Kenyans for Peace with Truth and Justice statement to ICC Assembly of States Parties

Kenyan civil society groups who have been carrying the lonely burden of advocating for judicial accountability for the organized portion of the post election violence once again stood in the face of state power this week.

The Kenyan government sought to divert the International Criminal Court proceedings against Deputy President William Ruto for crimes against humanity through appeal to the Assembly of State Parties to overrule the Court on the admissibility of certain evidence and through a separate “investigation” of the prosecution.

I don’t know personally whether or not Ruto is guilty of the things he is accused of, but there appears to a great fear on the part of Ruto and the current political leadership that he might well be convicted by the judges.  Certainly Kenya’s senior politicians would know better than I the details of who committed the underlying acts forming the basis of the charges.

Statement By KPTJ at the 14th Assembly Of States Parties Of The Rome Statute

Kenyans for Peace with Truth and Justice is a collective of over 30 civil society organisations, which has been seeking accountability for the post election violence of 2008.

Mr./Mme. President Once again, this Assembly is being called upon to discuss concerns raised by the Republic of Kenya regarding the application of the Rome Statute in on-going trials before the International Criminal Court. This time Kenya is asking the Assembly to make a finding on the application of Rule 68.

Kenya is also asking for an ad hoc mechanism of five independent jurists to audit the Prosecutor’s witness identification and recruitment processes in a petition endorsed by some 190 parliamentarians.
The Kenyan state thus desires that this Assembly make a finding on a matter that is a pending decision in the proceedings of the Court. Such a finding would constitute a direct and wholly unwarranted interference by this Assembly with the judicial mandate of the court.

It also creates a very dangerous precedent – that States Parties with active situations and cases before the Court can reverse decisions or leverage political pressure on the Court through the ASP, to take decisions in favour of the States’ positions.

This is not the first time that Kenya has asked the Assembly to discuss a matter that is already before the court. During the 12th Assembly in this very hall, discussions resulted in the amendment of Rule 134 of the Rules of Procedure and Evidence and Rule 68 was also approved.

The request to discuss the Prosecutor’s strategy of identification and engagement of witnesses is an escalation of the failed request made at ASP 13 for a discussion on the ‘ICC Prosecutor’s conduct’. States refused to have this discussion then. The present request for an ad hoc mechanism should be rejected as an affront to the independence of the Prosecutor’s office

Witness tampering

It is important that this Assembly steps back and considers the context in Kenya in relation to which the discussions about Rule 68 and the conduct of the Prosecutor are taking place.

The Kenyan cases before the ICC have been affected by unprecedented levels of witness interference characterized by bribery and even elimination. In the Kenyan Case 2, The Prosecutor versus Uhuru Kenyatta, 8 members of the Mungiki militia group who allegedly interacted with Mr. Kenyatta during the post-election violence in Kenya in 2008 were reported to have been killed or forcibly disappeared.

Also, intermediaries for Mr. Kenyatta allegedly approached three Mungiki insiders, attempting to enlist them to identify other witnesses who would be willing to give exonerating evidence in favour of Mr. Kenyatta.
In the Ruto case, the Prosecutor has alleged that 16 of the original 42 witnesses have either been killed, recanted or turned hostile. One of the witnesses who died, Meshack Yebei, was abducted in Eldoret, the home area of Mr. Ruto, and turned up dead in another part of the country that is about 1000 kilometres away.

Arrest warrants

In an attempt to bring accountability for the interference with witnesses in Kenya, the ICC has issued three arrest warrants against three Kenyan nationals. However, none of these has been executed, as the Kenyan government has erected multiple legal hurdles to defeat the surrender of the accused persons to the ICC. This is in clear violation of its duty to cooperate with the ICC.

Who killed the witnesses and why? Who wanted them killed and why?

We do not currently know the answers to these questions. Whether or not the questions can be answered is directly tied to the conduct of the Kenyan state.

While showing no interest in the toxic domestic situation in the country, which has intimidated and silenced witnesses, the Kenyan state deployed a massive political strategy t influence how the cases from Kenya are handled. This has involved creating a highly charged, divisive and volatile political atmosphere.

This Assembly is now in effect being asked by Kenya to compound and reward the silencing of witnesses, and the shielding from accountability of those against whom the court has issued arrest warrants.

It would be a travesty if this august Assembly lent its powers to Kenya’s campaign to shield from accountability those who — because they have ultimate power over the country– have already used their positions to delay or defeat accountability for the crimes committed in the country.

This Assembly must think about the victims of the crimes committed in Kenya. Already, the Kenyatta case has been brought to an early end because of interference with witnesses. The underlying reason for the Rule 68 controversy is witness tampering. This Assembly must not condone it.

This Assembly must speak out clearly in defense of the independence of the Court. Cases being tried by the Court must be tried in the courtroom, not in the corridors of the ASP.

