About Ken

American lawyer who took leave from career and moved family to Nairobi for a year to "help" with democratic development. After stolen '07 election in Kenya and violent aftermath have tried to bring out truth of events for those who care in hope we can improve.

Must reads on Kenya

Kenya’s dangerous path toward authoritarianism by Neha Wadekar in The New Yorker.

Kenyatta’s grand plan to silence Kenya’s free press by George Ogola in African Arguments.

This is how you capture the rise of Kenya’s vibrant contemporary art scene by Abdi Latif Dahir in Quartz Africa.

Central Kenya’s Biting Poverty by Dauti Kahura in The Elephant.

Crackdown on the media in the best fashion of past despots by Macharia Gaitho in The Nation.

Uhuru must resist temptation to take Kenya back to KANU days by Rasna Warah in The Nation.

Vested interests may stifle U.S. arms embargo on South Sudan by Fred Oluoch in The East African. [“Kenya — whose Mombasa port is the main entry for arms destined for South Sudan — has remained cagey on the issue.”]

Updated Feb 7: Autocratic fangs bared in Kenya as unlawful television shutdown finishes first week; police fail to produce unlawfully detained activist

For a good overview:

Kenya’s About-Face: Fear for Democracy as Dissent is Muzzled” by Jina Moore, New York Times, Feb. 4.

Today the police failed to honor an order to produce detained opposition activist/lawyer Miguna Miguna, who has been arrested by police and held in defiance of a previous order granting bail. No charges have been initiated against him by the Office of the Director of Public Prosecution.

The Court ordered the Inspector General of the Police to appear tomorrow morning with Miguna. Raila and other NASA leaders came to Court for Miguna this afternoon.

Miguna is a firebrand “character” on the local scene in recent years who was not in NASA, running for Governor as an independent against ODM/NASA incumbent Evans Kidero and the new Jubilee Governor Sonko, gaining little support as a candidate. Post election he has associated himself with an activist wing of political opposition calling itself the “National Resistance Movement” and pressured for, publicized and participated in Raila’s (peaceful) “people’s president” swearing in ceremony. It would seem that the regime saw him as someone they could visibly and conspicuously “shut up” who did not have a political constituency or independent mass following.

Personally, I have not considered Miguna’s role one that I thought seemed constructive over the years, but he does not deserve to die for that and I am worried for him.

What does it take for people to see that Kenyatta and Ruto just are not the men whom their Western friends and publicists would try to make us believe?

Looking at Kenya over the years it is so easy to become inured to State violence used not in the interest of the nation or the citizens but of political power and self interest of those controlling the ruling party.

537th they came for Miguna Miguna, and I said nothing because I was not Miguna Miguna?

UPDATE: Later Monday, KTN broadcasting was restored and while NTV remained off the public airwaves its signal was restored to cable and DSTV for those subscribers. Citizen and Kikuyu language sister station Inooro were still blocked from broadcasting. The partial restoration came just ahead on a contempt petition following the original order that broadcasts be restored secured by a public interest litigant. Citizen, unlike its rivals, went to Court itself to challenge the ban.

UPDATE:  Miguna, a Kenyan born citizen who fled to Canada as a refugee during the political persecution of the Moi days, was finally taken late at night to Jomo Kenyatta International Airport and bundled onto a plane for Amsterdam and on back to Toronto.  The police having run out of time finally after serial Court orders to produce him took him to the airport instead of the courtroom.  The authorities will have to file affidavits explaining their actions in preparation for contempt hearings.  Miguna asserts that he was physically mistreated aside from the extralegal aspects of his detention and his alleged deportation or expulsion.

Ken Opalo points out in The Standard that Interior Minister Matiangi shouldn’t have overreacted to Raila’s oath of office in first place, since “the people’s president” is not a real office and the ceremony was a political statement not a treasonable offense.  To this I would add that the State Department’s pronouncement from Washington helped fuel rather than diffuse the confrontation, in particular by decrying the ceremony as a “self-inauguration” without noting that the opposition had stepped back from a claim to an actual office (the stated goal of the opposition is take office through new elections later this year).

Challenges to the constitutional role of the Kenyan Courts by the Executive Branch did not start this week

[Update: see new editorial from the New York Times: “Kenya on the brink again.

And Gathara’s World: “Kenya’s Future Increasingly Looks Like Its Past”;

Kenya has basically regressed 50 years in the last 7 months and the 2010 constitution’s promise of a democratic renewal is fast fading. If extinguished, history suggests Kenyans may be in for decades of brutal and kleptocratic rule. It will be a steep price for the country to pay for not learning from its past.

