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

Here is the requirement for the Final Report from the Cooperative Agreement for the USAID/IRI polling program starting with the 2005 Referendum Exit Poll and culminating with the 2007 General Election Exit Poll. The final report that I finally learned last month from my Freedom of Information Act request to USAID was never filed, in spite of a significant amount of “beating around the bush” and a previous 2009 FOIA request from the University of California, San Diego that should have disclosed all of the reporting but returned only the Agreement itself.

FinalReportSo ultimately there is no explanation in the reporting as to how the 2007 exit poll went from successful in a January 14, 2008 quarterly report, to unsuccessful, and then back to successful months later or the impact of this discrepancy on the overall effectiveness of this 2+ year $570,000 democracy assistance polling program or the overall multimillion dollar U.S. election support.

Lessons from an accurate accounting of what really happened with U.S. assistance for the disastrously failed 2007 election should have been reckoned with in preparing for 2012-13. Unfortunately, in 2013 we had initial reporting of the USAID funded parallel vote tabulation with very limited transparency and seemingly ad hoc communications, and an initial USAID funded Election Observation report offering positive assurance for the reliability of the IEBC’s announced result, only to be quietly contradicted months later by the final Carter Center report.

The biggest problem in 2013 was the catastrophic failure of the Electronic Results Transmission system–the system that was established in Kenya’s election law to provide for the conveyance of the results from the polling station–the only place where the paper ballots are actually counted–to the IEBC.  Sadly, this was directly prefigured by what happened with the similar, if less ambitious, Electronic Results Transmission system–also funded by USAID through IFES and the UNDP–in 2007.  In 2007 the Electoral Commission of Kenya simply voted in December to shelve the computers and not use them, thus creating the opportunity for the Returning Officers to turn off their phones and drop out of the way.  In 2013, we had the spectacle of highly dubious procurement practices by the IEBC with a last minute attempt–or so it was presented–to roll out the technology, even though implementation was clearly not ready.  The system was then shut down by the IEBC, except for the visual graphic steadily broadcast for days showing one candidate with an early lead and hundred of thousands of spoiled ballots that weren’t.  A source confirmed for me what we all saw–that the IEBC did not have a meaningful backup plan to handle custody and conveyance of the paper forms for the polling stations when the transmission system was shut down.

Prior to the election in 2007, the U.S. Ambassador was reporting the electronic transmission system under IFES along with the IRI exit poll as American assistance efforts to support a fair election.  Although my FOIA requests have not been directed at that issue specifically, the results transmission system appears to have dropped off the Ambassador’s list without explanation around the time it was shelved and so far as I remember this issue did not get scrutiny in the media at the time.

The Kreigler Commission report stressed the crucial nature of results transmission and much was made of this in drafting of the new election laws and the talk of preparations and assistance for 2013, but the ECK refused to produce the minutes of its action shelving the 2007 system (or any of its other minutes) and the Commission reported on to President Kibaki and then the public without actual answers about what happened in 2007.

See “Didn’t we learn from the disaster in 2007? Kenya does not need to be anyone’s model anything; it needs truth in its election”

Why “the war for history” matters now

Efforts to retroactively legitimize the 2007 Kenyan election and turn away from the questions of why election fraud was allowed to stand also help divert attention from the current questions of what the United States and Kenya’s other diplomatic “partners” will do or not do now in the face of the current retrenchment of hard won freedoms and democratic openness. Kenya is less free and less secure now than it was in 2007. When a few more years have gone by will 2002 still be a remembered as a turning point for democracy in Kenya or just a false “spring” producing only a temporary thaw in authoritarian governance?

Here is some good context from Freedom House from April of this year.

“Authoritarian Contagion in Africa” by Robert Herman, Vice President for Regional Programs, on the Freedon at Issue blog:

The broader phenomenon illustrated by Kenyatta’s actions [seeking restrictions on civil society and the press] is not just a matter of coincidence or independent imitation. Whether they are selling sophisticated technology to track down dissidents online or sharing legislative approaches that provide a patina of legitimacy for their crackdowns on political opponents, repressive governments are actively working together to push back against nonviolent movements for democratic change. Indeed, such authoritarian solidarity has arguably outpaced collaboration among the world’s democratic states, which are often feckless in mobilizing to defend their own values and assist likeminded activists under duress.

In East Africa, evidence of authoritarian contagion is growing. The governments of Uganda, once seen as a great hope for democracy, and South Sudan, the world’s youngest country and a recipient of hundreds of millions of dollars in foreign assistance, are contemplating restrictive legislation targeting NGOs.

However, the true regional pioneer of this approach has been Ethiopia. Under longtime prime minister Meles Zenawi, who died in 2012, the Ethiopian government issued laws on NGOs, the media, and terrorism that have collectively devastated the country’s political opposition and civil society. The most prominent democracy and human rights groups have been forced to abandon or radically scale back their work, and many of the leading activists have fled into exile.