It is important for States Parties to understand that Kenya’s interventions are not aimed at strengthening the Court. Kenya continues to employ double-speak where it pledges to cooperate with the Court while at the same time actively frustrating it from continued investigation and prosecution of the cases at home and orchestrating a sustained international campaign against it abroad.

The Kenya State’s endgame, as publicly declared by various officials including the President, is the immediate, and premature, termination of the case against William Ruto and Joshua Sang, just as was witnessed with the Kenyatta case.

Let us remember also that Kenya has to date not offered domestic solutions for justice, accountability and meaningful and equitable reparations for the victims of post-election violence. Over 1,133 were killed, thousands sexually assaulted, maimed and over 600,000 displaced.. The Director of Public Prosecutions says a majority of these crimes cannot be prosecuted, a statement reiterated by the President.

Mr. President, Kenya’s domestic politics continue to define and inform its interventions on the ICC and at Assemblies of States Parties. As Kenya enters another pre-election season, characterized by inflamed rallies, hate speech and vituperation of the ICC and the Prosecutor we remind this Assembly that the ICC still remains the only viable hope for justice, truth-telling, accountability and reparations for the victims of the post-election violence in Kenya and the only credible deterrent against future similar crises.


Is it still easy to buy Kenyan identity documents?

In October 2013 The Standard ran an investigative expose on the readily available purchase of Kenyan identity documents including birth certificate, national identity card, school certificates, drivers license or certificate of good conduct from the Kenyan Police.  

This was shortly after the Westgate attack and many years after the disclosure of the Anglo Leasing national security procurement fraud schemes which the Kibaki and Kenyatta administrations elected to pay for rather than prosecute.  Since then we have seen growing corruption in multiple sectors, even with the sugar and charcoal smuggling issues involving the Kenya Defense Forces as reported by UN monitors and the new Journalists for Justice report.  Police reform under the 2010 constitution has been sidetracked by politicians who prefer other appoaches to those established in the law.  

Are false Kenyan identity and other documents still readily available for purchase?

Having apologized for having gotten our shoes in the way of the vomit, donors to Kenya’s government are now finally alarmed again about the (ongoing) corruption

Here is the latest from Kenya’s Journalists for Justice on the corrupt involvement of personnel in the Kenya Defense Forces in the charcoal and sugar smuggling trade.

It’s not so much that I’m jaded, it’s just that I have watched this movie before–and even been an “extra” of sorts in one of the previous remakes.

Yes, corruption is obviously getting even worse within this Kenyan administration than within the last.  But that was also true when I lived in Kenya during the end of the first Kibaki administration and into the beginning of the second.

There are several readily apparent reasons.  For instance, when I lived in Kenya I made the acquaintance of a Western expat whose spouse was in the tourism business. Prior to the 2007 vote count corruption and violence, the tourism business was booming.  But corruption was up as a cost of doing business as it was explained to me because to operate you had to pay off a second generation, too–the kids of the senior politicians.  Presumably this generational expansion has continued.  Why wouldn’t it?

The year before I moved to Kenya the UK and US envoys had been outspokenly opposed to the corruption, in the context of the Anglo Leasing revelations by John Githongo of massive corruption involving national security procurements, touching our own security interests aside from our sensibilities about criminal behavior, along with the outrageous shenanigans involving the Artur Brothers, and the Standard media raid, among others.  The British envoy even offered the memorably colorful “vomit on our (the donors’) shoes” metaphor about the extent of the gluttonous “eating”.

But by the time I arrived in mid-2007 things were different.  New personnel led the diplomatic missions.  On the US side we apparently helped Moi and Kibaki get back together, and hosted Interior Minister John Michuki, of “rattling the snake” fame, who had taken credit for the Standard raid, on a security tour of the U.S.  Michuki represented Kibaki at our Embassy’s Fourth of July party, where Moi unofficially planted himself to catch the receiving line.

And then we looked the other way at the corruption of the Electoral Commission of Kenya.  Ambassador Ranneberger made sure to get his predecessor Ambassador Bellamy removed from our IRI Election Observation Mission on the basis that he was “perceived as anti-government”.  Bellamy had spoken out on the corruption, in particular the Standard raid.  The week before the vote, Ranneberger noted for the Kenyan public that Kenya was “on track” in fighting the vice of corruption, that  we had had Enron in the U.S., that prosecutions for Anglo Leasing and Goldenburg could take time, and that the World Bank had given the Kibaki administration an award for procurement reform (of all things) and that he expected a “free and fair” election.  And then we tried at first to sell the ECK’s election “count” even though we knew full well that it was bogus.  When that didn’t fly, we supported “power sharing” so long as there was no new election before Kibaki’s full second term was up.  According to a news report from Nairobi years later from stolen cables from “Wikileaks” we issued a couple of “travel bans” based on alleged evidence of bribery against two of the ECK commissioners, but we never disclosed this action or the evidence, why we singled out these two or anything else about the matter.

