Category Archives: diplomacy

Are there some limits to impunity for killings in Kenya?

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No doubt anyone reading this blog will have read of the abduction and execution-style murders of Willie Kimani, Josephat Mwenda, and Joseph Muiruri.

If you haven’t read it, here is Jeffrey Gettleman’s account in the New York Times, “Three Kenyans last seen at police station found dead“.

As expendible as the lives of ordinary Kenyan citizens have always proven to be when they inconvenience or otherwise run afoul of the various state security forces, there are categories of people that are presumably understood to be off limits.

Thus the heightened shock and outrage when Kimani as a veteran young rights and justice lawyer with the respected American-based International Justice Mission is found murdered with his client and their taxi driver after being waylaid in returning from a court hearing.

Murder cases in which powerful people associated with state forces are obvious suspects are ordinarily “unsolved” and forgotten in various lengths of time depending on the prominence of the victim.  There is such a long list . . . Sometimes an unconvincing resolution is put forward processed through the system to buy time while we forget.

In this case, Kimani may have turned the tables by getting a handwritten note out of an “informal” Administrative Police holding cell to be found by a passerby–without this it seems doubtful that we would ever know that they were in AP custody between their abduction and their killing.  But we do know and are now responsible for that knowledge.

Will Kimani, Mwenda and Muiruri be forgetten after due processing of outrage, or will Kimani’s handwritten “brief” be a turning point for justice in Kenya?  Maybe this will be a time when there is no hiding and no excuses are accepted; I think IJM is serious and committed and this case has resonance across the broad community of those who dream of a more just Kenya.  No time like the present.

A simple question: is the Obama Administration in favor of or opposed to corruption at Kenya’s IEBC?

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You can still argue this either way, but time is getting away from us.

If you want to argue the “opposed” side you have to extrapolate from generalities and broad high-minded notional statements (and American laws we don’t necessarily talk about).  We must be against corruption in the IEBC–because we support free and fair elections always everywhere and likewise we are against corruption in Africa generally.  At the national level we are so committed to our broad anti-corruption values as to sign bilateral U.S.-Kenya agreements and form working groups with our partners in the Uhuru Kenyatta/William Ruto administration to “help” them in their “war” on corruption.

On the other hand, if you want to argue the “in favor” side you get to take the case down to the brass tacks of the specific facts of Kenyan elections and the exercise of state power, the ECK, the IIEC, the IEBC, specific USAID programs including “our” heavy investment in selling Issack Hassan (a bit like our investment in Kivuitu before him, but more assertive), the Kenyan Supreme Court’s directive on procurement corruption of March 2013, the successful Chickengate prosecutions of British bribe payers to IIEC officials “mentioning” Hassan himself, opening up a whole different and pre-existing area of corruption separate from the demonstrably irregular purchases of failed technology–and the thundering silence of the United States on these matters.

You can also point out how much worse corruption has gotten in Kenya since Kenyatta succeeded Kibaki in power.  And that as such, “partnering” with Kenyatta for a “war” that no one seriously believes he himself wishes to fight might look like “eyewash” for mutual political cover instead of a substantive effort at reform?

Yes, the U.S. Embassy did recently release a joint statement with other Western donors/underwriters of the elections noting the fact of the Kenyan publics’ loss of confidence in the IEBC and supporting “dialogue”.  I expressed my appreciation for this in a previous post. (I would also point out that “dialogue” between Jubilee and CORD is more likely to be about the interests of the politicians than the integrity of the process and voters conceptually; CORD as well as Jubilee made mistakes on the IEBC in 2013).

What my government failed to do was actually speak up about the corruption in the Kenyan electoral management body, each iteration of which “we” have helped pay for since 2002.  Likewise, my government wasn’t willing to speak up for “dialogue” until opposition supporters were willing to get shot down and beaten up by the police to make the point.  Arguably the associated publicity in the international media is bad for “confidence” even though the police brutality was wholy and completely predictable (and as I keep noting, “we” have been spending money on “training” the Kenyan police since 1977!).

