Kenya 2007 Election – How bad were we? – “The War for History” part thirteen

[The previous posts from this series are here.]

In June 2007, newly “on the ground” in Nairobi as the resident Director for East Africa for the International Republican Institute, I was told that one of the President’s senior ministers wanted to meet me for breakfast at the Norfolk Hotel.

Fresh from my first meeting with the American Ambassador with his enthusiasm for the current political environment and his expressed desire to initiate an IRI observation of the upcoming election to showcase a positive example of African democracy, I commented to the minister over breakfast in our poshly updated but colonially inflected surroundings on the seeming energy and enthusiasm among younger people in Nairobi for the political process.  I suggested that the elections could be an occasion of long-awaited generational change.  He candidly explained that it was not yet the time for such change because “there has been too much corruption.”

The current establishment was too vulnerable from their thievery to risk handing over power.

Unfortunately I was much too new to Kenyan politics to appreciate the gravity and clarity of what I was being told, and it was only after the election, in hindsight, that I realized that this was the most important conversation I would have in Kenya and told me what I really needed to know behind and beyond all the superficialities of popular politics, process, law and diplomacy. Mea culpa.

After we ate, the minister naturally left me with the bill for his breakfast and that of his aide.

When it was all said and done, after the vote tallies were changed to give President Kibaki a second term through corruption of the  ECK, and almost 1500 people had been killed and hundreds of thousands of people displaced, and I finished my leave to work for IRI and was back at home in the United States, at my job as a lawyer in the defense industry, I eventually submitted “hotline” complaints to the Inspectors General of the State Department and USAID about what I considered improper interference by the American Ambassador with my work as an NGO employee administering the USAID-funded IRI Election Observation Mission as well as the Exit Poll.

As an exhibit to these complaints, in addition to the statement that I had written for The New York Times after they had called to interview me in July 2008, I prepared a Supplemental Statement to the State Department’s Inspector General.  Seven years after the ill-fated election, having eventually gotten what I could from a round of FOIA requests to State and two rounds to USAID, I am still left with unanswered but concerning questions about what the “agenda” was and was not on the part of the Ambassador, whether it was successful or not, and how it infected my work and the election.  I have no doubt that if we “hadn’t even been there,” to paraphrase the Ambassador, the election would have been stolen anyway, but we were there.  In memory of Peter Oriare and Joel Barkan to whom I dedicated this series for their efforts for a free and fair election and transparent process in 2007, and in respect to my newer Kenyan friends who have been left to continue the work in the aftermath, with courage and determination in the face of increasing repression and threat, here it is:

Supplemental Statement for State Department OIG 2-09

[I have redacted a few names and inserted some sections from my prior New York Times statement for context.]

Election Observers

 

Why does the House Foreign Affairs Africa Subcommittee keep leaving the Carter Center off their election hearings?

The U.S. House of Representatives Committee on Foreign Affairs, Subcommittee on Africa, Global Health, Global Human Rights and International Organizations is holding a hearing Wednesday morning, March 18, on U.S. Election Support in Africa.

Good.  Unfortunately, as was that much more conspicuous with the hearing about the 2013 Kenyan election, the subcommittee has scheduled testimony from the IFES/NDI/IRI troika, but without the Carter Center scheduled.  The Carter Center conducted the USAID-funded Election Observation Mission itself for Kenya in 2013, so the omission was hard to understand on a hearing on that very election; it is still hard to understand for an Africa-wide hearing.  (I have no idea why things have turned out this way, I am simply making the point that Congress would have an opportunity to be better informed if this wasn’t just an “all in the Beltway” experience.)

For Kenya’s last vote, see Carter Center quietly publishes strikingly critical Final Report from Kenya Election Observation.

For further discussion of the Subcommittee’s April 2013 Kenya hearing, see AfriCOG’s Seema Shah asks in Foreign Policy: “Are U.S. Election Watchdogs Enabling Bad Behavior in Kenya?”

In new developments, now with the British #Chickengate prosecutions for bribing Kenyan election officials: USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers.

The Carter Center also observed the 2002 and 1997 elections in Kenya, along with many others, including the most recent election in the Democratic Republic of the Congo in 2011 which provides perhaps another set of lessons as the Kabila government arrests democracy supporters and even a U.S. diplomat.

DRC: “We have to debunk the idea that it is peace versus transparent elections. The idea that lousy elections are going to bring peace is madness.”

Carter Center calls it as they see it in DRC

U.S. and other Western donors support review of election irregularities in DRC–offer technical assistance.