During the post election violence a diplomat explained to me that the reason many of the younger pols in Kibaki’s PNU coalition were against a power sharing settlement was that they didn’t want to share the secondary ministry appointments.  Ultimately by adding opposition politicians into the second Kibaki administration through “power sharing” with extra ministries you further expanded the multigenerational set of stomachs to let eat.  One way to look at the settlement naturally has been that Kibaki and Raila were willing to stop the fighting (so long as Kibaki retained with further ambiguity the full second term Presidency which the ECK had delivered to him) and the rest were bribed to acquiesce.

So you cannot tell me with a straight face that the diplomatic position of the United States in 2007-08 was to “oppose” corruption as a high rather than a subordinated priority.

After being stung by criticism from the election debacle, Ranneberger was reborn as an outspoken “reform agenda” campaigner for his extended tour on through the passage of a new constitution.  He compiled dossiers on money laundering and drug smuggling through politico/business interests and encouraged action, albeit to no avail. His successors quietly moved on, however, and we helped sell a new badly handled election in 2013 by a new, but probably more pervasively corrupted electoral authority.  We helped pay for expensive technology that was doomed by procurement fraud but kept quiet.  The British Serious Fraud Office successfully prosecuted one of their companies and its owners for bribes on other election procurements, but the Kenyan administration has taken no action to follow up and we have kept our silence.

With time, we have come again to affectionately embrace our usual suspect “partners”, with new programs headquartered in our favorite African city of Nairobi.  A photo op in the Oval Office with POTUS and FLOTUS for the Kenyan President and First Lady last year, followed this summer by a glowing official Presidential visit to Nairobi with a telegenic dance party at State House.   Never mind what we said before; please can we give you more?  Some eloquent speech about the cost of corruption, safely abstract from the burgeoning accumulation of years of specific cases on the impunity docket.  Yes we can dance with this new set of shoes without even looking down at the vomit.

Surely then it can be no surprise that things have gotten that much worse.  With a new report by Kenyan journalists on the longstanding implication of Kenyan Defense Forces which we help underwrite in Jubaland in the sugar and charcoal smuggling rackets, and fresh levels of embarrassment from the international press from the National Youth Service, irregular handling of bond proceeds amid rising debt levels, more land grabbing and another looted bank, all with a new election cycle approaching, the season has turned again and it is the time for furrowed brows.  Time for the U.S. to lead a donor group to call on the current version of the anti-corruption authority.  To talk again of “visa bans” and offers again to assist in “asset recovery”.

Instead of another remake, could this be a sequel offering a surprise ending, with say, even a few villains in jail, or at least less rich, as a cautionary tale for some and a bit of hope and inspiration for others? Or is this just another iteration of “the formula” in which the sheriff rides into town, frowns at the drunken brawl, then passes along to enjoy the cinematic scenery on the way home?

Only time will tell.  I do think we genuinely would prefer to be against the corruption rather than aligned with it.  We just lose our nerve and get distracted by other priorities that seem more immediate.  Making a dent in Kenya’s entrenched culture of impunity would take a long hard slog, in the face of bitter opposition formal and informal.  It would be messy and likely involve putting up with a bit of embarrassment–it could involve some risk and actual cost.  In any event  it would take a good while for us to convince the players that we had become serious.

An insider’s explanation of the difference between a “free and fair” election and a “will of the people” election–Kriegler deputy’s memoir

Air Show


In his book Birth: the Conspiracy to Stop the ’94 Election, Peter Harris, a South African lawyer who was in charge of the “election-monitoring division” of that country’s Independent Electoral Commission in 1994 (under Johann Kriegler, later appointed by President Kibaki to head Kenya’s 2008 IREC or “Kriegler Commission”, charged under Kenya’s 2008 post-election settlement with, inter alia, investigating the failed presidential vote) elaborates:

“Why would anyone want to run a free and fair election that will remove them from power? . . . Enter the election-monitoring division, whose primary job is to ensure that the election is free and fair. . . .
What constitutes a free and fair is a major issue for us.  The high level of violence can have a major effect.  In short, the tense situation in Bophuthatswana can jeopardize everything.
Declaring an election free and fair depends on a number of considerations, but chief among them is the ‘freedom of voters to vote in secret, free from violence and coercion’, and ‘access to secure voting stations’.
Since his appointment, Steven Friedman and his information and analysis department have been monitoring the situation closely.  Their final talks will be to produce a report that will help the commissioners make a finding on whether the election was free and fair and a reflection of the will of the people.
I rather like the ‘will of the people’ bit; it reminds me of one of those classic legal catch-all clauses that provide an escape route if all else fails.  It is a bit like ‘sufficient consensus,’ that famous methodology for reaching agreement at constitutional negotiations.  In real terms this means if the ANC and the National Party agree there was ‘sufficient consensus’, then bugger the rest.  The real reason I like ‘the will of the people’ is because, as we hurtle closer to this election, it is clear to me that there is a lot that can, and probably will, go wrong.