Other leaders in East Africa and beyond no doubt observed with interest as the international community failed to mount any serious challenge to the Ethiopian government’s repressive actions. Donor countries declined to use their extensive development aid as leverage. Instead they meekly promised to monitor how the new laws were implemented. Whether out of consideration for Ethiopia’s role in combating terrorism in Somalia or fear that the country would turn to China as an alternative patron, the world’s wealthy democracies declined to challenge the Meles regime even after its legislation’s ruinous effects became apparent.

The citizens of Kenya, particularly those who opposed Kenyatta’s presidential candidacy or documented his role in fueling past ethnic violence, may now be paying the price for the international community’s hesitation to act on Ethiopia. It is certainly possible that Kenyatta—facing an international indictment—would have taken the same steps in the absence of a successful model for repression in the region. But his political allies might well have deserted him if they had reason to believe that Kenya would pay some meaningful price for antidemocratic initiatives.

One hopes that the United States and other democratic donor governments will draw their own lessons from these experiences, finally recognizing that the prioritization of security and macroeconomic concerns over democratic performance is a self-defeating strategy. In the long run, repressive states are less stable, less prosperous, and less friendly to democratic partners than open societies, and the spread of authoritarian practices can only damage the interests of Washington and its allies.

Last month Freedom House awarded it annual Freedom Award to Maina Kiai “in recognition of his fearless leadership in advocating for constitutional reform, fighting political corruption, and educating Kenyans of their basic civil and human rights.” The same Maina Kiai who pushed for release of the 2007 exit poll and challenged the U.S. to live up to its principles.

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

I am only aware of one specifically articulated explanation of the “much [that] can happen between the casting of votes and the final tabulation of ballots” as Ambassador Ranneberger described it to Washington on January 2, 2008. Here it is, from my March 2009 submission to the Inspectors General of the State Department and USAID:

Subsequent to the election, I met privately with a highly placed diplomatic official who told me that the theft of the election by the incumbent administration had been carried out through bribery of Kenyan election officials in the field, in particular the Returning Officers at the constituency level. The source said that these officials received large payments which left them financially secure in return for turning off their cell phones and otherwise making themselves unavailable to allow the vote numbers in the presidential race to be inflated. The source stated that the government he worked for was unable to identify this method of rigging in time to do anything about it because it was carried out “at the last minute”, very shortly before the voting. [Months later a story was published in the Standard regarding the vote fraud which stated that the original plan had been for Kibaki’s re-election to be assured by declaring Langata Constituency for Livondo over Odinga, but that as it became clear that the ODM ticket was carrying large margins from Western and Rift Valley Provinces it was decided that this was not tenable and the approach was switched to inflating the votes from elsewhere.]

This discussion took place in January 2008, during the post election violence, with the exit poll issue “pending”. I found it credible and believed it then, as I do now. Nothing in any of the less fact specific analysis produced by diplomatic or social science sources that I have seen over the years is inconsistent or suggests a contradiction with this information. The Kriegler Commission elected explicitly to stay well away from the type of investigation that would have confronted the Commission with the existence of such facts. I promptly reported the conversation to IRI Washington as I consistently reported such conversations during the election campaign and immediate crisis.

FOIA Update: I timed this series based on information from the USAID FOIA office that I would be getting the complete response to my April 2013 request to them for the documents relating to the exit poll by October 17. They were kind enough to call and let me know that it would be delayed to last week and after checking back they sent me a lengthy heavily lawyered letter and some documents. We have broad areas of disagreement at this point and I have asked them to reconsider their approach in some respects. Pending that, I did finally establish by virtue of the letter from USAID that IRI never filed the final report on the 2005-2007 USAID Kenya polling program, covering the 2005 and 2007 exit polls. Likewise, I have an officially public copy of the IRI January 14, 2008 quarterly report where IRI reported to USAID that the poll had been successfully conducted in spite of the challenges presented.

See Why is IRI’s report on the Kenya 2007 exit poll missing from USAID’s Development Experience Clearinghouse? (FOIA Series Part 13).

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“The War for History” part six: USAID ended up saying exit poll “disclosed that the wrong candidate was declared the winner” in 2007 Kenya election

From USAID’s Frontlines magazine for August 2008:

Kenya’s President Lost Disputed Election, Poll Shows
NAIROBI, Kenya—An exit poll carried out with a grant from USAID in Kenya after elections six months ago that unleashed a wave of political and ethic killings, disclosed that the wrong candidate was declared the winner.

President Mwai Kibaki, whom official results credited with a two-point margin of victory in the December vote, finished nearly 6 points behind in the exit poll, which was released in July by researchers from the University of
California, San Diego.