The role of the Courts in Kenya is under most conspicuous assault with the Kenyatta government flouting orders to allow the main private television networks back on the air, and ignoring orders to release a high profile political detainee.

In fact, the decision of the Supreme Court to rule against the incumbent President to annul his re-election was unprecedented and extraordinary. It has never warranted complacency.

That one Supreme Court ruling was not a bona fide moment of “Mission Accomplished” any more than the winning of the “yes” vote backed by the United States in the 2010 referendum to approve the new constitution was “Mission Accomplished” for “the reform agenda” that we talked about back in those first years of this decade.

Kenyans will remember the beginning of the Obama Administration when Ambassador Ranneberger was a born-again reformer after getting caught out selling Kenyans on accepting the ECK’s alleged “results” as announced (and subsequently disowned) by Samuel Kivuitu in December 2007. As I learned through the Freedom of Information Act later, Ranneberger had informed Washington in his pre-election cables that the Kenyan courts at that time were not credible.

See quotes from Ranneberger’s cable of December 24, 2007 from my post “Lessons from the 2007 Elections and the new FOIA cables–part two“:

There is no credible mechanism to challenge the results, hence likely recourse to the streets if the result is questionable.  The courts are both inefficient and corrupt.

(For my summary of the 2007 election, see The Debacle of 2007: How Kenyan Politics Was Frozen and an Election Stolen With US Connivance” in The Elephant from June.)

After those December 30, 2007 announced “results” were questioned by other observers and not accepted we withdrew our pre-mature congratulations to Kibaki and shifted to support “power sharing.” We helped support negotiations that “settled” the violence among the pols and created openings for ODM politicians within Kibaki’s second administration, along with providing for the Truth, Justice and Reconciliation Commission and the revival of the stalled constitutional reform promised voters by NARC in 2002.

After that experience of 2007-08, when the absence of credible independent courts was so sorely felt, the court system was a recognized need for the new constitution.

The new constitution eventually passed in the 2010 referendum against a spirited campaign led by William Ruto created a new Supreme Court and spurred new hope for a cleaner, stronger judiciary that could perhaps stand up to the cartels and politicians and maybe even a president.

But the “reform agenda” held our focus for only so long, and I don’t think we converted many unfaithful politicians. I never got the impression we were too enthused about the TJRC process, but one way or the other we certainly seem to have completely forgotten about that part of the 2008 National Accord since the Uhuruto regime came in power and made it clear that nothing is to come of the (expurgated) gathered evidence of the wrongs of recent decades.

From the “reform agenda” days, which corrupt Kenyan politician ever got prosecuted by the Kenyan authorities based on Ranneberger’s dossiers? Which corrupt institutions were liquidated to benefit the public? Impunity has proved untouchable and, thus corruption has only gotten worse. The new innovation is that if you get caught and pushed out of the Executive Branch you might get lucky enough to be sponsored in a governor’s race. The dossiers pile up and up.

Meanwhile, the notion of an independent judiciary in Kenya is a fledgling work-in-process. Since September 1 signs have been more negative than positive. Starting with the infamous wakora slurs from the President himself against the Judges, culminating with the inability of the Supreme Court to muster a quorum to hear the challenge to the IEBC holding the “fresh election” on October 26 (after the shooting of the Deputy Chief Justice’s driver in her car), there are questions whether September 1 was a “one off” event. Not one the ruling party intends to see metastasize into an inflection point toward reform and away from Kenya’s historical norms under “Kenyatta and Moi’s KANU especially–the “home” of Uhuru Kenyatta and William Ruto together for most of their years.

Were Americans right to be so fearful of Odinga’s “People’s President” swearing in?

[Update Feb. 2: Here is a good overview from Martina Stevis-Gridnef in the Wall Street Journal, Kenya Crackdown on Media, Opposition Deepens“; Fr. Gabriel Dolan explains how the Kenyatta government has popularized the “National Resistance Movement by banning it, with good historical context.]

Since I elected to stay away from the 2017 election in Kenya myself, I have tried to avoid offering a lot of derivative commentary from afar, but have continued to be interested and concerned with how my American government representatives approach this on behalf of the American people.

Privately, I shared the worry that perhaps Raila was not being a good steward of the lives of his supporters given the risk of threatened action by the Kenyan governments’ security forces (and my inability to decipher what he was really aiming to accomplish).