Under Kenyan law under the 2010 Constitution, as in effect for the last election in 2013, this issue of potential circumlocution about election shortcomings is solved: the Constitution mandates a “free and fair” minimum standard.  I have written previously that I had picked up on discussion in Washington ahead of the 2013 Kenyan election harking back to the “will of the people” hedging language used by Westerners in reference to Moi’s re-elections in the 1990’s.

I ended up in an indirect disagreement through the pages of Africa in Fact magazine with the spokesmen for the Western government-funded election observation missions (the Carter Center from the US and the EU mission) about the significance of the conspicuous absence of reference to the higher (and legally mandated) standard in their Preliminary Statements following the voting.

The Harris memoir is that hackers penetrated the electoral commission ICT systems and changed vote tallies in progress.  And that the fraud was discovered by the embedded IFES (International Foundation for Electoral Systems) team funded by the U.S., addressed internally within the Electoral Commission and not disclosed at the time.

The hackers were adding votes for third parties apparently not to disrupt the ANC’s win, but rather to manipulate the overall percentage seemingly to avoid letting the ANC have the parliamentary margin to change the new constitution.

The South African Electoral Commission suspended the vote tally without explaining about the infiltration of the system.  A technology work around was created but the overall control system for handling the count broke down.  Through heroic logistical efforts, intricate private political negotiations and with the grace of fortunate “communications” efforts, the election process was “saved” to the extent of being accepted as a rough approximation of the “will of the people” in the context of moving from majority rule in an electorate of 22 million from the existing system of rule determined by competition among no more than a 3 million voter privileged minority.  Close enough for “horseshoes or hand grenades” as we say.  Close enough to an actual count of each individual’s vote for a “free and fair” election? Not so much.

In South Africa in 1994 there was an understood consensus that the purpose of the first broadly democratic election was to transfer power from the minority National Party the majority ANC while containing conflict from other factions “white” and “black”.  The time allocated and resources available made a free and fair election as such wholly beyond the potential of the endeavor.

Thus the situation in South Africa in 1994 was radically different than the electoral management task presented to the Kenya’s ECK and IEBC (and IFES) in 2007 and 2013.

In 2013 Judge Kriegler was back in Kenya some and was a frequent public commenter on contentious matters involving politics and the electoral commission.  It would seem easy to argue that his approach and expectations in Kenya leaned too heavily on the very dissimilar task he faced in his electoral commission experience in South Africa.

Are the Goodyear bribes in Kenya, as disclosed in US Foreign Corrupt Practices Act case, disappearing into Kenya’s “black hole” of impunity?

tyres in Lamu

Tyres in Lamu

From Nairobi’s Business Daily of February 26, 2015, “Big names face scrutiny in Goodyear bribes scandal“:

Top Kenya government officials are on the spot once again for pocketing more than Sh138 million ($1.5 million) in bribes from a subsidiary of American tyre firm Goodyear Tire & Rubber Company, US regulators said.

The bribes were paid in exchange for the award of multi-million shilling tenders to supply tyres to some of Kenya’s largest state corporations, government agencies and public listed firms.

The US Securities & Exchange Commission (SEC) said Goodyear paid the bribes to Kenya Ports Authority (KPA), Armed Forces Canteen Organization (Afco), Nzoia Sugar, Kenyan Air Force, Ministry of Roads, Ministry of State for Defence, East African Portland Cement Company (EAPCC) and Telkom Kenya executives to win contracts.

US detectives also established that additional Sh1.3 million ($14,457) was dished out to lure Kenya Police and City Hall officials to award the Ohio-based tyre maker multi-million shilling deals.

The corrupt dealings, committed between 2007 and December 2011, were executed through Treadsetters Tyres Ltd, then a subsidiary of Goodyear.

Goodyear made the illicit payments to Kenyan officials in cash and recorded the spending in its financial books as advertising expenses, according to a forensic audit by the SEC.

“Treadsetters’ general manager and finance director were at the centre of the scheme,” the SEC said in its filings. “They approved payments for phony promotional products, and then directed the finance assistant to write-out the checks to cash.”

The well-orchestrated bribery ring involving Kenyan bureaucrats is captured in a ruling in which Goodyear has agreed to pay a Sh1.48 billion ($16.22 million) fine for engaging in corrupt practices abroad.

The allegations were disclosed by Goodyear in 2012 and hit the Kenyan press in a significant way when the SEC fine was announced almost eight months ago.  Many of the disclosed bribes were paid to Kenyan national security officials.  In the meantime, we see more successful terrorist attacks and insecurity, but no further news on anything being done to suggest that the Government of Kenya has any substantive intention of treating these bribes as unacceptable.

Where is Kenya’s Ethics and Anti-Corruption Commission? Where are Kenya’s journalists and media houses in following the stories they reported? (would be pleased to hear if I’m missing something . . .)

And where is my government?  I’m proud of my country for policing our own companies through the Foreign Corrupt Practices Act, but it has been sad to see our support for a “reform agenda” in our relations with Kenya seem to run off into a ditch.

