A Kenyan friend recently checked in to ask what I had written about the Kenyan election. I had to say “very little”. I have been committed to my more unique role as a witness to what went wrong in 2007-08 and tried to avoid the risk of being just another opinionated outsider missing the real conduct and motivations of the opaque competition for power through the election.
Nonetheless, I did send a private email memo to a few friends in Kenya and Washington back on May 15, 2022 (shortly before Raila and Ruto chose running mates) titled “A Few Thoughts on the Kenyan Election”:
1. First big election in Africa after the end of the Post-Cold War peace in Europe.
2. In this environment, the democratic Western players are less able to credibly claim to speak for a notional international community.
3. So on balance, not much reason to indulge Kenyatta now the way we did Kibaki in 2007. Unless we can be sure that the Kenyattas have a deal with Ruto to assure no major violence, why would we signal that we would be willing to look the other way if they steal it for Raila? Major violence would be riskier and more unpredictable now than back in 2007. On the other hand, if they do steal it, the last thing we would want to do is risk instabilty on behalf of a few votes for Wm. Ruto.
4. Obviously Obama and Trump and their administrations overestimated Uhuru for 15 years, but if we really cared about the details of Kenyan politics we would have gotten serious about injecting some competence into Kenyatta’s BBI fiasco.
5. There are still a few weeks left in a 4 1/2 year campaign so Raila could get it together, but who really thinks that’s highly likely? Under the circumstances, it isn’t that hard to see why ordinary Kenyans would be attracted to a candidate who is even more corrupt and more ruthlessly ambitious, but presents as having some basic discipline and competence, among the actual choices. Especially if you have lived through recent American elections.
6. The American humorist Will Rogers (from the era of my grandparents on the small family farm in Kansas during the Great Depression) was famous for the phrase: “I never met a man I didn’t like”. We have never met a President of Kenya we didn’t like.
Just my honest, private thoughts at the time, for what it is worth.
Daniel Arap Moi, the authoritarian strongman who had ruled for a quarter of a century, was gone, his hand-picked successor roundly defeated.
A nation rejoiced. Already one of Africa’s most stable countries, Kenya could also now claim to be among its most democratic.
Last night, Mr Kibaki was hurriedly sworn in before a few hundred loyalists at a tawdry ceremony held in the gardens of the official presidential residence.
The contrast could not have been more stark.
As he lumbered towards the podium, Kenya’s cities and towns were erupting in chaos and ethnically motivated bloodshed, a predictable response after the most dubious election since the one-party era ended in 1992.
It is no exaggeration to say that Kenya is potentially facing its most serious crisis since gaining independence from Britain in 1963.
The prospect for serious violence between the country’s two most traditionally antagonistic tribes, Mr Kibaki’s Kikuyu and the Luo, led by his challenger Raila Odinga, is worryingly high.
Luos, marginalised since independence, have reason to feel aggrieved. Thanks to an alliance that Mr Odinga built with other tribes, they felt that this was their best and possibly last chance of taking power.
The farcical nature of the vote will only heighten their disappointment. The electoral commission initially claimed that roughly a quarter of returning officers disappeared for 36 hours without announcing results and had switched off their mobile phones.
When results did finally emerge, Mr Odinga saw a one million vote lead overturned.
Opinion polls showed that the contest was always going to be close, but if the official results are correct, Kenyans voted in an inexplicably bizarre manner.
After turfing out 20 of Mr Kibaki’s cabinet ministers and reducing his party to a rump in the simultaneous parliamentary poll, they apparently voted in an entirely different manner in the presidential race.
Apart from an unusually high turn-out in some of Mr Kibaki’s strongholds (sometimes more than 100 per cent ), the president then appeared to have won many more votes in some constituencies than first reported.
If it all seems depressingly familiar, it need not have been.
Mr Kibaki had lost a lot of the enormous goodwill that he enjoyed following the 2002 election after a cabal of Kikuyu cronies was accused of corruption. He also reneged on a promise to introduce a new constitution that would have returned many of his overarching powers to parliament.
