Monthly Archives: February 2010

More on Ambassador Kiplagat and Kenyan TJRC

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It seems to me clear that for a Truth Justice and Reconciliation Commission to expose truth, bring justice and reconcile Kenyans, it has to inspire broad confidence and trust from the Kenyan people. In this regard, I have to say that it seems obvious to me that there are serious and legitimate concerns about whether former Ambassador and Moi foreign ministry official Bethwel Kiplagat is well suited right now to be fully objective–and that these concerns in and of themselves are sufficient to make the need for change manifest.

It is not to suggest that Kiplagat is guilty of any specific individual wrongdoing–that would be for others to decide upon serious and fair factual inquiry–nor to disparage his accomplishments in foreign diplomacy. Rather, it is that he was in fact a key insider in the system that hid the truth, brought injustice and brought about the need for reconciliation. He presents himself as one who essentially supported change from the inside–perhaps this is so, but this doesn’t make him a neutral and objective person to stand above the fray now.

Daniel Waweru of KenyaImagine has put it well:

The Chair of the TJRC isn’t a position to which Amb. Kiplagat is entitled; rather, it’s a privilege contingent on his suitability for the task. One element of that suitability is the absence of a conflict of interest. Amb. Kiplagat has multiple obvious and pertinent conflicts of interest: he was named in reports which will form part of the deliberations of the commission which he chairs. His ability to handle the commission’s affairs impartially is reasonably called into question. He’s therefore unsuitable for the job until he can show that these conflicts of interest are only apparent.

An important part of the context to always remember here is that the TJRC has been kicked off by the Grand Coalition without having passed a local tribunal bill to prosecute the immediate issues involved in the most recent post-election violence, and without having actually committed the government to making reference to the International Criminal Court in the event that the ICC should decide to authorize an investigation. Two years having passed since the deal creating the Grand Coalition, there is a very real concern that key players are seeking to use the TJRC as a way to avoid actual prosecutions for recent crimes.

This is an issue for Kenyans to decide, but I think Bishop Tutu and his group of others experienced in the TJRC role are the wisest of outside voices.

Ranneberger speaks out to defend Kiplagat–Why? (Updated)

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Civil society leaders have been truly thrilled with the news that Bishop Tutu and 9 other former Truth Justice and Reconciliation Commission leaders have called for Ambassador Bethwel Kiplagat to step aside from his recent controversial appointment to such a role in Kenya by President Kibaki.

Now US Ambassador Michael Ranneberger is quoted as having stepped in to support the Kiplagat appointment. From the story entitled “Why Tutu and team told Kiplagat to resign” :

speaking to The Standard in Nairobi yesterday, Mr Ranneberger said Kiplagat was internationally recognised and capable of steering healing and reconciliation in Kenya.

His support comes at a time TJRC is expected to appear before the Parliamentary Committee on Justice and Legal Affairs today, to discuss the calls for Kiplagat’s resignation.

Ranneberger cites Kiplagat’s role as in international negotiator. But Ranneberger instigated Kibaki’s appointment of Moi as envoy to Sudan back in mid-07. By this logic, why not appoint Moi to the TJRC?

The qualifications involved in the international diplomatic roles filled by Kiplagat in the past are simply different than what is called for in the TJRC position for a Kenyan today. The parties in foreign disputes who were dealing with Kiplagat didn’t care about his past dealings within Kenya as a member of the Moi government–Kenyans today care very much.

We have already seen the Kreigler Commission (the IREC) stop short of doing its job–if the TJRC is “the Kiplagat Commission” it will simply not be what is needed, and risks being like those other previous reports raising concerns about Kiplagat himself that did stop his appointment now. He is being reckless and irresponsible, in my estimation, by hanging on to this appointment when it is clear that he does not have the level of public confidence that is necessary.

It is very disappointing to see the Ambassador cutting at the feet of Kenyan Civil Society once again.

A good BBC World Service report explains the issues with Kiplagat and the fact that the matter may be in Kibaki’s hands.

Kenyan Parliament breaks deadlock–ODM drops Ruto from key Committee

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“Breaking News” story from the Daily Nation. In a nutshell it would seem that PM Odinga was able to assert leadership within ODM in the face of opposition from Ruto and Balala, and the Parliament overall broke a deadlock and is position now to take up substantive business, to the extent that it choses.

Going forward, it seems hard not to expect Ruto to formally break from ODM but probably not during this session of Parliament. Parliament will again be faced with a “local tribunal” bill on the post-election violence, but I would think it is unlikely to move. While the ICC awaits further submission from Ocampo early next month to explain why the Court should authorize an investigation of key suspects, visions of complete immunity must be dancing in the heads of the perpetrators.

