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).

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.

Trump Administration’s top diplomat for Africa visits Nairobi; public statements adjusted to advocate for “national conversation” as substitute for “national dialogue”

I was pleasantly surprised by the previous statements from the State Department both from Washington and in Nairobi, calling for “national dialogue” in the wake of Kenya’s fraught and objectionably violent environment in the wake of the boycotted October 26 presidential re-run.

In the latest release from Washington on December 4 the State Department said, “the Acting Assistant Secretary will travel to Nairobi, Kenya from December 4-6, where he will meet with representatives of the Kenyan government, as well as with Kenyan civil society. The visit will encourage all sides in Kenya to participate in a national dialogue following the presidential election.” (emphasis added)

Today, however, following the talks, a new statement was issued–by the Ambassador–backing off from the language “national dialogue”. Instead, along with a call for Odinga drop a “people’s swearing in”, and a generic call for protesters to avoid violence and the Government’s security forces to avoid unnecessary killing and to investigate themselves on the outstanding accusations that they had been doing so, the State Department now recommends a “national conversation”.

Why is this different? Well, you would have to ask the Embassy or Main State Department and/or the White House why they changed the language, but “national dialogue” is a clear reference to the formal process resulting from the February 2008 settlement agreement between Kibaki and Raila leading to the Truth, Justice and Reconciliation Commission Report (censored and held in abeyance by the Uhuruto Administration–an issue in the August election), the Kriegler Commission on the 2007 Election (leading to the buyout of the Kivuitu led ECK), the Waki Commission on the Post Election Violence (leading to the aborted ICC prosecutions) and constitutional reform process that led to the 2010 Referendum adopting the new Constitution which mandates the 2/3 gender rule (declined so far), diaspora voting (mostly declined so far), devolution (in process), and such. A “national conversation” is a nice notion and probably a good thing to do here in the United States as well as anywhere else culturally divisive politics.

See “Reformers vs. The Status Quo: Is it possible to have free and fair polls” by Eliud Kibii in The Elephant to put the current election disputes and contest in the complete post-Cold War context.

Update: Ambassador Godec’s tweet of Dec 11:

NASA’s decision yesterday is a positive step. We again call for a sustained, open, and transparent national conversation involving all Kenyans to build national unity and address long-standing issues.

Kenya presidential re-vote: highlights of closing argument for invalidating the IEBC’s second try

The good people at www.NeverAgain.co.ke have given us an edited version of the concluding argument in the Supreme Court from Julie Soweto, counsel for petitioners Njonjo Mue and Khelef Khalifa: Kenya’s Supreme Court judges have a choice between upholding the beacon they raised or apologizing for doing the right thing:

We, the people, are beseeching this Court to act again in defence of the law and the Constitution. If we are to summarise our grievance in this petition, it is this, IEBC and the Chairperson of the IEBC simply do not seem to understand the Constitution and the law. Either they do not understand it, or they believe they can get away with disregarding the law.

The starting point is September 1, 2017 because that is where this Court gave its direction: Go and conduct a fresh election in strict compliance with the Constitution and the applicable law.

We are going to demonstrate that IEBC and the chairperson simply did not do this.

. . . .

Our petition rests on five limbs: the absence of universal suffrage, the environment of violence and intimidation; the independence of the electoral management body; its dishonesty and duplicity; and its failure to follow the law and its own procedures.

. . . .

Thirdly, this Court cannot avoid the reality before its eyes, which is that the IEBC appears to be under the thumb of the Executive, currently controlled by the Third Respondent. Their pleadings are either similar or complementary. The affidavit of the IEBC chairman, is proof that the commission was never independent but was working overtime to please political players such as the National Super Alliance and the Jubilee Party. The internal incoherence of the commission is proof of its discordance, brought to light most dramatically by the resignation of Commissioner Roselyn Akombe.

Part of IEBC’s dysfunction is right before the Court in the form of the affidavits sworn by the vice chair on her own behalf and on behalf of five other commissioners excluding the chair. What is to be understood by this?

IEBC is wholly to blame for this state of affairs. Their own internal environment precipitated the climate of violence and intimidation.

Dr Akombe feared for her life. The Chairperson’s address on October 18, 2017 acknowledged her as “one of our brightest”. His statement show and confirm his awareness that this was no environment to hold a free, fair and credible election. This is the National Returning Officer making such statements a week to the election. Can it then be argued that his own statement did not have an effect on the conduct of the electorate? For one side, definitely, he must have affirmed and reinforced their convictions that the election was a sham. Could this damage be undone in seven days?

