DIPLOMATIC REALIGNMENT: HOW THE U.S. REPLACED RUSSIA IN THE ARMENIA-AZERBAIJAN PEACE PROCESS

INTRODUCTION

The South Caucasus, a geopolitical crossroads at the intersection of Eurasia and the Middle East, has undergone a seismic transformation. Armenia and Azerbaijan, once locked in protracted conflict over Nagorno‑Karabakh (Artsakh), are now nearing a peace agreement finalized independently of Russia. In its place, the United States has escalated its diplomatic, legal, security, and infrastructural role, effectively replacing Moscow as the primary outside actor shaping the post‑conflict regional order. 

This transformation is not just about influence; it’s about the architecture of peace, the language of law, and the shaping of future geopolitics. 

This article explores the contours of that transition in full.

I. Historical Context: Russia’s Traditional Role

Historically, Russia was the principal power in the South Caucasus, maintaining dominance in mediation and military presence. In November 2020, it was Russia that brokered the ceasefire that ended the 44-day war between Armenia and Azerbaijan. This agreement introduced Russian peacekeepers into Nagorno-Karabakh and the Lachin Corridor, embedding Moscow physically into the conflict’s aftermath. Over decades, Russia had cultivated an image as the indispensable mediator, often operating through the OSCE Minsk Group and bilateral summits hosted in Moscow.

Moreover, Armenia relied heavily on Russia for security. As a founding member of the Collective Security Treaty Organization (CSTO), Armenia depended on Moscow for over 90 percent of its military hardware prior to 2022. Russian border guards were stationed at Armenian checkpoints and even oversaw elements of its airport security, a testament to Moscow’s deep integration in Yerevan’s sovereign functions. This reality, however, began to unravel after 2022.

II. Armenia’s Westward Pivot: Legal and Strategic Foundations

By 2023, Armenia had begun reassessing its alliance with Russia. Prime Minister Nikol Pashinyan publicly admitted that relying solely on Moscow for security was a strategic miscalculation. The sentiment was not rhetorical. On 23 February 2024, Armenia officially froze its participation in the CSTO. By 2025, it had reassumed full control over its borders, effectively removing Russian oversight from critical checkpoints and strategic infrastructure.

A major milestone in this pivot was the signing of the Armenia-United States Strategic Partnership Charter on 14 January 2025. The agreement, ratified by both countries, established legal grounds for comprehensive cooperation on sovereignty, territorial integrity, democracy, cybersecurity, defense reform, and judicial capacity. While the Charter did not offer mutual defense guarantees akin to NATO’s Article 5, it provided a clear framework for bilateral cooperation and symbolized Armenia’s geopolitical realignment.

Simultaneously, military cooperation between the U.S. and Armenia began to deepen. The 2023 joint military exercise “Eagle Partner” marked a significant step in building interoperability between the two states’ armed forces. American policymakers began advocating for designating Armenia as a Major Non-NATO Ally (MNNA), signaling a desire to formalize long-term strategic alignment.

III. The Peace Process: From Russia’s Mediation to U.S. Facilitation

The most notable evidence of this realignment surfaced in March 2025, when Armenia and Azerbaijan announced they had finalized the text of a peace and intergovernmental relations treaty. The draft treaty marked the first time a comprehensive peace agreement had been negotiated and brought to completion without Russian participation. Talks were held in Abu Dhabi under the aegis of the UAE, with support from Turkey and quiet U.S. facilitation. Moscow, once central to all such negotiations, was conspicuously absent.

Azerbaijan’s role in this process was complex. Baku attached a series of controversial conditions to the treaty, including the requirement that Armenia remove references to Nagorno-Karabakh from its constitution, as well as grant transit rights through the Syunik province, enabling a corridor between mainland Azerbaijan and Nakhchivan. Additionally, Azerbaijan insisted on the formal dissolution of the OSCE Minsk Group, long seen as ineffectual.

The United States played a moderating role. Washington discouraged any renewed military adventurism from Azerbaijan and sought to broker a compromise that would preserve Armenia’s sovereignty while meeting Baku’s regional connectivity goals. In a bold diplomatic move, the U.S. proposed a 100-year lease to oversee the proposed Syunik corridor, positioning itself as a neutral manager of this sensitive artery.

IV. Key Ways the U.S. Is Replacing Russia

Russia once monopolized diplomatic mediation through ceasefire agreements and multilateral groups like the Minsk Group. Today, the U.S., in tandem with the EU and Turkey, has become the primary facilitator of Armenian-Azerbaijani diplomacy. Talks are now hosted in trilateral and multilateral formats that exclude Russia, further underscoring the geopolitical shift.

On the security front, Armenia’s steady move away from Moscow’s military infrastructure is evident. Russian troops are being withdrawn. Control over borders and strategic facilities has returned to Armenian hands. U.S. training programs and joint operations now contribute to Yerevan’s defense reform, and strategic planning is increasingly aligned with Western partners.

Economically, the United States is fostering a new vision of regional connectivity. In cooperation with the EU, Washington is promoting trade and transport initiatives such as the Zangezur Corridor to integrate Armenia and Azerbaijan into a broader Euro-Asian network-one that bypasses Russia and Iran. Armenia, for its part, is marketing itself as a tech hub, luring giants like Amazon, Nvidia, and Google, and reducing its economic dependence on Moscow.

Culturally and legally, the U.S. is investing in soft power. Through its Charter with Armenia, Washington is shaping legal norms in areas ranging from judicial reform to democratic governance. U.S. civil society organizations and congressional actors continue to advocate for minority rights, recognition of ethnic Armenian grievances, and greater transparency in regional security assistance.

V. Legal Dimensions: International Law, Treaties, and Norms

The peace treaty in question reaffirms the UN Charter principles of territorial integrity and the inviolability of borders. However, some of its provisions introduce novel legal dilemmas. Azerbaijan’s demand that Armenia amend its constitution raises the question of whether a peace agreement can legitimately include provisions that affect a nation’s supreme law. Legal scholars are divided: while states have the sovereign right to amend constitutions, doing so under foreign pressure could violate the spirit of democratic autonomy.