State Department to Kabila on DRC Presidential Election: “Nevermind”?

IRI Poll Releae Press Conference

US, UK, Swiss offer encouragement on Anglo Leasing corruption prosecution in face of Ethics and Anti-Corruption Commission crisis

Joint Statement by U.S. Ambassador Robert F. Godec, British High Commissioner Christian Turner, and Swiss Ambassador Jacques Pitteloud

IMG_7525March 13, 2015

The Governments of the United States, the United Kingdom and Switzerland welcome recent actions by the Kenyan Director of Public Prosecutions to combat corruption by ordering prosecutions in Kenya linked to the decade-old Anglo Leasing scandal. These orders and the subsequent arrests were important steps forward by the Government of Kenya in the critical fight against corruption. We encourage the government to build further on these actions, to include through independent and vigorous investigations of all allegations of corruption, and through fair trials and equal treatment under the law for all those charged.

The Governments of the United States, the United Kingdom and Switzerland will continue to work with the Government of Kenya as it seeks to tackle corruption and to build a democratic, secure, and prosperous future.

**

For background: “Kenya’s New Anti-Graft Czar Comes with Baggage” by Brian Obara at Think Africa Press.

Integrity Centre

Six years after Oscar Foundation murders, Kenya is a “place where human rights defenders can be murdered with impunity”

The fifth six anniversary of the “gangland style” execution of Oscar Foundation head Oscar Kingara and his associate John Paul Oulu in their car near State House in Nairobi passed largely unremarked last week, but deserves to be remembered.  From the New York Times report the next day:

“The United States is gravely concerned and urges the Kenyan government to launch an immediate, comprehensive and transparent investigation into this crime,” the American ambassador to Kenya, Michael E. Ranneberger, said in a statement on Friday. It urged the authorities to “prevent Kenya from becoming a place where human rights defenders can be murdered with impunity.” (emphasis added)

The slain men, Oscar Kamau Kingara and John Paul Oulu, had been driving to a meeting of human rights activists when unidentified assailants opened fire. No arrests have been reported.

Last month, the two activists met with Philip Alston, the United Nations special rapporteur on extrajudicial executions, and provided him with “testimony on the issue of police killings in Nairobi and Central Province,” Mr. Alston said in a statement issued in New York on Thursday.

“It is extremely troubling when those working to defend human rights in Kenya can be assassinated in broad daylight in the middle of Nairobi,” Mr. Alston said.

Mr. Alston visited Kenya last month and said in a previous statement that killings by the police were “systematic, widespread and carefully planned.”

. . . .

Unfortunately, in these five six years nothing has been done about the murders, and no action was taken on the underlying issue of widespread extrajudicial killings by the police. Kenya in fact proved itself to be a place where human rights defenders can be murdered with impunity. The government spokesman who made inflammatory (and baseless according to the embassy) attacks on the victims just before the killings is now a governor, and the Attorney General who stood out as an impediment to prosecuting extrajudicial killing (and was banned from travel to the U.S.) is a Senator. (See also the State Department’s Kenya Country Report on Human Rights Practices, 2013)

Below is the March 19, 2009 statement to the Congressional Record by Senator Russ Feingold who is now the President’s Special Envoy for the Great Lakes Region of Africa and the DRC, courtesy of the Mars Group:

Mr. President, two human rights defenders, Oscar Kamau Kingara and John Paul Oulu, were murdered in the streets of Nairobi, Kenya two weeks ago. I was deeply saddened to learn of these murders and join the call of U.S. Ambassador Ranneberger for an immediate, comprehensive and transparent investigation of this crime. At the same time, we cannot view these murders simply in isolation; these murders are part of a continuing pattern of extrajudicial killings with impunity in Kenya. The slain activists were outspoken on the participation of Kenya’s police in such killings and the continuing problem of corruption throughout Kenya’s security sector. If these and other underlying rule of law problems are not addressed, there is a very real potential for political instability and armed conflict to return to Kenya.

In December 2007, Kenya made international news headlines as violence erupted after its general elections. Over 1,000 people were killed, and the international community, under the leadership of Kofi Annan, rallied to broker a power-sharing agreement and stabilize the government. In the immediate term, this initiative stopped the violence from worsening and has since been hailed as an example of successful conflict resolution. But as too often happens, once the agreement was signed and the immediate threats receded, diplomatic engagement was scaled down. Now over a year later, while the power-sharing agreement remains intact, the fundamental problems that led to the violence in December 2007 remain unchanged. In some cases, they have even become worse.