That damage had led to the withdrawal of a candidate, which precipitated boycotts and attendant consequences. The IEBC is squarely to blame for this state of affairs. This is the chairperson confirming the internal environment of the IEBC was discordant. At this point the damage is already done. It is too late. He confirmed that there were attempts to interfere with the commission and that there was partisanship within it.

What could he and should he have done? He could have come to this Court and presented his challenges. He came to clarify what to do about wrong numbers! How to do add numbers. If he had read and applied the Constitution holistically he could similarly have come to seek help. He did not.

Fourth, the IEBC decided what law to follow and what law to ignore. It chose to rely on the Supreme Court decision in 2013 where it provided that only the President-elect in a nullified election and the successful petitioner should contest the fresh election; but it did not want to obey the direction that one candidate abandoning the race would automatically require a new election. The IEBC printed ballot papers with Shakhalaga Khwa Jirongo’s name on the list of candidates on October 19, and then gazetted his candidature on October 24, 2017. It declared that no nominations would be conducted, when it could have declared the candidates as having been nominated by dint of the Supreme Court’s nullification of the August 8, 2017 election. It held consultations with a variety of stakeholders but neglected to inform political parties about the gazettement of returning officers.

Finally, the IEBC has been unable to tell a consistent story about the elections. The number of registered voters is a moving target. The voter turnout in the fresh presidential election changed at least three times. Voter turnout is the true north of any credible election result, and it is locked down at the close of polling. The Commission’s behaviour around the voter turnout suggests that it was fluid.

. . . .

While Washington grapples with another Kenyan election mess, an update on my FOIA pursuit of our policy from 2007

Still no more documents from USAID from my 2015 request for material involving our support for the IEBC in the 2013 election, from which I finally learned in April of this year that USAID had tasked the American International Foundation for Electoral Systems with making sure the electronic Results Transmission System that failed worked:  “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.” 

In the meantime my Mandatory Declassification Review appeal relating to a document I originally requested from the State Department more than eight years ago relating to the January 3, 2008 post-election telephone conference between U.S. Secretary of State Rice and E.U. High Commissioner Javier Solano is now more than a year old:

September 15, 2016

Re: Case No. M-2016-04563

Dear Chairman:

I am appealing the decision to withhold in full all material identified in Case No. M-2016-04563.

Because all information was withheld in the response to my original FOIA request, FOIA Case No. F-2009-07810 and this Mandatory Declassification Review request, I have not been given much ability to evaluate and argue the details of the withholding on appeal. It is difficult to believe that every bit of information in the identified document responsive to my requests has been and continues to be necessarily kept secret in the interests of national defense or foreign policy.

In particular I note that I requested documentation on the telephone conversation between former Secretary Rice and former EU High Representative Javier Solana based on media reports containing public communications about that call, the subject matter of which was as I understand related to public diplomacy regarding the Kenyan election. Both our country and the E.U. had undertaken assistance programs to support democracy in Kenya, including neutral International Election Observation Missions and I was an NGO employee as Chief of Party for the USAID-funded observation on the U.S. side. It would seem that U.S. interests and law would counsel a tilt toward openness rather than secrecy in this specific context and I ask for your consideration in this regard.

Thank you.

Raila on the Kenyan elections at CSIS

Catch the webcast, live Thursday morning 9:30-11:00 EST:

“Raila Odinga on the Kenyan Elections” with Amb. Mark Bellamy at the Center for Strategic and International Studies in Washington.

The link will also take you to the video for CSIS Africa programs addressing the Kenyan election in June, July, August and September.

Meanwhile, the AP has a story out this afternoon widely re-published in American newspapers: “After Kenyan vote drama, successionist talk hits the mainstream“.

The succession concern may likely have resonance in Washington given U.S. interests, although my sense is that the economic boycotts are the most salient message in Nairobi.  During the PEV period following the corrupted 2007 election, ODM backed off on threats of such economic boycotts which seemed risky as unprecedented and perhaps perceived to be “over the top”.

Vogue gives us “Three Nairobi Fitness Excursions Prove There’s Plenty of Life Beyond the Safari” for Americans who want to play around the city after their “humanitarian” trip to Kakamega from the U.S.

And the Carter Center has released a statement on the October 26 re-vote mirroring the State Department’s call for “national dialogue”: “Repeat poll polarized Kenya: Carter Center” headlined the Daily Nation.