“Faded Aid”

Unnamed Kenyan officials figure in UN bribery charges involving “Chinese Security Company” seeking business with Kenya’s Interior Ministry

Kenya EACC

The criminal complaint unsealed yesterday by the U.S. Attorney for the Southern District of New York of six individuals, including John Ashe, the former President of the U.N..General Assembly, and five others involved in a bribery and money laundering scheme to illegally advance the fortunes of Chinese-based business interests, includes a section entitled “YAN and PAIO Arrange Additional Payments to Ashe in Exchange for Official Acts on Behalf of a Chinese Security Company”.  [See pages 26-30]

The “official acts” alleged involved Ashe acting on behalf of the unnamed “Chinese Security Company” as a go-between with unnamed “Kenyan Officials” to facilitate the pursuit of Kenyan Interior Ministry procurement.

Black Star News in New York also raises separate past but unanswered corruption questions involving Uganda’s Foreign Minister Kutesa who succeeded Ashe at the General Assembly presidency.

Update: Nairobi’s Business Daily has picked up the story.

American diplomatic perspective on Obama’s Kenya visit, and a few personal thoughts (updated)

Johnnie Carson and Mark Bellamy have a very well done op-ed up in the New York Times on “Obama’s chance to revisit Kenya“.  In case you missed it, I would recommend it as the most worthwhile commentary I have seen in the U.S.-based news media on the presidential trip this week.

I hope the visit goes well and accomplishes something worthwhile for both countries.  The topic of entrepreneurship is certainly an important one for Kenya, where most people do not have employment. [The director for human development of the African Development Bank cites a 80% unemplyment rate for Kenyans under age 35 in support of a loan of $62M to the Government of Kenya to support training for 3000 youth in “technical vocational education” that will “play an important role in supporting the emerging oil, gas and mining industry.” ]

The first U.S. presidential visit to Kenya will unavoidably be a major boost politically for Uhuru Kenyatta and his administration by its nature and will be a boon for the Kenyan president’s elite friends and cronies in other political/business roles in Nairobi.  I am not sure how important a “global summit” of this type is for entrepreneurship as such, but I will try to accentuate the positive in this regard by looking at the trip as a diplomatic endeavor with potential side benefits.

One small thing that I do think should be said:  I hope that before getting to Kenya President Obama will have apologized to former Ambassador Gration for letting him get “run up the flagpole” over doing State Department business on a private email account in light of subsequent news on this topic within the State Department. General Gration did important service to Senator Obama as his military escort on his last trip to Kenya in 2006 and in speaking out about the “birther” and related personal smears as I have previously written (“Gration spoke out on Obama/Odinga “smears” in 2008 campaign” August 16, 2010).  The Ambassador serves at the pleasure of the president and I don’t question the President’s prerogative to change his mind about a political appointment, but in hindsight this should have been handled differently.

On the security front, please read “Ahead of Obama Visit, Kenya Seeks to Show Security Threats Are Under Control” in the Wall Street Journal:

The government’s push to move beyond its security challenges is one of the problems, said Andrew Franklin, a former U.S. Marine who runs a security consultancy .  .  . “Nobody is interested in getting to grips with the situation,” Mr. Franklin said.  “What the government of Kenya is refusing to accept is that we have a genuine insurgency going on.”
He argued that an attack in April at a university in the eastern town of Garissa showed just how little the Kenyan security forces had learned.  Al-Shabaab killed 147 people in an assault that wasn’t put down until late in the day because of delays flying an elite unit out to fight the militants.
“They had all day to kill students,” Mr. Franklin said.
But Mr. Kenyatta’s message that it was time to move on appeared to be gaining the upper hand with Nairobi residents pouring into the Westgate mall over the weekend. . . .

For a great panel discussion of the trip to Kenya and Ethiopia from the perspective of U.S. foreign policy, see the audio or visual from last week’s program at CSIS, “Policy Issues in Kenya and Ethiopia Ahead of President Obama’s Trip.”  The panel included Ambassador Mark Bellamy, Terrence Lyons of George Mason University, Sarah Prey of the Open Society Foundations and EJ Hogendoorn of the International Crisis Group.

Update: Make sure to also see the letter to President Obama from 14 U.S. experts on East Africa released by Human Rights Watch Tuesday.  Signers include Ambassador Bellamy, senior scholars John Harbeson and David Throup and many of the younger generation of policy and civil society leaders in Washington who will be familiar to Americans engaged on American policy in and on Kenya.

How will the Iran nuclear deal play out in East Africa?

I wish I had a clear sense of how this might develop but I don’t.  It seems to me that there may be several areas of impact over the next few years:

+Diplomatic leverage of Museveni, Kenyatta, Kigame et al vis-a-vis the United States will be reduced as one of the main US “asks”–UN votes to maintain nuclear-related sanctions against Iran–drops away.

+While I do not foresee the current US administration raising expectations for other US priorities from these East African leaders, the next US administration might feel some greater freedom to address “the democratic recession,” declining press freedom, and other issues on the formal US policy list.

