Part Ten–FOIA Documents from Kenya’s 2007 Elections–Ranneberger at the ECK: “[M]uch can happen between the casting of votes and final tabulation of ballots and it did”

Westlands Primary-Line to Vote X

Another document released to me from my FOIA request to the State Department for documentation of the State Department observation of the Kenya elections is a cable from Ambassador Ranneberger from January 2, 2008 reflecting what he witnessed at the ECK. This was primarily declassified, with a few redactions.

Here are key excerpts, which deserve to be read carefully by those preparing to try for better elections this time.  It pretty well clarifies what Ranneberger saw as a credentialed observer at the ECK, and what he wanted to do, or not do, about it.

2. As previewed in ref B, much can happen between the
casting of votes and the final tabulation of ballots and it did.
This message recaps developments reported in refs, provides current
state of play, and discusses next steps. Much of our reporting
during the past three days has been done by phone given our
intensive focus on operational issues, particularly efforts to
promote a positive outcome to the election imbroglio.

3. Elaborate procedures were in place (much of it with U.S.
support) to ensure transparency and accountability of the ballot
tabulation process. . . .

5. ECK officials and observers pursued these
allegations to some extent, but the ability to do so was
constrained by lack of time, original data from polling
stations, and by the behavior of a number of ECK officials
who delayed returning results and submitted incomplete or
clearly altered documentation. Moreover, the ECK has no
authority to open ballot boxes; only the courts do. During
the night of Dec. 29, ECK officials together with
representatives of the PNU and ODM, reviewed the tabulations,
but neither side was satisfied that the review had fully
addressed their concerns. The ECK partial review of the
irregularities was also of questionable credibility, given
that all of the commission members were appointed by the
Kibaki government, and a number of them were suspected of
being clearly biased and/or involved in doctoring at ECK
headquarters. The Chairman of the ECK, Samuel Kivuitu, who
was widely respected, was surrounded by staff of uncertain
reliability and competence. It is worth noting that
parliamentary results were not disputed because they were
tabulated and announced at constituency tabulation centers,
thus allowing no interference at ECK headquarters.

6. Kivuitu has only limited authority as head of the
ECK. The ECK works on a majority vote system. It is also
important to note that the ECK is required by law to announce
the results as received at the ECK from the tabulation
centers. Some obvious irregularities like reporting
unrealistically high turnout or clearly altered results can
be rejected. There was, however, only a rejection of the
results in one constituency in which violence resulted in
destroyed ballots. Other alleged irregularities, such as
announcing results that ECK personnel personally inflated
should have been, could have been, but were not corrected. At
one point Kivuitu told me that his concerns about the
tabulation process were serious enough that “if it were up
to me, I would not announce the results.” In the end, he
participated with other commissioners in an announcement late
on the 30th, which turned rowdy when Odinga walked with armed
bodyguards into a room packed with observers, including me,
party agents, and media Kivuitu and the other commissioners
retreated to their upstairs offices, where the results were
announced. Kibaki was quickly sworn in (this was
constitutionally necessary since his term ended at midnight
on the 30th).

7. My team and I, as well as the head of the EU
observer mission, were at the ECK vote tabulation center
throughout the tabulation process, and aggressively
intervened with Kivuitu and other commissioners and staff to
work for transparency. Our judgment is that the tabulation
process was seriously flawed but, without having direct
access to polling station numbers and doing a polling-station
based recount, it is impossible to determine which candidate
actually received the most votes. We had consistently
predicted a close election. There were accusations of
serious irregularities with respect to about 20 percent of
the 210 constituencies. Some ECK insiders have alleged that
the purpose of the delay in announcing the results in some of
the constituencies was to determine the true count and then
re-jigger in a manner to make up gaps in votes for Kibaki.
Announced results differed from results initially received by
ECK from the tally centers. We have seen documents that
illustrate this. In a close election, with Kibaki winning by
about 230,000 votes, such irregularities may have been enough
to make a difference. At the polling center level there were
also anomalies on both sides. While Odinga claims he was
cheated, it is also conceivably possible that Kibaki would
still come out ahead if all the irregularities were sorted
out and a full recount carried out.

11. We worked intensively to press for a transparent
tabulation process. This included round-the-clock presence
at tabulation headquarters, close review of the tabulation
itself, liaison with the political party agents, and
extensive discussions with the electoral commissioners and
staff. Throughout the process we made clear our strong
support for Electoral Commission Chairman Kivuitu. As
indications of serious irregularities mounted, we urged
Kivuitu to delay announcing final results in order to conduct
a more extensive review of the anomalies, and said that we
would stand by him if he chose to do so. We closely
coordinated efforts with the UK and with the EU election
observation mission. At one point on the day he announced
the results, Kivuitu told me “if it were up to me I would
not announce the results.” Nevertheless, late on the 30th
Kivuitu announced final results showing Kibaki the winner.
Several electoral commissioners have subsequently appeared in
the media stating that they take responsibility for not
having more closely scrutinized the vote tabulation process.
On January 1, Kivuitu appeared on television to say that “I
was pressured into announcing the results by people in State
House who God should never have allowed to be born.”
Interestingly, Kivuitu defended Kibaki as not having been
involved, and Kivuitu did not say that he believed the
irregularities meant Odinga had won. “I don’t know who
won,” he said, and this has made local headlines.