The U.S. proposal to lease the Syunik corridor introduces another legal novelty. If Armenia consents to lease part of its territory for foreign-managed transit, does this constitute a form of extraterritorial jurisdiction? As long as Armenian sovereignty and domestic law are respected, the lease may be deemed lawful under international treaty law. Still, the precedent it sets could shape future discussions on territorial leasing and regional connectivity.

The Strategic Partnership Charter itself represents a binding bilateral treaty. Though it lacks the enforceability of a defense pact, it provides a formalized basis for U.S. engagement and obligates both sides to institutional cooperation. The interplay of lobbying efforts, such as Azerbaijan’s pressure to waive Section 907 of the Freedom Support Act in the U.S., shows how domestic legal systems can influence foreign policy and international norms in real time.

VI. Why Russia Is Losing Out

Russia’s diminishing role is due in part to its strategic overextension. Since its full-scale invasion of Ukraine in 2022, Moscow has been embroiled in a prolonged conflict that has depleted its military and diplomatic bandwidth. Its peacekeepers in Nagorno-Karabakh were widely viewed as ineffective in preventing the 2023 blockade and mass displacement of ethnic Armenians.

Meanwhile, Armenia’s estrangement from Moscow has become institutionalized. The freezing of CSTO membership, withdrawal of Russian border guards, and steps toward EU candidacy reflect a deliberate departure from Moscow’s sphere. Although Russia still operates a military base in Gyumri and runs cultural offices such as Rossotrudnichestvo, their influence is waning and, in Azerbaijan’s case, being expelled entirely.

Finally, regional actors have begun to bypass Russia altogether. The Istanbul-Abu Dhabi trilateral mechanism, involving Armenia, Azerbaijan, and Turkey, with EU observation, now handles key stages of the peace process. Russia has no veto over these proceedings. Economic corridors and legal frameworks are being developed without any Russian input.

VII. Challenges and Criticisms of the U.S. Role

Not everyone views U.S. involvement as inherently stabilizing. Moscow and its media apparatus have accused Washington of undermining regional equilibrium and exploiting the conflict for strategic gain. Critics argue that U.S. pressure on Azerbaijan, or perceived favoritism toward Armenia, could provoke backlash or encourage a zero-sum approach to diplomacy.

Others warn that the peace agreement currently under discussion may be structurally imbalanced. Without built-in mechanisms for ethnic minority protections, conflict resolution, or third-party enforcement, the treaty risks locking in Azerbaijan’s upper hand. The fate of the displaced ethnic Armenian population from Nagorno-Karabakh remains unresolved. With no formal guarantees for their return, representation, or cultural rights, the peace may appear hollow to many Armenians.

Additionally, the U.S. is not viewed as a credible moral guarantor by all sides. While the Armenian-American community continues to lobby for Artsakh’s recognition and security, the lack of concrete guarantees for displaced populations undercuts U.S. legitimacy in the eyes of some stakeholders.

VIII. Policy and Legal Implications for the U.S., Armenia, Azerbaijan, and the International Community

The replacement of Russia by the United States as mediator and strategic partner carries broader implications. It suggests a realignment of post-Soviet states toward Western institutions, reshaping norms surrounding third-party intervention and regional sovereignty.

Armenia’s rapid movement toward EU accession, supported by both Brussels and Washington, signifies a narrowing of the space for Russian normative influence. At the same time, the legal structuring of the Zangezur Corridor under U.S. stewardship may serve as a model for other transit and lease agreements globally.

The Strategic Partnership Charter, while non-binding in defense terms, nonetheless implies political obligations. Through its implementation commissions and public commitments, the U.S. is held accountable for the peace’s trajectory. Should the process unravel, questions may arise regarding U.S. consistency and follow-through.

IX. Prospects and Forecasts

Looking ahead, the timeline for signing the peace treaty remains uncertain. Azerbaijan’s insistence on Armenian constitutional amendment is deeply controversial domestically and likely requires a national referendum, which is politically feasible only after the June 2026 parliamentary elections. Until then, the treaty may remain in limbo.

At the regional level, alignment with Turkey, the UAE, and the EU suggests a new multilateral framework for South Caucasus diplomacy. This collaborative architecture may collectively ensure the agreement’s enforcement and evolution.

Yet Russia’s potential to interfere remains. Through residual military infrastructure, cultural proxies, and disinformation networks, Moscow could still sabotage the peace if strategically motivated. Armenia and Azerbaijan must therefore remain vigilant.

Within the U.S., diaspora politics and congressional advocacy continue to shape policy. The Armenian-American lobby is likely to maintain pressure for Artsakh recognition, enhanced democracy funding, and conditionality in U.S. security assistance to Azerbaijan.

Conclusion: A Strategic Transition, But Not Yet a Guarantee

Today, the United States has indisputably assumed the dominant external role in the Armenia-Azerbaijan peace process. It has supplanted Russia as the key diplomatic broker, legal partner, economic facilitator, and normative shaper of the emerging regional order. Armenia’s alignment with the U.S. reflects not just disillusionment with Russia, but a strategic vision of integration into Euro-Atlantic institutions.

Yet this transition is not irreversible. Sensitive matters - like the status of displaced Karabakh Armenians, corridor management, and constitutional amendments - still pose risks to treaty finalization. Russia remains present in the region, albeit weakened, and could seek to reclaim influence through obstruction or sabotage.

Ultimately, the durability of this transformation hinges on institutional follow-through. Legal reforms must be enacted. Human rights must be protected. Infrastructure must serve both economic and diplomatic ends. If these elements come together, the U.S. may not just replace Russia, but build a sustainable architecture for peace.

However, replacing a power is not the same as guaranteeing stability. Whether this realignment delivers lasting peace or merely rearranges influence will depend on the will and coordination of Armenia, Azerbaijan, the U.S., EU, and other partners. The coming year will prove decisive - particularly after Armenia’s June 2026 elections and the formalization of corridor arrangements. What happens next may determine whether the U.S. role marks a permanent shift in the South Caucasus - or simply a fragile interregnum in a still-unsettled region. 

---

Let’s Shape the Future of Peace and Regional Diplomacy Together

If you are a policymaker, academic, international organization, or strategic affairs analyst seeking insights or partnerships on conflict resolution, peace architecture, or regional diplomacy, we invite you to engage with us. Let’s build collaborative solutions grounded in facts, law, and forward-looking policy. Reach out today for a confidential briefing or strategic dialogue.