+Oil prices:  if a lot more Iranian oil gets to market both in the near term from the immediate impact of lifting sanctions and the longer term from the increase in capacity associated with ramped up foreign investment, the prospects for oil production in Uganda and Kenya will be impacted, especially as related to the 2021-22 election cycle.

+Iran will reassume a stronger role in trade and finance in the region and thus compete more strongly with Israel, Saudi Arabia and the Gulf States.

+Iran will presumably increase its regional naval presence.

+The fall of the Gaddafi regime in Libya and subsequent sad state of affairs in that country reduced one major “petrocash” player in East African politics; an Iran less cash-strapped by UN sanctions might have aspirations to finance East African politicians aside from its espionage/security/terrorism enagement.

New Developments on Iran’s Geopolitcal Efforts in Africa–another challenge for democracy?

Uganda, Iran and the Security-Democracy Trade Space?

High Level  U.S. Delegation Carries Requests to Museveni on Fair Elections and Iran Sanctions

The “War for History” part fifteen:  Why the conventional wisdom that Kenya was “on the brink of civil war” in 2008 is wrong

I must have read, or at least skimmed, dozens of Kenya articles, papers or policy briefs that include, usually near the beginning, reference to the alleged circumstance of Kenya being “on the brink of civil war” at the time of February 2008 post election “peace deal” brokered by Kofi Annan between Mwai Kibaki and Raila Odinga.  Invariably, this important assertion is without any type of citation or elaboration.  It has become self-referential conventional wisdom.

In the case of political science papers on narrower topics–those along the lines of “What can ‘big data’ tell us about gender disparity in boda-boda fares in rural Kisii eighteen months after Kenya’s Post Election Violence?”–the “brink of civil war” reference is boilerplate contextual introduction.  More significantly the “brink of civil war” phrase is standard in writings on issues of foreign policy, conflict avoidance and resolution, electoral violence specifically and the development of democracy more generally.  In these writings, the validity of this relatively untested characterization matters a great deal.

I don’t say this to be critical–the “brink of civil war” line is found in the writings of personal friends and people for whom I have the utmost regard.  Which in a way makes it all the more important to raise my concern that the terminology may unintentionally mislead those who don’t have personal knowledge of the ins-and-outs of what was happening in Kenya from December 27, 2007 to February 28, 2008 and may skew historical understanding.

There were several types of violence in various locations in the country triggered from the election failure.  My contention is that none of them were close precursors to any likely civil war.

To put it directly, the incumbent administration seized the opportunity to stay in power through the up-marking of vote tallies at the Electoral Commission of Kenya and the immediate delivery of the contested certificate of election to State House for the quick secretly pre-arranged swearing in of Kibaki for his second term before his gathered supporters there.  The incumbent President and Commander in Chief remained in effectively complete control of all of the instruments of state security–the Police Service and Administrative Police and General Service Unit paramilitary forces, along with the military forces and intelligence service–all of which were part of the unitary national executive.

Notably, the Administrative Police had been deployed pre-election to western areas of Kenya in aid of the President’s re-election effort as we in the International Republican Institute election observation were told in a briefing from the U.S. Embassy on December 24th and many Kenyans had seen on television news broadcasts.  While this initially led to disturbing incidences of pre-election violence against individual AP officers, by election day the vote proceeded peacefully with voters cooperating with deployed state police at the polls.

A civil war scenario would thus have involved an insurrection against the State.  I really do not think this was ever likely, most importantly because none of the major opposition leaders wanted it, nor a critical mass of the public without any pre-defined leadership.

While Kibaki’s official “victory” by roughly 200,000 votes rested on a reported 1.2m vote margin in Central Province, significant strongholds of the opposition were in parts of Nairobi and in the west overall, starting in the western/northern parts of the Rift Valley and including Western and Nyanza Provinces.  The violence on the Coast was not broad and extreme and eastern Kenya was not destabilized in the way that it has been in recent times.  The key ‘slum’ areas in Nairobi were fairly effectively sealed in on the eve of the vote as government security forces deployed in Nairobi.  Violence in the slums was no threat to overthrow the government and never broadened to seriously threaten areas where the political class (of whichever party affiliation that year) lived.

Solo 7--Kibera

Solo 7–Kibera

Palpable fear of a mass scale conflict between opposition civilians and state security in Nairobi largely ended when Raila cancelled the planned ODM rally for January 3, 2008 as the GSU continued to surround Uhuru Park shoulder to shoulder.  As best I could tell the EU at that point came around to support the U.S. position in favor of negotiated “power sharing” in lieu of a new election and/or recount or other remediation.  Acts of terrible violence continued to ebb and flow in specific places but Kibaki’s hold on power was not threatened as far as I can see. Continue reading

The War for History, part fourteen: dare we learn from 2007-08 in Kenya or is it still too soon to reckon with the whole story?