Update: A Thursday story in The Star reports that  “British Army may pull out of Kenya, decision by end of month“.  The issue is KDF approval for leases of private land in Laikipia, the established practice, as opposed to a restriction to using only Kenyan government property.

For a good overview, see “The Kenya Election Crisis, Explained” at UNDispatch         by Kimberly Curtis.

Kenya cannot have a free and fair presidential election without consent of the President

This is the underlying reality that I have routinely pointed out privately as well as mentioned here.  No president in Kenya has ever lost a re-election.  Uhuru Kenyatta had a decision to make as to whether he was willing take a risk of losing at the polls or not. (In 2007 it was clear, as seen with hindsight, that Mwai Kibaki was not willing to take that risk.  He controlled the ECK accordingly.)

Peace Wall Kibera Nairobi Kenya 2008

Under the new Constitution adopted by virtue of the 2008 Post Election Violence settlement and with effectuation of some reform, the new Supreme Court to almost everyone’s surprise held its independence and applied the law to find that the IEBC did not meet the minimum requirements of the law in declaring the President re-elected without full and reliable results under required procedures.  Even in this context the Court was careful not to blame the President or the Executive branch for the use of state resources and the underlying irregularities and illegalities that were seemingly born as orphans within the IEBC.

Since the Supreme Court’s ruling the Court and the Judiciary have been under attack from the Executive just as the IEBC has been under attack by the opposition.  On balance, the international diplomatic community re-iterated its ongoing multi-year endorsement of the IEBC, consistent with the “Preliminary Statements” of the major international election observation missions in 2013 and on August 10, 2017.  On balance, the international diplomatic community has said little about protecting and preserving the hard won independence of the Judiciary.

Today, the Supreme Court fell.  The Interior Minister signaled an intent to order that today be a public holiday (“election day eve”?) and the driver of the Deputy Chief Justice was shot while running an errand in the Justice’s car.  When the Court convened to hear and decide the urgent matter of whether the presidential election nullified from August 8 could be conducted by the IEBC tomorrow in light of the Court’s previous ruling, only the Chief Justice and one associate showed up.

With a majority of the Supreme Court “missing in action” the Chief Justice determined that no quorum existed, the hearing could not be held so that so that there is no authority to determine the law separate from the President who has declared throughout that his one “irreducible minimum” requirement is that the presidential vote be held on October 26.

Then the High Court ruled on a separate challenge—reminiscent of Judge Leonola’s ruling in 2013 on AfriCOG’s petition to enjoin the vote tally by the IEBC after the “failure” of the results transmission system—that jurisdiction to challenge actions involving the presidential election rests only at the quorumless Supreme Court.

It is clear to all that the IEBC is not ready, and belated calls have been coming to postpone the vote but the bet on the IEBC was already placed and when the diplomatic community chose to leave it down in the face of the dramatic defection of Roselyne Akombe, whose name is now usually “one commissioner”,  the game may be over on that front.

I do not assume that writ large this outcome in Kenya constitutes the fruition of or is consistently underwritten by some coherent foreign policy agenda of the United States and/or the UK or other Western countries that have supported the ECK/IIEC/IEBC over the past 15 years.  This is the third U.S. administration to be involved in this scenario and going back even through the entirety of Kenya’s history the persistent thread is that we support the President (whether we like or respect him).

Uhuru Kenyatta has specific relationships of various sorts among certain American elites, but that is a very different—and perhaps contradictory—thing from the idea that Kenyatta’s behavior supports specific foreign policy objectives of the United States.  The great strength of the United States as a relatively open, chaotic society with turnover and diffusion of power is that much of what is often seen as “policy” from more repressive vantage points is more like “stuff that happens” seen from within our system.

[Nonetheless, I will have more detailed and informed opinions about the August elections when I finally get from USAID documents I requested in 2015 about our support for the IEBC in 2013.]

 

Don’t be confused: preparations for Kenya’s failed August election election were controlled by Kenya’s ousted “Chickengate” IEBC and its CEO and staff with support of international “partners”

From this blog late last year:

Meanwhile, Kenya is paying an average of about $343,000.00 “severance” to each of the outgoing Independent Electoral and Boundary Commissioners for leaving earlier this fall rather than completing their terms through November 2017. No signs of accountability for the #Chickengate bribes to the IEBC by Smith & Ouzman that were prosecuted by the UK and no sign of accountability for corruption in the subsequent 2013 election technology procurements.

While the “buyout” has been negotiated, the incumbent IEBC staff without the “servered” Commission has been proceeding to undertake election preparations that will be fait accompli for the new Commission when it is appointed next year.  

