Monthly Archives: February 2013

Carter Center release; Initial observations on the “Frazer v. Carson” controversy

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The Carter Center 2013 EOM Pre-Election Statement was released today based on the work so far of 14 long term observers, who will later be joined by short term observers from 19 countries. Not surprisingly, the Statement has no particular revelations pro or con for those following the election situation. While it primarily exhorts good future behavior, the statement generally praises the IEBC on its internal preparatory work while stressing concerns about the adequacy of voter education to date. It praises the IEBC’s willingness to work with judiciary, while noting the huge volume of cases that might arise from election challenges. Discussion of security seems to me quite generic under the circumstances, but read it for yourself.

The environment for comment from “outsiders” is difficult given the growing tension in the closing days of the campaign. With yesterday’s incident with an American academic/investor who was a George W. Bush administration Assistant Secretary of State for African Affairs accusing the serving American Assistant Secretary of State for African Affairs of “essentially meddling” in the Kenyan election for noting that while Kenyans should freely elect their choice of candidates such choices did have “consequences” in their external relationships, I would think it becomes that much more challenging for the Carter Center or other observers to push on any particular pre-election issues.

My initial reaction to Jendayi Frazer’s high profile “denouncement” of her successor is to say that while I would strongly defend Ms. Frazer’s right as a private citizen in the United States to dissent from and critique American foreign policy (as I have done myself), I personally think her comments were quite unfortunate under the circumstances. To me, if her concern was to try to improve on American performance by criticizing current officials’ actions, she would have done better to hold her tongue in public for less than two weeks until the vote was over. The timing of her attack on Johnnie Carson, combined with her specific characterization of the ICC’s case against Uhuru Kenyatta, in the context of her own highly controversial role in 2007-08 in the last election, could suggest that perhaps Ms. Frazer herself was seeking to be a public player in the Kenyan campaign rather than advocating for “non-interference”.

Part of the situation here is that Frazer has a bully pulpit by virtue of her time in the government position before Carson was appointed to serve the current administration. When she speaks in this way, as a practical matter she is identified in the media and otherwise primarily as a recent former senior appointee in the State Department, rather than as someone launching business enterprises, as a professor or any other role or roles that she may play as a private citizen in the context of East Africa today, as opposed to her role five years ago.

More to the point for me is how disappointing Frazer’s statement is for people in Kenya who have supported the rights of the victims of the 2007-08 post-election violence and supported “the reform agenda” and the long, hard and dangerous work of seeking some small measure of justice in whatever legal venue. Kenya is in fact a member of the ICC even if the United States is not; the ICC is involved only because Kenya’s parliament, including Uhuru Kenyatta and William Ruto, voted “don’t be vague, go to the Hague”. Kenya’s government committed to cooperate with the ICC before what Frazer calls a weak case was in fact confirmed to go forward to trial by the Court.

Given that the United States is again the leading donor in the $100 million effort to support the Kenyan election process, I personally don’t think that Carson’s statement was outside the boundaries of appropriate diplomacy in the context of the characterization of the President’s immediately proceeding statement being given in the Kenyan campaign, vis-a-vis the statements of the European donors. There is really no precedent that fits the situation with the Kenyan election and the candidates facing ICC trial and I doubt anyone is very clear about what the consequences of electing an ICC indictee as president would be — but it doesn’t seem controvertible to me to note that there would certainly be some.

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More links for Kenya’s Election; Chief Justice’s “bombshell” press conference; Debate loses a “horse”

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Kenya Voting: "Curriculum Cooking"

AllAfrica.com has put together a special feature page on the Kenyan elections that is a good source for the latest stories from the main Kenyan media sources:  “Kenya Decides: 2013 Elections”. (h/t @GeorgetownDG)

On Thursday, February 28, the Institute for Security Studies Nairobi office will host a “Seminar on Kenya’s 2013 Elections: issues, actors and scenarios.”  Register on-line through the link.

IRIN has published on on-line “multimedia documentary” entitled “No Ordinary Elections” which does a nice job of informing an international audience of the basic context of the upcoming Kenyan election and includes good interviews discussing humanitarian concerns and preparations in general terms.  A work of art in internet publishing.

