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 to back off on 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.

Meanwhile, Uganda is reported “sliding into crisis”

With attention focused on Mugabe’s capitulation to the military and his erstwhile ZANU-PF cronies in Zimbabwe, and the accompanying exuberant popular optimism, the Crisis Group released its latest report of 30+ pages on Uganda as Museveni moves to clarify his status as supra-party, supra-legal supremo.

Here is the link to download: “Uganda’s Slow Slide Into Crisis“:

Crisis Group: Principal Findings

What’s the issue? Popular discontent is growing over President Museveni’s apparent desire to remain in power while governance, economic performance and security deteriorate.

Why does it matter? Uganda is not in danger of renewed civil war or rebel violence, but it risks sliding into a political crisis that could eventually threaten the country’s hard-won stability.

What should be done? The government should hold a national dialogue over presidential succession, enact reforms to the partisan police force, stop post- poning local elections and initiate broad consultations on land reform. Donors should encourage these efforts, while avoiding projects that help perpetuate political patronage.

Museveni has continued to have amazing grace from the United States which has taken a position of official neutrality as he has sought to strong arm his way to another constitutional change to eliminate the 75 year presidential age limit for the presidency.

As AMISOM has indicated its first troop drawdown of 1,000, and more U.S. forces deploy to assist the Somali National Army, Museveni volunteered another 5,000 Ugandans for the Somalia-building endeavor during President Trump’s “Nambia lunch” with African leaders in New York in September. No indication that we want to take him up on the offer, but we seem to continue to hold a stream of various defense-funded public events in Uganda and otherwise seem to desire to telegraph “strategic patience”, “immoral indulgence”, “complacent complicity” or whatever it is that best characterizes our multigenerational intertwining with the M7 regime.

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.

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 proceedures.  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.]

 

What to do now in Kenya?

Old Party Office in Kibera

Solo 7–Kibera

Kenya’s election rerun could be a major setback for African democracy” a new Washington Post editorial was published Monday evening in the United States.  I suspect The Post here has fairly well reflected the general view of the Kenyan situation in Washington.

What to do?  I think the International Crisis Group has a long track record of assessing conflict in Kenya and offering helpful suggestions.  They did good work that I relied on in the 2008 crisis.  The Daily Nation picked up their latest recommendation here:

 

At the same time, a conflict prevention organisation, International Crisis Group, asked the Independent Electoral and Boundaries Commission to go back to the Supreme Court and seek a limited extension of timeline by 30-45 days to allow all parties to take part in the election and avert a crisis.

The group said Kenya’s political leaders should support such an extension and commit to participate.

SUPREME COURT

According to ICG, the precedent for such a delay exists.

“The High Court in 2012 delayed elections by six months, which helped ensure a credible and peaceful vote,” the group said in a statement.

“The Supreme Court should favourably consider such an extension, given the IEBC chairman’s own acknowledgement that the commission cannot guarantee a credible vote within the allotted timeline.”

The ICG said that should it grant a delay, the court ought to state clearly that President Kenyatta would remain in office pending the fresh vote and that Nasa leader Raila Odinga should take part in a delayed poll without additional conditions.

“He should renew the welcome public pledge against violence that he made on October 20.

“He also should rein in and hold accountable supporters who have attacked election officials, made inflammatory threats to disrupt election or otherwise broken the Kenyan law,” the group said.

See my post discussing the International Crisis Group’s March report on “Avoiding another electoral crisis in Kenya”.

And see “World papers and magazines to postpone repeat poll” in the Daily Nation.

Kenya’s “fresh election”: new statement from Carter Center EOM and background on UNDP election support to GOK

Today the Carter Center Election Observation Mission released an additional report discussing briefly the findings and proceedings of the Supreme Court of Kenya in deciding the presidential election petition but primarily focused on the negotiations and preparations for the “fresh election” scheduled by the IEBC for 26 October.

kenya-statement-supreme-court-ruling-100417kenya-statement-supreme-court-ruling-100417

There has been some public controversy and debate, as well as confusion, about the role of the UNDP in the funding and management of this years Kenyan election to a degree that was not apparent in the last two cycles.  The UN is a big presence in the Nairobi and Kenyan economic and political scene, so it hardly surprising that their role in the overall outside democracy assistance program would come into scrutiny where things went badly and the election was annulled.  Most recently there was an offer made by the IEBC to have the UNDP undertake ballot paper procurements, for instance, which was declined by the candidates.  (I am not ready to wade into the thickets of the controversy about the fact that the most public face of the Commission itself other than the Chairman has retained her employment with UNDP in a leave status while accepting appointment from the President and taking office as an IEBC Commissioner in January and related matters,)

From an EU report at the beginning of the year:

  • The UNDP-led “Strengthening the Electoral Processes in Kenya Project” aims to strengthen Kenya’s electoral institutions, systems and processes in Kenya in view of the 2017 elections.