Accordingly, the chief executive has proceeded to report plans to spend an astounding 30Billion KSh to conduct the 2017 general election, while setting a target of 22 million registered voters. In other words and figures, roughly $13.40US per registered voter if the target is met or $19.60US per currently registered voter. (For comparative data from places like Haiti and Bosnia,see The Ace Project data on cost of registration and elections.)

Update: see Roselyne Akombe’s interview in the Saturday Nation, Credible Oct. 26 election not possible: Akombe” 

A must read and some thoughts on context as Kenyan presidential politics continues


  1. As a necessary corrective to fatalism, start with an important piece from Patrick Gathara in today’s Washington Post:

Raila Odinga and the surprising bright side to Kenya’s never ending election.

Events of the last few days are more twists, turns and wrenching associated with Kenya’s status as being stuck or frozen by the stolen election of 2007 and its aftermath, pending forward movement to truly realize a new system under the new constitution approved overwhelmingly in 2010, or back into a now-digitized/globalized version of a single party power structure based on elite-level tribal bargains.

Based on the 2013 election and Kenyan history, in the immediate run the continued retrenchment of democracy is surely likely, but we can hope otherwise.  And most importantly, Kenyans can keep their eyes on the horizon and recognize that much of the work of getting Kenya (back?) to the state of democratic openness that was preceived to have existed in the early times after the defeat of KANU at the polls in 2002 will remain regardless of who is president.

And the vital task of acheiving a transparent and trustwothy, bona fide independent electoral commission must not stop with the immediate “fresh election” regardless of when it is or whatever limited progress is obtained through current NASA demands for “irreducible minimums”.

ODM and Wiper and other parties made a mistake by waiting until early 2016 to focus on forcing reforms of the Issaak Hassan “Chickengate” IEBC of the badly administered 2013 election.  Even though agreement was obtained to replace the Commission with loss of life of protestors killed by police by mid-2016, the old Hassan Commission stayed in control until early this year, after budgets and plans (and some contracts apparently) were in place, assistance programs by the United States and others contracted–and apparently adjusted by demand of the incumbent ruling party.

The new Commission inherited Hassan’s staff and remains quite murky as to the extent that they are de facto independent enough to effectively manage and discipline that staff.  The selection process was messy and murky and the Vice Chair of the Commission turns out not to have resigned her job with the UNDP but rather taken “leave” of undisclosed terms while serving.  Are other Commissioners of uncertain independence from other players in administration of the elections? (I am not concluding that Dr. Akombe is not independent of the UNDP–just that there are unavoidable questions which neither the UNDP nor Dr. Akombe seem willing to address–nor Kenya’s media to take up.)

No incumbent president in Kenyan history has been found by Kenya’s election management body to have lost an election–certainly the opposition has always known it had an uphill battle to have real hope of winning, aside from the fact that the incumbents have strong support in their bases and were ahead by a few points in most polls as of late July.  In this environment, the failure to achieve deeper reform of the old IEBC by early 2017 was probably fatal to a real chance to win all other things being equal.

The surprising and gutsy decision of the Supreme Court of Kenya to rule that the IEBC’s conduct was just too far beyond the pale to pass legal muster gave everyone another chance, but of course it did not change any hearts and minds of people who were never willing to risk of losing office at the polls in a free and fair vote.

The United States and other donors attracted a lot of published advice from its own employees and through indirectly supported sources like the International Crisis Group stressing the importance of transparency for trust building but elected instead to continue to stay the course of underwriting the ECK-IIEC-IEBC and publicly promoting its output to Kenyans without re-consideration of the risks and costs of non-transparency and undisclosed failures with the electoral management process, such as the alleged bribery in 2007 that warranted undisclosed US “visa bans” and the subsequent “Chickengate” bribes and the bogus procurements of technology that left Kenyans exposed again in 2013.

This is not rocket science.  Kenyans who are increasingly divided by tribalism as their politicians offer and deliver less democracy and less other models of leadership, are more likely to accept and trust what they are openly shown and explained.

Trust and Accountability”-  Africa Center for Strategic Studies scholar discusses steps to a peaceful  election.

I will be prepared to more substantively address the 2017 vote/s once I get the documents I am due and expecting from my 2015 FOIA request about the 2013 election.  Until then, we can still decide to do what we know can be most helpful to build trust if we want to.

Update: do not miss this – “Against second rate democracy in Kenya” from Aziz Rana in the Boston Review.