In the latest developments, there is a lot of buzz in the human rights community regarding the announcement by Chief Justice Mutunga at a press conference today that he had received a letter threatening judges and others regarding any ruling against the candidacy of Uhuru Kenyatta purporting to be from a Mungiki-associated group, Further, as reported in the Star story “Chief Justice Raises Concern Over Threats to Judges”:

The CJ also revealed that he was asked by an immigration officer at the JKIA to seek travel clearance from the Head of Civil Service Francis Kimemia a day after the letter was posted.

“I was stopped at the Jomo Kenyatta International Airport (JKIA) by an Immigration Officer, who insisted that I could not travel because I had not been cleared by Mr. Francis Kimemia, the Permanent Secretary, Head of the Public Service, and Secretary to the Cabinet.” Mutunga said.

The CJ further asked Inspector General of police David Kimaiyo to take the necessary steps to protect judges from threats and intimidation so as not to give constitutional rulings. “The Judiciary will not flinch from interpreting the constitution as required. The constitution must be guarded jealously,” He said.

From The Standard: “CJ Mutunga bombshell”.

From the Daily Nation: “Chief Justice Speaks Out on Threatening Letter.”

Obviously a lot of difference among the media houses in how to report this.  Thus the need to read widely to put together the pieces in getting the facts and understand the interests.

While I would completely reserve judgement as to exactly what to make of the threatening letter, the “immigration” harassment is disturbing in light of Kenya’s short but unduly “colorful” history involving politics at these highest levels.  Certainly the President himself should address this if he wants to reassure the country at a time in which no one needs any more tension than can be helped.

This has overshadowed the other big political story of the day, that Uhuru Kenyatta’s campaign has announced that he will drop out of the second presidential debate scheduled for Monday, complaining of the allegedly unfair amount of emphasis on the charges he faces from the International Criminal Court and “ganging up” by the other candidates on this point.

My sense of the political strategy here would be that Kenyatta feels he is in solid position to make a runoff, and not in striking distance to win in the first round, so there is nothing major to be gained from another debate, while there are risks from undesired questions and unscripted situations.  He has plenty of money and media access as a top candidate so he probably doesn’t feel a need to share the stage to  communicate whatever he wants to say in the last days of the campaign.  Likewise, part of his approach since the ICC charges have been confirmed has been to portray himself as a victim of other politicians and interests, so claiming that he was treated unfairly in the debate fits with that theme, too.

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My piece on police reform in The Star: “Could Kimaiyo be Kenya’s Kivuitu of 2013?”

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“Could Kimaiyo be Kenya’s Kivuitu of 2013?”

.  .  .  .

. . . [H]e is in a new position set down on top of an old and dysfunctional organisation that he has inherited and that he does not have time to change before the election.

The news already reports a rift over appointment authority between Kimaiyo and the chair of the new National Police Service Commission—the kind of kinks in a new system that should be expected and that inevitably take time.

Ultimately, Kimaiyo even on paper, is only one member of the National Security Council. Even though he has some additional theoretical authority, he is to implement rather than set the government’s security policy.

Like Samuel Kivuitu in the weeks before the election in 2007, he has respect and credibility from his past, but he is one man only, one vote on security policy, and not fully in control of what will happen even within the police service at this point. This should be a sobering thought in light of what we all saw play out in the last election.

Follow the link to read the whole piece from the Star.

FYI, this was submitted for publication before the back and forth in the campaigns about alleged involvement of civil servants in politics.

Please also read this from Pheroze Nowrojee in the Star, “Of Civil Servants and our Politics”:

The Inspector-General of Police, David Kimaiyo issued a public statement that politicians should not discuss land ownership in their campaigns. He did not suggest that there was any breach of the law by any politician. Yet he called for a gag. He was stepping into the political arena. He was abridging the Bill of Rights. Kimaiyo too was way out of line.

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What does Kenya’s High Court ruling on the civil society challenge to Uhuru and Ruto eligibility for election say about the state of Kenya’s judiciary?

