“Do not be afraid. The government will protect you.” KANU Revivalists offer alternative to democratic values in Kenya

Shortly after I arrived in Kenya in mid-2007, Kenya’s parliament passed a media regulation bill which faced a storm of international diplomatic criticism as well as domestic protest.

President Kibaki at the time backed down and sent the bill back to Parliament where it was ultimately somewhat watered down. New legislation passed last week goes much further than what was dared under the first Kibaki Administration, in spite of the new constitution. This time there doesn’t seem to be much reaction from international governments–we give our aid money quietly and tiptoe so as not to step on important toes since we have been aggressively accused of imperialism and racism for not intervening to stop the ICC prosecutions of The Now Elected for the mayhem after the 2007 election–but the international media is much more aware of these issues than they were in 2007.

And if the media bill has been put in some limbo, it has been followed by the introduction of the Jubilee bill to assert more state control over civil society and restrict and channel foreign funding to non-governmental organizations. The Uhuruto team had not shown its cards on attacking the media during the election campaign, but civil society was always a known target. See Attacks on Kenyan Civil Society prefigured in Jubilee Manifesto, my post from March this year.  More freedom for the media and for civil society means more restraints on politicians in control of government.  Restricting civil society can help maximize the opportunity to control the media, and vice versa.

Kenyans are confronted once again by the hard choice of whether they are willing to challenge their “leaders” in governmental power to maintain their individual freedoms as citizens.

Uhuru Kenyatta stayed with KANU throughout his life through the formation of TNA as a vehicle for his presidential campaign in this year’s race.  Other than running in elections himself, he has not given much indication over the years that I am aware of being concerned for opening the democratic space and by running as “Moi’s Project” as the KANU nominee in 2002 he chose the old banner.  Of course when you are one of the richest men in Africa, and your mother is one of the richest women, because of what your father took for himself and his family when he was the one-party ruler, you find yourself with plenty of freedom of speech and freedom to politically organize regardless of the details of the system that confront the small people.

In the wake of the Westgate attack, and the desire of the government to avoid scrutiny or challenge, I am reminded poignantly of what Kibaki said when he first ventured out thirteen days after he had himself sworn in for his second term:

January 9, 2008–13 days after the 2007 election (NBC News):

Kibaki made his first trip to a trouble spot, addressing more than 1,000 refugees in western Kenya, many of whom had fled blazing homes, pursued by rock-throwing mobs wielding machetes and bows and arrows.
“Do not be afraid. The government will protect you. Nobody is going to be chased from where they live,” Kibaki said at a school transformed into a camp for the displaced in the corn-farming community of Burnt Forest. “Those who have been inciting people and brought this mayhem will be brought to justice.”
He indicated he would not consider demands for a new election or vote recount.
The election “is finished, and anybody who thinks they can turn it around should know that it’s not possible and it will never be possible,” he said.

Perhaps for those Kenyans that feel sure that the government will always protect them, there is no need for these things of a free media, civil society, the questioning of elections.  Kenya could just go back to the Chinese model of the one party state.  Kenyans who prefer a freer, more empowered citizenship as a matter of values, or who don’t feel they can count on the government to always protect them will have to decide to engage to protect those rights which are of course expressed in law in the new constitution.  See “CIC (Commission for the Implementation of the Constitution) says new media law unconstitutional”, Daily Nation.

Kenyan Media

Kenyan Media

Was Kenya’s “Election Observation Group” or ELOG intended to be truly independent of IEBC? Or was it to “build confidence”? [Update 3-30 Further on “Overselling” ELOG and ELOG’s use by Counsel for the Gov’t in Court]

By appearances, ELOG certainly looks more like part of the effort to “build confidence” in the IEBC (to “promote peace”) rather than an independent watchdog.

Which would explain the problem noted in my previous post that their Parallel Vote Tabulation results by their own numbers indicate that most likely there should be a runoff between Kenyatta and Odinga but they announced that their results “confirm” the IEBC which found otherwise.  It would also explain why they have announced “conclusions” in support of the IEBC but not released their data or even their methodology.  Ironically, USAID, which supported the Parallel Vote Tabulation, also spent a lot of money over a period of years promoting greater sophistication in the Kenyan media in expecting transparency regarding polling methodology.  Today, in Kenya, the media would not ordinarily publish polling results with the lack of transparency that has accompanied ELOG’s PVT, which is based on some sort of an undisclosed “sampling” methodology akin to that used in other polling.

