Update–May 6;

I had hoped to have these public records to inform discussions about how the United States should interact with the next Kenyan election in 2017, but if I am successful in appealing the extensive redactions perhaps it can eventually be said “better late than never”. I did get a heavily redacted copy of the Cooperative Agreement between the “Consortium for Election and Political Process Strengthening” (IFES, IRI and NDI) in April 2017, before the August vote, but the rest has come out in smaller releases in June 2018 and September 2019 with the bulk now.

This is part of what I wrote July 3, 2017, a month ahead of the annulled election:

According to the EU and Carter Center election observation missions from the 2007 and 2013 elections, perhaps one-quarter to one-third of election officials at individual polling stations did not post the Form 34 showing the presidential vote count as required, so there has been ample room in each of these elections for numbers to change between the count of ballots and sealing of the ballot box at the polling station and the reported “tally” by which the president was named in Nairobi.

Unfortunately, a fair understanding of what happened in 2013 gets worse, in that it turns out that it would surely seem that the IEBC and the donors should have know ahead of time that the electronic reporting system was not going to work–but elected to project what must have been false confidence, followed by “surprise” at its failure. The president of IFES testified to the U.S. Congress in 2013 after the election that the failure was caused by a botched procurement. What was unsaid was that this was not just a procurement failure by the IEBC which IFES would have been expected to know about from its role as “embedded” within the IEBC to provide technical assistance, but that this was apparently also a botched United States government procurement from USAID through IFES, from what I eventually learned recently from my 2015 FOIA request as discussed in my post here from April:

“Kenya Election FOIA news: [heavily redacted] Election Assistance agreement shows US paid for failed 2013 “Results Transmission System”

From the Kenya Election and Political Process Strengthening (KEPPS) Program from USAID for the last Kenyan election:

“Considering the role that results transmission played in the 2007 election violence, IFES will build on its recent work with Kenya’s results transmission system to further enhance it and ensure its sustainability. IFES will ensure this system is fully installed, tested and operational for the 2012 election. Furthermore, IFES will fund essential upgrades and adjustments to this results transmission system.” 

[p.28 of the Kenya Election and Political Process Strengthening 2012 Program – Cooperative Agreement between USAID and CEPPS (coalition of NDI, IFES and IRI)]

This USAID Agreement with the consortium of IFES, NDI and IRI makes up the first 236 pages of what I was told were approximately 1800 pages of documents and attachments provided by the USAID Mission in Kenya to the Washington FOIA office by January 2016 in response to my FOIA request of October 2015.

Unfortunately, I have still not gotten any of the rest of these pages covering contract files and correspondence, as well as USAID transactions with Smith & Ouzman, Ltd., the British firm that was convicted of bribing Kenyan election and education officials to buy their products in the infamous “Chickengate” scandal.

In spite of persistent follow up over these many months, I don’t have any further information as to whether I am likely to get more of these documents released in time for the new election (under the current Kenya Electoral Assistance Program awarded to IFES last year).

See also: Election Assistance FOIA update: disappointed to see from USAID records that IFES was supporting Kenya IEBC/Kenyatta-Ruto defense of 2013 election petition by civil society and opposition.

It is bit of a struggle for me to know what more to say about what I have learned so far about our efforts on the poorly administered and questionable 2013 election following “the debacle of 2007.”

On one hand I want to be as kind and generous to the individuals involved as possible–just as I have tried to be in dealing with the problems in 2007-08. On the other the I am seeing Kenyan voters being let down again in 2013–partly through a repeat of one of the big problems from 2007–the failure of trustworthy results transmission in spite of U.S. tax dollars being appropriated, programmed and spent to acquire the necessary systems.

Instead of finally “lancing the boil” in response to the problems in 2013, we seem to have pretended that the alleged “50.07%” received by the ICC indictees Uhuru Kenyatta and William Ruto was more credible than we should have known that it really was. We went so far as to spend at least some American tax dollars supporting the Kenyan IEBC’s litigation efforts against Kenyan civil society, and Kenyan opposition candidates, to defend their work and uphold their pronouncements, without disclosing what we knew about problematic behaviors by the IEBC involving their acquisition of the Biometric Voter Registration (BVR) system and the Electronic Voter Identification (EVID), as well as the status of the Results Transmission System that we undertook to design and build at our own expense.

The miscues from 2013 culminated in the next presidential election being annulled by Kenya’s Supreme Court after more machinations in 2017. 2013 was the election that mattered most, when there was no incumbent and the transition to what was hoped to be a better system under the new Constitution wrought from the settlement of the 2007 struggle. 2017 was never going to be a level playing field between the incumbents and opposition. In 2017 the incumbent administration attacked and disrupted the work of IFES for allegedly being too favorable to the opposition in spite of the “leeway” Kenyatta and Ruto achieved from election assistance and observation missions in taking office in 2013, so the beast was not sated.

See August 30, 2017 — Kenya’s Presidential Election in a nutshell:  1) widespread failure or non-use of purchased electonic Results Transmission System (as in 2007 and 2013); 2) lack of transparent or complete “complementary” substitute (as in 2007 and 2013).

Almost all the redaction has been done by USAID on behalf of CEPPS on the claim that much of the material submitted by IFES, NDI and most especially IRI was exempt from FOIA under 5 U.S.C. §552(b)(4) for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” This claim of commercial confidentiality exemption is made for essentially all of IRI’s quarterly reporting, most of NDI’s and large sections of IFES’s as well as significant sections of CEPPS summaries. I have not seen this type of aggressive assertion of commercial confidentiality by not-for-profit election assistance “GONGOs” (Government Organized Non-Governmental Organizations) before and I am disappointed to see this approach which I do not see as sustainable. (I made it clear that I was not interested in rates and other financial information.)

No one likes scrutiny but I would think it comes with the territory of taking public foreign assistance money to help citizens of less developed countries achieve “free, fair , transparent and peaceful elections” as the goals were described here.