Opposition leader Raila Odinga scored “a clear win outside the margin of error” according to surveys of voters as they left polling places on Election Day, the poll’s author said.

The exit poll was first reported on by the McClatchy news agency. It was financed by the International Republican Institute, a nonpartisan democracy-building organization, with a grant from USAID.

Amid post-election violence, IRI decided not to release the poll. But the poll’s authors and the former head of the institute’s program in Kenya stand by the research, which the authors presented July 8 in Washington at the Center for Strategic and International Studies. In the exit poll, Odinga had 46.07 percent of the vote and Kibaki had 40.17
percent.

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

In Nairobi I had remained optimistic through the end of January 2008 that IRI would ultimately decide to release the results of the exit poll.  I had been told by my immediate superior in Washington repeatedly that the then-president of IRI would be the final decision maker and “wanted” to release the results.  I told people in Nairobi, including senior politicians, when it came up that the issue remained under consideration.

After I was told there was to be a final meeting in Washington to make the decision on Friday, February 1, I scheduled lunch for the next Tuesday with Shashank Bengali, East Africa correspondent for the McClatchy papers (now with the Los Angeles Times) who had broken a story on the results previously, with the expectation that I would then finally be able to disclose them. I prepared a memo at the request of my boss explaining details of the poll results and their quality, concluding with my recommendation that they should be made public.  I was told to remove the recommendation from the end of the final document. Then I was told following that February 1 meeting that the decision had gone the other way and we would not be releasing, so I had to report that to Bengali at our lunch instead.  I obtained an agreement from my boss that I would be given the opportunity to “fact check” whatever statement would be released from Washington and advance notice to prepare the local IRI staff for the consequences in Nairobi.

In my “fact checking” role I objected vigorously to the draft statement prepared by IRI’s PR shop asserting that the results had been found to be “invalid”.  Recognizing that the IRI Washington hierarchy had the right to decide whether IRI would release the numbers, I was offended by characterizing the poll in a factually unjustified way and misleading the public to make an excuse. This seemed on par with the decision to tell Ambassador Mark Bellamy that he was dropped from the election observation because we could not buy his plane ticket when in fact it was because Ambassador Ranneberger created a showdown over the assertion that Bellamy was perceived to be unfavorable to the incumbent government–except that being less than truthful about the exit poll was a much more consequential matter.

In discussing the matter with my boss and batting away other notions to justify not releasing the results I was told that the bottom line was they were not being released because to do so was “not in the best interests of IRI”.  Those interests were not explained. Likewise it was said that the decision had been “going that way” since mid-January. On the morning of February 8 Nairobi time I got a call from a staff member in Washington who told me that the offending draft had gone up on the IRI web site overnight, in violation of my agreement, following the events in Washington that day, February 7 (the Senate hearings, which IRI had not attended, where Assistant Secretary of State Frazer and the Assistant USAID Administrator were grilled on why the exit poll had not been released, and a visit to IRI headquarters from ODM representatives to press for release of the poll.  Also that day ODM met with Deputy Secretary of State Negroponte to press unsuccessfully for release of the poll.)

Our longtime pollster, the late Dr. Peter Oriare, who was predictably devastated by the statement from Washington, defended the poll in a story in The Star which quoted both my boss in Washington and me, and was published in print (no website yet) the morning of Friday, February 15.  I had declined to tell The Starthat the Washington statement “reflected my personal opinion”.  I left later that day for my scheduled and overdue trip to Somaliland and the Washington office dispatched Nairobi staff from our Sudan and Somaliland programs to personally deliver copies of the February 7 “invalid” statement to key political negotiators on both sides, including Raila Odinga, Musalia Mudavadi and Martha Karua–to which I objected from afar. 

These IRI employees had not been involved in the exit poll and would have had no way to know the statement from Washington was inaccurate. It was particularly noteworthy that the delegation, as I learned later, had missed the new Justice Minister Martha Karua in her office and chased her down at the Serena hotel where the Kofi Annan-led mediation was taking place.

Hon. Karua was leading the PNU mediation team and was identified at the time as one of those key Kibaki hardliners who opposed compromise.  She had her own stake as newly elevated to a key cabinet post by Kibaki on January 8 and as the leader of the NARC-Kenya party.  She has said subsequently that she in fact believed at the time that Kibaki had legitimately won the election–I cannot evaluate retroactively her subjective beliefs, but I was and remain troubled by the fact that she was told in person on February 15 that the exit poll, to be released in July and August showing a large Odinga win, was “invalid” and would not be released because of that lack of validity.  The mediation quickly broke down, although Kibaki and Odinga later reached their deal of February 28.

Whatever the machinations of the Ambassador and/or anyone else in the State Department, IRI’s Washington office at that time managed to make the situation more embarrassing and more difficult for the Kenya program aside from failing to have to courage to meaningfully stand against election fraud until too late to really matter.