Mr. President, last October, the independent Commission of Inquiry on Post-Election Violence, known as the Waki Commission, issued its final report. The Commission called for the Kenyan government to establish a Special Tribunal to seek accountability for persons bearing the greatest responsibility for the violence after the elections. It also recommended immediate and comprehensive reform of Kenya’s police service. Philip Alston, the UN Special Rapporteur on extrajudicial killings, echoed that recommendation in his report, which was released last month. Alston found the police had been widely involved in the post-election violence and continue to carry out carefully planned extrajudicial killings. The Special Rapporteur also identified systematic shortcomings and the need for reform in the judiciary and Office of the Attorney General.

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Hillary Clinton, Scott Gration and “public private” e-mail at the State Department

The news in today’s New York Times that Secretary of State Clinton did not use a government e-mail account during her service in office, but rather handled her official e-mail communication through one or more “private” accounts is a disappointment. Cabinet level officials are not entitled to simply exempt themselves from the full demands of government records and freedom of information laws.

This is one of those areas where we need to “walk the talk” if we are going to provide effective leadership on open governance and rule of law.

One of the things that makes this especially disappointing is that this problem came up prominently in the Bush Administration where a large number of officials in the White House were using a non-government system through the Republican Natiional Committee. The company I worked for at the time was involved in dealing with the mess of trying to recover public records involved in White House e-mail over a period of years. It appears likely that Mrs. Clinton will be the only candidate for president next year with much actual foreign policy experience, which many voters might consider to have quite a lot of weight in light of our experiences with inexperienced presidents over the past fifteen years. Unfortunately, this public records situation seems to be a case where readily available learning from past problems was not applied.

A couple of other points: first, it seems quite striking that Ambassador Scott Gration was severely criticized by the State Department’s Office of the Inspector General, in the lead up to his resignation, under Secretary Clinton, for his use of insecure private e-mail accounts; second, if the Secretary of State was during her four years in office not using an official e-mail account at all, it seems to strain credibility to think that this mode of operation was not understood and effectively acquiesced in by a whole lot of other people in government.

Based on the reporting it appears that the records have been identified and preserved and will be available. I also recognize that the way that most of us use e-mail is a difficult match with the requirements of government records and freedom of information laws and that there will inevitably be issues, challenges and disputes in certain areas. Nonetheless, if we are to have a system based on the rule of law and a government “of laws, not of men”, the highest federal officials are no more entitled to simply opt out of the system than are, say, the members of a local school board.

OIG Inspection Embassy Nairobi Kenya August 2012:

He has willfully disregarded Department regulations for the use of commercial email for official government business, including front channel from the Assistant Secretary for Diplomatic Security against such practice, which he asserted to the OIG team he had not seen. (This topic is addressed later in the report.)

USAID Inspector General should take a hard look at Kenya’s election procurements supported by U.S. taxpayers

4292493510_a3a02344a7_o The successful prosecution of Smith & Ouzman, Ltd. and two of its officers by the U.K. Serious Fraud Office for paying bribes to Kenyan election officials to obtain contracts to should be a wake-up call in Washington.  Smith & Ouzman Chairman Christopher John Smith and Sales and Marketing Director Nicholas Charles Smith were sentenced last week and sentencing of the corporation is upcoming.

Ironically, perhaps, “capacity building” and procurement systems, along with the subsequently abandoned electronic results transmission system, were touted by U.S. Ambassador Ranneberger as features of the U.S. pre-election support in Kenya in 2007:

* “Developing the capacity of the Electoral Commission of Kenya (ECK) lies at the  heart of our strategy.  The USG funded International Foundation for Election Systems (IFES) has been providing support to the ECK since late 2001.  Activities focus on providing appropriate technology for more efficient and transparent elections administration while improving the skills of the ECK technical staff.  This support additionally includes capacity building and technical assistance to support election administration.  Technical assistance includes computerization of the Procurement and Supplies Department, which is responsible for printing and distributing election materials.  Assistance will also support implementation of the ECK’s restructuring plan, strengthening logistics capacity, and accelerating the transmission and display of results.”

From “Lessons for Kenya’s 2012 elections from the truth trickling out about 2007-New Cables From FOIA (Part One)” quoting a December 14, 2007 Ranneberger cable describing U.S. preparations for the Kenyan election.