“Must reads” follow:

Kenya’s Election Observation Group (ELOG) announces its Parallel Vote Tabulation (PVT) program as monitoring tool. (Daily Nation, Feb. 18, 2013)

“This (information) will be important to help remove any uncertainties by providing validation to the results given by the IEBC,” he added. . . .

“PVT will measure the votes cast and indicate whether the data should be trusted, based on information about voting and counting of the votes,” said Elog Chairman Kennedy Masime.

“This information will be specific and can be actionable for improving the process next time” he added.

But Elog was quick to warn that it would not be announcing results, a task only IEBC is mandated to perform.

While they will be tabulating results from the polling stations, the Observers said they would be in constant consultation with the Commission before releasing their verdict.

“We foresee a situation where if the elections are well managed, then there will be no fundamental differences with IEBC. But in the event that there is, then we would consult with the Commission,” Elog said in a joint statement.

USAID/Kenya–Success Stories: “Giving Fresh Credibility to Kenya’s Electoral System” (Feb. 8, 2013)

The Independent Electoral and Boundaries Commission registered 14.3 million voters using the biometric voter registration technology system. Biometric data captured during the registration is  is being  linked with electronic voter identifiers (electronic poll books)  while text data is being used  for real time electronic result transmission and display systems. The United States Agency for International Development (USAID) invested over $ 6 million USD in the two systems, through United Nations Development Programme (UNDP) and International Foundation for Electoral Systems (IFES). According to analyses, two of the most significant factors attributed to the failure of the 2007 election were the inability of the Electoral Commission of Kenya to compile a credible voter register, and the lack of an efficient results reporting system.

USAID has partnered with Civil Society Organizations  to ensure the effective use of the biometric voter registration technology in the upcoming 2013 presidential elections, to prevent fraud and reduce the likelihood of violence. . . .

Too bad the voter register was not finalized and published as required by law and the technology tools never fully designed and for the most part not implemented “on the ground” in the actual election.  A robust independent monitoring organization would, one would think, have more to say about that but, if these efforts were already a “success story” before the voting for bringing “fresh credibility” it becomes awkward . . .

USAID/Kenya–Success Stories: Parallel Vote Tabulation Restores Confidence in Kenyan Voters (Dec. 14, 2010):

The PVT – as acknowledged by the IIEC Chairman Ahmed Issack Hassan – was crucial in verifying the legitimacy of the referendum process as a whole and in restoring public confidence in the electoral process in Kenya.

Again, the overriding goal, achieving “success story” status, is to give the Kenyan public “confidence”.

 UPDATE:

An example of how the PVT has been oversold is a quote from the CapitalFM story covering the ELOG announcement on Saturday March 9 under the headline “Yes, Uhuru won–parallel vote tally shows”:  
 

“Thus the PVT can confidently verify that the official results for each candidate are accurate,” the group’s chairman, Kennedy Masime, said on Saturday afternoon.”

 
This is the basic point–the PVT result of 49.7 cannot “confidently verify” that Uhuru got 50%+1 at all.
 
Such statements then got translated further into statements like this from Ken Opalo in an interview in The Atlantic:

I don’t think the system meltdown affected the eventual result – a Parallel Vote Tabulation done by Elections Observation Group confirmed IEBC’s findings – but it raised concerns over IEBC’s vulnerability to manipulation. (emphasis added)

If ELOG does not wish to be a party to this, they can dial it back and have had more than two three weeks to do so; and more than two three weeks to release the details of their methodology and how it was executed as reputable polling firms are expected to do these days in Kenya.
Ultimately, ELOG’s initial statement was cited by respondents in the Supreme Court as evidence to uphold the IEBC’s decision to avoid a runoff even though ELOG had declined to be transparent and neutral by withholding its methodology and data.  Given the nature of the proceedings, there was no time in Court for either AfriCOG or CORD to probe or rebut the purported evidence from the Goverment.

“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.

“Peace,” “Truth” and American commentary in the wake of the election

“Peace versus Truth: A Story of Unnecessary Trade-Offs”.