Now that Kenyatta and Ruto have called our bluff on “dialogue” and the protests against the IEBC corruption and the responsive police shootings have resumed, this simple question of where my government under President Obama stands, in favor or opposed to corruption at the IEBC, begs for a clear answer.

Maybe we already have it–but I hope not.  I am patriotic enough as an American to be disturbed and disappointed when”we” act in ways that contradict our common values–and to be optimistic, with Churchill, of our proclivity to come around to the right thing after stumbling through alternatives.

The situation is not likely to get better by itself.  I see it as a personal test of character for President Obama.  

On the 2007 Kenyan election disaster, where I found myself accidently embroiled in the policy fiasco, I have been able to allow myself to hope that the key U.S. decisions may not have risen to the attention of President Bush himself (however much he liked to call himself “the decider”) until it was too late in the sense that the election was already both corrupted and observed by Kenyans themselves to be corrupted (in spite of the best effort of some American officials to sweep the corruption under the rug) and people being killed accordingly.  President  Obama, on the other hand, even though I’ve never seen him as so much “into” Kenya per se, has more personal background with these specific problems than the key policy people under him.  The buck unavoidably stops with the President this time.

Trying to duck the basic question to leave the challenge to a new President is a singularly bad idea, and in fact is an indirect but clear answer that we favor rather than oppose the existing corruption levels as election preparation and protest and violent suppression proceed.  

Who would expect the team of Trump, Manafort and Stone–led by the Birther-in-Chief, with the direct personal lineage to Moi and KANU’92, and thus UhuRuto–to stand up for IEBC reform?  Likewise, who would expect Mrs. Clinton to stand up to Tony Podesta as Uhuru’s latest lobbyist in Washington?  If President Obama doesn’t act soon he will have spoken conclusively to say that yes, on balance, his Administration is more supportive of than opposed to the corruption at the IEBC.

I think there is a true humanitarian as well as moral purpose to be served by going ahead and speaking clearly rather than answering by silence.  Silence can leave false hope.  Kenyans are certainly not counting on us.  They aren’t fools and they know how and why we supported the first Kenyatta and Moi.  But we are their favorite foreign power just as they are our favorite African country for a variety of purposes.  We do a lot of things for Kenyans with our tax dollars, like pay for AIDS medicines, since their own government prefers other priorities.  Kenyans voted overwhelmingly for the new constitution that we supported back during the second Kibaki term and the first Obama term, so our interests can align and we can be reformist when we are willing.  Being clear about our intentions is the least we should do.  

No incumbent Kenyan president has ever left office through an election or failed to be re-elected when he ran.  Kenyans know that Kenyatta has the power to stay in office irrespective of any vote if he chooses to; they also know his potential willingness to be the first might depend on whether the IEBC is by next year at least potentially open to a vote tally that goes against the President and how the U.S. and its allies might react to varying further levels of use of force on his behalf.  If we are at peace with continuing to underwrite an IEBC that has been caught being corrupt, aside from failing at its most basic task of delivering an open vote tally in 2013, then we should simply tell Kenyans now so they can know that they are on their own and weigh the risks accordingly.

It took a village to get Secretary Clinton’s public records–but the lack of a culture of legal compliance within the State Dept saddens me 

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The release this week of the report by the Office of the Inspector General for the State Department regarding Email Records Management at the Office of the Secretary debunks for anyone who did not have enough background to know better the various arguments that Secretary Clinton’s use of a private email system from a server in her home in New York was remotely plausibly compliant with public records requirements applicable to all public business in the State Department.

As a State Department public records requestor for the material involving my work in Kenya, it is certainly dispiriting to see how these obligations have been addressed.

Kudos to the Office of the Inspector General of the State Department for solid and challenging work in vindicating the public interest by investigating and reporting to the rest of our government and the public regarding failures of senior leadership at the State Department to adhere to applicable standards for public records.  Thanks to private litigants, the courts and the OIG, we can say that in some senses “the system worked” and we are getting much of the information that we are entitled to as Americans about the work being done in our name.

For years the crucial State OIG sat vacant, and when I submitted my “hotline” complaint to the controversial Acting OIG early in the Obama Administration about issues related to interference with democracy assistance agreements to support the failed Kenyan election, the complaint was shunted to the State Department’s Africa Bureau itself without any protection for me as a reporting source or any apparent investigation.  So this new investigation and report shows progress.