On the other hand, he allowed a free press to thrive and respected the results of a 2005 referendum that went against him. Many expected he would do the same if he lost last Thursday’s election.
Instead of setting an example to the rest of the continent, Mr Kibaki’s opponents say that he has joined the unholy pantheon of African presidents who have refused to surrender power.
If he has chosen instead to squander his country’s stability and its fragile ethnic harmony it is a tragedy not just for Kenya but for all of Africa.
The latest breakthrough is from Stephen R. Weissman in Foreign Policy this week: “Why did Washington let a stolen election stand in the Congo?“. Weissman gets significantly more detail than the previous stories have accumulated on the Catholic church organized and U.S. subsidized “parallel vote tabulation”:
This account is based primarily on 20 interviews—including 10 with U.S. officials—that were conducted on background and without attribution to promote candor. Foreign Policy offered the U.S. State Department the opportunity to comment on passages stemming from interviews with U.S. officials, but it declined.
In a Jan. 3, 2019 press statement, the State Department urged CENI to transparently count votes and “ensure” its results “correspond to results announced at each of DRC’s 75,000 polling stations.” At the same time, the department ignored the one resource that could have held the Kabila-dominated, corruption-laden CENI to account: the church’s U.S.-funded election observation project.
Weissman has delivered the type of detailed story that I had always hoped to see some enterprising journalist write about the decision to “look away” from election fraud in Kenya in 2007–in particular what I hoped theNew York Times was in the process of reporting in 2008 when I was interviewed about the “spiked” exit poll indicating an opposition win. The DRC is not a close U.S. ally and regional center for the “international community” in the same way that Kenya is, so perhaps the DRC is a more realistic venue for a tougher examination of mixed messages and mixed motives. Also, because violence did not explode in DRC in 2019 it is easier for officials involved to talk to reporters (without personal attribution) about the decision making process.
The next step for reporters who are interested would obviously be to pursue the documentary record.
Regardless, the paradigm is the same in terms of the choices between “diplomacy” and transparency in election assistance and election observation.
Kabila’s innovation was to turn directly to his Israeli surveillance and security contractors to broker the hiring of lobbyists connected to the Trump Administration, such as Robert Stryk’s Sonoran Policy Group who repped the Kenyatta-Ruto Administration in Washington during its 2017 re-election effort. Kenyatta hired Stryk through the Kenyan foreign ministry rather than through surveillance contractors. One could suggest that the use of outside-the-Beltway intermediaries raised eyebrows and ultimately loosened tongues.
You owe it to yourself to read Samaha’s whole story, but the thing that is most profoundly disappointing to me is the report that my government learned about massive corruption at the CENI in time to say something before the vote but elected not to.
This casts new color to the internal debate within the U.S. government over what to say and do, and what to disclose, when CENI subsequently announced “results” that lacked credibility.
The excuse for not speaking to government-sponsored election fraud is supposedly the fear of instability from aggrieved voters faced with intransigent incumbents—a real concern—but how can we claim to be serious about democracy support when we chose to keep quite on obviously debilitating fraud before the vote? A key question for me about the Kenyan election disaster in 2007 has always been how much we knew about Kibaki’s intentions before the election, having documented through FOIA that Ambassador Ranneberger personally witnessed the wrongful changing of tallies at the Kenyan IEBC but still encouraged Kenyans to accept the vote without disclosure.
Update: Assistant Secretary of State Tibor Nagy appears to have effectively announced the “climb down” by the State Department on supporting Tshisekedi as the de facto president at a CSIS dinner in Washington on January 30, 2019, while still asserting “In addition, we will continue to voice our disapproval of the poor implementation of a flawed electoral process, which was far below the standards of a fully democratic process. We will hold accountable those most responsible for undermining D.R.C.’s democratic processes and institutions.” Nagy celebrated a peaceful transition of power “that few thought possible”. “Ultimately, the Congolese people have the final word. After President Kabila left office, there have been no meaningful protests to the election outcome. Felix Tshisekedi has vowed to unite the country, reform the security forces and justice sector, fight corruption, and spur greater U.S. investment and it is in our interest to help him succeed.”