I have been working the media intensively,
including print, radio, and television, and we have received
very positive feedback on that. Second, we are working to
facilitate dialogue between the Kibaki and Odinga camps in
order to achieve a political settlement. During the past 3
days I and my team have met with dozens of key interlocutors
and talked on the phone with dozens of others.

. . . Kibaki and his team believe that forceful action will stop the violence within a few days, with relative normalcy returning by this weekend. Odinga, in their calculation, will then be left with no
option other than to accept the election result. They have a
clear game plan that involves, among other elements:
immediately co-opting elected ODM members of Parliament in
order to cobble together a PNU parliamentary majority; getting
Kalonzo Musyoka (the third presidential candidate of ODM-K)
to accept the vice presidency; going ahead with the naming of
a cabinet that will include Luo and other groups as well as
Kikuyu; not putting into force legislation that would require
consultation with the opposition before parliamentarians can
be poached; establishing a national commission to address the
problem of tribalism (previous commissions on sensitive
issues have generally faded away without real results); and
rejecting any attempt for international mediation. Odinga, on
the other hand, believes that he can make the country
ungovernable and that the Kikuyu business community will,
within a couple of weeks, then pressure Kibaki to step down
in order to prevent the ruin of the country. We have been
reliably told that Odinga is basing his strategy on a mass
action approach similar to that carried out in the Ukraine.

. . . .

15.  At this point, however, the bottom lines are still
very far apart. Odinga is insisting that Kibaki lost the
election. He is demanding a transitional government for four
months, during which the independence and competence of the
electoral commission would be strengthened, with new
elections then held. Odinga is also insisting on a Kibaki
commitment to constitutional reform and on a commitment to
implement the law requiring that opposition parties must be
consulted before any of their parliamentary deputies can be
offered ministerial positions (poaching in order to undermine
parties was a huge problem during the last parliament).
Kibaki’s inner circle says that accepting Kibaki as
president for his full term is a sine qua non for any
political deal.

. . . .

18. Although some have suggested the need for outside
mediation, Kenyans have always been able to resolve their
problems themselves. They tend to resent outside
interference. Odinga is welcoming the idea of international
mediation, because he believes it will create pressure on
Kibaki to step down. Any outside intervention will have to
be carefully orchestrated to ensure it does not inadvertently
encourage Odinga to delay coming to grips with a political
settlement, or cause the Kibaki camp to entrench further.
We understand that AU Chairman Kufour has asked to visit
Kibaki in order to help calm the current situation and to
encourage a political solution. Achieving that will require
intense pressure on both Kibaki and Odinga, and continued
close work with the people around them.

Challenged Ballot

17 thoughts on “Part Ten–FOIA Documents from Kenya’s 2007 Elections–Ranneberger at the ECK: “[M]uch can happen between the casting of votes and final tabulation of ballots and it did”

  1. Thank you for bringing these important documents to the public’s attention.

    It’s good to see diplomats working to defend transparency as an integral part of the electoral process, in line of Kenyan expectations. However when an ambassador writes that irregularities may have been sufficient enough to have altered the electoral outcome, then this raises questions about how the USG arrives at its final decision to recognize a government that does not reflect the will of voters. These are tough issues, and more flawed elections are to come in Africa and elsewhere.

    The US (and perhaps the international community more generally) needs to grapple with these legitimacy questions. Otherwise I fear we will return to the day when Western governments will be choosing to recognize election results not based on the integrity of the process but on the positions taken by candidates. We’ll be back to the bad old days of US policy towards Latin America in the 1980s.

    • Carl,

      Thanks. From my standpoint as a lawyer/practioner who was “on the ground” during this situation, it seems to me to be pretty weak to go very far in arguing that the inflation of constituency totals in favor of Kibaki at the level witnessed at the ECK might not have been necessary in the sense that Kibaki would have won without it with the other inputs unchanged or that ODM had the power to rig enough more than PNU and/or the Kibaki government at a local level that more Kenyans really did vote for Kibaki. These are hypotheticals without serious factual support. (another document shows that even when the State Department did post facto analysis that was represented in the media as showing that the election was very close and could have been won by either side, the actual conclusion was still “advantage Raila”).

      Likewise, the Ambassador had the exit poll numbers that were done at his behest.

      I was a College Republican state chairman during the Reagan re-election. In the Cold War the underlying policy was reasonably clear–thus we could argue about the morality/utility of the policy and argue about the underlying facts in the places where the policy was applied. I can’t figure out what the policy was in Kenya in December 2007.

      What we see is that Kibaki’s people say that the presidency is non-negotiable and we proceed along those lines in supporting negotiations for power sharing for a full five year term under Kibaki. Kibaki’s people don’t want “mediation” as that would undermine the notion that the negotiations are only about what Raila and ODM get under a second Kibaki administration–and we adopt their approach on that language as well. Not sure who was calling the shots here.

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