For the 2013 election, I have a copy of one last minute USAID procurement through IFES for the Kenyan IEBC related to the failed electronic results transmission system; I would assume there were other USAID procurements involved for the IEBC.  Notably, the Supreme Court of Kenya found that the main cause of the failure of the electronic results transmission system and the electronic voter identification system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.”   “Thoughts on Kenya’s Supreme Court opinion” April 13, 2013.  See also, “Why would we trust the IEBC vote tally when they engaged on fraudulent procurement processes for key technology?”, March 24, 2013.

For a detailed narrative and links on the U.K. Serious Fraud Office case, see Corruption Watch-UK/Trial Monitoring: “Chickens come home to roost: the Smith and Ouzman African bribery case”:

The most serious allegations relate to 7 contracts with the IIEC in Kenya between 2009-2010, worth £1.37 million, where S&O made unusually high commission payments of between 27% and 37% of the contract price. Part of prosecution’s case was that the commission of £380,859 over 18 months paid to the agent, Trevy James Oyombra, was exorbitant, and clearly designed to include payments for officials.

The contracts in Kenya included ballot papers and voter ID cards for By-Elections, 18 million voter registration cards, Referendum ballot papers, and other products relating to elections, such as card pouches, OMR forms, ultraviolet lights. It was a feature of several of these contracts that the S&O subcontracted out the printing work to other companies, in one case to a Chinese company that delivered the goods for less than half the cost of the contract price.

This raises questions about whether S&O were compliant with procurement rules and whether it compromised the security and integrity of the electoral process by subcontracting.

Additionally, on several contracts, S&O delivered significantly less papers than they were contracted to do raising the question of whether the integrity of the electoral process was compromised. It was also a feature of some of these contracts that prices were inflated significantly after award of contract. In all the contracts, the alleged bribes were paid for by the Kenyan tax payers, as the cost of commission was reflected in the contract price.

The specific contracts were as follows:

  • June 2009 – Shinyalu and Bomachoge By-Election. S&O were to provide voter ID cards, and ballot papers – although in the end they provided only 142,000 papers against the 200,000 ordered.
  • January 2010 – 18 million voter registration cards. Once S&O had been awarded the contract they subcontracted the production of half the forms to another company.
  • March 2010 – contract for electors’ card pouches which S&O subcontracted to a Chinese company who delivered them for less than half of the contract price.
  • May-July 2010 – three different By-Election ballot paper contracts (South Mugirango, Matuga and Civil By-Elections) – where the contract price in each case was increased substantially (sometimes by 50%) after award of contract to permit bribes to be paid. The agent advised S&O against providing “chicken” to visitors to their factory in 2010 as there were other officials not from the IIEC who he said they shouldn’t give “the wrong picture” – undermining the defence’s argument that the company was just doing things the “African way”.  Significantly the company again delivered less quantities of ballot papers than were required in each of these three contracts – in the case of the Civic By-Elections some 40,000 less than ordered.
  • July 2010 – a contract to provide 14.6 million Referendum Ballot Papers in which S&O worked out an uplift per ballot paper to factor in the bribery.
  • July 2010 – 1.5 million OMR correction forms and 1000 nomination forms in May.
  • July-December 2010 – ultra violet lights and other Parliamentary and Civil Ballot Papers.

Electoral officials at the IIEC were on several occasions described by the agent, Trevy, as trying to make money before they left the IIEC and went back into government. The agent described the officials at on stage as anxious and “broke”, and “they are desperate for the chicken”. The agent also said that officials told him that S&O needed to “be discrete since all peoples eyes and the government intelligence are watching their every move even on the phone to ensure transparency”.

The Kenyan officials named in court as recipients of payments were as follows: IIEC: Kenneth Karani (chief procurement officer); David Chirchir (IIEC Commissioner); James Oswago (IIEC Chief Electoral Officer); Dena; Kennedy Nyaundi (Commissioner); Gladys Boss Shollei (Deputy CEO); Issack Hassan; Hamida, Tororey and Sang.

Several of these officials are still in government: David Chirchir is current Energy Minister in government, and Issack Hassan is the current Chairman of the Independent Electoral and Boundaries Commission (IEBC) which took over from the IIEC.

The scope of the successfully prosecuted bribes to Kenyan officials, in particular the Kenyan Interim Independent Electoral Commission, now Independent Electoral and Boundaries Commission, was such as to suggest the corruption was not unique by time or geography.