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The Nairobi media reporting is a bit garbled but the gist of things is that the Kenyan High Court (as opposed to the Court of Appeal or the Supreme Court) has dismissed a petition filed some months ago by civil society groups, including significantly the Kenyan Chapter of the International Commission of Jurists, challenging the eligibility of many of the candidates for President of Kenya on the basis of the “integrity” provisions of the new Kenyan Constitution.

Almost 13 months ago I posted that it was time for Kenya’s judicial system to answer the question posed regarding the application of these constitutional provisions to the candidacy of those facing confirmed charges from the International Criminal Court.  Unfortunately, even though the election has ended up being set for a delayed date, the Kenyan court system has still managed to let the clock seemingly run out without reaching any clarity or finality, such that the election is expected to proceed with the “Uhuruto” ticket on the ballot.

Without having a copy of an opinion yet, from the media reports, the High Court ruled that it did not have jurisdiction over the challenge because the constitution vests exclusive jurisdiction in the Supreme Court over challenges involving the nomination and election to the presidency and that further the jurisdiction of the Kenyan courts and ICC was concurrent and with the ICC case proceeding only the ICC could bar the indictees from running for office.

As an American rather than Kenyan lawyer, and having not read the opinion, I don’t want to go too far into the details here, but I would note that (1) Ruto as opposed to Uhuru is no longer running for president, so the practical question now for his eligibility is distinguishable; (2) the High Court has original jurisdiction to interpret the provisions of the constitution, which seems to me to clearly be the issue here–as opposed to a more ordinary nomination or election challenge which would seem to me to be a more plain way to interpret the various constitutional provisions as a whole.

Here is a long quote from the Daily Nation story “Jubilee, Cord plaud ruling on eligibility case”:

Mr Odinga on his part said he respected the ruling saying that the court had held that in matters relating to the presidential election, the Supreme Court had ‘exclusive and original jurisdiction.’

“I have repeatedly said that my main competitor should have the opportunity to face me in a free and fair election whose outcome is determined by the people of Kenya,” said Mr. Odinga upon hearing of the Court’s decision.

But Restore and Build Kenya (RBK) presidential candidate Prof James Ole Kiyiapi accused the judges of failing to give Kenyans directions on matters of integrity.

“By declaring that they lack jurisdiction, Kenyan courts have failed to give the country direction on matters of integrity as outlined in chapter six of the constitution,” he stated.

The five High court judges – Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi – dismissed a petition filed by civil society groups challenging Mr Kenyatta and Mr Ruto;s suitability to run for the presidency and deputy presidency as they face serious crimes at the International Criminal Court (ICC).

The Judges ruled that despite the serious nature of the crimes facing Mr Kenyatta and Mr Ruto at the ICC, they are still presumed innocent until the contrary happens.

“It is common knowledge the two have been indicted but since Kenyan courts and the ICC are of concurrent jurisdiction, we cannot adjudicate over the same matter. Only the ICC can bar them to run for public office,” ruled the judges.

They ruled that the High Court had no jurisdiction to hear any petition relating to presidential candidates’ nomination.

So I tend to agree with Prof. Ole Kiyiapi that the High Court has ducked the issue and left a real lack of clarity as to the meaning of the constitution.  The problem is appeals and further proceedings are now unlikely to have time to be resolved before March 4.

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Kenya’s National Council of Churches (NCCK) sticks up for EU envoys; TJRC slammed; and an optimistic view for March 4

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The Star: “NCCK Warns Uhuru, Ruto over the Hague”:

“It will not be easy running a government while away as compared to from State House, but we ask Kenyans to exercise their discretion and vote as they want,” said NCCK Secretary General Rev Canon Peter Karanja yesterday after a two-day meeting at the Jumuia Conference and Retreat Centre in Limuru.

The High Court is due to rule tomorrow if Uhuru and Ruto are eligible to contest the presidency on grounds of integrity. “We ask for the law to be followed as we await the court ruling on Friday,” he said.

The press conference was attended by the NCCK chairperson Rev Canon Rosemary Mbogoh, deputy secretary Oliver Kisaka and Zion Harvest Mission Bishop Nicolas Oloo.

The council condemned the recent criticism of diplomats who stated last week that there will be “consequences” if Kenyans elect Uhuru and Ruto as president and deputy president.