“Indictee for President!”  Michella Wrong writes in the New York Times Latitude blog on how “being prosecuted by the ICC helped Uhuru Kenyatta’s chances in the Kenyan election.”  I would go a little further back and identify the ICC indictment as the impetus for Uhuru’s launching of his TNA party and his run for President in the first place, through his emergence as the dominant Kikuyu candidate.  In other words, absent the ICC factor, I doubt Kenyatta would have run, or at least run seriously, and if he had, I doubt he would have gotten very far early on.

Here is Jendayi Frazer’s solo interview on PBS NewsHour last night: “Western Allies Have ‘Muted’ Response to Kenya’s Presidential Election”:  

GWEN IFILL: After all the violence in 2007 and 2008 after the last presidential election, we were all bracing to see if the same thing would happen this time. And so far it has not. Why do you think that is?

JENDAYI FRAZER: Right.

Well, I think the Kenyans learned lessons from 2007. And the civil society very much was guarding their country and guarding against future violence.

They also had this election under entirely new institutions. There’s a brand-new constitution. There’s a de-evolution of power from the center, from the presidency, to governors of 47 counties. There’s county assemblies. And so I think the diffusion of power, the expectations about their new institutions and the lessons learned from 2007 account for the lack of violence this time.

Frazer is right in identifying why the situation in 2013 was different and “the same thing” that happened in 2007-08 was not going to happen this year.  There is an irony, however, for her to invoke the work of Kenyan civil society, and the reforms of the new Constitution, in the context of her advocacy now in regard to this election when William Ruto was the leader of the “reds” who campaigned against the Constitution and  Uhuru Kenyatta was seen as a “watermelon”, nominally “green” or pro-Constitution on the surface, but “red” in substance.  The “Uhuruto” Jubillee Coalition took the position pre-election that it wished to restrict civil society if it took power.

Otherwise, there is much that is very telling in this solo interview about how the American media covers politics in the “developing world” and Africa in particular, and much that is telling about America’s official and unofficial interaction with foreign politicians and leaders.

It should be noted that for someone that served only a short time in the State Department, Frazier has positioned herself as a dominant figure in the Washington media in commenting on this election.  A plausible reason for this relates to the fact that she has deeper roots in the Kenyan scene than her service as Ambassador to South Africa and then Assistant Secretary of State for African Affairs in the Bush Administration.  These roots, however, are not discussed publicly in the context of her commentary on this Kenyan election.  By reputation in Kenya, Frazer is identified widely but privately as a close family friend of the Kenyattas,  Read the following exchange in this context:

GWEN IFILL: Uhuru Kenyatta, you have met him. You know something of him. What do we know about him, other than he’s the son of a very famous leader of the country, a very wealthy man and now is under this cloud?

JENDAYI FRAZER: Well, he’s also very much a person who respects the West. He was educated in the United States. He’s been pro-Western in his outlook.

He’s been the minister of finance before and the deputy prime minister. He’s always had strong relations with the United States. Now, the case against him is problematic. And as it was stated, it’s falling apart. The co-conspirators have all — that were charged with him are charged with attending a particular meeting at statehouse and in that meeting planning reprisals against the violence that was being meted out against the Kikuyus.

But the key eyewitness has now said that he lied and he’s been changing his testimony and has — and even said that he’s taken bribes. And so the case is falling apart.

There is much that is unsaid that may be of vital import.  One question is simply whether Dr. Frazer, especially as a private citizen engaging with this is in a position to be objective about Kenyatta personally beyond describing the basic relationship to the U.S.  Second, and relatedly, there is much more involved here than just the actual status of ICC prosecution’s case: there is also the bigger moral question of whether or not Kenyatta, and his running mate Ruto, are in fact innocent of being directly involved in deliberate killing of innocent Kenyans on the basis of their ethnicity for instrumental political reasons.

From a standpoint of pragmatic realpolitik, as well as for Western private and business interests, it might be convenient now for the ICC cases, especially the case against Kenyatta, to “go away” to protect the ability to do “business as usual”.  Frazer is right that Kenyatta has had ties in the U.S.–he would have been a favorite of some others in the U.S. but for the post-election violence in 2008.  But I do not believe that there are very many Kenyans at all–whether Kenyatta voters or not–who do believe that both Kenyatta and Ruto did not in fact do in essence, if not in exact detail that can be proven in court now, what they are accused of doing in terms of engaging in leadership of “militia” killings.  Kenyatta’s appeal in fact relates to the notion that the use of the Mungiki to kill in the eastern Rift Valley was in some notion “defensive” of Kikuyu killed by members of other tribes in other places further west in the Rift Valley (what Ruto is accused of being involved in).

