Yearly Archives: 2016

Are there some limits to impunity for killings in Kenya?

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No doubt anyone reading this blog will have read of the abduction and execution-style murders of Willie Kimani, Josephat Mwenda, and Joseph Muiruri.

If you haven’t read it, here is Jeffrey Gettleman’s account in the New York Times, “Three Kenyans last seen at police station found dead“.

As expendible as the lives of ordinary Kenyan citizens have always proven to be when they inconvenience or otherwise run afoul of the various state security forces, there are categories of people that are presumably understood to be off limits.

Thus the heightened shock and outrage when Kimani as a veteran young rights and justice lawyer with the respected American-based International Justice Mission is found murdered with his client and their taxi driver after being waylaid in returning from a court hearing.

Murder cases in which powerful people associated with state forces are obvious suspects are ordinarily “unsolved” and forgotten in various lengths of time depending on the prominence of the victim.  There is such a long list . . . Sometimes an unconvincing resolution is put forward processed through the system to buy time while we forget.

In this case, Kimani may have turned the tables by getting a handwritten note out of an “informal” Administrative Police holding cell to be found by a passerby–without this it seems doubtful that we would ever know that they were in AP custody between their abduction and their killing.  But we do know and are now responsible for that knowledge.

Will Kimani, Mwenda and Muiruri be forgetten after due processing of outrage, or will Kimani’s handwritten “brief” be a turning point for justice in Kenya?  Maybe this will be a time when there is no hiding and no excuses are accepted; I think IJM is serious and committed and this case has resonance across the broad community of those who dream of a more just Kenya.  No time like the present.

Great Kenya reading while we are waiting for politicians to do the right thing

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The tribalization of Kenyan politics has been unusually opened up for all to hear and see of late, as here in the US and in the UK we experience new traumas inflicted by individuals seemingly acting out of some overtorqued ideological angst.

At least there are no excuses for any further hate speech by anyone as we are all confronted with the stakes.

So, in the spirit of keeping calm and carrying on with learning, sharing and discussing, I commend to you Oowah’s new work-in-progress curation of “Roughly 100 Fantastic Pieces of Kenyan Journalism.”

A simple question: is the Obama Administration in favor of or opposed to corruption at Kenya’s IEBC?

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You can still argue this either way, but time is getting away from us.

If you want to argue the “opposed” side you have to extrapolate from generalities and broad high-minded notional statements (and American laws we don’t necessarily talk about).  We must be against corruption in the IEBC–because we support free and fair elections always everywhere and likewise we are against corruption in Africa generally.  At the national level we are so committed to our broad anti-corruption values as to sign bilateral U.S.-Kenya agreements and form working groups with our partners in the Uhuru Kenyatta/William Ruto administration to “help” them in their “war” on corruption.

On the other hand, if you want to argue the “in favor” side you get to take the case down to the brass tacks of the specific facts of Kenyan elections and the exercise of state power, the ECK, the IIEC, the IEBC, specific USAID programs including “our” heavy investment in selling Issack Hassan (a bit like our investment in Kivuitu before him, but more assertive), the Kenyan Supreme Court’s directive on procurement corruption of March 2013, the successful Chickengate prosecutions of British bribe payers to IIEC officials “mentioning” Hassan himself, opening up a whole different and pre-existing area of corruption separate from the demonstrably irregular purchases of failed technology–and the thundering silence of the United States on these matters.

You can also point out how much worse corruption has gotten in Kenya since Kenyatta succeeded Kibaki in power.  And that as such, “partnering” with Kenyatta for a “war” that no one seriously believes he himself wishes to fight might look like “eyewash” for mutual political cover instead of a substantive effort at reform?

Yes, the U.S. Embassy did recently release a joint statement with other Western donors/underwriters of the elections noting the fact of the Kenyan publics’ loss of confidence in the IEBC and supporting “dialogue”.  I expressed my appreciation for this in a previous post. (I would also point out that “dialogue” between Jubilee and CORD is more likely to be about the interests of the politicians than the integrity of the process and voters conceptually; CORD as well as Jubilee made mistakes on the IEBC in 2013).