🤝THE INSTITUTE FOR POLICY & DIPLOMACY

📩 Email: instituteforpolicyanddiplomacy@gmail.com

📞 Phone: +254 715 310 677

KENYA’S FIRST INFRASTRUCTURE ABS: WHAT THE LINZI 003 LISTING MEANS FOR FUTURE DEAL STRUCTURING, LEGAL RISK, AND CAPITAL MARKET GROWTH

INTRODUCTION: A Milestone in Capital Market Innovation

The listing of the Linzi 003 Infrastructure Asset-Backed Security (ABS) at the Nairobi Securities Exchange (NSE) on 23rd July, 2025, raising over KSh44 billion, marks a transformative moment for Kenya’s capital markets. For the first time, an infrastructure-backed securitization transaction of this scale has been successfully launched and listed, demonstrating the untapped potential of alternative financing instruments in catalyzing infrastructure development in emerging economies like Kenya.

As legal practitioners at the intersection of financial innovation and regulatory compliance, we believe the Linzi 003 transaction offers valuable lessons - and presents immense opportunities - for legal structuring, risk mitigation, and regulatory advisory. This article unpacks the Linzi ABS in plain language, examines the relevant legal framework, and highlights the role of legal experts in shaping similar transactions going forward.

WHAT IS AN INFRASTRUCTURE ASSET-BACKED SECURITY (ABS)?

An Asset-Backed Security (ABS) is a financial instrument created by pooling various revenue-generating assets - such as loans, leases, or receivables - and then selling claims (or securities) backed by those assets to investors.

In the case of an Infrastructure ABS, the underlying assets typically consist of future receivables from infrastructure projects - such as toll collections, utility payments, or lease fees tied to public-private partnership (PPP) infrastructure developments. The Linzi 003 ABS is backed by cash flows expected from infrastructure usage and is issued through a Special Purpose Vehicle (SPV) set up solely to isolate and manage those receivables.

This kind of transaction enables governments, municipalities, or developers to unlock immediate capital against predictable long-term income streams, thereby de-risking infrastructure finance and attracting institutional investors into the infrastructure space.

WHY THE LINZI 003 LISTING MATTERS

1. It Diversifies Kenya’s Capital Markets: The listing introduces a new asset class-structured securities - that can diversify the range of investment products on offer to pension funds, insurance companies, and sophisticated investors.

2. It Demonstrates Legal and Regulatory Maturity: Successfully issuing and listing a structured product of this complexity signals Kenya’s readiness for more sophisticated financial instruments - and by extension, deeper investor confidence.

3. It Opens the Door for Replication and Innovation: Other counties, parastatals, and developers may now consider similar ABS structures to finance roads, bridges, energy, water, or housing projects - provided the legal underpinnings are solid. 

LEGAL FRAMEWORK GOVERNING ABS TRANSACTIONS IN KENYA

Any Infrastructure ABS - like the Linzi 003 - rests on a lattice of interrelated laws and regulations. A well-structured ABS must be legally sound at every stage: from structuring the SPV to listing the security. The key legal instruments include:

1. The Capital Markets Act (Cap 485A)

This Act, administered by the Capital Markets Authority (CMA), provides the overarching legal framework for the issuance and regulation of securities in Kenya. Under this law, the CMA vets ABS issuance documents and ensures investor protections are embedded in the structure.

2. Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

These regulations guide the offering and listing of securities, including structured products like ABS. They stipulate detailed disclosure requirements, issuance processes, and the responsibilities of transaction advisors and legal counsel.

3. Capital Markets (Licensing Requirements) (General) Regulations, 2002

This regulation governs the licensing of fund managers, investment advisors, and other professionals involved in securitization. It is relevant where a transaction involves complex fund structuring or public investment solicitation.

4. Capital Markets (Collective Investment Schemes) Regulations, 2001

If the ABS involves pooled investments or fund management strategies, compliance with these regulations becomes crucial.

5. Trustee Act and CMA Trustee Regulations

Where ABS transactions involve the creation of trusts or appointment of trustees (as is common in SPV structures), these laws govern the duties, powers, and fiduciary obligations of trustees in relation to the ABS.

6. Companies Act, 2015

This governs the incorporation and operation of the SPV - a separate legal entity used to isolate the infrastructure cash flows from the originator’s balance sheet.

THE ROLE OF LAW FIRMS IN ABS TRANSACTIONS

The Linzi ABS transaction underscores the pivotal role law firms can play in structuring, legal risk assessment, regulatory compliance, and transaction support. Here’s how:

1. Transaction Structuring & Legal Engineering

Lawyers are essential in advising on the ideal SPV structure, crafting transaction documents (including offer memoranda and securitization agreements), and ensuring compliance with all applicable legal frameworks.

2. Regulatory Interface & Compliance Advisory

Engagement with regulators like the CMA and NSE requires technical knowledge and strategic positioning. Legal counsel must prepare regulatory submissions, facilitate approvals, and offer interpretations on grey areas in law.

3. Due Diligence and Legal Opinions

ABS issuance demands high levels of investor assurance. Legal teams conduct due diligence on the originator, the receivables, the SPV, and associated third parties, and deliver formal legal opinions on enforceability, asset ownership, and risk isolation.

4. Investor and Trustee Support

Investor subscription agreements, trustee deeds, risk disclosure statements, and investor protections must be carefully drafted and legally validated.

5. Post-Issuance Monitoring and Compliance

Even after listing, ABS transactions require ongoing legal advisory on compliance, disclosure obligations, investor reporting, and management of potential disputes.

KEY OPPORTUNITIES FOR LEGAL PROFESSIONALS IN ABS GROWTH

As ABS transactions gain traction, legal practitioners who position themselves early will have significant opportunities to lead:

• Municipal and County Infrastructure Bonds: Counties seeking alternative financing could emulate the Linzi ABS model, requiring legal advisors to structure county-level SPVs and securitize county infrastructure revenue streams.

• Affordable Housing Securitizations: Future rent receivables from large-scale affordable housing programs can be securitized with robust legal structures.

