[Updated] “The People’s Court” launch Friday morning in Nairobi

Update: Here is the story from The Star.  And here is “The People’s Court”!

The Daily Nation coverage is here.

10:00am Friday at the Sarova Stanley in Nairobi InformAction and AfriCOG will launch a new online collaboration:

The website is a joint project between AfriCOG and InformAction and is an attempt to present in public all the evidence around the recent elections. Some of that is from the cases filed at the Supreme Court, but it will also include material and information from citizens, observers and others. Citizens will be provided a location to post /Number to send text messages in order to submit any information and evidence they gathered so that the complete truth on the recent elections can emerge.

Importantly, The People’s Court will be an accountability mechanism on the IEBC and the Supreme Court. Analysis of the Court’s decision will be posted on the website hoping to engender critical and constructive discussions on why they took the decision that they did, in the face of the evidence that will be presented.

The People’s Court gives the public unique access to all the evidence filed at the Supreme Court in the Civil Society petition challenging the election process.

By inviting citizen participation, we aim to make institutions accountable and uphold the high democratic standards of the constitution. We also hope that the website will be used as a forum for debate and opinion, celebrating freedom of expression in Kenya and our vibrant tradition of democracy activism.

Is Uhuru on his way to being the next East African authoritarian American darling?

Uhuru Kenya presidential campaign rally trash

Before noting the choice of speakers for the Uhuruto inauguration, the idea that governance in Kenya might be in the process of falling in line with its East African neighbors has been much on my mind since the IEBC’s decision on the election on March 9.

Museveni as the featured speaker–and what he had to say–certainly fits this theme.  Museveni can readily castigate the ICC and “the West” for meddlesome advocacy of international standards, knowing that he has a mutual “security” relationship at a deeper level with the United States.  He gets criticized by the U.S. for changing the constitution to stay in power, and for taking and keeping control of the Ugandan electoral commission–but without discernible “consequences”.

Uhuru himself in his speech said nothing about corruption–a major theme in the KANU to NARC transition and the original Kibaki inauguration, and well understood to be the Achilles Heel for Kenya’s economy.  And as I have noted before, the Jubilee platform’s only “plank” relating to governance is a proposal for active state intervention in the civil society arena.

Museveni and his NRM have been associated with the KANU of Moi and of Uhuru and Ruto over the years and at some level Kenya post-Moi has been an outlier in the East African Community of Uganda, Rwanda, Burundi and Tanzania.  As well as Museveni, one naturally thinks of Rwanda’s Paul Kagame and the recently departed Meles Zenawi in Ethiopia as authoritarian heads of state who could count on strong support in Washington at a variety of levels–both in terms of underlying security relationships and friendships with American politicians who could be counted on for advocacy in the face of international controversy.

Uhuru himself, quite the contrary to his short-lived campaign rhetoric this year as an ICC indictee, has been a favorite Kenyan politician of many in the American establishment.  He talks the talk well.  He was educated in the U.S. and has been a frequent visitor.  A “family friend” of former Assistant Secretary of State Frazer by reputation.  Rich even by American standards, and a business owner whose inherited fortune was generationally cleansed from openly kleptocratic political origins.  Before the confirmation of the ICC charges but after the 2008 post-election violence when the issues with the alleged funding of the Mungiki attacks in Naivasha and Nakuru were well known, he was a primary lobbyist for the Kenyan government in the U.S. seeking things like a Millennium Challenge Corporation Compact.  Before the 2007 election, he entertained official American visitors including Senator Obama as the “Official Leader of the Opposition”.  He was singled out for positive recognition in a report by CIPE, the Center for International Private Enterprise (the National Endowment for Democracy’s core institute under the United States Chamber of Commerce) and was spoken of in government as a Kenyan who “says the right things”.

A U.S. foreign policy establishment view on how the United States should deal with a Kenyatta administration was offered in a Foreign Affairs piece by Bronwyn Bruton of the Atlantic Council just before the election:

. . . In all likelihood, the first round of voting will lead to a runoff election on April 10 between Raila Odinga, the current prime minister of Kenya’s hastily-constructed unity government, and Uhuru Kenyatta, Kenya’s deputy Prime Minster and the son of Kenya’s first president. The tightness of the race bodes ill; it is unlikely that either side will be able to score a quick victory, and it will not take much vote rigging to influence the election’s outcome. The losing party is virtually certain, therefore, to contest the results. Some violence, in other words, seems all but assured. The question is how long it will last, whether it will spread nationwide, and how many people will be displaced, injured, or killed

Most of the piece is behind the firewall so I won’t copy it here, but she goes on to argue that U.S. interests counsel what I would characterize as essentially a business as usual approach to Uhuru (and by implication of course Ruto) unless and until they end up eventually convicted by the ICC.  I shared this with a friend in Washington with the comment that this could be read as a Washington argument not to get too exercised if Uhuru helped himself to some extra votes to win–the risk of instability was very high and the downside to having Uhuru in office wasn’t that great.