Part Three of “The War for History”: Continuing my email reports to Joel Barkan

Continuing with my Jan. 2-3, 2008 e-mails reporting back to Joel Barkan in Washington from Nairobi:

When I reported the call to Washington, Lorne eventually and reluctantly made the decision to scratch Bellamy (he was not told the truth to my chagrin).  Lorne then called Asst. Sec. Frazier on his way to the airport to tell her to get her Ambassador in line, then when he landed in Thailand he called the Ambassador to tell him to stop interfering in our EO.

After the Ambassador first raised his objection to Bellamy a few days earlier we had research Bellamy’s record and found no problems and checked out the political perception in Kenya and also found no problems.  Likewise, we had confirmed with the State Dept in Washington and confirmed that they had no issues with Bellamy being a delegate.  Likewise, we had confirmed that USAID was not objecting (and that they acknowledged they had no right to).

In the meantime, I had gotten a call from the Embassy that next Friday afternoon to come to Ambassador’s residence to see him on Saturday afternoon.  When I visit him, he in a fashion apologized for getting spun up with me, but reiterated that it was vital to the credibility of our whole delegation that Bellamy be struck because he was absolutely “perceived as anti-govenment”.  Whether he intended to or not, he left me with the distinct impression that the “perception” had been conveyed straight from the horse’s mouth, so to speak (one of the provisions in our international agreement covering EOM standards prohibits allowing a government or other party any ability to veto members of our delegations).

Further, the Ambassador told me that “people” were saying that Raila might lose Langata.  He said that he would be personally observing the voting in Langata and wanted to take Connie with him for part of the day.  He also said that he wanted to take Connie privately to meet with Stanley Murage before the election.

When I reported this to DC, needless to say alarm bells went off.  We nixed letting Connie go off observing separately with the Ambassador and insisted that Connie would not be available for any off-schedule private meetings.  Serious consideration was given to cancelling the EO and I think it would have been cancelled if I didn’t say that I thought that I could manage the situation here.

When I told Sheryl about the Murage gambit she audibly gasped on the other end of the phone but didn’t comment.  She

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Part Two of “The War for History”: My emails to Joel Barkan on January 2, 2008

In the immediate aftermath of the 2007 Kenya election I exchanged emails with Joel Barkan who had just returned to Washington from the IRI/USAID Election Observation Mission. On January 2, 2008 Joel was trying to understand why the exit poll had not been released “to calm Raila’s people and perhaps prevent tomorrow’s march.” He wrote:You know, if this is not released before six months out, both IRI and probably the embassy will be accused of a cover up.  I would reflect again on how this should be played . . .“.  This is my response:

Joel,

My e-mail shows that I responded to this message, but the “sent” box does not reflect this.  There was a connection problem and my copy of the text will not come up.  What I drafted was long and I will attempt to reconstruct in some fashion:

I completely agree with your thoughts.  At the urging of our polling firm and UCSD I argued this as vigorously as I knew how within IRI to no avail.  I see a major embarrassment in the works as time passes.

This was a much better poll than our previous exit polls in 2002 and 2005 in which we had expressed pride thanks to the tireless work of James Long/UCSD.  The previous sampling was 3,000 in 55 constituencies. {Ed. note: 2007 sample size was 5500 in 179 constituencies in 71 districts out of a total of 212 constituencies in 72 districts}

My original agreement with IRI DC was that we should not release data to anyone while the polls were still open even though USAID had said that they would like preliminary data that Strategic said would be available around 3pm.  This was consistent with agreed US practice to avoid influence on voting.  In spite of this, Sheryl pressed me while I was still at polling place on the afternoon/evening of the election saying that the primary reason for funding the poll was for “early intelligence”.  She got the data by calling Strategic directly.

I sent Sheryl an e-mail confirming that she had gotten the data from Strategic and that I understood that the data was for “internal use of USAID only” and not to go to anyone else.

Frankly, I was concerned that the data would get to the Kibaki camp and that they would make tactical use of it.

Background:  On Thursday, two week before the election, I got a message from Sheryl that the Ambassador needed a copy of our last delegate list asap and she sent me a fax for him.  I sent the list, noting that it was to be released to media the next day.  On my way to lunch I got a call on my cell from the Ambassador raising hell about Mark Bellamy being on the list, saying that he was “laying down a marker” and that he would hold me “personally responsible” as IRI’s “person on the ground” even though I had in previous conversations explained that I had little or no influence over the delegate selection in DC.

More to follow:  Just got an e-mail from our press office with a mention of our failure to release the poll in Slate.

Ken

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

As the ICC proceedings play out, understanding the 2008 post election violence and evaluating the role of the parties, including the international actors, requires addressing the conduct of the incumbent Kenyan administration in the election itself.