What my government failed to do was actually speak up about the corruption in the Kenyan electoral management body, each iteration of which “we” have helped pay for since 2002.  Likewise, my government wasn’t willing to speak up for “dialogue” until opposition supporters were willing to get shot down and beaten up by the police to make the point.  Arguably the associated publicity in the international media is bad for “confidence” even though the police brutality was wholy and completely predictable (and as I keep noting, “we” have been spending money on “training” the Kenyan police since 1977!).

Now that Kenyatta and Ruto have called our bluff on “dialogue” and the protests against the IEBC corruption and the responsive police shootings have resumed, this simple question of where my government under President Obama stands, in favor or opposed to corruption at the IEBC, begs for a clear answer.

Maybe we already have it–but I hope not.  I am patriotic enough as an American to be disturbed and disappointed when”we” act in ways that contradict our common values–and to be optimistic, with Churchill, of our proclivity to come around to the right thing after stumbling through alternatives.

The situation is not likely to get better by itself.  I see it as a personal test of character for President Obama.  

On the 2007 Kenyan election disaster, where I found myself accidently embroiled in the policy fiasco, I have been able to allow myself to hope that the key U.S. decisions may not have risen to the attention of President Bush himself (however much he liked to call himself “the decider”) until it was too late in the sense that the election was already both corrupted and observed by Kenyans themselves to be corrupted (in spite of the best effort of some American officials to sweep the corruption under the rug) and people being killed accordingly.  President  Obama, on the other hand, even though I’ve never seen him as so much “into” Kenya per se, has more personal background with these specific problems than the key policy people under him.  The buck unavoidably stops with the President this time.

Trying to duck the basic question to leave the challenge to a new President is a singularly bad idea, and in fact is an indirect but clear answer that we favor rather than oppose the existing corruption levels as election preparation and protest and violent suppression proceed.  

Who would expect the team of Trump, Manafort and Stone–led by the Birther-in-Chief, with the direct personal lineage to Moi and KANU’92, and thus UhuRuto–to stand up for IEBC reform?  Likewise, who would expect Mrs. Clinton to stand up to Tony Podesta as Uhuru’s latest lobbyist in Washington?  If President Obama doesn’t act soon he will have spoken conclusively to say that yes, on balance, his Administration is more supportive of than opposed to the corruption at the IEBC.

I think there is a true humanitarian as well as moral purpose to be served by going ahead and speaking clearly rather than answering by silence.  Silence can leave false hope.  Kenyans are certainly not counting on us.  They aren’t fools and they know how and why we supported the first Kenyatta and Moi.  But we are their favorite foreign power just as they are our favorite African country for a variety of purposes.  We do a lot of things for Kenyans with our tax dollars, like pay for AIDS medicines, since their own government prefers other priorities.  Kenyans voted overwhelmingly for the new constitution that we supported back during the second Kibaki term and the first Obama term, so our interests can align and we can be reformist when we are willing.  Being clear about our intentions is the least we should do.  

No incumbent Kenyan president has ever left office through an election or failed to be re-elected when he ran.  Kenyans know that Kenyatta has the power to stay in office irrespective of any vote if he chooses to; they also know his potential willingness to be the first might depend on whether the IEBC is by next year at least potentially open to a vote tally that goes against the President and how the U.S. and its allies might react to varying further levels of use of force on his behalf.  If we are at peace with continuing to underwrite an IEBC that has been caught being corrupt, aside from failing at its most basic task of delivering an open vote tally in 2013, then we should simply tell Kenyans now so they can know that they are on their own and weigh the risks accordingly.

It took a village to get Secretary Clinton’s public records–but the lack of a culture of legal compliance within the State Dept saddens me 

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The release this week of the report by the Office of the Inspector General for the State Department regarding Email Records Management at the Office of the Secretary debunks for anyone who did not have enough background to know better the various arguments that Secretary Clinton’s use of a private email system from a server in her home in New York was remotely plausibly compliant with public records requirements applicable to all public business in the State Department.