• Green ABS and Climate-Linked Bonds: Law firms can help structure environmentally focused ABS, tapping into green finance and Environmental, Social and Governance (ESG)-driven investor appetite.

• Cross-Border Securitizations: Legal teams with regional and international competence can structure and advise on ABS instruments backed by multi-jurisdictional infrastructure assets or donor-backed receivables.

CONCLUSION: THE TIME TO ACT IS NOW

The Linzi 003 ABS transaction has set a precedent - and a challenge - for Kenya’s financial and legal professionals. With appropriate structuring, legal innovation, and regulatory compliance, structured finance can become a game-changer for Kenya’s infrastructure development agenda.

At Lex Partners Advocates LLP, we are at the forefront of these innovations. Our consortium of legal and consulting firms (Patrick, Teddy & Partners Advocates, Strategic Legal Solutions Group LLP, and International Consulting House LLP) offers:

• Legal structuring and documentation for securitization and ABS instruments and/or  transactions, due diligence and compliance services; 

• Regulatory compliance advisory with the CMA, NSE, and related bodies, including drafting enabling guidelines or frameworks; 

• Offering ESG and feasibility audits;

• SPV formation and transaction support for both public and private infrastructure developers; and

• Policy and legal reform input to support the broader securitization and structured finance ecosystem in Kenya.

_________________________________

Let’s Build the Future of Infrastructure Finance Together

If you are a developer, fund manager, county government, or public-private project promoter seeking innovative capital raising options, we are ready to walk with you. Reach out today for a confidential consultation or partnership dialogue.

💼 Lex Partners Advocates LLP 
📩 Email: info@lexpartners.co.ke
📞 Phone: +254 715 310 677
🌐 Website: www.lexpartners.co.ke

Let’s unlock infrastructure finance with the law as a strategic enabler.

THE PRICE OF LIBERTY: ETERNAL VIGILANCE IN AN AGE OF DEMOCRATIC EROSION

Introduction: The Universal Cost of Freedom

"Eternal vigilance is the price of liberty." This timeless axiom, often attributed to Thomas Jefferson but equally resonant in Africa's liberation struggles, captures an uncomfortable global truth: freedom is never permanently secured. It must be continually fought for, guarded, and renewed through each generation's vigilance.  

As democracies worldwide face threats from digital authoritarianism to institutional decay, this timeless axiom resonates anew. Whether in Washington's polarized halls, Nairobi's constitutional struggles, or Beijing's surveillance sprawl, freedom's erosion is disturbingly similar across borders. 

This examination explores the global state of democratic freedoms through a lens that deliberately incorporates African perspectives, with particular attention to Kenya's evolving democratic experiment. We analyze not just the threats but also the innovative defenses emerging from across the continent - from Ghana's electoral reforms to South Africa's constitutional resilience. 

The analysis proceeds through four critical dimensions: the current global democratic landscape with African contextualization, the transnational tools of democratic erosion, historical and contemporary lessons in vigilance, and finally, a comprehensive blueprint for democratic defense that draws on both global best practices and African innovations.  

The State of Global Democracy - A World in Retreat

Freedom House (2023) marked the 17th consecutive year of global democratic decline, manifesting differently but ominously across continents. Authoritarian resurgence now wears both hard and soft faces: China’s algorithmic surveillance state shares ideological DNA with Russia’s militarized repression, while Turkey’s media crackdowns find echoes in Uganda's social media taxes. Even established democracies face unprecedented stress-Hungary's "illiberal democracy" model has inspired copycats from Poland to Tanzania, while America's January 6 insurrection revealed how quickly norms can shatter.

Africa's democratic landscape presents both warnings and hope. Ghana continues to set the gold standard for peaceful transitions, yet Zimbabwe's 2023 elections proved electoral authoritarianism's stubborn resilience. Kenya's 2022 elections - Africa's most expensive at $347 million - saw turnout dip to 65%, reflecting a continental crisis of civic disengagement. As political scientist Nic Cheeseman (2022) observes, "Africa's democratic paradox lies in having the world's youngest population increasingly disenchanted with democratic institutions."

The new battlegrounds are digital. Where China exports its Social Credit System, African governments adopt Chinese surveillance tech with minimal scrutiny - Kenya's Huduma Namba digital ID and Nigeria's Huawei smart cities trade privacy for promised efficiency. Internet shutdowns during Ethiopia's civil war and Senegal's 2024 electoral crisis mirror Myanmar's military playbook. These developments share a global grammar of control but require localized literacy to combat.

Yet the mechanisms of this erosion, while global, adapt distinctively within local contexts, demanding closer inspection.

The Tools of Erosion - Transnational Tactics, Local Flavors

Legalistic authoritarianism has become frighteningly sophisticated. Hungary's Viktor Orbán pioneered "illiberal democracy" by rewriting constitutions and packing courts - a blueprint adapted in Kenya’s repeated attempts to amend term limits through the Building Bridges Initiative. The 2020 Malian coup and Guinea's subsequent military takeover remind us that democratic backsliding sometimes arrives via tanks but more often through legal chicanery - what Kenyan constitutional scholar Yash Pal Ghai calls "the tyranny of the pen."

Surveillance capitalism wears distinct African masks. While Westerners fret over Facebook data harvesting, Kenyans face M-Pesa transaction monitoring and Rwanda’s social media policing-tools praised for maintaining stability but chilling dissent. Pegasus spyware, used against Moroccan journalists and Ugandan opposition figures alike, reveals how digital repression has been globalized. As Nigeria's #EndSARS protesters learned, the smartphone - once hailed as a liberation tool - now serves both revolution and repression, as seen in Sudan’s protest livestreams and Ethiopia’s internet blackouts.

Disinformation has gone hyperlocal yet remains transnational. Kenya's 2022 elections saw deepfake videos of candidates speaking fluent Sheng (Nairobi street slang), while Nigeria's 2023 campaign birthed AI-generated audio of candidates endorsing rivals. These tactics mirror Brazil's "WhatsApp elections" and America's QAnon crisis, proving authoritarian innovation spreads faster than democratic defenses.

The greatest threat remains psychological. From Nairobi to New York, citizens increasingly view democracy as a spectator sport rather than a participatory project. Voter apathy - whether Kenya's missing youth vote or America's midterm slumps - creates vacuums authoritarians eagerly fill. As John Stuart Mill warned, "Bad men need nothing more to compass their ends, than that good men should look on and do nothing."