The Carter Center has released another round of reporting on the election, “slamming” the IEBC, but concluding with a factually unsupported pronouncement that in spite of the electoral commission’s many failures their announced result happened to “reflect the will of the Kenyan people”.  This was language being tossed around in certain circles before the election with reference to Moi’s races back in the ’90s.  How to say an election is bad but the incumbent or other beneficiary of the state misconduct would have won anyway? The big difference in 2013, of course, should have been that the Kenyan voters had approved–with much U.S. support–a new constitution that was supposed to end the “first past the post” system that so benefited Moi and require a “runoff to majority”.  When you read the Carter Center report it is clear that there is no way they can offer any substantive assurance at all for the IEBC’s award of just enough to Uhuru to avoid that runoff.

But, there are interests at stake besides justice–there is also “stability”, and “peacekeeping” troops in Somalia, etc., etc.

So we shall see.  I hope for the best for Kenya, but the Uhuruto ascendancy looks to me like a big win for tribal chauvinism and a real step back in terms of democratic ideals.  Kenya is very different from either Rwanda or Ethiopia, and from Uganda, too.  Whatever excuses one makes for Kagame and Museveni in their own postwar environments, to me, ought not to apply to Kenyatta or Uhuru in Kenya.

African Great Lakes Initiative releases report on observation of Kenya elections

I have previously praised the grassroots observation approach and thoroughness of the AGLI in observing the referendum vote in 2010.

Here is their report on the March 4 general Kenya elections.  Basically they found widespread problems in the areas they observed and reported on in detail.  They did not aspire to cover the whole country and thus make no claims as to the total impact of the problems, but show clearly that there were multiple avenues and opportunities for widespread fraud.

In particular, they observed extra presidential ballots being given out by a polling clerk in one station.  The observer reported the matter and the clerk was arrested, but the polling station ended up with roughly 100 extra votes for president over the votes for the other races, and this was apparently reported on and included in the national totals.  This type of conduct would be one explanation for the huge overvote in the presidential race.  I have not seen other explanations . . .

The AGLI recommends a post election audit by the IEBC and an outside group now that the Supreme Court has ruled without delving into the details so that the process can be improved.

 

Initial thoughts on Kenya’s Supreme Court ruling

Congratulations to Kenyans on a peaceful resolution and Happy Easter.

First comment: we do all see that election violence in Kenya is not inevitable; what happened in 2007 has identifiable causes even if they have not been acknowledged or addressed, primarily the conduct of various politicians. People in Kenya do not simply run out and start killing their neighbors because their side lost an election. Having a credible Court helps a great deal, thanks to the passage of the new Constitution after all these years; kudos to those that made it happen through years of struggle.

Second: I am very proud of AfriCOG for carrying forward a tremendous amount of work in an unconscionably short amount of time to show that there were many unanswered questions about how the election was conducted and why, and how the votes cast at the polling stations were transformed into the March 9 “final results”. They carried a burden that should have been borne by an objective and independent IEBC, rather than facing a united front of the Government of Kenya aligned against scrutiny.

Third: I assume the Court announced what they agreed on unanimously, which was that the outcome was to deny the petitions. Whether or not all six justices individually agreed is something that we will probably never really know, but we will have to wait for the Court’s opinion in two weeks to learn more. Given the short amount of time and the schedule they have already been on, I suspect we will not get as much detail then as many have hoped for, but we will have to see.

Fourth: The Court ruled that each side was to bear its own costs–not the ordinary practice. I think this disposes of the claims by some on the Government side that the ruling indicates that the challenges were not substantial.

[Updated Wednesday] Kenyan election: What kind of “audit” did the IEBC do without the actual voter registration lists used? Will the Supreme Court require the registers to be disclosed as sought by AfriCOG?

Watch the hearings live: Citizen TV; or the other Kenyan networks.

At 9am tomorrow [Wednesday] in Nairobi, the Kenyan Supreme Court is scheduled to announce a key ruling. The issue is whether or not the Independent Electoral and Boundaries Commission (IEBC) will be required to produce for scrutiny the actual voter registration lists used in the voting.

[Update: On Wednesday morning, the Supreme Court denied the production request from AfriCOG as time-barred, saying it needed to have been filed with the original petition. Once again, the Court seems to be treating this as ordinary civil litigation subject to procedures but without the months or years that would ordinarily be involved in developing the facts of the case. The hearing has begun and the case will be decided without much evidence, which at some level was always inevitable given the time frame and the position of the IEBC as party litigant rather than a neutral body that would willingly cooperate with scrutiny.]

The issue is before the Court due to the vigorous opposition, played out over two days in preliminary hearings, by the IEBC and the proponents of its March 9 “final results” to a request for these public records from AfriCOG.  On Monday afternoon, the Court heard the complaints of the IEBC side that AfriCOG had not formally served copies on enough of the various lawyers for the government and the other respondents for parties who are not directly implicated in the custody of the records.  Thus, more copies served, arguments were held this morning, with decision tomorrow.

Here is CapitalFM on the procedural arguments against production: “AFRICOG plea for voter register opposed.”