As a State Department public records requestor for the material involving my work in Kenya, it is certainly dispiriting to see how these obligations have been addressed.

Kudos to the Office of the Inspector General of the State Department for solid and challenging work in vindicating the public interest by investigating and reporting to the rest of our government and the public regarding failures of senior leadership at the State Department to adhere to applicable standards for public records.  Thanks to private litigants, the courts and the OIG, we can say that in some senses “the system worked” and we are getting much of the information that we are entitled to as Americans about the work being done in our name.

For years the crucial State OIG sat vacant, and when I submitted my “hotline” complaint to the controversial Acting OIG early in the Obama Administration about issues related to interference with democracy assistance agreements to support the failed Kenyan election, the complaint was shunted to the State Department’s Africa Bureau itself without any protection for me as a reporting source or any apparent investigation.  So this new investigation and report shows progress.

Now, however, there needs to be some serious soul searching within the State Department as to why so many people ducked out, took a pass or actively facilitated an “opt out” by “the corner office” of clear requirements regarding the records of how the public’s business was being conducted.

And why it has taken so long, so much public expense, and so much outside legal intervention to get to the public basic facts of how the State Department operated throughout the last administration.

The State Department has been America’s most prestigious employer.  This is embarassing and needs to be fixed.

It is all made worse, not better, by the fact that many people like me expect to have no competitive morally acceptable alternative choice in the next American presidential race than the very same politician who put us all through all of this as Secretary of State.

Secretary Clinton, what is the problem, here?  Are your friends, advisors, subordinates afraid for some reason to help you understand and navigate your basic legal responsibilities in conducting public business?  If so, why?  Is that not something you can fix if you make it a priority?  Is it not something that is dangerous not to fix if you are to be president?

It astounds me that you seem to have thought somehow that this whole alternative record keeping system would remain secret.  That was surely magical thinking.  Aside from the law and compliance issues, how could the brilliant, accomplished and loyal people around you fail to burst that bubble?

Your country, and our democratic friends, need you to “straighten up and fly right.”

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John Wesley

An appreciation for church leaders and diplomats pushing dialogue in Kenya; next steps?

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Someday, my hope remains, administration of elections in Kenya can be a straightforward and transparent affair that is not the stuff of secrets, drama and death.  However, that is not an option on today’s menu.  Church leaders by first speaking out earlier on the need for reform of the IEBC, followed by a call for dialogue now with escalating tensions and killings by police, have served the needs of the mwananchi; the foreign envoys who have spoken collectively both publicly and presumably privately during the recent opposition demonstrations and crackdown have added muscle toward an a needed de-escalation.

Next steps: let’s lance the boil of secrecy in the administration of elections; I firmly believe that Kenyans can be trusted to know how they voted and that counting votes in Kenya does not really have to be harder than in other countries.  

Without the secrecy, the opportunity opens for the more patriotic and more humane voices within the policitical process, both within parties and in civil society, to come to the fore.

Kenya: Police brutality, like other election violence, is used to rally political support as well as to suppress opposition

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It is pollyannish not to appreciate that in a society as violent as Kenya’s, where violent crime and violent vigilanteism, along with police brutality, are features of everday life to be navigated by most Kenyans, the public reaction against or in favor of extra-legal violence by the police very much divides along political lines in accordance with who is delivering and who is receiving the violence.

It is the sort of thing that can be seen in the context of the height of the “civil rights movement” in the early 1960s in the American Deep South where I live.  Photographic and videographic images that shocked the rest of the United States and some of the rest of the world reflected police brutality under the command and for the purposes of political leaders who in some substantial part were playing for popular support among their own constituencies.  Not to argue that most white voters were necessarily in favor of particularly bad behavior by the police, but to note that popular support feeding political opportunism was part of the dynamic of repressive violence.