Now, however, there needs to be some serious soul searching within the State Department as to why so many people ducked out, took a pass or actively facilitated an “opt out” by “the corner office” of clear requirements regarding the records of how the public’s business was being conducted.

And why it has taken so long, so much public expense, and so much outside legal intervention to get to the public basic facts of how the State Department operated throughout the last administration.

The State Department has been America’s most prestigious employer.  This is embarassing and needs to be fixed.

It is all made worse, not better, by the fact that many people like me expect to have no competitive morally acceptable alternative choice in the next American presidential race than the very same politician who put us all through all of this as Secretary of State.

Secretary Clinton, what is the problem, here?  Are your friends, advisors, subordinates afraid for some reason to help you understand and navigate your basic legal responsibilities in conducting public business?  If so, why?  Is that not something you can fix if you make it a priority?  Is it not something that is dangerous not to fix if you are to be president?

It astounds me that you seem to have thought somehow that this whole alternative record keeping system would remain secret.  That was surely magical thinking.  Aside from the law and compliance issues, how could the brilliant, accomplished and loyal people around you fail to burst that bubble?

Your country, and our democratic friends, need you to “straighten up and fly right.”

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John Wesley

Pre-election violence in Kenya: here we go again?

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The pre-election killings in Kenya in 2013 were “only” 500 or so as reported at the time.  The various branches of the Kenya Police Service were more restrained than they seem to be this cycle.  In the pre-election period the IEBC was well respected and trusted, having not experienced overlapping scandals and problems that materialized later and remain outstanding.

I think it is well worth remembering that in the especially violent and destabilizing election campaign of 2007, it was the deployment of the Administrative Police (the “AP”) to the western provinces on behalf of the Kibaki re-election effort just before the vote that first openly “militarized” the campaign.  I should have been more alarmed by the “physical” rather than simply electoral implications of that move at the time.

It seems to me that the open use of armed force for political advantage by an incumbent puts the opposition in an unavoidable “fight or flight” bind to the great risk of public safety and stability, affecting the majority who are ardently supportive of neither “side” in the actual campaign.

As Americans we naturally prefer to see Africans choose the “flight” option rather than the “fight” option in most cases.  There are a variety of reasons for this, some that are morally well grounded and some that are morally questionable.  Some of it is compassion; some of it is geopolitical self interest; part of it may be unique to more individualized interests and relationships.  In European countries especially, for instance Ukraine, and in other parts of the world, we often weigh these choices differently.  

In Kenya, it would be most convenient for us, of course, if the opposition stood down, kept quiet, and trusted their government and the donors to handle election administration like in 2007 and 2013.  We know that we cannot ask that explicitly and we see that the IEBC has lost wide confidence from the public but we seem to be unwilling to directly engage in support of reform now.

I would not want to see any of my Kenyan friends or acquaintences sacrifice bodily harm for any of the Kenyan politicians I knew personally from the 2007 campaign.  In 2007 I thought that Kalonzo, Kibaki and Odinga were all three reasonably plausible and well experienced, well known choices; the election itself ought not to have been seen as particularly high risk or high reward, one way or the other, for the vast majority of Kenyans.

However, as I am deeply grateful that my ancestors made the sacrifices required for me to inherit the benefits of a democratic system here in the United States, I would be embarrased to suggest–and am always disappointed to see my government imply–that Kenyans should simply knuckle under and accept that they do not have the freedom-in-fact that their constitution says on paper, under the law, that they have achieved. 

The opposition has generated an opening for reform through the aggressive and disturbing police brutality meted out against them by the government.  There needs to be a pivot, however, to a more nuanced approach if meaningful reform is to be achieved that advances the causes of both non-violent politics and freedom.

The opposition pols seem to focus on the personalities and roles of the IEBC commissioners.  Obviously someone like Hassan who has relished an extraneous public profile as the nemesis of one potential candidate has gone beyond the point of being a trusted neutral in the future, but the delay in the election date that seems to be in the offing from yet another round of procurement “issues” can cycle tainted individuals out of office.  Reform and systemic trust is a much deeper problem than that however–and it is too important to all Kenyans and the country as a whole to be left to the competing camps of pols.