Although USAID, as referenced in the State Department cable quoted above, has provided millions for the operations of the Electoral Commission of Kenya and its successors on a regularized basis since embedding IFES in the Electoral Commission of Kenya, ECK,  in 2001, I do not know whether there was any direct U.S. funding, or U.S. funding through a “basket” administered through UNDP or otherwise, implicated in the specific acquisitions involved in the prosecution.  At the least, given the level of U.S. funding for the Kenyan elections through this time period, the U.S. indirectly underwrote the ability of the Kenyan election officials to corruptly overpay for those things the U.S. was not helping to pay for.

The time period during which the offenses at issue in this U.K. prosecution occurred was 1 November 2006 through 31 December 2010.  Also during this time, for instance, IFES awarded  a more than $3.4M competitive procurement for USAID to Smith & Ouzman for polling booths for Sudan’s National Election Commission for 2010 elections.  Although there may be nothing at all irregular, it is worth noting that Smith & Ouzman has generally been identified as a “printing company” and its election related products and services marketed on that basis.

From a 2008 IFES election materials “buyer’s guide”:

Smith & Ouzman, Limited

Brampton Road
Eastbourne, Sussex BN22 9AH
UNITED KINGDOM
Contact: Christopher Smith, Managing Director
Tel: +44 1323-52-4000
Toll Free: 0800-298-2911 (UK only)
Fax: +44 1323-52-4024
elections@smith-ouzman.com

Providing the Ballot — Supporting Democracy Worldwide Smith & Ouzman, Limited, has been established for more than 60 years and is the globally trusted name in security printing, providing tailored secure ballot solutions to electoral commissions and authorities from Afghanistan to Zimbabwe, and many places in between. Our team of professional staff has considerable experience in election projects and ensures that ballot papers incorporate devices to protect against electoral fraud and are packed for distribution directly to polling stations. Smith & Ouzman, Limited is the company that provides you with security, integrity and reliability. ● Election Experience Afghanistan, ballot papers; Benin, indelible ink; Botswana, ballot papers; European Union, ballot papers, postal ballots; Ghana, equipment; Kenya, ballot papers, registration forms, voters cards; Kosovo, ballot papers, registration forms, postal ballots; Malawi, ballot papers, UV lamps; Mauritania, ballot papers; Namibia, ballot papers; Nigeria, ballot papers; Somaliland, ballot papers, indelible ink; Tanzania, indelible ink, security envelopes; Uganda, ballot papers, indelible ink; United Kingdom, ballot papers, poll cards, registration forms, postal ballots; Zambia, ballot papers, indelible ink; Zimbabwe, ballot papers.

According to the  IFES 2012 and 2013 Annual Reports, Smith & Ouzman was a corporate donor to IFES.

The “War for History” Series to date

♠The War for History: was Kenya’s 2007 election stolen or only “perceived to be” stolen?

♠Part Two of “The War for History”: my e-mails to Joel Barkan of January 2, 2008

♠Part Three of “The War for “History”: continuing my e-mail reports to Joel Barkan

♠Part Four of “The War for History”: “yes, the exit poll discriminated against dead voters”

♠Part Five of “The War for History”: “sitting on” the exit poll in January and February 2008

♠(Part Six): Why “The War for History” matters now–authoritarian momentum in East Africa

♠”The War for History” part seven: what, specifically, happened with Kenyans’ votes?

♠”The War for History” part eight: “the way not forward; lessons not learned” from Kenya’s failed 2007 election assistance

♠”The War for History” part nine: from FOIA, a readout of new Vice President Kalonzo Musyoka’s February 2008 meeting with John Negroponte

♠”The War for History” part ten: what was going on in the State Department on Kenya’s failed election; recognizing change at IRI and how the 2007 exit poll controversy turned into a boon for IRI in Kenya

♠”The War for History” part eleven: what did I mean in “part ten” in referring to Ranneberger “trying to quash” poll results showing Odinga taking the lead in the presidential race in September 2007?

♠”The War for History” part twelve: why did Ranneberger and Lambsdorf react so differently to the election fraud they witnessed together?

Any questions?  There is plenty more I can elaborate on details but I think the general picture is clear that the election was stolen.  Such ambiguity as has existed has been generated by people who have known better.  In an upcoming post I will explain why, as opposed to just how, as I was told, the election was stolen–and why the success of the fraud has preempted reform in Kenya.

 

“[T]o dance on the graves . . .”–KPTJ letter to UK Serious Fraud Office on #Chickengate convictions

By NJONJO MUE, as printed at Business Daily, “Smith & Ouzman director’s crime goes beyond ‘chicken’ offer to IEBC officials”:

Mr Mue is programme adviser at Kenyans for Peace with Truth and Justice.