Part of what is happening here is that by attacking the shortcomings of the ICC and the Western media among others, some are seeking to relieve themselves of some of the moral tension associated with the haunting question of whether “peace” is being bought by the (possible) election of “killers”.

In this context, here is a link to Dr. Frazer’s aggressive interview with Michelle Martin on NPR’s “Tell Me More” this afternoon.

Who would have the outrageous moral audacity to go to court to question 4100 votes out of 12M rather than defer to “crimes against humanity” suspects?

A simple question of what Kenyans chose to expect of and hope for themselves really, for them to answer.

Everyone is tired, no question. Most Kenyans are poor, and the breakdown of the IEBC process caused loss in the economy which hurts poor Kenyans the most. At the same time, the short term value of sweeping another electoral commission fiasco under the rug would be balanced by a huge cost in terms of the dreams of democracy that seemed to have been achieved in the 2002 vote.

The situation regarding the vote is less clear than in 2007, but the meaningful ability to go to court exists this time, unlike in 2007. Should the legal process be shelved now that it is finally available–and if so, will it be available again?

Kenyan High Court, while finding no jurisdiction to examine IEBC’s process because it touches on the election of a President, states that civil society case raises issue that should be examined in appropriate forum

My personal heroes with Kenyan civil society, the African Centre for Open Governance, went to the Kenyan High Court this morning with a petition seeking equitable relief to direct the IEBC to follow the election law, focusing on the verification of actual voting by polling station as discussed in my previous post.

The court ordered argument on jurisdiction alone at 11:00am in front of a three judge panel appointed by the Supreme Court, with ruling to be announced at 3:00. The ruling was not announced until 4:30. The court ruled essentially that any challenge to IEBC procedure related to the presidential election such that it could only be brought in the Supreme Court of Kenya. IEBC’s lawyer also argued that the Supreme Court could only hear the case after the IEBC declares an election result, although that would presumably be a decision for the Supreme Court itself. Thus the High Court “struck off” the case, finding no jurisdiction to act.

However, the Court did state that they had reviewed the affidavits and other evidence presented in support of the petition and found that they raised issues that were “not idle” and should be pursued in the appropriate forum. And ruled that each side to bear its own costs.

Things remain with the IEBC the time being.

Taking Down My Last Post . . . Kenyan Election Is “Overeported” and “Under Researched” based on lack of transparency

The voting was over by Tuesday, March 5. The IEBC (the Kenyan replacement for the previous discredited Electoral Commission of Kenya or “ECK”) then has seven days to announce final results from the votes, which are cast by paper ballot and counted (only) at the individual polling stations around the country. The results at each of the more than 30,000 polling stations around the country are set out on multiple original official forms which are signed by the election official and the political party agents. One original is then posted on the door of the polling station where the counting has been done. This way the public can see the results while the armed guards at the door keep the public out of the room where the physical ballots are secured back in the sealed ballot box after counting.

Since the digital transmission of results failed for reasons that remain unexplained factually but much pontificated about, we are left with less information early than we would have hoped. But, as long as the forms remain available for each polling station, and are open to the public, we ought to be able to nail down how people voted–at least as the votes were counted.

Unfortunately, there is much pressure to rush and do something less than verification based on the actual documented count of the votes.

In 2007, the actual voting results were ultimately never released or disclosed, and while many court petitions were successfully adjudicated in parliamentary and local races, the Kreigler Commission appointed under the post election settlement to investigate the failed election passed on any further effort to actually determine the presidential votes as counted and announced at the polling stations. While there are alleged “official results” published by the ECK, they are only alleged aggregated numbers by parliamentary constituency, not by actual unit of voting and counting.

For my American readers, imagine results for the presidential election that are announced only in aggregate by Congressional District.

See my previous post for the results at the polling station where I observed. This information should be available for each polling station, and should then add up to what is reported as a matter derivatively on up the chain.

First impressions–front and back

I covered the opening of a Nairobi polling centre this morning.