Kenyan democrats should call out the donors.  If we say we are serious about supporting dialogue why not ask us to show a bit of leadership to go with our cash underwriting?

As for me, I am waiting on the first documents from months ago from a FOIA to USAID to understand more about our spending on the IEBC procurements last time.  No sign yet that our advocacy of “open government” is penetrating our approach to democracy assistance in Kenya, but I certainly think transparency would be hugely helpful in supporting real problem solving and rebuilding trust.

(Updated) U.S. and IGAD statements on #Djibouti election

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imageIn the previous Djibouti election in 2011 the incumbent administration kicked out the US-funded Democracy International Election Observation Mission–this time we didn’t go, nor offer substantive criticism of Guellah’s latest re-election:

“The United States commends the Djiboutian people for peacefully exercising their right to vote during their country’s April 8 presidential election.

While elections are an integral component of all democratic societies, democracy is also built on the foundation of rule of law, civil liberties, and open political discourse between all stakeholders. We encourage the Government of Djibouti to support the freedoms of peaceful assembly, association, and expression for all of Djibouti’s citizens.

The United States has a strong partnership with Djibouti. We look forward to advancing our shared interests and helping Djiboutians build a more prosperous, secure, and democratic future. We take note of the reports released by the Intergovernmental Authority on Development, the African Union, and others and the recommendations by the African Union on improving future electoral processes in Djibouti. We hope to work with the Government of Djibouti to advance those recommendations.”

In addition to hosting AFRICOM’s Combined Joint Task Force-Horn of Africa (CJTF-HOA) and Japanese military, Djibouti has also agreed to what appears to be a significantly larger Chinese People’s Liberation Army Navy (PLAN) base.  Obviously we can’t buy love, but perhaps Djibouti can buy quiet on democratization pressures?

See “Jostling for Djibouti” from Katrina Manson at the Financial Times. Outstanding journalism, setting the scene in the country before the vote.

From RFI’s Clea Broadhurst following the vote:

Ahead of Friday’s vote, opposition groups had complained of curbs on freedom of assembly while rights groups accused the government of political repression and crackdowns on basic freedoms.

Djibouti has been on the radar of human rights groups for some time, with allegations of a pattern of political repression and lack of freedom of expression. Just days before Friday’s election, three BBC journalists were detained and expelled from the country without explanation.

“Everybody knew that Ismaïl Omar Guelleh would be the winner of those elections. It’s important to understand the real opposition did boycott those elections because there was absolutely no guarantee for a fair, transparent and democratic election,” Dimitri Verdonck, the president of the association Culture and Progress working on human rights issues in Djibouti, told RFI.

“It’s important to know also that the international community is looking at these elections with a very high level of caution. The European Union did not send any observers in Djibouti, same goes for the United States and other partners of Djibouti – the only ones who did accept to be there during the elections are the Arab League and some members of the African Union. But nobody wants to give any credibility to these elections.”

Well, not no one exactly:  the dependable and indefatigable Issack Hassan, chair of Kenya’s IEBC, headed up an IGAD observation delegation. “The overall objective of the Mission was to observe the Presidential Elections held on April l 8th in Djibouti in the efforts by this country to conduct free, fair, and credible elections by providing positive and constructive feedback.”

Here is the Conclusion from the IGAD EOM Preliminary Statement:

CONCLUSION
IGAD Election Observer Mission was limited to three days observation only which entailed two days of pre-election assessment and the observation of the voting day on the poll opening, polling, poll closing and vote, counting and tallying processes. Therefore, the Mission will not be in a position to provide complete and comprehensive conclusions on the entire election process. However based on what it has been able to observe, the Mission preliminary conclusion is that the 2016 Presidential election was conducted in a transparent, peaceful, and orderly manner and in accordance with the Constitution and the laws governing the Republic of Djibouti.

IGAD wishes to take this opportunity to express its gratitude to Ministry of Foreign Affairs and the International Cooperation and the Ministry of Interior of the Republic of Djibouti, the Constitutional Council, the National Independent Electoral Commission (CENI) as well as the Media for the assistance rendered to IGAD to make the Observer Mission task easy.