Nonetheless, I also decided that it was not my place to lecture for several reasons. First, any Kenyan who would be deciding to attend or not attend the rally knew full well and far better than I the risks of running afoul of the GSU (General Service Unit, a paramilitary wing of the police, known for use for high profile political missions, such as sealing off Uhuru Park in the weeks after the 2007 election to prevent opposition rallies) as or other force at the disposal of the “Commander in Chief President”.

Second, we ourselves have passed on doing our part to forthrightly deal with the detritus of the stolen 2007 election and the substandard and opaque election process that put the current Uhuruto regime in power in 2013.

Third, in this election cycle we did not give visible public support to reasonable reforms of the IEBC process. I am not willing to be too critical from afar without knowing more (although I don’t know more because our approach is intentionally more opaque than I think is appropriate or prudent) but in watching as an American back home we certainly gave the impression over the last couple of years that while we wanted things to go smoothly and would support negotiation of the disputes surrounding the IEBC in areas where they were pushed to the forefront by the opposition, we remained in the mode of supporting the old “Chickengate” IEBC team and staff, even while the investigation of procurement fraud directed by the April 2013 Supreme Court ruling never happened. Even when the British secured criminal convictions for the Chickengate bribes and paid money over to the Government of Kenya, we were mute as Kenyans enjoyed the customary impunity for corruption–and when Uhuru used the funds to do a “photo op” for the purchase of ambulances as if it was a charitable donation.

We allowed the incumbent administration to attack and potentially interfere with our assistance to the IEBC through IFES in the critical months before the election (see “The hardest job in Kenya . . .”) without obvious penalty, and stayed silent on reforms called for by the EU Election Observation Mission and others–aside from the opposition–in the wake of the Supreme Court’s September 1 ruling striking the presidential election of August 8 because of the IEBC deficiencies.

As it turned out the incumbent administration acted extra-legally to shut down private broadcasters (except the President’s own) but had the security forces pull back and did not initiate the feared violence. If we had any influence on that decision then I am pleased that our long years of support to Kenya’s various police and security services and governments of the day may have borne some positive fruit in that instance.

As far as the notion that Raila would be likely to unilaterally instigate violence in this situation, people in the State Department would do well to remember the analysis of Ranneberger’s own staff pre-election in 2007 that while there was hate speech on both sides the largest share was directed against Raila rather than on behalf of his candidacy or the opposition.

Invoking the so-called “ooga booga factor” to scare Westerners about Raila has been more than a cottage industry in Kenya (and in London and Washington PR shops) along side the ethnic hate speech to rally other ethnic groups against him in Kenya. And Raila is unavoidably controversial in some respects and gives his critics ammunition. But at present Raila is in a relatively physically powerless position in opposition; the Government of Kenya security forces are in the hands of “Uhuruto”, controversially elected in the first place as a “coalition of the killing” from the violence that was taking place exactly ten years ago.

In this context the “black propaganda” operation on behalf of the Uhuruto re-election campaign through Harris Media of Texas, United States, was particularly pernicious and even worse than 2007.

Let’s remember that then-Assistant Secretary of State Jendayi Frazer herself insisted that what was being done through the Kalenjin militias in the Rift Valley in early 2008 was “ethnic cleansing” and we all know the “revenge” attacks through the Mungiki against especially Luo and Luhya who had the misfortune of living and working in Naivasha and Nakuru were horrific. And that the largest share of the killing was done by the police and largest number of killed identified by ethnicity Luo per the Waki Commission. The ICC Prosecutor’s Office may have run a sloppy legal operation, but did they really get “the wrong guys” factually in the six indictments? Will O.J. someday find the real killers? (Do Raila and Kibaki–Commander in Chief then–and many other politicians also bear some real moral responsibility, too–surely so; does Kalonzo Musyoka? I personally would not vote for either ticket if they were running in my country, but they weren’t, and left us with our own problems.)

Fair minded representatives of the United States in current circumstances have to recognize that the threat of violence on behalf of an incumbent “Uhuruto” regime in full control of all military, paramilitary and other police forces is much greater than that presented by an opposition rally or ceremony.