Loose general impressions in comparison with 2007: pre-opening lines seemed even bigger than 2007; large numbers of people got out to que in the pre-dawn; actual voting quite slow as should be expected with new and complicated process and six ballots versus three. There was some stream of periodic boisterousness from people waiting and concerned by bottlenecks–things were quiter in 2007.

One thing that annoyed me was to see that the ballot papers are all white paper except for the color on the front only to correspond with the specific race (i.e. “purple” for woman’s representative to National Assembly). This means when you fold the six ballots for secrecy and to drop them in the color-coded box they look the same. My civil society colleagues raised this issue, among many, with the IEBC. The IEBC reported to one member of the civil society coalition who then circulated the response, that the cheaper ballot papers colored only on one side were only for the “mock election” testing, and that today, voters would have the intended fully colored paper.

Apparently not so. Not that the problem in itself is of such magnitude perhaps, but the quality of the information and means of communication from the IEBC were lacking on this point. And of course it would be good to know, even though it will be too late, what happened in the procurement process to cause this.

Enjoyed meeting diplomatic observers from the Danish Embassy and the Eritrean Foreign Ministry.

More links for Kenya’s Election; Chief Justice’s “bombshell” press conference; Debate loses a “horse”

Kenya Voting: "Curriculum Cooking"

AllAfrica.com has put together a special feature page on the Kenyan elections that is a good source for the latest stories from the main Kenyan media sources:  “Kenya Decides: 2013 Elections”. (h/t @GeorgetownDG)

On Thursday, February 28, the Institute for Security Studies Nairobi office will host a “Seminar on Kenya’s 2013 Elections: issues, actors and scenarios.”  Register on-line through the link.

IRIN has published on on-line “multimedia documentary” entitled “No Ordinary Elections” which does a nice job of informing an international audience of the basic context of the upcoming Kenyan election and includes good interviews discussing humanitarian concerns and preparations in general terms.  A work of art in internet publishing.

In the latest developments, there is a lot of buzz in the human rights community regarding the announcement by Chief Justice Mutunga at a press conference today that he had received a letter threatening judges and others regarding any ruling against the candidacy of Uhuru Kenyatta purporting to be from a Mungiki-associated group, Further, as reported in the Star story “Chief Justice Raises Concern Over Threats to Judges”:

The CJ also revealed that he was asked by an immigration officer at the JKIA to seek travel clearance from the Head of Civil Service Francis Kimemia a day after the letter was posted.

“I was stopped at the Jomo Kenyatta International Airport (JKIA) by an Immigration Officer, who insisted that I could not travel because I had not been cleared by Mr. Francis Kimemia, the Permanent Secretary, Head of the Public Service, and Secretary to the Cabinet.” Mutunga said.

The CJ further asked Inspector General of police David Kimaiyo to take the necessary steps to protect judges from threats and intimidation so as not to give constitutional rulings. “The Judiciary will not flinch from interpreting the constitution as required. The constitution must be guarded jealously,” He said.

From The Standard: CJ Mutunga bombshell”.

From the Daily Nation: “Chief Justice Speaks Out on Threatening Letter.”

Obviously a lot of difference among the media houses in how to report this.  Thus the need to read widely to put together the pieces in getting the facts and understand the interests.

While I would completely reserve judgement as to exactly what to make of the threatening letter, the “immigration” harassment is disturbing in light of Kenya’s short but unduly “colorful” history involving politics at these highest levels.  Certainly the President himself should address this if he wants to reassure the country at a time in which no one needs any more tension than can be helped.

This has overshadowed the other big political story of the day, that Uhuru Kenyatta’s campaign has announced that he will drop out of the second presidential debate scheduled for Monday, complaining of the allegedly unfair amount of emphasis on the charges he faces from the International Criminal Court and “ganging up” by the other candidates on this point.

My sense of the political strategy here would be that Kenyatta feels he is in solid position to make a runoff, and not in striking distance to win in the first round, so there is nothing major to be gained from another debate, while there are risks from undesired questions and unscripted situations.  He has plenty of money and media access as a top candidate so he probably doesn’t feel a need to share the stage to  communicate whatever he wants to say in the last days of the campaign.  Likewise, part of his approach since the ICC charges have been confirmed has been to portray himself as a victim of other politicians and interests, so claiming that he was treated unfairly in the debate fits with that theme, too.