Washington event on “The Implications of the Kenyan Election” tomorrow; Mutunga’s judicial philosophy

Tomorrow afternoon at the National Endowment for Democracy, Joel Barkan and Maina Kiai will discuss “The Implications of the Kenyan Election”. Watch the video stream from 1930 to 2100 GMT or 1:30 to 3:00pm EDT (Washington) time.

In continuing to try to come to grips with the lack of substance of the Supreme Court’s ruling in the election petition cases, I am reminded of an article from The Africa Report for February, titled “Can They Pull It Off? The judiciary and electoral commission say they are prepared for the 4 March vote and will not repeat the mistakes of the contested December 2007 polls”.

In the article, the new Chief Justice Mutunga gives what my be some foreshadowing of the Court’s ultimate deference to the IEBC in the election petitions:

Keeping the three arms of government separate and independent should not rule out constructive cooperation, says Mutunga: “I see us protecting the independence of the judiciary but also realising that you’ve got to talk to the ministry of finance, to parliament and that sometimes you might also ask the president to intervene.”

A dialogue between the arms of state is important, insists Mutunga: “As a matter of fact, President [Mwai] Kibaki has never called me about a case. The the hotline [from the President’s office to the Chief Justice’s] is not hot — nobody uses it!” As chief justice, Mutunga joined discussions last year with businesses and President Kibaki about how to ensure the elections were credible and peaceful. He added that the judiciary is committed to helping the Independent Electoral and Boundaries Commission (IEBC). For example, it has allocated special courts to deal with all electoral disputes quickly.

. . . .

There is, however, nervousness about how the IEBC will fare . . . .

If the role of the Court is to work collectively with the other parts of the Government to promote “credibility” to keep “peace” then perhaps it is best to ignore “legalistic” details like more votes than registered voters in many polling places, and the raising and lowering of the number of registered voters in various parts of the country. Perhaps this is what is meant by a “robust” and “progressive” jurisprudence.

 

 

Thoughts on Kenya’s Supreme Court opinion [Updated]

UPDATE–April 21: Read Kenyan lawyer Wachira Maina’s devastating critique of the Court’s opinion from the new East African. Or at the AfriCOG website here: “Verdict on Kenya’s presidential election petition: Five reasons the judgement fails the legal test”.

Here is the full Kenyan Supreme Court opinion released this morning. It’s 113 pages, but most all of it is taken up by accounts of some of the arguments presented by the various attorneys.

The Court elected to apply a standard of proof that would require “in the case of data specific electoral requirements” petitioner to prove irregularities “beyond reasonable doubt”.

Overall, the Supreme Court simply deferred to the IEBC to decide how to run the election. The Court justified its constrained rulings on allowing evidence on the basis of strict and very short deadlines which it asserts are justified by the importance of the Presidential election–thus leaving more detailed trials for the more than 180 other challenges filed so far in the Courts below for the other races.

The Court did not give rulings on the admission of evidence such as the videotapes presented by AfriCOG’s counsel of results being announced at the County level that differed substantially from those announced by the IEBC at its national tally centre in Nairobi, or otherwise grapple with any specifics of reported anomalies, including those among the sample of 22 polling stations that were to be re-tallied. Nor did it address the fact that its order to review all 33,000 Forms 34 and the Forms 36 from all constituencies was only slightly over half completed.

The Court declined to impose legal consequences in terms of the announced election outcome from the failure of the IEBC’s technology, but significantly did find that the main cause of the failures of the electronic voter identification system and the electronic results transmission system appeared to be procurement “squabbles” among IEBC members. “It is, indeed, likely, that the acquisition process was marked by competing interests involving impropriety, or even criminality: and we recommend that this matter be entrusted to the relevant State agency, for further investigation and possible prosecution.”

See my previous post asking why we should trust the IEBC in light of the procurement integrity failings.

In closing, I have to note that the Court gave itself an extra two weeks after the deadline for its ruling to make any kind of explanation for that ruling. Then gave itself an additional two days. Similar flexibility in considering the facts of the case itself could have allowed it to do a more credible and substantive job of actually reviewing the election.

[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.

 

At Easter, chicks come home to roost for U.S. for helping to underwrite impunity in Kenya; but “we” do not need Uhuruto

The United States looked the other way on a stolen 2007 election in Kenya.

Even though our Ambassador himself saw the changed tally forms at the Electoral Commission in Nairobi. We supported a “settlement” that created a temporary prime minister spot, without defined authority, for the apparent winner (not only did the exit poll done at the instance of the Ambassador and funded by USAID show a substantial win for the opposition candidate Odinga, but a separate State Department analysis in January concluded “advantage Raila.”).  “We” nonetheless called on Kenyans to accept the “results”. While we withdrew our congratulations to Kibaki and later asserted that we did not know who won, we were not willing to be publicly honest about what “we” had seen at the ECK as well as what else we did know.