In my estimation, those of us who observed the election in Nairobi watched as the vote tally was hijacked in a shockingly blunt manner. If this election could not be labelled as stolen, the question has to arise as to whether any election in Africa, as opposed to in Europe, Asia or the Americas, could ever be so labelled, in a context in which diplomatic actors valued “stability” as a key interest. Nonetheless, some who came to Kenya after the election, both from Washington and South Africa, have continued to suggest that the theft of the election may have been only a “perception” from ambiguity, or even asserting that the election was not “rigged” at all.

Because the truth matters in understanding the violence, and in preparing for the future in response to the Chairman of the current IEBC who has labelled the 2007 opposition as mere “sore losers”, I am going to devote much of my attention in the blog this year to articulating “the rest of the story” as I know it, as I continue to wait for release of additional public records under the Freedom of Information Act. I will dedicate these posts to my late friends Dr. Joel Barkan and Dr. Peter Oriare, who worked for a better process.

To begin, let me post here an August 4, 2008 e-mail I sent to Mike McIntire, the investigative reporter for the New York Times who contacted me on July 31, 2008 for an interview about the International Republican Institute exit poll which remained, as of that date, unreleased as allegedly “invalid”:

Mike,

After having some time to reflect on our conversation, I thought it might be useful to emphasize a few points in reference to what we talked about and the documents I have provided:

1. Prof. Joel Barkan at CSIS was our primary (indeed only) Kenya expert on our Election Observation Mission. Professor Barkan was independently identified by IRI to be invited based on his stature as an expert and was also one of those specifically recommended/requested by the Ambassador. Prof. Barkan had headed the Democracy and Governance program for USAID in Kenya during the 1992 elections when IRI conducted a very large USAID-funded observation mission and knew Sheryl Stumbras at USAID and the Ambassador well from his work in Kenya .

2. I got acquainted with Prof. Barkan in the lead up to the observation by e-mail as he offered suggestions, and my discussions with him during and immediately following the election were very influential in forming my own opinions about the nature of the evolving situation with the ECK and the electoral tally and the appropriate handling of the exit poll.

3. Prof. Barkan and I were in agreement that IRI was causing a situation in which it was generating unnecessary controversy and likely embarrassment by refusing to release the poll results on the presidential vote on an ongoing basis.

4. Prof. Barkan was impressed with the methodology of the poll and vouched for the work of Prof. Gibson/UCSD.

5. Again, the decision to involve UCSD pre-dated my arrival to manage the Kenya programs. To my understanding, there was never any question that the point of UCSD’s work was to create data that would be relied on and published–no later than the expiration of IRI’s exclusive right to publicity for the first 180 days. It was also my understanding that IRI was pleased to have Prof. Gibson and UCSD involved because of their strong reputation.

6. With the blessing of IRI Washington, including the press office, I had provided data from the IRI September 2007 public opinion survey to Tom Maliti of the AP in Nairobi for work he was doing on tribal issues as a voting factor. My discussions with Tom and the data were inputs for a story he wrote for the AP that fall linked on the media section on IRI’s website. Tom later asked if IRI would be doing an exit poll as we had done in 2002 and 2005 and I confirmed that we were. It was my understanding that we would have to decide WHEN and in what forum, not IF, the results would be released. [If anyone had asked, I would have been of the opinion that given the way things work in Kenya , we would have to expect the poll results to leak regardless.]

7. The Daily Nation ran a story, I believe the day before the election, in which our pollster, Peter Oriare of Strategic, discussed the fact that Strategic would be conducting an exit poll for IRI. While this was not something that I had authorized or been involved in, I did not consider it to be any type of violation of our relationship or against any wishes that I had conveyed to Strategic.

8. I think it is important to look at the exit poll situation in the context of IRI’s Election Observation Mission Final Report which has now been published as a printed booklet (they FedEx’d me a copy with a cover letter from Lorne in mid-July). The report, which I had the opportunity to provide input on, working with my staff in Nairobi on early drafting and through later editorial input on into April when I was doing follow-up work such as the internal exit poll memo of 4-20 that I sent you, is very explicit that IRI found that “after the polls closed and individual polling stations turned over their results to constituency-level returning centers, the electoral process ceased to be credible”. Likewise, the report states that “To date, there has been no explanation from the ECK as to exactly how or when it determined the final election totals, or how and when that determination was conveyed to President Kibaki to prepare for the inauguration.” The report also notes “. . . the obvious fraud that took place during the tallying of the presidential race . . . ” The Executive Summary states: ” . . . IRI has reason to believe that electoral fraud took place and condemns that fraud. The rigging and falsifying of official documentation constitutes a betrayal of the majority of the Kenyan people who peacefully and patiently waited in long lines to vote on December 27.”