Finally, the Observer Mission would like to congratulate the people of the Republic of Djibouti for the peaceful and orderly manner in which they conducted the election and wish them peace, continuous progress and prosperity.

Done on 9th April 2016, Kempinski Palace Hotel,
Djibouti, Republic of Djibouti

When Amb. Gration was purged in mid-2012, the Secretary of State had been using her private email system for 3 1/2 years

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This was my point from the last post.  I was prompted by the latest news stories in the international press about Secretary Clinton’s emails containing top secret material not being released.

Obviously, in releasing a report from the Acting Inspector General focused on criticizing Ambassador Gration’s email security and public records compliance in mid-2012 coinciding with the Ambassador’s resignation, the State Department was surely “blowing smoke”.  Plenty of people involved in this, aside from the Secretary of State and the President, must have known that the Secretary herself was using an insecure, “off the public record” system for her own official emails.

Did the Acting Inspector General know? If not, shouldn’t someone have told him?

I don’t know Ambassador Gration and was not in Kenya during his tenure and have no opinions or personal knowledge about the backstory (but will note that someone at the State Department bothered to mention a day ahead of time that the OIG’s report was coming out and the Ambassador was leaving).  Likewise, I am uncommitted and unaffiliated regarding the U.S. presidential race.  My interest here is that this is a foreign policy and public records issue regarding Kenya.

See: Hillary Clinton, Scott Gration and “public-private” email at the State Department

Remember what the State Department’s Acting Inspector General said about Ambassador Gration’s email in 2012

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State Department OIG on Amb. Gration Email

Having apologized for having gotten our shoes in the way of the vomit, donors to Kenya’s government are now finally alarmed again about the (ongoing) corruption

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Here is the latest from Kenya’s Journalists for Justice on the corrupt involvement of personnel in the Kenya Defense Forces in the charcoal and sugar smuggling trade.

It’s not so much that I’m jaded, it’s just that I have watched this movie before–and even been an “extra” of sorts in one of the previous remakes.

Yes, corruption is obviously getting even worse within this Kenyan administration than within the last.  But that was also true when I lived in Kenya during the end of the first Kibaki administration and into the beginning of the second.

There are several readily apparent reasons.  For instance, when I lived in Kenya I made the acquaintance of a Western expat whose spouse was in the tourism business. Prior to the 2007 vote count corruption and violence, the tourism business was booming.  But corruption was up as a cost of doing business as it was explained to me because to operate you had to pay off a second generation, too–the kids of the senior politicians.  Presumably this generational expansion has continued.  Why wouldn’t it?

The year before I moved to Kenya the UK and US envoys had been outspokenly opposed to the corruption, in the context of the Anglo Leasing revelations by John Githongo of massive corruption involving national security procurements, touching our own security interests aside from our sensibilities about criminal behavior, along with the outrageous shenanigans involving the Artur Brothers, and the Standard media raid, among others.  The British envoy even offered the memorably colorful “vomit on our (the donors’) shoes” metaphor about the extent of the gluttonous “eating”.

But by the time I arrived in mid-2007 things were different.  New personnel led the diplomatic missions.  On the US side we apparently helped Moi and Kibaki get back together, and hosted Interior Minister John Michuki, of “rattling the snake” fame, who had taken credit for the Standard raid, on a security tour of the U.S.  Michuki represented Kibaki at our Embassy’s Fourth of July party, where Moi unofficially planted himself to catch the receiving line.

And then we looked the other way at the corruption of the Electoral Commission of Kenya.  Ambassador Ranneberger made sure to get his predecessor Ambassador Bellamy removed from our IRI Election Observation Mission on the basis that he was “perceived as anti-government”.  Bellamy had spoken out on the corruption, in particular the Standard raid.  The week before the vote, Ranneberger noted for the Kenyan public that Kenya was “on track” in fighting the vice of corruption, that  we had had Enron in the U.S., that prosecutions for Anglo Leasing and Goldenburg could take time, and that the World Bank had given the Kibaki administration an award for procurement reform (of all things) and that he expected a “free and fair” election.  And then we tried at first to sell the ECK’s election “count” even though we knew full well that it was bogus.  When that didn’t fly, we supported “power sharing” so long as there was no new election before Kibaki’s full second term was up.  According to a news report from Nairobi years later from stolen cables from “Wikileaks” we issued a couple of “travel bans” based on alleged evidence of bribery against two of the ECK commissioners, but we never disclosed this action or the evidence, why we singled out these two or anything else about the matter.