“NCCK appreciates the interests of the foreign missions, European Union and African Union, because they helped us when the country went haywire and it is not fair to ridicule them,” he said.

The NCCK statement warned against tribal balkanization, called for more voter education by the IEBC, urged politicians to focus on issues, and asked President Kibaki to gazette the new National Land Commission.

CapitalFM: “KNHCR slams Truth Commission as Sham”.  The official Kenya National Human Rights Commission denounced the failure of the Truth and Reconciliation Commission established as part of the settlement following 2008’s post-election violence to produce and release a report ahead of the March 4 election.  The report was due by 2011.

Wycliffe Muga’s column in The Star this week, “Why There Will be No Violence,” explains his optimism:

. . . .

Actually, I am pretty sure that it won’t happen again. This election is going to be totally different from the 2007 one in three crucial respects:

First, we have an electoral body which only came into being through a process involving a broad consensus. Thus the IEBC, despite all its organisational weaknesses, is thus totally unlike the old ECK which President Kibaki openly stuffed with his cronies just before the election.

Then we have a new judiciary, the members of which have been subjected to public vetting, often of a very humiliating kind. And although there are those among us who still regard the Chief Justice Willy Mutunga as an ear-stud-wearing poseur, who has yet to prove his mettle, nonetheless no loser in any election can convincingly argue that “there is no point” in seeking justice from this judiciary.

Finally, we now have the ICC entrenched in our national life in a way which was inconceivable before the post-election violence came upon us. Those of us who knew anything of the ICC prior to this, tended to think that it was set up to try Serb militia chiefs; Congolese and Liberian warlords; and the likes of Joseph Kony.

Now we know better. And, more significantly, our top politicians know better. They know that the moment they send out any street gangs or private militias to do their dirty work, they have effectively supplied the ICC with the witnesses who will one day – from the safety of Europe – turn up in fine suits to offer evidence against them.

. . . .

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A few thoughts on Kenya’s presidential debate

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Even though I’m committed to not attempting to “cover” the Kenyan presidential campaign remotely, yesterday’s debate was one of those big moments in various respects that begs some comment from anyone writing about Kenyan politics and governance.

As far as the election itself, I don’t expect a major impact from the debate or anything specific said. Most voters have made up their minds during the course of the two and a half years that the campaign has been the primary focus of Kenya’s pols. The biggest election variable I would expect would be turnout and neither of the two contenders who could actually win at the end of the day stumbled badly enough or scored enough points in this debate to have a dramatic effect.

Several things stand out for me, however. First is national pride. There is a sense of “joining the big leagues” and capturing an international stage as a modern democracy that Kenyans take pride in here. Sports has been the most similar national rallying point otherwise, and the London Olympics was a disappointment so it is good to see Kenyans have a point of positive recognition as Kenyans. Unfortunately, it comes so late in the campaign that the opportunity for this positive spirit to make a major difference in the preparation for voting and the more general groundwork for the election is limited. Tensions are already high because the realization is sinking in that the election is a big challenge and there will be some problems.

From talking to friends in Kenya and following things I do believe that there is some real value to the determination of many Kenyans to try to prevent the country from being perceived to make a negative spectacle of itself through violence and it makes sense to me to hope for some incremental benefit to this sort of positive pre-election publicity. Nonetheless, the overall amount of election-connected violence in the year before the vote was lower in 2007 in some respects, and people voted very peacefully and in large numbers. When violence occurred after the vote, the vast majority of Kenyans, especially those who actually voted, did not participate. So I don’t think you can measure the risk of violence by the overall sentiments of the population. Energy is much more wisely spent on preparation than prognostication.

A related point to me is that this debate simply shows the world the level of technological and economic development that exits in Nairobi, particularly in the media. The country was very much ready for this in 2007, and in some ways it seems more surprising that this didn’t happen in 2007 than that it did in 2013. More than anything it reflects, to me, the different dynamics of not having an incumbent seeking or planning to stay in office.