Bishop Tutu has come out against Kiplagat on the Truth Commission, as the leader of a group of nine former heads of such groups, saying they are seriously troubled by a range of allegations against the Ambassador. Perhaps replacing him would provide “meat” to those who care about human rights, the ICC will pass, and the VP and others who have called for the Commission approach in lieu of legal action can have their day, and the suspects can focus more comfortably on the next election.

Jeffrey Gettleman on “Africa’s Forever Wars” in FP–Somalia as Paradigm

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“Why the continent’s wars never end”

Somaliland Times Carries ABC Story on civil suit in US for human rights violations against former Siad Barre Defense Minister living in Metro DC

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The link is here. This is a case where we have both alleged victims (including a former Hargeisa businessman) and alleged perpetrator having been officially welcomed into US after the events in question–and one in which the US goverment, with probably quite little awareness by the American public, would have been allied with defendant in his ministerial capacity at the time. It seems to me that there would be a number of positive individual liberty/human rights implications to allowing this case to go forward–the Supreme Court should decide in the near future.

The Education Scandal and Donor Accountability

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One crucial question to ask in light of the scandal as to the looting of funds from the Free Primary Education program is how the donors missed the issue during the course of the first Kibaki administration and well into the second?

If the British had not initiated a joint audit last year, would the US have ever been the wiser? It is especially interesting to note from this story in the Daily Nation in December that one “siphon” for theft of funds has been an initiative called Kenya Education Sector Support Programme. “Introduced in 2005, the programme gets funds pooled by donors to support Kenya Government backed education programmes. It seeks to eliminate duplication and misuse of funds.”

While I applaud the actions taken by the US government to join the British in issuing travel bans and speaking strongly on the issue now, the fact remains that the program has seen funds diverted throughout its history, while never having enough money to be implemented to a level that would really provide an adequate opportunity for students in hugely overcrowded and undersupported classrooms.

See my previous posts “Oops: What Gene Sperling Had to Say About Kenya’s Education Program Under the Coalition Government”, “Continuing Corruption Story on Primary School Funds”, “Another Shoe Dropping on Education Scandal?”, and “UK Takes Action on Kenyan Corruption–Ongoing Education Scandal”.

Also, “Another Education Scandal? No transparency in Kenya’s examination board”.

Kenyan Parliament Opens Tuesday

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The opening of Parliament promises to showcase the political wrangling toward 2012, as well as the key thing that Members seem to be fully dependable on: salary and expense increases. The most important business, consideration of a new constitution, will kick off with the delivery of the latest “harmonized draft” from the Committee of Experts to the Parliamentary Select Committee on the Constitution on Wednesday, with the Committee to then table the draft on the 25th for 30 days of debate.

The opening ceremony will feature the opportunity for President Kibaki and Prime Minister Odinga to be in the same room at the same time under strained circumstances–a bit of a reprise of the opening of the first session of this 10th Parliament back in 2008. Of course, at that time Odinga was the leader of ODM as the majority party that proceeded to elect the Speaker in during the contested post-election period, whereas he is now Kibaki’s “partner” in the Grand Coalition, and Prime Minister, at least on paper.

PNU stalwarts seek to challenge ODM by moving to change house rules to provide to the President the unilateral power to appoint the leader of government business, with the intent that Kibaki would then appoint VP Kalonzo Musoyka, the erstwhile leader of the ODM-K. See my post with the choice words Kalonzo had for the performance of Kibaki when he was running for the ODM nomination back in the summer of 2007. This will of course raise the question of whether Agriculture Minister Ruto, having been “suspended” by Prime Minister Odinga and “unsuspended” by President Kibaki remains in a meaningful sense aligned with ODM, of which he holds a deputy position, or sides with Kalonzo and Uhuru Kenyatta and others on the PNU side of the “Grand Coaliton”. A move to add to the unilateral powers of the Presidency, in regard to the Parliament, is also an interesting element in terms of what Kenyans might expect in regard to a new constitution.

Parliament is also to take up the matter of finally appointing a new head of the Kenya Anti-Corruption Commission in the face of renewed public and diplomatic pressure on corruption.

Here are the stories from the government’s KBC, the Daily Nation, and the Standard.

“No News” (Updated Feb. 26)

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Superficially, the steam of daily Kenyan political drama has been escalated during these recent days when I have not been posting with the usual frequency, but on the other hand, nothing much new has actually happened. I certainly do not want to contribute to anyone’s complacency about the situation. What we have in Kenya now is simply wafts of the odor naturally emanating from the overripe nature of the “coalition” government.

The second Kibaki administration continues on its somnambulent pacing, while all the others jockey as part of “government” with no one formally in opposition. The Prime Minister has returned from a week in Japan with a pledge for a soft loan of more than $300M for geothermal power and a grant of $55M for environmental restoration but has to cool his heels to get a meeting with his “partner” the President.