Following the EU’s support to Kenya during the 2013 elections, the EU is capitalising on the lessons learnt from that period to provide a better electoral support mechanism for future elections. The EU’s financial contribution to “Strengthening the Electoral Processes in Kenya” aims to develop stronger legal and institutional structures that will lead to transparent, credible and peaceful elections, as well as leading to more informed participation in the electoral process. In particular, we expect:

  • a strengthened institutional and legal framework for the electoral processes;
  • a strengthened participation of voters, parties and candidates in the electoral process with emphasis on women, youth and disabled
  • the delivery of more efficient, transparent and peaceful elections
  • a strengthened electoral justice and increased compliance with the electoral framework

The programme supports activities that cover the whole country. Beneficiaries of it include the Independent Electoral and Boundaries Commission (IEBC), which will be the largest recipient of the programme’s assistance. Other beneficiaries include Kenyan institutions and organisations involved in the drafting of legislation, dispute resolution between political parties, media regulation, women’s empowerment and security, including:

  • the Office of the Registrar of Political Parties
  • the Kenya Law Reform Commission
  • the Judiciary and Political Parties Disputes Tribunal
  • the Director of Public Prosecutions
  • the Police Service
  • the National Cohesion and Integration Commission
  • the Parliament
  • other government agencies including county governments
  • civil society (including women movements) and media

The EU is contributing EUR 5 million to a projected total basket fund amount of EUR 21,5 million (US$24 million). The other donors to the “Strengthening the Electoral Processes in Kenya” project are currently DFID and USAID; some other donors might also join. To date (as of January 2017) US$14.65 million has been raised. The basket fund became operational in the second half of 2015, and activities will last till the end of 2018. The implementing partner is UNDP, with support from UNWOMEN.

Source: “EU support for democracy in Kenya” 17/1/2017

The United States and other donors to the IEBC must not let (again) the power of incumbency in Kenya obscure the dangers of “fear and loathing” on the campaign trail

This is a straightforward lesson.  We have acted in this movie in Kenya before.
(To refresh, here is my piece “The Debacle of 2007: How Kenyan politics was frozen and an election was stolen with U.S. connivance” in The Elephant.)

Mistakes will be made when we are out and about involved in our way in the world. (Most conspicuously, per Donald Trump’s 2016 campaign for the presidency, the 2003 invasion of Iraq.  This recognition of error obtained consensus among at least the top dozen Republican candidates and the top four Democrats so it seems to be a rare “given” that we should not have to argue about now.)

We cannot undo the past but at the very least we have a moral responsibility to take cognizance of (very) recent history in Kenya involving many of the very same Kenyan ethnic/commercial/political leaders and a continuity of institutional and individual players and assumed interests of the United States as well.  Our choices have consequences, too.

We are in denial if we pretend that we did not fail abjectly (to the extent we even tried really) to effectively foster any type of justice in Kenya for the 2008 Post Election Violence.  If we can excuse our asserted complacency in 2007 on the argument that the full magnitude of the violence was unprecedented (in spite of the 1992 and 1997 “campaigns”) we certainly do not have that excuse this time.

You cannot but hear bitter strident speech about Kenya’s presidential election from Kenya’s politicians, and from Kenya’s journalists, lawyers, pundits, publishers, moguls, ranchers and hustlers (of whatever ethnic or national origin or income).   Compared to 2007 it is more aggressive and open and it is coming in some key part directly from the President and even more so from those very close to him and from the Deputy President.

In 2007 Mwai Kibaki and Moody Awori were not using the “bully pupit” of the Presidency and Vice Presidency to openly disparage and ridicule those with less power (even though Kibaki was obviously not in hindsight of any mind to actually risk being found to have lost the election by the ECK).

Likewise, during that campaign Uhuru Kenyatta and William Ruto, on opposite sides of the presidential campaign once “retired President” Moi realigned to support Kibaki mid-year, were far more restrained in their widely public statements as candidates
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“Sitting on” the embargoed USAID-funded IRI exit poll indicating opposition win in Kenya 2007 election, I wished someone would subpoena me

 

A Kenyan blogger wrote in early 2008 that  I “should be” subpoenaed after I was reported in Slate magazine as “sitting on” the embargoed USAID-funded IRI exit poll. I would have welcomed it. Sadly no subpoena came.  No one approached me except from the media as I hoped that the decision would be made in Washington to end the embargo as Joel Barkan and I urged.