Understanding these methods is only the first step; history offers further guidance on the vigilance needed to counter them.

Lessons in Vigilance - From Weimar to Nairobi

History's autopsy reports reveal democracy's killers share methodologies across eras and latitudes. Weimar Germany's collapse - where economic crisis, polarized politics, and institutional fragility birthed Nazism - finds eerie echoes in Kenya's 2007 post-election violence and South Africa's creeping "state capture." Democracies perish when elites sacrifice norms for short-term gain, and institutions fail to check rising authoritarian impulses.

Africa's contemporary struggles offer instructive case studies. Kenya's 2010 constitution - born from post-election violence - created robust checks and balances now under constant pressure. Malawi's courts overturned fraudulent 2020 elections, proving judicial courage can repel backsliding. Conversely, Zambia's Frederick Chiluba - a liberation hero turned corrupt autocrat - embodies Lord Acton's dictum that power corrupts without institutional constraints.

The digital age demands new forms of vigilance. Kenya's 2022 "deepfake elections" proved disinformation evolves faster than regulation. Yet resistance models emerge: Ghana's fact-checking coalitions, South Africa's grassroots media literacy programs, and the African Union's cyber governance frameworks show institutionalized resistance is possible.

If these lessons teach us anything, it is that vigilance must evolve alongside the threats it counters, requiring creativity, courage, and commitment.

A Blueprint for Defense - Global Wisdom, Local Solutions

Institutional Armor

Electoral systems need technical and social fortification. Kenya's 2022 electronic voting failures highlight the perils of tech solutions untethered from local realities. Germany's constitutional court model offers inspiration, but Africa has pioneered its own innovations - Botswana's independent electoral commission and Ghana's National Peace Council demonstrate homegrown institutional resilience.

Digital Resistance

The fight for digital rights must balance regulation and innovation. Kenya's Data Protection Act (2019) provides a strong legislative framework, while Nigeria's Paradigm Initiative shows how civil society can challenge surveillance overreach. Regional approaches like the African Union’s Convention on Cyber Security could harmonize standards, provided they resist becoming tools of control themselves.

Civic Reawakening

Democracy’s first line of defense is an engaged citizenry. South Africa’s post-apartheid civic education programs and Kenya’s competency-based curriculum reforms aim to cultivate democratic values early. Platforms like Uganda's CivSource Africa demonstrate technology can deepen - not diminish - civic participation when thoughtfully deployed.

Economic Rebalancing

Inequality remains democracy’s silent assassin. Kenya's constitutional mandate for equitable county budget allocations and Botswana's transparent mineral wealth management offer models for sharing prosperity. Worker ownership models - from Spain's Mondragon cooperatives to Kenya's digital freelancer collectives - can reduce capitalism's corrosive inequalities.

Global Solidarity

Authoritarians collaborate; democrats must too. Targeted sanctions against enablers - such as London’s kleptocracy lawyers and Dubai’s property brokers - could starve repression’s infrastructure. Supporting grassroots movements, from Sudan’s resistance committees to Hong Kong’s protesters, creates transnational accountability networks.

Three Action Points for Vigilance

• Invest in Digital Literacy: Equip citizens to recognize disinformation and protect digital privacy;

• Strengthen Independent Electoral Systems: Support electoral commissions free from political interference; 

• Cultivate Civic Courage: Encourage citizen participation in daily democratic practices; and

• Public Interest Litigation: Relentlessly pursue enforcement of constitutional rights and obligations and governance requirements through public interest advocacy before the Constitutional Courts.

Together, these actions can transform vigilance from an abstract value into a lived civic culture capable of defending democracy.

Conclusion: The Unfinished Work of Democracy

Former Kenyan Chief Justice Willy Mutunga once stated, "The Constitution is not self-executing; it requires us to breathe life into it daily." This truth reverberates from Nairobi to Washington - democracy is not a self-operating machine but a garden demanding daily tending.

The African experience cautions against democratic complacency while offering innovative hope. From South Africa's truth and reconciliation process to Ghana's electoral commissions, the continent has birthed democratic solutions now studied worldwide. Kenya’s ongoing constitutional experiment - flawed yet resilient - embodies democracy's paradox: simultaneously fragile and indestructible, perpetually at risk yet capable of miraculous renewal.

In this era of algorithmic authoritarianism and attention economy politics, the price of liberty has escalated. Eternal vigilance now requires technological literacy, institutional creativity, and - above all - the courage to speak uncomfortable truths. 

As America’s founders and Africa’s liberation heroes understood, freedom is never finally won; it is leased to each generation under the strict condition of stewardship. The invoice for that lease remains unchanged across centuries: eternal, unrelenting vigilance.

--------------------------------------------
For practical support in democratic governance strategy, civic education program design, or digital rights policy advisory, contact: 

The Institute for Policy & Diplomacy
✉️ instituteforpolicyanddiplomacy@gmail.com
📍 Nairobi, Kenya
📞 +254715310677

LEASING ULTRAFINE COPPER POWDER AS A FINANCIAL STRUCTURING STRATEGY: A LEGAL AND COMMERCIAL PERSPECTIVE

Introduction: Contextualizing Mineral Leasing in Contemporary Finance

The shifting terrain of international finance, especially within the commodities sector, has compelled mineral-rich firms to seek novel avenues for revenue generation and balance sheet optimization. Among the new strategies gaining traction is the leasing of mineral assets, with particular focus on highly refined and industrially strategic commodities such as ultrafine copper powder.

This niche commodity, renowned for its applications in advanced electronics, clean energy technologies, and high-precision manufacturing, has transformed from a simple resource into a premium industrial input. Despite this, many firms in mineral-rich nations continue to treat such refined inventories as static holdings or sell them outright under distressed terms. As a result, these companies forgo opportunities to generate consistent income and improve their liquidity without resorting to additional debt or equity dilution. The leasing model provides a compelling alternative - one that blends legal innovation with commercial prudence.

Conceptualizing the Lease Model: Beyond Traditional Resource Monetization

Leasing, in its simplest form, entails a contractual arrangement in which the owner of a good permits another party to use it for a defined period in exchange for periodic payments. Applied to mineral assets such as ultrafine copper powder, this model allows firms to monetize dormant inventory by temporarily transferring usage rights to industrial consumers without relinquishing ownership.