Kenyans for Peace with Truth and Justice (KPTJ), a coalition of more than 30 legal, human rights and governance civil society groups would like to commend UK’s Serious Fraud Office (SFO) for the successful prosecution of Smith & Ouzman, and two of its directors for overseas corruption, including the bribery of Kenyan election officials to obtain contracts for printing of poll materials.

We write this letter to give our perspective on the impact of corruption on elections. We do this in the hope that you will bring these matters to the attention of the court so that they may inform its deliberations on the sentencing of the directors and the company and the subsequent confiscation hearing.

We would also like to strongly suggest that the SFO call expert witness on this point so that the court can be fully informed about it. We would be happy to provide relevant names of experts in this area should the SFO need such assistance.

KPTJ was formed in the wake of the widespread violence that engulfed Kenya following the disputed 2007 presidential elections.

More than 1,100 people were killed, over half a million displaced from their homes, hundreds of women and men sexually assaulted as well as property worth billions of shillings destroyed in the chaos.

Kenya was saved from a full-scale civil war only by international mediation efforts led by former UN secretary-general Kofi Annan.

The mediation agreed on a raft of measures to address both the immediate crisis and the long-term underlying issues to bring permanent stability to the country, including constitutional and institutional reforms.

A commission of inquiry appointed to review the elections recommended a complete overhaul of the electoral process, including the disbandment of the then Electoral Commission of Kenya (ECK) and a fresh registration of voters.

The ECK was replaced by the Interim Independent Election Commission, the body whose officials Smith & Ouzman subsequently bribed to obtain business from.

The above background is important in order to demonstrate a number of key points.

First, both Kenyans and the international community invested a lot of time, money and hard work to ensure that the devastating political violence of 2008 would never occur again.

This was done through reforming the election management body and the appointment of new commissioners, among other measures.

For Smith & Ouzman to casually bribe  the new poll officials and justify it by claiming that they were just doing  business the “African way” is not just an insult to Kenyans and Africans, it is to dance on the graves of those who paid the ultimate price due to the failed elections.

Second, Kenya has frequently paid a high price in terms of lives lost and property destroyed as a result of disputed elections, the post-election violence being only the most extreme example.

Political violence in turn is often the direct consequence of having elections managed by officials of questionable integrity who cannot be trusted to deliver a free and fair election.

When Smith & Ouzman bribes poll officials to obtain contracts for printing election materials, the country not only incurs financial loss due to the inflated price, but also it ultimately pays a much higher price in terms of the loss of integrity of the electoral body and the subsequent instability and political uncertainty that the loss brings.

As far as financial consequences are concerned, it is notable that Kenya’s elections have been said to be among the world’s most expensive per capita, in spite of their generally poor quality.

Third, an election body, like a bank, survives on public trust and derives legitimacy and credibility not from the technical sophistication of their poll materials, tools and procedures, but from public faith in its impartiality, competence and integrity.

The bribery claims against Kenyan poll officials has resulted in loss of public faith in the agency and may lead to disputed elections and violence in future.
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“The War for History” part twelve: Why did Rannenberger and Lambsdorf react so differently to the election fraud they witnessed together?

Election Observation as “Diplomacy or Assistance” in practice

We learned four years after the 2007 Kenyan election from my 2009 Freedom of Information Act requests to the State Department that U.S. Ambassador Michael Ranneberger had witnessed in person the inflation of vote tallies at the Electoral Commission of Kenya leading to the announcement of Kibaki as the winner of the election by 230,000 votes on December 30, 2007. This is described in my post Part Ten—FOIA Documents from the Kenya 2007 election–Ranneberger at ECK: “[M]uch can happen between the casting of votes and the final tabulation of ballots, and it did”.

We also learned that Ranneberger was with the head of the EU Election Observation Mission, Alexander Graf Lambsdorf, at the ECK while witnessing what happened.

Ranneberger’s cable back to Washington explaining what he saw and his version of its significance is notably backward looking, as it is dated January 2, 2008, the Wednesday after Kibaki was sworn in at twilight Sunday.  He explains that most of his contemporaneous reporting to Washington had been oral due to the exigencies of events. By the time of this cable quite a number of people were dead and injured by the police in suppressing protest and by other violence such as the infamous church burning in the Rift Valley.