Driving home from the airport in New Orleans yesterday I listened to a BBC Newshour report from Nairobi about the “crisis”, the potential undoing of the “coalition”, corruption, and the threat of a return to the violence that saw the country “on the brink of civil war”. Of course, it was really pretty much the same report that could have been given the weekend before, or anytime in between (unless distracted by the various meaningless announcements of the day in the meantime). Bwana Ranneberger, the American Ambassador, has had a Casablanca-like shocking discovery that there is corruption going on right here in Nairobi. In fact, as a student and would-be teacher of history he explained to the Newshour audience that corruption had been “endemic in Kenya since independence”. Things are so bad that even the natives have noticed all on their own, as evidenced by his experience on safari outside Muthaiga where even a Nairobi woman selling potatoes on the ground was aware that she was being ripped off on her market fees and felt that all of the politicians should be arrested.

The BBC also talked to John Githongo about corruption and the possibility of a return to violence.

Of course, they didn’t ask the Ambassador why in the run-up to the election, the corruption of which triggered the violence, he had used his “bully pulpit” to speak up in praise of the Kibaki administration’s supposed strong record of progress in fighting corruption, as evidenced by an award from the World Bank even. Just as the same John Githongo was taking the risk of speaking out with more revelations about corruption in that same Kibaki administration.

My thought is that the BBC could be a bit less breathless. Yes, the notion of a functional coalition is proving illusory, but this is just the latest instance that status quo has been maintained rather than changed in the face of an opportunity to take action. Yes, there is a possibility of violence, but as I have written previously violence has been the norm in competitive elections in Kenya in general, just as ordinary Kenyans suffer from a baseline level of violence that politicians, diplomats and paid publicists in Washington don’t like to acknowledge. Certainly even Ranneberger now seems to agree that corruption has been the norm.

Yes, Kenyans face a crisis. But to paraphrase “The Who” playing at the American Super Bowl halftime, “Meet the New Crisis, Same as the Old Crisis”.

UPDATE: The BBC story is MUCH better in the on-line “print” version. It includes a very good quote from Ranneberger about politicians stealing from children, but leaves out the patronizing stuff, and generally reads much more measured.

A Good Rundown of the Current Kenyan Stalemate

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From Daniel Howden of The Independent:  “The Big Question: What’s gone wrong in Kenya, and is the peace deal unravelling?”

From the Daily Nation: “How Kibaki, Raila row started”; and “What if Raila walks out of alliance?”

“Where Are the Global Anti-Corruption Leaders?” asks former GE General Counsel

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In The Atlantic, Ben W. Heineman, Jr., the illustrious former general counsel of General Electric, pens a strongly worded criticism of the state of corruption in global business and the state of developed world commitment to combating it.

Of the recent BAE settlement, Heineman notes the years of stonewalling and denials, and the decision by the British government not to pursue the massive bribery case involving BAE sales to Saudi Arabia after key Saudi officials threatened to diminish terrorism cooperation–but also motivated Heineman says by an underlying reason: to protect British jobs and trade. He notes that only after the US initiated its own prosecution did the British act, and says that in spite of the “technical” nature of the charges to which BAE pled, “BAE would not pay $450 million for technical offenses”.

The BAE and Siemens cases are symbols of pervasive corruption across the globe and lack of senior leadership making anti-corruption an international imperative. Bribery and extortion in public sector activities–especially in the developing world–distorts competition, erodes legitimacy and rule of law, impedes economic growth, thwarts building of institutional infrastructure, injures the poor and supports criminals and terrorists who pose a threat to world order. Corruption thus directly and seriously implicates foreign policy, national security, economic, developmental and humanitarian concerns.

. . . .

The BAE and Siemens settlements are cases in point. If these iconic developed world companies had such widespread issues, it is reasonable to think that they are hardly alone. Although both Germany and the U.K. have had laws prohibiting foreign bribery by their multinational corporations since at least 1999, there had been little national enforcement prior to these cases. In both BAE and Siemens, the U.S. (which has a history of strong enforcing laws against foreign bribery) was deeply involved and helped push the companies to a major resolution because of their dependence on the U.S. market. . . .

. . . .

More importantly, a 2009 report by Transparency International, evaluated the enforcement activities of 36 nations which had signed the 1997 OECD Convention on Combating Bribery of Foreign Public Officials and enacted national laws giving it effect. (Disclosure: I am on the board of Transparency International-USA.) That report concluded that only 4 out of 36 countries evaluated are actively enforcing the OECD Anti-Bribery Convention, with moderate enforcement in 11 other countries and little to no enforcement in 21 or more than half. Among the obstacles noted by the report were: antiquated bribery laws, outright political obstruction of investigations, lack of adequate funding for prosecutors or curtailing the powers of investigative magistrates.

This problem is in the developed world (!!), not in the developing world ,where anti-corruption efforts are infinitely more complex given the varying histories and cultures of individual nations. . . .

Heineman identifies committed global leadership, by someone such as the US Secretary of State or the President of the World Bank, as the necessary step to move the developed world to act.