9. It should be recognized that between the time that Kibaki was quickly sworn in and the announcement of the initial agreement at the end of February in the Kofi Annan talks that led to the formation of the GNU in April, there were clear indications that Kibaki and his supporters were using the time to attempt to consolidate power. Initial efforts toward mediation from other African leaders, including Bishop Tutu were dismissed, key cabinet posts were filled unilaterally, etc. Even with Annan talks, the Kibaki position on behalf of the “Government of Kenya” was that it was something less than actual mediation.

10. To this day, there has been nothing done to reform the ECK and there has been no accountability for the misconduct discussed in the IRI EOM report. As best I can tell from what I have read about the hearings conducted around the country by the Kreigler commission, the situation remains one in which partisans of the PNU side argue that there was rigging and misconduct on both sides, that it was as bad in Nyanza by ODM as by PNU in Central and that the ECK decision was appropriate, while partisans of ODM argue that the election was stolen. Because “the ECK is not an independent institution and is subordinate to the executive branch of the Kenyan government” [Finding 1 from the IRI EOM report] the IRI exit poll is the best source of actual disinterested data available under the circumstances.

11. To my understanding, I was charged with managing a foreign assistance program that was intended to be for the benefit of the Kenyan people, funded by USAID, but managed by IRI as an independent NGO. To me, this is something entirely different than something the State Department would do on its own for its own internal purposes–although in that case they would still need to be accountable to the American public and Congress.

12. I think we did a pretty good job with limited resources on the actual election observation. I think we did a pretty good job with the exit poll, too. On balance, my experience as Resident Director of the East Africa office was good, with the exception of the specific situation that arose about the exit poll–just as I had had a positive experience as a volunteer with IRI in Central Asia that led me to be interested in making a bigger commitment to go manage IRI programs in Kenya on leave from my primary career. IRI is a fairly small organization in some ways, but they work all over the world, with programs large and small–ours in Kenya was a small one. As best I know, the program in Kenya had a good reputation and had done good, albeit limited, work in Kenya , over a period of years, due in greatest part to the Kenyans on the local staff. This is not anything like what may have happened in Haiti where the program itself may have gotten out of bounds (and in fact I was told that my successor could not be a member of my local staff because of policy in place as a result of that kind of past experience requiring expatriate leadership in the Country Director position). Whatever happened in Washington regarding the exit poll was a departure from my expectations and experience with IRI otherwise.

13. I am told that things have been “different” in IRI recently by people who have been around the organization for awhile, and it is frequently attributed to a hypersensitivity to the situation where John McCain as the long-time Chairman of the Board has been a leading presidential candidate and then the presumptive Republican nominee. This was something that I did not think about in the context of deciding to take the Kenya position at this particular time (and in the spring of 2007 McCain didn’t look very likely to be the nominee anyway). Another twist in regard to Kenya is Obama’s background there and most recently, the things that are circulating against Obama within the “religious right” regarding some notion that Obama was somehow involved in conspiring in Kenya with Odinga on behalf of Muslims against Christians in the context of the Kenyan election and in the context of the post-election violence–laid against a backdrop in which the policy justification for the State Dept. to support Kibaki would presumably tie into the “extrodinary rendition” controversy and more generally the notion that Kibaki has been an ally of the US in sealing the border with Somalia after the engagement of the Ethipian troops to attempt to restore the TFG and otherwise in anti-terrorism efforts, as well as in regard to other regional issues.

14. Ironically, IRI’s mission in Kenya has to a significant degree focused on working to bring minorities, in particular Muslims [the program is primarily funded through NED as opposed to the specific agreements with USAID for the EOM and the polling], into the mainstream of democratic governance. The most striking difference between the voting reported in the IRI exit poll, and what was reported by the ECK is the opposite outcome in North Eastern Province –by the ECK’s reckoning, Kibaki won in a landslide–in the exit poll, Odinga did. I am no expert on that part of the country, but we did do training for candidates in the province in Garissa, the largest town, and in Mombasa for others in the region, and my expectations would have been much more consistent with the exit poll results than with the ECK tally. Given the requirement that a presidential candidate has to get more than 25% in five of the eight provinces, the NEP vote looms larger than it would based on its limited population in a strict nationwide popular vote.

Ken

Choices and Consequences: Next for Kenyatta’s ICC Defense, October 8 Status Conference [updated]

The International Criminal Court has ruled that Kenya’s President Kenyatta must appear in the Hague for the status conference in his case on the confirmed charges relating to the Mungiki revenge attacks in the eastern Rift Valley during the post-election violence in early 2008. At the time in question he was KANU leader and Kibaki’s new Minster of Local Government following the January 8 appointment of the “upper half” of a new cabinet prior to the African Union sponsored mediation led by Kofi Annan.