On January 1, 2008, the day before the cable, the EU Election Observation Mission released its Preliminary Statement on the election, with Lambsdorf presenting and answering questions from the press and public at the Intercontinental Hotel.  The EU Observers strongly criticized the fraud.  The EU at that time was pressing for remedial action on the election fraud while the US was pushing for a “power sharing” settlement after Ranneberger initially promoted acceptance of the results speaking to the media from Nairobi.  Back in Washington the State Department’s Africa Bureau had election day media guidance stressing that the opposition might claim fraud regardless if they lost and when the results were announced the State Department spokesman issued congratulations to Kibaki that evening which were “walked back” the next day.

On December 28, the day after the election, Ranneberger sent the last of the cables I have been provided before the January 2 cable explaining the fraudulent tallying, titled “Kenya’s Elections–A Positive Process Thus Far” as discussed in “Part Six–What did the U.S. Ambassador report to Washington the day after the Kenyan election?”. In this cable he reiterated his assertion that it was in the diplomatic interest of the United States for the election to be a “positive example” and a “watershed in the consolidation of Kenyan democracy”.

“Advancing U.S. Interests”

We will keep the Department closely informed as results become clearer. At this point, there are sound reasons to believe that this election process will be a very positive example for the continent and for the developing world, that it will represent a watershed in the consolidation of Kenyan democracy, and that it will, therefore, significantly advance U.S. interests. The Kenyan people will view the U.S. as having played an important and neutral role in encouraging a positive election process” [End]

In a December 24 cable titled “Kenya on the Eve of National Elections” Ranneberger had been explicit that it was in the U.S. diplomatic interest to be able to treat the announced outcome by the ECK as credible.

Thus we have a clear example of an election observer and a diplomat witnessing election fraud together and reacting in contradictory ways, and an explanation from the diplomat from the produced cables of his a priori position as to the interests of his client in how the election would come to be seen.

We don’t know from any of this what anyone in Washington thought about the interests of the United States as opposed to Ranneberger’s assertions to them.  Nor where Kivuitu’s expression of concern to Ranneberger prior to the election (which is not reflected in these cables) fits in; nor a possible election eve meeting among the Ambassador, Kibaki advisor Stanley Murage and Connie Newman, the designated lead delegate for the International  Republican Institute election observation mission (it was agreed in advance among the IRI staff that such a meeting “must not happen” but in spite of my precautions there were a couple of logistical windows of opportunity when such a meeting may have been possible; again nothing in the cables I have received to explain the purpose of a meeting or whether or not it actually took place).

What we do know is that an independent election observation mission is in a position to be objective about the facts of the conduct of an election in way that a diplomatic mission is unlikely to be. In terms of the “war for history”–whether Kibaki’s second term was in fact the result of a stolen election–the independent observers rather than the diplomats should be the point of reference for the facts.

“The War for History” part eleven–what did I mean in Part Ten in referring to Ranneberger “trying to quash” poll results showing Odinga taking the lead in the presidential race in September 2007?

In response to a reader inquiry, I want to make a clarification of an incident in September 2007 I referred to as background in Part Ten of this War for History series and addressed in more detail in an e-mail that I quoted at length in Part Three. The issue for me was that the Ambassador was expressing an active rather than merely passive favoritism in the Kenyan presidential race for the first time and trying to get me involved in it.

Here is what The New York Times reported in their January 30, 2009 investigative report:

. . . .

Mr. Flottman said he was surprised when, before the election, Mr. Ranneberger made public comments praising Mr. Kibaki and minimizing Kenyan corruption.

Behind the scenes, Mr. Flottman recalled, the ambassador was even more direct. A few months before the election, Mr. Ranneberger proposed releasing a voter survey showing Mr. Kibaki ahead and trying to block a roughly simultaneous one favoring Mr. Odinga, according to Mr. Flottman, who said he witnessed the episode during a meeting at the ambassador’s office. The suggestion was dropped, he said, after the embassy learned that the pro-Odinga results were already out.

In a meeting in the Ambassador’s office after I was called in to discuss the International Republican Institute’s September 2007 public opinion survey results, which were not yet released, the Ambassador expressed pleasure that our question on preference in the presidential race (which we had an established procedure of not releasing) continued to show a lead for Kibaki as we had in the last survey in March, whereas results from other firms published in the Nairobi papers were showing Odinga as having taken a lead after securing the ODM party nomination. He pressed me to depart from our practice and release our presidential numbers and instructed a member of his staff in attendance to get another firm to not to release their forthcoming presidential numbers. During the meeting the staff member got a message that the other firm had already published their report showing Odinga leading.