The second major impression for me was how the debate showed the disfunction of Kenya’s political parties at a national level. Without established major parties of some coherence other than as platforms for individuals, we end up with six candidates, then eight by court order at the last minute, and almost all the post-debate discussion centered on the contest for power among the individuals or the event of having the debate itself, rather than on anything of real substance about what one candidate believably could accomplish versus another. Congratulations are due more to Kenya’s media than to the political process or the candidates or parties it seems to me.

Some of the other things commented on widely were less significant to me, perhaps because my expectations of what could be possible in Kenya are higher. Martha Karua on stage was not a big moment in my book. She will rank significantly less of a factor in 2013 than Charity Ngilu did in 1997. Karua’s big moment in national leadership was her role as Kibaki’s lion(ess) facing off with Ruto at the Kenyatta International Conference Center December 28-30, 2007, and facing off with both the ODM side and Kofi Annan in the (generally unsuccessful) mediation afterwards prior to the February 28 post-election settlement signed by Kibaki and Raila. She is a strong capable female lawyer, but she doesn’t have an obvious constituency as a candidate for president of Kenya at this point and I don’t see her presence at the debate or her fortunes in this election as a proxy for the general status of women in politics in Kenya.

More striking is the idea of someone facing ICC trial for “crimes against humanity” this spring on stage on an equal footing and an understood stature as one of the two candidates who could become president. That to me is the greatest novelty of this debate.

[Update: See “What we learned from Kenya’s first ever televised presidential debate” at Africa is a County, especially for a fun list of tweets from watching the debate in livestream.]

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More concerns about Kenya’s readiness for elections

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The Standard this afternoon: Nation Dialogue report questions readiness for credible election.

The full report from South Consulting for the team led by Kofi Annan is here.Among the conclusions:

*The IEBC is also highly rated by Kenyans. Over 90 per cent of respondents said they have confidence in the IEBC, and a similar number believe that the IEBC is independent enough to conduct the next elections. However, there are concerns that the IEBC has been inconsistent with deadlines. While the eventual levels of registration achieved are respectable by any standards, the Commission had to lower its targets and expectations on voter registration to what was achievable. Furthermore, the requisite managerial capacity of the IEBC to conduct elections is yet to be properly tested. Elections comprise several tasks, all rolled into one major task, and carried out in a few days. On account of this, the Commission should carefully test and review its systems and address any weaknesses before the actual date of the election. This is important to ensure there are no feelings of false security.

*Confidence in the police and in political parties remains relatively low compared to the Judiciary and the IEBC. Although public confidence in the police and political parties is relatively low, the appointment to of an Inspector General of Police alongside the promise to undertake fundamental reforms is likely to draw public trust. Gaining this trust is critical, given the poor level of preparedness that the police have shown in halting the violence taking place in some parts of the country.

*Political parties continue in their old ways; some are allegedly recruiting members through fraud. Parties are still tied to individuals who founded them, and some are still based on ethnic identities and loyalties. As a result of this party primaries conducted in January failed to demonstrate any clear break with the past. The behaviour of political parties has detracted from requirements of the Political Parties Act, 2011, and the Elections Act, 2011, which legislators have mutilated or watered down to serve their political survival interests.

*Party hopping, formation of alliances by elites who do not consult members, and founding parties on ethno-regional platforms is happening in spite of the law and the new Constitution. Unfortunately, responsible public officials are yet to apply sanctions on political parties and the key leaders. Without injurious consequences for their actions, politicians will continue ignoring the rule of law and by that weaken the foundation of a credible election.

Meanwhile, The Nation reports on a dispute between the new Inspector General of the Police and the chair of the National Police Service Commission which resulted in intervention by the Permanent Secretary in the Office of the President and comment from the Independent Police Oversight Authority.

I am working on a more detailed discussion of the problems with the readiness of the Kenya Police Service where reforms have just started to scratch the surface due to delayed implementation of the mandates that were called for by the new constitution. In the meantime, here is the link to the full report released by Amnesty International on January 30 entitled “Kenya Police Reform: A Drop in the Ocean.”

President Obama releases message to Kenyans on election

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President Obama’s Message to the People of Kenya
February 5, 2013

Habari yako. Over the years, I have been greatly moved by the warmth
and spirit – the strength and resolve – of the Kenyan people. And I’ve
been grateful for my connection to Kenya, and the way you’ve welcomed
me and my family to your beautiful country – from my father’s village
in Alego, to bustling Nairobi.