The AU process as structured between ODM and PNU negotiating teams stalemated, with the active resistance of key Kibaki “hardliners” and parts of the PNU coalition, including KANU, but Annan was able to get a last minute deal signed off on by Kibaki and Odinga that ended the immediate crisis on February 28.  The settlement led to a Government of National Unity, with the addition of more cabinet ministers and a new, and ultimately temporary position of Prime Minister for Odinga, along with the agreement to appoint commissions to investigate the election itself and the post election violence.

The “Waki Commission” investigating the violence, in an unprecedented display of independence, provided a sealed envelope of key suspects to Annan for potential referral to the International Criminal Court in the event local prosecutions were not forthcoming, along with its extensive public report and redacted annex of persons credibly identified as having a possible individual responsibility for investigation.  (The “Kreigler Commission” followed the ordinary practice of presidential commissions from the Moi era and reported privately to the President, and then released a public report disclosing broad flaws in the overall administration of the election but ducking investigation of the central tally at the ECK headquarters in Nairobi as discussed in Ambassador Ranneberger’s cable here.)

Eventually, Annan turned the envelope over to the ICC, which authorized investigation. Charges were initiated by the Prosecutor against six and confirmed by the Court against four in January 2012, of which one was dismissed by the new Prosecutor.  So how has the defense of the cases been conducted since, or perhaps more descriptively, the counterattack?

Solo 7--Kibera

Solo 7–Kibera

Susanne Mueller’s article from the Journal of East African Studies earlier this year, “Kenya and the International Criminal Court (ICC): politics, the election and the law”, perhaps gives the clearest account of how the game has been played so far:

. . . The ICC began to examine the Kenya situation in 2008-09, well before the 2013 election.  This constituted a potential risk that continued to increase once the ICC received permission to start a formal investigation and the cases progressed.

The election came into play when two of the ICC indictees — Uhuru Kenyatta, a Kikuyu, and William Ruto, a Kalenjin — decided to run for president and deputy president… It was an opportunistic alliance of convenience as the ICC had accused both individuals of masterminding the 2007-08 ethnically targeted violence against each other’s communities. Ironically, this union, the negative ethnicity that accompanied it, and the ICC’s involvement also may have partly deterred violence in the 2013 election.

Winning the election was part of a key defense strategy to undercut the ICC by seizing political power, flexing it to deflect the ICC, and opening up the possibility of not showing up for trial if all else failed. The strategy entailed using a series of delaying tactics to ensure that the ICC trials would not start until after the defendants had won the election and gained power at the highest level. The tactics ranged from mobilizing international organizations against the ICC, making numerous legal challenges designed to delay the court, and the intimidation of potential witnesses, allegedly by defense sympathizers and go betweens, to keep them from assisting the ICC.

The tactics were part of a larger design to undercut the ICC. Demonizing opponents, politicizing ethnicity, and attacking the ICC as a tool of the West both before and during the presidential campaign served this end and victory in the election. Once they won the 2013 election, Kenyatta and Ruto came up with another tactic: asking for concessions based on their political power, including pleas to drop their cases or not be physically present at trials.

Mueller suggests that understanding the interplay between law and politics in this situation, while very much business as usual in Kenya where “the rule of law is still weak, politicized and hard to enforce [and] individuals are often sanctioned for trying” raises serious questions of much broader international application as the Kenyatta, Ruto and Sang cases play out on a global stage in the arena of treaties, international organizations and international human rights norms.

Within Kenya there have been two momentous court decisions since the 2007-08 election and ensuing violence.  Both were decided at the High Court (the Kenyan trial court, not the Court of Appeal or Supreme Court).  The first was the ruling that President Kibaki was not entitled to unilaterally nominate the new Attorney General and Chief Justice.  This led to the compromise whereby President Kibaki agreed to obtain the consent of the Prime Minister for a new selection for the Chief Justice, paving the way for the litigation of the CORD petition over the IEBC’s administration of the election process and the 2013 version of the central presidential vote tally (with the new Attorney General as amicus on the other side of the case).  The second was the lower court ruling that declined, eventually, shortly before the election date, to decide whether or not ICC crimes against humanity suspects were eligible to run for president under the integrity provisions of the new 2010 Kenyan constitution.  Thus in one instance a High Court stood up, and in another one stood aside, and ultimately the larger questions of power and violence at the highest levels within Kenya have been preserved for politics rather than law.

How will the Attorney General and the Kenyan State conduct itself on the international legal stage at its October 7 status conference, and how will Uhruru Kenyatta, as defendant first, and then President, conduct himself on October 8 at his status conference?  I suspect Kenyatta will go, in his own personal interest as a defendant, knowing that he remains a long way from actually facing trial so far, even though by attending he will be undermining some of the anti-ICC forces he has unleashed in his counterattack on the Court.