Kenya’s security situation continues to deteriorate as Kenya’s political leaders move on to focus to the next elections.  Challenges abound on succession and election issues in Burundi, Rwanda, the DRC and Uganda, along with the crises in governance in the Central African Republic, South Sudan and Somalia.  Surely this would be a good time to peel back the onion on how the U.S. handled the Kibaki succession/re-election crisis in 2007-08 to learn what we can rather than letting more murky water flow under the bridge?

Knowns and Unknowns, Plausible and Otherwise

Further to the question I raised in Kenya 2007 Election – How bad were we – “The War for History” part thirteen, I have certainly confirmed my awareness that, as I have put it, we “actively looked the other way” as the Kenyan election was stolen and thereafter.  I am also am forced to acknowledge that we (meaning my country, the United States, through our empowered government officials, who took the opportunities presented to assert what became our de facto policy, whether or not it was formally planned, vetted, approved, etc.) not only “looked” the other way, but also “pointed” the other way, too.  In other words, the initial approach from the State Department was to divert attention from the known and witnessed election fraud to induce acceptance of the fraudulent “result”.

How much more is there to the story in terms of our intentions before the election?  Did “we” affirmatively wish Kibaki to win, or Odinga to lose, or some combination of the two–and if so, why?  Everyone is, of course, entitled to his or her own opinions and/or preferences regarding a democratic election (although for me as an American I considered it to be none of my business who Kenyans ultimately voted for, both in concept and in any event regarding the specific choice among Raila, Kibaki and Kalonzo, each of whom had long, high profile track records in Kenyan politics and government, and with American diplomats).  The real question becomes, in light of what happened in the election and how we handled it, whether we were in some way culpable beyond the “looking and pointing the other way”?  How much did we know beforehand about the intentions of the Kibaki administration to retain power regardless of the actual vote?  In private, if we knew something, did we secretly object, stay silent, quietly nod, affirmatively recognize, or something else?

It seems important to account for the fact that, as best I knew, Kibaki never said publicly during the campaign that he would countenance the potential to lose the election and turn over power. And further, that to the best of my knowledge and attentive observation at the time, neither the Ambassador nor anyone else in the State Department publicly called Kibaki on this. (Eventually, Moses Wetangula, the Foreign Minister at the time, made a statement regarding Kibaki’s willingneess to “lose,” presumably directed more to his diplomatic counterparts than to Kenyans.)  Compare and contrast Goodluck Jonathan’s campaign for re-election in Nigeria this year, wherein American officials up to and including the Secretary of State himself flew to Nigeria ahead of the election to openly warn Jonathan to accept an adverse vote even though he was already stating his willingness to do so.

As an American, especially one who was working at taxpayer expense to support the democratic process, I certainly want to believe the best about all of our conduct in regard to the election.  Unfortunately there are some other facts and questions that remain undigestable for me so far and leave the quesy feeling that there may be more to the story.  For example:

* When the Ambassador told me at the residence on December 15 that “people were saying” that Odinga might lose his Langata constituency and thus be disqualified from taking office even if he won the presidential vote, and that this could be “explosive”, why did his cables to Washington not report this matter until nine days later, just three days before the election (and, perhaps incidentally, after I had written to USAID to complain about the Ambassador’s conduct regarding the IRI election observation, and also let the Ambassador know that I had commissioned a Langata poll in response)?

* Why did the Ambassador want to take Connie Newman–whom he had effectively chosen to be IRI’s lead Election Observation delegate–to meet privately with Stanley Murage the day before the election (I described Murage as by reputation “Kibaki’s Karl Rove” in my reporting to IRI Washington that day, and I have since heard him described by a diplomatic source as “Kibaki’s bag man”)?  Why had the Ambassador ahead of time wanted Connie to stay at his residence or at the Serena Hotel separate from the rest of the Observation Mission at the Mayfair? Why did Connie mislead me about her separate time at the embassy residence when it had been understood among myself and IRI’s top executives that Connie was to be fully briefed to avoid this type of situation with the Ambassador (and my notes from the time show that I was told she was in fact briefed and “on board” before her arrival in Nairobi)? Did the private Murage meeting end up taking place?

* How did Connie know by Saturday evening December 29th, at the Mayfair, that Kibaki would be the announced winner when the ECK’s process at the KICC was still very much ongoing as represented publicly?  She was in regular contact with the Ambassador by cellphone throughout–was he her source?  Is there any other plausible explanation?

* Was then the Ambassador’s January 2, 2008 cable to Washington describing what he witnessed and his own actions at the ECK’s headquarters at the KICC fully ingenuous in describing the Ambassador unsuccessfully offering ECK Chairman Kivuitu encouragement not to give in to pressure to announce a manipulated result? Note that this cable was written on the sixth day after the election and the third day after Kivuitu preemptively declared the vote for Kibaki and delivered the certificate of election to him at State House for his Sunday afternoon swearing in, and during the worst of the post-election violence and the time of maximum uncertainty for Kenya’s newish democracy and its longstanding stability. How does the Ambassador’s after-the-fact write up square with Kivuitu unsuccessfully seeking Ambassador’s Ranneberger’s help before the election?