Unlike outright sales, leasing enables firms to preserve the long-term value of their reserves, especially during periods of commodity price volatility. Ultrafine copper powder, in particular, is increasingly demanded by industries that prefer not to lock up capital through bulk purchases. These include manufacturers of semiconductors, battery components, solar cells, and even defense electronics - firms that require steady access to materials without the associated burdens of inventory financing and commodity risk.

In such cases, leasing becomes not only commercially viable but strategically astute, especially when structured to allow extensions, renewal options, or even buy-back clauses after the term concludes.

Legal Framework: Structure, Documentation, and Enforceability

From a legal standpoint, the leasing of mineral commodities such as ultrafine copper powder must be supported by a robust contractual framework. The lease agreement must clearly outline the terms of possession, payment structure, duration, renewal options, and dispute resolution mechanisms. It is essential that the legal title to the leased commodity remains firmly with the lessor, even as the lessee takes physical or constructive custody of the asset. Failure to establish this distinction could inadvertently trigger issues of transfer of ownership, taxation complications, or loss of control in jurisdictions where title and possession are easily conflated.

The lease should also include mechanisms for periodic inspection, purity and quantity certification, third-party warehousing where applicable, and insurance against loss or contamination. In the event of cross-border transactions, it is critical to select a governing law and dispute resolution forum that both parties trust. Arbitration under institutions such as the London Court of International Arbitration (LCIA) or the International Chamber of Commerce (ICC) may provide neutrality and enforceability under the New York Convention.

Additionally, mineral leasing must comply with local and international regulations governing the export, warehousing, and movement of refined metals. In countries like Zambia and the Democratic Republic of Congo, for instance, mining codes and export controls require that mineral exports - including refined powders - are registered, weighed, and often taxed at the point of departure. It is imperative that lease structures do not inadvertently contravene these regulatory thresholds, lest the arrangement be viewed as a disguised export or capital flight mechanism.

Financial and Accounting Implications

From a financial accounting perspective, leasing ultrafine copper powder can transform a firm’s income statement and balance sheet. Under the International Financial Reporting Standard (IFRS) 16, lease payments received can be recognized as income over the life of the lease. This creates a predictable revenue stream, particularly valuable for companies seeking to stabilize their cash flow or meet covenants tied to liquidity and operating income.

On the balance sheet, such leasing arrangements allow the firm to retain ownership of the mineral asset, thereby preserving its book value while simultaneously generating revenue from its use. Moreover, by treating the leased inventory as a productive asset rather than idle stock, the company can strengthen its return on assets (ROA) metric - an increasingly important indicator for institutional investors and credit rating agencies.

Leasing also offers significant tax and cost advantages. Because no sale is recorded, capital gains tax is avoided. Furthermore, firms can negotiate index-linked lease payments to hedge against inflation or copper price volatility. When structured thoughtfully, these arrangements can also underpin commodity-backed loans, factoring, or securitization structures, thus extending their utility beyond basic revenue generation into more complex financial engineering.

Commercial Use Cases and Practical Applications

The leasing of ultrafine copper powder is not merely a theoretical construct. Consider a scenario where a mid-sized mining company in Zambia holds 100 tonnes of ultrafine copper powder valued at market price but generating no income. By leasing 30 tonnes to a South Korean electronics manufacturer under a three-year lease agreement, the company secures $150,000 per month in lease payments. These payments provide a consistent operational cash flow that can fund payroll, exploration activities, or service existing debt.

In another case, a sovereign wealth fund in Africa - custodian of large strategic mineral reserves - could warehouse refined copper powder and lease it to global battery or semiconductor manufacturers in return for lease premiums. These premiums, in turn, could support the fund’s public spending or infrastructure investments. The leased assets could also be used as collateral for low-cost capital from development finance institutions or commodity financiers, thus multiplying the strategic value of the leasing model.

Legal and Commercial Risks: Mitigation and Strategy

No novel financial structure is without risks. The leasing of copper powder must grapple with several concerns, including the risk of misuse, physical degradation, theft, or contamination. To mitigate these risks, lessors should insist on comprehensive insurance policies, periodic audits, and recertification of purity upon return.

Another major legal risk involves the potential for disputes around the classification of the lease - whether it is truly a lease or a disguised sale. This distinction can have implications for taxes, customs, and financial reporting. Legal counsel must ensure that lease agreements are carefully worded to avoid triggering unintended consequences.

Cross-border enforcement is another risk. If the lessee defaults or damages the asset, enforcing remedies can be difficult in jurisdictions with weak legal infrastructure. Arbitration clauses and international enforcement mechanisms become crucial in such scenarios.

Moreover, fluctuations in copper prices can affect the perceived value of the leased commodity. Lessors can address this by structuring lease payments with floating rates tied to benchmark indices, or by inserting minimum price floors to safeguard revenue during downturns.

Strategic Advantages and Broader Implications

The leasing of ultrafine copper powder opens a range of strategic benefits. It allows companies to monetize their mineral wealth without surrendering ownership, offering a non-dilutive alternative to both debt and equity. It also creates a foundation for broader commodity finance structures, including prepayment facilities, trade credit insurance, and structured receivables.

From a macroeconomic standpoint, the model aligns well with African governments’ push toward value addition and retention of mineral control. Leasing promotes domestic beneficiation by enabling resource owners to participate in global value chains beyond raw export. It also speaks to ESG-conscious investors who favour efficient resource utilization over extractive depletion.

Furthermore, this model can be integrated with emerging digital technologies such as blockchain-based smart contracts, which automate lease payments, track inventory custody, and provide tamper-proof audit trails for regulators and financiers alike.

Conclusion: A Viable Tool for the Next Era of Mineral Finance

Leasing ultrafine copper powder is a powerful, underutilized financial strategy that holds tremendous promise for mineral-rich firms and commodity owners. When structured with the right legal rigor and commercial foresight, it not only balances books but also builds bridges to global markets, long-term capital, and industrial partnerships.