For me, one the biggest tart ironies of the whole saga is the recent role of the African Union in joining the attack on the Court.  The crimes alleged arose out of a purely Kenyan election dispute.  If the AU wanted to support the inviolate primacy of the Kenyan presidency, why did it not stay out of the matter in the first place in 2008?  The involvement of the ICC is the result of the settlement brokered by Kofi Annan as AU-endorsed emissary, which was agreed to personally by Kenya’s sitting president at the time!

A few thoughts about ethnic polarization in Kenya as we wait on the ICC

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I want to touch here briefly on what I have seen and heard in regard to ethnic “issues”–prejudice, discrimination, suspicion, solidarity, hate speech, and such–in Kenya.

An important thing for outsiders to realize is how complex, and deliberately obscured, these things are in Kenyan politics–and how much of what is said in popular fora in the United States is at least misleading if not flatly wrong factually and in some cases deliberately malicious. (I have finally just now brought myself to read the whole Chapter 4 on “Kenya, Odinga, Communism and Islam” in Jerome Corsi’s book The Obama Nation which was published shortly after I returned from Kenya in the summer of 2008 during the American presidential campaign.  It was a major bestseller and thousands of Americans may have read more about Kenyan politics in that chapter than they have ever read elsewhere over their lifetimes.  Corsi has a Ph.D in Political Science from Harvard, so he is certainly credentialed far beyond me, and he is way too smart to get into the “birther” nonsense that captivated so many American politicians for a few years, but he paints a picture of the Kenyan election and the post election violence that is very much at odds with my understanding and experience, as well as anything I heard expressed internally at the International Republican Institute, or through my family’s church in Kenya or from our missionary friends or at my children’s missionary supported school.  In other words, malicious.)

One of the most important and interesting things that I have learned (so far) from my Freedom of Information Act requests to the State Department relating to observation of the 2007 Kenyan election was that the Ambassador’s staff reported to him and up the chain during the campaign that while there was hate speech showing up on both sides of the ODM/Odinga and PNU/Kibaki contest, the greater weight of it was directed against Odinga.  This surprised me because I had relatively limited separate interaction with anyone else at the State Department besides the Ambassador and his personal approach and attitude in my dealings with him certainly gave no hint of this background from his staff in the context of his tactics in addressing the Kenyan campaign.

The bottom line here is there is plenty of this “negative ethnicity” to go around and most of it you will never see in the newspaper or otherwise in the media–even in Kenya, much less of course internationally.  My personal experiences before the election in 2007 involved going to lunch with young middle class professional Kenyans–essentially strangers to me–who would openly and unashamedly if privately express the type of stereotypes about members of other tribes that you or I might hear in a private club in New Orleans about “the blacks” (if you are “white like me” anyway).

The attacks on Kikuyu in parts of the Rift Valley that underlie the ICC charges against Ruto and Sang were sick and sickening (as were those in 1992 and 1997) and so were the attacks in Naivasha and elsewhere that underlie the ICC charges against Kenyatta.  So was the post election violence in Nairobi and Kisumu and other places that were not covered in the ICC charges. The families in Nairobi that I knew that suffered personally from the violence in those early weeks of 2008 were from various “tribes”.  The families that sheltered in our compound happened to be Luhya and Luo; my staff were diverse but Kikuyu were more represented than others.  All of us who were there are all colored emotionally I am sure by our personal experiences in that searing time.

Whether Ocampo as ICC prosecutor used good judgment choosing to bring charges against only six individuals as “most responsible” I do not have enough information to evaluate.  To be frank, there are aspects of Ocampo’s approach as a lawyer and public figure during those last years of his tenure at the ICC that I am not personally enthused about.  To be fair, as a real man and a real lawyer, he was never going to be as “big” as so many Kenyans looked for him to be when they were painting his picture on matatus and such, and he realistically never had any chance for more than some very small success against the dragon of impunity in Kenya.  Just as the Government of Kenya was never really going to prosecute the post election killers, the Government of Kenya was never really going to cooperate with the prosecution by the ICC.  Now we will have to see if the Trial Chamber is willing to pursue enforcement of the Government’s obligations or not.

Personally, I am not inclined to believe that the facts of the charges against the remaining three ICC defendants are based on either mistaken identity, or on some massive international conspiracy to frame them.  I could be wrong of course.  As far as Uhuru, I tend to credit the observation of a Kikuyu friend who said “I don’t support Raila, but its an open secret” that Uhuru did the gist of what he is accused of doing.  I heard things about these matters in Nairobi in “real time” in early 2008 from the same types of general discussion that covered a lot of other important information that you won’t ever see in a Kenyan newspaper.  But all hearsay.  Maybe if the cases are dismissed, someday we will find out who really did it.

The most important question though is whether Kenyans want to treat each other differently badly enough to change the underlying kind of prejudice that makes a dangerous minority of Kenyans vulnerable to the hate speech from the politicians who will continue to use it until it stops working for them. Better democracy and effective governance for broader development in Kenya will depend on this change.