So as far as the other polling firm (Steadman, now Synovate) it was “a dog that didn’t bark”; the Ambassador was too late to try to quash their release, no call was made, and I had no reason to think that anyone at the Steadman firm ever knew about the incident and the Ambassador’s instruction to his assistant.

Here is what I quoted in Part Three of this series from a January 2008 e-mail:

In Sept. we did our last general public opinion survey in a series dating back to 2005 (and really a continuation of polling that we had done with Strategic with AID funding since 1999 or earlier).  We had always made a limited public release of general data, privately shown the parties and candidates their own standing and released “horserace” numbers to no one.  By this time all the other polls were being published showing Railia having overtaken Kibaki and building a lead.  Our poll had basically the same results for Kibaki that our March poll had had and showed him ahead.

When the Ambassador got this from AID I was called in and he was all excited about how we had to release our figures and stop Steadman from making a contradictory release the same day.  While we were meeting, [redacted] got an e-mail that Steadman had come out.  [Redacted] agreed with me that changing our policy on this last poll before the election would be transparently and blatantly seen as political, and she told me [redacted] agreed and would work it.  I laid low and never heard back. . .

Telling thing Ambassador said was to the effect that our poll would vindicate what he had been telling Washington, and that if he had misread presidential race “we might as well not even be here”.

And my narrative from Part Ten:

Part of what has troubled me is my conversation with the USAID CTO on the phone from a polling place on the afternoon of the vote on December 27.  It had been agreed internally within IRI that we should not allow any report of our preliminary presidential numbers to leave IRI until after the polls closed at 5:00pm.  We knew that USAID wanted to get the preliminary results that afternoon, and Peter Oriare had estimated that they could be available at 3:00pm.  Within IRI we did not want to be responsible for any situation where the numbers leaked to either the Kibaki or Odinga campaigns before the poll closing, or got out in the media while people were still voting.  This was clearly “best practice”.

More specifically to our particular situation in Nairobi, we were very concerned since we had already been pressured by the Ambassador to depart from precedent to release the numbers he liked from our September poll while he sought to quash the Steadman numbers he didn’t like.  Further, when Ranneberger expressed to me in our meeting at his residence on December 15, 2007 that he wanted to take our lead delegate Connie Newman to meet privately with Kibaki aide Stanley Murage the day before the election major alarm bells had gone off in the IRI front office and it was stressed that such an improper meeting “must not happen”.  We did not know what the Ambassador was up to but knew we needed not to be involved in it.  In this context the desire not to let exit poll numbers get out while voting was still open very much included having them go to the Ambassador in particular.  We had no contractual obligation at all to get USAID an early disclosure on election day.

So observing at a polling place where we were going to close the voting day late that afternoon I got a call from the CTO looking for the preliminary numbers and I put her off.  I had numbers by text message from Peter Oriare but had not been able to study them in detail and go through them carefully with Peter and I tried to put her off.  She got frustrated and said that she would never have had us do the election observation if she thought we could not handle getting her the preliminary exit poll numbers at the same time we were observing and that “the whole reason” they did the exit poll was for “early intelligence of the Ambassador”.  I’m not against intelligence in concept, and I was working for IRI on leave from my job with a defense contractor that does intelligence work, but my purpose and job in Kenya was to support democracy and I did not appreciate being told at that late hour that there was an underlying unexpressed ulterior motive to the polling agreement all along–and such a thing was explicitly contrary to formal IRI policy as well as our USAID agreement. Why was it so important that the Ambassador have the numbers right then–“early”–instead of an hour and a half or so later when the polls closed?  No explanation of that was given.  The USAID officer ended up calling Peter Oriare, our subcontractor, and extracted the numbers directly from him.  Who did the Ambassador share them with and when?  I have no way to know.

I also want to stress that I had confidence in both Strategic Public Relations and Research which did our public opinion surveys and our exit polls for the 2002 and 2007 general elections and 2005 constitutional referendum, and in Steadman, which I hired in December 2007 to do a last minute pre-election survey of the Langata parliamentary constituency after the Ambassador had surprisingly suggested that “people were saying” that Raila Odinga might lose his parliamentary seat there to Stanley Livando and thus loses his eligibility to be elected president. The Ambassador’s expressed but unfulfilled desire to try to quash Steadman’s previous report caused me concern about the Ambassador, not about the polling firm.