As Africa and other resource-abundant regions seek to move up the value chain and assert greater sovereignty over their natural wealth, legal and financial innovation will be key. Leasing refined minerals is one such innovation - a quiet revolution waiting to be scaled.

----------------------------------------

For tailored legal support in structuring mineral leasing agreements, regulatory compliance, or trade finance integration, contact:

💼 Lex Partners Advocates LLP 

📩 Email: info@lexpartners.co.ke

📞 Phone: +254 715 310 677

🌐 Website: www.lexpartners.co.ke

A CONSTITUTIONAL CRITIQUE OF KENYA'S REBRANDED PROVINCIAL ADMINISTRATION SYSTEM UNDER THE 2010 CONSTITUTION

1. INTRODUCTION

The Constitution of Kenya, 2010 marked a paradigm shift from a centralized governance model to a devolved system intended to bring government services closer to the people, enhance accountability, and promote citizen participation. Central to this shift was the requirement under Article 17 of the Sixth Schedule that the national government "shall restructure the system of administration commonly known as the Provincial Administration to accord with and respect the system of devolved government."

More than a decade later, Kenya still retains a rebranded Provincial Administration system - now operating through Regional, County, and Sub-County Commissioners, and Chiefs - embedded within the Ministry of Interior and National Administration. This critique evaluates the extent to which the current structure complies with both the letter and spirit of the 2010 Constitution, particularly the objectives of devolution, and examines the legal, political, and practical implications of maintaining this parallel administrative apparatus.

2. HISTORICAL CONTEXT AND EVOLUTION

2.1 The Colonial and Post-Independence Provincial Administration

The Provincial Administration was born out of the British colonial policy of indirect rule and later institutionalized through successive post-independence governments. It comprised a rigid hierarchy of appointed officials - Provincial Commissioners (PCs), District Commissioners (DCs), District Officers (DOs), Chiefs, and Assistant Chiefs - serving as the eyes and arms of the executive, often exercising unchallenged authority over public administration, policing, land disputes, and civil registration.

2.2 The 2010 Constitutional Shift

The Constitution of Kenya, 2010 ushered in a devolved government system, creating 47 counties each with its own elected Governor, County Executive Committee, and County Assembly. The objects of devolution under Article 174 include promoting democratic and accountable exercise of power, enhancing service delivery, protecting minority and marginalized groups, and facilitating public participation in governance. Crucially, the Constitution envisioned a clear separation of national and county functions as listed in the Fourth Schedule.

In recognition of the persistence of the Provincial Administration, Article 17 of the Sixth Schedule provided a transitional pathway, obligating the national government to restructure the system to align it with the new devolved governance architecture.

3. Legal and Institutional Framework of the Current System

3.1 The National Government Coordination Act, 2013

Passed in response to Article 17, the National Government Coordination Act, 2013 is the primary statute anchoring the rebranded Provincial Administration. It establishes offices such as County Commissioners and Deputy County Commissioners, defines their roles, and assigns them responsibility for coordinating national government functions at county and sub-county levels.

While the Act purports to respect devolution, it effectively recasts the Provincial Administration within the executive arm of the national government. It creates a dual administrative presence in counties: one elected (county government) and one appointed (national administration), often leading to conflict, duplication, and confusion.

3.2 Executive Directives and Interior Ministry Guidelines

Successive Presidential Executive Orders (e.g., Executive Order No. 1 of 2013, 2016, and 2020) have reaffirmed the structure and command chain of national administrative officers. Chiefs and assistant chiefs, now classified as public servants, are recruited and regulated by the Public Service Commission (PSC), and deployed by the Ministry of Interior, further cementing their position as agents of the central executive.

4. Constitutional and Doctrinal Critique

4.1 Misalignment with Article 17 of the Sixth Schedule

The language of Article 17 - particularly the phrases "restructure" and "accord with and respect the system of devolved government" - implies a substantive transformation that would see the administration reoriented or subordinated to county structures. Instead, the national government has merely rebranded the system while preserving its vertical accountability to the Office of the President.

The failure to place these officers under the county governments, or to create joint service delivery frameworks, contradicts the clear constitutional intent to devolve power, responsibility, and resources. The national government’s retention of grassroots-level administrators amounts to administrative centralism cloaked in legal legitimacy.

4.2 Undermining the Objectives of Devolution

The continued presence of Regional and County Commissioners with coercive powers undermines:

• Article 6(2): which declares that the two levels of government are "distinct and interdependent."

• Article 174(a): which emphasizes the democratic and accountable exercise of power.

• Article 189(1): which requires the two levels of government to respect each other’s functional and institutional integrity.

By retaining centralized agents within devolved spaces, the national government perpetuates a command-and-control culture, contrary to devolution’s goal of citizen-centered service delivery.

4.3 The Role of Chiefs and Assistant Chiefs

Despite their perceived grassroots utility, the continued deployment of chiefs and assistant chiefs under the national government creates administrative friction. Many are involved in functions that counties also handle - such as public health mobilization, civic registration, or dispute resolution - without formal accountability to county leadership.

While Article 186(1) and the Fourth Schedule assign public administration functions to both levels, the unilateral exercise of those functions by national officers undermines intergovernmental cooperation and risks institutional redundancy.

5. Jurisprudence and Comparative Perspectives

5.1 Supreme Court Advisory Opinion No. 2 of 2013

Although not directly on this matter, the Supreme Court held that both levels of government are “distinct but interdependent” and must be allowed to operate without undue encroachment. Applying this to Article 17, it can be inferred that embedding national officers in county spaces, exercising functions overlapping with counties, violates constitutional autonomy.

5.2 Lessons from Comparative Federal Systems

In federal and quasi-federal systems such as South Africa, Nigeria, and India, local administration is either:

• Wholly devolved to subnational units, or

• Jointly administered through clear cooperative governance frameworks.

Kenya’s dual-track approach - national officers in county territory with no subordination to local governments - is institutionally inefficient and politically regressive.

6. Recommendations and Way Forward

1. Amend the National Government Coordination Act to:

   • Remove county-level national officers or clearly subordinate them to county governments in non-security functions.

   • Establish joint intergovernmental administrative boards for security and coordination.