Under Nangaa’s leadership, CENI officials inflated by as much as $100 million the costs for the electronic voting machine contract with the intent to use surplus funds for personal enrichment, bribes, and campaign costs to fund the election campaign of Kabila’s candidate. Nangaa, with other CENI officials, awarded an election-related contract and doubled the award amount on the understanding that the winning company would award the extra funds to a DRC company controlled by CENI leadership. Nangaa approved the withdrawal of CENI operation funds for non-authorized budget items for personal use by DRC government employees. Nangaa ordered CENI employees to fabricate expense receipts to cover spending gaps resulting from CENI funds being used for personal gain. Nangaa delivered bribes to Constitutional Court justices to uphold a decision by the CENI to delay DRC’s 2016 elections.
At the time of the last election in 2011, Africa democratizers were buoyed by an understood success story in Ghana, the hope of an “Arab Spring”, the lull of violence in Iraq and more generally encouraging environment. As explained in my posts from that time, the U.S.- funded International Observation Mission (conducted by the Carter Center) found the election to fall short of adequacy by the applicable international standards and said so explicitly.
Initially standing up to Kabila over the failures of his alleged re-election and pushing for them to be addressed appeared to be U.S. policy. If so, we apparently changed our mind for some reason. Tolerating a bad election then leaves us in a more difficult position with seven years of water under that bridge. The U.S. has stepped up recently to pressure Kabila to schedule the election, allow opposition and stand down himself.
In this vein, we need to be careful, and transparent, as things proceed to continue to evaluate realistically what is feasible and where we are really able and willing to assist. In particular, the decision to initiate and fund one or more Election Observation Missions for a vote in these circumstances should involve serious soul-searching at the State Department (and/or USAID).
On Thursday 12th November at 2pm EAT, AfriCOG will be launching its latest report on state capture – Highway Robbery. Budgeting for State Capture: A case study of infrastructure spending under the Jubilee Administration.
Opening Welcome & Intro: Gladwell Otieno, AfriCOG Executive Director (Moderator)
Report Findings: David Ndii, Economist
Guest Speaker: Jerotich Seii, Energy Sector and Social Justice Activist #SwitchOffKPLC
Q&A and Discussion: Open Forum
Closing Remarks: Gladwell Otieno
Former Auditor General Edward Ouko, speaking at the launch of AfriCOG’s first “State Capture” report spoke of a phenomenon he referred to as “budgeted corruption,” through which government budgets are inflated by monies that are earmarked to be stolen. Ouko characterised the budgeting process as a “highway”, and such projects as “exit lanes”.
With the “Highway Robbery” study, we set out to test the hypothesis that the runaway corruption during the Jubilee administration is evidence of “budgeted corruption”, which is in turn a manifestation of state capture. Budgets and expenditure in three key infrastructure sectors, electricity, roads and water are examined to see the extent to which there is systematic deviation of project choice from PFM value for money norms, and whether that divergence can be construed to be “exit lanes” for budgeted corruption as postulated by the former Auditor General.
AfriCOG’s hope is that this latest study will contribute to the continuing exposure and naming of the structures and operations of state capture, which seem to obviate the conventional reform strategies that civil society has been advocating. Our aim is for citizens to understand that while democracy is the only protection against capture by special interests, at the same time, democracy is fragile, tenuous and must be defended, deepened and imbued with real meaning by a vigilant and enlightened public.
We very much look forward to your attendance. For further information, contact admin@africog.org
Kind regards, Gladwell Otieno Executive Director Africa Centre for Open Governance (AfriCOG)
Sunday saw two deaths associated with clashes allegedly between factions within the ruling Jubilee Party.
The Presidential campaign of Deputy President William Ruto did a Sunday morning church and politics foray in Murang’a in what would be seen as President Kenyatta’s backyard. See the story from The Daily Nation on arrest orders from the IG of Police and a very strong warning from the National Cohesion and Integration Commission.