To help pressure for a settlement, we eventually issued “visa ban” letters to three members of the Electoral Commission on the basis of evidence of bribery–but we never revealed this fact or the evidence–it only came to light through stolen cables published in the Daily Nation years later.

We rejected accountability for election theft–thus supporting impunity in this regard.  We supported, in concept, justice for the the post-election killings and mayhem. We had a hybrid position; let’s call it “limited, modified impunity”. Of course, the reality is that our supposed solution of “local tribunals” in Kenya for the post-election violence was always a complete pipe dream under the “power sharing” government we helped broker because that government was never going to implement any such thing.

Thus the role of the International Criminal Court as a last resort due to the initiative of the commission led by Justice Waki to provide the names to the ICC as a fallback.  We should pat ourselves on the back, I suppose, for helping to pay for the commission at least. Likewise, we have over the subsequent years now declined to go along with the aggressive activities of the Government of Kenya in requesting action from the UN Security Council to squelch the ICC’s prosecution, so we have at least refused to stand in the way of the ICC.  At the same time, we haven’t seemed to accomplish anything very noticeable on the protection of witnesses and the other core issues that enshrine impunity in Kenya.

Now, just like in 2007, we have helped pay for another flawed election, this time one which has ended up with a victory for the ticket of “Uhuruto” composed of the two leading politicians charged by the ICC for allegedly having key responsibility for the instrumental political killings of 2008. While it appears plausibly that Uhuruto on March 4 had a higher percentage of support than did Kibaki in 2007, it is also clear that there were substantial irregularities in the handling of the election, over a period of many months, by the “new and improved” IEBC–which was in fact caught even within the Kenya government itself, engaging in unlawful procurement corruption in regard to key technology–technology which was supposed to provide safeguards against the shambolic 2007 tallying process, but failed to be deployed or work.

So after an extraordinary sum of perhaps $240M was spent on an election with only somewhere around 14M registered voters (not sure exactly how many since the register was a series of 33,400 separate paper print outs which were reported by the IEBC to be unavailable for review in the Supreme Court)–we ended up with the same manual count fiasco as in 2007.  More system purchases were more opportunities to “eat”, not more reliability.

The IEBC was perceived as being corrupted on both sides instead of stacked completely only on one side like the ECK last time–but there was no one individual trusted like Kivuitu to let everyone down this time. In one respect that helped diffuse the prospect of violence because the voters this time were much more subdued and had lower expectations–and knew what could happen. And there were some other things different this time based on lower expectations from the “international community”–the observer groups spoke out early to bless the IEBC before it was anywhere close to completing its tally and gave it some cover for whatever it would chose to do. Last time, only IRI really did that–and it was rightly criticized for doing so as the count became problematic.  This time, private conversation before the election about what to say hearkened back to what observers had said in the first full blown observations of Kenya’s first multi-party elections in 1992 under Moi–the terminology “reflects the will of the Kenyan people” as a way to say the process run by the Government of Kenya could not stand scrutiny but the official candidate had a plurality anyway. The difference being that this time Kenyans had passed a new Constitution that was supposed to end the old first-past-the-post system in favor of a runoff-to-majority that meant that the opposition did not have to unite behind one candidate ahead of time to have any chance against a minority candidate supported by the State.

The U.S. knew, and Kibaki and his supporters, including Uhuru Kenyatta, knew that in 2007 we gave the Government of Kenya a pass on election rigging.  This time we didn’t step in and blow the whistle on procurement corruption or otherwise as the process moved towards its unsuccessful conclusion–and we gave the powers that be in Kenya no real reason so far as I know to believe that we had really changed the terms of the deal from 2007.

Now we have another incoherent vote count, but everyone is relieved that major violence did not erupt.  The new Electoral Commission argued to the Supreme Court that the Court could not set aside the IEBC’s pronounced premature results on the basis of the irregularities that had been revealed so far, or the known uncertainties, because to do so would create a constitutional crisis–the only way to have another election would be to use the same flawed register and the same flawed Electoral Commission itself.  In other words, the Court did not, according to the IEBC, really have the power to challenge its work and its decision which was now fait accompli.  The Court announced its ruling–at the last allowable moment (a few hours later than the two weeks permitted if it were as strict with itself as it was with those before it)–yet could not muster any explanation or reasoning whatsoever.  It declared itself to have the power, and to be exercising it, to ratify the IEBC’s result, but either couldn’t agree on why or was not comfortable saying until a future date–after the swearing in.