2. Gradual Transfer of Chiefs and Assistant Chiefs to county public service boards where appropriate.

3. Audit and realign functions at the sub-county level to avoid duplication and conflict.

4. Judicial interpretation of Article 17 should be sought to clarify the constitutional threshold of "restructuring" and ensure fidelity to the devolution framework.

5. Civic education and stakeholder dialogue to reconsider the value and relevance of inherited administrative models.

7. Conclusion

The rebranded Provincial Administration in Kenya, while operating within statutory and executive instruments, fails to satisfy the constitutional command under Article 17 of the Sixth Schedule. Instead of restructuring to respect devolution, the system has persisted as a vestige of centralized governance, undermining county autonomy, duplicating functions, and perpetuating top-down administration.

Unless corrected through legislative reform, intergovernmental cooperation, or judicial guidance, the dual administrative regime will continue to frustrate the realization of the transformative ideals of the 2010 Constitution.

---

© 2025 | For inquiries, republication rights, or legal citations, contact INSTITUTE FOR POLICY & DIPLOMACY at instituteforpolicyanddiplomacy@gmail.com.

A CONSTITUTION UNDER SIEGE: WHY MURKOMEN’S “SHOOT TO KILL” ORDER VIOLATES THE LAW AND ENDANGERS US ALL

Introduction: When the Interior Ministry Declares War on Civilians

In an alarming statement made on 26th June, 2025 (see https://youtu.be/0FQ7x7_HH3g?si=AYkH7PHX046Dw_Bd), Kenya's Cabinet Secretary for Interior and National Administration Kipchumba Murkomen reportedly instructed police officers to shoot at anyone appearing near a police station. This utterance - authoritarian in tone, unconstitutional in spirit, and criminal in effect - marks a dark moment in Kenya’s democratic journey. It evokes memories of repressive regimes and colonial brutality, not the conduct of a Cabinet Secretary sworn to uphold the Constitution of Kenya, 2010.

The implications of such a pronouncement go beyond the immediate danger it poses to innocent citizens. It threatens to unravel the constitutional fabric that binds our democracy -the rule of law, the sanctity of life, the presumption of innocence, and due process.

The Constitutional Violations: A Systemic Breakdown of the Rule of Law

1. Right to Life (Article 26, Constitution of Kenya, 2010)

Murkomen's statement amounts to a direct incitement to extrajudicial killings, in flagrant violation of Article 26(1) of the Constitution which states:

"Every person has the right to life."

Moreover, Article 26(3) provides that a person shall not be deprived of life intentionally, except to the extent authorized by law.

Kenyan law permits the use of lethal force by police officers only under extremely limited circumstances - primarily to protect life, not to arbitrarily take it. A person merely “appearing” near a police station does not present a lethal threat warranting a death sentence without trial.

2. Right to Fair Trial (Article 50)

Kenya’s criminal justice system is anchored on the principle that every accused person is innocent until proven guilty. Article 50(2)(a) guarantees the right to a fair and public hearing before a court of law.

Murkomen’s remarks pre-empt this process by:

• Assuming guilt without investigation,
• Encouraging instant punishment (death),
• Circumventing the courts and due process.

This is not just unconstitutional- it is state-sponsored vigilantism.

3. Right to Dignity and Freedom from Cruel, Inhuman or Degrading Treatment (Article 28 and 29)

To command law enforcement officers to summarily shoot individuals on mere suspicion is a directive rooted in cruelty and impunity. It disregards:

• Human dignity (Article 28);
• Freedom from torture (Article 29(f));
• Protection from all forms of violence from public or private sources (Article 29(c)).

The Legal Framework on Use of Force: National Police Service Act and International Law

Section 61, National Police Service Act, 2011

This section provides that a police officer may use force only when non-violent means are ineffective or without promise of achieving the intended result. Firearms may be used only as a last resort, in situations such as:

• Self-defense or defense of others against imminent threat of death or serious injury;
• Preventing a particularly serious crime involving grave threat to life; and
• Arresting a person presenting such a threat.

Merely "appearing near a police station" does not satisfy any of these legal thresholds.

United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990)

As a signatory to international human rights treaties, Kenya is bound by international standards. Principle 9 of the UN Basic Principles explicitly states:

"Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury..."

Murkomen’s directive is an affront to Kenya’s international obligations under the UN Charter and the African Charter on Human and Peoples’ Rights.

Incitement to Commit a Crime: Criminal Responsibility Under the Penal Code

Section 96 of the Penal Code: Incitement to Violence

"Any person who utters, prints or publishes any words... indicating or implying that it is or might be desirable to do or omit to do any act the doing or omission of which is calculated to lead to physical injury to any person or to any class, community or body of persons is guilty of an offence..."

Murkomen’s utterances may be construed as incitement to commit a felony (murder), and thus criminal in themselves.

Public Officials and the Burden of Restraint

It is not enough to dismiss Murkomen’s statement as political hyperbole. A Cabinet Secretary is not a talk-show pundit. The words of a senior state officer carry the force of policy, influence operational conduct, and may result in irreversible harm.

Kenya is still reeling from the wounds of police brutality, from the 2007–08 post-election violence, to the 2020 Githurai shootings, and most recently, the violent quelling of 2023 anti-tax protests. Giving security officers a blank cheque to shoot on sight is a recipe for mass atrocities and state terror.

What Next? The Case for Legal Accountability and Public Resistance

Murkomen must not be allowed to cloak his illegal pronouncement in political populism or “national security” rhetoric. He must be:

1. Compelled to retract the statement publicly and unequivocally;
2. Investigated by the National Police Oversight Authority (IPOA) for promoting unlawful use of force;
3. Held personally liable for any injuries or deaths that arise from his directive;
4. Censured by Parliament, which is obligated under Article 95 to exercise oversight over the national executive.

Conclusion: Democracy Dies in Broad Daylight, Not Darkness

What Murkomen has suggested is state-sanctioned extrajudicial execution, plain and simple. If left unchallenged, it will normalize an era where proximity to authority is treated as guilt, and suspicion as justification for death. This is the very antithesis of the Constitution of Kenya, 2010.

Let us be clear: this is not about security - it is about tyranny in uniform. And the moment to resist it is now.

---

© 2025 | For inquiries, republication rights, or legal citations, contact Institute for Policy & Diplomacy at instituteforpolicyanddiplomacy@gmail.com