During the post election violence a diplomat explained to me that the reason many of the younger pols in Kibaki’s PNU coalition were against a power sharing settlement was that they didn’t want to share the secondary ministry appointments.  Ultimately by adding opposition politicians into the second Kibaki administration through “power sharing” with extra ministries you further expanded the multigenerational set of stomachs to let eat.  One way to look at the settlement naturally has been that Kibaki and Raila were willing to stop the fighting (so long as Kibaki retained with further ambiguity the full second term Presidency which the ECK had delivered to him) and the rest were bribed to acquiesce.

So you cannot tell me with a straight face that the diplomatic position of the United States in 2007-08 was to “oppose” corruption as a high rather than a subordinated priority.

After being stung by criticism from the election debacle, Ranneberger was reborn as an outspoken “reform agenda” campaigner for his extended tour on through the passage of a new constitution.  He compiled dossiers on money laundering and drug smuggling through politico/business interests and encouraged action, albeit to no avail. His successors quietly moved on, however, and we helped sell a new badly handled election in 2013 by a new, but probably more pervasively corrupted electoral authority.  We helped pay for expensive technology that was doomed by procurement fraud but kept quiet.  The British Serious Fraud Office successfully prosecuted one of their companies and its owners for bribes on other election procurements, but the Kenyan administration has taken no action to follow up and we have kept our silence.

With time, we have come again to affectionately embrace our usual suspect “partners”, with new programs headquartered in our favorite African city of Nairobi.  A photo op in the Oval Office with POTUS and FLOTUS for the Kenyan President and First Lady last year, followed this summer by a glowing official Presidential visit to Nairobi with a telegenic dance party at State House.   Never mind what we said before; please can we give you more?  Some eloquent speech about the cost of corruption, safely abstract from the burgeoning accumulation of years of specific cases on the impunity docket.  Yes we can dance with this new set of shoes without even looking down at the vomit.

Surely then it can be no surprise that things have gotten that much worse.  With a new report by Kenyan journalists on the longstanding implication of Kenyan Defense Forces which we help underwrite in Jubaland in the sugar and charcoal smuggling rackets, and fresh levels of embarrassment from the international press from the National Youth Service, irregular handling of bond proceeds amid rising debt levels, more land grabbing and another looted bank, all with a new election cycle approaching, the season has turned again and it is the time for furrowed brows.  Time for the U.S. to lead a donor group to call on the current version of the anti-corruption authority.  To talk again of “visa bans” and offers again to assist in “asset recovery”.

Instead of another remake, could this be a sequel offering a surprise ending, with say, even a few villains in jail, or at least less rich, as a cautionary tale for some and a bit of hope and inspiration for others? Or is this just another iteration of “the formula” in which the sheriff rides into town, frowns at the drunken brawl, then passes along to enjoy the cinematic scenery on the way home?

Only time will tell.  I do think we genuinely would prefer to be against the corruption rather than aligned with it.  We just lose our nerve and get distracted by other priorities that seem more immediate.  Making a dent in Kenya’s entrenched culture of impunity would take a long hard slog, in the face of bitter opposition formal and informal.  It would be messy and likely involve putting up with a bit of embarrassment–it could involve some risk and actual cost.  In any event  it would take a good while for us to convince the players that we had become serious.