The bottom line here is that the United States has been helping to underwrite failure in Kenya for too long.  We got taken for a ride–again.  We ought to have more self respect.

The British government has groveled to “get right” with an incoming Uhuruto administration, but we simply do not need to do so.

We provide a disproportionate amount of aid to Kenya–officially roughly a Billion U.S. Dollars each year–unofficiallly I am sure there is more; not to mention extensive private aid that also helps alleviate the suffering of Kenyans left adrift by the corruption and bad priorities of their governments.  As far as I can see, we spend a lot of money in Kenya for sentimental rather than legitimate programmatic reasons.  And the restaurants and resorts are more upscale and Kenya is more oriented for tourism accompanying official travel and postings.  But a lot of the tourist infrastructure is owned by the Kenyatta and Moi families themselves.  We ought to grow up and take our responsibilities more seriously.

What has all this spending been adding up to aside from bad elections?  Kenya’s Human Development Index score for 2000 was .513 for a “Medium Human Development” ranking of 134th among the scored countries.  The 2012 score was .519, for a rank of 145th.  Among the 45 “Low Human Development” countries Kenya stands out, along with Zimbabwe for having by far the highest “Mean Years of Schooling”.  Yes, from 2000 to 2012 Kenya’s GDP per capita increased by roughly fifty percent–it just didn’t result in much relative overall human development progress for the country as a whole.

The Cold War has been over for almost 25 years.  What we have been doing has not been working very well and we can do better.

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.

Kenya needs a better election review process next time . . . as respondents argue that IEBC has done “so much” that presidential election announcement should stand as good enough

So we are down to the hearing of the challenge to the presidential election involving some ten to twelve million voters in a country of over forty million. All of the voting was done by paper ballot and counting by hand. At the time of the hearing there is no list available to the petitioners or the court of who did and did not vote, nor one defined list of who was eligible as a voter.

Even with the breakdown of the intended election technology across the board, the IEBC announced a final vote count on the evening of March 8, just over three days after completion of the voting, in spite of having seven days available for the process, then formalized the result the next day, March 9.

It now comes down to one day of oral argument on each side in an adversarial proceeding between the IEBC represented by government counsel and AfriCOG and CORD for the Supreme Court to decide whether to let the IEBC pronouncement stand, or not.

There has been no administrative process or review, there has been no neutral body involved prior to the Supreme Court. The IEBC has been in an adversarial mode in defending its decision since the decision was made. The Court has determined that there is no time for detailed discovery of evidence sought by petitioners.

The Court will ultimately have to decide this case on the basis of generalities–either recognizing the standards required by the Constitution for voting were not met systemically:

Article 86:

At every election, the Independent Electoral and Boundaries Commission shall ensure that—

(a) whatever voting method is used, the system is simple,
accurate, verifiable, secure, accountable and transparent;
(b) the votes cast are counted, tabulated and the results
announced promptly by the presiding officer at each polling station;
(c) the results from the polling stations are openly and
accurately collated and promptly announced by the
returning officer; and
(d) appropriate structures and mechanisms to eliminate
electoral malpractice are put in place, including the
safekeeping of election materials.

or, alternatively, the Court will defer to the the IEBC on the basis that its decision is unimpeachable except to the extent that it can be disproven vote by vote in detail through admissible evidence in adversarial litigation in one day.

[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.”

AfriCOG’s vital role as Petioner 4 challenging the Kenya’s IEBC

Like everyone else who is engaged but not able to be in the courtroom, I am watching live broadcast of the preliminary hearings in Kenya’s Supreme Court of the petitions challenging the Independent Electoral and Boundaries Commission’s March 9 announcement of “final” election results.

The live broadcast of these proceedings is an amazing development–to me of much greater significance than the presidential campaign debates.

I wanted to take just a moment to stress the role of Gladwell Otieno as petitioner as executive director of AfriCOG. The AfriCOG filing is petition no. 4–followed by CORD’s petition no. 5. Although the court has tended to give an unbalanced share of time to the array of government-paid lawyers representing the two defendants who are in lock-step, Hassan as the national returning officer in the presidential vote, and the IEBC which he chairs, AfriCOG, as an open governance organization, has taken on the challenge of defending the interests of the voters and integrity of the process itself.

This is not about Raila Odinga and Uhuru Kenyatta–this is about the Kenyan democracy.

It has been interesting to see the respondents file replies to AFriCOG’s petition trying to ignore the issues by simply referring to the “already filed” responses to the subsequent CORD petition–it is in their interest to try to frame the issue as one about a challenge by a losing candidate rather than about why the IEBC did not do its job, and meet its obligation to each citizen under the Constitution, of holding a simple, fair and transparent election.

Here is a Question and Answer release from AfriCOG on the Petition.