In this respect it has particularly saddened me to see Kenya led now by politicians who elevated themselves in the political ranks on the basis of their perceived reputations as champions of tribally organized violent politics after the failure of the 2007 vote count.

Kenya: Joint Statement from several Western diplomats

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From: Nairobi, US Embassy Press Office
Sent: Tuesday, May 24, 2016 4:59 PM

JOINT STATEMENT

Heads of Mission on Recent Violent Demonstrations in Kenya

May 24, 2016

We are deeply concerned by the escalation of violence during the demonstrations in Kenyan cities on 23 May around the future of the Independent Electoral and Boundaries Commission (IEBC). The deaths and injuries of Kenyan citizens were tragic and unnecessary. We urge the Government of Kenya to investigate the actions of the security services and to hold accountable anyone responsible for the use of excessive force. We call on all demonstrators to act peacefully.

Violence will not resolve the issues regarding the future of the IEBC or ensure the 2017 elections are free and credible. We strongly urge all Kenyans to come together to de-escalate the situation and to resolve their differences, taking every opportunity for inclusive dialogue. Kenyans should talk, and any compromise must be implemented in accord with Kenya’s Constitution and the rule of law. As partners, we stand ready to support such a dialogue in any way that is useful.

# # #

This statement has been issued by the following Heads of Mission in Kenya:

Robert F. Godec
Ambassador of the United States

Nic Hailey
High Commissioner for the United Kingdom

Jutta Frasch
Ambassador of Germany

David Angell
High Commissioner for Canada

Johan Borgstam
Ambassador of Sweden

Mette Knudsen
Ambassador of Denmark

Victor C. Rønneberg
Ambassador of Norway

John Feakes
High Commissioner for Australia

Frans Makken
Ambassador of the Netherlands

Rémi Marechaux
Ambassador of France

Roxane de Bilderling
Ambassador of Belgium

Stefano A. Dejak
Ambassador of the European Union

Pre-election violence in Kenya: here we go again?

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The pre-election killings in Kenya in 2013 were “only” 500 or so as reported at the time.  The various branches of the Kenya Police Service were more restrained than they seem to be this cycle.  In the pre-election period the IEBC was well respected and trusted, having not experienced overlapping scandals and problems that materialized later and remain outstanding.

I think it is well worth remembering that in the especially violent and destabilizing election campaign of 2007, it was the deployment of the Administrative Police (the “AP”) to the western provinces on behalf of the Kibaki re-election effort just before the vote that first openly “militarized” the campaign.  I should have been more alarmed by the “physical” rather than simply electoral implications of that move at the time.

It seems to me that the open use of armed force for political advantage by an incumbent puts the opposition in an unavoidable “fight or flight” bind to the great risk of public safety and stability, affecting the majority who are ardently supportive of neither “side” in the actual campaign.

As Americans we naturally prefer to see Africans choose the “flight” option rather than the “fight” option in most cases.  There are a variety of reasons for this, some that are morally well grounded and some that are morally questionable.  Some of it is compassion; some of it is geopolitical self interest; part of it may be unique to more individualized interests and relationships.  In European countries especially, for instance Ukraine, and in other parts of the world, we often weigh these choices differently.  

In Kenya, it would be most convenient for us, of course, if the opposition stood down, kept quiet, and trusted their government and the donors to handle election administration like in 2007 and 2013.  We know that we cannot ask that explicitly and we see that the IEBC has lost wide confidence from the public but we seem to be unwilling to directly engage in support of reform now.

I would not want to see any of my Kenyan friends or acquaintences sacrifice bodily harm for any of the Kenyan politicians I knew personally from the 2007 campaign.  In 2007 I thought that Kalonzo, Kibaki and Odinga were all three reasonably plausible and well experienced, well known choices; the election itself ought not to have been seen as particularly high risk or high reward, one way or the other, for the vast majority of Kenyans.

