“And the beat(ings) go on . . .”; as 2007 bleeds into 2013, what would it take for Human Rights Watch and others to make Kenyan politics less deadly?

The latest Kenya release from Human Rights Watch, dated yesterday, decries the terrible beating of Kenyan activist Okiya Omtatah Okoiti.

Omtatah, executive director of Kenyans for Justice and Development (KEJUDE) Trust, a local NGO that advocates for transparency and accountability, was attacked by two unidentified men in central Nairobi. He lost six teeth and suffered serious injuries to his face and the back of his head, which required surgery. Omtatah told Human Rights Watch and ARTICLE 19 that the attackers demanded that he withdraw a lawsuit he filed to demand accountability in the procurement of biometric voter registration (BVR) kits because of corruption associated with the process.

“This vicious attack was clearly meant not just to intimidate Omtatah but to seriously injure him – and perhaps even to kill him,” said Leslie Lefkow, deputy Africa director at Human Rights Watch. “The aim seems to be to stop his work on corruption in the procurement of biometric voter registration kits for the upcoming elections.”

Certainly this is a crucial and timely issue in working toward integrity in the upcoming Kenyan election and in protecting an activist who took a big risk in pursuing legal action against election-related corruption. So kudos to Human Rights Watch and Article 19 for calling attention to the attack. Unfortunately, it is hard to imagine that anything will actually happen as a result of this statement that “[t]he Kenyan authorities should promptly and thoroughly investigate a serious physical assault . . . and bring appropriate charges.” Of course, they should–that goes without saying; of course. they won’t.

Why won’t they? Are they confident they can wait it out and the outside actors and international players who care about Omtatah now will move on to the next outrage, the next victim, without really disrupting the vicious cycle?

Why would I suggest this? Not to be gratuitously critical of Human Rights Watch or any of the many organizations trying to support human rights defenders. Rather I say this on the basis of my own hard-earned experience with well-intentioned failure in dealing with election fraud and violence in Kenya in 2007/08. I moved my family to Kenya for a year to help support democracy in the last election cycle–we were able to take in a couple of displaced families for a few months after the election, and help a few others a bit, but nothing that I did in my NGO work really changed anything as far as upholding democracy. My organization, IRI, issued a report noting the election fraud, in July 2008, and in August 2008 released the exit poll showing that voters at the polls on election day reported favoring the opposition, before the mark-ups of the tallies for the incumbent at the Electoral Commission in Nairobi afterwards. But these reports were months too late to really matter. It is going to take more to make a difference in the brutal world of Kenyan politics.

So how does Human Rights Watch yesterday describe what happened with the 2007/08 election situation:

Kenya’s 2007 elections were marked by controversy and violence, resulting in more than 1,000 deaths countrywide and causing more than 600,000 people to flee their homes. The problem was partly due to flaws in the integrity of the electoral process, which undermined confidence in the results. A commission of inquiry looking at the elections recommended a shift from the manual voter registration system to an electronic system to fix problems with the voter register.

It saddens me to see an organization like Human Rights Watch fall into opaqueness and ambiguity in describing what happened with the last Kenyan election. Unfortunately, if all we are left with in 2012 is “controversy” and “undermined confidence” from unspecified “flaws in the integrity of the process” in 2007 without saying what flaws and who committed wrongs, then we are in hard reality accepting and tolerating if not endorsing impunity. Why should the players involved in beating Omtatah now worry about what the other rights activists have to say when the passage of time seems to cover all frauds?

“Back in the day”, in the spring of 2008 when I was still in Nairobi as IRI director with IDPs at my house, Human Rights Watch wasn’t ready for impunity for election fraud. In their “Ballots to Bullets” report of March 2008 on the post-election violence they called for the Government of Kenya to:

• Ensure offenses under the Electoral Offences Act, including those identified in
the course of investigations by the Independent Review Committee, are
impartially and rigorously investigated, and that perpetrators are brought
promptly to justice.

What happened about technology with the ECK in the 2007 election? The American taxpayers through IFES, the International Foundation for Election Systems, paid for the purchase of laptop computers for the reporting of election results from the constituencies to Nairobi. The ECK, according to the Independent Review Commission (“IREC”) voted not to use the laptops; instead, the tallies were manually altered and the incumbent was announced as winner and quickly sworn in without credibility. The ECK refused to provide the IREC with the minutes of the meeting where this fateful decision not to use the technology already purchased was made. What was done? Nothing. The IREC prepared its report, met with President Kibaki privately, released the report and disbanded. No investigation of the ECK has ever been undertaken so far as I know.

In the bigger picture, what happened with the ECK in 2007? As I have written previously, I was told by a credible senior diplomatic source during the post-election crisis that the explanation was bribery. According to an article in the Daily Nation published on March 2, 2011, the U.S. State Department on February 8, 2008 delivered “visa warning letters” to three Commissioners of the ECK “suspected of accepting bribes to fix election results tally at ECK Headquarters”. As reported in my April 2012 post “Part Ten–FOIA Documents from Kenya’s 2007 Election–Ranneberger at the ECK: “[M]uch can happen between the casting of votes and the tabulation of ballots and it did”, our American Ambassador witnessed the falsified tallies and was told by the ECK Chairman that he himself did not want to declare the incumbent as the winner. But we ignore all of this experience from the last election and call on the Kenyan powers that be to do the right thing this time in the abstract.

If we are going to seriously change the environment we are going to have to be willing to be more consistent, more focused and more clear.

To close, let me quote further from Human Rights Watch’s 2008 Ballots to Bullets report:

Kenya’s recent crisis was triggered by election fraud, but many of the tensions that
exploded in December 2007 were years or even decades old. . . . For many Kenyans, the rigging of the 2007 presidential election was the final betrayal of that agenda for change. . . .

The Hijacking of Kenya’s 2007 Presidential Poll
While it is true that the post-election violence in Kenya has deep-seated roots, the
immediate trigger for the violence was the rigging of the election. This was not only a proximate cause of the violence but also an abuse of Kenyans’ democratic rights.
The principle of free and fair elections is enshrined in Kenya’s constitution48 and
provided for in numerous other acts of parliament. In addition, Kenya has signed
and ratified international and regional treaties relating to human rights, including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights, which contain standards on the conduct of
democratic elections. Furthermore, it has agreed and endorsed the African Union’s ‘Principles Governing Democratic Elections in Africa’.

Kenya’s December elections should have been an important milestone for Kenya and for Africa. After a closely-fought campaign, Kenyans registered and turned out to vote in record numbers. There were serious irregularities reported on both sides in some areas. But the most damaging acts of fraud were committed during the final stages of tallying the presidential poll, when the Electoral Commission of Kenya (ECK) presided over what was by all appearances a desperate last-minute attempt to rig the contest in favor of incumbent Mwai Kibaki. . . .

*A third year has gone by since the killings of Kenyan rights activists Oscar Kingara and J.P. Oulu