In my visits, I’ve seen your progress. Kenya has lifted people from
poverty, built an emerging democracy and civil society, and sustained
a spirit of hope in the face of great difficulty. After the turmoil of
five years ago, you’ve worked to rebuild communities, reform
institutions and pass a new constitution.

Now, Kenya must take the next step in March, with the first national
elections under your new constitution.

We all know what makes for successful elections. Kenya must reject
intimidation and violence, and allow a free and fair vote. Kenyans
must resolve disputes in the courts, not in the streets. Above all,
the people of Kenya must come together, before and after the election,
to carry on the work of building your country.

The choice of who will lead Kenya is up to the Kenyan people. The
United States does not endorse any candidate for office, but we do
support an election that is peaceful and reflects the will of the
people.

This election can be another milestone toward a truly democratic Kenya
defined by the rule of law and strong institutions. If you take that
step, and reject a path of violence and division, then Kenya can move
forward towards prosperity and opportunity that unleashes the
extraordinary talents of your people – especially young people. If you
continue to move forward, you can build a just Kenya that rejects
corruption, and respects the rights and dignity of all Kenyans.

This is a moment for the people of Kenya to come together, instead of
tearing apart. If you do, you can show the world that you are not just
a member of a tribe or ethnic group, but citizens of a great and proud
nation. I can’t imagine a better way to mark the 50th anniversary of
Kenyan independence. And I say to all of you who are willing to walk
this path of progress-you will continue to have a strong friend and
partner in the United States of America. Kwaheri

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How is IGAD’s “diplomatic observation” regarding Kenya’s election process helpful?

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Africa Review reports on the statement of the Inter-Governmental Authority on Development (IGAD) from this week’s visit to Nairobi by executive secretary Mahboub Maalim (himself a Kenyan) and others from the Addis headquarters under the headline “IGAD confident of peaceful Kenya election”:

In his statement, Mr Maalim said: “Igad has come to the conclusion that Kenya’s election is not an event. It is a process and that March 4th is not the end; it is the beginning of a process that could last till June 2013. Kenyans must therefore brace themselves for the long haul.”

Mr Maalim said the Independent Electoral and Boundaries Commission (IEBC) and the judiciary are crucial for the success of the polls.

“The efficiency of the IEBC during the voter registration process must be lauded. We expect that the same efficiency will apply to the March 4 poll. This is critical if Kenya is to avoid petitions arising from IEBC system failure. The efficiency and believability of the Supreme Court in dealing with the presidential election petitions is also critical. This will determine whether or not the transition is successful,” the Igad executive secretary said.

He said IEBC should be encouraged to conduct a systems dry-run with peer reviewers to seal any loopholes that would affect its efficiency.

Dr Kimani said the recent party nominations in Kenya were inclusive, open and transparent and that it was what the rest of the region had expected.

Igad brings together six countries in the Horn of Africa – Djibouti, Ethiopia, Kenya, Somalia, Sudan and Uganda – for development and drought control in their region

“Party nominations were inclusive, open and transparent”. Wow, that is certainly a unique perspective that contradicts the reporting in the Kenyan and international press, the reporting of Kenyan civil society umbrella KPTJ, and, for example, the reporting of the Center for Multi-Party Democracy-Kenya which is a well established and leading presence in Nairobi on these matters. So who is right here? Might it be relevant that IGAD is an organization of governments that are all far more “challenged” in terms of democratic practices in general, and elections specifically, than even Kenya in the wake of power-sharing and the debacle of 2007, along with the Government of Kenya itself?

I am all for whomever exhorting peace, although I am substantially skeptical that official pronouncements of this type have actual impact on ultimate behavior. Likewise, I am all for encouragement, hope and reasoned, well-grounded optimism in the context of pushing for the best election possible from where things really stand today. But this type of statement about the primaries is a “diplomatic” position rather than an observation or representation of fact. It undermines the credibility of whatever else is said in the same statement as being connected to the facts. At best it is unhelpful–it might be dangerous.