Attacks on Kenyan Civil Society prefigured in Jubilee “manifesto”

The Jubilee (UhuRuto) Coalition manifesto contains a section entitled “Good Governance” which strikingly in a country with so many governance challenges, contains only one section, on “the challenge” of “managing our relationship” with civil society:

THE CHALLENGE

The influence of Civil Society has expanded over the years to the point where the various Civil Society groups play an important role in the country’s political and economic development. In the years following the signing of the National Accord, the sector has grown in stature, influencing government decisions, political culture, and key appointments. We must identify new and innovative ways of working with the sector so that the country can fully benefit from its expertise and experience.

THE OPPORTUNITY

We believe that NGOs have a valuable role to play in monitoring government and helping to strengthen the social infrastructure in our country. We shall manage our relationship with the NGO sector in accordance with internationally recognized best practices.

SOLUTIONS

The Coalition government will:

  • Introduce a Charities Act to regulate political campaigning by NGOs, to ensure that they only campaign on issues that promote their core remit and do not engage in party politics. This will also establish full transparency in funding both for NGOs and individual projects.
  • Establish a Charities Agency to provide an annual budgetary allocation to the NGO sector.
  • Promote accountability and coordination between the NGO sector and national and county governments.
  • Develop strong partnership with the NGO sector that enhances the country’s development agenda and promotes the interests of the people of Kenya.

So what does this mean?  Clearly, what is proposed is substantial “regulation” and government involvement in the workings of civil society.  This was understood by many in civil society before the election to refer to “Ethiopian” style control–you could also look at Rwanda and Uganda for other regimes in the EAC.

Since the election, we have seen some nasty, conspiratorialist, attacks on civil society for not getting in line with the IEBC’s announced result. See “Kenyans fundamental rights under attack” from Mugambi Kiai in the Nation, responding.

 

“Media Zombie” stirs as Kenyan legal process moves forward [updated]

[Update: here is the Sunday Standard, “How Raila’s poll petition may change the whole game”]

“The many questions IEBC needs to clear with Kenyans over elections.” The Saturday Nation

The “media zombie” awakes with a recitation of damning basic questions about the systems employed by the IEBC.

AfriCOG and other Kenyan civil society groups were left as lonely voices before the election while the public relations of the IEBC and the rest of the Kenyan Government, propped up as best I can see so far by the “western donors” (with money from taxpayers like me) and the “aid industry” peddled false assurance. I will have to admit that the situation is significantly worse than I had realized.

And then beyond the systems that were not even seriously in place, we have the specifics of bogus numbers coming out with election challenge petitions by AfriCOG and by the CORD campaign filed today. So much like 2007 only worse in terms of a mass “overvote” in the presidential race.

“Halt the Party, It’s not yet Uhuru”, Wycliffe Muga in The Star.

In the New York Times, Jeffrey Gettleman notes the extreme pressure on Kenya’s judges:

The case is sure to be a test of Kenya’s recently overhauled judiciary. It is now much more widely respected, but some analysts have questioned whether all six Supreme Court justices will be able to withstand the pressure of refereeing such a high stakes contest for power. Even before the election, the chief justice received death threats, and analysts have raised questions about the independence of some of the other justices.

To avoid confusion about the Kenyan ELOG “Parallel Vote Tabulation” . . .

Quote

Freeandfair Kenya on March 11, 2013 at 11:14 am said:

The most publicly available check on the elections — the Parallel Vote Tabulation done by ELOG did everyone a disservice by saying their results were “consistent” with the IEBC’s. This makes it sound as if it supported the IEBC’s count. It does nothing of the kind. See http://www.ndi.org/files/Kenya-ELOG-PVT-statement-030913.pdf. Not only do they find that Uhuru received 49.7% of the vote, they have a margin of error of 2.7%. This means that MOST of their prediction is for a RUNOFF. A tragic, incorrect, and unprofessional use of terms.

This was a comment in response to my post “Overall Observation on the Observations”–this is important and apparently there has been some confusion.

Freedom of Information Series (Part Eleven): Better to Learn More Lessons from Kenya’s Last Election After the Next One?

Back last May I had checked in with the State Department’s Freedom of Information Office about the status of outstanding documents from my 2009 FOIA requests regarding the 2007 Kenya elections.

At that time the FOIA Office wrote me that State Department documents about the IRI and USAID Exit Poll had finally been received from the Africa Bureau, presumably including the U.S. Embassy in Kenya, in addition to just the Central Records in Washington. (From what I had been told by the FOIA Office previously, the Africa Bureau did not respond for well more than two years following my original FOIA submission.) The estimated additional time to review and release documents was six months, to November 30, 2012.

November 30 came and went with no documents. i wrote to request release on an expedited basis due to the new elections upcoming but got no response. Checking back I was eventually given a new date of May 2013, after the new Kenyan elections.

A lot of people in a variety of capacities in the U.S. government, or otherwise funded by U.S. taxpayers, are working on matters involving the March Kenya elections. Likewise, from other donor governments and international organizations. And of course Kenyans who bore the actual effects of the disaster in the last elections have the most at stake in the new elections. Why further delay disclosing and addressing the documentary record from 2007?

Impunity for election fraud in 2007 makes the 2013 Kenya elections riskier. Even though there will be no accountability now, Americans and Kenyans should at least know as much as possible about what happened.