Old Party Office in Kibera

Kenya elections: State Dept declassifies memo of Jan 3, 2008 telecon between Secretary Rice and H.R. Javier Solana on “power sharing”

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I originally sought this document in a separate FOIA in 2009 because it seemed to me in Nairobi in real time as Chief of Party for the USAID-funded exit poll and election observation programs that this Rice/Solana conversation marked a key  point for Kibaki in locking down a second term. Up until that time, as best I could tell, the EU supported remediation of the bad election (stolen through bribery as I was told by a diplomatic source later that January during the continued violence as I have written) whereas US Ambassador Ranneberger moved to support “power sharing” as soon as the initial U.S. congratulations to Kibaki were withdrawn.  That same day the Kenyan Attorney General called for an investigation of the alleged election results (such an investigation never in substance happened, although it was a key proviso of the February 2008 settlement agreement between Kibaki on behalf of PNU and Odinga on behalf of ODM and the legislation entering the deal into Kenyan law).

The document was withheld in full on national security grounds in the original 2010 FOIA response and again on appeal, then again in 2016 on a follow up Mandatory Declassification Review request after the requisite two year wait.  Today’s mail was the favorable response to my September 2016 appeal..

See from my page with a chronology of links for the election (in particular BBC’s January 3 “Tic-Toc”):

A CHRONOLOGY IN LINKS:

EA Standard–”Envoy predicts free and fair election” (and praises Kenyan administration on corruption), Dec 18 07

Daily Nation–”Local Firm Conducted Exit Poll Expected to Give Provisional Presidential Results”, Dec 28 07

Somaliland Times–”Kenya: Preliminary Findings of IRI’s International Election Observation Mission” Dec 28 ’07

IRI–“Reuters cites IRI Opinion on Kenyan election” Dec. 28 ’07 

EU Election Observation–Statement on Announcement of Presidential Results, Dec 30 ’07

VOA–”US Congratulates Kenya Presidential Vote Winner, EU Monitors Question Results” Dec 30, ’07

Global Voices–“Is Kenya turning into a police state?” Dec 31 07

Telegraph-“Kenya could be facing it’s greatest crisis” Dec 31 07

VOA–”Britain Expresses Concern About Kenyan Election Results” Dec 31 07

EU Election Observation–Preliminary Statement, Jan 1 08

NY Times–”Fighting Intensifies After Election in Kenya” Jan 1, ’08

Telegraph–EU calls for inquiry into Kenya election Jan 1 ’08

Slate–”What’s Really Going on in Kenya?” Jan 2, ’08

USAToday- “Kenyan official calls for vote probe” Jan 3, ’08

BBC- “At a glance: Kenya unrest” Jan 3, ’08

CBS/National Review Online–”Inside Kenya’s Clumsily Rigged Election” Jan 4, ’08

IFES–“Kenya at the crossroads” Jan 4, ’08

Candy and Communists for Kenya: as Kenyatta’s Jubilee “deepens” partnership with Communist Party of China, Mars’ Wrigley East Africa to sell “affordable Skittles”

“Affordable Skittlesfor the “kadogo market” may not quite match Kentucky Fried Chicken, but perhaps the biggest news since Burger King arrived in Nairobi?

And yes that event at State House celebrating the deeping partnership of Jubilee and the Communist Party of China yesterday has turned heads. I think a lot of Americans had not been aware of this relationship. Obviously it makes sense in carrying forward the spirit of KANU of Kenyatta and Moi and their understudies. Kenya always labeled itself a “democracy” whether one party rule was formal or informal. China, of course, is also democratic with numerous parties other than the Communist Party.

“Today we agreed to deepen our relationship with the The Communist Party of China in order to enhance Jubilee party management and democracy.” The Presidency

At a micro level I would take umbrage at the blatant use of State resources for Jubilee Party business, but since the Party was launched at State House in the first place and the donors supporting “Western-style” democracy and the “rule of law” and such were not willing to say “boo”–nor the IEBC nor the Office of the Registrar of Political Parties, there is never a reason to be surprised at this point. We reap as we sow.

ICYMI: An important read from Tristan McConnell in The Atlantic: A Deadly Election Season in Kenya – The Killings Suggest a State that is More Predator than Protector.

And here is the story from Moroccan World News of how the Chinese connected the African Unions computer servers at the Addis headquarters directly to Chinese servers in Shanghai.

Who has done the best writing so far about the fake NGOs and “bots” in the Kenyan election campaign?

Asking for a friend.