* Why did Connie assert herself so strongly to object to making any public statement about the USAID IRI exit poll when she had no involvement whatsoever in that polling program and had no prior discussion with any of us who were involved?  (Note the Ambassador’s admission in his interview by Jeffrey Gettleman of the New York Times that he had discussed the exit poll with Connie or “another Institute official”.) My immediate superior, the regional director for Africa, told me contemporaneously that I had made a mistake in bringing up the exit poll in front of Connie as she should not be involved, which I had recognized immediately when Connie jumped in to object.

* Given that the State Department released to me under FOIA redacted versions of a variety of classified cables, why did they withhold in full the documentation about Secretary of State Rice’s January 3, 2008 discussion with EU Foreign Minsiter Javier Solana about the election on the basis of its classification?  What was so sensitive?

* Did Ambassador Ranneberger intervene with Johann Kreigler to steer the Commission of Inquiry into the 2007 Elections–the “Kreigler Commission”–away from an examination of the ECK’s presidential vote tally?  A reliable source reported to me on this, but on second hand information as best I could tell so I don’t know.

*  Why did the Ambassador get involved in brokering the rapprochement between Kibaki and Moi in the summer of 2007?  Why was I told nothing about this by State or USAID, or anyone from IRI?  Did anyone from IRI know before I reported this to Washington in the fall of 2007?  Did this rapprochement lead to Uhuru Kenyatta as KANU Chairman and Leader of the Official Opposition crossing the aisle with KANU to pull out of ODM and support Kibaki?  Did this lead Kibaki and his circle to overestimate his electoral position in the Rift Valley?  Similarly, did this underlie the Ambassador’s overestimation of Kibaki’s strength as a candidate–or otherwise support the assessment that Kibaki would not be seriously challenged for reelection as of that summer? Did our support for a Moi-Kibaki rapprochement lead to our backing down on anticorruption issues in 2007, in spite of John Githongo’s brave revelations about Anglo Leasing? Did all of this lock in Kibaki’s support for Uhuru as his successor, ultimately fulfilling Moi’s original intentions from 2002?

*  Did dealings with Kibaki (and Uhuru) in the 2007 election that the State Department was not willing to disclose tie the hands of the United States in the 2013 election, supporting the policy choice to promote the credibility of the IEBC irrespective of the procurement fraud, failure to deploy and implement essential technology and failure to tally the votes fully?  Or, alternatively, was our policy driven strictly by immediate concerns about stability and the threat of violence, regardless of any such potential overhang from 2007?  Any relation to our striking silence now about the proven corruption at the IEBC in the wake of the British convictions for Smith & Ouzman bribes in Kenya?

* Why would USAID withhold in 2014, under an April 2013 FOIA request, their copies of (unclassified) documents already produced to me in March 2013 by the State Department under a 2009 FOIA request, showing State and USAID  personnel coordinating on the misrepresentation of the USAID IRI  exit poll as an IRI “training exercise” in talking points for the media in 2008 and 2009?  (And given that I requested the documents from the State Department in 2009, and they were cleared for release in October 2012, why were they not mailed to me until March 12, 2013, just after the next Kenyan election?)   People are still being squirrelly after all these years.

Hats off to Connie

Like others who have had an occasion to work with her over recent years I am sure, I found Connie Newman to be a charming and very effective lobbyist (and I am sure she was a charming and effective diplomat during her eleven months at the State Department even though my eleven months at IRI did not overlap with her in that role).  I can appreciate why Ambassador Ranneberger would identify her as his “great friend and mentor” to the media in Nairobi on a visit to Nairobi in 2009.

IRI identified Connie to the Weekly Standard in 2009 as the primary decisionmaker on spiking the exit poll while serving as lead Election Observation delegate, as I did in my 2008 interviews with the New York Times, as well as in my contemporaneous emails to Joel Barkan which I included in this “War for History” series.  So we agreed on that part anyway.

It is easy to see why Nigeria’s Bayelsa State would have Connie and her firm lobby Sidney Blumenthal (“former Senior Advisor to President Bill Clinton”), the State Department’s Regional Security Office and Senator Inhofe on their behalf immediately following Obama’s inauguration in 2009, between her unpaid service observing the Kenyan and Nigerian elections for IRI. It is also easy to see, after what happened in Kenya in 2007, why IRI would have a senior staff member placed as co-lead delegate with Connie for Nigeria’s 2015 State Department funded IRI Election Observation Mission. Connie got most of what she wanted in Kenya in 2007, but I never detected that she had any deep personal background in Kenya’s politics (and she has not been registered as a lobbyist in Washington for any of the Kenyan governmental entities) and it was never my sense that she had any separate irons in the fire other than reflecting the Ambassador’s wishes.  So for me the question is what the Ambassador was trying to accomplish and why.  And then, was it successful or not and what have been the costs to whom?

Kenya 2007 election- Ambassador Ranneberger and Connie Newman at polls