However, as I am deeply grateful that my ancestors made the sacrifices required for me to inherit the benefits of a democratic system here in the United States, I would be embarrased to suggest–and am always disappointed to see my government imply–that Kenyans should simply knuckle under and accept that they do not have the freedom-in-fact that their constitution says on paper, under the law, that they have achieved. 

The opposition has generated an opening for reform through the aggressive and disturbing police brutality meted out against them by the government.  There needs to be a pivot, however, to a more nuanced approach if meaningful reform is to be achieved that advances the causes of both non-violent politics and freedom.

The opposition pols seem to focus on the personalities and roles of the IEBC commissioners.  Obviously someone like Hassan who has relished an extraneous public profile as the nemesis of one potential candidate has gone beyond the point of being a trusted neutral in the future, but the delay in the election date that seems to be in the offing from yet another round of procurement “issues” can cycle tainted individuals out of office.  Reform and systemic trust is a much deeper problem than that however–and it is too important to all Kenyans and the country as a whole to be left to the competing camps of pols.

Kenyan democrats should call out the donors.  If we say we are serious about supporting dialogue why not ask us to show a bit of leadership to go with our cash underwriting?

As for me, I am waiting on the first documents from months ago from a FOIA to USAID to understand more about our spending on the IEBC procurements last time.  No sign yet that our advocacy of “open government” is penetrating our approach to democracy assistance in Kenya, but I certainly think transparency would be hugely helpful in supporting real problem solving and rebuilding trust.

Periodically, Westerners are reminded of the brutality and politicization of Kenya’s paramilitary police [updated 18 May]

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But there is not much new under the gun in Kenyatta’s Kenya.  

Three years ago, Kenya’s Supreme Court noted the appearance of corruption in Kenya’s election commission and directed investigation and possible prosecution.  No action eventually led to protests which are being brutally suppressed as we speak because the incumbent regime is apparently very afraid of reform, and is reacting just as it has in the past, and each of its predecessors has.

We have no right whatsoever to claim to be surprised.

Update 17 May: Bernard Ngatia, who was shown on video being mercilessly beaten by police, died from the injuries.  Update 18 May: Unsurprisingly there is a lot of murk now about the details of the beating victim from the video and whether he did or didn’t die. We can hope the media will clarify; the same issue of a pattern and practice of police brutality to squelch political dissent confronts us as we hope that thisvictim survived.

From today’s statement from free expression supporters Article 19:

ARTICLE 19 strongly condemns yesterday’s killing of a protestor by police, and injury of others who had joined the Coalition for Reforms and Democracy (CORD) politicians calling for the removal of the Independent Electoral and Boundaries Commission (IEBC).

ARTICLE 19 urges the police to respect Article 37 of the Constitution, which guarantees citizens the right to peacefully assemble, demonstrate, picket, and present petitions to public authorities, as well as its obligations under international human rights law.

Latest “gangland style hit” of opposing voice in Kenya reminds of neglected seventh anniversary of the murder of Oscar Foundation leaders

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Here is my remembrance post from last year for the sixth anniversary of the murders of Oscar Kingara and John Paul Oulu.  

The hit last week of Jacob Juma–a combative and controversial businessman who had taken on a public profile as a vocal critic of corruption in the Kenyatta government, and political proponent of the opposition–was clearly intended to send a chilling message.  Care was taken to make sure the killing was unambiguously seen to be an assassination even though it happened overnight without known third party witnesses.  It would have been simple to raise doubts about common robbery as a motive if the killers were worried about being caught as opposed to frightening other potential victims.

Juma had been “vocal” on  most of the hotest contemporary corruption topics, including the multi-faceted looting at the National Youth Service and the “Eurobond” debt.  The day of the hit, May 5, he was focused on the IEBC and “tweeted” a picture of former U.S. Ambassador Smith Hempstone from time of the end of the Cold War and the “second liberation” to the current ambassador.  

Kingara and Oulu will continue to be missed as Kenya is faced with yet another extrajudicial killing–the kind of thing that the Oscar Foundation investigated when its leaders where denounced by the Kenyan Government, then assassinated.