Remembering Paul Muite’s open questions about the IEBC’s integrity before Kenya’s previous elections

Back in February 2013 The Africa Report ran a feature entitled “Can Kenya’s judiciary and election commission pull it off?” on readiness for the general election on that March 4. In a blog post from that April after the Supreme Court upheld the election I discussed Hon. Willie Mutunga’s “judicial philosophy” in the context of what he had had conveyed in that Africa Report just before the vote.

With this year’s Supreme Court decision annulling the August 8 presidential vote with Paul Muite, one of Kenya’s most prominent lawyers–and sometimes “Central Province” politician and official–representing the Election Commission (IEBC) I thought it was worthwhile to highlight his pre-election integrity concerns when he was not litigating:

There is, however, nervousness about how the IEBC will fare.

Led by Ahmed Issack Hassan, the IEBC has enjoyed public confidence since August 2010 when it ran the referendum on the new constitution.

It then held several by-elections with textbook efficiency.

But troubles began last year over a tender for biometric voter registration kits.

After anomalies were exposed, the government intervened and awarded the tender to France’s Safran Morpho at almost double the stipulated cost.

The delayed voter registration was com- pressed to one month instead of three.

James Oswago, the IEBC chief executive, says it is absolutely committed to transparency: “In fact, I am not aware of any public procurement officer who has referred a controversial process to the government for arbitration. I did. You have not heard anybody going to court for corruption linked to this process.”

Unlike the old Electoral Commission of Kenya, whose top officials were in the president’s gift, the IEBC has nine one-term commissioners including Oswago, who acts as secretary to the board.

Each commissioner was selected after consultations between President Kibaki and Prime Minister Odinga, the two main rivals in the 2007 election, and then vetted by parliament.

“We have in place structures that invalidate a discretionary announcement – a rigged vote. You can accuse the commission of inefficiency or of lateness and so on, but not of rigging,” Oswago says confidently.

INTEGRITY QUESTIONS

But Paul Muite, a lawyer who is contesting the presidency himself, does not share such certainty: “The IEBC is not inspiring confidence. I am not sure that they have the capacity or political will to conduct credible elections.

“There are integrity questions regarding some commissioners […] the composition of the commissioners was motivated not by merit but by the coalition government’s need for ethnic and regional balance.”

Similarly, a report by South Consulting, which has been monitoring the coalition government for the Panel of Eminent African Personalities led by former United Nations secretary general Kofi Annan, raised questions about the IEBC’s capacity.

It questioned its capacity to act decisively on electoral disputes and pointed to its inability to censure rogue parties and politicians during the chaotic party primaries in January.

In January, the IEBC vetted and registered eight presidential candidates, rejecting two on technical grounds.

Among those approved was Uhuru Kenyatta, although he was facing a local case challenging his candidature on integrity grounds.

The case is unlikely to be decided before the presidential elections.

It seems the IEBC did not want to prejudge it, so was happy to let the courts decide.

Pressure is certain to build on the new and inexperienced IEBC as elections approach and then again in likely second round elections.

The courts, determined to uphold their independence, will probably act as a buffer against violent street protests.

The police force, overstretched as it is and caught in a maelstrom of reform, resistance and warring political factions, may not.

Voters may find themselves caught between these two institutions●

Read the original article on Theafricareport.com : Can Kenya’s judiciary and electoral commission pull it off? | East & Horn Africa

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Kenya 2017 – EU Election Observation Mission releases Final Report

The Kenyan Ambassador to the EU accuses the EU EOM of violating a Memorandum of Agreement with the Government of Kenya governing its observation by releasing its Final Report this week. (I have not had a response yet from a request for a copy of the MOU from the EOM or been able to otherwise locate a copy–it is likely routine.)

The report has a fair bit of information on the immediate mechanics of voting this year, while noting that few of the recommendations of the 2013 EUEOM had been met in preparation.

Of the 22 recommendations made by the 2013 EU EOM, it appears that none of the five priority recommendations have been implemented, and only two have been fully implemented (related to a unified voter register and defining the duration of the campaign). The rest have been partially implemented, albeit minimally in some cases, or not implemented at all.

I do not have any particular comment regarding the voting itself having elected not to be there myself.

While observing that the new IEBC was appointed unduly late, in a climate of mistrust, the report does not addresses the context or even mention the “Chickengate” convictions by the Courts of EU Member the UK for bribes paid for previous IIEC/IEBC procurements, or the Government of Kenya’s failure to prosecute the recipients, for example.

I will be interested to hear more on the thoughts of others who were there.

EU Election Observation Mission 2017 Final Report