just an aggregate, a useful one but without context and additional data it doesn’t tell you whether peoples lives are actually improving. When people point at GDP growth and call it development, take it with a pinch of salt.

Ask the people?

What is missing from the development debate for me is the people, most of whom are still stuck without meaningful employment or prospects of progress, far too many living in poverty. What does development mean to them. I think at its core, development would be the ability to live a life with dignity. A life where our children have a decent education that gives them a chance at a future where families can rely on the health care system and have adequate housing. A job to support you and your families. A police force and courts that are fair and protect society and a government that respects our rights. Thus, to me development is about growing the economy in such a way that provides jobs and income for the majority, building the infrastructure that enables this, investing in social services that improves quality of life and the rule of law and respect for human rights. Development isn’t just about jobs, or growth, or new roads and power stations, to me it’s about uplifting the lives of Africans, and our development policy, whether economic, education, infrastructure or law and order has to have that as its goal. But that’s just me, ideally, we should start by asking the people. Governments around the continent would benefit from broad consultation process to see what their citizens consider development and make their policy on that basis.

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[1]https://www.afdb.org/fileadmin/uploads/afdb/Documents/Publications/Africa%20Econo%20brief%202_Africa%20Econo%20brief%202%20(2).pdf

Welcome to Afriwonk – a blog about policy in Africa

Policy in Africa, Why?

You cannot carry out fundamental change without a certain amount of madness. In this case, it comes from nonconformity, the courage to turn your back on the old formulas, the courage to invent the future. It took the madmen of yesterday for us to be able to act with extreme clarity today. I want to be one of those madmen. We must dare to invent the future. – Thomas Sankara

The word ‘policy’ is immediately boring. It evokes images of long papers stating the obvious in as many ways as possible, civil servants labouring away writing those papers and announcements by ministers that are soon forgotten.

However, policy has real effects on peoples lives. Bad policy hurts people, almost all policy has winners and losers, good policy can transform lives and especially in Africa, most policy is never implemented properly. This is why I am writing a blog on policy in Africa there are some truly fantastic ideas out there, that could have a positive impact on peoples lives, there are bad policies which are disastrous and there is a lot of half baked policy that does a little of both. Most of it goes unnoticed by the wider public. I would like to shed some light on the world of policy in Africa, chart both the successes and failures and examine some of the ideas out there that could be transformative.

For too long the policy process in Africa has been obscured from the public and shaped by donors, the IMF, World Bank or foreign governments. I honestly believe that for truly transformative change to come to the continent we have to start shaping what our governments do ourselves. We have to throw out the conventional solutions and as Sankara said think “think with a certain amount of madness”. We need to come up with policies for Africa that fit the African context, and fix African problems. On this blog by looking at how policy succeeds and fails or taking a deeper look at new ideas I hope to make my small contribution to that, to get people thinking outside of a box that hasn’t worked as intended for half a century. Thabo Mbeki once talked about African solutions for African problems, I believe to come up with those solutions we first need to have African ideas.