The exit poll was publicly released by the the University of California San Diego research team at an event at CSIS in Washington only in July 2008 after the six month publicity restriction in their consulting contract with IRI. [ed. note: Remember it was then released in August by IRI.]

By that time, it mattered  for “the war for history” as to whether the election had actually been stolen or not, but had no real time impact in that Kibaki’s second full term was well underway.  The “Kreigler Commission” reporting to President Kibaki was staying off the question of what really happened to the presidential tally at the ECK.

Lessons for today, in time to matter?

What if vital information about what happened with the presidential tally is in the hands of people working for the donor-funded election assistance operations who wish they could provide that information and answer the vital questions?

FREE, FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant

Published today in The Elephant: FREE,FAIR AND CREDIBLE? Turning The Spotlight On Election Observers in Kenya | The Elephant by Ken Flottman.

A classic example of why Kenyans are frustrated with the mix of international Election Observers and Media

Kenya 2007 election Kibaki Tena Kazi iendelee re-election

Can John Kerry help stop Kenya from slipping into Post-Election Violence Again?“, Newsweek, 10 Aug 2017:

Beyond the “Western patrician savior” headline:

. . . .

I know what it’s like to lose an election. I lost by one state the presidency of the United States, and I had a lot of reasons to complain about what happened in Ohio or in other states. But you gotta get over it and move on,” said Kerry Thursday at a press conference in Nairobi, where he has headed up the election observation mission from the Carter Center. Kerry was likely referencing issues with the voting system in Ohio that led to a recount and reduced margin of victory for Bush.

 The result—and perhaps more significantly, the aftermath—of Kenya’s presidential election is not yet clear. With almost 99 percent of the votes counted, incumbent Uhuru Kenyatta is in front with 54 percent of the vote, ahead of opposition leader Raila Odinga at 45 percent. Kenya’s electoral commission has said the result will be confirmed on Friday.

But Odinga has signaled he will not accept the result quietly. Odinga stated on Thursday that unknown figures had hacked into the electronic systems of the electoral commission—using the identity of Chris Msando, the commission’s IT chief who was tortured and murdered less than two weeks before the vote—and swayed the vote in favor of Kenyatta. Odinga has called for calm but has also not ruled out summoning his supporters to the streets.

Such a move would have a dreadful familiarity in Kenya. After the 2007 election, which Odinga lost to incumbent Mwai Kibaki amid allegations of rigging, supporters of both candidates clashed over several months in an ethnically charged conflict that left more than 1,000 people dead.

Kerry has led the Carter Center’s observation mission in Kenya, which saw observers deployed at more than 400 polling stations across the country, as well as 36 tallying centers. The center said in a preliminary statement on Thursday that despite some problems in the transmission of results from polling stations to tallying centers, the vote had been conducted in a peaceful and calm atmosphere. It urged candidates to wait for the official results before commenting and to “use established legal channels” to resolve any disputes and “ensure that their supporters remain calm” before and after the results have been confirmed.

Kerry himself said the vote appeared to have proceeded in a free and fair manner. “The process that was put in place is proving its value thus far,” he said. “Kenya has made a remarkable statement to Africa and the world about its democracy and the character of that democracy. Don’t let anybody besmirch that.

Former President Barack Obama also has urged Kenyans and their leaders to reject “tribal and ethnic hatred” and to “work together no matter what the outcome.” (emphasis added)

Facile comparison to very dissimilar 2007 situation (see my The Debacle of 2007 in The Elephant here.)  Exaggerated time period for that violence ten years ago (most of the violence was within one month of the election and the settlement was reached at the end of the second month).  No mention that following new the constitution in 2010 as a result of the 2008 settlement, the Odinga v Uhuru dispute of 2013 resulted in no widespread violence and much smaller numbers of opposition supporters killed by State for protesting.  No mention that the country in August 2008 was basically locked down by a massive and oppressive state security deployment.

No substantive focus on the main electoral problem: failure of results transmission system, as in 2013 (and mirroring 2007) yet bare assertion that 99 percent of vote counted.

Advocacy by Kerry beyond written statement of his Carter Center Mission that the election appeared to meet standards and to achieve the (Western) goal of an African success story and “Don’t let anybody besmirch that”. Etc.

Kenya Election Trump White House congratulates Kenyatta on fair and transpaent re-election