Uraia- Because Kenyans Have Rights
Circumstances are disputed between the supporters of the two politicians (Incumbent President Kenyatta and Incumbent Deputy President Ruto). It appears that government security forces were active and may have helped prevent worse violence—which could be encouraging—but that is just a superficial impression on my part from early reporting.
We are only 22 months away from a constitutionally mandated August 2022 General Election and violence in the campaign has been below what one would expect as the norm in the MultiParty Era. But the air seems pregnant with possibilities for both violence instigated by campaigns and for violent state repression. A constitutional crisis is afoot from the failure of the ruling party to effectuate the constitutional mandated gender balance in Parliament.
We are almost a year past the original release of a Building Bridges Initiative report. There is no clarity on exactly how long is to be allowed on what is now “overtime” on negotiating and agreeing on concrete steps to effectuate the changes to the basic bargain of governance in Kenya. The idea is to avoid the kind of competition we are seeing in the 2022 race as it stands now.
Germany is on social media as a lead on some of the civil society and domestic observation group preparation of the type that has been a staple but the U.S. and U.K. are unusually quiet in public about election specific issues now. There has been no public break at all in the partnership between Jubilee and the increasingly repressive Chinese Communist Party. Kenyatta has just signed a big debt and infrastructure deal with France as it becomes more apparent that the Jubilee Government grossly overpaid and thus over-borrowed on the Chinese Standard Gauge Railroad deal—which remains substantially secret.
The U.S. sent diplomats to facilitate post-election negotiations in late 2017 that culminated in the March 2018 “handshake” and we gave diplomatic support and National Democratic Institute facilitation to the BBI process.
As recently as April 2019 Ambassador McCarter tweeted with a picture of a visit from IEBC Chairman Chebukati that he hoped to see a 2022 election that did not involve a dispute or litigation. Without a investment in reform, which we have not seen, that would require either (1) a landslide of the sort that we saw with NARC in 2002 that gave rise to the 2003-05 democratic interregnum or (2) a recognition and consolidation of Jubilee as KANU successor.
Great discussion w/ IEBC Chairman @WChebukati We must work together today to ensure the wananchi have the ability to elect their leaders peacefully, without intimidation & the confidence their vote was counted. No court battles, no re-dos! pic.twitter.com/nt4N5Eb7jQ
In Washington the overwhelming public messaging is complacency. Kenya is very important to us because we are there in some real magnitude compared to the rest of the region and we are there because Kenya is important to us. But it is too early to talk about governance and elections and political violence, if for no other reason than the war against al-Shabaab is still going on as it was in the run up to the 2007, 2013 and 2017 elections.
This means the duo will now have to defend themselves over the charges levelled against them. Thirty-six witnesses testified in the case.
The court however acquitted two others who had been charged alongside Oswago. The magistrate said no case has been made against Edward Kenga Karisa and Willy Gachanja Kamanga.
In 2013, Oswago and Shollei were arraigned in court charged with failing to comply with the law relating to procurement.
The two allegedly failed to ensure the changes made to the contract awarded to Face Technologies Limited by the IEBC for the supply of Electronic Voter Identification in Tender No. IEBC14/2011-2012 were approved by the IEBC tender committee.
On a different count, they were accused of using their offices to improperly confer a benefit on Face Technologies Limited by approving payment of Sh1.39 billion for the supply of EVIDs without ascertaining that devices supplied were inspected, accepted and met the technical specifications in the contract.
The articles quoted below indicate that the Ethics and Anti-Corruption Commission was already “on the case” having received information before the election about potential procurement fraud and started investigating even before the Supreme Court ordered such an investigation in its ruling upholding the IEBC’s award of the winner’s certificate to Kenyatta and Ruto.
Electoral commission officials and vendors of electronic systems used in the March 4 General Election may face criminal prosecution after the Supreme Court recommended they be investigated over the failure of the gadgets.
In its full judgment of presidential election petitions released Tuesday the six judges said there were squabbles among Independent Electoral and Boundaries Commission (IEBC) officials over the procurement leading to the failure of the electronic voter identification devices (EVID) and Result Transmission System (RTS).