An insider’s explanation of the difference between a “free and fair” election and a “will of the people” election–Kriegler deputy’s memoir

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Air Show

 

In his book Birth: the Conspiracy to Stop the ’94 Election, Peter Harris, a South African lawyer who was in charge of the “election-monitoring division” of that country’s Independent Electoral Commission in 1994 (under Johann Kriegler, later appointed by President Kibaki to head Kenya’s 2008 IREC or “Kriegler Commission”, charged under Kenya’s 2008 post-election settlement with, inter alia, investigating the failed presidential vote) elaborates:

“Why would anyone want to run a free and fair election that will remove them from power? . . . Enter the election-monitoring division, whose primary job is to ensure that the election is free and fair. . . .
What constitutes a free and fair is a major issue for us.  The high level of violence can have a major effect.  In short, the tense situation in Bophuthatswana can jeopardize everything.
Declaring an election free and fair depends on a number of considerations, but chief among them is the ‘freedom of voters to vote in secret, free from violence and coercion’, and ‘access to secure voting stations’.
Since his appointment, Steven Friedman and his information and analysis department have been monitoring the situation closely.  Their final talks will be to produce a report that will help the commissioners make a finding on whether the election was free and fair and a reflection of the will of the people.
I rather like the ‘will of the people’ bit; it reminds me of one of those classic legal catch-all clauses that provide an escape route if all else fails.  It is a bit like ‘sufficient consensus,’ that famous methodology for reaching agreement at constitutional negotiations.  In real terms this means if the ANC and the National Party agree there was ‘sufficient consensus’, then bugger the rest.  The real reason I like ‘the will of the people’ is because, as we hurtle closer to this election, it is clear to me that there is a lot that can, and probably will, go wrong.

Under Kenyan law under the 2010 Constitution, as in effect for the last election in 2013, this issue of potential circumlocution about election shortcomings is solved: the Constitution mandates a “free and fair” minimum standard.  I have written previously that I had picked up on discussion in Washington ahead of the 2013 Kenyan election harking back to the “will of the people” hedging language used by Westerners in reference to Moi’s re-elections in the 1990’s.

I ended up in an indirect disagreement through the pages of Africa in Fact magazine with the spokesmen for the Western government-funded election observation missions (the Carter Center from the US and the EU mission) about the significance of the conspicuous absence of reference to the higher (and legally mandated) standard in their Preliminary Statements following the voting.

The titular conspiracy that the Harris memoir discloses, but does not explain in detail, is that hackers penetrated the electoral commission ICT systems and changed vote tallies in progress.  And that the fraud was discovered by the embedded IFES (International Foundation for Electoral Systems) team funded by the U.S., addressed internally within the Electoral Commission and not disclosed at the time.

The hackers were adding votes for third parties apparently not to disrupt the ANC’s win, but rather to manipulate the overall percentage seemingly to avoid letting the ANC have the parliamentary margin to change the new constitution.

The South African Electoral Commission suspended the vote tally without explaining about the infiltration of the system.  A technology work around was created but the overall control system for handling the count broke down.  Through heroic logistical efforts, intricate private political negotiations and with the grace of fortunate “communications” efforts, the election process was “saved” to the extent of being accepted as a rough approximation of the “will of the people” in the context of moving from majority rule in an electorate of 22 million from the existing system of rule determined by competition among no more than a 3 million voter privileged minority.  Close enough for “horseshoes or hand grenades” as we say.  Close enough to an actual count of each individual’s vote for a “free and fair” election? Not so much.

In South Africa in 1994 there was an understood consensus that the purpose of the first broadly democratic election was to transfer power from the minority National Party the majority ANC while containing conflict from other factions “white” and “black”.  The time allocated and resources available made a free and fair election as such wholly beyond the potential of the endeavor.

Thus the situation in South Africa in 1994 was radically different than the electoral management task presented to the Kenya’s ECK and IEBC (and IFES) in 2007 and 2013.

In 2013 Judge Kriegler was back in Kenya some and was a frequent public commentor on contentious matters involving politics and the electoral commission.  It would seem easy to argue that his approach and expectations in Kenya leaned too heavily on the very dissimilar task he faced in his electoral commission experience in South Africa.

Tanzania Decides: EU, Commonwealth, AU and SADC observers issue joint statement regarding election and Zanzibar annulment; call for transparency

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October 29 Statement
internationalobservermissionsjointstatement_en.pdf

LSE’s Africa blog asks: Is Tanzania’s National Election Commission credible?