“We recommend that this matter be entrusted to the relevant State agency for further investigation and possible prosecution of suspects,” the six judges led by Chief Justice Willy Mutunga, the Supreme Court President, said.
Failure of the devices was at the heart of the petitions challenging the election of Uhuru Kenyatta as Kenya’s fourth president filed by Raila Odinga, who emerged second in the election, and Africa Centre for Open Governance (Africog).
. . . .
The judges said the electronic system procurement was marked by competing interests some involving impropriety or even criminality.
“Different reasons explain this failure but, by the depositions of Dismus Ong’ondi, the failure mainly arose from the misunderstandings and squabbles among IEBC members during the procurement process,” said the judges.
The court said enough evidence was produced to show that EVID and RTS stalled and crashed.
. . . .
With the recommendation of investigation and prosecution which was bolded on page 113 page of the judgment, the Supreme Court has set the stage for the Director of Public Prosecution and the police department to swing into action.
Mr Ongo’ndi, Head of IT at the electoral agency, had cautioned the electoral commission against buying the EVIDs, saying they required more time and a parallel technology to function optimally.
In an internal memo to Deputy Commission Secretary for support services Wilson Shollei and copied to IEBC CEO James Oswago, Mr Ong’ondi said the kits tender should not be awarded because of the risk that the gadgets.
The contract was awarded to Face Technologies at a cost of Sh1.3 billion, according to Mr Oswago, who said the devices failed because of an operational challenge.
“We have nothing to hide, we are ready for any investigations and the procurement being subjected to public scrutiny,” Mr Oswago said Tuesday.
The poll books were meant to identify a voter before one could cast a ballot. They were also to verify that one was a registered voter and account for all those who voted, eliminating the risk of multiple voting, ghost voters and ballot stuffing.
Mr Oswago said the commission abandoned the transmission software developed by Next Technologies during the referendum and by elections to develop its own for the General Election at a cost of Sh40 million. That would put the blame on the transmission system failure at the door of IEBC’s IT department which is headed by Mr Ong’ondi.
The failed software was developed in partnership with International Foundation for electoral System (IFES), which also bought the servers. The mobile phones were supplied bySafaricom.
The procurement of electronic systems was marked by controversy from the word go leading to the cancellation of the tenders for the Biometric Voter Register (BVR).
Former President Mwai Kibaki and former Prime Minister intervened and the kits were eventually delivered through a Canadian government loan of Sh6 billion.
. . . .
The Elections Act sets out offences that can be committed by commission officials including “without reasonable cause does or omits to do anything in breach of his official duty”.
Such an offence attracts a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or both upon conviction.
Ethics and Anti-Corruption Commission (EACC) has begun investigation into procurement of election equipment in line with a Supreme Court recommendation.
EACC in a press statement said the preliminary investigation began after it received an intelligence report that the procurement process was not transparent and may have been flawed.
A day later, Mr Tobiko [Public Prosecution Keriako Tobiko] sent a letter to EACC instructing it to start investigations, stating the directive arose from Justice Willy Mutunga court’s suggestion.
Evidence supplied by the electoral commission showed that the failure of the Electronic Voter Identification and the Results Transmission Systems mainly arose from misunderstandings and squabbles within the commission during the procurement.
An internal memo by the commission’s head of IT warned of the risks posed by the kits.
The Treasury was forced to divert cash from other government operations to advance payment for the BVR kits and then obtain cash from the loan to replenish the IEBC account ahead of the General Election.
Failure to each pact
“The Treasury has fully done its part and it is now up to IEBC to do their work,” the brief said.
The search for cash came after failure to reach an agreement by October 15 as stipulated in the contract with the supplier of the BVR kits, Morpho Canada. According to the Treasury, the government does not have a contract with French firm Safran Morpho as such but with the Canadian government that sought and obtained the BVR supplier, Morpho Canada.
Safran Morpho of France happens to be the subsidiary of Morpho Canada, which was contracted by the Canadian government.
Safran Morpho only made and supplied the equipment from France as a subsidiary of Morpho Canada, which is the actual contracting party in the deal with the governments of Kenya and Canada.
The Ethics and Anti-Corruption Commission has said preliminary investigations into the procurement process undertaken by the IEBC began before the March 4 general elections.
EACC Chief Executive Officer Halakhe Waqo has said the investigations were prompted by information gathered by the commission to the effect that the procurement carried out by the IEBC was not transparent and may have been flawed.
A vital “must read” from the Daily Nation confirms that in spite of Kenyan president Uhuru Kenyatta’s promise to release the contracts for the truncated Standard Gauge Railroad project, the Government of Kenya has been withholding the documents concerned about meeting public records obligations. It is said that Kenya signed the undertakings with Chinese state-owned corporations rather than the Chinese State as such, and that the documents include secrecy provisions that the lawyers are interpreting to conflict with Kenyan law as to the Governments obligations to its own citizens for public contracting.
The story details item after item of hugely inflated prices for components such as generators, supplies, machinery and equipment:
This explains how Kenya ended up paying two times more for a diesel train than what Tanzania negotiated for an electric train. A comparison of the costs shows that Tanzania is building an electric rail at half the price of Kenya’s diesel SGR line.
TANZANIA’S FASTER
At $1.92 billion, which translates to about Sh192 billion at current exchange rates, for the 422 kilometres, Tanzania’s line is not just cheaper; being electric, it’s designed to support a maximum speed of 160km/hour for passenger trains and 120km/hour for freight.
This pales in comparison to Kenya’s line, whose passenger trains have a maximum speed of 120km/hour with freight hauliers doing 80km/hour at best.
Kenya opted for diesel-powered engine that can be upgraded into electric in future.
It is the results of this greed and negligence that taxpayers are now paying for.
OPERATION COSTS
Currently, the revenues generated from the passenger and cargo services on the track cannot meet the operation costs, estimated at Sh1.5 billion a month against average sales of only Sh841 million.
Readers may remember previous reporting of a leaked Auditor General documents indicating that Chinese firms may have been given a security interest in Kenya Port Authority assets and property to secure the loans for these inflated costs. From Maritime Executive in December 2018:
Kenya runs the risk of losing control of the Port of Mombasa if it should default on loans from state financial institution China Exim Bank, according to a new report from Kenya’s auditor general. The terms of a $2.3 billion loan for Kenya Railways Corporation (KRC) specify that the port’s assets are collateral, and they are not protected by Kenya’s sovereign immunity due to a waiver in the contract.
KRC accepted the multi-billion-dollar loan in order to build the Mombasa-Nairobi standard gauge railway (SGR), with construction services provided by China Roads and Bridges Corporation (CRBC), a division of state-owned conglomerate China Communications Construction Company (CCCC).
“The payment arrangement agreement substantively means that the Authority’s revenue would be used to pay the Government of Kenya’s debt to China Exim bank if the minimum volumes required for [rail] consignment are not met,” auditor F.T. Kimani wrote. “The China Exim bank would become a principle over KPA if KRC defaults in its obligations.”
In addition, any dispute with China Exim Bank would be handled through an arbitration process in China, not in Kenyan courts. The auditor general expressed concern that the port authority had not disclosed these arrangements in its financial statements.
The Auditor General’s term expired before publication of a final report and has been left vacant, conveniently for freedom of action and ability to avoid disclosure by Kenya’s political officials.
The more information that comes to light the more it would appear that the uneconomical nature of the “white elephant” megaproject was baked in from early stages and does not look to be readily resolvable without exterior finance, renegotiation, write down or other intervention.
Kenya’s financial sector is the among most secretive globally, according to a new report by Tax Justice Network.
The sector has been ranked the second most rigid in Africa after Algeria and among the top 30 in the world in the latest Financial Secrecy Index of 2020.
The annual index by Tax Justice Network (TJN) has scored Kenya’s secrecy rate at 76 per cent, meaning the country is a fertile market to stash ill-gottenprivate financial wealthand other illicit financial flows (IFFs).
